Brown

Wilma J. Brown appeals the denial of her petition for a writ of prohibition to restrain the San Diego Municipal Court from retiying her on a charge of driving under the influence of alcohol (Veh. Code, § 23102, subd. (a)). An earlier trial resulted in a mistrial after a hung juiy. She contends Penal Code sections 1140, 1141, 1150 and 1151, requiring unanimous acquittal, violate the United States and California Constitutions.

Brown states she does not base her petition on double jeopardy grounds. She argues the necessity of unanimity for conviction (see Johnson v. Louisiana, 406 U.S. 356 [ 32 L.Ed.2d 152 , 92 S.Ct. 1620 ]) does not mean unanimity for acquittal is necessary and due process does not require a unanimous verdict for acquittal. She further argues an acquittal rather than a mistrial is the proper remedy for less than unanimous jury verdicts.

*182 In People v. Troche, 206 Cal. 35, 43 [ 273 P. 767 ], the court stated: “Juries at the common law were not always the same, but, through changing conditions and gradual development, it came about that a jury for the trial of a cause was established to be a ‘body of twelve men, . . . who, after hearing the parties and…