Stanley

*269 Opinion

In Curry v. Superior Court (1970) 2 Cal.3d 707, 713 [ 87 Cal.Rptr. 361 , 470 P.2d 345 ] (Curry), our Supreme Court held that “mere silence” in the face of the proposed discharge of a jury does not constitute consent to the dismissal of the jury, and the subsequent mistrial, so as to defeat a defense assertion of double jeopardy. In this case, defense counsel participated in discussions which led the trial court to believe that counsel had consented to the procedure which ultimately resulted in the dismissal of the jury, prior to opening statements. When defendant subsequently moved for dismissal, asserting double jeopardy, the trial court held that defense counsel’s conduct constituted implied consent, and denied the motion. We conclude that the record supports the trial court’s conclusion; Curry has no application when counsel’s conduct goes beyond “mere silence,” and his words and actions reasonably lead the court to believe he consents. We therefore will deny defendant’s petition for a writ of prohibition.

Very shortly after the jury and four alternates were sworn in a double-murder case, a number of jurors asserted reasons why they needed to be excused from…