People v. Burgess

In People v. Burgess (1988) 206 Cal. App. 3d 762, Division Five of this court had before it a claim by a defendant, convicted of possession of stolen property and related charges, that permitting the prosecution at trial to peremptorily challenge and excuse a sitting juror and substitute an alternate violated double jeopardy principles. ( Id. at pp. 765-766.) Affirming the conviction, the court first determined that cause to excuse the juror did not exist. "Thus, it is clear that the trial court erred in reopening jury selection to permit the prosecution's peremptory challenge." ( Id. at p. 766.) After noting that where the double jeopardy clause applies, its bar is absolute, the Burgess court wrote "we think defendant's contention of twice in jeopardy is best resolved by reference to the basic policy reasons underlying the protections offered by the jeopardy clause . . . ." ( Id. at p. 767.) The court distinguished Young on the ground that there the substitute juror was not an alternate but from the venire. ( Id. at p. 768.) "When the improper juror substitution . . . is measured against constitutional protections . . . it is readily apparent that no meaningful deprivation or violation of those protections . . . occurred." (Ibid.)