Reopening Jury Selection in California

Under People v. Cottle (2006) 39 Cal.4th 246, once the jurors were sworn, the trial court lacked authority to reopen jury selection as to those trial jurors. The Cottle court did not indicate that there were any exceptions to this rule. That the trial court thereafter excused J.V. for cause did nothing to affect the application of Cottle. As the court in Cottle observed, "this conclusion that the trial court lacks authority to reopen jury selection once the 12 trial jurors are sworn does not leave the court without recourse should a juror become unable to serve. Code of Civil Procedure sections 223 and 234 and Penal Code section 1089 provide for the removal of a juror upon a showing of good cause." (Id. at p. 259.) The trial court only had the discretion to reopen the selection of the regular jurors if the panel was not yet sworn: "The phrase '"the jury is sworn"' refers to the trial jury, not the alternates. (People v. Cottle, supra, 39 Cal.4th at p. 255.) If a party were allowed to use peremptory challenges to members of the jury after the jury was sworn, but before the alternates were selected, gamesmanship would be encouraged. (Id. at p. 257.) 'For example, if a favorable juror was selected as an alternate, a party would then try to challenge a member of the jury so that the alternate could replace the juror. Nothing in the legislative history suggests an intention to create such a scheme.' (Ibid.)" (People v. DeFrance (2008) 167 Cal.App.4th 486, 503.) Instead, the court should not have reopened jury selection after the jury was sworn. (People v. Cottle, supra, 39 Cal.4th 246.) In Cottle, "both sides consecutively passed their peremptory challenges, and the jury was sworn." (Id. at p. 255.) During selection of the alternates, a previously sworn trial juror asked to address the trial court about "some reservations" he had about serving as a juror. (Id. at p. 250.) After questioning by the trial court and counsel for both parties, the trial court denied a defense motion to dismiss the trial juror for cause. (Id. at p. 253.) The defendant then moved to reopen jury selection to exercise an unused peremptory challenge as to the trial juror. (Ibid.) The trial court denied the motion to reopen jury selection on the grounds that 12 jurors had been sworn. (Ibid.) The Court of Appeal reversed based on People v. Armendariz (1984) 37 Cal.3d 573, concluding that the trial court should have reopened jury selection. (People v. Cottle, supra, 39 Cal.4th at p. 253.) The Supreme Court disagreed with the Court of Appeal's analysis, and in particular with its reliance on Armendariz, because Armendariz was based on former section 1068, which provision had been repealed in 1988. (Cottle, at p. 253.) After conducting an analysis of the statutes that replaced section 1068, the court in Cottle concluded that the "Legislature has eliminated the language upon which Armendariz, supra, 37 Cal.3d 573, was based that allowed peremptory challenges until the alternates were sworn, thus superseding its precedential authority." (Id. at p. 255.) It therefore held that "under the Trial Jury Selection and Management Act, the Legislature intended that a trial jury be comprised of 12 jurors sworn by the court 'to try and determine by verdict . . . questions of fact' ( 194, subd. (o)), regardless of whether alternate jurors are to be called, selected, and sworn. Once a jury has been sworn, the court lacks authority to reopen jury selection proceedings. ( 226, subd. (a).)" (Id. at p. 258.)