*1 Dist., May Div. Four. H002234. First 1988.] [No. PEOPLE, and Respondent,

THE Plaintiff JOHNSON, Defendant Appellant. ALVIN RAY publication.*] partial [Opinion certified for * 976.1, Court, 976(b) opinion is certified for rules Pursuant to California Rules of V.

publication exception parts IV and with *2 Counsel Appeal, Court under Tinsley, appointment

Jimmie E. and Appellant. Defendant *3 White, General, Assistant Chief Steve Attorney Kamp,

John Van de K. General, Stan M. General, Attorney H. Assistant John Attorney Sugiyama, General, Plaintiff and Rose, Attorneys David H. Deputy Helfman and Respondent.

Opinion Alvin Ray guilty CHANNELL, J. jury found appellant A Code, years (Pen. over 60 of age a victim robbery against committed §§ 211, 1203.09, counts of first 236), and four (§ subd. false (f)),1 imprisonment 459, 460, years He was to nine and (§§ 1.) subd. sentenced degree burglary. the trial court (1) He prison. appeals, contending four months state dire; (2) party voir evidence of third reopen jury refused to improperly excluded; misconduct; and (3) (4) committed prosecutor culpability We affirm the only robbery. incidental to false imprisonment judgment.

I. Facts A. Underlying The Crimes 1985,2 26, an on Acalanes

On August manager apartment complex an Sunnyvale apart- Drive in noticed that a screen had been removed from ment The and a had been glass window was corner of the open window. the lock. had been ransacked Larry apartment broken out near Palacios’s Police that the intrud- missing. some stereo determined equipment fingerprints er entered and were able obtain several had window entry. from the area around the point returned to her on Schweitzberger apartment

On Kathleen September Sunnyvale missing. her VCR and Ayala afghan Drive in to find an removed, the that a had been win- discovered window screen partly her front unlocked. Judith Cress had dow door was open, Neighbor and an away afghan seen man from the with a box walking apartment Black man at least day. light-skinned earlier that She described the man as Code, statutory are All references to the Penal unless otherwise indicated. year, All refer to the 1985 calendar unless otherwise indicated. dates tall, afro, build, six feet four inches well-groomed of athletic approximately old, years 30-35 a black suit. wearing jogging photographic lineup, saw, Cress selected a that she the man photograph thought resembled she but she was unable to make a identification. The she positive photograph selected was not that of Alvin Johnson. Police were unable to appellant any obtain usable from the apartment.

On Sunnyvale October a friend was after the home of Carmen looking Sisikin, who was on vacation. When the friend entered the house on West Avenue, McKinley she saw that the house been A ransacked. screen window, had been removed from a bedroom and both the window and the window lock were broken. A television set jewelry and some were missing. Someone had lid candy jar candy removed the from a and had left empty *4 near it. Police wrappers candy were able to obtain a from the fingerprint jar lid. day, same Robert Hughey returned to his home across the street

from Sisikin’s house and noticed that the mesh had been removed from a window screen. Neighbor Albert Barron had noticed a Black man young near Hughey’s house that morning. Barron described the man to police tall, Black, 20 years 6 feet age, and of slender No one build. had entered house and Hughey’s nothing was from it. missing 8:30

Between and 8:45 a.m. on October Carole Weller came back Sunnyvale her home on Avenue and heard Noriega the back door slam. She Black, Chicano, saw a tall dark man—who could have been or a well- tanned White away from person—run the house. Weller noticed that a cracked, window screen was bent out of a shape, window was the molding removed, around a next to her pane glass front door had been a sliding glass door ajar. Weller also saw her VCR near the unplugged sliding door. One glass fifty hundred and in dollars tens and twenties was from a missing music box. Police were able to obtain fingerprints from the bent window screen.

On the of October morning Alan Gee heard his dog at his barking Lanitos Avenue Sunnyvale home in and went to investigate. His front door Later, was open and he saw a tall person running away from the house. he discovered that one of his room living windows was broken and that the window adjacent to it had been opened. from Nothing missing Gee’s house, but windowsill, found several police on the fingerprints the window frame, and on a of broken piece glass.

That same morning, 65-year-old Josephine Case walked out of her Silver- wood Avenue in home Mountain View to take out the trash. When she bathroom with

returned, tall, from the emerged Black man slender head, removed but she around Case’s face. He the towel put over his towel any. very fright- not have Case was money; Case did it. The man wanted her. hurt to be still or he would man told her screamed until the ened and her through When the man use it. went had a and he would gun He said he her He took heart him for medication. digitalis—a asked her she purse, bed- two boxes and dresser drawers through jewelry went upstairs minutes, and tried Case in the bathroom the man put rooms. After few around the doorknob. electrical cords getting by tying her from out prevent minutes, herself, there. but man was still Case freed five Within her, the come until he let that he her not to out Case had told Reminding minutes freed 10 or 15 in the When she herself man her back bathroom. put stereo, VCR were later, A and a phone-radio, a combination gone. the house. latent inside from the house. Police found missing 10, Sunnyvale arrested on an unrelated On October police That same Albert Barron selected evening, him. charge fingerprinted that he from He told lineup. Johnson’s photograph photographic the man he had was 80 certain that the man percent photograph seen at house. Hughey’s *5 early morning Tim Davis of in Sunnyvale

Officer interviewed Johnson 11. After Miranda told Davis waiving rights, hours of October his Johnson Mary South that he was five inches tall. that he lived on Avenue and six feet Barron, He in Hughey’s yard talking admitted with but denied being in any involvement burglaries. 14, Officer Sunnyvale

On October Walter Briefs of a series of compared latent He identified latent tak- fingerprints prints. fingerprints Johnson’s Palacios, Sisikin, Weller, en from the scenes of the burglaries and Gee Alvin Johnson. belonging 16, Officer Sunnyvale

On October Davis of Johnson again, interviewed Sunnyvale him that his found at the telling prints had been scenes of several said have been Johnson that he had handled burglaries. property might deny taken from the scene but he continued to his involve- burglar, ment in the offenses. Davis had been found Johnson’s explained prints at the scenes as At burglary well as on stolen property. point, said that evidence to upset, became his were sufficient fingerprints him, convict and ended the interview. meantime,

In the draw- Mountain View police prepared composite ing the Case intruder Case’s A Mountain based on Josephine description. officer, Scott, to a drawing View Robert to show the happened composite officer, in turn Scott a name. Scott Sunnyvale gave prepared who police Alvin John- appellant that included photographic lineup photograph 23, son, Case was Josephine on whom now focused. On October suspicion identify unable to positively shown a but she was photographic lineup, However, a technician that one of the Johnson as the intruder. found house matched Johnson’s latent taken from her Mountain View 19, robbery, the Case On November Scott Johnson about prints. questioned any but he denied involvement in it.

B. Voir Dire single five of first charged degree burglary,

Johnson was with counts After his burglary, robbery, counts of false attempted imprisonment. mistrial, first trial ended voir dire anew. On June began Moulden, try and 1 alternate Mr. were sworn to regular jurors juror, day by matter. The trial court closed the that the case would stating begin day the next with statements. opening Watkins,

The following day, jurors, one of the Ms. was dis- regular and Moulden the trial charged juror. Initially, was substituted as a regular court indicated that a be moved to new alternate would selected. Johnson entirety. regular jury selection its He that when the explained sworn, of which Watkins was a had been he had three part peremptory By challenges remaining against regular jurors. that could have been used alternate, the time Moulden was seated as a Johnson had exhaust- potential ed his alternate He that the substitution of peremptory challenge. argued jury. Moulden for Watkins altered the entire For this composition reason, he asked the entire selection be and that each reopened, be attorney granted right any to exercise chal- remaining peremptory *6 lenges against any member of the jury.

The trial court noted that voir dire been inclina- lengthy had and his Then, tion to juror select another alternate to trial. the proceed already court to began speculate about with the that had proceeding been a why thought selected without new alternate. Johnson he explained the substitution of Moulden for Watkins altered the composition motion, jury, but the trial court was not As an alternative he persuaded. asked the to judge only consider voir dire as to Moulden’s seat. reopening His motion to reopen was denied. objected of this Johnson to the trial court’s to light ruling, proposal

seat a new alternate. The was reluctant to prosecutor begin presenting alternate, evidence without an try but the court decided to the case without one. and Sentence

C. Trial Moun- Sunnyvale from victims, officers eyewitnesses, police The presented The also prosecution facts. testified to the relevant tain View each neighborhood. in sites were Johnson’s Sunnyvale the crime evidence that testify could trial, officers ruled that in the Early Johnson, the arrest was to the fact that but not refer could they arrested officer arresting When the for an unrelated offense. on a warrant based card, prosecutor fingerprint Johnson’s testified about information on on to The officer the date and went gave date of birth. asked him Johnson’s card, the warrant. including a reference to information on the read other court’s earlier on violation the trial moved for mistrial based Johnson officer of he had not advised this admitted that ruling. prosecutor underlying not identify He officer did ruling. argued court’s that the offense, one of that the arrest was for jury might that the assume offenses, the reference many might and that understand jurors charged mention the to The trial the officer not to a warrant. court admonished error but ruled statement an innocent warrant that the officer’s again, denied without to be harmless. The motion mistrial was that appeared to jurors significance to renew it later if it attached prejudice appeared the reference. testified, that she compare

When Case she said could not Josephine him intruder because not heard voice of the with that of Johnson she had —” talk. The John- prosecutor began suggest “Perhaps could when later, attorney son’s another A few minutes posed question. prosecutor have Johnson make some statements for the witness. completed request occurred, matter was objected, Defense counsel bench conference and the not mentioned Outside the again open jury’s presence, court. mistrial, deliberate moved for that the committed charging prosecutor had a request. misconduct his The trial court noted that the prosecutor identification, right customary notify to ask for a voice but that it was rather it first court. Johnson’s request court of than pose open motion for mistrial was denied. defense, of his evidence part person

As Johnson offered that another been on in order suspicion committing burglary detained Weller *7 identity a reasonable doubt of the committed raise about the who person At a.m. the Weller this offense. 9:15 on October an officer responding bag. him a burglary report spotted walking carrying grocery man toward officer, man an act that attract- momentarily hesitated when saw by ed attention. detained the officer’s The man was and questioned White, tall, Weller six in of the vicinity officer. He was feet five inches house, cash, $196.82 lived in the neighborhood, and carried much of it cold, $20 bills. The contained some and a market grocery bag groceries, still $7.18. away He was Avenue receipt walking Noriega from where occurred, Weller to be burglary walking grocery from appeared adjacent store Avenue Noriega toward his home. The noted prosecutor that the man’s had been fingerprints against checked those found at scene and he had been eliminated as a on the basis of the results of suspect White, this test.3 He also reminded the court that this man was but Weller had seen a man run from her house. The court dark-complected also noted that Johnson’s were found on a prints screen at the Weller house. The court evidence, was skeptical about the merit of Johnson’s proffered but took the Later, motion to introduce this evidence under submission. the officer tes- tified about this outside the of the suspect presence jury. After this evidence inadmissible, was held Johnson not to opted present defense. convicted robbery of the Case a victim who was at against 60 years least the Case false age, and first imprisonment, degree burgla- Palacios, Sisikin, Weller, ries the homes of and Gee—each offense for which the found his at the scene of the crime. He was of the acquitted Hughey and the attempted burglary Schweitzberger burgla- ry, the two offenses for which no identification was made. Statu- fingerprint torily 1203.09, ineligible for probation (see subd. Johnson was sen- (f)), § tenced to state years for nine prison four months.4

II. Voir Dire Johnson contends that the trial court had jury discretion to reopen voir dire to him to permit exercise his but remaining peremptory challenges, abused that discretion to do so. refusing governing Section the time for exercising peremptory challenges to prospective jurors, provides challenge “must be taken when the juror and before he is appears, sworn try cause; but the may Court for cause it to be taken after the permit sworn, juror is and before jury is completed.” Johnson contends that the jury was not complete within the meaning section at the time he made his motion to reopen; contend that the jury was complete once Mr. Moulden was sworn as an alternate.

Underlying of when question selection becomes within complete of section 1068 meaning is the interrelated of when question jeopardy attaches for purposes constitutional prohibition against double jeop ardy. In state criminal proceedings, jeopardy attaches when the appears The man to have been outstanding arrested on the basis of unrelated warrants fingerprinted and was when booked for this offense. stayed 4The trial court imprisonment charge. (See 654.) sentence on the false §

1561 28, 35, 38 U.S. Bretz 437 (1978) Crist v. (See [57 and sworn. empaneled is 24, 33, statute 31, providing Montana [invalidating 98 S.Ct. L.Ed.2d 2156] U.S. sworn]; see also is attach until first witness did not jeopardy that Const., I, When is jury the Const., Amends.; 15.) art. 5th & Cal. 14th § prohibi- the constitutional meaning of section within the completed Crist, a trial court’s into Under play. double comes against jeopardy tion Any inter- attaches. jeopardy to selection ends when jury discretion the 1068 must into consideration of of section take meaning the pretation be- of the connection Mindful interpretation. constitutional eifect of issues, key the cases. these we review tween two cases, Hess 107 (1951) earliest is the relevant the Of most a of 568], jury a trial court empaneled 407 P.2d which Cal.App.2d [237 to select alternate days denying Four after regular jurors. request 12 The trial then ordered selection court regular juror discharged. jurors, the discharged one of was seated to jurors, replace of two alternate whom but the court pleas The defendants entered of former trial juror. jeopardy, (Id., On at ground. pp. 424-425.) refused to on discharge ruled that two the Second District the selection these Appellate appeal, invade substantial or jurors any rights alternate did not defendants’ any alternates prejudice prior result to them. The “were selected attorney evidence before the made his any introduction of and district very sat from the of the They inception proceedings statement. opening evidence; they opportunities of the had all the began with introduction witnesses, see by regular jurors that were and hear the possessed .... by by bound same oath that taken the others The three were viz., number, . . . by jury, unanimity, essentials trial of a impartiality at claims preserved.” (Id., p. 425.) Rejecting were defendants’ of former court attach after held that did not until jeopardy, appellate jeopardy jurors the alternate were sworn. at (Id., pp. 425-426.) re 592 (1979) 318], In Mendes Cal.3d 847 P.2d Cal.Rptr. [153 jurors were sworn and the trial court have denied regular appeared juror. morning, regular juror select an alternate The request following discharged and the trial a new parties court that the select proposed juror alternate The motions for mistrial regular jurors. and two defendants’ on the denied. the selection of the ground jeopardy During of former were unused jurors, additional the court counsel to exercise permitted perempto- ry any jurors. remaining Three of challenges against regular jurors These were regular jurors by eleven were challenged parties. and a and 2 regular members alternates selected replaced at On the defendants the lower (Id., 851.) argued sworn. p. appeal, already erred sworn. jurors who had been permitting challenges rea- (Ibid.) Supreme rejected California Court this contention two *9 1562 First, examined trial

sons. the court the record and determined that the evidence to always jurors, intended to select alternate some despite contrary. As the selection was not when process complete authority continue regular juror discharged, the trial court retained to already jurors. (Id., this and to allow the seated process parties challenge However, at the court not rest its conclusion on “such pp. 852-854.) did that, circumstances, factual alone. It also held in such the trial speculation” Hess, court retains “the right (Id., 854.) its mind.” at change p. Citing court held that jurors did not attach until after the alternate were jeopardy sworn, thus the trial giving challenges court the discretion to allow who were regular jurors already sworn. The fact that the composition 12-member was to trial court’s panel change provided good cause for the exercise of this discretion. at As the alternates were (Id., pp. 854-855.) made, selected and sworn before statements were witnesses were opening sworn, introduced, and evidence was did not constitute an procedure invasion rights. 856.) defendants’ constitutional at (Id., p. case,

In the most recent (1984) Armendariz 37 Cal.3d 573 [209 664, 693 P.2d Cal.Rptr. 243], regular jurors had been selected and sworn, and the parties jurors were the midst of alternate when selecting regular jurors were The defendant asked to be to use discharged. allowed some of the for peremptory challenges against regular jurors allotted use against the alternate prospective jurors. court denied this request, that he finding statutorily from it. Once the defend precluded granting ant exhausted his allocation of alternate challenges jurors, peremptory he moved to selection of the reopen regular jury and to be allowed exercise his juror unused This motion was regular peremptory challenges. also denied. One of the jurors who was seated after the defendant exhausted his peremptory challenges juror. selected sit as On regular appeal, the defendant the trial challenged court’s restriction of the exercise of his peremptory challenges. (Id., 578-579.) at The California pp. Supreme Mendes, Court, citing held that the trial court had the discretion to reopen jury selection and authorize the use of unused until peremptory challenges all jurors alternate were (Id., sworn. at Even if the trial court pp. 580-581.) discretion, had not erred by to exercise its failing denial of defendant’s have request would been an abuse of discretion under the circumstances of Mendes, this case. Relying on the court held that good cause to reopen established because the 12-member was to at 581- panel change. (Id., pp. 582.) The conviction was reversed for failure to a defendant grant to which peremptory challenges he was entitled. at (Id., 584.) p. essence, Johnson contends that these cases establish the trial court’s discretion to jury selection and its abuse that discretion its refusal to do so. On of whether the question Johnson trial court had factually distin- is that this case argued can be it well reopen, discretion to *10 However, decide whether the need not we authorities. from these guishable jury selection. reopen trial had discretion to court discretion, this it court had that the trial arguendo Even if we assume juror Moulden substituting alternate by clearly within its discretion acted substitution did not 1123.) This juror. (See discharged regular for the § unity original in because jeopardy cause to be twice Mendes, (In 853; People 23 at v. p. re Cal.3d destroyed. supra, was not 26-27, 18, 868]; v. People 31-32 P.2d see 84 Cal.App.2d Burns (1948) [189 Hess, Mendes, and 333, P. In 51].)5 54 366-367 Peete (1921) Cal.App. [202 Armendariz, jurors yet be selected the alternate or more of one certainty con- compelled a factual was regular jurors would sit In John- selection. required reopen jury clusion court trial case, on arose— before issue juror—selected appeal son’s the alternate fairly a routine trial court discharged juror, for a merely substituted made, trial court having been (See 1123.) occurrence. The substitution § to trial without deciding selecting did abuse its to proceed not discretion decision, 1089.) made this there was jurors. (§ Having additional alternate do not a support no need to voir dire. Johnson’s authorities reopen jury contrary conclusion. Party Culpability

III. Third Next, Johnson contends that the trial court committed prejudicial third for the culpability error his evidence of excluding proffered party criminal Weller A a evi burglary. right present defendant has if it is a doubt party raising dence of third reasonable culpability capable 826, 833 (1986) about his or her v. Hall 41 Cal.3d guilt. own (People [226 112, evidence, any 718 P.2d This rule not 99].) require does Cal.Rptr. remote, possible culpabil however must be admitted to show a third party’s ity. opportunity Evidence another motive or to commit person’s crime, more, about without will not raise reasonable doubt a defendant’s link third to the guilt; direct or circumstantial evidence must person Kegler v. 197 (Ibid.; People (1987) actual of the crime. perpetration 72, 80 Once the evidence has 897].) 3d defendant’s Cal.App. Cal.Rptr. [242 doubt, may only excluded if it is more been found to raise a reasonable it be Hall, 829; v. 41 Cal. 3d see p. than at prejudicial probative. (People supra, Code, Evid. 352.) § 5 case, any might request voir constitute waiver of double Johnson’s dire 667, 416,

jeopardy (See Oregon Kennedy (1982) 422- claim. v. 456 U.S. 672-673 L.Ed.2d [72 423, 600, [mistrial]; (1976) 424 U.S. 607-610 102 S.Ct. United States v. Dinitz 2083] [47 267, 273-275, [mistrial]; (1985) S.Ct. 41 Cal.3d L.Ed.2d Balderas 1075] Cal.Rptr. [mistrial].) 711 P.2d [222 480]

Johnson claims that numerous facts about the man who was de his by police guilt: presence tained create reasonable doubt about own vicinity shortly of the third of the crime the crime person after committed, his amount of he had on his the number height, the cash person, carried, $20 neighborhood, bills he his residence in the and the fact that away from the Weller The trial admitted that walking house. likely these made the person suspect, prosecutor’s factors third but the offer of the man’s proved that he could have proof—that been the “too strong” excluding intruder—was overcome. After evidence, the trial court that if the proffered explained man’s fingerprints *11 him a not eliminated as in the Weller the evidence suspect burglary, would have been admitted. On that the trial appeal, Johnson contends relevant, court’s his ruling implied that evidence was but that it was incredi ble in of the other light evidence—a as an finding challenges improp er into the jury’s incursion function.

A inquiry admissibility court’s into the of evidence of party third culpa- Hall, bility always the will turn on facts of the (People supra, case. p. 834.) agree may Cal.3d at We the trial court not the province invade of jury by credibility the making determinations about the evi- proffered However, dence. we the trial words to interpret judge’s when the imply circumstantial evidence that caused the to this third of suspect person involvement the burglary Weller and the evi- fingerprint uncontradicted considered, dence that developed totality later evidence did necessary not rise to the level to create a reasonable doubt Johnson’s about guilt. cites no case in which a presents defendant circumstantial evi-

dence of third party effectively that is as culpability rebutted here, prosecution’s exclusion evidence nor fingerprint has our research re- any However, authority. vealed similar even the strongest circumstantial case of evidence third not party culpability does raise a reasonable doubt about a defendant’s when found at of guilt the scene the crime could have been those the third This conclusion does not party. any determination; require credibility Johnson’s evidence is deemed be motion, credible for purposes of this as is the prosecutor’s uncontradicted evidence that the third was eliminated as a party burglary after suspect fingerprint comparison. Simply put, Johnson’s evidence a possibility raised that the prosecution’s evidence made an his impossibility. As proffered evidence could not raise a logically reasonable doubt his guilt, about trial court it. properly excluded

IV., V.* is affirmed. judgment The J.,

Anderson, P. concurred. however, I join cannot POCHE, J. affirming judgment; concur I I my Unlike colleagues selection issue. analysis jury majority’s the question to consider and resolve obligation we have an believe challenge power had the whether the trial here Mr. on panel. after Moulden seated assumes, trial court that the question, majority deciding without at the time the challenges

still had discretion to permit reopening *12 to its remaining peremptories. court the defense exercise requests denied ante, really what are decid- 1562.) The is we (Maj. opn., p. question pivotal; had attached. double ing jury completed jeopardy is whether the and defendant, the is not raised this being While double claim jeopardy time a trial must rule every judge of a double claim looms specter jeopardy on such a request.

If as the the trial court we an court duck whether appellate question they trial may judges: voir dire we create a for properly reopen quandary safe, deny either and must decide to it the defendant’s assume play request Or, may they grant at retrial. if the that worse an court reverse for appellate to tells them voir dire and an court request reopen appellate subsequently convicted, defendant, the otherwise ruling wrong, properly then the be on retrial. subjected must released rather than be to double jeopardy case least for cost of lost they prosecu- either the lose. At the the People pay the release of a judicial they subjected torial and time. the most are to At community. into guilty defendant the court

Having insisted that to reach the of whether ought question we I that it did. challenges jury, still had the to to the answer power reopen sworn.” (Crist attaches when the has been Jeopardy jury “empaneled 24, The rationale 2156].) v. Bretz 437 U.S. 28 L.Ed.2d 98 S.Ct. (1978) [57 of an accused protect rule “lies the need to the interest (Id. Presumably 35 at retaining jury.” 31].) chosen at L.Ed.2d p. p. [57 * ante, footnote, page See 1553. provides

similar rationale underlies Penal Code section 1088 which “each full exercising any shall be entitled to have the before party perempto- panel ry showing Because California allows the court on a of cause to challenge.” challenge juror jury to a is sworn but before is permit completed after he Code, is (Pen. 1068), the state concept completion equivalent § (In “‘empaneled federal formula. re Mendes (1979) sworn’” 831, 318].) Cal.3d 854-855 592 P.2d Cal.Rptr. [153 “The rule is that where a court has that a trial be general indicated will conducted alternate jurors impanelment with is not deemed until alternates are selected and re complete (In sworn. [Citation.]” Mendes, 23 Cal.3d at Whether be supra, 853.) jurors there will alternate p. many and if so discretionary how are decisions of the trial court. (Pen. Code, 573, 580, 1089; v. (1984) Armendariz 37 Cal.3d fn. 6 § [209 Furthermore, 693 P.2d Cal.Rptr. 243].) the court retains “the right change its mind” on the re question alternates and their number. (In Mendes, 854; 23 Cal.3d at supra, People Hess p. (1951) Cal.App.2d 407, 424-426 P.2d 568].) [237

In this the trial discretionary case judge making two decisions: would trial proceed to without an juror alternate Mr. Moul- selecting replace den and would he reopen challenge newly as panel constituted with Mr. Moulden sitting juror number six. The two were intimately decisions linked. Once decided not to select a the jury new alternate decision, however, completed jeopardy Until it made attached. jury was completed and the court retained power *13 panel challenge.

Thus, the before us should be was it error question reversible for the trial court to deny defendant’s the request reopen jury to challenge? Armendariz, supra, 37 our Cal.3d Court found that a trial Supreme court Which refused selection reopen jury before the had been com- jury pleted under the mistaken belief it authority that lacked the to do so under section 1068 had not made an “informed exercise of discretion.” (At p. 581.) Armendariz concluded the ruling would have been an abuse of discretion under of that circumstances case. circumstances (Ibid.) then set out in Armendariz included fact that it death case penalty was a where defendant been from precluded over two-thirds of his using at challenges. (Id. pp. 582-583.)

Here, too, the trial court in the acted belief that there “no authority” for reopening jury selection. Under Armendariz then this court’s decision to deny the defense motion was not an informed exercise of discretion. How- ever, I say cannot that the also an ruling abuse of discretion such as to se rule creating per reversal. I not read Armendariz do require is error. always selection reversible jury of a motion to reopen denial reasonably have trial court could say this is not to All of reason to legitimate reopen the other Defendant way. presented ruled of the trial to permit It within the power challenge. deny or to motion was grant The decision of court to reopening. it the discretionary say I cannot that under circumstances before one. deny its discretion to the motion to trial court abused I result majority. concur reached challenge. Accordingly,