An erroneous ruling that forces a defendant to use a peremptory challenge, and thus leaves him unable to exclude a juror who actually sits on his case, provides grounds for reversal only if the defendant can actually show that his right to an impartial jury was affected. Appellant argued that the trial court erred by denying his challenges for cause to four prospective jurors. Appellant subsequently used his peremptory challenges to remove these four from the jury. After exhausting his peremptory challenges, appellant expressed dissatisfaction with the jury, saying he would have excused two seated jurors with peremptories if he had any left, and requested more. The trial court denied the request. The appellate court found that because appellant failed to establish prejudice, it need not examine the merits of appellant’s challenges for cause. To prevail on such a claim, appellant must demonstrate that the court’s rulings affected his right to a fair and impartial jury. None of the four prospective jurors could possibly have affected the jury’s fairness because none sat on the jury. The harm to defendant, if any, was in being required to use four peremptory challenges to cure what he perceived as the trial court’s error. Yet peremptory challenges are given to defendants subject to the requirement that they be used for this purpose. While defendant’s compliance with this requirement undoubtedly contributed to the exhaustion of his peremptory challenges, from this alone it does not follow that reversible error occurred. An erroneous ruling that forces a defendant to use a peremptory challenge, and thus leaves him unable to exclude a juror who actually sits on his case, provides grounds for reversal only if the defendant can actually show that his right to an impartial jury was affected. In other words, the loss of a peremptory challenge in this manner provides grounds for reversal only if the defendant exhausts all peremptory challenges and an incompetent juror is forced upon him. (People v. Yeoman (2003) 31 Cal.4th 93.)
Under Evidence Code section 1202, the hearsay declarant’s unavailability is not a condition for introduction of the declarant’s inconsistent statements offered for impeachment. Following his arrest for murder and conspiracy to commit murder, appellant was placed in a cell with his accomplices, as well as an individual not involved in the murder. The cell was equipped with recording devices and numerous statements by appellant were recorded and introduced by the prosecution as party admissions. The trial court denied appellant’s motion to introduce other statements to attack the credibility of the recorded statements. The appellate court agreed that under the plain language of section 1202, appellant was permitted to introduce other impeaching statements, but the court emphasized that the trial court retained discretion under section 352 to exclude them. Here, although the trial court may have erred in excluding statements, the error was harmless as evidence of appellant’s guilt was overwhelming.