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Name: People v. Whitaker
Case #: C064531
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 02/13/2013

Defendants did not suffer double jeopardy or due process violations where charges were refiled after initial dismissal prior to jury being sworn. Whitaker and two codefendants were charged with attempted murder and other offenses. After the first jury was selected, the trial court delayed swearing in the jury, pending resolution of witness problems. When the witness issues were resolved adversely to the prosecution, it moved to dismiss the case for lack of evidence. The trial court granted the dismissal motion. The prosecution refiled the charges, and the defendants moved to dismiss, contending that allowing the prosecution to refile the charges violated double jeopardy protections and due process. The trial court denied the motion, finding that jeopardy had never attached. Following conviction, defendants appealed. The appellate court rejected the argument and affirmed. Assuming that the trial court erred in finding good cause to delay swearing in the first jury, the error did not require reversal. Jeopardy attaches at the time when the jury is sworn, not at the point it should have been sworn. Therefore, there was no double jeopardy violation. The appellate court also rejected the due process claim, since the right to a “particular” jury applies when and only when a jury has been sworn and jeopardy has actually attached. The impropriety of choosing a jury without knowing whether witnesses would actually be available does not show an intentional manipulation of the proceedings. There was no showing of governmental misconduct or that the prosecution provoked the mistrial. Further, any error was not structural, and there was no showing of prejudice flowing from the dismissal and refiling of the charges.