Words and actions of counsel which lead the trial court to believe that defense counsel impliedly consents to a mistrial will defeat a subsequent motion for dismissal based on double jeopardy. After a jury with four alternates was sworn, there were a series of personal problems which resulted in three juror dismissals. A fourth juror then contracted conjunctivitis which his doctor advised was highly contagious and that he should stay home for two days. The court proposed that the remainder of the jury be queried about a two day continuance, but if any of the remaining jurors had a problem, then “we are done.” Neither party disagreed and defense counsels only comment was a concern for his expert witness and the prosecutor affirmed a prior agreement that the witness could be called out of order. When the jury was asked if they could continue the trial for two days, a juror indicated an inability to serve based on a medical issue. After a sidebar conference, the court expressed defeat. No counsel objected, mistrial was declared, and a new trial date was set. A month later, the defense moved for dismissal based on principles of double jeopardy. The motion was denied and the issue was pursued by a writ of prohibition. Curry v. Superior Court (1970) 2 Cal.3d 707, 713 held that “mere silence” in the face of the proposed discharge of the jury does not constitute consent to the jury’s dismissal, but intervening legal developments and policies underlying the principles of double jeopardy have tempered the holding. Here defense counsel did not remain silent when the court indicated how it intended to proceed. The statements of counsel lead the court to reasonably believe there was consent to the procedure which ultimately resulted in a mistrial.