I concur fully in the majority’s conclusion: The midtrial dismissal of a single juror and replacement with a sworn alternate juror, though improper on the facts of this case, was not the functional equivalent of granting an unnecessary mistrial over defendant’s objection and did not terminate jeopardy; thus, defendant’s retrial is not precluded by the double jeopardy clauses of either the state or federal Constitution. I write separately to distance myself from a portion of the majority’s analysis and to emphasize my understanding of the narrowness of today’s decision.
The majority begins its analysis by citing United States v. DiFrancesco (1980) 449 U.S. 117 [101 S.Ct. 426, 66 L.Ed.2d 328] and the established rule that double jeopardy principles generally do not prohibit retrial after an appellate court reverses a criminal defendant’s conviction. (Maj. opn., ante, at p. 6.) The majority repeats this point later in the analysis. (Id. at p. 7.) I find the majority’s reliance on DiFrancesco misleading, for defendant does not claim his retrial would violate his constitutional rights simply because his first conviction was reversed on appeal. Instead, he claims that jeopardy, which indisputably had attached at his first trial when the jurors and alternates were sworn (In re Mendes (1979) 23 Cal.3d 847, 850 [153 Cal.Rptr. 831, 592 P.2d 318]), was terminated when the trial court erroneously dismissed Juror No. 8, and that a retrial would place him in jeopardy for a second time in violation of the double jeopardy clauses of the state and federal Constitutions. Because the relevant triggering event in this case is the dismissal of the juror, not the reversal of defendant’s conviction on appeal, the majority’s focus on the latter obscures the true issue. Moreover, because the rule generally (though not always) permitting retrial of an accused following appellate reversal of the judgment in a first trial is so very well established (DiFrancesco, supra, 449 U.S. at p. 131 [101 S.Ct. at p. 434]; *12Green v. United States (1957) 355 U.S. 184, 189 [78 S.Ct. 221, 224-225, 2 L.Ed.2d 199]; People v. Henderson (1963) 60 Cal.2d 482, 495 [35 Cal.Rptr. 77, 386 P.2d 677]; People v. Tong (1909) 155 Cal. 579, 584 [102 P. 263]; id. at p. 585 (conc. opn. of Sloss, J.); 1 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Defenses, § 178, pp. 534-535), the majority’s insistence on this point suggests a degree of precedential support for its conclusion that does not exist.
Nevertheless, I agree that on the particular facts of this case, a retrial will not violate defendant’s constitutional rights. Retrial would of course be prohibited if defendant’s entire chosen jury of 12 persons had been improperly discharged against his wishes. Does the same rule apply if only a single juror is improperly discharged? We fortunately need not make a global pronouncement on that difficult question, for there are aspects of this case that simplify the issue for us and distinguish it from previous cases that posed similar double jeopardy problems. First, as the majority observes, “defendant’s chosen jury was not discharged but instead, with the substitution of a preselected alternate juror, remained intact until a verdict was rendered.” (Maj. opn., ante, at p. 9.) Unlike in People v. Young (1929) 100 Cal.App. 18 [279 P. 824], where an empaneled juror was discharged and replaced with someone called from the venire (id. at p. 19), Juror No. 8 in the instant case was replaced with a sworn alternate. This alternate, chosen during the same voir dire process by which the other jurors were selected, and sworn in at the same time, was already part of the jury. Hence, replacement with this alternate did not compromise the integrity of the jury. I thus agree with the court in People v. Burns (1948) 84 Cal.App.2d 18, 31 [189 P.2d 868], that replacement of a discharged juror with a previously sworn alternate rather than a new juror is a significant factor in determining whether jeopardy has been terminated.
Second, unlike in People v. Burgess (1988) 206 Cal.App.3d 762 [253 Cal.Rptr. 828], voir dire was not reopened, and the parties were not allowed to exercise additional peremptory challenges. Even in circumstances where but a single juror is replaced, reopening voir dire and permitting a party to exercise additional peremptory challenges, in addition to violating Code of Civil Procedure section 226, subdivision (a), may also compromise a defendant’s constitutionally protected right to a chosen jury. (See Crist v. Bretz (1978) 437 U.S. 28, 35-36 [98 S.Ct. 2156, 2160-2161, 57 L.Ed.2d 24] [discussing the importance to a defendant of retaining his or her chosen *13jury].) That the trial court below did not reopen voir dire is an important facet of the problem before us.1
Finally, contrary to the view of the Court of Appeal below, this was not a case where the trial court was “tinker[ing] with the makeup of the jury” so as to prejudice one side, or to ensure a particular outcome. To be sure, the trial court opined that it did not believe Juror No. 8 could “give a fair trial to the People.” But the overall record indicates the court was concerned about the juror’s “psychological health,” noting her demeanor was “very tortured.” I thus agree with the appellate court and the majority that “ ‘[t]he record does not reflect that Juror No. 8 was biased in favor of the defense or prejudiced against the People.’ ” (Maj. opn., ante, at pp. 9-10.)
All of these factors together persuade me the majority is correct in concluding that retrial of this defendant will not violate his rights under the state and federal double jeopardy clauses. Were any of the above factors missing—for example, had the trial court dismissed more than a single juror, had it not replaced the discharged juror with a sworn alternate, had the court reopened voir dire and permitted additional peremptory challenges, or had the court’s purpose in discharging the juror been to influence the verdict— this case might require a different outcome. Although affording a criminal defendant what is, in essence, immunity from future prosecution of his crimes as a result of a trial court’s legal error exacts a steep price from society, both our state and federal Constitutions may require that price be paid in some cases. The answer awaits another day. The constellation of factors present in this case convinces me this is not such a case. With that understanding of the majority’s opinion, I concur.
Although the trial court invited the prosecutor to make a “challenge for cause,” I agree with the Court of Appeal below that we should “presume the intention was to invoke Penal Code section 1089 . . .which. . . permits discharge of a juror for good cause after he or she has been empaneled and sworn.”