Can a federal court declare a mistrial and order a defendant retried?

A federal court may declare a mistrial and order a defendant retried if the jury is deadlocked to such a degree that the court believes there is a "`manifest necessity'" to declare a mistrial. (Arizona v. Washington, supra, 434 U.S. at p. 509, 98 S.Ct. 824.) California courts employ a similar rule: a trial court can declare a mistrial if the jury cannot come to a unanimous decision and the court decides there is a "legal necessity" to discharge the jury and start anew. (People v. Fields, supra, 13 Cal.4th at p. 300, 52 Cal.Rptr.2d 282, 914 P.2d 832.) Under either standard, a mistrial may be declared if the defendant consents. (Id. at pp. 299-300, 52 Cal.Rptr.2d 282, 914 P.2d 832.)

At the threshold, we must address whether defendant preserved this claim for appeal. The general rule is that "former jeopardy [must] be affirmatively pleaded, ... or any claim on that ground is not preserved for review. (People v. Belcher (1974) 11 Cal.3d 91, 96 [113 Cal.Rptr. 1, 520 P.2d 385]....)" (People v. Memro, supra, 11 Cal.4th at p. 821, 47 Cal.Rptr.2d 219, 905 P.2d 1305; People v. Scott (1997) 15 Cal.4th 1188, 1201, 65 Cal.Rptr.2d 240, 939 P.2d 354.) Respondent argues defendant failed to so affirmatively plead, once in jeopardy before his penalty retrial, and thus failed to preserve the claim for appeal. We agree and accordingly find the double jeopardy issue is not cognizable on appeal.