California, United States of America
The following excerpt is from People v. Mitchell, B281476 (Cal. App. 2018):
After defendant's oral requests for a mistrial were denied, voir dire continued and defendant did not move to excuse any juror for cause, including any juror he now contends expressed bias against him in answering the court's questions about the information on the calendar. Defendant also did not exhaust his remaining peremptory challenges. After exercising only three of his remaining peremptory challenges, defendant accepted the panel as constituted and did not restate any objection based on the alleged taint from the jurors' possible exposure to outside information from the posted calendar. " '[W]e adhere to the well-established rule that to preserve a claim a biased juror was improperly permitted to serve, the defense must exhaust its peremptory challenges and object to the jury as sworn.' " (People v. Souza (2012) 54 Cal.4th 90, 130.) Defendant has not preserved for appellate review any contention that biased jurors were allowed to serve on the jury.
In any event, the record does not establish any abuse of discretion by the trial court in denying defendant's oral motions for mistrial. " ' " 'A mistrial should be granted if the court is apprised of prejudice that it judges incurable by admonition or instruction. [Citation.] Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions. . . .' [Citation.] A motion for a mistrial should be granted when ' " 'a [defendant's] chances of receiving a fair trial have been irreparably damaged.' " ' " [Citation.]' " (People v. Harris (2013) 57 Cal.4th 804, 848, italics added.)
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