When Panel Sworn. (a) The court may direct the order in which challenges are to be taken both as to parties and as to type of challenge. (b) Each party shall be entitled to have the panel full before exercising any peremptory challenge. The number of peremptory challenges remaining with a party shall not be diminished by any passing of a peremptory challenge. (c) After all parties on both sides pass consecutively, the jury shall be sworn.
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NOTE: Section 85.40 is new. Subsection (a) makes clear that the court may order either the defendant or the prosecuting attorney to take his challenges first and may further order that challenges for cause (and for particular types of cause) be taken before peremptory challenges. Compare Cal. Pen. Code §§ 1086-1088. See generally B. Witkin, California Criminal Procedure Trial §§ 416-417, 422 (1963, Supp. 1973). Subsection (b) makes clear that a party is entitled to have a full panel of prospective jurors seated before being required to exercise a peremptory challenge and further that passing a peremptory challenge does not affect the number of available challenges. See Cal. Pen. Code § 1088 (same).