Can a defendant bring a claim that the court's failure to impanel a new jury violated his rights under the Eighth and Fourteenth Amendments?

16 Defendant claims that the court's failure to impanel a new jury violated his rights under the Eighth and Fourteenth Amendments of the United States Constitution. He failed to make such an argument below and may not raise it for the first time here. In any event, we see no constitutional violation. (People v. Rowland, supra, 4 Cal.4th at p. 269, fn. 7, 14 Cal.Rptr.2d 377, 841 P.2d 897.)

17 Nor can defendant establish any ineffective assistance in failing to challenge the juror was prejudicial, especially since counsel did not exhaust his peremptory challenges. Failure to challenge a juror for cause is not prejudicial if the juror could have been removed by peremptory challenge. (See People v. Kirkpatrick, supra, 7 Cal.4th at p. 1005, 30 Cal.Rptr.2d 818, 874 P.2d 248; see also People v. Bittaker, supra, 48 Cal.3d at pp. 1087-1088, 259 Cal.Rptr. 630, 774 P.2d 659.) Presumably, when no such peremptory challenge has been exercised, the defendant would have to show that counsel's failure in that regard was also incompetent and prejudicial. As we have already observed, counsel's decision to accept the jury without exercising further peremptory challenges is a tactical decision it is unlikely the reviewing court will second-guess on appeal.