(Los Angeles County Super. Ct. No. BA366071) APPEAL from a judgment of the Superior Court of Los Angeles County. Norman J. Shapiro, Judge. Reversed.
The opinion of the court was delivered by: Mallano, P. J.
CERTIFIED FOR PUBLICATION
Defendant Francis Mata appeals from the judgment entered following a jury trial in which he was convicted of possession of cocaine base and two misdemeanor counts of resisting an officer. Defendant contends the trial court erred by reseating a prospective juror improperly challenged by the prosecution instead of discharging the venire after it granted his motion under People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler). We agree because defendant neither waived nor consented to the juror's reseating. Accordingly, we reverse.
On the afternoon of December 21, 2009, Los Angeles Police Department narcotics officers conducted surveillance on San Julian Street between 6th and 7th Streets in downtown Los Angeles. Detective James Miller saw defendant walking on the sidewalk with Earl Early, who held cash in his hand. Early and defendant stopped next to Anthony Coleman. Miller testified he saw Coleman spit a plastic-wrapped item into his hand, remove a small white object from it, hand the object to Early, and take Early's cash. Coleman walked away, and Early and defendant crouched near a fence. At Miller's direction, other officers detained the three men. Coleman, who was tried with defendant, had $5 and six small rocks that together weighed 0.52 grams and contained cocaine base. Defendant had one rock that weighed 0.02 grams and contained cocaine base. Early threw down a glass smoking pipe and one rock that weighed 0.02 grams and contained cocaine base.
At the police station, defendant expressed anger and refused to walk when two officers attempted to escort him to another area. He leaped up and backward, and his body struck one of the officers in the face. He continued to move after the officers tackled him and told them to release his handcuffs so he could fight them with his good hand.
Coleman testified that he purchased the rocks of cocaine base on the afternoon of his arrest for personal use. He was a long-time, heavy user of cocaine base and intended to smoke all of the rocks he had in rapid succession. He did not provide Early or defendant with any cocaine base or take money from Early, but merely lent Early his smoking pipe. Coleman saw police officers knee defendant in the back and drag him at least 20 feet to the middle of the street. An officer threatened to do the same to Coleman if he did not turn and face the other way.
The jury convicted defendant of possession of cocaine base and two misdemeanor counts of resisting an officer (Pen. Code, § 148, subd. (a)(1)). The court sentenced him to two years in prison.
On the fourth day of jury selection, the prosecutor exercised his 11th peremptory challenge against Prospective Juror No. 2473. Counsel for defendant stated, "I ask for a side bar after she leaves." The court directed the prospective juror to remain in her seat, then conducted a conference with counsel outside the presence of the jury. Counsel for defendant explained that he was making a Wheeler motion, stating that Prospective Juror No. 2473 was "the second African-American within the last few challenges" by the prosecutor. The court noted that the prospective juror's responses were "very neutral," and asked the prosecutor for his "thoughts." The prosecutor said he had been watching the prospective juror and "didn't find her to be as engaging [sic]. I found her to be extremely quiet. . . . I just felt that at times she was just kind of quiet and tuned out. And I wanted somebody who is a little bit more, to me, appear [sic] to be a little bit engaging." The court found there was no "justification" for challenging the prospective juror and stated, "I am going to disallow your challenge at this time. And I'd order that the juror remain seated." The court told the prosecutor he could exercise a peremptory challenge against a different prospective juror, "[a]nd we will continue the process." Counsel for defendant said nothing about the court's remedy, and voir dire continued, with Prospective Juror No. 2473 seated.
A little later, the prosecutor exercised a peremptory challenge against another African-American, Prospective Juror No. 207, who had stated she disliked police because she had been a victim of racial profiling and police mistreatment. Counsel for defendant stated, "Your honor, I'd ask that she remain while we have a side bar." The court asked Prospective Juror No. 207 to remain seated and conducted a conference with counsel outside the presence of the jury. Counsel for defendant made a Wheeler motion that the court denied.
Defendant contends that the trial court erred by reseating Prospective Juror No. 2473 instead of dismissing the venire because defendant did not waive or consent to the juror's reseating.
In Wheeler, supra, 22 Cal.3d at page 282, the California Supreme Court held that if a trial court concludes that one party has impermissibly exercised peremptory challenges on the basis of group bias, the court "must dismiss the jurors thus far selected" and "quash any remaining venire."
In People v. Willis (2002) 27 Cal.4th 811 (Willis), the Supreme Court noted "the need for the availability of some discretionary remedy short of dismissal of the remaining jury venire" and that the remedy prescribed by Wheeler is not compelled by the federal Constitution. (Willis, at p. 818.) The court concluded, "We think the benefits of discretionary alternatives to mistrial and dismissal of the remaining jury venire outweigh any possible drawbacks. As the present case demonstrates, situations can arise in which the remedy of mistrial and dismissal of the venire accomplish nothing more than to reward improper voir dire challenges and postpone trial. Under such circumstances, and with the assent of the complaining party, the trial court should have the discretion to issue appropriate orders short of outright dismissal of the remaining jury, including assessment of sanctions against counsel whose challenges exhibit group bias and reseating any improperly discharged jurors if they are available to serve. In the event improperly challenged jurors have been discharged, some cases have suggested that the court might allow the innocent party additional peremptory challenges." (Id. at p. 821.) "We stress that such waiver or consent is a prerequisite to the use of such alternative remedies or sanctions, for Wheeler made clear that 'the complaining party is entitled to a random draw from an entire venire' and that dismissal of the remaining venire is the appropriate remedy for a violation of that right. [Citation.] Thus, trial courts lack ...