Superior Los Ct. Nos. BA366071, Ct.App. 2/1 B226256 Angeles Norman J. Shapiro
John P. Dwyer, under appointment by the Supreme Court, and Elizabeth Garfinkle, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Lawrence M. Daniels, Steven D. Matthews, Susan Sullivan Pithey, Mary Sanchez, David Zarmi and Roberta L. Davis, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion): John P. Dwyer Law Offices of John P. Dwyer, Roberta L. Davis Deputy Attorney General
In People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler), this court held that, if a jury “has been partially or totally stripped of members of a cognizable group by the improper use of peremptory challenges, ” the trial court “must dismiss the jurors thus far selected” and “quash any remaining venire.” (Id. at 282.) However, in People v. Willis (2001) 27 Cal.4th 811 (Willis), we decided that trial courts are not limited to dismissing the entire venire as the only remedy in the case of a Wheeler violation: “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... reseating any improperly discharged jurors if they are available to serve.” (Willis, supra, 27 Cal.4that p. 821, italics added.)
Here we consider whether implied consent can constitute the “assent of the complaining party” (Willis, supra, 27 Cal.4that p. 821), in the context of a trial court’s order to reseat an improperly discharged prospective juror after the court had granted the complaining party’s Wheeler motion. We conclude that assent can be found on the basis of implied consent and that, in this case, defendant did impliedly consent to the alternative remedy of reseating the improperly discharged juror. Accordingly, we reverse the judgment of the Court of Appeal, which held otherwise.
I. FACTUAL AND PROCEDURAL BACKGROUND
On December 21, 2009, Los Angeles police officers saw defendant and Earl Early stop next to Anthony Coleman. Coleman spit a plastic-wrapped item into his own hand, removed a small white object from the plastic, gave that object to Early, and took cash from Early. When defendant was detained, he was holding a rock of cocaine base. At the jail, defendant attacked the two officers as they were trying to escort him to a holding tank.
A jury convicted defendant of possession of cocaine (Health & Saf. Code, § 11350, subd. (a)), and two misdemeanor counts of resisting a peace officer (Pen. Code, § 148, subd. (a)(1)). The trial court sentenced defendant to two years in state prison. Defendant appealed, contending the trial court committed reversible error when, after finding that the prosecution improperly used a peremptory challenge to discharge a prospective African-American juror under Wheeler, supra, 22 Cal.3d 258, it reseated the juror instead of discharging the entire jury venire. The Court of Appeal reversed defendant’s conviction, finding that defendant did not “expressly or implicitly consent” to the court’s remedy of reseating of the improperly discharged juror. We granted the People’s petition for review.
In 1978, our opinion in Wheeler acknowledged that “the peremptory challenge is not a constitutional necessity but a statutory privilege.” (Wheeler, supra, 22 Cal.3d at p. 281, fn. 28.) We concluded that “when a party presumes that certain jurors are biased merely because they are members of an identifiable group distinguished on racial, religious, ethnic, or similar grounds... and peremptorily strikes all such persons for that reason alone, he not only upsets the demographic balance of the venire but frustrates the primary purpose of the representative cross-section requirement” (Wheeler, supra, 22 Cal.3d at p. 276), which we noted is a fundamental component of the “right to an impartial jury” (id. at p. 270). We held that, in our state, “the right to trial by a jury drawn from a representative cross-section of the community is guaranteed equally and independently by the Sixth Amendment of the federal Constitution and by article I, section 16, of the California Constitution.” (Wheeler, supra, 22 Cal.3d at p. 272.) We also held that, if a jury “has been partially or totally stripped of members of a cognizable group by the improper use of peremptory challenges, ” the trial court “must dismiss the jurors thus far selected” and “quash any remaining venire.” (Id. at 282.)
Eight years after our holding in Wheeler, the United States Supreme Court held that “the State’s privilege to strike individual jurors through peremptory challenges is subject to the commands of the Equal Protection Clause.” (Batson v. Kentucky (1986) 476 U.S. 79, 89.) In Batson, the court set forth the procedures that should be followed once a defendant alleges purposeful discrimination in the selection of the venire. (Batson, supra, 476 U.S. 94-99.) As did Wheeler, Batson noted that the federal Constitution does not guarantee a right to peremptory challenges, and the Batson court declined to formulate particular procedures to be followed after a successful objection to a peremptory challenge. (Batson, supra, 476 U.S. at p. 99.) The United States Supreme Court specifically noted that, “[i]n light of the variety of jury selection practices followed in our state and federal courts, we make no attempt to instruct these courts how best to implement our holding today. For the same reason, we express no view on whether it is more appropriate... for the trial court to discharge the venire and select a new jury from a panel not previously associated with the case [citation] or to disallow the discriminatory challenges and resume selection with the improperly challenged jurors reinstated on the venire....” (Batson, supra, 476 U.S. at p. 99, fn. 24.)
In Willis, supra, 27 Cal.4th 811, we reconsidered what procedures our trial courts should follow after a successful Wheeler objection to a party’s peremptory challenge. We noted “the need for the availability of some discretionary remedy short of dismissal of the remaining jury venire” and that the federal Constitution does not compel the remedy prescribed by Wheeler. (Willis, supra, 27 Cal.4th at p. 818.) We then concluded that “the benefits of discretionary alternatives to mistrial and dismissal of the remaining jury venire outweigh any possible drawbacks... [and that] 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 [venire], including assessment of sanctions against counsel whose challenges exhibit group bias and reseating any improperly discharged jurors if they are available to serve.” (Id. at p. 821.) In Willis, we noted that “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 discretion to impose alternative procedures in the absence of consent or waiver by the complaining party. On the other hand, if the complaining party does effectively waive its right to mistrial, preferring to take its chances with the remaining venire, ordinarily the court should honor that waiver rather than dismiss the venire and subject the parties to additional delay.” (Willis, supra, 27 Cal.4th at pp. 823–824.)
In Willis, defense counsel unsuccessfully moved to dismiss the venire as under-representative of African-Americans, then used seven of 11 peremptory challenges to remove White males from the jury. After the prosecutor made a Wheeler motion, the trial court found systematic exclusion of a protected class, and asked the prosecutor, “[W]hat do you want me to do?” Noting that excusing the panel would give the defendant what he sought, the prosecutor instead asked the court to admonish defense counsel and to sanction him if the misconduct continued. (Willis, supra, 27 Cal.4th at pp. 814–815.) Defendant moved for a mistrial, contending the court should quash the entire venire. In denying the motion, the court voiced its “suspicion” that the defense was committing Wheeler error in the hope that the court would dismiss the venire. The court did not excuse the venire or reseat any improperly excused jurors, and jury selection resumed. The prosecutor made a second Wheeler motion based on the defendant’s use of eight of his next nine peremptory challenges to strike White males, and the court ultimately found that the defendant had violated Wheeler again, and it imposed $1, 500 in monetary sanctions on defense counsel. Defendant’s renewed motion for mistrial was denied, and the court did not reseat any improperly challenged jurors or quash the venire. (Willis, supra, 27 Cal.4th at p. 816.)
In rejecting Willis’s claim on appeal that the trial court erred by not dismissing the venire, we held that if the complaining party succeeds in showing that opposing counsel has improperly exercised peremptory challenges to exclude members of a cognizable group, “the trial court, acting with the [injured party]’s assent, [has] discretion to consider and impose remedies or sanctions short of outright dismissal of the entire jury venire.” (Willis, supra, 27 Cal.4th at p. 814.)
In People v.Overby (2004) 124 Cal.App.4th 1237 (Overby), the first time the prosecutor exercised a peremptory challenge against an African-American juror, counsel for Overby asked the trial court to order the juror to remain in the courtroom, and then made her Wheeler motion. The court granted the motion and said, “ ‘I’m going to elect the remedy to reseat Number 9 rather than the remedy to kick the entire panel.’ ” (Overby, supra, 124 Cal.App.4th at p. 1243.) Asked if they wished to be heard “as to the court’s decision, ” both defense counsel said, “Submit, ” and the prosecutor objected. The challenged juror was reseated and voir dire resumed. The prosecutor later made an unsuccessful Wheeler motion and then sought reconsideration of the rulings on the defense and prosecution motions and requested that the court dismiss the venire. “At no time during the reconsideration arguments did Overby’s counsel state that she agreed that the venire should be dismissed, nor did she indicate any dissatisfaction with the remedy chosen by the court.” (Ibid.)
The Court of Appeal in Overby held the consent required by Willis could be given by counsel, rather than defendant himself. (Overby, supra, 124 Cal.App.4th at p. 1243.) It then concluded defense counsel implicitly had consented to the trial court’s remedy. Overby relied on the fact that defense counsel had asked the court to prevent the challenged juror from leaving, had responded “Submit” when offered the opportunity to comment on the court’s chosen remedy, and had failed to “alter her position or indicate dissatisfaction with the reseating remedy even after having time and opportunity to consider it further” when the prosecutor sought reconsideration of the Wheeler rulings. (Overby, supra, 124 Cal.App.4th at pp. 1244-1245.) Overby noted that our court “did not specify in Willis what constitutes consent to an alternate remedy or an effective waiver of the right to a mistrial” within the “assent” standard articulated in that case. (Overby, supra, 124 Cal.App.4th at p. 1242.)
We now have occasion to address that issue. The People interpret Willis as providing alternative remedies at the discretion of the trial court to further the court’s interest in efficiently processing cases for trial. They argue that, except when fundamental constitutional rights are implicated, the complaining party’s consent should be implied when that party fails to object and continues to participate in a potentially objectionable proceeding. In response, defendant contends quashing the venire is the “default remedy” following a successful Wheeler motion, unless the complaining party “waives that right and consents to an alternative remedy.” He interprets our use of the words “waiver” and “consent” in Willis as requiring that “the complaining party [have] knowledge of the right being relinquished or abandoned, and that the complaining party intentionally relinquish or abandon that right.” Defendant concedes that defense counsel can waive the right to quash the venire and consent to an alternative remedy, but he contends “counsel’s mere silence cannot constitute a waiver and that, on this record, there is an insufficient basis to conclude that defense counsel impliedly waived [defendant’s] right to quash the venire.” For the reasons stated below, we find the People’s position more persuasive.
Willis approved the trial court’s consideration of discretionary alternatives to mistrial and dismissal of the remaining jury venire. Its recognition that the trial court may proceed with such alternative orders only with the assent of the complaining party safeguards the injured party’s interest in an appropriate ...