*1 S201413. July [No. 2013.] PEOPLE,
THE Plaintiff and Respondent, MATA,
FRANCIS Defendant and Appellant.
Cоunsel Court, and Elizabeth under Supreme John P. Dwyer, appointment Garfinkle, for Defendant and Court of Appeal, under appointment Appellant. Gillette, General, Harris, Chief Assistant Dane R. Attorney
Kamala D. General, General, Winters, Lawrence M. Attorney Lance E. Assistant Attorney *4 Sanchez, David Daniels, Matthews, Mary Sullivan Pithey, Steven D. Susan General, and Davis, for Plaintiff Attorneys Zarmi and Roberta L. Deputy Respondent.
Opinion
890,
(1978)
CHIN, J.
v. Wheeler
People
In
that,
or
“has been
(Wheeler),
court held
if a jury
partially
748]
use of
members of a cognizable group
totally stripped
thus far
dismiss the jurors
the trial court “must
challenges,”
peremptory
(Id.
However, in
venire.”
at
remaining
p.
selected” and
any
“quash
301,
I. FACTUAL AND PROCEDURAL BACKGROUND 21, 2009, On December Lоs Angeles officers saw defendant police Earl Early next to stop Coleman. Coleman Anthony spit plastic-wrapped hand, item into his own removed a small white from the object gave plastic, object Early, detained, took cash from When defendant Early. was he was a rock of holding cocaine base. At the defendant attacked the two jail, officers as they were trying escort him to a holding tank.
A Code, convicted defendant (Health of cocaine & possession Saf. (a)), subd. § two misdemeanor counts of resisting officer peace Code, (Pen. (a)(1)). subd. The trial § court sentenced defendant two in state years Defendant prison. the trial court appealed, contending commit- when, ted reversible error after that the finding prosecution used a improperly peremptory challenge to African-American discharge prospective juror Wheеler, under 22 Cal.3d it reseated the instead of the entire discharging venire. The Court of reversed defendant’s Appeal conviction, finding defendant did not “expressly implicitly consent[]” to the court’s reseating We improperly discharged juror. granted the for review. People’s petition
II. DISCUSSION in our opinion that “the acknowledged is not a challenge constitutional but a necessity statutory privilege.” Cal.3d at fn. We concluded that “when a party *5 that certain presumes jurors are biased because merely they are members of racial, identifiable ethnic, on group distinguished religious, or similar grounds . . . and alone, strikes all peremptorily such for that persons reason he not only balance upsets of the venire demographic but frustrates the (Wheeler, of the primary purpose cross-section representative requirement” supra, 22 276), Cal.3d at which we p. noted is a fundamental component (id. to an “right 270). that, state, impartial jury” We held p. in our “the to trial a drawn by jury from a cross-section of the representative is community guaranteed equally independently the Sixth Amendment by I, the federal Constitution and article by section of the California supra, that, Constitution.” 272.) Cal.3d at We also held if a p. “has been or partially totally members of a stripped cognizable group use of the trial court peremptory challenges,” “must dismiss (Id. far jurors thus selected” and 282.) venire.” “quash any remaining p. Wheeler, after our Eight years holding United States Supreme Court held that “the State’s to strike privilege individual jurors thorough ... to the peremptory challenges subject commands of the Protection Equal L.Ed.2d 106 S.Ct. U.S. (Batson Kentucky Clause.” be followed Batson, should 1712].) In the court set forth procedures the selection of discrimination in a defendant alleges once purposeful Wheeler, noted that Batson 94-99.) U.S. As did (Batson, venire. supra, challenges, does not guarantee right peremptory the federal Constitution to be procedures and the Batson court declined to formulate particular (Batson, challenge. to a followed after successful objection noted 99.) Court specifically 476 U.S. at The United States supra, Supreme followed in our state selection light variety practices “[i]n courts, best to these courts how and federal we make no to instruct attempt reason, no we view express our For same holding today. implement the venire ... for the trial court to discharge whether it is more appropriate the case not associated with and select a new panel previously and resume challenges or to disallow the discriminatory [citation] (Batson, on the venire . . . .” with the reinstated challenged jurors improperly 476 U.S. at fn. supra, Willis, our 27 Cal.4th we reconsidered what procedures
trial courts should follow after a successful Wheeler objection party’s of some availability We noted “the need for peremptory challenge. and that short of dismissal of the venire” discretionary remedy remaining jury the federal not Wheeler. Constitution does compel prescribed (Willis, 27 Cal.4th at We then concluded that “the benefits of alternatives to mistrial and dismissal of the discretionary remaining jury can arise in venire drawbacks . . . situations outweigh any possible [and that] which the of mistrial and dismissal of the venire accomplish nothing more than to voir dire trial. Under challenges reward improper postpone circumstances, and with the the trial such assent complaining party, orders short of outright court should have the discretion to issue appropriate [venire], of sanctions dismissal of the assessment remaining jury including bias and reseating any counsel whose exhibit against challenges group 821.) In (Id. if available to serve.” at p. are improperly discharged jurors they Willis, we noted that “waiver or consent is a to the use of such prerequisite sanctions, made clear that ‘the complain alternative remedies an entire and that is entitled to a random draw from venire’ ing party for a violation of dismissal of the venire is the remaining appropriate *6 Thus, that trial courts lack discretion to alternative right. impose [Citation.] On by party. in the absence of consent or waiver complaining procedures hand, does waivе its effectively the other if the complaining party venire, mistrial, the remaining ordinarily to take its chances with preferring rather than dismiss the venire and subject the court should honor waiver (Willis, 823-824.) 27 Cal.4th at to additional delay.” supra, pp. parties Willis, moved to dismiss the venire as unsuccessfully In defense counsel African-Americans, then used seven of 11 peremptory underrepresentative 184 to remove White males from the After the
challenges jury. made a prosecutor Wheeler motion, trial court found exclusion of a systematic protected (Willis, class, and asked do want me to do?” prosecutor, you “[W]hat supra, 815.) 27 Cal.4th at would p. Noting excusing give panel defendant what he sought, instead asked court to prosecutor admonish (Willis, defense counsel to sanction him if the misconduct continued. supra, mistrial, 814-815.) 27 Cal.4th at The defendant moved for a pp. motion, contending court should the entire venire. In quash denying committing Wheeler the court voiced its the defense was “suspicion” error in the that the court would hope dismiss venire. The court did not excuse the venire or reseat excused any jurors, improperly made a second Wheeler motion based on the resumed. The prosecutor nine defendant’s use of of his next eight to strike peremptory challenges males, White and the court found that the defendant had violated ultimately Wheeler $1,500 and it again, sanctions on imposed monetary defense denied, counsel. The defendant’s renewed motion for mistrial was and the court did not reseat any the venire. improperly challenged jurors quash (Willis, supra, 816.) 27 Cal.4th at
In rejecting Willis’s claim on that the trial court erred not appeal by venire, dismissing we held that if the succeeds in complaining party showing that counsel has opposing exercised chal improperly peremptory court, lenges to exclude members of a cognizable “the trial with group, acting assent, the [injured discretion to consider and party]’s remedies impose [has] (Willis, or sanctions short of dismissal of the entire outright venire.” supra, 27 Cal.4th at People Overby Cal.App.4th 233]
(Overby), time the first exercised a prosecutor challenge against African-American counsel for juror, asked the trial court to Overby courtroom, and then made her order the to remain in the juror “ said, motion. The court the motion and ‘I’m to elect granted going ” to reseat Number rather than the to kick the entire panel.’ (Overby, 1242-1243.) pp. Asked if wished to Cal.App.4th they “ ” decision,’ said, be heard ‘as to the court’s both defense “ ” (Id. ‘Submit,’ and the The objected. prosecutor challenged was reseated and voir dire resumed. The later made an prosecutor unsuccessful Wheeler motion and then sought reconsideration of the rulings on the defense and motions that the court dismiss prosecution requested the venire. “At no time the reconsideration did during arguments Overby’s dismissed, counsel state that she that the agreed venire should be nor did she (Ibid.) indicate dissatisfaction with the any chosen court.” Overby required by The Court of held could Appeal (Overby, counsel, be rather than the defendant given himself. *7 had then concluded defense counsel 1243.) implicitly at It
Cal.App.4th the fact that defense Overby relied on consented to the trial court’s remedy. had leaving, challenged juror counsel had asked the court to prevent “ ” comment on offered the ‘Submit’ when opportunity rеsponded or indicate and had failed to “alter her position court’s chosen remedy, even after time having opportu dissatisfaction with the reseating of the when the reconsideration sought to consider it further” nity prosecutor Overby 1244-1245.) at (Overby, supra, Wheeler rulings. pp. Cal.App.4th in Willis what constitutes consent to an noted that our court “did not specify to a mistrial” within alternate or an effective waiver of the right (Overby, articulated in that case. Cal.App.4th “assent” standard Willis We now have occasion to address that issue. The People interpret trial further the alternative remedies at the discretion of the court to providing that, trial. argue court’s interest cases for efficiently They processing when fundamental constitutional are rights implicated, complain- except consent should be when that fаils to ing party’s object implied party continues to in a objectionable response, participate potentially proceeding. defendant contends the venire is the “default remedy” following motion, successful unless the “waives that right complaining party and consents to an alternative He our use of words remedy.” interprets “consent” in Willis as requiring that “the “waiver” complaining party abandoned, or and that the knowledge of the right being relinquished [have] intentionally Defend- complaining right.” relinquish^] abandon[] ant concedes that counsel can the venire and right defense waive quash to an alternative but he contends “counsel’s mere silence remedy, that, record, there an insufficient cannot constitute waiver and on this is basis to conclude that defense waived right counsel impliedly [defendant’s] below, the venire.” For the reasons stated we find the quash People’s position more persuasive.
Willis alternatives trial court’s consideration of approved discretionary that the to mistrial and dismissal of the venire. Its remaining jury recognition the assent of court with such alternative orders with may proceed only interest in an complaining party safeguards injured party’s appropriate to the of a based on bias. discharge potential group Overby We with the court in that the assent agree required by Overby can be The given defense counsel. explained “[a]s rule, to control general authority procedural ‘has general (In re and, indeed, to bind the client in these matters.’ litigation aspects Horton 1335].)” 54 Cal.3d (Overby, “The a mistrial Cal.App.4th request not one of the constitutional or to elect to continue with particulаr jury *8 186 deemed to be
rights be so fundamental it personal may only (Ibid.) the defendant. waived personally by Accordingly, [Citations.]” here could in the trial waive assent proposed remedy thereby court’s Horton, (In re defendant’s to a mistrial and a new venire. 54 right nature, Cal.3d at to “fundamental of a rights 95 less courts personal [as may assume counsel’s waiver reflects the defendant’s consent in the conflict”].) absence of an express we find that
Additionally, to the trial court’s failing object proposed arises, when to do so alternative opportunity remedy complaining waives the to the default the entire party impliedly right of quashing venire and consents to the remedy. court’s alternative impliedly proposed Willis, “Assent,” the term we used in as well encompasses agreement positive v. Toro concession. Our People passive discussiоn of implied (Toro) 47 Cal.3d also 766 P.2d supports [254 577] Toro, In conclusion. we held that consent to instructions on an uncharged inferred lesser related offense could be failure to from defense counsel’s and that object, such failure to a contention based on lack object “bar[s] (Id. 977; see, e.g., Barsamyan Superior Division notice.” at v. Appellate Court 44 Cal.4th 969-970 Cal.Rptr.3d 271] silence]; inferred People be statutory speedy rights may [waiver (2003) 29 Cal.4th Gutierrez 1000] conduct, his or her a defendant [through waive the to be may right impliedly Toro, trial].) In of our we present holding observed support “[l]esser related offense instructions are a beneficial to defendants and in generally case the defendant given knows whether his substantial will be only rights (Toro, affected related prejudicially by submitting lesser offense to jury.” Cal.3d The same true here. cаn assess in Only complaining party case whether alternative such as the particular proposed remedy, reseating of an is more or less beneficial than the default improperly discharged juror, the entire venire. For the same reasons quashing expressed Toro, we conclude that the assent to the trial court’s complaining party’s alternative be found based on the failure to proposed remedy may object, unless trial court’s actions effectively meaningful preclude opportunity turn, we conclude to the alternative object. consenting impliedly waives to the default remedy, complaining party venire. In order to decide whether defense counsel assented to the court’s remedy here, we in detail review reseating improperly discharged juror that both of defend- granting followed court’s proceedings preceded ant’s Batson-Wheeler motion with Juror No. 2473. regard Prospective selection, his 11th chal- exercised
During jury prosecutor asked “for side Juror No. 2473. Defense counsel lenge, against Prospective trial court then asked Prospective after leaves.” The bar No. [Juror 2473] *9 the bench and out seat for a moment.” At Juror No. 2473 to “remain [her] a that he was “bringing defense counsel stated of the jury’s hearing, Juror No. 2473 part based on the fact that motion [Prospective is] no “basis” there to be race-neutral identifiable and that appeared group” noted that “this is the second her from the Defense counsel also jury. remove has tried to the last challenges prosecution] African-American within few [the No. that Juror 2473’s responses take off.” The trial court commented neutral,” the for had and then asked “very prosecutor been “[his] questions her” and watching The that he had “been thoughts.” replied prosecutor find her He found her be “kind of engaging.” quiet” “didn’t to be as out,” a . . who is little bit more . somebody “tuned and he “wanted engaging.” the did not a race-neutral
The trial court concluded have prosecutor on the for the based “lack challenge, questioning” justification fact had not her anything body and the the court “notice[d] [about] It The that it to disallow the then challenge. court ruled was language.” going “Okay.” that the remain seated. The The ordered juror prosecutor responded, told “If like to you challenge court then would exercise prosecutor, And we The you process.” prosecutor another will continue juror, may. said, the court “All right.” again replied, “Okay” dismissed, did Defense did not ask that the venire be nor he counsel Instead, he and the trial court’s remedy. dissatisfaction with express turned their attention to the next the venire. Defense juror prosecutor her,” adding, asked he would “We “challenge counsel whether prosecutor her,” and can talk about if you challenge asking prosecutor it.” as jury, panel about The then accepting prosecutor passed “[t]hink next thanked and excused different currently constituted. Defense counsel challenged juror, continued Juror No. with juror, seated. still
. dire trial voir of several prospective The court next conducted its own for attorneys and both defense After passed jurors. prosecutor and the not to exercise attorneys any peremptory cause defense chose Juror No. juror, excused a male 2149. challenges, prospective prosecutor Juror took excused seat. juror’s Another No. juror, prospective constituted, accepted currently After both defense counsel panel he to thank and excuse Prospective announced that would like prosecutor I’d ask she said, honor, “Your 0207. counsel then Juror No. Defense (Italics added.) remain while we have a sidebar.” bench, At the counsel defense second motion brought Batson-Wheeler based on the use of another his prosecutor’s peremptory challenge African-American, Juror No. 0207. The trial court indicated its Prospective case, had belief defense counsel not established a but even if facie prima so, the defense had had done several race-neutral prosecutor legitimate justifications exercising the Batson- perеmptory challenge. denying Wheeler motion as to Juror No. court told defense Prospective counsel, “Your (Italics to have this request remain seated is denied.” added.) Defense offered no comment or clarification response.
We infer defendant’s consent to the trial court’s decision to discretionary order short outright dismissal venire based remaining jury *10 on his to counsel’s failure to the No. 2473. After object reseating of Juror defendant’s Wheeler motion the was trial court the alterna- granted, proposed remedy reseating tive Juror No. at a after 2473 sidebar conference asking the to remain prospective juror seated. Defense counsel given meaning- was to the ful to but opportunity object remedy alternative at that time failed to do so.
We decline defendant’s invitation to that сounsel’s silence speculate his have was may he unaware of signified defendant’s to venire. right quash “We assume that knew the as it law stood at the time of the trial.” v. Odom 71 (People Cal.2d 717 Cal.Rptr. Here,
145].) counsel, defense cited Wheeler having that the arguing race, had Juror No. was prosecution improperly discharged 2473 based familiar with the default remedy entire venire set forth in quashing that opinion. Cal.3d at when Subsequently, motion, defense counsel made his second he Batson-Wheeler requested discharged remain seated in the event his was and granted, motion court counsel’s when it highlighted remedy this preference referred to the second Batson-Wheeler motion as defense counsel’s “request to have this remain [discharged] juror seated.” Defense counsel’s request No. seated Juror 0207 remain while his motion at a sidеbar was argued conference indicates that counsel understood the alternative rem- available edies, and we can infer that counsel have had he would wanted a objected different on the occasion. prior we conclude that defense
Accordingly, counsel’s to alternative reseating can be improperly discharged juror (Toro, from his failure to to object implied proposed remedy. above, 976-977.)
Cal.3d As noted pp. consenting to impliedly alternative defense counsel to the default remedy, waived selected and venire. dismissing jurors already remaining jury
HI. DISPOSITION reversed, is the matter and The of the Court judgment Appeal with this opinion. for further consistent remanded that court proceedings Liu, J., J., Baxter, J., J., Corrigan, C. concurred. Cantil-Sakauye, BAXTER, J., Concurring. majority’s reasoning with the I agreefully I write on the framed for our review. separately result narrow questions case, but circumstances of issue highlight presented particular view, strong my offered consideration by not for our parties. us, no basis on the before there would have been arises facts argument sought if defendant had venire restart even quash such a impose procedure.
As the Cal.3d 258 majority explains, People held that if in a criminal case shows 748] excluding has used for the challenges purpose opponent members of “the must then “cognizable group” jury, with conclude that the as constituted fails comply representative (Id. . .” The court must therefore cross-section . . requirement *11 venire,” the “dismiss thus far selected” and any remaining “must jurors quash the entire because “is entitled a random draw from an to complaining venire—not one that has been or of mеmbers totally stripped partially the use of such cognizable challenges. group improper peremptory Upon may dismissal different venire shall be drawn and the selection jury process (Ibid.) anew.” begin
Later, Batson v. in Kentucky (1986) 476 U.S. L.Ed.2d 106 S.Ct. 79 [90 1712], ruled racially United States Court that similarly Supreme a criminal challenges use in case violates discriminatory However, declined federal court to high specify Constitution. expressly how the its to them the remedies to ruling, leaving states should implement later, 24.) (2002) People (Batson, be fn. Still employed. 130], Cal.4th 811 we acknowledged to to has discretion allow selection from current venire continue, successful Wheeler/Batson “with the of the com- but assent” only (Willis, plainant. else, the well- understandably
Asked do nothing majority applies that a successful Wheeler/Batson may established assumption complainant counsel, “assent,” either the venire or through insist analysis may narrower solution. The of what constitute such majority’s However, have “assent” is I should persuasive. question why complainant where, at all here, any right one only venire as quash prospective juror Wheeler/Batson to reseat subject challenge, and it is possible very same juror as Wheeler/Batson motion is soon as the I see granted. no or wisdom in a as like logic “right rule to facts those before quash” applied in the instant us matter. when,
I understand the more arises problem commonly perhaps occurs, a Wheeler/Batson motion is of discrimi- granted only after a pattern natory situation, excusáis emerged. has latter jurors this several prospective will have been presumably already wrongly dismissed cannot be recalled. If that has nature of the venire has been happened, representative distorted, Thus, and the irreparably status ante cannot be there quo restored. be no fair may alternative but to the venire and over. quash start one, in a But case like this Wheeler/Batson motion where the is focused on the excusal of one only prospective there is no to show that juror, attempt excused, other cognizable members have been group already improperly courtroom, has not been released from the there question may to the be no reason to notion that the venire cling must unless the quashed be circumstances, complainant otherwise. Under these agrees notion that the has been venire tainted excusals is irreparably by improper questionable. Rather, it ante can be seems status likely restorеd quo simply by reseating the single juror whom the against invalid was exer peremptory challenge means, the By cised. court can that the not “been ensure venire has of a members partially totally stripped cognizable group by use of peremptory challenges.” Cal.3d at reasons, For these justice well not that a may successful require Wheeler/Batson such a case have the absolute complainant quash venire and restart scratch with new entirely panel *12 situation, of the jurors. Applied single-excusal to such a prospective rigidly resources, rule risks the and wasting judicial pool, contrib- squandering jury that, Willis, uting to the for delay potential game playing us prompted modify Wheeler’s to absolute on insistence this extreme remedy.
Neither Wheeler nor Willis addressed what remedies are available, as a matter of the right, under particular “single juror” situation presented by facts of this case. It seems to consider this in a case appropriate issue where it is and I am to do directly so. presented, prepared J., concurred.
Cantil-Sakauye, C. Addressing the WERDEGAR, J., Concurring. of a reprehensible practice in a criminal case exercising peremptory challenge disqualify
191
race, the United
the individual’s
because of
citizen from
service simply
violative
practice
in 1986 outlawed
States
Court
Supreme
(Batson Kentucky
v.
ban on
discrimination.
Amendment’s
racial
Fourteenth
The
(Batson).)
high
U.S.
L.Ed.2d
106 S.Ct.
(1986) 476
79
1712]
[90
rule,
removal of
of the Batson
prohibiting
court later extended the sweep
rel.
ex
T. B.
(J. E. B. v. Alabama
due to the
juror
juror’s gender
a prospective
1419]) or ethnic origin
L.Ed.2d
114 S.Ct.
(1994)
California Batson paved Cal.3d this court’s seminal Wheeler decision. Wheeler (People case (Wheeler).) in that on Relying 748] I, Constitution, which guarantees article section 16 of California extension, and, an drawn from a to a jury representative impartial 265-266, this 287), community cross-section pp. to remove a challenge held for the first time that exercise of a peremptory on the race was unconstitutional. juror’s Speaking based prospective heterogeneous the cross-section “in our requirement, explained and often jurors inevitably belong will to diverse society overlapping groups race, sex, education, ethnic origin, age, defined or national religion, condition, residence, affiliation; placе economic occupation, political that it is unrealistic to to be devoid expect jurors opinions, preconceptions, even derived life in such biases from their deep-rooted experiences groups; is to and hence to achieve overall only way impartiality practical of a so that of such on encourage variety groups representation members, their the extent are they antagonistic, biases of respective 266-267.) out.” (Id. will tend cancel each other at pp. further that certain
We in Wheeler that “when explained party presumes are biased because are members of an identifiable group jurors merely they racial, ethnic, may or similar call religious, distinguished grounds—we all such reason persons bias’—and strikes ‘group peremptorily alone, but frustrates only he not balance the venire upsets demographic That cross-section representative requirement. primary purpose ... achieve an overall interaction by allowing impartiality purpose *13 their bring experi the diverse beliefs and values the from jurors group of 276.) 22 Cal.3d Later clarified “the (Wheeler, ences.” at cases p. grounds of on of single juror unconstitutional exclusion even a improper anew, the commencement of or or selection jury racial bias group requires v. (People where such error is established on appeal.” reversal of judgment 903, 927, 769, (2003) 852]; Reynoso 31 Cal.4th fn. Cal.Rptr.3d 707, 716, see 54 Cal.3d fn. 4 People Fuentes 75].) P.2d Batson,
Unlike the in court which declined high to address issue of the violation,1 for a Wheeler our decision settled the issue for appropriate discussion, our state courts. much After Wheeler court held that the trial court, after a cross-section violation occasioned finding discriminatory of a use “must far challenge, jurors dismiss thus selected. So venire, too it any must since the quash remaining complaining party entitled to a draw random from an entire been venire—not one has of a partially totally members stripped cognizable group use of such a different improper peremptory challenges. Upon dismissal venire shall be and the drawn process may begin anew.” 282.) 22 Cal.3d at As the p. majority acknowledges, ante, 188) Wheeler’s sanction is still default remedy (maj. and opn., was the only sanction for more than 20 years.
Then, in need we “the for the recognized of some availability a discretionary remedy Wheeler/Batson short of dismissal of [for violation] venire.” remaining jury (Peоple v. Willis 27 Cal.4th 818 [118 (Willis).) vast Although the majority 130] Wheeler/Batson claims we see on involve a criminal defendant appeal about a complaining exercise Willis prosecutor’s peremptory challenges, situation presented unusual in which defense was found counsel to be White striking males hopes mistrial and provoking obtaining fresh venire. We Willis that recognized “remedy Wheeler’s mistrial dismissal venire more nothing than to accomplish [would] reward dire voir trial. challenges [the defendant’s] postpone circumstances, such Under and with assent of complaining party, court should the discretion to issue have orders short of appropriate outright dismissal of the remaining assessment of sanctions jury, including against whose exhibit bias and challenges group reseating any (Willis, if are available to improperly discharged jurors they servе.” Although recognized flexibility some for a choosing violation, we stressed that a or consent party’s “waiver is a violation, the Batson subject On the appropriate “expressed] for a no case, finding appropriate particular upon view whether it is more in a of discrimination against jurors, discharge black for the trial court the venire a new and select from a case, [citation], panel not previously discriminatory associated with the or to disallow challenges venire, challenged jurors the improperly resume selection with reinstated on the (Batson, supra, 476 U.S. at fn. [citation].”
193 sanctions, for Wheeler to the use such alternative remedies or prerequisite an entitled a random draw from made that ‘the is to party clear complaining is the remaining entire and that venire approрriate venire’ dismissal 282.) right. (Wheeler, supra, 22 Cal.3d at for a violation of that remedy Thus, in the alternative procedures trial courts lack discretion to impose hand, On the other if absence consent or party. waiver complaining mistrial, to right preferring does waive its to effectively complaining party venire, the court should honor take its chances with the remaining ordinarily additional subject rather than dismiss the venire and parties waiver 823-824.) (Willis, Cal.4th at 27 delay.” pp. a one
As choice an is tactical remedy recognized, appropriate has on how selection aggrieved belonging party.2 Depending remedy counsel wish to for default opt (quash Wheeler’s proceeded, may have the admon- anew), offending venire and begin jury reseating.the challenged ished but then continue with selection without Willis),3 (the or to continue selection after remedy simply case). (the is in the instant reseated challenged prospective juror decision, im- Because of the nature of the for the strategic or absent or consent would be one another counsel’s waiver pose (Willis, supra, 27 Cal.4th that such waiver 823 stress improper. [“We or or to the of such alternative remedies is use prerequisite .”].) . . sanctions .
“Waiver,” course, or abandonment express suggests relinquishment re 875, 880, (In a known Sheena K. (2007) fn. 1 or 40 Cal.4th right privilege. 1293, 716, 282]; 1287, In re S.B. 153 P.3d 32 Cal.4th Cal.Rptr.3d [55 786, 746].) fn. 2 P.3d ‘waiver’ ‘forfei- 90 terms Cal.Rptr.3d [13 “[T]he ture’ been The States Court long Supreme have used United interchangeably. observed, recently however: ‘Waiver is different from forfeiture. Whereas is the right, forfeiture is the failure to make assertion of waiver timely abandonment known right.” “intentional relinquishment [Citations.]’ 508, (United 113 States Olano [(1993) U.S. L.Ed.2d [123 580, 590, (People v. Saunders 1770]].)” (1993) 5 Cal.4th fn. 6 S.Ct. v. McKinnon 1093], People with Cal.Rptr.2d quoted approval 1186].) fn. 16 52 Cal.4th on the record No such of a known appears express relinquishment much, it holds that defendant recognizes this case. The for majority holding appropriate can majority’s 2 I concur in the choose ante, unnecessary. (Maj. opn., Wheeler violation personal and that a waiver from defendant at p. motion, Willis, following prosecutor’s the trial court’s decision sustain the any of the “0]ury court did not excuse the venire or reseat selection resumed” but “[t]he (Willis, jurors.” improperly excused 27 Cal.4th *15 “impliedly of to the alternative the remedy reseating challenged consent[ed]” ante, 186, in added), lieu of the venire at quashing (maj. italics opn., p. because he to to the trial object court’s alternative proposed remedy “fаil[ed] (ibid.). when the to do so But opportunity defendant’s asserted [arose]” sounds a a implied consent less like waiver than standard forfeiture of an issue Search object at trial. as one no evidence failing might, appears that a counsel known expressly relinquished right privilege. the cites three in its
Although
majority
authorities
of
support
implied
rationale,
waiver
none
its
because each
facts
supports
holding
involved
strongly
that either defendant or
a
suggesting
defense counsel made
knowing
In Barsamyan v.
Division
Court
(2008)
choice.
Appellate
Superior
of
960,
265,
Cal.4th
271],
Cal.Rptr.3d
969-970
counsel repre-
[81
sented two unrelated
and affirmatively
defendants
that
defendant
agreed
one
trial,
could
(albeit
be sent out
necessarily
to waive the
agreeing
tacitly)
defendant,
trial
the second
speedy
rights
as counsel could not represent
both
in
People
simultaneously
different trials.
Cal.4th
(2003) 29
Gutierrez
917,
1000],
63 P.3d
court held the defendant
waived
to be
trial
his
at
by his affirmative refusal to exit his cell.
present
In People
v. Toro
(1989)
577],
By easily finding counsel a tacit remedy real historic Wheeler/Batson runs a risk of majority diluting power Indeed, rule. can trace one state journey in this jurisprudеnce Wheeler, (1) 22 Cal.3d where the sole was remedy (cid:127) Willis, venire, 27 Cal.4th where this court—on unusual in lesser court’s if facts—permitted remedy discretion counsel case, waived the Wheeler this where remedy, averring despite Wheeler the “default finds provides remedy,” majority impliedly ante, waived the Wheeler his remedy by “passive concession” (maj. opn., 186). The in rule this case seems to one in which the essentially equivalent Willis’s for Wheeler violation unless wronged gets alternative remedy Indeed, he or she two members of court would objects. go apparently further, that a trial court finding “strong argument” supporting notion could choose not to the venire even if a defendant quash elected option Wheeler violation. as his or chosen for a (Conc. her opn. Baxter, J., ante, J.)C. next joined by Cantil-Sakauye, Will the casе can, in this line find this court rule that the trial court itself its adopting for a successful and over counsel’s select objection, discretion abolish the Wheeler next case motion? And the perhaps Wheeler/Batson the erosion one am unnecessary? join I reluctant remedy entirely this court’s jurisprudence. milestones important (and motions as Batson applicable That provided *16 the and inconvenient to well) offending may disadvantageous party, prove court, true, us that Wheeler’s trial is but we have no evidence before the of has or unfair. The seriousness impractical quashing default remedy proven a new no doubt provides the venire and selection from restarting jury panel racial, gender, not to let alone transgress, an incentive parties approach, fear of to start jury ethnic line whеn for origin selecting jurors, having viewed, the of the venire remedy quashing selection from scratch. So Wheeler whole; an it making wronged serves function aside important identify them and making exerts kind of on gravitational parties, pull them to avoid influencing confront their otherwise invisible biases their when select- allowing such considerations affect judgment an on bias relying group incentive refrain from ing jury. By providing selection, thus to vindicate the other during the Wheeler serves jury remedy ensuring juror rule aside from representative of cross-section purposes rule also serves other essen- cross-section impartiality: representative “[T]he courts, tial functions in our such as of society, legitimating judgments stigma- citizen further participation government, promoting preventing of fn. tizing Cal.3d minority groups.” I and I continue to unusual joined majority, agree case, remedy in that the court correct an alternative for facts was to permit case, No such facts are in this the Wheeler violation. unusual present however, do I extension of Willis. I nor unwarranted join majority’s than would instead hold that of other imposition remedy provided be waiver knowing Wheeler an may only upon express imposed counsel on the record.
Conclusion court, defendant’s Wheeler sustaining I conclude trial after Although motion, in the absence of wrong was to continue with counsel’s venire, this is not default forgo remedy express at all for the a case in which the trial court failed to give any Instead, violation; case, because the in such a reversal would be required. of state law for violation one question appropriate 99-100, (Batson, fn. and the court 24), 476 U.S. at both only pр. afforded him a for the defendant’s Wheeler motion and sustained VI, error, set in article section 13 of the we standard review forth apply aside, California Constitution: “No shall be set or new trial judgment granted, cause, unless, ... error as to matter any any procedure, after any ’ cause, examination of entire . . the court shall be of the opinion error has in a complained resulted As we can but miscarriage justice.” assume the jurors selected were fair and no eventually reasonable impartial, exists that defendant Mata probability Francis would have achieved a more favorable result in his trial had the trial the venire and begun quashed selection anew. v. Watson Cal.2d (People 836 [299 243].) while not I do with the Accordingly, agree majority’s analysis, I concur in its conclusion to reverse the decision of the Court of Appeal.
Kennard, J., concurred. LIU, J., Concurring. Justice Werdegar’s concurring raises opinion impor- concerns, tant and I that courts must be agree not to remedial vigilant adopt rules erode the substance of the constitutional to a selected free *17 Further, discrimination. I agree with Justice Werdegar venire, medicine, though strong remains default properly because of incentive it gives examine parties affirmatively and avoid the influence of bias. possible join conscious unconscious But I because I believe today’s opinion indications short an waiver can express demonstrate a default party’s remedy. relinquish We would confront different case if a trial court quite were order alternative reseating struck the defend- improperly juror over ant’s or without objection giving meaningful opportunity defendant object.