[Note: Subsequent to this post the Supreme Court granted review. See, "Review Granted in Wheeler 'Alternate Remedy' Case," posted May 9, 2012.]
After granting a defendant's Wheeler motion, the court may not impose a remedy short of dismissing the jury venire without the consent of the defendant, said the Second District Court of Appeal in People v. Mata (Feb. 23, 2012, B226256), __ Cal.App.4th __ [2012 DJDAR 2424].
After the prosecutor exercised a peremptory challenge to a second African-American, defense counsel stated, "I ask for a side bar after she leaves." The court instructed the prospective juror to remain in her seat, conducted the side bar conference, and concluded that there was no justification for the challenge. The court ordered the juror to remain seated and instructed the prosecutor to exercise a challenge against a different juror. Counsel for defendant said nothing about the court's ruling. On appeal, defendant argued that the court erred in reseating the juror instead of dismissing the venire.
In People v. Wheeler (1978) 22 Cal.3d 258, the Supreme Court held that if the trial court concludes that a party has exercised a peremptory challenge on the basis of group bias, the court must dismiss the entire jury venire and start over. In People v. Willis (2002) 27 Cal.4th 811, the Court authorized remedies short of dismissal of the venire, such as reseating the challenged juror, with the assent of the complaining party.
Here, said the appellate court, the trial court chose an alternative remedy without the consent of the defendant. The defendant did not agree to the procedure, either expressly or implicitly, said the court. Defendant did not ask the juror to remain while he made the Wheeler motion, but asked for a side bar "after she leaves." Defense counsel did not comment on the court's chosen remedy, nor was counsel asked to do so. Because the court did not obtain the defendant's waiver or consent, failure to discharge the jury venire was error, and the judgment was reversed.