Filed 3/6/15
                          CERTIFIED FOR PUBLICATION




           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                           THIRD APPELLATE DISTRICT
                                           (Sutter)
                                             ----




THE PEOPLE,                                                     C074191

               Plaintiff and Respondent,              (Super. Ct. No. CRF11-1759)

        v.

CHARANDEEP SINGH,

               Defendant and Appellant.




      APPEAL from a judgment of the Superior Court of Sutter County, Brian R.
Aronson, Judge. Affirmed.

      Thomas P. Owen, under appointment by the Court of Appeal, for Defendant and
Appellant.

      Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez, Daniel B.
Bernstein, Deputy Attorneys General, for Plaintiff and Respondent.


        A jury found defendant Charandeep Singh guilty of felony vandalism, making
criminal threats, and assault with a deadly weapon (a baseball bat); it was unable to reach



                                              1
a verdict with respect to counts alleging assault with a gun and brandishing a gun (as to
which the trial court stated that it was “prepared” to declare a mistrial, although we do
not find any reflection in the minutes of that action). The trial court sentenced defendant
to state prison for four years eight months.

       Defendant’s appeal centers on the prosecution’s successful motion contesting the
exercise of defense counsel’s peremptory challenges as being premised on invidious
group bias against Caucasian potential jurors. (As a result, we will omit any account of
the facts underlying defendant’s convictions.) Defendant does not challenge the nature
of the remedy that the trial court imposed (reseating the potential juror who had been the
subject of the most recent defense peremptory challenge). Rather, defendant argues that
the trial court erred in granting the prosecution’s motion, and further that this erroneous
grant of the motion—coupled with a threat to impose sanctions against defense counsel
for any further improper peremptory challenges—chilled his trial counsel’s advocacy
during the rest of voir dire and accordingly resulted in an unfair trial. We shall affirm the
judgment.

                 FACTUAL AND PROCEDURAL BACKGROUND

       After the initial voir dire of the original 18 prospective jurors (12 in the jury box
and six seated in chairs in front of it), the parties stipulated to excusing a number of them
for hardship or cause, and exercised four peremptory challenges. The trial court seated
additional prospective jurors. After the parties stipulated to four more excusals for cause,
Juror No. 416024 was among the replacements.

       There was scant voir dire of Juror No. 416024. She had read “a little bit in the
paper” about the case; she worked as a mechanic, was married (to a mill foreman), and
had an adult daughter in nursing school. She had never served previously on a jury. She
had been the victim of burglaries of her home (25 years ago) and her cars (twice in the
past five years); the police had not apprehended anyone or recovered the property. This

                                               2
did not make her any more likely to convict defendant if she were otherwise not
convinced of his guilt, and she would not mind having someone of her mindset sitting in
judgment of her.

       There was also brief voir dire of Juror No. 439656, who revealed that 40 years
earlier she had been convicted of assault after a teenager slapped the juror’s small child;
she paid a fine. She did not believe the experience would affect her deliberations,
because she felt she deserved her punishment. Her husband had been a police officer
about 50 years earlier (before she met him), which would not affect her evaluation of any
police witnesses. She would be comfortable making credibility determinations if
presented with conflicting testimony. After she mentioned that her two sons were both in
prison, the parties conducted further private voir dire of Juror No. 439656 in chambers.
One son had been convicted of burglaries, and the other for drug issues. She felt they
both deserved this punishment, and it would not affect the manner in which she evaluated
the case against defendant because she did not think that defendant should be punished
regardless of his guilt. For reasons not apparent on the record, defense counsel and the
trial court believed her responses merited concern short of cause to dismiss her. The trial
court also denied a defense challenge for cause to a secretary with (as the trial court
found) only an attenuated link to a Yuba County Superior Court judge against whom
defense counsel had a standing peremptory challenge (as presiding judge she had
convened a grand jury to indict him while he was pursuing an appointment to the Yuba
County bench that she did not support (see Santana v. Superior Court (May 16, 2012,
C066008) [nonpub. opn.] & related cases [issuing peremptory writ directing superior
court to grant motion setting aside indictment]).

       Reconvening in open court, the prosecutor exercised a peremptory challenge to
one prospective juror and thereafter passed the jury for cause. Defense counsel first
excused the secretary, and then five additional prospective jurors; the last of these was


                                              3
Juror No. 416024. During the course of these challenges, the prosecutor requested a
sidebar conference. After the challenge to Juror No. 416024, the prosecutor again asked
to address the court outside the jury’s presence. The court asked Juror No. 416024 to
remain in the courtroom while it conferred with counsel in chambers.

       The prosecutor observed that defense counsel had exercised these peremptories
solely against Caucasians and not against any seated prospective jurors who did not
appear to be Caucasian. “[I]t just seems improbable to me that [defense counsel does
not] find[] [any] fault with any of the non-white jurors but has non-race-related reasons
for striking the eight that he has.” The court stated that it did appear to be true that the
subjects of defense counsel’s peremptories were all “non-minorities, and I’m not even
sure whether that’s an accurate terminology anymore, but that’s what I will use instead of
whites because I don’t like that word either.” It observed that both race and ethnic origin
can be “cognizable groups under the law.” It thus concluded that the prosecutor had
established a prima facie showing that invidious group bias was the basis for the defense
peremptories.

       Defense counsel offered justifications for the first seven peremptories. In each
instance, the trial court agreed that the justifications at least on their face were neutral
(although it did not always agree with defense counsel’s evaluation of the prospective
jurors).

       This left Juror No. 416024. Defense counsel was concerned about her attitude
because (as noted above) she was the victim of an unsolved car burglary. Counsel
speculated that this possibly could have involved some type of vandalism, which was
among the present charges.

       Because it was already after 4:30 p.m., the court noted that it would reconvene on
the motion on the following day, at which point it would determine (as the prosecution
requested) the credibility of the proffered justifications for the challenges: “The trial

                                               4
court has a duty to determine the credibility of the . . . proffered explanations . . . , which
is what I will do tomorrow morning.” It asked Juror No. 416024 to return as well.1

       In arguing against the motion, defense counsel pointed out that the jury panel was
about 80 to 85 percent Caucasian, and there were six Caucasians seated in the jury box.
He also asserted his bona fides as an officer of the court in exercising his peremptories.
The court pointed out that the 50-50 split among the seated jurors actually cut against
defendant’s argument, because that was a much lower proportion than the panel. It did
not discount the need for hunches in jury selection, but in applying the close scrutiny
necessary when peremptory challenges are contested—particularly when there appeared
to be a pattern—it found some of defense counsel’s reasons simply to be “disingenuous,”
specifying in particular the defense peremptories against two men on the basis of their
prior experience as jurors. It did not agree that the first, whose prior criminal trial had
settled, appeared angry in any respect, merely frustrated at the waste of time. As for the
other, who had served on a hung jury, the trial court agreed that he did appear frustrated
with the hold-out minority but had also served on two other juries that did reach verdicts,
for which reason the basis for the challenge “just doesn’t seem to me to be a very good
reason”2 because this would neutralize the one unsatisfactory experience. The court did
not expressly rule on the credibility of the remaining justifications for the peremptories
(including Juror No. 416024).

       Having found exclusion based on membership in a cognizable group, the court
asked the prosecutor—who wanted to complete the trial promptly because a witness


1 The trial court never expressly ruled on the justification for excusing Juror No. 416024.

2 Here and elsewhere the trial court used language couched in terms of whether it agreed
with the justification for the challenges. This is not a pertinent concern in evaluating a
justification for a peremptory. However, in light of the court’s explicit statement on the
previous day that it would be focusing on credibility, we interpret the language it used in
that manner.

                                               5
would be leaving the area—for his preferred remedy. At first, the prosecutor did not
want to reseat Juror No. 416024, because he was concerned she would hold this against
the prosecution. He asked instead simply to continue with voir dire and the imposition of
monetary sanctions in the event of any further impermissible challenges. The court
nonetheless reseated Juror No. 416024 and restored an additional challenge (for a total of
three) to defense counsel, stating defense counsel “could exercise [it] against [her] if he
wanted to and he would just have to articulate a race-neutral reason.” The court even
suggested that her body language was “a little bit more tough than most of the other[s],”
and her demeanor after reseating her should be a subject of close scrutiny.

       After additional voir dire, the trial court denied defense counsel’s challenge to a
juror in chambers for cause, although it considered it “a close one.” During the
discussion in chambers, the trial court assured defense counsel that he should not hesitate
to use his remaining peremptory challenges if he had a proper basis for doing so, noting
that it believed a challenge to this last juror would be valid. The prosecutor pointed out
that the six prospective jurors in front of the jury box now subject to voir dire were
Caucasian, so the exercise of a peremptory challenge would not raise a suspicion in his
mind. Defense counsel stated he nevertheless felt a chilling effect, because he was
concerned the judge would not evaluate jurors in the same way he did. He continued to
express concern with Juror No. 416024, asserting that she had “glared” at him “once or
twice.” The court stated that defense counsel should not be reluctant to excuse her on
this basis.

       Back in open court, defense counsel exercised a peremptory against the subject of
his unsuccessful challenge for cause in chambers. After one more peremptory challenge
from the prosecutor, both counsel accepted the jury as constituted.3 At the



3 Notably, defense counsel still had two unexercised peremptories.


                                              6
commencement of trial, defense counsel noted for the record that he would have excused
Juror No. 416024 because of the manner in which she had been looking at him. He
would also have excused Juror No. 439656 based on the voir dire earlier in chambers that
we have noted above. He declined to excuse them out of concern that the court would
not sustain the challenges.

                                       DISCUSSION

                                   I. General Principles

       Ultimately, we do not need to rule on the substance of the trial court’s resolution
of the prosecution’s motion to contest the defense peremptories or the remedy it imposed.
(We note here that our summary of the proceedings should not be taken as tacit approval
of the manner in which the issue was addressed; e.g., see fns. 1-2, ante.) But to give
context to this appeal, we will nonetheless briefly note the pertinent principles that
govern these motions.

       Building upon the state and federal constitutional right to a representative cross-
section of the community on a jury, People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler)
held that a peremptory challenge rooted in invidious group bias, i.e., a presumption based
on the mere status of a prospective juror as a member of a cognizable group rather than
any particular specific bias, is subject to objection if the opposing party can make a prima
facie case of an inference to this effect. The burden then switches to the proponent of the
challenge to establish that it is rooted in a bona fide concern about a bias particular to the
juror. (Id. at pp. 275-277, 280-281; see People v. Fuller (1982) 136 Cal.App.3d 403, 423
& fn. 25 [Wheeler requires only a reasonable inference for prima facie showing]; see also
Johnson v. California (2005) 545 U.S. 162, 168 [162 L.Ed.2d 129, 138] [interpreting
Wheeler as requiring “more likely than not” standard, which is too strict; only inference
is required].) The federal high court subsequently established the same principle as a
matter of the federal right to equal protection of a defendant and prospective jurors, as

                                              7
well as the interest of the community at large in fair proceedings. (Batson v. Kentucky
(1986) 476 U.S. 79, 87 [90 L.Ed.2d 69, 81] (Batson); accord, Powers v. Ohio (1991)
499 U.S. 400, 406 [113 L.Ed.2d 411, 422] (Powers).)

                    II. Defendant May Raise This Issue on Appeal

       The People contend defendant does not have “standing” to challenge the finding
that defense counsel committed a Wheeler-Batson violation, and we should accordingly
dismiss the appeal. The People misapprehend the nature of their supporting authority.

       People v. Willis (2002) 27 Cal.4th 811 (Willis) is a case focused not on the basis
for a finding of a Wheeler-Batson violation, but on the remedy. It authorized a trial court
to craft a remedy (at the moving party’s request) other than dismissal of the seated juror
and the remainder of the panel4 as prescribed in Wheeler, supra, 22 Cal.3d at p. 282.5
(Willis, at p. 814.) At the outset of voir dire, the defense counsel had unsuccessfully
sought to dismiss the panel as not having a cross-section of minorities representative of
the community; during voir dire, the trial court then twice determined the defense counsel




4 Although the terms are frequently used interchangeably, the Supreme Court has
designated pool as the master list of potential jurors assembled from source lists, venire
as the subgroup of the pool assembled at the courthouse, and panel as the subgroup of the
venire assigned to a courtroom for voir dire. (People v. Bell (1989) 49 Cal.3d 502, 520,
fn. 3; cf. Code Civ. Proc., § 194, subds. (e), (g) & (q) [using terms “master list,” “pool,”
and “panel”].) While both Wheeler and Willis refer to dismissal of the remainder of the
“venire,” it is clear they mean the panel in the courtroom, not all of the jurors at the
courthouse.
5 Wheeler itself had posited the possibility of other remedies, but decided to defer the
exploration of them for another day. (Wheeler, supra, 22 Cal.3d at p. 282, fn. 29.)
Batson eschewed prescribing any remedy for a violation as a matter of federal
constitutional law. (Batson, supra, 476 U.S. at p. 99, fn. 24 [90 L.Ed.2d at p. 90, fn. 24].)

                                              8
was “systematically”6 excluding Caucasian males with peremptory challenges, and—
after input from the prosecutor, who argued that the Wheeler remedy would only reward
defense counsel with the result he desired—in each instance simply resumed voir dire
with the remainder of the panel (also issuing an order subjecting defense counsel to
personal monetary sanctions for any further violations). (Willis, at pp. 815-816.) “As
the present case demonstrates, situations can arise in which the remedy of mistrial and
dismissal of the [panel] accomplish nothing more than to reward [the offending party]
and postpone trial. Under such circumstances, and with the assent of the [moving] 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 [the offending
party] . . . and reseating any improperly [challenged] jurors if they are [still] available
. . . .” (Id. at p. 821.)

        Willis rejected the defendant’s claim that anything other than the Wheeler remedy
violated Wheeler’s core concern with a representative cross-section; Willis stated that it
would be “anomalous” to allow the party who “caused the unrepresentative jury” to
complain about it on appeal. (Willis, supra, 27 Cal.4th at p. 822, italics added.)7
Because it is a violation of the prosecutor’s right to a jury that is a representative cross-
section of the community, the complaining party’s choice of remedy was not subject to
the defendant’s challenge. (Willis, at pp. 822-823.) A prosecutor’s choice to waive the
Wheeler remedy also did not run afoul of Batson’s focus on the rights of disqualified


6 This is a frequent judicial malapropism; in its technical sense, this refers only to the
lack of representation of cognizable groups in a venire, not a panel. (People v. Fuentes
(1991) 54 Cal.3d 707, 716, fn. 4.)
7 Although this would sound at first blush as if Willis were imposing a species of invited
error, it later stated “we find it unnecessary to reach [the claim] . . . that defendant, who
exercised the improper challenges at issue, . . . should be deemed to have invited any
error in allowing that jury to try his case.” (Willis, supra, 27 Cal.4th at p. 824; see also
id. at p. 817 [citing dissent in underlying appellate court opinion].)

                                               9
jurors to equal protection in voir dire, because in some instances those jurors might be
reseated and in any event dismissal of the remaining panel “does little to vindicate the
rights of those excluded.” (Willis, at p. 823.)

       People v. Morris (2003) 107 Cal.App.4th 402 (Morris) is another case that does
not address the substantive basis for a finding of a Wheeler-Batson violation. The trial
court found defense counsel had been exercising challenges to Caucasian males on the
basis of invidious group bias. However, it rejected the prosecutor’s express request for
the Wheeler remedy and simply proceeded with voir dire. (Morris, at p. 409.) Morris
agreed the prosecutor’s lack of consent rendered the court’s inaction a violation of both
Wheeler and Willis. (Morris, at p. 411.) However, the appellate court concluded this
violation of the prosecutor’s right was not for the defendant to raise on appeal. (Id. at
pp. 413-414.) It based its analysis on the reasoning in Powers, supra, 499 U.S. at page
415, which accorded a Caucasian defendant “standing” to raise the equal protection
claims of excluded jurors and the community at large based on a prosecutor’s exercise of
peremptories for reasons of racial group bias. (Morris, at p. 411.) Powers found the
defendant had suffered an “ ‘injury in fact’ ” and had a “close relation” to the third party,
who had a “hindrance” to the assertion of their rights (Powers, at p. 411 [cited in Morris,
at p. 412]); on the basis of these Powers criteria, Georgia v. McCollum (1992) 505 U.S.
42, 56 [120 L.Ed.2d 33] had accorded the prosecution standing to challenge defense
peremptories as being made on the basis of racial group bias. Defendant Morris, by
contrast, did not suffer any injury because the jury that tried him was of his own
choosing, nor did he have any interest in common with jurors he excluded on an
impermissible basis; as a result, he could not raise error affecting the prosecution on
appeal. (Morris, at pp. 413-414.)

       Whether couched as a form of invited error or considered as part of a standing
analysis, what underlies these cases is a defendant’s status as the offending party whose


                                             10
actions brought about the remedy contested on appeal. The considerations in Willis and
Morris do not apply to a defendant who seeks to contest the underlying determination
that defense counsel was in fact the offending party who is precluded from contesting the
remedy on appeal. If the trial court erred in making that determination, then necessarily
any remedy was unwarranted. Consequently, defendant may raise the issue of the finding
that defense counsel committed a Wheeler-Batson violation.

                       III. Defendant Cannot Establish Prejudice

       Defendant disputes whether Caucasians are a cognizable group as defined for
purposes either of equal protection (People v. Garcia (2000) 77 Cal.App.4th 1269, 1273-
1274) or of a representative cross-section of the community (id. at pp. 1275-1281 [which
found that sexual orientation was cognizable for purposes of the latter]). He also argues
the trial court should have abdicated any further effort to gauge the sincerity of his race-
neutral justifications for his peremptories because he had articulated a subjective basis
that the trial court could not second-guess. We do not need to reach either of these issues
because, even if the trial court erred, defendant has failed to establish any resulting
prejudice.8



8 We observe both are doubtful propositions. Defendant notes only that Caucasians are
not a minority group and made up a majority of the panel, and thus “under the facts of the
present case” were not a cognizable group. However, he fails to analyze any of the
criteria discussed at length in Garcia for determining whether a group is cognizable
under Wheeler (which neither include the factors underlying his argument nor provide for
a “case-specific” cognizable status), or the People’s federal authority that holds it is not
permissible to challenge Caucasian jurors on the basis of race (even to obtain a more
racially representative jury). He also fails to acknowledge that even though a subjective
noninvidious bias is permissible, the trial court nonetheless has discretion to assess how
reasonable or plausible a justification based on it may be under accepted trial strategies in
determining whether it is genuine. (People v. Lenix (2008) 44 Cal.4th 602, 613; People
v. Allen (2004) 115 Cal.App.4th 542, 552-553 [“vacuous” justification for peremptory
not credible].) Defendant’s claim that a subjective basis cannot be gainsaid would all but
insulate peremptories from review.

                                             11
       In both Ross v. Oklahoma (1988) 487 U.S. 81 [101 L.Ed.2d 80] and Rivera v.
Illinois (2009) 556 U.S. 148 [173 L.Ed.2d 320] (Rivera), the Supreme Court made clear
that while a defendant has a federal constitutional right to a fair and impartial fact finder
at trial, peremptory challenges are not themselves a constitutionally protected component
of this right; they are merely a means of achieving that end, albeit one that is of primary
importance. Thus, the use of a peremptory challenge to remedy an erroneous denial of a
challenge for cause does not infringe on the constitutional right to a fair trial. (Ross, at
pp. 88-89 [also noting due process violated only where defendant does not receive full
number of peremptories allowed under state law, as opposed to devoting peremptories to
the end of correcting erroneous denial of challenges for cause]; accord, People v. Black
(2014) 58 Cal.4th 912 (Black).) Similarly, the erroneous overruling of a peremptory
challenge (pursuant to Batson) is not a structural violation of a defendant’s right to due
process under the federal Constitution requiring reversal without a showing of prejudice,
and states are free as a result to determine the effect of such error as a matter of state law.
(Rivera, supra, 556 U.S. at pp. 157, 160-161 [noting structural error exists only where it
results in trial that is fundamentally unfair, or unreliable factfinding].)

       Under the California Supreme Court’s approach, structural error exists only in a
very limited class of cases (generally involving an impingement on the right to counsel
or self-representation, bias on the part of the court or jury, a defective instruction on
reasonable doubt, the denial of a public trial, and an erroneous denial of a Wheeler-
Batson motion) in which the error has the effect of rendering the factfinding process
unreliable, or causing the trial to be fundamentally unfair. (People v. Mil (2012)
53 Cal.4th 400, 410.) If, on the other hand, there was adequate legal representation and
an absence of any bias on the part of the court or jury, most constitutional errors are
subject to our review for prejudice. (Ibid.)




                                               12
       A recent decision, State v. Carr (2014) 300 Kan. 1 [331 P.3d 544] (Carr),
provides a thorough survey of state and federal decisions on the issue of whether
erroneously overruling a peremptory challenge is structural error. (Id. at pp. 135-138
[331 P.3d at pp. 638-641].) It did not find cases identifying the error as structural to be
persuasive.9 Like the California Supreme Court, the Kansas Supreme Court’s developing
view on harmless error finds the “vast majority” of error subject to review for prejudice.
(Id. at p. 139 [331 P.3d at p. 641].) Because it is the constitutional right to an impartial
jury at trial that is at issue, and the inclusion of a juror who is competent and unbiased
does not impair that right (even if the juror is personally objectionable to the defendant),
it is not a structural error, nor can a defendant ordinarily establish any prejudice from the
error. (Ibid.)

       Absent structural error, it is the well-established California rule in both civil and
criminal appeals that the judgment is presumed correct, and a record silent on a point
cannot overcome this presumption. (Denham v. Superior Court (1970) 2 Cal.3d 557,
564; People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.) As a result, it is not
enough for an appellant to identify an error in the proceedings in the trial court without
affirmatively establishing “how the error caused a miscarriage of justice.” (Paterno v.
State of California (1999) 74 Cal.App.4th 68, 106, cited in People v. Nero (2010)
181 Cal.App.4th 504, 510, fn. 11 [codefendant cannot join in assertion of error without
establishing prejudice to self]). Mere speculations of prejudice are insufficient to carry
this burden. (People v. Ayala (2000) 24 Cal.4th 243, 267 [not proper to reverse based on
speculations that there might have been comparative juror information that would have
undermined finding of genuine proper basis for peremptory].)




9 Included in these cases is an unpublished California decision (People v. Gonzales
(Feb. 8, 2012, B224397)), which is not a precedent under California law.

                                              13
       As we agree that an error in overruling a peremptory does not result in any
fundamental unfairness, or interference with the reliability of the jury’s factfinding
function, we conclude it is not structural and therefore a defendant must affirmatively
demonstrate prejudice. We are not persuaded that the difficulty in establishing prejudice
from the inclusion of a merely objectionable juror in deliberations (a theme running
through the cases identified in Carr, supra, 300 Kan. at pp. 134-135 [331 P.3d at p. 639];
e.g., State v. Mootz (Ia. 2012) 808 N.W.2d 207, 225 [concluding this results in a wrong
without a remedy]) is a sufficient reason for automatic reversal. Rivera specifically
rejected this argument as a matter of federal law (Rivera, supra, 556 U.S. at p. 157 [this
argument “do[es] not withstand scrutiny”]), and also noted that a rule of reversal per se
would have the result of “discourag[ing] trial courts and prosecutors from policing a
criminal defendant’s discriminatory use of peremptory challenges.” (Id. at p. 160.) We
share this concern.

       Defendant relies on Wheeler’s description of a failure to conduct an adequate review
before sustaining a contested peremptory as being error that is reversible per se. (Wheeler,
supra, 22 Cal.3d at p. 283; see People v. Johnson (1989) 47 Cal.3d 1194, 1285.) However,
Wheeler error is structural because it is impossible to determine the effect on the trial of a
“[juror] who [was not] there”10 where a trial court sustained a possibly impermissible
peremptory.11 Ordinary Wheeler error also puts the judicial system in the untoward place
of countenancing invidious discrimination, even if there were no prejudice to the particular



10 Hughes Mearns (1899) “Antigonish.”

11 In contrast, there is People v. Rodriguez (1996) 50 Cal.App.4th 1013, 1035, where the
court failed to dismiss the panel after the grant of a Wheeler motion (as was then considered
to be the prescribed remedy pre-Willis) and reseated an alternate juror instead, who never sat
on the jury; as it is possible to determine the absence of any prejudice in such a context
(unlike a wrongfully excluded juror), the error was not structural and the principle of
harmless error could apply.

                                               14
defendant. In the context of a successful prosecution Wheeler challenge, if an objectionable
juror in fact acted in any manner during deliberations that is inconsistent with an unbiased
fact finder, a defendant can seek redress on that basis.

       As noted above, Black, supra, 58 Cal.4th 912 recently came to the same conclusion
as Ross. A properly preserved claim that a trial court erroneously limited a defendant’s free
exercise of peremptories and thereby caused the participation of a juror whom the defendant
found objectionable (as the result of erroneous denials of challenges for cause that taxed his
full complement)12 is not reversible error absent a showing that the defendant’s right to an
impartial jury was thereby affected; this requires a showing that the juror was either biased
or otherwise properly subject to a challenge for cause. (Id. at pp. 914, 916-917, 920.) It is
insufficient if the juror is merely objectionable for lawful reasons not amounting to cause.
(Id. at pp. 919, 920 [rejecting an earlier Supreme Court dictum and a sister state holding to
the contrary].)

       The present context is analogous to Black. Instead of complaining that the trial court
forced him to exhaust the defense peremptories erroneously, defendant asserts the erroneous
overruling of his peremptory and the threat of sanctions chilled any further exercise of
defense peremptories, resulting in the seating of objectionable Juror Nos. 416024 and
439656. This is the only claimed prejudice. However, under Black, defendant must
demonstrate either bias or other grounds for a challenge for cause on the part of either juror
in order to establish the necessary prejudice for reversal. Of themselves, the purportedly




12 This requires the exhaustion of peremptories (or a valid justification for the failure to
do so), and an objection in the trial court to the jury as finally constituted. (Black, supra,
58 Cal.4th at pp. 918, 920, fn. 3.) Arguably, defendant fails to satisfy these prerequisites
in the present case, as we do not find his hesitation to exhaust his remaining challenges to
be reasonable (fn. 13, post). However, given the categorical absence of prejudice in this
situation, we dispose of the issue on its merits.

                                              15
erroneous Wheeler-Batson ruling, the threat of sanctions,13 and the seating of the
objectionable jurors are not sufficient to entitle him to reversal. As defendant has thus failed
to provide a demonstration of the necessary prejudice, we do not need to resolve whether
the trial court’s actions were indeed erroneous.

                                       DISPOSITION

       The judgment is affirmed. (CERTIFIED FOR PUBLICATION)




                                                          BUTZ                   , J.



We concur:



      RAYE                   , P. J.



      DUARTE                 , J.



13 Our resolution moots the issue of the purported chilling effect of the sanctions on the
exercise of further peremptories. We note, however, that this is an inadequate claim of
error on myriad bases: First, Willis expressly endorsed the imposition of sanctions as a
remedy, and thus necessarily any chilling effect. Second, as the People point out, the
duty of zealous advocacy on behalf of a client is limited to lawful behavior, and thus
sanctions for unlawful peremptories does not impede counsel’s representation. (People
v. Boulden (2005) 126 Cal.App.4th 1305, 1314.) Counsel has the remedy of appeal for
erroneously imposed sanctions. (People v. Muhammad (2003) 108 Cal.App.4th 313,
319.) Finally, given the colloquies quoted above between defense counsel, the trial court,
and the prosecutor, nothing in the present circumstances indicated unwarranted pressure
on defense counsel to refrain from further exercise of peremptories; indeed, both the trial
court and the prosecutor assured defense counsel he should not hesitate to exercise his
remaining peremptories.

                                              16
