Filed 7/8/13



       IN THE SUPREME COURT OF CALIFORNIA


THE PEOPLE,                          )
                                     )
           Plaintiff and Respondent, )
                                     )                              S201413
           v.                        )
                                     )                       Ct.App. 2/1 B226256
FRANCIS MATA,                        )
                                     )                       Los Angeles County
           Defendant and Appellant.  )                     Super. Ct. No. BA366071
____________________________________)


        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.4th at p. 821, italics added .)
        Here we consider whether implied consent can constitute the ―assent of the
complaining party‖ (Willis, supra, 27 Cal.4th at 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



                                           1
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.
                                 II. DISCUSSION
       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

                                          2
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

                                           3
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.)

                                           4
       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

                                          5
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

                                           6
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 remedy
to the improper discharge of a potential juror based on group bias.
       We agree with the court in Overby that the assent required by Willis can be
given by defense counsel. The Overby court explained that, ―[a]s a general rule,
counsel ‗has the general authority to control the procedural aspects of the litigation
and, indeed, to bind the clients in these matters.‘ (In re Horton (1991) 54 Cal.3d
82, 94.)‖ (Overby, supra, 124 Cal.App.4th at p. 1243.) ―The right to request a
mistrial or to elect to continue with a particular jury is not one of the constitutional
rights deemed to be so personal and fundamental that it may only be personally
waived by the defendant. [Citations.]‖ (Ibid.) Accordingly, counsel here could

                                           7
assent in the trial court‘s proposed remedy and thereby waive defendant‘s right to
a mistrial and a new jury venire. (In re Horton, supra, 54 Cal.3d at p. 95 [as to
―fundamental rights of a less personal nature, courts may assume that counsel‘s
waiver reflects the defendant‘s consent in the absence of an express conflict‖].)
       Additionally, we find that by failing to object to the trial court‘s proposed
alternative remedy when the opportunity to do so arises, the complaining party
impliedly waives the right to the default remedy of quashing the entire venire and
impliedly consents to the court‘s proposed alternative remedy. ―Assent,‖ the term
we used in Willis, encompasses positive agreement as well as passive concession.
Our discussion of implied consent in People v. Toro (1989) 47 Cal.3d 966 (Toro),
also supports this conclusion. In Toro, we held that consent to instructions on an
uncharged lesser related offense could be inferred from defense counsel‘s failure
to object, and that such failure to object ―bar[s] a contention based on lack of
notice.‖ (Id. at p. 977; see also, e.g., Barsamyan v. Appellate Division of Superior
Court (2008) 44 Cal.4th 960, 969-970 [waiver of statutory speedy trial rights may
be inferred from silence]; People v. Gutierrez (2003) 29 Cal.4th 1196, 1206
[through his or her conduct, a defendant may impliedly waive the right to be
present at trial].) In support of our holding in Toro, we observed that ―[l]esser
related offense instructions generally are beneficial to defendants and in a given
case only the defendant knows whether his substantial rights will be prejudicially
affected by submitting a lesser related offense to the jury.‖ (Toro, supra, 47
Cal.3d at p. 977.)
       The same is true here. Only the complaining party can assess in a
particular case whether the proposed alternative remedy, such as the reseating of
an improperly discharged juror, is more or less beneficial than the default remedy
of quashing the entire jury venire. For the same reasons expressed in Toro, we
conclude that the complaining party‘s assent to the trial court‘s proposed

                                          8
alternative remedy may be found based on the failure to object, unless the trial
court‘s actions effectively preclude a meaningful opportunity to object. In turn,
we conclude that, by impliedly consenting to the alternative remedy, the
complaining party waives the right to the default remedy of quashing the jury
venire.
          In order to decide whether defense counsel assented to the court‘s remedy
of reseating the improperly discharged juror here, we review in detail the
proceedings that both preceded and followed the court‘s granting of defendant‘s
Batson-Wheeler motion with regard to Prospective Juror No. 2473.
          During jury selection, the prosecutor exercised his eleventh peremptory
challenge, against Prospective Juror No. 2473. Defense counsel asked ―for a side
bar after [Juror No. 2473] leaves.‖ The trial court then asked Prospective Juror
No. 2473 to ―remain in [her] seat for a moment.‖ At the bench and out of the
jury‘s hearing, defense counsel stated that he was ―bringing a Wheeler motion
based on the fact that [Prospective Juror No. 2473 is] part of an identifiable group‖
and that there appeared to be no race-neutral ―basis‖ to remove her from the jury.
Defense counsel also noted that ―this is the second African-American within the
last few challenges [the prosecution] has tried to take off.‖ The trial court
commented that Juror No. 2473‘s responses to questions had been ―very neutral,‖
and then asked the prosecutor for ―[his] thoughts.‖ The prosecutor replied that he
had ―been watching her‖ and ―didn‘t find her to be as engaging.‖ He found her to
be ―kind of quiet‖ and ―tuned out,‖ and he ―wanted somebody who is a little bit
more . . . engaging.‖
          The trial court concluded the prosecutor did not have a race-neutral
justification for the peremptory challenge, based on the ―lack of questioning‖ and
the fact that the court had not ―notice[d] anything [about] her body language.‖
The court ruled that it was going to disallow the challenge. It then ordered that the

                                            9
juror remain seated. The prosecutor responded, ―Okay.‖ The court then told the
prosecutor, ―If you would like to exercise a challenge to another juror, you may.
And we will continue the process.‖ The prosecutor again replied, ―Okay‖ and the
court said ―All right.‖
       Defense counsel did not ask that the venire be dismissed, nor did he express
dissatisfaction with the trial court‘s remedy. Instead, he and the prosecutor turned
their attention to the next juror in the venire. Defense counsel asked the
prosecutor whether he would ―challenge her,‖ adding, ―We can talk about that, if
you challenge her,‖ and asking the prosecutor to ―[t]hink about it.‖ The
prosecutor then passed the jury, accepting the panel as currently constituted.
Defense counsel next thanked and excused a different juror, and jury selection
continued with Juror No. 2473, the challenged juror, still seated.
       The trial court next conducted its own voir dire of several prospective
jurors. After the prosecutor and both defense attorneys passed the jury for cause
and the defense attorneys chose not to exercise any peremptory challenges, the
prosecutor excused a male prospective juror, Juror No. 2149. Another prospective
juror, Juror 6931, took the excused juror‘s seat. After both defense counsel
accepted the panel as currently constituted, the prosecutor announced that he
would like to thank and excuse Juror No. 0207. Defense counsel then said, ―Your
honor, I’d ask that she remain while we have a sidebar.‖ (Italics added.)
       At the bench, defense counsel brought a second Batson-Wheeler motion
based on the prosecutor‘s use of his peremptory challenge on another African-
American, Prospective Juror No. 0207. The trial court indicated its belief that
defense counsel had not established a prima facie case, but even if the defense had
done so, the prosecutor had several legitimate race-neutral justifications for
exercising this peremptory challenge. In denying the Batson-Wheeler motion as to
Prospective Juror No. 0207, the trial court told defense counsel, ―Your request to

                                         10
have this juror remain seated is denied.‖ (Italics added.) Defense counsel offered
no comment or clarification in response.
       We infer defendant‘s consent to the trial court‘s discretionary decision to
order a remedy short of outright dismissal of the remaining jury venire based on
his counsel‘s failure to object to the reseating of Juror No. 2473. After
defendant‘s Wheeler motion was granted, the trial court proposed the alternative
remedy of reseating Juror No. 2473 at a sidebar conference after asking the
prospective juror to remain seated. Defense counsel was given a meaningful
opportunity to object to the alternative remedy at that time but failed to do so.
       We decline defendant‘s invitation to speculate that his counsel‘s silence
may have signified he was unaware of defendant‘s right to quash the venire. ―We
assume that counsel knew the law as it stood at the time of the trial.‖ (People v.
Odom (1969) 71 Cal.2d 709, 717.) Here, defense counsel, having cited Wheeler in
arguing that the prosecution had improperly discharged Juror No. 2473 based on
race, was familiar with the default remedy of quashing the entire jury venire set
forth in that opinion. (Wheeler, supra, 22 Cal.3d at p. 282.) Subsequently, when
defense counsel made his second Batson-Wheeler motion, he requested that that
discharged juror remain seated in the event his motion was granted, and the trial
court highlighted counsel‘s preference for this remedy when it referred to the
second Batson-Wheeler motion as defense counsel‘s ―request to have this
[discharged] juror remain seated.‖ Defense counsel‘s request that Juror No. 0207
remain seated while his motion was argued at a sidebar conference indicates that
counsel understood the available alternative remedies, and we can infer that
counsel would have objected had he wanted a different remedy on the prior
occasion.
       Accordingly, we conclude that defense counsel‘s consent to the alternative
remedy of reseating the improperly discharged juror can be implied from his

                                          11
failure to object to the proposed remedy. (Toro, supra, 47 Cal.3d at pp. 976-977.)
As noted above, by impliedly consenting to the alternative remedy, defense
counsel waived the right to the default remedy of dismissing the jurors already
selected and quashing the remaining jury venire.
                               III. DISPOSITION
       The judgment of the Court of Appeal is reversed, and the matter is
remanded to that court for further proceedings consistent with this opinion.

                                                        CHIN, J.

WE CONCUR:

CANTIL-SAKAUYE, C.J.
BAXTER, J.
CORRIGAN, J.
LIU, J.




                                        12
                  CONCURRING OPINION BY BAXTER, J.

       I agree fully with the majority‘s reasoning and result on the narrow
questions framed for our review. I write separately to highlight an issue presented
by the particular circumstances of this case, but not offered for our consideration
by the parties. In my view, a strong argument arises that, on the facts before us,
there would have been no basis to quash the venire and restart jury selection even
if defendant had sought to impose such a procedure.
       As the majority explains, People v. Wheeler (1978) 22 Cal.3d 258 held that
if a party in a criminal case shows the opponent has used peremptory challenges
for the purpose of excluding members of a ―cognizable group‖ from the jury, ―the
court must then conclude that the jury as constituted fails to comply with the
representative cross-section requirement.‖ The court must therefore ―dismiss the
jurors thus far selected‖ and ―must quash any remaining venire,‖ because the
complaining party ―is entitled to a random draw from an entire venire — not one
that has been partially or totally stripped of members of a cognizable group by the
improper use of peremptory challenges. Upon such dismissal, a different venire
shall be drawn and the jury selection process may begin anew.‖ (Id., at p. 282.)
       Later, in Batson v. Kentucky (1986) 476 U.S. 79, the United States Supreme
Court similarly ruled that the racially discriminatory use of peremptory challenges
in a criminal case violates the federal Constitution. However, the high court
expressly declined to specify how the states should implement its ruling, leaving



                                          1
to them the remedies to be employed. (Batson, at p. 99, fn. 24.) Still later, in
People v. Willis (2002) 27 Cal.4th 811, we acknowledged that the trial court has
discretion to allow jury selection from the current venire to continue, but only
―with the assent‖ of the successful Wheeler/Batson complainant. (Willis, at
p. 821.)
       Asked to do nothing else, the majority understandably applies the well-
established assumption that a successful Wheeler/Batson complainant may either
(1) insist on quashing the venire or (2) ―assent,‖ through counsel, to a narrower
solution. The majority‘s analysis of what may constitute such ―assent‖ is
persuasive. However, I question why the complainant should have any right at all
to quash the venire where, as here, only one prospective juror is the subject of the
Wheeler/Batson challenge, and it is possible to reseat that very same juror as soon
as the Wheeler/Batson motion is granted. I see no logic or wisdom in a ―right to
quash‖ rule as applied to facts like those before us in the instant matter.
       I understand the problem that arises when, as perhaps more commonly
occurs, a Wheeler/Batson motion is granted only after a pattern of discriminatory
excusals has emerged. In this latter situation, several prospective jurors
presumably will already have been wrongly dismissed and cannot be recalled. If
that has happened, the representative nature of the venire has been irreparably
distorted, and the status quo ante cannot be restored. Thus, there may be no fair
alternative but to quash the venire and start over.
       But in a case like this one, where the Wheeler/Batson motion is focused on
the excusal of only one prospective juror, there is no attempt to show that other
members of a cognizable group have already been improperly excused, and the
juror in question has not been released from the courtroom, there may be no
reason to cling to the notion that the venire must be quashed unless the
complainant agrees otherwise. Under these circumstances, the notion that the

                                           2
venire has been irreparably tainted by improper excusals is questionable. Rather,
it seems likely the status quo ante can be restored simply by reseating the single
juror against whom the invalid peremptory challenge was exercised. By this
means, the court can ensure that the jury venire has not ―been partially or totally
stripped of members of a cognizable group by the improper use of peremptory
challenges.‖ (Wheeler, supra, 22 Cal.3d at p. 282.)
       For these reasons, justice may well not require that a successful
Wheeler/Batson complainant in such a case have the absolute right to quash the
venire and restart jury selection from scratch with an entirely new panel of
prospective jurors. Applied rigidly to the single-excusal situation, such a rule risks
wasting judicial resources, squandering the jury pool, and contributing to the
potential for delay and game-playing that, in Willis, prompted us to modify
Wheeler‘s absolute insistence on this extreme remedy.
       Neither Wheeler nor Willis addressed what remedies are available, as a
matter of right, under the particular ―single juror‖ situation presented by the facts
of this case. It seems appropriate to consider this issue in a case where it is
directly presented, and I am prepared to do so.


                                                  BAXTER, J.
I CONCUR:

CANTIL-SAKAUYE, C. J.




                                          3
                CONCURRING OPINION BY WERDEGAR, J.



       Addressing the reprehensible practice of a party in a criminal case
exercising a peremptory challenge to disqualify a citizen from jury service simply
because of the individual‘s race, the United States Supreme Court in 1986
outlawed the practice as violative of the Fourteenth Amendment‘s ban on racial
discrimination. (Batson v. Kentucky (1986) 476 U.S. 79 (Batson).) The high court
later extended the sweep of the Batson rule, prohibiting the removal of a
prospective juror due to the juror‘s gender (J. E. B. v. Alabama ex rel. T. B. (1994)
511 U.S. 127) or ethnic origin (Hernandez v. New York (1991) 500 U.S. 352), and
applying Batson‘s holding to civil trials as well (Edmonson v. Leesville Concrete
Co. (1991) 500 U.S. 614, 630-631).
       California paved the road to Batson and its progeny eight years earlier in
this court‘s seminal Wheeler decision. (People v. Wheeler (1978) 22 Cal.3d 258
(Wheeler).) Relying in that case on article I, section 16 of the California
Constitution, which guarantees the right to a jury trial and, by extension, an
impartial jury drawn from a representative cross-section of the community
(Wheeler, at pp. 265-266, 287), this court held for the first time that the exercise of
a peremptory challenge to remove a prospective juror based on the juror‘s race
was unconstitutional. Speaking to the cross-section requirement, Wheeler
explained that ―in our heterogeneous society jurors will inevitably belong to
diverse and often overlapping groups defined by race, religion, ethnic or national


                                          1
origin, sex, age, education, occupation, economic condition, place of residence,
and political affiliation; that it is unrealistic to expect jurors to be devoid of
opinions, preconceptions, or even deep-rooted biases derived from their life
experiences in such groups; and hence that the only practical way to achieve an
overall impartiality is to encourage the representation of a variety of such groups
on the jury so that the respective biases of their members, to the extent they are
antagonistic, will tend to cancel each other out.‖ (Id. at pp. 266-267.)
       We further explained in Wheeler 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—we may call this
‗group bias‘—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. That purpose . . . is to
achieve an overall impartiality by allowing the interaction of the diverse beliefs
and values the jurors bring from their group experiences.‖ (Wheeler, supra, 22
Cal.3d at p. 276.) Later cases clarified that ―the unconstitutional exclusion of even
a single juror on improper grounds of racial or group bias requires the
commencement of jury selection anew, or reversal of the judgment where such
error is established on appeal.‖ (People v. Reynoso (2003) 31 Cal.4th 903, 927,
fn. 8; People v. Fuentes (1991) 54 Cal.3d 707, 716, fn. 4.)
       Unlike the high court in Batson, which declined to address the issue of the
appropriate remedy for a violation,1 our Wheeler decision settled the issue for our

1       On the subject of the appropriate remedy for a violation, the Batson court
―express[ed] no view on whether it is more appropriate in a particular case, upon a
finding of discrimination against black jurors, 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
                                                             (Footnote continued on next page.)


                                            2
state courts. After much discussion, the Wheeler court held that the trial court,
after finding a cross-section violation occasioned by the discriminatory use of a
peremptory challenge, ―must dismiss the jurors thus far selected. So too it must
quash any remaining venire, since the complaining party is entitled to a random
draw from an entire venire—not one that has been partially or totally stripped of
members of a cognizable group by the improper use of peremptory challenges.
Upon such dismissal a different venire shall be drawn and the jury selection
process may begin anew.‖ (Wheeler, supra, 22 Cal.3d at p. 282.) As the majority
acknowledges, Wheeler‘s sanction is still the default remedy (maj. opn., ante, at
p. 11) and was the only sanction for more than 20 years.
        Then, in 2002, we recognized ―the need for the availability of some
discretionary remedy [for a Wheeler/Batson violation] short of dismissal of the
remaining jury venire.‖ (People v. Willis (2002) 27 Cal.4th 811, 818 (Willis).)
Although the vast majority of Wheeler/Batson claims we see on appeal involve a
criminal defendant complaining about a prosecutor‘s exercise of peremptory
challenges, Willis presented the unusual situation in which a defense counsel was
found to be striking White males from the jury in hopes of provoking a mistrial
and obtaining a fresh venire. We recognized in Willis that Wheeler‘s ―remedy of
mistrial and dismissal of the venire [would] accomplish nothing more than to
reward [the defendant‘s] 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


(Footnote continued from previous page.)

the improperly challenged jurors reinstated on the venire, [citation].‖ (Batson,
supra, 476 U.S. at p. 100, fn. 24.)




                                           3
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.‖ (Willis, at p. 821.)
       Although Willis recognized some flexibility in choosing the remedy for a
Wheeler violation, we stressed that a party‘s ―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. (Wheeler, supra, 22 Cal.3d at p. 282.) 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.)
       As Willis recognized, the choice of an appropriate remedy is a tactical one
belonging to the aggrieved party.2 Depending on how jury selection has
proceeded, counsel may wish to opt for Wheeler‘s default remedy (quash the
venire and begin jury selection anew), to have the offending party admonished but
then continue with jury selection without reseating the challenged juror (the
remedy in Willis),3 or simply to continue jury selection after the challenged


2     I concur in the majority‘s holding that counsel can choose the appropriate
remedy for a Wheeler violation and that a personal waiver from defendant is
unnecessary. (Maj. opn., ante, at p. 7.)
3       In Willis, following the trial court‘s decision to sustain the prosecutor‘s
Wheeler motion, ―[j]ury selection resumed‖ but ―[t]he court did not excuse the
venire or reseat any of the improperly excused jurors.‖ (Willis, supra, 27 Cal.4th
at p. 816.)



                                           4
prospective juror is reseated (the remedy in the instant case). Because of the
strategic nature of the decision, for the trial court to impose one remedy or another
absent counsel‘s waiver or consent would be improper. (Willis, supra, 27 Cal.4th
at p. 823 [―We stress that such waiver or consent is a prerequisite to the use of
such alternative remedies or sanctions . . . .‖].)
       ―Waiver,‖ of course, suggests an express relinquishment or abandonment of
a known right or privilege. (In re Sheena K. (2007) 40 Cal.4th 875, 880, fn. 1; In
re S.B. (2004) 32 Cal.4th 1287, 1293, fn. 2.) ―[T]he terms ‗waiver‘ and
‗forfeiture‘ have long been used interchangeably. The United States Supreme
Court recently observed, however: ‗Waiver is different from forfeiture. Whereas
forfeiture is the failure to make the timely assertion of a right, waiver is the
―intentional relinquishment or abandonment of a known right.‖ [Citations.]‘
(United States v. Olano [(1993) 507 U.S. 725, 733].)‖ (People v. Saunders (1993)
5 Cal.4th 580, 590, fn. 6, quoted with approval in People v. McKinnon (2011) 52
Cal.4th 610, 636, fn. 16.)
       No such express relinquishment of a known right appears on the record in
this case. The majority recognizes as much, for it holds that defendant ―impliedly
consent[ed]‖ to the alternative remedy of reseating the challenged juror in lieu of
quashing the venire (maj. opn., ante, at p. 8, italics added), because he ―fail[ed] to
object to the trial court‘s proposed alternative remedy when the opportunity to do
so [arose]‖ (ibid.). But defendant‘s asserted implied consent sounds less like a
waiver than a standard forfeiture of an issue by failing to object at trial. Search as
one might, no evidence appears that counsel expressly relinquished a known right
or privilege.
       Although the majority cites three authorities in support of its implied
waiver rationale, none supports its holding because each involved facts strongly
suggesting that either defendant or defense counsel made a knowing choice. In

                                            5
Barsamyan v. Appellate Division of Superior Court (2008) 44 Cal.4th 960, 969-
970, counsel represented two unrelated defendants and affirmatively agreed that
one defendant could be sent out for trial, necessarily agreeing (albeit tacitly) to
waive the speedy trial rights of the second defendant, as counsel could not
represent both simultaneously in different trials. In People v. Gutierrez (2003) 29
Cal.4th 1196, 1206, the court held the defendant waived his right to be present at
trial by his affirmative refusal to exit his cell. In People v. Toro (1989) 47 Cal.3d
966, the defendant contended the trial court violated his rights when it instructed
the jury on lesser related crimes. The record in that case showed the trial court
conferred with defense counsel, listed the instructions it intended to give (which
included instructions on lesser related offenses), and told counsel it intended to
give instructions on the list ― ‗absent any objection.‘ ‖ (Id. at p. 977.) Despite
such prompting, defense counsel remained silent. Needless to say, no such
prompting occurred here.
       By too easily finding that counsel made a tacit choice of remedy here, the
majority runs a real risk of diluting the power of the historic Wheeler/Batson rule.
Indeed, one can trace the journey of the jurisprudence in this state from
(1) Wheeler, supra, 22 Cal.3d 258, where the sole remedy was quashing the
venire, to (2) Willis, supra, 27 Cal.4th 811, where this court—on unusual facts—
permitted a lesser remedy in the trial court‘s discretion if counsel waived the
Wheeler remedy, to (3) this case, where despite averring that Wheeler provides the
―default remedy,‖ the majority finds counsel impliedly waived the Wheeler
remedy by his ―passive concession‖ (maj. opn., ante, at p. 8). The rule in this case
seems essentially equivalent to one in which the wronged party gets Willis‘s
alternative remedy for a Wheeler violation unless he or she objects. Indeed, two
members of this court would apparently go further, finding a ―strong argument‖
supporting the notion that a trial court could choose not to quash the venire even if

                                           6
a defendant elected that option as his or her chosen remedy for a Wheeler
violation. (Conc. opn. of Baxter, J., ante, at p. 1, joined by Cantil-Sakauye, C. J.)
Will the next case in this line find this court adopting a rule that the trial court
itself can, in its discretion and over counsel’s objection, select the remedy for a
successful Wheeler/Batson motion? And the next case perhaps abolish the
Wheeler remedy entirely as unnecessary? I am reluctant to join in the erosion of
one of the important milestones in this court‘s jurisprudence.
       That the remedy provided by Wheeler (and applicable to Batson motions as
well) may prove disadvantageous to the offending party, and inconvenient to the
trial court, is true, but we have no evidence before us that Wheeler‘s default
remedy has proven impractical or unfair. The seriousness of quashing the venire
and restarting jury selection from a new panel no doubt provides an incentive to
parties not to approach, let alone transgress, the racial, gender, or ethnic origin line
when selecting jurors, for fear of having to start jury selection from scratch. So
viewed, the Wheeler remedy of quashing the venire serves an important function
aside from making the wronged party whole; it exerts a kind of gravitational pull
on the parties, making them identify and confront their otherwise invisible biases
and influencing them to avoid allowing such improper considerations to affect
their judgment when selecting a jury. By providing an incentive to refrain from
relying on group bias during jury selection, the Wheeler remedy thus serves to
vindicate the other purposes of the representative cross-section rule aside from
ensuring juror impartiality: ―[T]he representative cross-section rule also serves
other essential functions in our society, such as legitimating the judgments of the
courts, promoting citizen participation in government, and preventing further
stigmatizing of minority groups.‖ (Wheeler, supra, 22 Cal.3d at p. 267, fn. 6.)
       I joined the Willis majority, and I continue to agree that, on the unusual
facts in that case, the court was correct to permit an alternative remedy for the

                                            7
Wheeler violation. No such unusual facts are present in this case, however, nor do
I join the majority‘s unwarranted extension of Willis. I would instead hold that
imposition of a remedy other than that provided in Wheeler may be imposed only
upon an express and knowing waiver by counsel on the record.
                                    CONCLUSION
       Although I conclude the trial court, after sustaining defendant‘s Wheeler
motion, was wrong to continue with jury selection in the absence of counsel‘s
express consent to forgo the default remedy of quashing the venire, this is not a
case in which the trial court failed to give any remedy at all for the violation; in
such a case, reversal would be required. Instead, because the question of the
appropriate remedy for a Wheeler violation is one of state law only (Batson, supra,
476 U.S. at pp. 99-100, fn. 24), and the trial court both sustained defendant‘s
Wheeler motion and afforded him a remedy for the error, we apply the standard of
review set forth in article VI, section 13 of the California Constitution: ―No
judgment shall be set aside, or new trial granted, in any cause, . . . for any error as
to any matter of procedure, unless, after an examination of the entire cause, . . . the
court shall be of the opinion that the error complained of has resulted in a
miscarriage of justice.‖ As we can but assume the jurors eventually selected were
fair and impartial, no reasonable probability exists that defendant Mata would
have achieved a more favorable result in his trial had the trial court quashed the
venire and begun jury selection anew. (People v. Watson (1956) 46 Cal.2d 818,
836.) Accordingly, while I do not agree with the majority‘s analysis, I concur in
its conclusion to reverse the decision of the Court of Appeal.

                                                   WERDEGAR, J.
I CONCUR:
KENNARD, J.



                                           8
                     CONCURRING OPINION BY LIU, J.



       Justice Werdegar‘s concurring opinion raises important concerns, and I
agree that courts must be vigilant not to adopt remedial rules that erode the
substance of the constitutional right to a jury selected free of improper
discrimination. Further, I agree with Justice Werdegar that quashing the venire,
though strong medicine, properly remains the default remedy because of the
incentive it gives the parties to affirmatively examine and avoid the possible
influence of conscious or unconscious bias. But I join today‘s opinion because I
believe indications short of an express waiver can demonstrate a party‘s consent to
relinquish the right to the default remedy. We would confront a quite different
case if a trial court were to order the alternative remedy of reseating an improperly
struck juror over the defendant‘s objection or without giving the defendant a
meaningful opportunity to object.
                                                  LIU, J.




                                          1
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Mata
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 203 Cal.App.4th 898
Rehearing Granted

__________________________________________________________________________________

Opinion No. S201413
Date Filed: July 8, 2013
__________________________________________________________________________________

Court: Superior
County: Los Angeles
Judge: Norman J. Shapiro

__________________________________________________________________________________

Counsel:

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
601 Van Ness Avenue, Suite E-115
San Francisco, CA 94102
(415) 885-4451

Roberta L. Davis
Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
(213) 897-4920
