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People v. Rizo4/24/2002
ld grant a mistrial. Defendants argue that, instead, the court should have dismissed the charges.
In People v. Willis (2002) ___ Cal.4th ___ [2002 WL 500628; 2002 Cal. LEXIS 2011] (Willis), the California Supreme Court held that granting a mistrial and starting over with a new panel is not the only proper remedy for a Wheeler/Batson violation. The court recognized that in some cases "mistrial and dismissal of the venire accomplish nothing more than to reward improper voir dire challenges and postpone trial." In other words, a party should not be able to get rid of a venire it does not like by deliberately violating Wheeler/Batson to force a mistrial. (Willis, supra, ___ Cal.4th at p. ___ [2002 WL 500628 at p. 7; 2002 Cal. LEXIS 2011 at p. 21].)
Instead, the trial court "should have the discretion to issue appropriate orders short of outright dismissal of 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. In the event improperly challenged jurors have been discharged, some cases have suggested that the court might allow the innocent party additional peremptory challenges. [Citations.]" (Willis, supra, ___ Cal.4th at p. ___ [2002 WL 500628 at p. 7; 2002 Cal. LEXIS 2011 at p. 21].)
Notably, the court in Willis did not list among the permissible "alternative procedures" for remedying a Wheeler/Batson violation the remedy defendants advocate here -- dismissing the charges outright. In fact, the only question before the Willis court was whether the procedure employed by the trial court -- declining to dismiss the remaining venire and instead imposing sanctions on the counsel who violated Wheeler/Batson -- was an acceptable alternative.
In addition, when the Willis court spoke of the permissible alternative remedies -- sanctions against counsel, reseating improperly excused jurors, and perhaps, granting extra peremptory challenges to the complaining party -- the court described the remedies as "appropriate orders short of outright dismissal of the remaining jury . . . ." (Willis, supra, ___ Cal.4th at p. ___ [2002 WL 500628 at p. 7; 2002 Cal. LEXIS 2011 at p. 21], italics added.) Outright dismissal of the charges would not be a remedy "short of outright dismissal of the remaining jury"; it would exceed that remedy.
Thus, all indications are that, even under Willis, the permissible remedies for a Wheeler/Batson violation do not include dismissal of the charges. That is the only remedy defendants contend on appeal the court should have imposed. We find nothing in Willis or elsewhere to authorize that remedy. Therefore, we find no basis for reversal in the court's failure to grant that remedy.
In the trial court, counsel for certain defendants did request that the court sanction the prosecutor. Counsel for one defendant also stated that "on occasion courts have considered recalling the excused blacks, but that has not yet been approved by the Court of Appeals or the Federal Courts, to my knowledge." However, none of the defendants requested these remedies as a substitute for dismissal of the venire.
The Willis court emphasized that a trial court should use remedies short of dismissing the venire only if the complaining party is willing to waive that remedy and accept a less drastic measure: "We stress that such 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. [Citat
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