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People v. Rizo4/24/2002
ion.] Thus, trial courts lack discretion to impose alternative procedures in the absence of consent or waiver by the complaining party." (Willis, supra, ___ Cal.4th at p. ___ [2002 WL 500628 at p. 9; 2002 Cal. LEXIS 2011 at pp. 26-27].)
There is no indication in this case that any of the defendants was willing to waive the remedy of dismissal of the venire, unless the court was willing to dismiss the charges outright, which as we have discussed it was not authorized to do. In fact, all indications are that the defendants wanted the venire dismissed. The court several times discussed with various defense counsel whether they wanted a mistrial and dismissal of the venire. Each time, counsel answered affirmatively, though sometimes stating they did so reluctantly.
Most significantly, the court commented before it dismissed the venire that no more African-American panelists were left. Since the objective of defendants' Wheeler/Batson motions was to prevent the prosecutor from depleting the panel of African-Americans, it would have made no sense for defendants to waive the remedy of dismissal of the venire and accept some less drastic alternative remedy. Therefore, under Willis, the court was required to impose exactly the remedy it did impose, granting of a mistrial and dismissal of the remaining venire. Thus, while in hindsight the court may have been mistaken in light of Willis if it believed it had no authority to grant any remedy other than mistrial and dismissal of the venire, defendants were not prejudiced as there is no indication they would have accepted any permissible alternative remedy in any event.
Finally, even if we concluded Willis authorizes a court to dismiss the charges as a remedy for a Wheeler/Batson violation, we would not find reversible error in the court's failure to grant that remedy in this case. This is because we do not concur in defendants' assertion that the prosecutor deliberately caused a mistrial. The court granted a mistrial after the prosecutor excused Juror D. Contrary to the trial court's view, the record shows there were reasonable race-neutral grounds for excusing Juror D. Her nephew had been convicted of a felony three or four years earlier and had served time in prison. Although she stated she felt he had been treated fairly, the prosecutor still could reasonably suspect she might favor the defense in a criminal case. For that reason, as well as for the reason that we do not believe dismissal of the charges is an authorized remedy for a Wheeler/Batson violation, we reject defendants' argument that the court should have dismissed the charges.
II. EVIDENTIARY ISSUES
A. Admission of Evidence of Prior Fights
Defendants contend the court erred in permitting the prosecution to introduce evidence of two fights in or about 1998, in which Salvador, Cesar, and Victor, among other participants, fought against Galvan or a group with which he was affiliated. One fight occurred at a soccer match and involved Salvador and Cesar. The other occurred at a wedding reception and involved Salvador and Victor. The court admitted the incidents to show defendants' motive for killing Galvan.
Defendants concede gang affiliation has been found to be sufficient to admit evidence of prior acts to show motive on the part of a gang member, even though he or she did not participate personally in the prior acts. However, they contend family affiliation, as in this case, is insufficient.
Case law does not support defendants' attempted distinction between gang affiliation and family affiliation. In People v. Lopez (1969) 1 Cal.App.3d 78, the court held it was not error to admit evidence that the victim's brothe
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