PEOPLE v. JARRETT (1984)

This petition by the prosecution seeks to secure full compliance with the opinion in People v. Wheeler (1978) 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748.   Rather than dismiss the jurors thus far selected and quash the remaining venire, the trial court proposed to seat a juror who had been challenged peremptorily by the prosecution.   We conclude that the trial court erred in taking such action.

We see no reason to recount the procedural history of this case or to explain the details of the defendant's challenge to the jury selection.   We note only that following jury voir dire and before selection of the jury, defendant advised the court that he would be making a “Wheeler” objection to any and all black jurors challenged by the prosecution.   Under People v. Wheeler, supra, 22 Cal.3d 258, 280, 148 Cal.Rptr. 890, 583 P.2d 748, if the defendant makes a timely challenge and presents a prima facie showing of systematic exclusion through peremptory challenges of a cognizable class of persons, the prosecution may be required to “satisfy the court that [it] exercised such peremptories on grounds that were reasonably relevant to the particular case on trial or its parties or witnesses․”  (Id., at p. 282, 148 Cal.Rptr. 890, 583 P.2d 748.)

During the jury selection process, the prosecutor challenged four black jurors out of a total of five who had been called to the jury box.   At defense request, the court required the prosecutor to give his reasons for each challenge.   The court accepted the reasons given for all except the fourth challenge.   As to that juror, the court “disallowed” the peremptory challenge and allowed the juror to serve.

The prosecutor moved for a mistrial in order to have the jury dismissed and a new jury selected.   The trial court denied the motion, but granted a short continuance to permit the prosecution to seek a writ from this court.   We issued a temporary stay of further proceedings.

 Issuance of a writ during the jury selection process is highly unusual.   However, we find it warranted in this case because there was a clear violation of Wheeler and there is no other satisfactory remedy.   Without writ relief, the prosecution will be compelled to proceed to trial with a juror improperly seated by the trial court.   We do not issue the writ to review the court's procedures in ruling on the “Wheeler” motion or to second-guess its evaluation of the showings by defense and prosecution on the “Wheeler” motion.   We are concerned only with the remedy imposed by the court.

Wheeler left no room for creativity in fashioning remedies.   The court stated directly:  “If the court finds that the burden of justification is not sustained as to any of the questioned peremptory challenges, the presumption of their validity is rebutted.   Accordingly, the court must then conclude that the jury as constituted fails to comply with the representative cross-section requirement, and it 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.”  (Id., at p. 282, 148 Cal.Rptr. 890, 583 P.2d 748, emphasis added.)   In an apparent attempt to block the argument that the Supreme Court had not foreclosed other penalties, the Wheeler court added in a footnote:  “Additional sanctions are proposed in the literature [citation], but we have no present grounds to believe that the above procedure will be ineffective to deter such abuses of the peremptory challenge.   If experience should prove otherwise, it will be time enough then to consider alternative penalties.”  (Id., at p. 282, fn. 29, 148 Cal.Rptr. 890, 583 P.2d 748.)

 Defendant, without supportive documentation, asserts that the Wheeler remedy is not adequate.   That argument is made to the wrong court.   Both the trial court and this intermediate appellate court are bound by the decision of the California Supreme Court.  (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937.)   A change in the prescribed remedy will have to be made by that court.

 We have reached our conclusion after full briefing by the parties.   The result is clear.   No purpose would be served by issuance of an alternative writ, which would merely delay proceedings in the trial court.   A peremptory writ in the first instance is proper.  (Code Civ.Proc., § 1088;  San Diego Wholesale Credit Men's Assn. v. Superior Court (1973) 35 Cal.App.3d 458, 465, 110 Cal.Rptr. 657;  Goodenough v. Superior Court (1971) 18 Cal.App.3d 692, 697, 96 Cal.Rptr. 165.)

 Let a peremptory writ of mandate issue directing the Santa Clara County Superior Court to dismiss the jurors thus far selected and quash the remaining venire so that the jury selection process may begin anew.

WHITE, Presiding Justice.

BARRY–DEAL and ANDERSON, JJ., concur.