P.

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…

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.

In People v. Wheeler (1978) 22 Cal.3d 258 [ 148 Cal.Rptr. 890 , 583 P.2d 748 ] (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 p. 282.) However, in People v. Willis (2002) 27 Cal.4th 811 [ 118 Cal.Rptr.2d 301 , 43 P.3d 130 ] (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…

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 [ 148 Cal.Rptr. 890 , 583 P.2d 748 ] 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 . . . .” (Id. at p. 282.) 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…

Addressing the reprehensible practice of a party in a criminal case exercising a peremptory challenge to disqualify a *191 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 [ 90 L.Ed.2d 69 , 106 S.Ct. 1712 ] (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 [ 128 L.Ed.2d 89 , 114 S.Ct. 1419 ]) or ethnic origin (Hernandez v. New York (1991) 500 U.S. 352 [ 114 L.Ed.2d 395 , 111 S.Ct. 1859 ]), and applying Batson's holding to civil trials as well (Edmonson v. Leesville Concrete Co. (1991) 500 U.S. 614, 630-631 [ 114 L.Ed.2d 660 , 111 S.Ct. 2077 ]).

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 [ 148 Cal.Rptr. 890 , 583 P.2d 748 ] (Wheeler).) Relying in that case on article I, section 16 of the California Constitution, which guarantees the…