Rodriguez

In this murder case, the trial court falls into the ever too common sinkhole of Wheeler error committed while selecting alternate jurors during the last gasp of more than one month of voir dire proceedings. Under almost any conceivable set of circumstances, unless remedied by a dismissal of the entire jury panel, this slip would be legally unforgiveable resulting in per se reversible error. Based on the singular scenario of this case, we conclude the court’s error is a “trial error” thereby subjecting its effect to a harmless error analysis to be applied by the trial court. Whether the conviction is reinstated or a new trial granted depends upon the outcome of a hearing on remand to determine whether the prosecutor had racially neutral reasons for excusing two Hispanic jurors timely challenged by the defense counsel.

Procedural History

Following a preliminary hearing, Jose Rangel Rodriguez (defendant) was charged by information filed December 13, 1989, in the Tulare County Superior Court with four felony counts: murder (Pen. Code, § 187, subd. (a)), robbery (§ 211), forcible rape (former § 261, subd. (2)), and burglary (§ 459). With respect to the murder count, the…