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Name: People v. Albillar
Case #: B194358
Court: CA Court of Appeal
District 2 DCA
Division: 6
Opinion Date: 05/05/2008
Subsequent History: 8/13/08 rev. granted (S163905)

When a trial court grants a Wheeler-Batson motion because of the prosecution’s exercise of a race-based peremptory challenge, the court may fashion a remedy other than dismissal of the venire when the defense consents to or waives the issue. In the prosecution of defendants for rapes and gang offenses and enhancements, the trial court granted appellant’s Wheeler-Batson motion brought on the grounds that the prosecution’s peremptory challenge to a Hispanic juror was race-based. Rather than dismissing the venire, the court reseated the juror. Appellants never requested dismissal of the venire or objected to reseating of the improperly challenged juror. Although under Wheeler the sole remedy for error was dismissal of the remaining venire, the California Supreme Court has since sanctioned alternative remedies if the complaining party consented to the remedy or waived it. Here, with their silence, appellants impliedly consented to the reseating. The court also found no error in the denial of the motion for severance and bifurcation of the gang offense and enhancements as the evidence as to the rapes and gang matters was cross admissible.