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Name: People v. Overby
Case #: B166718
Court: CA Court of Appeal
District 2 DCA
Division: 7
Opinion Date: 06/21/2004
Subsequent History: Rhg. GRANTED & Depubl. 7/21/04; subseq. opn. at 124 CA4th 1237

During jury selection in appellant’s trial for for attempted murder and other offenses, the prosecutor exercised a peremptory challenge to excuse a black juror. Defense counsel asked that the juror remain in the courtroom, and then made a Batson/Wheeler motion. The motion was granted, the juror reseated, and voir dire resumed. Defense counsel made no objection to the court’s remedy. The prosecutor’s motion for reconsideration was denied. On appeal, appellant contended that he did not consent to the court’s proposed remedy or waive his right to a dismissal of the panel. The appellate court rejected the argument. Appellant’s counsel implicitly approved the reseating of the challenged juror. Although the implied consent to the alternate remedy may be discerned from this record, it would be preferable for the trial court to take an express waiver in the future.