Wheeler Motion During Alternate Jurors Selection
People v. Gore (1993) 18 Cal.App.4th 692, involved a Wheeler motion made after the main panel was sworn, but during the selection of alternate jurors.
During the main panel selection, the prosecution challenged the only four Hispanic jurors. After the panel was sworn, during the selection of alternates, the prosecution again challenged the only three Hispanic jurors. Defendant made a Wheeler motion, contending the prosecution was systematically excluding Hispanic jurors, pointing to the exclusion of all seven Hispanic jurors. (Gore, supra, 18 Cal.App.4that p. 697.)
The trial court found the motion to be untimely as to the main jury panel, but found that the defendant had made a prima facie case as to the alternate jurors, and asked the prosecution to explain only its striking of the three alternate jurors. (Id. at p. 698.) The court noted it was hard for it not to take into consideration the striking of the four main panel jurors; however, with respect to the alternates, the court found the explanations satisfactory. (Id. at pp. 698-699.)
On appeal, the court held that a Wheeler motion is timely if it is made before jury selection is completed, that is, before both jurors and alternates are selected and sworn. (Gore, supra, 18 Cal.App.4th at p. 703.)
"A Wheeler motion is one which challenges the selection of the jury. When the trial court rules on a Wheeler motion, it should look to the totality of the relevant facts and should consider all the relevant circumstances. The trial court here applied the rule that once the jury is sworn a Wheeler challenge cannot be made to the already sworn jurors. This rule did not envision circumstances, such as those present here, where the pattern of challenging Hispanic prospective jurors permeated the selection of the 12 jurors and alternates and the Wheeler motion is brought before jury selection is complete." The pattern of systematic exclusion involved both the jurors and the alternates; therefore, Wheeler inquiry should not have been limited to alternates only. (Id. at p. 705.)
People v. Avila (2006) 38 Cal.4th 491 found that that "Gore merely recognized, correctly, that a 'pattern of systematic exclusion' of a particular cognizable group from the venire raises an inference of purposeful discrimination, and that when such systematic exclusion occurs, everyone (the defendant, the excluded jurors, and the community) is harmed 'because the public confidence in the fairness of our system of justice is undermined.'" (People v. Avila, supra, 38 Cal.4th at p. 549.)
Avila noted that Gore provided "little guidance" on the issue before it because the issue of whether prior preemptory challenges must be explained was not before the court. (Id. at p. 550.)