PEOPLE v. JONES

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Court of Appeal, Second District, Division 4, California.

The PEOPLE, Plaintiff and Respondent, v. Leon Dwight JONES, Defendant and Appellant.

Cr. 21156.

Decided: August 07, 1972

Richard S. Buckley, Public Defender, and Charles A. Gessler, Deputy Public Defender, for defendant and appellant. Evelle J. Younger, Atty. Gen., Herbert L. Ashby, Chief Asst. Atty. Gen.,—Crim. Div., William E. James, Asst. Atty. Gen.,—Appeals Section, Frederick R. Millar, Jr., and Robert F. Katz, Deputy Attys. Gen., for plaintiff and respondent.

Following a jury trial, defendant was convicted on three separate counts of selling marijuana,1 a felony, in violation of Health & Saf. Code § 11531. No finding was made regarding an alleged prior felony conviction. Defendant appeals, his chief ground being a contention that his challenge to the entire jury panel (Pen.Code §§ 1058–1060) should have been granted. The record shows appellant was tried and convicted in the Southwest District Branch of the Los Angeles County Superior Court, located in the City of Torrance. At the outset of trial and before any juror was interrogated or sworn, defendant presented and argued his written challenge to the entire jury panel. The challenge was not allowed, a jury was selected and sworn and found defendant guilty as earlier stated.

We consider defendant's chief contention. His challenge to the panel was based upon a stipulation wherein it was agreed that if defendant Jones were called and testified he would state, in essence, that he is a Negro and lives in that area of the City of Los Angeles described as the 77th Street precinct of the Los Angeles police department; that the crimes charged occurred therein; that he desires a panel to include residents of that area ‘who are familiar with clothing styles, and hair styles, including facial hair, worn by young men in the 77th Street area.’ It was stipulated that if the jury commissioner of Los Angeles County (Code Civ.Proc. § 204a) were called and testified, he would state that jurors are selected from a current list of registered voters and that no statistics of race are kept either by the registrar or by the commissioner; that jurors called to sit in the Southwest District are all drawn from within that district; that prospective jurors living in the 77th Street precinct area all serve in the Central District, not the Southwest District, and jurors drawn from the Central District live in the Central District; the 77th Street precinct was part of the Southwest District prior to March 3, 1969 but, by county ordinance No. 9743 made effective March 21, 1969, such precinct was transferred to the Central District; thereafter prospective jurors residing in that precinct were drawn for duty in the Central District in order to comply with Code Civ.Proc. § 206.2

It was further stipulated that on May 26, 1970, the presiding judge of the Los Angeles County Superior Court signed an order sending superior court cases arising in the 77th Street precinct to the Southwest District for trial, for the reason that there were not sufficient judges or courtrooms in the Central District to handle the volume of work; this situation was expected to be relieved in the Fall of 1972 with the opening of the new criminal courts building then under construction in the City of Los Angeles; and it was stipulated that 1970 census figures showed 240,000 people lived in the 77th Street precinct and, of these, 73 percent were Negro; the Southwest District had a population of approximately 700,000 of whom 7 percent were Negro; and if the two populations were merged in the Southwest District such district would be 23 percent Negro; the Negro population of the Central District was 31 percent according to the same census figures.

Appellant argues: (1) that he has the right to trial by a jury panel which does not systematically exclude all jurors from the ‘vicinage’ (i. e.: locality, neighborhood or vicinity, Webster's Seventh New Collegiate Dictionary) of the crime; (2) that the method of selecting the petit jury panel for the Southwest District resulted in exclusion of substantial numbers of Negroes; and (3) that he had a right to be tried in a court located in the area where the crime occurred.

Under the stipulated facts, appellant was tried in the Superior Court for Los Angeles County at its Southwest Branch Department, located in the City of Torrance. The crimes were allegedly committed in the City of Los Angeles in an area not geographically very distant from Torrance. However, in apportioning its business between districts and in setting boundaries for each branch district (there are 9 such: the East, Central, Northeast, North Central, Northwest, South, Southeast, Southwest and West districts) the Central or ‘downtown’ district was broadened to include the 77th Street precinct, taking it away from the Southwest District. Appellant contends he was thus deprived of a constitutional right to trial by jurors from the ‘vicinage,’ inasmuch as the crimes allegedly occurred within that precinct and he also lived there.

Were we concerned only with the satisfaction of provisions (Art. I, § 7) of our own state Constitution, precedent establishes the propriety of the jury panel here available, since ‘vicinage’ has been held to mean a jury panel drawn from within the ‘county.’ (People v. Prather, 134 Cal. 386, 66 P. 483 [1901], inferentially overruling People v. Powell, 87 Cal. 348, 25 P. 481 [1891]; People v. Richardson, 138 Cal.App. 404, 32 P.2d 433 [1934]; Matter of McDonald, 20 Cal.App. 641, 129 P. 957 [1912]. And in other states: Woosley v. Commonwealth, 293 S.W.2d 625, 626 [Ky.App., 1956]; Graham v. Beverly, 235 S.C. 222, 110 S.E.2d 923, 925 [1959]; Black's Law Dictionary, 4th ed., ‘vicinage.’) However, our concern here is with the federal Constitution, not with the State's, and particularly with that part of its Sixth Amendment reading: ‘In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law. . . .’ (And see: Act. III, § 2, cl. 3.) The Fourteenth Amendment extends these rights to state court jury trials. (Duncan v. Louisiana, 391 U.S. 145, 149, 88 S.Ct. 1444, 20 L.Ed.2d 491, 496 [1968].) It has been held that an ‘impartial jury’ means a representative one drawn from a cross-section of the community, the term ‘community’ being used in this sense as equivalent to ‘vicinage.’ These are fine words, to be sure, but not self-explanatory. The boundaries of such a ‘community’ or ‘vicinage’ are left undetermined by the words and there are recognized exceptions to the rule, as where formation of an impartial jury panel is impracticable. (Williams v. Florida, 399 U.S. 78, fn. 35, 90 S.Ct. 1893, 26 L.Ed.2d 446 [1970].)

We conclude that a jury drawn from anywhere within Los Angeles County satisfies the constitutional requirements of ‘vicinage.’ First, few if any counties are as populous or litigious as is Los Angeles County and they therefore require few, if any, branch courts. The Los Angeles County Superior Court is, of necessity, divided into geographical districts or branches in order to parcel out its business, but such branches were created mainly as a matter of convenience: to the litigants who, otherwise, would be required to travel to the county seat, and to prospective jurors, who, if jury panels were drawn county-wide, also would be required to travel considerable distances. It thus appears that districting is for administrative convenience.

Second, ‘vicinage’ cannot be so restrictively defined as to mean the ‘precise area’ of the crime. No definition of ‘vicinage’ would result but only the new problem of defining ‘area.’

Third, one must inquire why ‘vicinage’ is important at all. Seemingly, it arose as a requirement of English law at a time when communities were isolated by limited facilities of communication and transportation. No longer are the social mores and customs of a community developed in isolation, uninfluenced by the conduct and thinking of others which now may be learned about through the newspapers, or through radio, television and other facilities of communication, or from travel. Thus, a jury panel drawn from within a county should satisfy a need for ‘vicinage.’ The present case accordingly is thoroughly distinguishable from one heavily relied upon by appellant, Alvarado v. State, 486 P.2d 891 (Alaska, 1971), wherein that court specifically noted (p. 900): ‘We are faced here with the order of differences which distinguishes one culture from another.’ Appellant argues that, underlying the concept of a jury from the vicinity or locality, is the idea that people living there ‘possess certain unique local knowledge of that area.'3 No authority is cited for such concept. A more acceptable and likely reason is stated in Graham v. Beverly, supra, 110 S.E.2d at p. 925 wherein the court observes that a jury from the ‘vicinage’ is deemed better able to weigh the credibility of witnesses from that area. Applied to the facts here, we connot conceive how persons living in the 77th Street police precinct of the City of Los Angeles would, alone, possess such ability or insight.

Fourth, there remains the fact that no such singular abilities as mentioned in the last paragraph appear pertinent from the facts stipulated to by the parties. Thus, appellant would testify that he wanted prospective jurors drawn from that precinct because of their claimed familiarity with clothing and hair styles worn by young men in the precinct. Aside from the fact no necessary correlation seems to exist between such styles and credibility, there is no assertion that appellant or any prospective witness had adopted such distinctive attire or hair style.

In summary, we conclude that the fact persons living in the 77th Street precinct were to serve on juries in the Central, rather than the Southwest, District did not deprive appellant of his constitutional right to have jurors drawn from the ‘vicinage.’ (United States v. Florence, 456 F.2d 46 [4 Cir., 1972].)

Appellant's second argument is that exclusion of jurors residing in the 77th Street precinct from the panel deprived him of his constitutional right to an impartial jury, in that the area excluded contained a high percentage of Negroes and, as a Negro, he was entitled to their inclusion. As indicated by the stipulation, the combining of the 77th Street precinct with the Southwest District would result in a population approximating 940,000 persons of whom 23 percent would be Negro; without such merging, the Southwest District Negro population totaled 7 percent. It was stipulated that, when the presiding judge of the Los Angeles County Superior Court issued the order that cases arising in the 77th Street precinct should thereafter be tried in the Southwest Branch court, he gave no consideration to their proportionate Negro populations; he was concerned solely with the fact that the Central District had neither the judicial personnel nor courtroom facilities to handle such volume and that it would not have until a new criminal courts building was completed in the Fall of 1972.

We must bear in mind the constitutional right of an accused to a ‘speedy’ trial, a time limit which our Pen.Code § 1382 fixes at 60 days. Criminal cases arising from the 77th Street precinct apparently were so numerous, and the burden thereby placed on the court so great, as to deprive an accused of his right to a speedy trial in the Central District. Assignment of such cases to the Southwest Branch would be within the presiding judge's prerogative. However, the question remains whether he also should, in some fashion, have re-enlarged the Southwest District4 so that it would again include the 77th Street precinct and its prospective jurors or if, by failing to do so, appellant thereby was deprived of a fair trial before an impartial jury.

The stipulated fact that the presiding judge's motives were of the best is not decisive. Thus, as said in Glasser v. United States, 315 U.S. 60, 86, 62 S.Ct. 457, 472, 86 L.Ed. 680, 707 (1942): ‘But they [court officials] must not allow the desire for competent jurors to lead them into selections which do not comport with the concept of the jury as a cross-section of the community. . . . That the motives influencing such tendencies may be of the best must not blind us to the dangers of allowing any encroachment whatsoever on this essential right. Steps innocently taken may one by one lead to the irretrievable impairment of substantial liberties.’

However, it also is the rule that purposeful discrimination must appear unless gross exclusion of an identifiable class is shown (Carmical v. Craven, 457 F.2d 582 [9 Cir., 1971]), since it is neither possible nor practicable to reflect a correct apportionment of characteristics in a panel of prospective jurors. “Obviously the number of races and nationalities appearing in the ancestry of our citizens would make it impossible to meet a requirement of proportional representation.” (Swain v. Alabama, 380 U.S. 202, 208, 85 S.Ct. 824, 829, 13, L.Ed.2d 759, 766 [1965].) And as stated in Thiel v. Southern P. Co., 328 U.S. 217, 220, 66 S.Ct. 984, 985, 90 L.Ed. 1181, 1185 (1946): ‘This does not mean, of course, that every jury must contain representatives of all the economic, social, religious, racial, political and geographical groups of the community; frequently such complete representation would be impossible. But it does mean that prospective jurors shall be selected by court officials without systematic and intentional exclusion of any of these groups.’ (And see: People v. Carter, 56 Cal.2d 549, 569, 15 Cal.Rptr. 645, 364 P.2d 477 [1961].)

It is the panel, the master jury wheel, with which we are concerned and not with the individual juror. (United States v. Hyde, 448 F.2d 815, 824 [5 Cir., 1971].) In our case, there was no express showing of any studied attempt to exclude Negroes from the panels in the Southwest or any district. Residents of the 77th Street precinct were not deprived of the right to serve on juries and were, in fact, eligible to serve on Central District panels. (See: Peters v. Kiff, 407 U.S. 493, 92 S.Ct. 2163, 33 L.Ed.2d 83, [1972].) Accordingly, we look to the record to ascertain if gross discrimination appears or purposeful discrimination may be inferred. In Swain v. Alabama, supra, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759, the court observed that 26 percent of persons eligible for jury service in Talladega County were Negroes, but the panels contained only 10–15 percent Negroes, the court stating (pp. 208–209 of 380 U.S., p. 829 of 85 S.Ct. p. 766 of 13 L.Ed.2d): ‘We cannot say that purposeful discrimination based on race alone is satisfactorily proved by showing that an identifiable group in a community is underrepresented by as much as 10%. [Citation.] Here the commissioners denied that racial considerations entered into their selections of either their contacts in the community or the names of prospective jurors. There is no evidence that the commissioners applied different standards of qualifications to the Negro community than they did to the white community. Nor was there any meaningful attempt to demonstrate that the same proportion of Negroes qualified under the standards being administered by the commissioners. It is not clear from the record that the commissioners even knew how many Negroes were in their respective areas, or on the jury roll or on the venires drawn from the jury box. The overall percentage disparity has been small, and reflects no studied attempt to include or exclude a specified number of Negroes. Undoubtedly the selection of prospective jurors was somewhat haphazard and little effort was made to ensure that all groups in the community were fully represented. But an imperfect system is not equivalent to purposeful discrimination based on race. [Fn. 5 omitted.] We do not think that the burden of proof was carried by petitioner in this case.’

Appellant refers us to Turner v. Fouche, 396 U.S. 346, 90 S.Ct. 532, 24 L.Ed.2d 567 (1970) and Sims v. Georgia, 389 U.S. 404, 88 S.Ct. 524, 19 L.Ed.2d 634 (1967). In each case, jury commissioners used lists which classified jury candidates by race. In Turner, the disparity between 37 percent of Negroes named to a county grand jury in Georgia as contrasted with 60 percent of Negroes in the county population was held sufficient to permit an inference of discrimination to be drawn. In Sims, a prima facie case was held to be made out where Negroes were shown to constitute 24.4 percent of the tax list used but only 9.8 percent were drawn for the trial jury panel. These cases are distinguishable on several grounds at least: they relate to jury panels drawn for an entire county; the lists used specified which names were those of whites and which those of Negroes; the statistical contrasts are pronounced and more importantly relate to those persons actually called for jury service. (Compare: People v. Newton, 8 Cal.App.3d 359, 389–391, 87 Cal.Rptr. 394 [1970].)

If the population of the 77th Street precinct were added to that of the Southwest District, such would total 940,000 persons of whom 23 percent would be Negro, contrasted with a 7 percent Negro population in that district if not added, a difference of 16 percent. First to be noted, however, is the fact that 77th Street precinct residents were not deprived of the right to serve on jury panels; they were eligible to serve in the Central District. Additionally, the census figures do not disclose what percentage of persons are qualified as jurors (Code Civ.Proc. §§ 198 et seq.), so that inclusion in the census of ineligible persons, such as children, well may result in a higher percentage of Negroes than would be found in a jury panel. The stipulation did not supply the missing information, namely, the percentage of jury-eligible Negroes. Jurors' names were selected from voters' registration lists, a proper source, (United States v. Bowe, 360 F.2d 1, 7 [2 Cir., 1966], cert. denied, 385 U.S. 961, 87 S.Ct. 401, 17 L.Ed.2d 306 [1966]; People v. Gibbs, 12 Cal.App.3d 526, 539, 90 Cal.Rptr. 866 [1970]) and we additionally are not told the percentages of whites and blacks actually drawn for jury service.

All in all, we conclude appellant has not shown, directly or by inference, any purposeful exclusion of his race from jury panels in the Southwest District such as to deprive him of his constitutional right to trial by an impartial jury.

Appellant's third argument is that he had a right to be tried by a court located in the area where the crime occurred. No authority is cited for the proposition that trial in one branch of a county court, as contrasted with trial in another branch of that same court, is either a constitutional or statutory right. His argument rests chiefly on his claim that venue statutes are applicable, but neither by the terms of such statutes nor by precedent has he established any such similarity. The argument is rejected.

The information charged appellant with three separate offenses, occurring on February 17, March 10 and March 24, 1970. A police officer assigned to a narcotics detail testified that he had purchased marijuana from defendant on these three dates. Defendant's only defense was an alibi relating to the last date, only. He contended he had gone to Texas on March 20, 1970, and was still there on March 24th, staying in Texas a matter of two or three weeks in all. As his last contention, appellant argues that, under the foregoing circumstances, the trial court erred in reading to the jury CALJIC instruction No. 4.71.5

We conclude the court did not err in giving this instruction. The court also read to the jury CALJIC instructions Nos. 4.50 and 17.02.6 The People's evidence fixed the date of the third sale as March 24th to the exclusion of any other date. Defendant's alibi set up a direct conflict with that date. The jury could not have been misled into believing any date other than March 24th was involved and had only to determine whether to believe the People's evidence of a sale that date or to believe the alibi of the defense. There was no basis upon which they could have been confused regarding a narcotics sale occurring ‘on or about’ that date.

The judgment is affirmed.

FOOTNOTES

1.  These were counts I, II and IV of an information. Count III was dismissed on defendant's motion.

2.  Code Civ.Proc. § 206 reads in part: ‘In a county of the first class [Los Angeles County, Gov.Code § 28022], where sessions of the superior court are held in cities other than the county seat, the names for such list to serve in the city shall all be selected from the district in which the city is located and no names from such district shall be selected to serve as trial jurors for any other part of the county, other than in the county seat.’

3.  Appellant argues that local residents ‘possess certain bits of local knowledge’ which better enables them to evaluate ‘the significance of fact situations.’ This smacks of a claimed right to judicially notice matters not authorized by our Evidence Code. (See sections 450 et seq.)

4.  The county board of supervisors, not the presiding judge, is the only body authorized by statute to fix branch court boundaries. (Gov.Code §§ 69641, 69643.)

5.  Instruction No. 4.71 reads: ‘When, as in this case, it is alleged that the crime charged was committed ‘on or about’ a certain date, if the jury finds that the crime was committed it is not necessary that the proof show that it was committed on that precise date; it is sufficient if the proof shows that the crime was committed on or about that date.'

6.  Instruction No. 17.02 reads: ‘Each count charges a separate and distinct offense. You must decide each count separately on the evidence and the law applicable to it, uninfluenced by your decision as to any other count. The defendant may be convicted or acquitted on any or all of the offenses charged. Your finding as to each count must be stated in a separate verdict.’Instruction No. 4.50 reads: ‘The defendant in this case has introduced evidence tending to show that he was not present at the time and place of the commission of the alleged offense for which he is here on trial. If, after a consideration of all the evidence, you have a reasonable doubt that the defendant was present at the time the crime was committed, he is entitled to an acquittal.’

DUNN, Associate Justice.

JEFFERSON, Acting P. J., and KINGSLEY, J., concur.

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