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Court of Appeal, Fourth District, Division 1, California.

Lawrence M. ADAMS, Jury Commissioner County of San Diego, State of California, Petitioner, v. SUPERIOR COURT, etc., COUNTY OF SAN DIEGO, Respondent; Irving BEALE, Real Party in Interest.

No. 12668.

Decided: August 21, 1973

Robert G. Berrey, County Counsel, and Lloyd M. Harmon, Jr., Deputy County Counsel, Lan Diego, for petitioner. No appearance for respondent. Evelle J. Younger, Atty. Gen., Edward A. Hinz, Jr., Chief Asst. Atty. Gen., William E. James, Asst. Atty. Gen., A. Wells Petersen, and Jay M. Bloom, Deputy Attys. Gen., for petitioner as amicus curiae. Charles R. Khoury, Jr., La Jolla, for real party in interest.


Lawrence Adams, the San Diego County Jury Commissioner petitions for a writ compelling the superior court to vacate an order holding Code of Civil Procedure section 198 unconstitutional. The court made the ruling during a criminal trial, People v. Irving Beale, No. CR–27893.

Section 198 establishes a one-year residence requirement before a citizen may serve as a juror. The court's order directed Adams to furnish a jury for Beale's trial ‘from which no jurors have been excluded on residential grounds' other than the minimum residence requirements which apply to qualify to vote.1

In addition, the court's order extended beyond the case in which it was made. The court ordered Adams ‘to select names for and impanel juries for the trial of cases with residential duration requirements no longer . . . than those of electors for public office.’

In this proceeding, Adams meritoriously argues the order should be set aside for two reasons. First he claims in the criminal action, the superior court did not have jurisdiction over him and could not impose a personal obligation on him. Second he claims Section 198 is unconstitutional.

As to jurisdiction, in the criminal proceeding in which the order was made, only the People and Beale were parties (Pen.Code §§ 684 and 685.) Adams' appearance was solely as a witness. While the court has power to control the conduct of its ministerial officers, this power must be exercised in connection with a judicial proceeding before it (Code Civ.Proc., § 128, subd. 5; Witkin, Cal.Proc., 2d Ed. Vol. 1, Courts, §§ 117, 118, pp. 386–388). The court's power was limited to ruling in the case before it. In the context in which the issue was presented to the court, it was not empowered to make a rule which would apply generally to the trial of all future civil and criminal cases.

Turning to the merits, in the criminal action below, Beale contended and the court agreed Code of Civil procedure section 198 was unconstitutional because it excluded from the jury panel all those who had not resided in the county for one year. The Legislature, however, may impose some residency requirements before a citizen becomes eligible to serve as a juror. The requirement of one year residence is not unreasonable.

“The American tradition of trial by jury, considered in connection with either criminal or civil proceedings, necessarily contemplates an impartial jury drawn from a cross-section of the community.' . . . The principal question is whether the list as a whole is improperly weighted so as to prevent having a good cross section of the community for prospective jurors. [Citations.]' (People v. White, 43 Cal.2d 740, 749–750, 278 P.2d 9, 15.)

(See also Thiel v. Southern Pac. Co., 328 U.S. 217, 220, 66 S.Ct. 984, 90 S.Ed. 1181.)

A group united by common interests or characteristics, such as economic, social, religious, racial or political groups may not be excluded from consideration for jury duty (Thiel v. Southern Pac. Co., supra, 328 U.S. 217, 220, 66 S.Ct. 984, 985, 90 L.Ed. 1181).

‘When the existence of a distinct class is demonstrated, and it is further shown that the laws, as written or as applied, single out that class for different treatment not based on some reasonable classification, the guarantees of the Constitution have been violated.’ (Hernandez v. State of Texas, 347 U.S. 475, 487, 74 S.Ct. 667, 670, 98 L.Ed. 866.)

Beale's argument is predicated on his assumption ‘newcomers', i. e., those who have lived in the county less than one year, comprise a distinct class. In a limited sense, they do. It is possible to determine who has and who has not lived in the county for more than one year. But such a computation merely creates a statistical category without a social context.

Newcomers are not regarded as special, singled out or treated any differently by members of the community on account of the fact they have lived in the county a relatively short time (Cf. Hernandez v. State of Texas, supra). Newcomers themselves fit into all the other recognized bases of social differentiation, i. e., they are of both sexes, and come from all religious, racial, political, social and economic groups. The fact newcomers are not included on the jury rolls does not of itself make the jury unrepresentative or prevent the roll from reflecting a ‘[good] cross-section of the community.’ (See People v. Holland, 22 Cal.App.3d 530, 536, 99 Cal.Rptr. 523; People v. McDowell, 27 Cal.App.3d 864, 104 Cal.Rptr. 181.)

Moreover, there is a reasonable basis for the one-year residency requirement. In United States v. Arnett (D.C.Mass.1970) 342 F.Supp. 1255, the court upheld the Federal Jury Selection and Service Act of 1968, 28 U.S.C. 1861–1874, one section of which (§ 1865(b)(1)) establishes a one-year requirement of residence within the district before one may qualify to serve as a juror. The court wrote:

‘The residential requirement ‘assures some substantial nexus between a juror and the community whose sense of justice the jury as a whole is expected to reflect.’' (United States v. Arnett, 342 F.Supp. 1255 at 1261.)

In United States v. Duncan (9th Cir. 1972) 456 F.2d 1401, 1406 (vacated on other grounds in 409 U.S. 814, 93 S.Ct. 161, 34 L.Ed. 72), the court stated,

‘Historically one of the virtues of the jury, whether grand or petit, is supposed to be that it is a local body acquainted with local conditions, customs and mores. The residency requirement seems to us to be rationally related to that notion.’

In summary, Section 198 is not unconstitutional in imposing a one-year residence requirement. Those living in a county less than one year are not a unique or special group whose exclusion deprives a party to a lawsuit of a jury which is representative of the community. They are too different from each other and too much like everybody else. Finally, since the state has an interest in assuring there be some significant connection between a juror and the community from which he is selected, the imposition of a one-year residence requirement is not unreasonable.

The superior court's order directing the jury commissioner to furnish juries without regard to the provisions of Section 198 was erroneous, and in excess of jurisdiction.

Let a peremptory writ of mandate issue as prayed.


1.  Such a jury was selected. Beale was acquitted.

GERALD BROWN, Presiding Justice.

WHELAN and COLOGNE, JJ., concur.