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Court of Appeal, Second District, Division 2, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Raymond GARCIA, Defendant and Appellant.

Cr. 37239.

Decided: June 29, 1981

Robert S. Gerstein, Los Angeles, for defendant and appellant. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Crim. Division, S. Clark Moore, Asst. Atty. Gen., Howard J. Schwab and William R. Pounders, Deputy Attys. Gen., for plaintiff and respondent.

Defendant Raymond Garcia, convicted in the Northeast District (Pasadena district) of the Lost Angeles Superior Court of the first-degree murder with special circumstances of Toyomi Tamura, was sentenced to life imprisonment without possibility of parole, plus two years for use of a firearm.   He appeals.


Between 7:30 and 8 p. m. on 15 February 1979 defendant Garcia, Ruben Pavia, and Eddie C., a minor, drove in Pavia's automobile to a liquor store in Rosemead.   Pavia and the defendant entered the store.   Pavia removed a bottle of beer from the store's cooler, went to the cash register area, and paid the clerk, Tamura.   When Tamura opened the cash register, defendant pointed a gun and said, “Give me the money.”   Tamura complied with defendant's demand.   Then, while defendant was backing out of the store, he shot and killed Tamura.

Defendant and Pavia returned to the vehicle where their companion was waiting, and the three divided the money from Tamura's register.   They then drove about half a mile to the East Los Angeles area, where defendant fired shots from the vehicle's window and reloaded his gun.   Shortly thereafter, Edward Dvorak and Herman Trevizo, deputy sheriffs, observed Pavia's vehicle straddling the center divider.   While they were bringing the vehicle to a stop, defendant hid his gun in a compartment inside the vehicle.   Deputy Trevizo approached the vehicle, illuminated its interior with a flashlight, and saw open beer bottles on the floor.   Trevizo asked defendant, who was seated in the front passenger seat, to leave the vehicle so he could retrieve the bottles, and when he patted down defendant, he discovered several rounds of live ammunition on defendant's person.   Inside the vehicle he saw another gun under the right front passenger seat.   He confiscated that gun, arrested the occupants, and impounded the vehicle.   In a later search of the vehicle defendant's gun was found in the compartment.

At trial, Pavia testified that before entering the liquor store the three men did not discuss robbery.   Carmen Leon, defendant's friend, testified that defendant and Pavia had been with her at 4 or 4:30 p. m. on February 15, they all smoked PCP, and when defendant left that afternoon he was “pretty high” and “pretty mad.”

On appeal, defendant contends the jury which convicted him did not represent a fair cross-section of the community in that cognizable groups had been systematically excluded from the jury panel, and as a consequence he did not receive a valid jury trial.  (Cal.Const., Art. I, § 16;  U.S.Const., 6th and 14th Amends.)   He also contends that use of a felony both to establish first-degree murder and to establish special circumstances requiring life imprisonment without possibility of parole (Pen.Code, § 190.2(a)(17)) constituted double punishment, that imposition of life imprisonment without possibility of parole for felony murder amounted to cruel and unusual punishment and to excessive punishment, and that such punishment may not be imposed without proof of intent to kill.


Jury Selection.   Defendant contends the trial court erred in denying his motion to quash the jury panel drawn for the Pasadena district.   His primary argument is that use of voter registration lists as the sole source of jury lists in Los Angeles County resulted in systematic exclusion and consequent underrepresentation of Blacks and Hispanics on jury panels in the Pasadena district, to the detriment of his constitutional right to trial by jury.

In support of his pretrial motion to quash the jury panel (Pen.Code, § 1058), defendant relied on evidence incorporated by reference from a similar consolidated motion proceeding before Judge Dickran M. Tevrizian in three other causes.   Movants in the consolidated proceeding sought to establish that juries drawn in the Northeast (Pasadena), Northwest (Van Nuys), and South Central (Compton) Districts of the Los Angeles Superior Court were not representative of the population of those districts in terms of race and ethnicity.   They argued that voter registration lists did not fairly reflect the population of Los Angeles County, in that 4,500,000 persons were eligible to register to vote but only 3,000,000 persons registered as voters.   Movants compared voter registration patterns in Black and Hispanic-dominated census tracts with those in Caucasian-dominated census tracts, and deduced that the proportion of Blacks and Hispanics who registered to vote was less than that of Caucasians.   They then concluded that random selection from voter registration lists as the sole source of potential jurors resulted in systematic exclusion of these two minority groups from jury panels and produced constitutionally-invalid juries which did not reflect a fair cross-section of the community.

Finally, movants in the consolidated proceeding presented a 1979 survey of superior court jurors summoned in the various districts in Los Angeles County as additional evidence that minorities were underrepresented on jury panels.   Movants' basic survey, compiled by questionnaires voluntarily returned by summoned jurors, indicated in relevant part:  of jurors reporting for duty in the Pasadena district 7.3 percent were Black, whereas the 1970 census, as updated by movant's expert, showed an adult population in the district 8.8 percent Black;  of jurors reporting for duty in the Pasadena district 9.7 percent were Hispanic, whereas the 1970 census, as updated by movants' expert, showed an adult population in the district 21.5 percent Hispanic.   Movants' survey for Los Angeles County as a whole indicated:  of jurors reporting for duty in Los Angeles County 11.5 percent were Black, whereas the 1970 census for the county showed an adult population 10.8 percent Black;  of jurors reporting for duty in Los Angeles County 6.5 percent were Hispanic, whereas the 1970 census for the county showed an adult population 9.9 percent Hispanic.

In the consolidated proceeding Judge Tevrizian upheld the validity of the Los Angeles County jury source lists and denied movants' motions to quash.   He concluded that the statistical comparisons which underlay the conclusions of movants' expert witness were poorly conceived and of little probative value, that the design and methods used in movants' survey were loosely administered and were unreliable.1  He ruled, however, that the jury commissioner had inadvertently miscalculated certain distances in calculating the 20-mile travel exemption from jury service, (Code Civ.Proc., § 203, formerly § 206), and ordered the commissioner to recalculate these distances.

The trial judge at bench adopted the ruling made by Judge Tevrizian in the consolidated proceeding and denied defendant's motion to quash the jury panel.

 On appeal, defendant argues that because his jury panel was derived solely by random selection from Los Angeles County voter registration lists, it did not reflect a fair cross-section of the community and denied him trial by jury.   In so arguing defendant seeks to overturn a series of prior court rulings which have upheld random selection from voter registration lists in Los Angeles County as the sole source lists for potential jurors.   (People v. Sirhan (1972) 7 Cal.3d 710, 749–750, 102 Cal.Rptr. 385, 497 P.2d 1121;  People v. Powell (1974) 40 Cal.App.3d 107, 124–127, 115 Cal.Rptr. 109;  People v. Keith (1975) 52 Cal.App.3d 947, 952, 125 Cal.Rptr. 676;  People v. Lewis (1977) 74 Cal.App.3d 633, 643–647, 141 Cal.Rptr. 614.)   The logic of these decisions was aptly set out in Powell, supra, where the court noted “The register of voters probably constitutes the most pervasive listing of qualified citizens from both sexes, all races and all walks of life that is readily available to the government for its jury selection.   Its compilation is not the product of those who are charged with the responsibility of selecting the jurors.   Most importantly, it identifies citizens who are prima facie eligible to participate as jurors.   The government's ability to frustrate voter registration is almost negligible.”  (40 Cal.App.3d p. 127, 115 Cal.Rptr. 109, italics added.)   Thus, when potential jurors are randomly selected from voter registration lists, a defendant is “prima facie confronted with a jury venire for Los Angeles County, apparently selected at random and in accordance with judicially approved methods.  [Citation.]  The burden [falls on him] to prove that the procedures followed operated systematically to exclude identifiable segments of the community resulting in a venire that did not fairly reflect a cross-section of the community.”  (p. 127, 115 Cal.Rptr. 109, italics added.)  (See also, Swain v. Alabama (1965) 380 U.S. 202, 208, 85 S.Ct. 824, 829, 13 L.Ed.2d 759.)   The foregoing cases make clear that use of voter registration lists as the sole source for jury lists is constitutionally valid unless a defendant can show that “use of those lists has resulted in the systematic exclusion of a cognizable group or class of qualified citizens” or “that there was discrimination in the compiling of such voter registration lists.”  (People v. Sirhan (1972) 7 Cal.3d 710, 750, 102 Cal.Rptr. 385, 497 P.2d 1121 (italics added).)   The most recent formulation of the rule appears in Duren v. Missouri (1979) 439 U.S. 357, 363–367, 99 S.Ct. 664, 668–670, 58 L.Ed.2d 579 where the court declared that to establish a prima facie violation of the fair cross-section requirement for juries, a defendant must show that the representation of a cognizable group in jury lists is not fair and reasonable in relation to the number of such persons in the community and that underrepresentation is due to systematic exclusion of the group in the jury selection process.  (See also People v. Wheeler (1978) 22 Cal.3d 258, 272, 148 Cal.Rptr. 890, 583 P.2d 748.)   A trial court is not required to accept a defendant's statistical conclusions unless “persuaded that they [are] founded on substantially reliable data.”  (People v. Powell, supra, 40 Cal.App.3d p. 133, 115 Cal.Rptr. 109.)

 From this brief review we conclude that the burden of proof on a challenge to a jury panel rests on the defendant;  that when the panel is derived by random selection from voter registration lists, the composition of the panel is presumptively valid;  that defendant has the burden of overcoming this presumption;  and that the trial court is not required to credit defendant's proof unless convinced of its validity.   In opposition, defendant argues that whenever disproportionate representation of a cognizable group on a jury panel is shown, the panel is presumptively invalid and the burden of justifying the disproportion falls on the government.   We do not so read the law.   To make a prima facie case of constitutional invalidity of a jury panel derived by random selection from a neutral source list a defendant must show disproportionate representation and systematic exclusion of the underrepresented group in the jury selection process.  (Duren v. Missouri, supra, 439 U.S., p. 364, 99 S.Ct. p. 668.)   Absent such a showing invalidity is not presumed, and defendant retains his burden to prove the jury panel constitutionally invalid.   In short, random selection of a jury panel from a neutral source which on its face is not susceptible to public or private manipulation, cannot, without more, qualify as a showing of systematic exclusion.   Consequently, when such a source is used, the burden of proving its constitutional invalidity and the burden of going forward with evidence to disprove its use remain on defendant.

With these legal rules as a guide we examine defendant's evidence to determine whether he overcame the presumption of validity which attaches to random use of voter registration lists as the source for jury lists and whether he proved his claim that underrepresentation of cognizable groups was caused by systematic exclusion of those groups from the jury selection process.   The heart of defendant's case lies in his claim that use of voter registration lists as the sole source of jury lists is systematically exclusionary and unconstitutional, because not all persons register to vote, and of those who do register, Blacks and Hispanics register in lesser proportions than Caucasians.   According to defendant, the result of using voter registration lists is underrepresentation of these two groups and their systematic exclusion from jury lists, jury panels, and trial juries.   We consider whether his argument has been proved factually, and whether it is sound legally.

A. Fact.   We first consider defendant's evidence that not all potential jurors register to vote and as a consequence a large pool of potential jurors is lost to jury duty.   Defendant's proof is that while Los Angeles County has only 3,000,000 registered voters, it has 4,500,000 licensed drivers and an estimated 4,500,000 eligible voters.   The numerically smaller voter registration lists, defendant argues, are unrepresentative of the general population and hence their use for jury lists is unconstitutional.   But defendant produced no evidence of the number of licensed drivers who were competent and qualified to vote and serve on juries, and no evidence, other than unsubstantiated opinion, of the number of persons not on the voter registration lists who were competent and qualified to vote and serve on juries.   Not every licensed driver is eligible to register to vote.   And not every person eligible to register to vote, is competent and qualified to serve as a juror.  Section 198 of the Code of Civil Procedure sets out the general qualifications for jurors:

“A person is competent to act as juror if he or she is:  [¶ ] 1.   A citizen of the United States of the age of 18 years who meets the residency requirements of electors of this state;  [¶ ] 2.   In possession of his or her natural faculties and of ordinary intelligence ․;  and [¶ ] 3.   Possessed of sufficient knowledge of the English language․ (Italics added.)

Section 199 of the same code disqualifies as jurors persons who have been convicted of any felony.   Sections 200 and 201a allow persons to be excused from jury duty on grounds of hardship.  Section 203 allows prospective jurors in Los Angeles to be excused from jury service more than 20 miles from their place of residence.

It is apparent from this list of qualifications and exemptions for jury service that the pool of persons qualified and willing to serve as jurors is smaller than the adult population within a given area.   Consequently, a mere comparison of numbers in the general population, or numbers of licensed drivers, or estimated numbers of persons eligible to vote, with actual numbers on the voter registration lists does not establish the existence of a constitutionally significant pool of untapped eligible members of a cognizable group who have been systematically excluded from jury duty.   As the court observed in People v. Sirhan (1972) 7 Cal.3d 710, 750, footnote 26, 102 Cal.Rptr. 385, 497 P.2d 1121, “[t]hose who do not choose to register cannot be considered a cognizable group.”

But defendant develops his argument further with the claim that Blacks and Hispanics register to vote in lesser proportions than do Caucasians and therefore use of voter registration lists as jury source lists produces jury panels which are racially distorted and hence constitutionally invalid.   However, regardless of the legal merits of this claim defendant's evidence to substantiate it is fatally flawed, in that in calculating proportions within particular groups he failed to compare numbers of registered voters with numbers of persons eligible to register.   To ascertain differential percentages of registered voters among diverse populations, only those eligible to register should be considered within the denominator.   Yet defendant based his calculations on general populations within census tracts (which include citizens and aliens alike) and not merely on populations eligible to register to vote (citizens).   According to defendant's expert the greatest comparative disparity of minority voters to Caucasian voters occurred in Hispanic-dominated census tracts.   Yet defendant's expert did not adjust his general populations to exclude those who were aliens and hence ineligible to vote and serve on juries, and to exclude those ineligible for other reasons.   As noted in People v. Lewis (1977) 74 Cal.App.3d 633, at p. 646, 141 Cal.Rptr. 614:  “Courts have repeatedly emphasized that no reliable conclusion can be drawn when total population rather than voter population is used as the base.”   We cannot ignore the possibility that in Hispanic-dominated census tracts within Los Angeles County such adjustments would have been highly significant statistically in determining percentages of registered voters among those eligible to register.   At bench, because the state used random selection from registered voter lists as jury source lists, it was not the state's burden to present evidence regarding the number of aliens among the census population who were ineligible to vote.   On the facts presented, the trial court concluded, and we agree, that the evidence produced by defendant's expert was logically and mathematically defective.

The only other evidence relating to differential voter registration among cognizable groups was the opinion of an official of the Recorder Registrar of Los Angeles County, who asserted that the greatest amount of underrepresentation in voter registration occurred in areas north of Compton (Black areas) and in East Los Angeles (Hispanic areas).   This testimony was uncoordinated with that of defendant's expert, and amounted to no more than random opinion evidence unsubstantiated by any firm statistical analysis.

Defendant also presented a second type of evidence of systematic exclusion, the survey of Pasadena jury panels during the period May to September 1979.   This survey indicated that Black jurors (7.3 percent) were slightly underrepresented in comparison with their estimated numbers in the Pasadena district (8.8 percent) and in the county (10.8 percent);  while Hispanic jurors (9.7 percent) were substantially underrepresented in comparison with their estimated numbers in the Pasadena district (21.5 percent), but only slightly underrepresented in comparison with their numbers in the county (9.9 percent).   But here again, defendant's expert used the entire 1970 census-tract population as his denominator rather than the population eligible for jury service.   He made no adjustments for alienage, for insufficient knowledge of English, or for other factors which render a person ineligible for jury service.   Additionally, the trial court found that the survey of defendant's expert was inadequately controlled, responses to questionnaires were voluntary, the percentage of returned questionnaires was not calculated, and some of the returns were xeroxed.

Equally significant, in our view, in the devaluation of defendant's conclusions was his expert's failure to examine and evaluate the original pool of potential jurors contained in the master jury lists drawn at random from voter registration lists, and from which the list of qualified jurors was selected.   A large majority of the members of this original pool was excused from jury duty.   Reasons for excuse included, lack of natural faculties and ordinary intelligence, insufficient knowledge of English, conviction of felony or other high crime (Code Civ.Proc., §§ 198, 199), and individual or community hardship (Code Civ.Proc., §§ 200, 201a).   Of those drawn at random in 1978 for the master jury list in Los Angeles County, fewer than one-third were selected as available for the qualified jury list.   Of 325,000 questionnaires mailed out, 271,000 were completed and returned.   Of persons who returned questionnaires 149,000 were excused—including 122,000 for individual hardship, 21,000 for incompetence, and 3,000 for community hardship.   When change of residence and other factors were taken into account, the number on the qualified jury list shrank to 95,000, fewer than a third of those initially drawn.

It seems probable that the foregoing factors operated on different cognizable groups in different proportions.   The proportion of aliens is conspicuously higher among Hispanics than among Blacks and Caucasians.2  Insufficient knowledge of English is undoubtedly a significant factor among the Hispanic population in determining eligibility for jury service.   According to a 1977 survey conducted by the Community Development Department of the City of Los Angeles Spanish was the primary language in 64 percent of Hispanic households within the city.   It is a reasonable inference that insufficient knowledge of English is a disqualification factor which operated more heavily on Hispanics than on Blacks or Caucasians.

Furthermore, it is evident from the great number of potential jurors who did not respond to the jury-duty questionnaire or who obtained excuses from jury service thereafter that a high degree of self-selection enters into the composition of jury panels.   We could speculate that this factor, too, operated differently among different ethnic groups, that if, as asserted by defendant, the Caucasian population in Los Angeles County had a higher proportion of members who registered to vote than did minority groups, it also had a higher proportion of members who did not seek to be excused from jury service.   But it is not our function to speculate about evidence that might have been produced but was not.   It is enough to conclude there was substantial support for the trial court's finding that the survey conducted by defendant's expert and the factual conclusions sought to be drawn from it were unreliable.   When a state employs random selection from voter registration lists as its source of potential jurors, it is defendant's burden to prove than an underrepresentation of a cognizable group on jury panels has resulted from systematic exclusion and purposeful discrimination against that group, one which is inexplicable on other grounds.  (Castaneda v. Partida (1977) 430 U.S. 482, 493, 494–495, 97 S.Ct. 1272, 1279, 1280, 51 L.Ed.2d 498.)   No such showing was made here, and defendant failed to carry his burden of proof.

 B. Law.   But putting to one side the defects in defendant's proof, and assuming that evidence of meaningful differential voter registration among cognizable groups had been persuasive, we think such evidence carries little constitutional significance.   We note that the Constitution does not require voter lists to mirror the ethnic composition of the community.   All the Constitution requires is elimination of artificial barriers against the privilege of voter registration.  (Harper v. Virginia Board of Elections (1966) 383 U.S. 663, 667, 86 S.Ct. 1079, 1081, 16 L.Ed.2d 169.)   The mere fact that different segments of a community exercise the privilege of voter registration in different proportions does not render the procedures used to compile voter registration lists unconstitutionally discriminatory—so long as artificial barriers to voter registration do not exist.  (Cf. Washington v. Davis (1976) 426 U.S. 229, 239–242, 96 S.Ct. 2040, 2047, 2049, 48 L.Ed.2d 597;  Arlington Heights v. Metropolitan Housing Corp. (1977) 429 U.S. 252, 264–267, 97 S.Ct. 555, 562–564, 50 L.Ed.2d 450.)   We think the same principle applies when voter registration is made to serve the dual purpose of qualification to vote and of identification for potential jury service.   So long as artificial barriers to identification for potential jury service do not exist, neutral methods of identification open to all groups are valid.   (Swain v. Alabama (1965) 380 U.S. 202, 208, 85 S.Ct. 824, 829, 13 L.Ed.2d 759.)   At bench, no systematic exclusion of any group from the privilege of voter registration and from identification for potential jury service was indicated.   Nothing more was suggested than self-exclusion from civic function based on reasons personal to the individual citizen.

 We conclude that use of voter registration lists, regardless of their differential impact on cognizable groups, was not constitutionally impeached.   Defendant failed to establish that the cause of differential representation among specific groups, if it existed, was systematic, “that is, inherent in the particular jury-selection process utilized.”  (See Duren v. Missouri, supra (1979) 439 U.S. 357, at p. 366, 99 S.Ct. 664, at p. 669, 58 L.Ed.2d 579.)   The legislature, of course, remains free to experiment with alternative methods of securing jury source lists and to modify qualifications for and exemptions from jury service in directions it deems socially desirable.3  (Rubio v. Superior Court (1979) 24 Cal.3d 93, 104, 154 Cal.Rptr. 734, 593 P.2d 595.)


Special Circumstances.   Defendant contends the subsection authorizing sentence of life imprisonment without possibility of parole for specified felony murder (Pen.Code, § 190.2(a)(17)) must be restricted to intentional killings, in order to avoid unconstitutional arbitrariness in the punishment for murder;  that use of robbery to establish both first-degree murder and special circumstances subjected him to double punishment;  that it was cruel and unusual punishment to sentence him to life imprisonment without possibility of parole in the absence of a finding he intended to kill.   And, he asserts, because he was under the influence of PCP, the trial court erred in refusing to instruct the jury that to find special circumstances it must find him capable of forming an intent to kill.

 The substance of these contentions has been argued and rejected by the court in the recent case of People v. Kelly, 117 Cal.App.3d 944, 173 Cal.Rptr. 106.   That court reviewed the statute which preceded the present special-circumstances statute, reviewed the ballot arguments on the 1978 initiative, and analysed the internal structure of the present statute.   It concluded that intent to kill is not a prerequisite for punishment of life imprisonment without possibility of parole for murder committed in the course of robbery.   It concluded the defendant was convicted of only one offense and punished for only one offense, and it therefore rejected his claim of double punishment.   It also concluded that life imprisonment without possibility of parole for felony murder is not cruel and unusual punishment and not grossly excessive in comparison to punishment throughout the country.  (In re Lynch (1972) 8 Cal.3d 410, 105 Cal.Rptr. 217, 503 P.2d 921;  In re Maston (1973) 33 Cal.App.3d 559, 109 Cal.Rptr. 164.)   We agree with the reasoning and conclusions of the Kelly court.

The judgment is affirmed.


1.   A similar conclusion with respect to similar evidence produced by the same expert witness was reached by Judge Leonard S. Wolf in Celestine v. Superior Court, Los Angeles No. A–137367.   Judge Wolf's findings in Celestine were judicially noticed by Judge Tevrizian in the consolidated proceeding and as a consequence became part of the record in this proceeding.   Judge Wolf concluded that the expert's evidence and credibility were “totally unreliable.”

2.   While no figures were introduced with respect to Los Angeles County, a Census Bureau report marked for identification showed that nationwide 44.8 percent of the Hispanic population in 1974 lacked citizenship.

3.   The Legislature recently enacted Code of Civil Procedure section 204.7, (stats.1980, c. 81, § 16) effective July 1, 1981, which directs that source lists of jurors shall include registered voters, “and to the extent that systems for producing jury lists can be practically modified, without significant cost,” shall also include licensed drivers.   The new statute may present practical difficulties in the compilation of qualified jury lists, in that while voter registration lists include only citizens of the United States, licensed driver lists include aliens, both legal and illegal, legally incompetent to serve as jurors.

FLEMING, Associate Justice.

ROTH, P. J., and BEACH, J., concur. Hearing denied; BIRD, C.J., dissenting.