WILLIAMS v. PEOPLE

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Court of Appeal, Second District, Division 7, California.

Edward WILLIAMS, Petitioner, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent. The PEOPLE of the State of California, Real Party in Interest.

B016942.

Decided: July 14, 1987

Criminal Justice Legal Foundation, Christopher N. Heard, Legal Director, San Jose, John K. Van de Kamp, Atty. Gen., Gary R. Hahn and Shunji Asari, Deputy Attys. Gen., as amici curiae on behalf of real party in interest. Madelynn Kopple, Santa Monica, for petitioner. Frank O. Bell, Jr., State Public Defender and Donald L.A. Kerson, Deputy State Public Defender, as amici curiae on behalf of petitioner. No appearance for respondent. Ira Reiner, Dist. Atty. of Los Angeles County, Harry B. Sondheim and George M. Palmer, Deputy Dist. Attys., for real party in interest.

By way of Petition for Writ of Prohibition/Mandate, Edward Williams, defendant in a prosecution for murder, challenges an order denying his motion to quash the jury venire.   In his motion defendant claimed the venire did not fairly represent the countywide community.   We issued alternative writ and order to show cause, and hearing has been had thereon.   We conclude that the Legislature has defined the community for the purpose of fair cross-section analysis of the jury venire in Los Angeles County, as the area of the county within a 20–mile radius of each of the courthouses of the Los Angeles County Superior Court.

I

FACTS

Petitioner, who is black, is charged with first degree murder.  (Pen.Code, § 187.) At trial in the West Judicial District of Los Angeles Superior Court, sitting in Santa Monica, he challenged each of two jury panels on the basis that neither panel represented a fair cross-section of the community.   Petitioner moved to quash the venire or for mistrial, asserting that the black population which is jury-eligible for that judicial district is unconstitutionally underrepresentative of the total jury-eligible black population of Los Angeles County.

At hearing on the motion, petitioner called Raymond Arce, Director of Juror Services for Los Angeles County, who testified that 11.4 percent of the total population of Los Angeles County are blacks presumptively eligible to serve as jurors, and in the West Judicial District, where this trial is being had, 5.6 percent of the total population are blacks presumptively eligible to serve as jurors.   A survey of jurors in the Santa Monica courthouse for the three-month period preceding this trial indicated that 4.5 percent appearing for jury duty were black.   Mr. Arce further testified that once a randomly selected countywide list of jury eligible persons is compiled, it is a matter of policy to assign a juror to that court which is then in need of jurors and which is closest to the juror's residence;  if the quota for the court closest to a juror's residence is filled, the juror will be assigned to the next closest court needing jurors, and so on, for example, if a juror from Lancaster is assigned to the Long Beach court, and the juror objects to that assignment, only then is he informed that under Code of Civil Procedure section 203 he has a right not to serve at a court over 20 miles from his residence.   Petitioner argued that he was thus deprived of a representative cross-section of the countywide community.   The court denied the motions, finding that petitioner had not met the burden of a prima facie showing of significant underrepresentation of a cognizable group.

Petitioner seeks either a writ of prohibition to prevent respondent superior court from taking further action in the matter except to declare a mistrial and transfer the case to one of two specified judicial districts or, in the alternative, a writ of mandate directing respondent to vacate its denial of motion to quash venire.

II

FAIR CROSS–SECTION REQUIREMENT

 A criminal defendant is entitled to trial by an impartial jury drawn from a representative cross-section of the community.   This right is guaranteed by the Sixth Amendment to the federal Constitution (Taylor v. Louisiana (1975) 419 U.S. 522, 530, 95 S.Ct. 692, 697, 42 L.Ed.2d 690, 698) and by article I, section 16 of the California Constitution.  (People v. Harris (1984) 36 Cal.3d 36, 48–49, 201 Cal.Rptr. 782, 679 P.2d 433.)   This does not mean that a party is entitled to a jury that mirrors the demographic composition of the population, or necessarily includes members of his own group, or is composed of any particular individuals;  what it does mean is that a party is entitled to a petit jury that is as near an approximation of the ideal cross-section of the community as the process of random draw permits.   (People v. Wheeler (1978) 22 Cal.3d 258, 277, 148 Cal.Rptr. 890, 583 P.2d 748.)   The constitutional cross-section requirement is a procedural and not a substantive requirement.  (O'Hare v. Superior Court, (1987) 43 Cal.3d 86, 100, 233 Cal.Rptr. 332, 729 P.2d 766.)

 “In order to establish a prima facie violation of the fair-cross-section requirement, the defendant must show (1) that the group alleged to be excluded is a ‘distinctive’ group in the community;  (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community;  and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.”  (Duren v. Missouri (1979) 439 U.S. 357, 364, 99 S.Ct. 664, 668, 58 L.Ed.2d 579, 586–587;  People v. Harris, supra, 36 Cal.3d 36, 50, 201 Cal.Rptr. 782, 679 P.2d 433.)   No showing of intent to discriminate is required.  (Id. at p. 57, 201 Cal.Rptr. 782, 679 P.2d 433.)   If a prima facie showing has been made, the burden then shifts to the prosecution to show that “no disparity of constitutional significance exists, or that even with the use of multiple sources and all other practical means, a certain level of disparity is unavoidable.   Finally, it may be able to justify the underrepresentation by showing ‘that a significant state interest [is] manifestly and primarily advanced by those aspects of the jury selection process ․ that result in the disproportionate exclusion.’ ”  (Id., at p. 59, 201 Cal.Rptr. 782, 679 P.2d 433.)

A. Distinctive Group

Petitioner claims that blacks are underrepresented in the jury venire in the West Judicial District of Los Angeles County.   As conceded by real party, blacks are a cognizable, distinctive group for purposes of the first prong of fair cross-section analysis.  (People v. Harris, supra, 36 Cal.3d 36, 51, 201 Cal.Rptr. 782, 679 P.2d 433;  Hovey v. Superior Court (1980) 28 Cal.3d 1, 20, fn. 45, 168 Cal.Rptr. 128, 616 P.2d 1301.)

B. Underrepresentation

To meet the second prong of the Duren test, petitioner had to show that blacks were underrepresented in jury venires in relation to the number of such persons in the community.   But before we can evaluate the statistical showing of underrepresentation made by petitioner, we must first determine what community the jury venire must fairly represent.   Is it all of Los Angeles County as petitioner argues; 1  the particular judicial district in which the trial is had as real party argues; 2  or the area within a 20–mile radius of the courthouse, consistent with the statutory mandate that jurors in Los Angeles County cannot be compelled to serve at a courthouse over 20 miles from their residence (Code Civ.Proc., § 203)?

1. Community

The term used in the fair cross-section cases is neither “county” nor “judicial district,” but “community.”   Community is defined in Black's Law Dictionary (5th ed. 1979), page 254, as:  “Neighborhood;  vicinity;  synonymous with locality.”   This definition is consistent with the common law concept of vicinage, as preserved in the Sixth Amendment to the United States Constitution:  “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․”  The California Supreme Court in O'Hare v. Superior Court, supra, 43 Cal.3d 86, 233 Cal.Rptr. 332, 729 P.2d 766, distinguished the concept of vicinage from that of the “relevant community” from which a fair cross-section must be drawn to comprise the venire:  “[The] issue of ‘community’ is related to but nonetheless distinct from questions of ‘vicinage.’   As interpreted by [the California] Supreme Court in People v. Jones (1973) 9 Cal.3d 546, 551 [108 Cal.Rptr. 345, 510 P.2d 705] ․ the Sixth Amendment includes the requirement that the defendant be tried by a jury drawn from an area which includes the location of the crime, or, in other words, ‘a jury of the vicinage.’ ”  (P. 94, 233 Cal.Rptr. 332, 729 P.2d 766.)   In the instant case, no party suggests that the application of any of the three alternative definitions of community set out above would result in a violation of the vicinage requirement, which we deem not to be in issue herein.

Rejecting the argument that the Sixth Amendment entitled a defendant in San Diego County to a jury drawn from the entire county rather than from some construct of a northern county subdivision, our Supreme Court in O'Hare v. Superior Court, supra, 43 Cal.3d 86, 233 Cal.Rptr. 332, 729 P.2d 766, stated that “the historical evidence which exists does not support a conclusion that the Sixth Amendment was designed to serve as a substantive limitation on government's power to define the community from which the jury venire is drawn․  Thus, Williams [v. Florida (1970) 399 U.S. 78, 96, 90 S.Ct. 1893, 1904, 26 L.Ed.2d 446, 458] explains that the Sixth Amendment, as finally proposed by Congress and adopted by the states, explicitly ‘left Congress the power to determine the actual size of the “vicinage” by its creation of judicial districts.’ ”  (43 Cal.3d at pp. 94–95, 233 Cal.Rptr. 332, 729 P.2d 766, emphasis in original.)   The court in O'Hare concluded that “Here, however, we do have a judicial district, originally defined for the municipal court, but by local rules made applicable to the Vista [a city in Northern San Diego County] sessions of the superior court as well.   Not only does use of this district to draw jurors not violate any precedent, but it appears to comport precisely with the statutes which regulate the jury selection process․  (See Code Civ.Proc., §§ 193, 197, 203, 204.5, 206, 206a.)”  (Id., at p. 100, 233 Cal.Rptr. 332, 729 P.2d 766.)   We thus turn to the Code of Civil Procedure sections relating to jurors (Code Civ.Proc., § 190 et seq.) to determine what area the Legislature has designated as the district from which jurors are to be drawn.

Section 193 defines a trial jury as “a body of persons returned from the citizens of the area served by the court․”  (Emphasis added.)  Section 197 explains:  “It is the policy of the State of California that all persons selected for jury service shall be selected at random from a fair cross section of the population of the area served by the court․” (Emphasis added.)   Section 203 requires that the persons listed as available for service as trial jurors “shall be fairly representative of the population in the area served by the court, and shall be selected upon a random basis.”  (Emphasis added.)  Section 204.5, subdivision (b) provides:  “The plan for random selection used shall be in writing and shall be designed to insure the random [s]election of a fair cross section of the persons residing in the area served by the court.”  (Emphasis added.)

Our next inquiry is directed to the meaning of the phrase “area served by the court.”   Section 193.2, subdivision (b) defines “court” as the superior, municipal and justice courts of this state.   However, the large geographical area and huge population of Los Angeles County have resulted in the establishment of branch courts as a means of maintaining efficient judicial administration.  (Adams v. Superior Court (1972) 27 Cal.App.3d 719, 722, 104 Cal.Rptr. 144.)   The Superior Court of Los Angeles County has thus been divided into eleven separate districts wherein sessions of the court shall be held.  (Superior Court Rules, rule 300, § 1.)   The geographical district boundaries are set forth in Appendix A of the Superior Court Rules, and the West District, where petitioner awaits trial, is specifically mapped out in Appendix A–9.

The Superior Court Rules make it clear that the judicial districts are not separate courts with exclusive jurisdiction over offenses committed within their boundaries.   The departments of the Central District and of the other districts designated to hear criminal cases are not designated as separate superior courts, but as the “Criminal Division of the Los Angeles Superior Court.”  (Superior Court Rules, rule 301.)   The criminal divisions in each judicial district do not have sole jurisdiction over offenses committed in that district;  indictments by the Grand Jury must be filed in the Central District (rule 300, § 2);  all other criminal cases may be filed in the Central District, in the district where one of the offenses was committed, or in the district where the preliminary hearing was held.  (Rule 300, § 3.)   Cases may be transferred from one district to another to relieve calendar congestion (rule 300, § 5), for the convenience of witnesses, or to promote the ends of justice.  (Rule 300, § 6.)   Thus a criminal division in one judicial district may try cases involving offenses committed in another judicial district.   Given this transferability of cases among the districts, we cannot interpret the “area served by the court” from which a jury is to be drawn to be strictly limited by the judicial district boundary lines.

We are also not convinced that the “area served by the court” should be interpreted to include all of Los Angeles County.   In none of the Code of Civil Procedure sections did the Legislature use the term “county” to describe the area from which jurors are to be selected.  (See, e.g. Code Civ.Proc. §§ 190, 193, 197, 203, 204.5, subd. (b).)  In section 203, however, the Legislature did make particular provision as to the area from which jurors shall be drawn in Los Angeles County:  “In counties with more than one court location, the rules shall reasonably minimize the distance traveled by jurors.   In addition, in the County of Los Angeles no juror shall be required to serve at a distance greater than 20 miles from his or her residence.”

 “It is a cardinal rule of statutory construction that statutes relating to the same subject matter must be read together and reconciled whenever possible.”  (Estate of Gibson (1983) 139 Cal.App.3d 733, 736, 189 Cal.Rptr. 201.)   Moreover, “[a] specific statute expressly dealing with a particular subject controls and takes precedence over a more general statute covering the same subject.”  (Merandette v. City and County of San Francisco (1979) 88 Cal.App.3d 105, 113, 151 Cal.Rptr. 580.)   Consistent with these rules of statutory construction, we read sections 193, 197 and 203 together and conclude that the population of the “area served by the court” of which the jury venire must be fairly representative, when applied to Los Angeles County, means the population of the area of the county within a 20–mile radius of each of the courthouses of the Los Angeles County Superior Court.

No other construction of section 203 would be consistent with its twin mandates that “the persons so listed shall be fairly representative of the population in the area served by the court, and shall be selected upon a random basis.”  (Code Civ.Proc., § 203, emphasis added.)   The county as a whole cannot be the community the venire must fairly represent because the 20–mile requirement prevents such a venire from being selected randomly from the entire county.   Nor can the community be defined to correspond to each of the 11 judicial districts.   The statute easily could have, but does not, limit jury service to the judicial district in which a juror resides;  rather the 20–mile provision in many cases would require a juror to serve in any one of several districts.   Moreover, it is possible the location of a crime would be within the boundaries of one of the larger judicial districts, such as in the extreme southeast of the North Valley district, but not within 20 miles of any courthouse serving such district, but within 20 miles of a court in another district, such as the Northeast or East district.   In such case, the vicinage requirement and the representative cross-section requirement can both be met only if the trial is held at a court outside of the North Valley district.

Our interpretation also finds support in all four of the opinions written in People v. Harris, supra, 36 Cal.3d 36, 201 Cal.Rptr. 782, 679 P.2d 433, a case challenging the representative nature of juries at the Long Beach branch of the Superior Court of Los Angeles County.   The plurality opinion by Justice Broussard highlights our question:  “We recognize that Long Beach juries are not selected evenly from all parts of Los Angeles County.  Code of Civil Procedure section 203 provides that ‘in the County of Los Angeles no juror shall be required to serve at a distance greater than 20 miles from his or her residence.’   It is likely that most of the jurors interviewed by Dr. Butler at the Long Beach courthouse came from within a 20–mile radius of the courthouse, a fact which may account to some degree for the discrepancy in racial representation between the persons interviewed and the county population.  [¶] The parties, however, presented evidence and argued this case on the assumption that all juries in Los Angeles County must be representative of the entire county.   The principal question before us is whether evidence based on total countywide population figures, rather than jury-eligible population, is adequate to make out a prima facie case;  for the reasons explained in this opinion, we conclude that it is.   The state has not attempted to rebut this prima facie showing by arguing that the Long Beach juries need only represent those persons living within 20 miles of the courthouse, and has not attempted to show that such juries were truly representative of that limited area.”  (Harris, supra, at p. 48, 201 Cal.Rptr. 782, 679 P.2d 433.)

Justice Grodin, in a concurring opinion, notes that there may be merit in the view that the more appropriate focus for statistical analysis is the area within a 20–mile radius from the Long Beach courthouse, a matter that could have been examined upon remand, had that disposition prevailed.  (Harris, supra, at p. 71, fn. 1, 201 Cal.Rptr. 782, 679 P.2d 433.)

Justice Mosk, in his dissent, explains:  “The leading cases on the subject of jury selection [citations] require that a defendant be provided trial by an impartial jury drawn from a representative cross-section of the community.   Our code uses the term ‘area served by the court’ (Code Civ.Proc., § 197), not the county in which the court is situated.   It takes only a cursory knowledge of the demography of Southern California to realize that Long Beach courts serve an area completely distinct in population characteristics from the totality of Los Angeles County.   Indeed, Long Beach is closer to the county seat of Orange County (21 miles) than it is to the county seat of Los Angeles (23 miles).   The defendant has produced no statistics relating to the ethnic composition of the community or area that is Long Beach, or from the supervisorial district in which the city is located (see Code Civ.Proc., § 206a).   Figures for the entire County of Los Angeles are not only irrelevant but in this instance significantly deceptive.”  (Harris, supra, at p. 73, 201 Cal.Rptr. 782, 679 P.2d 433, orig. emphasis.)   Justice Kaus, in a separate dissent, agreed with Justice Mosk that “there is no showing that population figures for the whole of Los Angeles County are relevant with respect to a 20–mile radius from Long Beach.”  (Harris, supra, at p. 75, 201 Cal.Rptr. 782, 679 P.2d 433.)

Real party argues in its supplemental brief filed in this court that the 20–mile zone is a “fictitious geographical construct” and would not yield more representative jury panels because of the overlapping of communities.   Having been mandated by the Legislature, the 20–mile zone described in section 203 is neither fictitious nor something we have fashioned out of thin air.   To the extent that it is arbitrary, we agree;  however that does not invalidate it.   As stated in O'Hare, “[T]he constitutional cross-section requirement is a procedural and not substantive requirement.   Whenever an accused has committed an offense, it will nearly always be possible, simply by enlarging the area from which the venire is drawn, to obtain different mixes of social/ethnic viewpoints and economic classes on a jury panel.   However, it is practically necessary to limit the area of draw in some arbitrary manner, even though such limitation obviously restricts or alters jury composition.  [Citation.]  Were the rule otherwise, county boundaries themselves could be challenged as resulting in a venire not fairly representative of the ‘community.’   The issue thus cannot be whether there is disparity between the North County population and the population of San Diego County;  rather, the issue must be whether the boundaries of the area served by the branch court constitute a permissible venire.”  (O'Hare v. Superior Court, supra, 43 Cal.3d at p. 100, 233 Cal.Rptr. 332, 729 P.2d 766.)

Real party introduces the purported problem of overlapping of communities under the 20–mile rule.   The People find objectionable the fact that a juror who lives within more than one 20–mile zone will be counted more than once, purportedly resulting in an artificially high demand for this juror and requiring the juror to serve more frequently.   No evidence supports such contentions.   A juror may be “counted” several times for the purpose of defining the community;  however, jurors generally may not be required to serve more than 10 court days per year.  (Code Civ.Proc., § 239, subd. (b).)  Moreover, because the 20–mile radius covers more area than many of the judicial districts in the county, the community as defined in section 203 has the potential to be more diverse than the smaller judicial districts.   Because the draw must be random, it is difficult to conceive how there can be any “artificially high demand” for a juror.   Under the system as testified to by Mr. Arce, a juror may be summoned to any of the county courts, and only if he objects to the distance, will he be informed of his rights under section 203.   It is difficult to see how the 20–mile radius rule alone will result in jurors being summoned more often than they are now.

 We are satisfied that the 20–mile zone described in section 203 is a reasonable and fair interpretation of “community” for the purpose of fair cross-section analysis.3  Provisions limiting the geographical area from which jurors are chosen for service in order to minimize inconvenience to jurors and expense to the county are constitutionally permissible, as long as the system of jury selection is in compliance with the cross-sectional principle.  (Adams v. Superior Court, supra, 27 Cal.App.3d 719, 728, 104 Cal.Rptr. 144.)

CONCLUSION

 We conclude that in order to make a prima facie showing of violation of the fair cross-section requirement in the jury venire in Los Angeles County, a criminal defendant is required to show that the representation of a “distinctive group” in the venire from which jurors are selected is not fair and reasonable in relation to the percentage of such persons in Los Angeles County residing within a 20–mile radius of that court, and that the underrepresentation is due to systematic exclusion of the distinctive group in the jury-selection process.

 Petitioner presented statistics showing the percentage of juror-eligible blacks in Los Angeles County, the percentage of juror-eligible blacks in the West Judicial District, and the percentage of blacks who actually appeared for jury duty in the West Judicial District for the three-month period preceding his trial.   He did not present statistics showing the percentage of juror-eligible blacks within a 20–mile radius of the courthouse, the area we have deemed the community which must be fairly represented in the jury venire.   In the absence of this evidence, we agree with the trial court that no prima facie showing of underrepresentation was made.

However, petitioner's motion was made without benefit of our definition of community;  he should not be foreclosed from renewing his motion and making the relevant statistical showing of juror-eligible blacks residing within the 20–mile radius of the Santa Monica courthouse.   In the event of such renewal, the trial court should order the Director of Juror Services Division of the Los Angeles County Superior Court to provide such data to the petitioner and the prosecution in order to enable the petitioner to consider properly the renewing of his motion and the prosecution to respond appropriately.

 If petitioner is successful in showing underrepresentation of blacks on jury panels in relation to the number of such persons in the community, i.e. the area within a 20–mile radius of the courthouse, he still must meet the third prong of the Duren standards for prima facie showing.   He must show that the underrepresentation is due to systematic exclusion of the group in the jury-selection process.   The record provides some support for this showing in the testimony of Mr. Arce, who explained that jurors are assigned to the courthouse nearest their residence which needs jurors.   This is not a random assignment from the permissible 20–mile area, but a more local assignment, and if it is shown that this is a cause of the underrepresentation, then petitioner will have made his prima facie showing of a violation of the fair cross-section requirement.   The burden will then shift to the prosecution to come forward with available evidence in rebuttal showing either that there is no constitutionally significant disparity, the disparity is inevitable despite the use of all practical means, or that a significant state interest is advanced by those aspects of the jury selection process which result in the underrepresentation.  (People v. Harris, supra, 36 Cal.3d 36, 59, 201 Cal.Rptr. 782, 679 P.2d 433.)

DISPOSITION

The alternative writ is discharged.   The petition is denied.

FOOTNOTES

1.   Petitioner's position is supported by Amicus Curiae State Public Defender who asserts that the community of which the jury must be representative is the county, or perhaps the area within a 20–mile radius of the courts in Los Angeles, but in no event should it be confined to the judicial district.   Petitioner and the State Public Defender welcomed the “compromise” of measuring representativeness by using the 20–mile radius as the relevant community, but petitioner's “first choice” is the county.

2.   Amicus Curiae Criminal Justice Legal Foundation argues the community is limited to the judicial district.   However, this position is based on a comparison with the San Francisco Bay Area, where a similar number of people contained in a similar number of square miles are divided into six separate counties;  it asserts that if all of Los Angeles County is the relevant community, then all six of the bay area counties must be combined to make up a comparable community.   Interesting though its position is, we find the bay area comparison irrelevant to the demographics and geography of Los Angeles County.

3.   People v. McDonald (1987) 191 Cal.App.3d 569, 585, 237 Cal.Rptr. 597, recently addressed the same issue herein in light of O'Hare and held that the area within a 20–mile radius of the courthouse defines the pertinent community in Los Angeles County for the purpose of the fair cross-sectional requirement.

LILLIE, Presiding Justice.

THOMPSON and JOHNSON, JJ., concur.