HARE v. PEOPLE

Reset A A Font size: Print

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

Eddie O'HARE, Petitioner, v. SUPERIOR COURT, etc., County of San Diego, Respondent; The PEOPLE, Real Party in Interest.

D003356.

Decided: March 25, 1986

Robert F. Gusky, for petitioner. Lloyd M. Harmon, Jr., Co. Counsel, Daniel J. Wallace, Chief Deputy Co. Counsel, and Bruce W. Beach, Deputy Co. Counsel, for respondent. Edwin L. Miller, Jr., Dist. Atty., Peter C. Lehman, Sally J. Penso, and Paul M. Morley, Deputy Dist. Attys., for real party interest. John K. Van de Kamp, Atty. Gen., John W. Carney, and Tim J. Nader, Deputy Attys. Gen. as Amicus Curiae on behalf of real party in interest. Jack R. Campbell and Geraldine S. Russell as amicus curiae.

This case presents the important issue whether the North County Branch of the San Diego Superior Court violates the constitutional rights of criminal defendants charged with felonies when it limits selection of jurors to a venire taken from the North County Municipal Court Judicial District rather than one taken from San Diego County as a whole.

Eddie O'Hare, charged by information with kidnapping (Pen.Code, § 207), assault by means of force likely to produce great bodily injury (Pen.Code, § 245, subd. (a)(1)), infliction of cruel corporal punishment of a child (Pen.Code, § 273d, willful cruelty to a child (Pen.Code, § 273a, subd. (2)), and false representation of identity to a police officer (Pen.Code, § 148.9), seeks to compel transfer of his felony trial from the North County Branch to the San Diego Downtown Branch contending the jury venire in North County contains a significantly lower percentage of jury-eligible black persons than does the venire for the Downtown Branch.1  He relies primarily on the Sixth Amendment guarantee 2 of a jury drawn from a representative cross section of the community, as interpreted by this court's earlier decision in Johnson v. Superior Court (1984) 163 Cal.App.3d 85, 209 Cal.Rptr. 425.   The holding in Johnson, however, is not nearly so broad as O'Hare suggests.   After reviewing the extensive federal and significant California precedent in this area, as well as considering the historical roots of the Sixth Amendment, we conclude there is no constitutional impediment to designation of the North County Municipal Court Judicial District as the “community” from which jurors are to be drawn for sessions of the North County Branch of the San Diego Superior Court.   We also reject O'Hare's contention that because the North County Branch has not been legislatively designated as a “judicial district,” there is insufficient legislative authorization for the use of a venire drawn from any area less than the entire County of San Diego.

FACTUAL AND PROCEDURAL BACKGROUND

Since 1970, the Legislature has required that the San Diego County Superior Court hold daily sessions in Vista, a city in northern San Diego County.   (Gov. Code, § 69595.5.)   The North County Branch of the San Diego Superior Court sitting in Vista was created by local court venue rules to implement this legislative requirement.   Those rules divide the County roughly in half and, with certain exceptions,3 require that actions arising in North County be originally filed in the North County Branch.  (Super.Ct.Rules, Div. III, § 1, rule 1.3.)

Before the decision in Johnson v. Superior Court, supra, 163 Cal.App.3d 85, 209 Cal.Rptr. 425, North County jurors were drawn from the master list for the Fifth Supervisorial District.   In response to Johnson, the system was modified in March 1985 so that all jurors summoned for service in both the North County Branch of the Superior Court and the Municipal Court of the North County Judicial District are now drawn solely from the North County Judicial District.4  The North County Judicial District is larger than the Fifth Supervisorial District, but the increase in size did not change the percentage of jury-eligible black persons in the jury panel.   Although the North County jury panel fairly reflects the jury-eligible black community as it exists in North County, it does not reflect the percentage of black persons in San Diego County as a whole.

O'Hare was arraigned on January 8, 1985, in the North County Branch and entered a plea of not guilty.   In March, after initiation of the new jury selection procedure, O'Hare filed a petition for writ of mandate with this court asking to have his case transferred to the Downtown Branch of the Superior Court.   The petition was denied without prejudice on grounds O'Hare had made no showing the venire would not be reflective of the community.   (D002866, order dated Mar. 15, 1985.)   O'Hare then filed a motion in the superior court to transfer venue to the Downtown Branch.   The motion was denied with the following findings:

“1. The geographical area served by the North County Branch of the Superior Court and the North County Judicial District is identical.

“2. Jury veniremen for the North County Branch of the Superior Court are drawn from the North County Judicial District.   The North County Branch of the Superior Court and the Municipal Court of the North County Judicial District utilize the same jury venire.

“3. The North County Judicial District is a community for purposes of assessing the composition of the jury venire.

“4. The composition of blacks in the community and the jury venire are not disparate.

“5. The composition of the jury venire served by the geographical area of the North County Branch of the Superior Court and the North County Judicial District is identical, not disparate, and representative of the community.

“Therefore, the motion of the defendant to transfer the case to the downtown court house for trial is denied.”

O'Hare then filed a second petition for writ of mandate which was denied on grounds there was no abuse of discretion.   The California Supreme Court granted O'Hare's petition for review of the denial of his petition for writ of mandate.   On transfer of the matter, we issued an alternative writ.

DISCUSSION

O'Hare's fundamental contention is that he is constitutionally entitled to a jury drawn from the entire County of San Diego rather than some construct of a northern county subdivision.

I

The Sixth Amendment right to an “impartial jury,” 5 which undergirds most of the constitutional law applicable to jury selection procedures, has been interpreted to entitle a criminal defendant to a jury “selected from a fair cross section of the community.”  (Duren v. Missouri (1979) 439 U.S. 357, 359, 99 S.Ct. 664, 666, 58 L.Ed.2d 579;  see also Thiel v. Southern Pac. Co. (1946) 328 U.S. 217, 220, 66 S.Ct. 984, 985, 90 L.Ed. 1181;  Brown v. Allen (1953) 344 U.S. 443, 474, 73 S.Ct. 397, 416, 97 L.Ed. 469;  Williams v. Florida (1970) 399 U.S. 78, 100, 90 S.Ct. 1893, 1905, 26 L.Ed.2d 446;  Taylor v. Louisiana (1975) 419 U.S. 522, 527, 95 S.Ct. 692, 696, 42 L.Ed.2d 690.)   Virtually all the decisions in this area focus on the use of the jury selection process to exclude cognizable groups within that community, such as women, racial minorities or wage earners.  (See, e.g., Duren, supra [women];  Taylor, supra [women];  Alexander v. Louisiana (1972) 405 U.S. 625, 92 S.Ct. 1221, 31 L.Ed.2d 536 [blacks];  Thiel, supra [wage earners];  Smith v. State of Texas (1940) 311 U.S. 128, 61 S.Ct. 164, 85 L.Ed. 84 [blacks].)   Less frequently addressed is the question of what constitutes the “relevant community” from which a fair cross section must be drawn to comprise the venire.6

 It is important to recognize at the outset that this issue of “community” is related to but nonetheless distinct from questions of “vicinage.”   As interpreted by our 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.” 7  (See also Williams v. Florida, supra, 399 U.S. at pp. 93–96, 90 S.Ct. at pp. 1902–03.)   Here, there is no question but that O'Hare's jury would be drawn from an area which includes the location of the crime.

O'Hare suggests, however, that the Sixth Amendment's cross-sectional requirement implies an additional limitation on the government's power to define the “community” against which the demographics of the venire are measured.   In other words, O'Hare's argument is not a procedural one, questioning the means by which the venire was selected from an agreed-upon community.  (Compare, e.g., Duren v. Missouri, supra, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 [challenging the effect of state statute automatically excluding women on request];  People v. Harris (1984) 36 Cal.3d 36, 201 Cal.Rptr. 782, 679 P.2d 433 [challenging the exclusive use of voter registration lists in choosing the venire].)   Instead, he focuses on the notion of “community” itself, asserting that in addition to a means-oriented limitation, the Sixth Amendment also imposes a substantive requirement as to the size of the community which may serve as the source of the venire.   Thus, according to O'Hare, the government cannot create artifically small judicial districts which distort the demographics of the larger community and that, at least in the case of San Diego County, the relevant “community” must be deemed to include the entire county.

Unfortunately for O'Hare, 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.   In Williams v. Florida, supra, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446, the Supreme Court extensively reviewed the developments which led to the adoption of the Sixth Amendment in 1789.   The common law “vicinage” concept, which by colonial times had come to be understood as requiring a jury drawn from the county in which the crime occurred, was only partially incorporated into the Sixth Amendment.   Congress was concerned that the common law requirement was too strict.  (Id., at pp. 95–96, 90 S.Ct. at p. 1903.)   Thus, Williams 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.”  (Id., at p. 96, emphasis added, fn. omitted 90 S.Ct. at p. 1904, emphasis added, fn. omitted;  accord Heller, The Sixth Amendment (1951) p. 93.)

As we explained earlier, the cross-section requirement on which O'Hare bases his challenge is related to but distinct from the concept of “vicinage” as it survived in modified form in the Sixth Amendment.   Nonetheless, it would be nonsensical to take away with the cross-section hand that which was given with the vicinage hand.   In other words, Williams makes clear that the drafters of the Sixth Amendment intended there should be no limitation on the legislative power to define the confines of the “district” from which jurors in criminal trials are drawn.   We could not in good conscience respond by holding that the cross-section requirement, which after all is merely implied by virtue of the Sixth Amendment's guarantee of an “impartial” jury, imposes just such a substantive limitation on the legislative branch of government.

It is thus not surprising to find that the starting point for cross-sectional analysis has routinely been the demographics of the territory served by the court or, in a generic sense, the court's “judicial district.” 8  This is true whether the challenge is to a federal district court jury (e.g., United States v. Goff (5th Cir. 1975) 509 F.2d 825, 826) or to a state court jury drawn from a county (e.g., Duren v. Missouri, supra, 439 U.S. 357, 362–363, 99 S.Ct. 664, 667–668, 58 L.Ed.2d 579) or other local judicial district (e.g., Taylor v. Louisiana, supra, 419 U.S. 522, 524, 95 S.Ct. 692, 694, 42 L.Ed.2d 690).   We are aware of no federal case in which a defendant has even attempted to challenge Congress' delineation of a federal district on the ground it does not properly constitute the relevant “community” from which the cross-sectional venire must be drawn.   More important for the purpose of this case, federal courts have routinely approved the constitutionality of juries drawn from subdivisions of districts against challenges that the venire did not match the demographics of the district-wide community.   Chief among these decisions is United States v. Gottfried (2d Cir. 1948) 165 F.2d 360 in which Judge Learned Hand addressed a defendant's contention that the venire from which his jury was drawn, comprising only the urbanized portion of the Southern District of New York, did not constitute an appropriate “cross section of the community” because of a systematic underrepresentation of rural jurors:

“It has indeed been stated that jurors must be drafted ‘without systematic and intentional exclusion’ of any ‘geographical,’ as well as of any ‘social, religious, racial’ or ‘political’ group;  and that may well forbid the officials who draw up the lists from excluding any part of the district at their own choice.   We assume that they may not do so;  but if they do not, ‘geographical’ uniformity is satisfied for the district and circuit courts have had power since the first Judiciary Act of 1789 to divide a district territorially in the interest of an impartial trial, of economy, and of lessening the burden of attendance.   There cannot be the faintest question of the constitutionality of this statute;  the courts have again and again recognized its validity.   Furthermore, it would be impossible in practice to administer it, if it were a condition that the divisions made must be so homogeneous that they showed an equal percentage of all possible groups.   There are probably no districts in the Union, which can be divided without disclosing in the sections different racial, religious, political, social or economic percentages.   To demand that they shall not, would be a fantastic pedantry which would serve no purpose and would put an end to the statute.”  (Id., at p. 364, fns. omitted.)

(See also, e.g., United States v. Florence, supra, 456 F.2d at p. 49.)

 It is thus a well-established principle of federal law that a Congressionally-authorized judicial district or subdivision from which the venire is drawn is not subject to constitutional challenge as being either larger or smaller than the relevant “community.”   Decisions of the California Supreme Court are in accord with this principle.   Particularly relevant is People v. Jones, supra, 9 Cal.3d 546, 108 Cal.Rptr. 345, 510 P.2d 705 in which, as we discussed earlier (ante, fn. 8), the court ascribed a generic definition to the term “judicial district” as it appears in the Sixth Amendment.   Discussing both vicinage and cross-section requirements, the court held that the Amendment's guarantee of a jury drawn from the “judicial district” where the crime was committed applied to the local judicial districts which constitute subdivisions of Los Angeles County.9  Clearly implicit in that holding is a rejection of O'Hare's claim that he may be tried only by a jury drawn from the entire county, but we need not rely solely on implication.   In Jones, the Supreme Court explicitly stated, “[T]he Sixth Amendment allows the Legislature to define the total size of [the area from which the jury can be drawn] by defining the size of the judicial districts.” 10  (Id., at p. 554, fn. omitted, 108 Cal.Rptr. 345, 510 P.2d 705.)

II

 O'Hare attempts to deflect the force of the historical evidence and distinguish federal precedent by arguing that the creation of local judicial districts within counties is a sui generis issue not encountered in the federal court system where districts nearly always encompass several counties and, not infrequently, entire states.   In essence, he asserts there is a constitutionally-guaranteed but as-yet ill-defined lower size limit for venire drawing areas which the concept of “community” will not permit to be further subdivided.   While such a conceptual approach appears to us at least facially inconsistent with the historical evidence discussed earlier, we need not reject the concept in order to reject O'Hare's argument.   For even if such a minimum size requirement exists, we are convinced it is not even approached on the facts of this case.

As we noted earlier, O'Hare's argument is inconsistent with People v. Jones, supra, 9 Cal.3d 546, 108 Cal.Rptr. 345, 510 P.2d 705 in which the Supreme Court necessarily implied that trial by a jury drawn from one of several judicial districts which subdivides Los Angeles County was constitutional.   The court explained as follows:

“Although a jury drawn either from an entire county wherein the crime was committed or from that portion of a county wherein the crime was committed will satisfy the constitutional requirement of ‘an impartial jury of the State and district wherein the crime shall have been committed’ (U.S. Const., 6th Amend.) a jury drawn from only a portion of a county, exclusive of the place of the commission of the crime, will not satisfy the requirement.”  (Id., at p. 553, emphasis added, 108 Cal.Rptr. 345, 510 P.2d 705.)

The precise contention tendered by O'Hare was considered and rejected, albeit in somewhat abbreviated form, in People v. Taylor (1975) 46 Cal.App.3d 513, 120 Cal.Rptr. 762 (disapproved on other grounds in People v. Rollo (1977) 20 Cal.3d 109, 120, fn. 4, 141 Cal.Rptr. 177, 569 P.2d 771).   Taylor challenged the Los Angeles County procedure which resulted in his being tried by a jury drawn solely from the residents of the Northwest District, one of nine judicial districts in the county.   He alleged he was prejudiced by that procedure because of “the lesser percentage of black residents in the Northwest District than in the county at large․”  (Id., 46 Cal.App.3d at p. 532, 120 Cal.Rptr. 762.)   The court dismissed Taylor's argument, citing the principle “that either a county-wide or district-wide drawing for jurors is constitutionally valid.”  (Ibid.)

Taylor was decided by Division Three of the Second Appellate District.   We have considered the very recent decision of Division Seven of that District in Williams v. Superior Court (1986) 223 Cal.Rptr. 700, which considers the same issue as Taylor.   However, we are unable to understand how, in reaching a contrary conclusion, Williams fails to cite or discuss Taylor.

Williams appears to accept the proposition, consistent with People v. Jones, supra, 9 Cal.3d 546, 108 Cal.Rptr. 345, 510 P.2d 705, that the Constitution imposes no substantive limitations on the legislative power to define judicial districts from which the venire is to be drawn.  (See ante, p. 770.)   The court then cites several statutes providing that jurors are to be drawn from “the area served by the court.”   Finding such a reference ambiguous, Williams rejects the notion implicit in Taylor that such area is the geographical boundary of the district, presumably because the jurisdiction of the district branch courts over offenses committed within their boundaries is not “exclusive.” 11  Then, relying on the canon of statutory construction that statutes dealing with the same subject matter are to be harmonized, Williams turns to a juror hardship statute—Code of Civil Procedure section 203—which provides that no juror in Los Angeles County “shall be required to serve at a distance greater than 20 miles from his or her residence.”   The 20-mile radius is seized, without extensive explanation, as the definition for “the area served by the court” and, in turn, the “community” for cross-sectional analysis.12

As we have noted, Williams fails to consider the contrary precedent in Taylor and the discussion in Jones on which Taylor partially relies.   Further, Williams totally ignores the effect of the superior court rules which define the area from which the venire is drawn as being the geographic boundaries of the branch court.   Inferentially, of course, these rules strongly support the interpretation of “the area served by the court” as being the geographic branch boundaries, particularly when one considers that “[l]ocal court rules and policies have the force of procedural statutes, so long as they are not contrary to legislative enactments.”  (Shadle v. City of Corona (1979) 96 Cal.App.3d 173, 177, 157 Cal.Rptr. 624.)   Instead, however, Williams conjures an ethereal ambiguity in the statutes for the purpose of invalidating the very local rules which ought to serve as an aid in resolving the supposed ambiguity.

Finally, Williams fails to explain how a juror hardship statute could conceivably have been intended by the Legislature to define “the area served by the court” from which the venire is drawn.   In fact, the only reasonable interpretation of section 203 is that because at least some locations in Los Angeles are more than 20 miles from the courts which serve them, the hardship clause was necessary.13  It is important to recognize that if Williams' interpretation were correct, Code of Civil Procedure section 193 would preclude persons residing more than 20 miles from the courthouse from serving on a trial jury,14 thus inexplicably turning the elective exemption of section 203 (“no juror shall be required to serve ․”) (emphasis added) into a mandatory one.

For these and other reasons, we find Williams unpersuasive and decline to follow it.

III

 Finally, O'Hare argues that even if the Legislature might constitutionally define a judicial district with the same boundaries as the North County Branch, it has not done so.   Instead, the branch court's boundaries are merely the creatures of a local court rule adopted by the San Diego County Superior Court.   Accordingly, the only legislatively-defined community in San Diego County is the county itself and the jury venire, to be constitutional, must reflect a cross section of that community.

To the extent O'Hare is arguing that only the Legislature can constitutionally draw the boundaries of sub-county judicial district, we have trouble comprehending how O'Hare's constitutional right, to the extent it exists at all, can turn on who is attempting to abridge it.   While it is true we accord deference to the views of the legislative branch in matters of constitutional interpretation (e.g., United States v. Curtiss-Wright Export Corporation (1936) 299 U.S. 304, 327–328, 57 S.Ct. 216, 224, 81 L.Ed. 255;  Delaney v. Lowery (1944) 25 Cal.2d 561, 569, 154 P.2d 674), we extend similar deference to the executive department as well (see, e.g., Pocket Veto Case (1929) 279 U.S. 655, 690, 49 S.Ct. 463, 470, 73 L.Ed. 894).   It would be a curious comment indeed were we to view the understanding of constitutional rights possessed by judicial officers such as to warrant less deference than we show the legislative and executive branches of government.

Moreover, we think we can assume without considerable controversy that legislatively-defined judicial districts may not be subdivided without legislative authorization.   In the absence of such authorization, a local court rule purporting to create subdivisions would presumably be “contrary to legislative enactments” and hence not “have the force of procedural statutes” normally accorded court rules.  (Shadle v. City of Corona, supra, 96 Cal.App.3d at p. 177, 157 Cal.Rptr. 624;  see also Gov. Code, § 68070.)

O'Hare admits that the Legislature has authorized the creation of judicial districts within subdivisions of Los Angeles County in Government Code section 69641.15  He asserts, however, that no such authorization extends to San Diego County.   O'Hare is correct that there is no statute similar to section 69641 authorizing the board of supervisors to divide San Diego County into otherwise undefined judicial districts.   There is, however, specific legislative authorization for the superior court to hold continuous daily sessions in Vista (Gov. Code, § 69595.5) and, most importantly, specific legislative expression that the jurors hearing cases in Vista sessions need not be drawn from the county as a whole.  Code of Civil Procedure section 206a provides:

“In counties where sessions of the superior court are held in cities other than the county seat, the names for master jury lists and qualified jury lists to serve in said cities may be selected from the supervisorial district in which said city is located and, if the judges of the court determine that it is necessary or advisable, from a supervisorial district adjacent to the supervisorial district in which said city is located.”

Thus, excepting the fact that in Los Angeles County the board of supervisors has designated the local judicial district boundaries whereas in San Diego they are designated by local court rule promulgated by the superior court, there is no functional difference between the two branch court systems.   In both cases, the entity drawing the boundary lines has legislative authorization to do so.   No precedent of which we are aware could suggest that what the Legislature can properly delegate to a local board of supervisors it cannot properly delegate to a local superior court.   Moreover, abundant federal precedent including decisions of the United States Supreme Court approves the constitutionality of a Congressional enactment delegating to federal district courts the authority to subdivide federal districts into divisions and to draw jurors solely from the division in which the court sits.  (E.g., Ruthenberg v. United States (1918) 245 U.S. 480, 482, 38 S.Ct. 168, 169, 62 L.Ed. 414;  United States v. Gottfried, supra, 165 F.2d at p. 364;  Zicarelli v. Dietz, supra, 633 F.2d at pp. 317–318;  see also Heller, The Sixth Amendment, op. cit. supra, at pp. 96–97.)

While it is true we held in Johnson v. Superior Court, supra, 163 Cal.App.3d 85, 209 Cal.Rptr. 425 that it was improper to limit selection of the venire strictly to the relevant supervisorial district, our conclusion was based on the fact that the supervisorial district was considerably smaller than the geographic boundaries of the North County Branch.  (Id., at p. 88, 209 Cal.Rptr. 425.)   Such a system would inevitably run afoul of the requirements in People v. Jones, supra, 9 Cal.3d 546, 108 Cal.Rptr. 345, 510 P.2d 705 since a jury selected to try a case involving an offense committed within the branch court boundaries but outside the supervisorial district would not be a jury drawn from residents of an area which includes the location where the crime was committed.   We specifically invited the superior court to attempt to fashion a remedy short of transferring all criminal cases to the Downtown Branch.  (Johnson v. Superior Court, supra, 163 Cal.App.3d at pp. 88–89, 209 Cal.Rptr. 425.)

We are aware that our abbreviated discussion in Johnson contains language which can be interpreted to suggest that the county is the only relevant “community.”   Relying on this language, O'Hare argues that although a branch-wide venire is now being used, he is no better off than Johnson was as far as inclusion of jury eligible blacks is concerned.16  From a practical standpoint, his argument is facially appealing but as a principle of jury selection, it proves too much.   As we have explained, the 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.  (See United States v. Gottfried, supra, 165 F.2d 360, 364.)   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.  Johnson did not hold that it was not;  to the contrary, that decision says a supervisorial district is not proper because it was not the same as the judicial district, and “[a]s such, it cannot be considered the community for purposes of assessing the composition of the jury venire.”  (Johnson v. Superior Court, supra, 163 Cal.App.3d at p. 88, 209 Cal.Rptr. 425.)   Here, however, we do have a judicial district, originally defined for the municipal court, but by local rules made applicable to the Vista 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.17  (See Code Civ.Proc., §§ 193, 197, 203, 204.5, 206, 206a.)

IV

It is in a sense paradoxical that the pluralistic nature of our society is at the same time a source of strength and a source of conflict for this state and nation.   Courts in particular have been torn between the practical need to recognize differences in race, ethnicity, gender and religion for the purpose of rectifying discrimination and our aspirational goal that such differences are and should be irrelevant.  (See generally University of California Regents v. Bakke (1978) 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750;  see also Bakke v. Regents of University of California (1976) 18 Cal.3d 34, 132 Cal.Rptr. 680, 553 P.2d 1152.)

In the area of a criminal defendant's right to be tried by an impartial jury of his peers, however, we have firmly and unequivocally rejected the notion that a defendant cannot get a fair trial unless the jury contains some given number of persons sharing the defendant's personal characteristics.  (Taylor v. Louisiana, supra, 419 U.S. at p. 538, 95 S.Ct. at p. 701;  Apodaca v. Oregon (1972) 406 U.S. 404, 413–414, 92 S.Ct. 1628, 1634, 32 L.Ed.2d 184 [plur. opn. of White, J.].)   In fact, given the ever-increasing mobility of our society, the jury which decides a defendant's guilt or innocence may have very little relationship to the defendant at all.   The constitutional principles which guarantee a local jury require that jurors be selected from an area which includes the scene of the crime, which is not necessarily the same as or even close to the location where the defendant resides.

What the Sixth Amendment does guarantee to every defendant, regardless of his personal characteristics, is a jury drawn from a venire from which no member of the local community was arbitrarily or unnecessarily excluded.   Because O'Hare has not claimed that any cognizable group of persons in the North County Judicial District was excluded from the venire, and because the Legislature has authorized the North County Branch to draw jurors from less the entire county, we hold there is no constitutional or statutory impediment to the use of a venire drawn solely from the population of the North County Judicial District for purposes of the trial of criminal cases in the North County Branch.18

DISPOSITION

Writ denied.

I respectfully dissent.

To deny this petition is to compel O'Hare to go to trial, selecting a jury panel where there is an overwhelming disparity (1 to 3) in the percentage of blacks in the jury venire in the North County area when compared with the countywide jury venire.   To accomplish this unfair result—a near denial of due process—the majority would overrule a sound, constitutionally-wise recent decision of this very court, Johnson v. Superior Court (1984) 163 Cal.App.3d 85, 88, 209 Cal.Rptr. 425.   This court should follow Johnson, remand this cause to the trial court allowing the petitioner if he wishes to have this case transferred downtown.   This is a “reasonable,” if not the only, solution to this overwhelming discrepancy.   Arguments concerning convenience are weightless when posited against the right of petitioner to have a jury venire more representative of the community as a whole.  (Ibid.)  Neither this court nor the superior court can, absent statutory authority, create by judicial fiat an artificial community which is rife with inherent fundamental unfairness.   The following specifics certify as to the soundness of the Johnson decision and the errors promulgated in the majority opinion in refusing to follow Johnson.

I

A felony defendant has a constitutional right to trial by jurors who fairly represent the population of the community where the alleged offense was committed.  (U.S. Const., Sixth Amend.;  Cal.Const., art. I, § 16;  Duren v. Missouri (1979) 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579;  People v. Wheeler (1978) 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748;  People v. Harris (1984) 36 Cal.3d 36, 201 Cal.Rptr. 782, 679 P.2d 433.)   The requirement that a jury be truly representative dates back to the decision in Smith v. Texas (1940) 311 U.S. 128, 61 S.Ct. 164, 85 L.Ed. 84, where Justice Black said:

“It is part of the established tradition in the use of juries as instruments of public justice that the jury be a body truly representative of the community.   For racial discrimination to result in the exclusion from jury service of otherwise qualified groups not only violates our Constitution and the laws enacted under it but is at war with our basic concepts of a democratic society and a representative government.”  (Id., at p. 130, fn. omitted, 61 S.Ct. at p. 165, fn. omitted.)

“[I]mpartiality achieved through representativeness” is vital to the right of jury trial.  (People v. Wheeler, supra, 22 Cal.3d 258, 267, 148 Cal.Rptr. 890, 583 P.2d 748, citing Glasser v. United States (1942) 315 U.S. 60, 85, 62 S.Ct. 457, 86 L.Ed. 680.)   Underinclusion of a cognizable minority group on a jury venire violates the fair cross-section principle and the underlying constitutional right to trial by an unbiased jury.  (People v. Wheeler, supra, 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748;  Duren v. Missouri, supra, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579;  Taylor v. Louisiana (1975) 419 U.S. 522, 530, 95 S.Ct. 692, 697, 42 L.Ed.2d 690;  Peters v. Kiff (1972) 407 U.S. 493, 500, 92 S.Ct. 2163, 2167, 33 L.Ed.2d 83.)

Twice this court has held in San Diego County a venire drawn exclusively from the North County area is underinclusive of black persons, infringing a felony defendant's right to trial by a fair cross-section of the county.   Twice we have mandated relief for defendants faced with trial by juries drawn from the constricted North County venire.   In Marshall v. Superior Court (Apr. 8, 1980) 4 Civ. 22633, an original proceeding, we ordered transfer of Marshall's felony trial downtown based on a showing of underinclusion of blacks on that North County venire due to ineligibility for jury service of military personnel from Camp Pendleton.   In Johnson v. Superior Court, supra, 163 Cal.App.3d 85, 209 Cal.Rptr. 425, this court (speaking through Butler, J.) held the Fifth Supervisorial District was an inappropriate area from which to draw a felony jury in San Diego County because again such draw results in a panel underinclusive of blacks as compared with the county and because a supervisorial district is not a judicial district.   In both Marshall and Johnson, this court recognized, gave effect to two important constitutional rights of those defendants:  to be tried by a representative jury and to be treated equally with other felony defendants in the county.   Those decisions committed this court to the legal and factual position that a North County venire is unfairly under-representative of black persons;  therefore a felony defendant in this county may not be tried, over his objection, by a jury drawn from such a panel.

II

In this decision the majority would turn their backs on that constitutionally sound course this court has charted.   O'Hare, a felony defendant whose alleged offense occurred in the north part of the county, is to be treated differently from the defendants Marshall and Johnson.   It was stipulated that the venire faced by Johnson and by O'Hare here are equally, virtually identically, underrepresentative of blacks compared with a countywide population.   Johnson on that basis was permitted a trial under different conditions, as was Marshall earlier;  O'Hare is not.   On what distinction can this differing treatment be based?   The majority points to the change from the Fifth Supervisorial District to the North County Municipal Court Judicial District.   This circumstance, it is claimed, justifies a different result.   However, the venire of the municipal court has no juristic relationship to the superior court, a countywide court whose broader jurisdiction justifies its greater powers.   While this is a change in the basis for the venire, it changes not one whit the actual composition of the North County venire.   The disproportionate disfavoring of black defendants remains the same.   The majority offers unsubstantiated claims of inconvenience as the only further justification to treat O'Hare differently from Johnson, from Marshall, or from felony defendants generally in San Diego County.   Thus, O'Hare will have a jury less apt to include black persons due solely to the fortuitous circumstance that his alleged offense was committed in the territory of the North County Municipal Court.

By what magical legal legerdemain has the territory of an inferior court—where O'Hare will not be tried—become the suitable basis from which to draw his felony jury?   No case is discovered that holds the vicinage of an inferior court may be the suitable vicinage for the trial court of general jurisdiction, without express legislative authority for such a result.   The majority cites none.   This dissenter has found none.

The jury is properly drawn, sound authorities hold, from the legislatively defined territory of the court of trial, or absent such legislative definition, from the area of the court's venue—normally, for a state trial court, the county.   Here, the San Diego Superior Court sits in San Diego County;  it is the court of general trial jurisdiction and the court where felonies committed anywhere in the county are tried;  its territorial area, the community it serves, is San Diego County.   No statute or case authority permits court personnel to arbitrarily draw the jury from a subdivision of the county.

The traditional source of jurors for felony trials is the county.  (People v. Crenshaw (1984) 161 Cal.App.3d 702, 207 Cal.Rptr. 779.)   Exceptions are countenanced only when legislatively created.  “Thus, although the counties of the several states are, with apparent universality, treated as the proper venue and source of jurors for felony trials, respect will nevertheless be shown the legislative creation of judicial districts.”  (Id., at p. 706, 207 Cal.Rptr. 779.)   In Crenshaw, the defendant was found to have no right to a vicinage narrower than the entire county.   The community from which jurors must be drawn, in the absence of legislatively created districts, is the county.

In Johnson v. Superior Court, supra, 163 Cal.App.3d 85, 209 Cal.Rptr. 425, this court made it clear that the proper basis for reviewing the composition of the jury may be a legislatively created judicial district, but “neither the Fifth nor North County is a separate judicial district.”  (Id., at p. 88, 209 Cal.Rptr. 425.)   This is a direct holding that “North County,” whatever that reference may mean, is not a judicial district and not a proper basis for a jury venue.   The area known as “North County” includes a judicial district, the North County municipal court district, but that district is not a judicial district for the superior court.

Further, Johnson also establishes the disparity between the makeup of North County and metropolitan juries, in felony cases, is constitutionally impermissible unless a compelling state interest can be shown.  (Johnson v. Superior Court, supra, 163 Cal.App.3d 85, 88, 209 Cal.Rptr. 425, citing People v. Pervoe (1984) 161 Cal.App.3d 342, 349, 207 Cal.Rptr. 622.)   Johnson points out the complete absence of facts showing any such compelling interest:

“However, there are no facts in this particular case to show that North County is any more convenient.   There is no showing the witnesses live or work in the area.   There is nothing said about North County being especially convenient for the district attorney.   It is not necessary for us to rule on whether convenience of witnesses and jurors alone is sufficient to justify, depriving the petitioner of his right to a venire that reasonably reflects the composition of the community.   Here, there are no facts to support the court's assertion that convenience is a compelling state interest.”  (Johnson, supra, 163 Cal.App.3d 85, 88, 209 Cal.Rptr. 425.)

Faced here with the identical venire condemned in Johnson, one searches in vain for any compelling state interest to justify the different result announced today.   No evidence in this record supports a conclusion the North County branch operations will suffer in any way if felony defendants are freely permitted to transfer downtown on request.   Current ongoing practice dictates otherwise.   Since the decisions in Marshall and Johnson, felony defendants have been permitted such transfers.   There is no report the Vista operation is yet out of business.   Sheer speculation of possible efficiency loss in the system cannot justify (1) abridgement of constitutional rights and (2) disparate treatment of felony defendants in the county based on irrelevant questions of location.

III

In the administration of criminal justice, to protect an accused's fundamental civil rights, our society has accommodated many additional expenses, delays, inroads of many kinds upon public efficiency, economy, even on the truth finding function itself, as in the exclusion of relevant but illegally obtained evidence.   Yet here, on the basis of a mere spectre of increased costs and administrative difficulties, the majority countenances abrogation of two fundamental constitutional rights, that of jury trial by one's peers and that of equal treatment with similarly situated persons.   The majority would reject the wise, legally sound course charted in Marshall and in Johnson and abandon the constitutionally required commitment to assuring as fair as possible a venire for all felony defendants in this county, including those who happen to be charged with matters occurring some 40 miles north of downtown.

The majority suggests the principles urged by O'Hare prove too much and will lead to claims for drawing the jury from areas greater than one county.   O'Hare does not request a nationwide venire or any venire excepting one conformable to long-established principles of fairness—due process.   He seeks the same venire afforded other felony defendants in San Diego County:  a countywide venire—no more, no less.   Present technology is possibly sufficient to the task of providing him that venire, either by a short freeway jaunt of jurors to North County or better by lawyers and witnesses coming to the county courthouse.1

I emphasize and reiterate, this record contains no evidence whatsoever showing hardship, present or future, to the state.   We do not know how many felony defendants triable in North County will elect to stand on their rights to a countywide venire.   We do not know how many jurors will take advantage of the 25-mile hardship exemption and refuse to travel from downtown to North County, if asked to do so.   We do not know what it would cost to move the average felony trial to downtown or the average criminal jury from downtown to Vista.   What we do know stands in stark and simple contrast to all this speculation:  North County defendants are not getting the same venire as other county defendants and those venires differ significantly in their percentage inclusion of black persons.

IV

Los Angeles County cases cited by the majority permitting a less than countywide draw are not in point, not controlling.   These cases are based on a legislative decision to subdivided the county court, a decision which is presumably the result of informed choice, which represents the will of the people and which is therefore entitled to deference if not entirely arbitrary.   The decision to create several county courts was appropriately made by the Legislature.   As factual foundation, such decision requires hearing testimony, analysis regarding convenience, distances traveled, concentrations of populations and availability of transportation facilities.   The Los Angeles County cases, such as People v. Taylor (1975) 46 Cal.App.3d 513, 120 Cal.Rptr. 762, merely hold such a legislative choice is reasonable and permissible, and the legislatively defined judicial district thus resulting is therefore a valid area of jury draw even when the resulting venire is not the same as one from a countywide draw.

Here, however, the choice to restrict the jury venire for persons in O'Hare's situation was not made by a Legislature after due deliberation.   It was arbitrarily made by unknown administrative persons based on what “they” perceived as convenience, economy or some other unknown considerations.   It is constitutionally intolerable to abridge a defendant's right to trial by his peers based on an arbitrary, nonrepresentative, bureaucratic choice resting on undisclosed and possibly indefensible considerations.   No case permits a situation such as this.

The recent Los Angeles decision in Williams v. Superior Court (1986) 223 Cal.Rptr. 700, referred to in the majority opinion, well illustrates the pitfalls of departing from regular, legislatively ordained areas of jury draw.   The result in Williams is a Jan Steen kitchen scene.  Williams authorizes drawing the jury from a circle of a 20-mile radius around the Santa Monica courthouse.   A good part of that circle will fall entirely outside the area served by the court (either in Ventura County or in the ocean).   The segment of the circle falling within the court's area may not coincide with the actual district which the court serves.   The “community” from which the jury will come will be entirely artificial and arbitrary, will be subject to change for irrelevant reasons (e.g., the question of the proper area for hardship exemptions).   Such tinkering with the idea of the “community” served by the court amounts to an impermissible manipulation of a fundamental right.   The defendant's right to be judged by residents of the community served by the court and the rights of those residents to judge the defendants are both abridged, without valid justification.

V

We deal here, not with a trivial procedural defense advantage, but rather with a fundamental constitutional right which is integral to the truth finding process of the criminal law.   Criminal juries must be drawn from all segments of the relevant community so as to exclude no special outlook, background, knowledge or experience.   Breadth of viewpoint maximizes the possibility of a fair result.

“The importance of adherence to the cross-sectional concept has been recently expressed by the Supreme Court of the United States in Peters v. Kiff, [ (1972) ], 407 U.S. 493 [92 S.Ct. 2163, 33 L.Ed.2d 83]․  Therein it was stated [citation]:  ‘When any large and identifiable segment of the community is excluded from jury service, the effect is to remove from the jury room qualities of human nature and varieties of human experience, the range of which is unknown and perhaps unknowable.   It is not necessary to assume that the excluded group will consistently vote as a class in order to conclude, as we do, that their exclusion deprives the jury of a perspective on human events that may have unsuspected importance in any case that may be presented.’

“An eminent federal judge has recently stated:  ‘The ideal is to select a jury that represents a cross-section of the community from which it is drawn.   Although no group should have a veto power over convictions, each should have the right to participate in the process of determining guilt or innocence.   If the jury is to remain a revered institution, it must be perceived truly as a jury of one's peers.’  (Irving R. Kaufman, Harbingers of Jury Reform (1972) 58 A.B.A.J. 695, 696.)”  (Adams v. Superior Court (1972) 27 Cal.App.3d 719, 728, 104 Cal.Rptr. 144.)

Further, the underlying assumption of a plethora of cases, federal and California, is a scrupulous avoidance of any systematic exclusion of minorities from juries.   This is often perceived as a self-evident truism:  a person of minority extraction is more likely to be treated fairly, without prejudice, if at least some persons of similar extraction or persuasion have the opportunity to or do sit on the jury.   O'Hare's claim is not an abstract right of inclusion for inclusion's sake.   To counter the inevitable problems of racism and bigotry still extant in late twentieth century America, there is a critical need to maximize the inclusion of diverse viewpoints on juries which decide such important issues as liberty or incarceration or even life and death.   As the California Supreme Court has said:

“In Wheeler, which involved the use of peremptory challenges by the prosecutor to exclude Black jurors, we held that the exclusion of prospective jurors solely on the ground of group biss violates the right to trial by a jury drawn from a representative cross-section of the community.  [Citation.]  Detailing a series of decisions by the United States Supreme Court holding that an impartial jury must be drawn from a representative cross-section of the community, Justice Mosk noted ‘[t]he rationale of these decisions, often unstated, is that in our heterogeneous society jurors will inevitably belong to diverse and often overlapping groups defined by race, religion, ethnic or national origin, sex, age, education, occupation, economic condition, place of residence, and political affiliation;  that it is unrealistic to expect jurors to be devoid of opinions, preconceptions, or even deep-rooted biases derived from their life experiences in such groups;  and hence that the only practical way to achieve an overall impartiality is to encourage the representation of a variety of such groups on the jury so that the respective biases of their members, to the extent they are antagonistic, will tend to cancel each other out.’  (People v. Wheeler, supra [22 Cal.3d] at pp. 266–267, fns. omitted [148 Cal.Rptr. 890, 583 P.2d 748].)”  (People v. Harris (1984) 36 Cal.3d 36, 49, 201 Cal.Rptr. 782, 679 P.2d 433.)

This court faithfully adhered to these principles in Johnson, saying only a compelling state interest could justify a result whereby significant differences in jury eligible black persons were found on the venire for the community—the county—and for the North County area.   Here, not only is no compelling state interest established, one is not even hinted.   What is raised is the administrative convenience of persons involved in the criminal process;  this is a mirage when compared to the real probability that O'Hare is more likely to be unfairly treated by a jury drawn from the North County venire, than by one from the entire county.

The California Supreme Court has declared when a jury venire is shown to be underinclusive of a cognizable group in the community, it is presumptively invalid.  (People v. Wheeler, supra, 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748;  People v. Harris, supra, 36 Cal.3d 36, 201 Cal.Rptr. 782, 679 P.2d 433.)   As Harris points out, the People may in a proper case rebut such showing of invalidity by demonstrating there really is no difference between the percentage of jury eligible minority persons in the venire used, as compared with a communitywide venire.   Here, however, no such rebuttal can occur, because by stipulation the parties agree the venire for North County has significantly less black persons than that for San Diego County.   The People have stipulated to the unconstitutional result.   Such result rests not on legislative choice nor judicial precedent—it in fact contravenes precedent in this very court—but rather stems from the arbitrary and unsupported preferences of court personnel, along with the filing decisions of the office of the district attorney.

VI

Finally, equal protection of the laws requires similarly situated persons be treated similarly before the law.  (Purdy & Fitzpatrick v. State of California (1969) 71 Cal.2d 566, 578, 79 Cal.Rptr. 77, 456 P.2d 645.)   Here, in the trial of serious felony matters in San Diego County, composition of the jury panel will differ significantly depending on whether the offense takes place in northern San Diego County or somewhere else in the county.   This difference will depend on whether the offense is committed within or without the territorial jurisdiction of a municipal court where the case will not be heard.   No legal, no practical justification has been shown for such disparate treatment of the criminally accused in this county.   Such a result is shocking and profoundly unjust.

The “affirmative action” which may be here required of the county to insure fair and equal treatment of felony defendants is but a trifle, for all this record shows, compared to the massive efforts of state and federal governments to alleviate the evils of racism in schools, in employment and in many other areas of human enterprise.   Our resilient social fabric which has weathered school busing and preferential hiring will easily endure the minor crisis occasioned by allowing felony defendants in this county the option of a trial in the downtown courthouse or providing some other accommodation permitting a countywide draw for the venire.   I perceive no reason to compel a defendant to submit to trial by a jury which is less likely to provide a fair and true result than is a jury drawn from the county.   That a jury underinclusive of blacks is less likely to provide a fair and true result is beyond argument.   (People v. Harris, supra, 36 Cal.3d 36, 59, 201 Cal.Rptr. 782, 679 P.2d 433;  People v. Wheeler, supra, 22 Cal.3d 258, 266–267, 269–270, 148 Cal.Rptr. 890, 583 P.2d 748.)   To foist such a jury on a defendant with no better reasons than bureaucratic convenience or local feelings—if these be reasons—is indefensible.

I would grant the writ.

FOOTNOTES

1.   The request for transfer is moot as to O'Hare because the trial court has agreed to transfer his trial to the Downtown Branch.   The parties have, however, stipulated that the petition and responses not be withdrawn because the issue concerning the North County jury venire is an issue of continuing public interest which will recur.   The matter should be considered by the appellate court since the briefing is complete.   We have discretion to decide the issue.  (Daly v. Superior Court (1977) 19 Cal.3d 132, 141, 137 Cal.Rptr. 14, 560 P.2d 1193;  Okuda v. Superior Court (1983) 144 Cal.App.3d 135, 137, fn. 1, 192 Cal.Rptr. 388.)

2.   O'Hare makes no contention that his rights under the California Constitution (see art. 1, § 16) are greater than those guaranteed by the Sixth and Fourteenth Amendments.

3.   For our purposes, the principal exception appears to be that all cases initiated by grand jury indictment are filed in the Downtown Branch, regardless of where the crime was committed.

4.   We refer to the geographical area from which jurors for the North County Branch are drawn as the North County Judicial District.   We recognize that this area is technically a “judicial district” for municipal but not superior court purposes.

5.   The text of the Sixth Amendment provides in relevant part:“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, ․”

6.   Obviously, once it is established that there is a significant disparity between the demographics of the venire and the demographics of the “community,” it becomes incumbent on the government to demonstrate a compelling state interest to support the disparity.  (See Johnson v. Superior Court, supra, 163 Cal.App.3d at p. 88, 209 Cal.Rptr. 425;  see also dis. opn., post, pp. 777 – 778.)   Here, because we conclude the relevant “community” is the North County Judicial District, there is no disparity (i.e., the venire mirrors the community) and no need to address any asserted state interest.   As is apparent from our opinion and contrary to the repeated suggestions in the dissent, we do not rely on “administrative convenience” to support our holding.  (See dis. opn., post, pp. 776, 777, 778, 778, 778 – 779, 780.)

7.   The issue has never been definitively addressed by the United States Supreme Court.   Decisions of lower federal courts are to the contrary.  (E.g., Zicarelli v. Gray (3d Cir.1976) 543 F.2d 466, 479;  United States v. Florence (4th Cir.1972) 456 F.2d 46, 49–50;  Franklin v. United States (5th Cir.1967) 384 F.2d 377, 378.)

8.   We specify the generic “district” because the concept of “district” in the federal courts has developed a very specific meaning referring to the federal trial court.   The Sixth Amendment being generally applicable to the states through the Due Process Clause of the Fourteenth Amendment (Duncan v. Louisiana (1968) 391 U.S. 145, 149, 88 S.Ct. 1444, 1447, 20 L.Ed.2d 491), the California Supreme Court in People v. Jones, supra, 9 Cal.3d 546, 108 Cal.Rptr. 345, 510 P.2d 705 gave “district” a generic meaning in holding that the Sixth Amendment guarantees a jury drawn from the district in which the crime was committed.  (Id., at pp. 554, 556, 108 Cal.Rptr. 345, 510 P.2d 705.)   Federal circuit courts, in reaching conclusions contrary to Jones, have interpreted the Sixth Amendment's reference to “district” to mean the territories of the federal district courts.  (See cases cited ante, fn. 7;  see especially Zicarelli v. Gray, supra, 543 F.2d at p. 477, fn. 59;  Zicarelli v. Dietz (3d Cir.1980) 633 F.2d 312, 325.)

9.   Although the court noted the racial disparity between the district in which the crime was committed (31%) compared with the district in which Jones was tried (7%), it did not rely on this disparity, explaining that “even if the two judicial districts had contained an identical proportion of Negroes, defendant would still be entitled to a jury drawn from a panel including residents of the judicial district where the crime was committed.”  (People v. Jones, supra, 9 Cal.3d at p. 555, 108 Cal.Rptr. 345, 510 P.2d 705.)   This conclusion demonstrates that the court's holding was based primarily on the vicinage concept and not on the cross-section requirement.

10.   The court continued:“Thus, while the outer limits of the ‘district’ as used in the Sixth Amendment are flexible, encompassing greater or smaller areas as the Legislature deems wise, the mandate of the Sixth Amendment remains immutable.   The district, however large or small, from which the jury is drawn must include the area wherein the crime was committed.”  (People v. Jones, supra, 9 Cal.3d at p. 554, emphasis added, 108 Cal.Rptr. 345, 510 P.2d 705.)

11.   We do not presume any expertise on the operation of the Los Angeles branch court system, and the factual description in the Williams opinion is of a summary nature.   We do not think, however, that the mere fact that in some limited circumstances criminal cases may be tried outside of the district in which the offense was committed necessarily demonstrates that “the area served by the court” is not the area within the district boundaries.

12.   It is significant to note that section 203 applies only to Los Angeles County.   Other counties are governed by the general provisions of Code of Civil Procedure section 201a which authorizes the superior court to adopt rules for excusing prospective jurors from service by reason of hardship.   In San Diego County, prospective jurors may be excused on request if they live in excess of 25 miles from the courthouse.   (Super.Ct.Rules, Div. VI, § 1, rule 1.1(7)(2).)   We assume the automatic excuse distance may vary throughout the state.

13.   Williams relies on several of the opinions in People v. Harris, supra, 36 Cal.3d 36, 201 Cal.Rptr. 782, 679 P.2d 433 which reference the 20-mile area.   Those references occurred in the context of a case in which the defendant challenged the exclusive use of voter registration lists to select the venire for the Long Beach Branch of the Los Angeles County Superior Court, contending the practice resulted in significant underrepresentation of black and Hispanic persons.   In attempting to establish a prima facie case of underrepresentation, Harris compared the actual percentages of black and Hispanic juros serving in Long Beach with the ethnic make-up of all of Los Angeles County.   The People did not challenge Harris' use of the county-wide statistics.   In an aside, several of the justices cited Code of Civil Procedure section 203 and queried whether it would not be more appropriate to compare the ethnic make-up of the venire with that of the population living within 20 miles of the Long Beach courthouse.  (Id., at pp. 48, 201 Cal.Rptr. 782, 679 P.2d 433 [plur. opn. of Broussard, J.];   71, fn. 1, 201 Cal.Rptr. 782, 679 P.2d 433 [conc. opn. of Grodin, J.];   see also id., at p. 75, 201 Cal.Rptr. 782, 679 P.2d 433 [dis. opn. of Kaus, J.].)There is no discussion in any of the Harris opinions as to the area from which Long Beach juries are actually drawn, i.e., the area which the voter registration lists encompass.   If the Long Beach Judicial District includes areas more than 20 miles from the Long Beach courthouse, the references suggest a potential additional limitation.   Moreover, the court may have assumed that the initial venire drawn for the Long Beach Branch included all of Los Angeles County.  (Compare People v. Taylor, supra, 46 Cal.App.3d at p. 526, 120 Cal.Rptr. 762 [venire for Northwest District of Los Angeles County drawn exclusively from that district].)   In any event, the otherwise unexplained dicta in Harris provides no substantial support for the Williams' holding.

14.   Code of Civil Procedure section 193 defines a trial jury as “a body of persons returned from the citizens of the area served by the court, ․”

15.   Government Code section 69641 provides as follows:“The board of supervisors of [Los Angeles County], ․ by ordinance may divide such county into not more than nine superior court districts within which one or more sessions of the superior court shall be held.”

16.   In making the argument that O'Hare is being singled out for dissimilar treatment, the dissent repeatedly cites a pre-Johnson unpublished decision of this court, Marshall v. Superior Court, 4 Civ. 22633.  (See dis. opn., post, pp. 776, 777, 778, 778.)   We have serious questions about the appropriateness of referring to any of our prior unpublished decisions where law-of-the-case or res judicata issues are not involved.  (See Cal.Rules of Court, rule 977.)   Nonetheless, to correct any factual misconception which might arise from the citation of Marshall, we believe it important to note that this court has denied every writ petition on the North County venire issue since the selection procedure was modified following Johnson.  (Clarke v. Superior Court, D002858;  Dier v. Superior Court, D003087;  Solis v. Superior Court, D003419.)

17.   We disapprove Johnson to the extent it appears to suggest otherwise.

18.   Ordinarily, we would let the majority and dissenting opinions speak for themselves.   Here, however, we believe it necessary to comment on two levels of our differences with the dissent.   The first is founded on the observation that the disagreement between the two opinions is not so much a function of constitutional analysis as it is of statutory interpretation.   Both the majority and dissent agree that a legislatively authorized venire which is drawn from less than the entire county is constitutionally permissible.  (Compare ante, p. 773 with dis. opn., post, p. 779.)   The dissent, however, states that no such legislative authority exists without any reference to Code of Civil Procedure section 206a.  (Discussed ante, p. 773.)The second, and of more fundamental importance, is our profound disagreement with what the dissent suggests is “a self-evident truism”:  that “a person of minority extraction, or of a minority persuasion, is more likely to be treated fairly, without prejudice, if persons of similar extraction or persuasion sit on his jury.”  (Dis. opn., post, p. 780.)   Not only is this statement irrelevant in that O'Hare is white but in our view, it is also contrary to law;  it is contrary to our personal experience;  it is contrary to the spirit and meaning of our democratic society.   It connotes that justice cannot be color blind;  it connotes that a properly constituted jury must include one or more persons of the same racial and ethnic background as the defendant on trial.   This view fails to appreciate that the fabric of our justice system is based on the notion that all people are equal under the law and that individual jurors sworn to follow the law will do so regardless of their individual backgrounds.The proffered “truism” directly contradicts the entire legal theory on which O'Hare's claim is based.   The cross-section requirement rejects the notion of group prejudice as its motivating force:  the defendant need not be (and in fact often has not been) a member of the excluded group in order to assert a violation of his right to a representative jury.  (Peters v. Kiff, supra, 407 U.S. 493, 504, 92 S.Ct. 2163, 2169, 33 L.Ed.2d 83;  Taylor v. Louisiana, supra, 419 U.S. 522, 526, 95 S.Ct. 692, 695, 42 L.Ed.2d 690.)   The dissent's philosophy has also been implicitly rejected in the decisions of the United States Supreme Court holding that the Constitution does not require a representative jury, only a representative venire from which the jury is randomly drawn.  (E.g., Taylor v. Louisiana, supra, 419 U.S. at p. 538, 95 S.Ct. at p. 701 and cases there cited.)   It was then explicitly dismissed in Apodaca v. Oregon, supra, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184, where the plurality opinion addressed defendant's contention that jury unanimity was required in criminal cases to prevent the racial and ethnic majority jurors from automatically voting to convict minority defendants:  “We simply find no proof for the notion that a majority will disregard its instructions and cast its votes for guilt or innocence based on prejudice rather than the evidence.”  (Id., at pp. 413–414, 92 S.Ct. at p. 1634.)

1.   In this very case, in fact, O'Hare's trial has been moved downtown.

WIENER, Associate Justice.

BUTLER, J., concurs.