The PEOPLE of the State of California, Plaintiff and Respondent, v. Gilberto MORA, Defendant and Appellant.
Gilberto Mora was convicted of second degree murder in the shotgun death of a fellow Hispanic with whom he had been drinking and playing poker in the City of La Habra. The defense claimed the fatal shot was fired accidentally in a struggle between the two men. Mora contends he is entitled to a per se reversal because the prosecutor impermissibly employed five peremptory challenges to exclude all Hispanics from the jury without adequate justification. We agree and reverse accordingly.1
The constitutional guarantees of the right to trial by jury contained in the Sixth Amendment to the federal Constitution and article I, section 16 of the Constitution of California require “that it be drawn from ‘a representative cross-section of the community.’ ” (People v. Wheeler (1978) 22 Cal.3d 258, 266, fn. omitted, 148 Cal.Rptr. 890, 583 P.2d 748.) Nevertheless, this constitutional mandate is occasionally at odds with the statutory right of litigants “to [peremptorily] remove jurors who are believed to entertain a specific bias․” (Id., at p. 274, 148 Cal.Rptr. 890, 583 P.2d 748.)
In Wheeler the Supreme Court held the employment of peremptory challenges on the basis of group bias violative of the right to a jury drawn from a representative cross-section of the community. The majority described the constitutional line of demarcation separating permissible and impermissible peremptory challenges as follows: “[T]he law recognizes that a peremptory challenge may be predicated on a broad spectrum of evidence suggestive of juror partiality. The evidence may range from the obviously serious to the apparently trivial, from the virtually certain to the highly speculative.” (Id., at p. 275, 148 Cal.Rptr. 890, 583 P.2d 748.) Such challenges are permissible because they “share a common element: they seek to eliminate a specific bias as we have defined that term herein—a bias relating to the particular case on trial or the parties or witnesses thereto. By the same token, they are essentially neutral with respect to the various groups represented on the venire․ [¶] By contrast, when a party presumes that certain jurors are biased merely because they are members of an identifiable group distinguished on racial, religious, ethnic, or similar grounds—we may call this ‘group bias'—and peremptorily strikes all such persons for that reason alone, he ․ [¶] ․ violates the right to trial by a jury drawn from a representative cross-section of the community under article I, section 16, of the California Constitution.” (Id., at pp. 276–277, 148 Cal.Rptr. 890, 583 P.2d 748.) The United States Supreme Court, specifically following Wheeler, has recently expressed similar views in reversing a conviction in which there was reason to believe the prosecution had systematically excluded Black jurors. (Batson v. Kentucky (1986) 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69.)
Our Supreme Court has also declared that the prosecuting attorney shares responsibility with the trial court to preserve “a defendant's cross-sectional rights․” (People v. Trevino (1985) 39 Cal.3d 667, 680, 217 Cal.Rptr. 652, 704 P.2d 719; see also People v. Turner (1986) 42 Cal.3d 711, 727–728, 230 Cal.Rptr. 656, 726 P.2d 102 and People v. Hall (1983) 35 Cal.3d 161, 168–169, 197 Cal.Rptr. 71, 672 P.2d 854.) Accordingly, “the prosecutor must take care to exercise peremptory challenges for legitimate purposes only, ever mindful of the prosecutor's role as a representative of the state.” (People v. Trevino, supra, 39 Cal.3d at p. 682, 217 Cal.Rptr. 652, 704 P.2d 719.)
Obviously, Hispanics may not be systematically excluded from a jury panel (id., at p. 683, 217 Cal.Rptr. 652, 704 P.2d 719; People v. Harris (1984) 36 Cal.3d 36, 51, 201 Cal.Rptr. 782, 679 P.2d 433 cert. den. California v. Harris, 469 U.S. 965, 105 S.Ct. 365, 83 L.Ed.2d 301), nor may individuals who are daily wage earners or nonsupervisory, “blue collar” workers. (Thiel v. Southern Pac. Co. (1946) 328 U.S. 217, 225, 66 S.Ct. 984, 988, 90 L.Ed. 1181; People v. Turner, supra, 42 Cal.3d at p. 722, 230 Cal.Rptr. 656, 726 P.2d 102; People v. White (1954) 43 Cal.2d 740, 751, 278 P.2d 9, cert. den. White v. California (1955) 350 U.S. 875, 76 S.Ct. 120, 100 L.Ed. 774.) Systematic exclusion of a particular ethnic or economic group is prejudicial per se. (People v. Wheeler, supra, 22 Cal.3d at p. 283, 148 Cal.Rptr. 890, 583 P.2d 748.) And this is true where only one member of the panel is found to have been improperly challenged. (People v. Washington (1987) 188 Cal.App.3d 794, 803, 234 Cal.Rptr. 204; People v. Moss (1986) 188 Cal.App.3d 268, 277, 233 Cal.Rptr. 153.)
When the defense has made a prima facie showing of systematic exclusion based on group bias, the burden shifts to the prosecution to demonstrate the challenges were not made for that purpose. (Batson v. Kentucky, supra, 476 U.S. at p. ––––, 106 S.Ct. at pp. 1723–1724, 90 L.Ed.2d at pp. 88–89; People v. Turner, supra, 42 Cal.3d at pp. 720–721, 230 Cal.Rptr. 656, 726 P.2d 102.) Appellate courts must “rely on the good judgment of the trial courts to distinguish bona fide reasons for such peremptories from sham excuses belatedly contrived to avoid admitting acts of group discrimination.” (People v. Wheeler, supra, 22 Cal.3d at p. 282, 148 Cal.Rptr. 890, 583 P.2d 748; see also Batson v. Kentucky, supra, at p. ––––, fn. 21, 106 S.Ct. at p. 1724, fn. 21, 90 L.Ed.2d at p. 89, fn. 21, and People v. Turner, supra, 42 Cal.3d at p. 720, fn. 6, 230 Cal.Rptr. 656, 726 P.2d 102.)
With these principles in mind, we turn to the pertinent facts of this case. Mora was born and raised in Mexico and denies the ability to speak English. At the time of the offense he was a 37–year-old muffler shop welder residing in La Habra.
On the scheduled trial date, five or six jury panels were dispatched to the trial department. Defense counsel expressed his concern to the clerk concerning the small number of Hispanics represented in the venire. After some preliminary comments, the court excused the prospective jurors for lunch. Defense counsel then challenged the ethnic and occupational composition of the venire and also complained of the sparse representation of La Habra residents. Somewhat inconsistently, he also demanded a change of venue. The motions were denied.
After the prosecution had exercised 14 peremptory challenges, defense counsel moved for mistrial and renewed his motion for a change of venue. He reiterated his complaint of “so few Latinos on the jury panel” and contended the only three who had been called into the box were all excused by the prosecutor because of race. The court acknowledged the only Hispanics selected had been excluded by the prosecution and directed the deputy district attorney to justify her challenges on the basis of specific bias, as then required by People v. Wheeler, supra, 22 Cal.3d at pp. 281–282, 148 Cal.Rptr. 890, 583 P.2d 748 and now by Batson v. Kentucky, supra, 476 U.S. at p. ––––, 106 S.Ct. at p. 1723, 90 L.Ed.2d at p. 88, as well.
The prosecutor denied any racial motivation and explained her reasons for challenging each prospective juror. As to the first, she stated, “It was the People's feeling in Ms. Higgins' case, as it was with several of the other jurors—and I could name them also—but she was extremely young, that she did not have sufficient life experience to listen to, interpret, and render a verdict in this case. [¶] She had not supervised other individuals, and she had not been involved in any group decisionmaking processes and had no prior jury experience. [¶] It was the People's opinion, because of that inexperience and her youth, that she may not work well with the rest of the jurors in reaching a verdict.” In fact, this juror, who stated she was of Latin descent and understood but was not fluent in Spanish, was the divorced mother of a seven-year-old child. She had eleven years of career experience, the last six in the personnel records department of a major aerospace firm.
The second excused juror resided in La Habra and was employed as a deliveryman of automotive parts. The prosecutor explained, “Mr. Garcia was also young. He was employed as a parts person, delivered parts. He had never supervised other individuals. [¶] The only groups he has been involved with were at work in deciding where to deliver or drop off these particular parts. [¶] He lived in the La Habra area and, having had cases before where jurors go out and drive by the scene and become involved in activities which may later result in a new trial, it was the People's position as to Mr. Garcia that he should be excused for all of the above reasons.”
The third prospective juror of Hispanic heritage had adult children and after an initial comment to defense counsel suggesting a prejudice against persons who use firearms, stated she could be fair and impartial. The prosecutor said she eliminated her from the jury because, “She indicated that she would try to do her best, but as a result of her experiences with people who broke into residences, she and her husband were forced to sell a residence, a residence they planned to retire in, and basically get out of there. [¶] [The] People had reservations about her ability to be fair, in light of the fact that they were forced to sell their residence. [¶] She doesn't like people who have or own guns, and some of the People's own witnesses have and own guns. We'll be calling police officers who will be armed and wearing guns when they come to the stand[!] [¶] A lot of the other witnesses who were involved, percipient witnesses, may have or own guns of their own. [¶] And for that reason the People felt that should any of that testimony come forth, or should those facts be presented, that Ms. Futchko would have a difficult time being fair.”
Two more Hispanics were eventually called into the box, and the prosecutor exercised peremptory challenges to them as well. When defense counsel made yet another motion for mistrial based on the systematic exclusion of Hispanics, the prosecutor was again called upon to defend her actions: “Mr. Rodriguez is unemployed, has been for a year and a half, hopes to get into something like used cars. [¶] He was excused for the same reasons as [another juror] who was also unemployed and wanted time to go down and to apply for his unemployment benefits. [¶] In thinking of his traits of character, his demeanor when being questioned, he did not appear to the People to be dedicated to the cause. [¶] Not that he laughed a lot; that's not what I want to say, but he was somewhat flippant in his responses and had never engaged in any meaningful group decision-making processes, had no prior experience as a juror.”
Unlike another unemployed prospective juror, however, the bilingual Rodriguez testified jury duty would not interfere with his trips to the unemployment office. He had a high school education and was currently working informally with a friend with whom he planned to go into automotive sales. Rodriguez, of Puerto Rican heritage, was subjected to numerous questions concerning his ability to be fair and not to be pressured into a decision by other panel members. He had been chosen to sit on a jury the week before, but the matter settled. He had previously been employed as a leadman in an automotive parts manufacturing concern and was involved in group decisions “on how to get the job done better, stuff like that.”
The fifth and final Hispanic who was challenged was at least a third generation American who spoke no Spanish. He, too, was a high school graduate and was employed as a construction form setter. His fiancee's father was an officer with the Los Angeles Police Department. Although only 21 years of age, he had held various jobs during school, was currently a member of a band, and had been a boy scout.
The prosecutor's explanation for excluding this juror was enlightening: “As to Mr. Medina, the People have systematically excluded from this jury all individuals who are young and inexperienced. [¶] I could go back and name a number of jurors who have been excused because of their youthful age and their lack of experience in decision-making processes, and just dealing with other people. [¶] Mr. Medina is 21 years old, played in some kind of a band. That's the only decision-making process he was involved in. And he appeared to be immature. [¶] And the People felt that he would not work well with the other older jurors who are currently impaneled. [¶] I can name other jurors who were excused for the same reason.” (Emphasis added.)
The court accepted the prosecutor's explanations for excusing the jurors. None of the 14 jurors and alternates ultimately selected was of Hispanic origin.
The prosecutor's removal of all Hispanics from the jury was more than sufficient to sustain the defense burden of a prima facie showing of impermissible group discrimination. (See, e.g., People v. Motton (1985) 39 Cal.3d 596, 607, 217 Cal.Rptr. 416, 704 P.2d 176 and cases cited.) And the trial court properly required the deputy district attorney to justify her actions. Indulging every inference in support of the trial court's ruling (Batson v. Kentucky, supra, 476 U.S. at p. ––––, fn. 21, 106 S.Ct. at p. 1724, fn. 21, 90 L.Ed.2d at p. 89, fn. 21), however, we find the prosecutor's explanations inadequate to dispel the prima facie appearance of group bias; they should not have been accepted. The reasons she offered are remarkably similar to those found deficient by the Supreme Court in People v. Turner, supra, 42 Cal.3d 711, 230 Cal.Rptr. 656, 726 P.2d 102, People v. Trevino, supra, 39 Cal.3d 667, 217 Cal.Rptr. 652, 704 P.2d 719, and People v. Hall, supra, 35 Cal.3d 161, 197 Cal.Rptr. 71, 672 P.2d 854.
In Trevino, for example, defense counsel made a Wheeler motion after the prosecutor exercised peremptory challenges to all six Hispanics called to sit on the panel. The court deferred the motion until after the alternates were seated. The prosecutor then peremptorily struck one other Hispanic but permitted another to remain as an alternate. As here, the trial judge directed the prosecutor to justify the challenges.
The deputy district attorney explained he excluded those persons who were young or close to the age of the defendant. One juror was excluded because she was too opinionated, several others because they failed to articulate opinions. One juror demonstrated “ ‘possibly a lack of commitment’ ” to the jury process. (People v. Trevino, supra, 39 Cal.3d at p. 690, fn. 22, 217 Cal.Rptr. 652, 704 P.2d 719.) Another sat with his arms folded, which “ ‘indicated to [the prosecutor] a little bit of a closed relationship with his fellow jurors.’ ” (Ibid.) In sum, the prosecutor consciously decided to exclude those jurors who did not have sufficient “ ‘life experiences' ” for the task (ibid.); although he believed one Anglo juror's profession (he was an unemployed former accountant) “ ‘counterbalanced the possible [immaturity] [ ] and lack of life experience on his part.’ ” (Ibid.) The Supreme Court was not persuaded; nor was it in Turner, where it was held, “[T]he prosecutor's explanations were either implausible or suggestive of bias.” (People v. Turner, supra, 42 Cal.3d at p. 728, 230 Cal.Rptr. 656, 726 P.2d 102.)
The same is true here. The jury which tried Mora's case did reflect the prosecutor's stated objective to impanel older individuals in supervisory positions: At least nine of the twelve were managers or supervisors. Yet several admitted they had never been involved in group decision-making processes, and not all had previous jury experience. While one had been employed as a photographer for a year, he had been unemployed for the two previous years. Moreover, these exclusion criteria included a dubious age element (see section IV, infra ) and dangerously approached, and perhaps exceeded, the ban on the systematic exclusion of blue collar workers announced in Thiel v. Southern Pac. Co., supra, 328 U.S. 217, 66 S.Ct. 984 and People v. White, supra, 43 Cal.2d 740, 278 P.2d 9 and recently reaffirmed in People v. Turner, supra, 42 Cal.3d at p. 722, 230 Cal.Rptr. 656, 726 P.2d 102.2
While giving due deference to the trial court's ruling, we must evaluate the prosecutor's explanations independently. (People v. Washington, supra, 188 Cal.App.3d at p. 802, 234 Cal.Rptr. 204; People v. Brewster (1986) 184 Cal.App.3d 921, 925, 229 Cal.Rptr. 352; People v. Clay (1984), 153 Cal.App.3d 433, 456, 200 Cal.Rptr. 269.) Turner explains, “To the extent that a trial court's ruling on the proffered explanation of a prosecutor turns on the latter's credibility, we agree with the United States Supreme Court that ‘a reviewing court ordinarily should give those findings great deference.’ [Citation.] Our decisions demonstrate, however, ‘ordinarily’ does not mean ‘inevitably’: in some cases the reviewing court may conclude that the explanation is inherently implausible in light of the whole record. And even when there is no doubt of the prosecutor's good faith, the issue whether a given explanation constitutes a constitutionally permissible—i.e., nondiscriminatory—justification for the particular peremptory challenge remains a question of law.” (42 Cal.3d at p. 720, fn. 6, 230 Cal.Rptr. 656, 726 P.2d 102.)
In People v. Washington, supra, 188 Cal.App.3d at p. 803, 234 Cal.Rptr. 204, for example, the prosecutor defended her exclusion of a Black juror on the basis that “he was not a decision maker, he was unmarried, and spoke softly.” Not surprisingly, Division One of this court found the explanation unpersuasive; the challenge of that juror alone required reversal per se. The present facts are, if anything, stronger. Not only were the explanations given at least as hollow as those expressed in Washington, Turner, Trevino, and Hall, they sometimes bordered on the laughable.
The remarkable suggestion that a former burglary victim who was not fond of guns might be prejudiced against police officers because they generally carry them should have alerted the trial court to the bankruptcy of the prosecutor's justification for her challenges. The other explanations offered were only slightly more convincing. All of them displayed a rather obvious attempt to exclude otherwise qualified jurors for an impermissible reason and a wrongheaded assumption that the requirements of Wheeler can be satisfied so long as the prosecutor is able to conjure a reason, virtually any reason, other than those already disfavored in appellate opinions.
In short, taken at face value, we find the prosecutor's explanations for the exclusion of all five Hispanic jurors called to the jury box unpersuasive and highly suspect. As the justification for every peremptory challenge poses a question of law (People v. Turner, supra, 42 Cal.3d at p. 720, fn. 6, 230 Cal.Rptr. 656, 726 P.2d 102), we have carefully weighed and considered the deputy district attorney's defense of her actions. We conclude she failed to meet the burden of establishing that any of the five Hispanics called to the panel was rejected for a reason other than an impermissible group bias against Hispanics.3 Per se reversal is required accordingly.
In passing, we note the prosecutor's admitted attempt to systematically exclude young people from the jury finds no favor with a majority of this court.4 We could ignore the issue for the same reason we have not confronted that of occupation-based exclusions. (See ante, fn. 3.) The issue of age discrimination did not surface until we questioned counsel at oral argument and asked for and received supplemental briefing. Nevertheless, because the law is unsettled in the area and the matter is one of continuing public importance, the majority believes it useful to consider the subject, if for no other reason than to avoid another retrial of this case. The issue is both controversial and unresolved in our highest tribunals, and we are in disagreement with a number of state and federal intermediate appellate courts.
Several appellate opinions, including one from this district, have stated age discrimination in the selection of grand jurors is not tolerable. (People v. Fujita (1974) 43 Cal.App.3d 454, 475–476, 117 Cal.Rptr. 757, cert. den. Fujita v. California (1975) 421 U.S. 964, 95 S.Ct. 1952, 44 L.Ed.2d 451; People v. Superior Court (Dean) (1974) 38 Cal.App.3d 966, 970, 113 Cal.Rptr. 732.) That proposition to us appears virtually self-evident. But an earlier case from the Second District, People v. Hoiland (1971) 22 Cal.App.3d 530, 99 Cal.Rptr. 523, held to the contrary.
The reasoning of Hoiland assumes that the definition of a cognizable class requires an identifiable community of attitudes and ideas: “To describe our modern society in a world of rapid change the restrained euphemism pluralistic is often employed. It connotes diversity among peoples on individual issues combined with the idea that there is unity on larger goals. To single out one group solely on the basis of a nine-year age bracket [21–30] as having identifiable consistency in behavior, attitudes, beliefs or even prejudices within this pluralistic society is either to indulge in sheer presumption or to claim unique omniscience.” (Id., at p. 539, 99 Cal.Rptr. 523.) We confess to such a presumption or claim, if that is required.
Although the “community of ideas” notion receives frequent lip service in appellate opinions, it is inconsistent with most of the holdings and virtually useless as an analytical tool, particularly with respect to larger groups. Whites, women, members of the middle class, athletes, newsmen, licensed drivers, voters, and blue collar workers could be excluded from juries based on Hoiland's logic, in our view, as could many other numerous but discrete groups in our population. But, although it can hardly be said the members of any of them share “consistency in behavior, attitudes, beliefs or ․ prejudices,” it is obviously not permissible to exclude any of them. (See, e.g., Taylor v. Louisiana (1975) 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 and Ballard v. United States (1946) 329 U.S. 187, 67 S.Ct. 261, 91 L.Ed. 181 [women]; People v. Turner, supra, 42 Cal.3d 711, 716, 722, 230 Cal.Rptr. 656, 726 P.2d 102 [race, creed, and occupation].)
Nonetheless, a line of authority adopting the rationale of Hoiland in the specific context of Wheeler and refusing to recognize youth as a cognizable group in the selection of petit juries has arisen in the First District. (People v. Marbley (1986) 181 Cal.App.3d 45, 225 Cal.Rptr. 918; People v. Parras (1984) 159 Cal.App.3d 875, 205 Cal.Rptr. 766; People v. Estrada (1979) 93 Cal.App.3d 76, 155 Cal.Rptr. 731; disapproved on another point in De Lancie v. Superior Court (1982) 31 Cal.3d 865, 183 Cal.Rptr. 866, 647 P.2d 142.) And, although our Supreme Court has yet to address the issue specifically, in a 4–3 decision concerning the qualification of jurors based on length of residence, the court recognized Hoiland's discussion of age discrimination: “Newcomers as a class have no more (and appear to have less) legally significant commonality than 18– to 20–year olds, an incognizable class. (United States v. Olson (8th Cir.1973) 473 F.2d 686, 688 [, cert. den. Olson v. United States 412 U.S. 905, 93 S.Ct. 2291, 36 L.Ed.2d 970]; People v. Hoiland [supra ] 22 Cal.App.3d 530, 533–540 [99 Cal.Rptr. 523].)” (Adams v. Superior Court (1974) 12 Cal.3d 55, 60, 115 Cal.Rptr. 247, 524 P.2d 375; see also People v. Trevino, supra, 39 Cal.3d at p. 691, 217 Cal.Rptr. 652, 704 P.2d 719.) After Wheeler, Turner, and Batson, the continued viability of Adams is somewhat questionable; but we must also concede that most, if not all, of the federal circuits have adopted the Hoiland view. (See, e.g., Barber v. Ponte (1st Cir.1985) (en banc) 772 F.2d 982, cert. den. 475 U.S. 1050, 106 S.Ct. 1272, 89 L.Ed.2d 580; United States v. Kleifgen (9th Cir.1977) 557 F.2d 1293.)
Notwithstanding the Adams dictum, we do not subscribe to the position taken by the First District and the federal circuit courts. There is authority directly to the contrary, and to us it is far more persuasive. (E.g., Paciona v. Marshall (1974) 45 A.D.2d 462, 359 N.Y.S.2d 360, 362–363, affd. 35 N.Y.2d 289, 360 N.Y.S.2d 882, 319 N.E.2d 199; People v. Marr (1971) 67 Misc.2d 113, 324 N.Y.S.2d 608; State v. Holmstrom (1969) 43 Wis.2d 465, 168 N.W.2d 574; see also Zeigler, Young Adults as a Cognizable Group in Jury Selection (1978) 76 U.Mich.L.Rev. 1045.)
Of course, the youth of this country unquestionably comprises one of the largest and most diverse groups in society. But to permit the exclusion of young people from petit juries based on age alone suggests the bizarre notion that the greater the size of a class, the less likely it will be held cognizable for purposes of jury composition. If a minority may not be the subject of a discriminatory challenge, how could a group much larger, e.g., a majority, be excluded? The idea that size, great or small, has anything to do with the analysis is self-refuting and nonsensical. As the United States Supreme Court has noted, “Restricting jury service to only special groups or excluding identifiable segments playing major roles in the community cannot be squared with the constitutional concept of jury trial.” (Taylor v. Louisiana, supra, 419 U.S. 522, 530, 95 S.Ct. 692, 698.)
Even if the notion that diversity within the excluded class is a justification for its elimination from jury service had any merit, there is no discounting the existence of a certain commonality in the youth of this country despite its enormous numbers and diverse composition. Although trite, it is nonetheless apt to recall the phrase “generation gap.” It surely exists now and probably always has. To cite one example pertinent to the present case, this certainly should be a more tolerant generation. Many of its members were bused to schools for purposes of integration, and it reached maturity during a period of considerable relative progress toward racial equality. The civil rights upheaval of the 1960's is just a chapter in a civics text to the current generation, and Martin Luther King, Jr. but an historical figure, not a living memory.
It is a generation in which the female members—in far greater numbers than any previous period in our national experience—aspire to careers rather than the traditional role at hearth and home. This is also the first generation in which the videotape recorder, the home computer, and space exploration are facts of life and not miraculous novelties. It is the only current adult generation which has yet to experience the trauma of an American war. And it is not simply that this generation is unique. They all have been, we suspect. The music, clothing styles, tastes, and attitudes of today's youth, while not, of course, universal, are as new and different as those of any previous era.
Moreover, age is distinctive, as should be obvious, in its own right. One commentator has noted, “It has become a social scientists' truism that the young share common and distinct attitudes. The social scientists' evidence speaks to all the traditional criteria of cognizability. That evidence supplements the ․ argument that ‘the young’ are easily defined, and the presence of common attitudes suggests that the young are ‘cohesive.’ Finally, the evidence provides a basis for the inference that the attitudes of the young differ sufficiently from those of the rest of the population that excluding the young from juries would adversely affect the quality of deliberation. [¶] Age crucially influences people's thoughts and acts: [¶] ‘Age, in Mannheim's insightful formulation, “locates” individuals in the social structure. There is much evidence that, for example, a person's activities, his attitudes toward life, his relationships to his family or to his work—as well as his biological capacities and his physical fitness—are all conditioned by his position in the age structure of the particular society in which he lives.’ [Citing 3 M. Riley, M. Johnson & A. Foner, Aging and Society 398 (1972).] Age differences in society are not random; they are patterned and systematic. Indeed, ‘age operates as a basis of social stratification much like class' and divides our society into three broad, post-childhood segments: the young, middle-aged and aged.” (Zeigler, Young Adults as a Cognizable Group in Jury Selection, supra, 76 U.Mich.L.Rev. at p. 1074, fns. omitted.)
Another test of cognizability is the simple process of recognition. And again, youth qualifies. In the felicitous language of appellant's counsel, “[Young people, like] Blacks, Hispanics, and women, [ ] may in most cases be recognized on sight. Their unwrinkled bright faces make them quite easily identifiable for peremptory removal.”
Moreover, the great majority of criminal offenders are young. A jury of one's peers ought to at least include an opportunity for some representation from the same generation as part of a cross-section of the community. We realize this appellant is in his mid-thirties and might not be considered a member of the generation of which we speak. Yet it is well established in our law that one need not be a member of the excluded class in order to complain of the failure to afford a jury drawn from a representative cross-section of the community: 5 “[T]he exclusion from jury service of a substantial and identifiable class of citizens has a potential impact that is too subtle and too pervasive to admit of confinement to particular issues or particular cases․ [¶] ․ 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 its exclusion deprives the jury of a perspective on human events that may have unsuspected importance in any case that may be presented.” (Peters v. Kiff, supra, 407 U.S. 493, 503–504, fn. omitted, 92 S.Ct. 2163, 2169; see also Taylor v. Louisiana, supra, 419 U.S. 522, 526, 95 S.Ct. 692, 695–696.)
Finally, we are aware our Supreme Court has held “[t]he party seeking to prove a violation of the representative cross-section rule must also show that no other members of the community are capable of adequately representing the perspective of the group assertedly excluded.” (Rubio v. Superior Court, supra, 24 Cal.3d 93, 98, 154 Cal.Rptr. 734, 593 P.2d 595.) In Rubio the excluded groups were former felons and resident aliens. Two members of the court, with two other justices concurring in the result, found the excluded groups could be adequately represented by formerly incarcerated misdemeanants and Youth Authority graduates on the one hand and naturalized citizens on the other. Justice Tobriner dissented along with two other members of the court. He contended the group substitution theory was without precedent and unworkable: “The subtleties and complexities of human experiences, beyond the court's capabilities of evaluation, constitute the underpinning of the cross-section requirement. We are simply not in a position to make fine judgments as to the fungibility of identifiable segments of the community.” (Id., at p. 110, 154 Cal.Rptr. 734, 593 P.2d 595 (dis. opn. of Tobriner, J.).) This quotation from the dissent has recently been cited with approval in a unanimous opinion of the court (one member concurring in the judgment only) in a discussion of the systematic exclusion of Black women, raising the possibility that Rubio's substitution rule is of questionable continuing vitality. (See People v. Motton, supra, 39 Cal.3d 596, 606, 217 Cal.Rptr. 416, 704 P.2d 176.)
Our guess on that point is unnecessary, however; for we do not believe that the old may be substituted for the young in the manner Rubio suggests naturalized citizens may take the place of aliens in any event.6 Naturalized citizens may recall the experience of alien status, perhaps, and be able to bring that to bear in the jury room. But no older person shares only the memories and experiences of this generation. Just as there can be no substitution of one racial minority for another or one sex for another, we can see no logical rationale for a constitutionally permissible substitution of older age groups for younger ones. This is not to say that a relative lack of maturity, or the appearance of senility for that matter, would not be legitimate grounds for the use of peremptory challenges; but no systematic exclusion of any adult age group, the prosecutor's announced intention in this case, is proper in our view.
Although not essential to our decision today, and notwithstanding the considerable weight of contrary authority, we are compelled by the importance of the issue and interests of judicial economy to express our view that the Constitutions of the Republic and of this state require the recognition of age groups as cognizable classes which may not be systematically excluded from the venire or by the arbitrary use of peremptory challenges.
1. He also claims the trial court was guilty of prejudicial misconduct. We have serious reservations on that issue, too (see People v. Fatone (1985) 165 Cal.App.3d 1164, 211 Cal.Rptr. 288); but there is no reason to consider it in light of our disposition.
2. The exclusion of a juror on the basis he resided in the city where the crime occurred also arguably violated Mora's Sixth Amendment right of vicinage. As our Supreme Court has recently noted, “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.” (O'Hare v. Superior Court (1987) 43 Cal.3d 86, 101, 233 Cal.Rptr. 332, 729 P.2d 766.) The issue has not been raised on appeal, although defense counsel did allude to it in the trial court, while at the same time inconsistently moving for a change of venue. We do not consider it further.
3. We have not based our decision in part on the exclusion of blue collar workers because, in our view, that objection was not adequately preserved in the trial court. (People v. Ortega (1984) 156 Cal.App.3d 63, 69, 202 Cal.Rptr. 657; People v. Jurado (1981) 115 Cal.App.3d 470, 491, fn. 20, 171 Cal.Rptr. 509.) We note, however, that the middle-aged and elderly management types the district attorney conceded she sought destroyed Mora's opportunity to draw a panel representing a cross-section of the community. Moreover, the suggestion that only older supervisors—and not mere workers or the unemployed—might be qualified to judge this garden variety homicide arising from an evening of drinking and gambling is, to put it bluntly, silly. That sort of claim might make some marginal sense in a complex business fraud case (although it would be constitutionally questionable nonetheless (People v. Turner, supra, 42 Cal.3d at p. 722, 230 Cal.Rptr. 656, 726 P.2d 102)), but any teenager with modest exposure to television has a sufficient fund of life experience to understand a prosecution of this sort. We are confident that deliverymen, auto salesmen, and construction workers, currently employed or not and regardless of age, would be quite up to the task of judging this matter.The companion notion that only persons who have previously served as jurors, committee members, or managers are proper jury candidates is similarly illogical. Common sense and good judgment, particularly concerning human behavior, are not traits confined to one stratum of society, nor is the ability to make hard decisions or to interact with others.
4. Justice Sonenshine expresses no opinion on the contents of this section, preferring to reserve judgment until we might be required to consider the issue directly.
5. For purposes of an equal protection analysis, the rule is to the contrary, except where no member of the excluded class could ever be in a position to complain. (Rubio v. Superior Court (1979) 24 Cal.3d 93, 103, 154 Cal.Rptr. 734, 593 P.2d 595.) The exception does not apply here, and Mora does not truly represent the class. Nonetheless, the equal protection aspects are particularly pertinent when young people are excluded and worth a brief mention.There are considerations beyond the interest of a particular defendant in a representative jury. The rights of the excluded jurors themselves must be taken into account: “[E]ven in 1880 the Court recognized that other constitutional values were implicated. In Strauder [v. West Virginia (1880) 100 U.S. 303, 308–309], the Court observed that the exclusion of Negroes from jury service injures not only defendants, but also other members of the excluded class: it denies the class of potential jurors the ‘privilege of participating equally ․ in the administration of justice,’ [citation], and it stigmatizes the whole class, even those who do not wish to participate, by declaring them unfit for jury service and thereby putting ‘a brand upon them, affixed by law, an assertion of their inferiority.’ [Citation.]” (Peters v. Kiff (1972) 407 U.S. 493, 499, 92 S.Ct. 2163, 2167, 33 L.Ed.2d 83)As was ably explained in People v. Marr, supra, 67 Misc.2d 113, 324 N.Y.S.2d 608, 615, “The court is aware of the alienation of many of our youth from the institutions of government and feels strongly that participation in government, whether by jury duty or voting or other means, will tend to decrease this sense of alienation. Jury service is an important educational experience for the citizen. It encourages the development of civic responsibility as well as an interest in, and respect for, the law and its enforcement. For these reasons, as well as the primary one of providing a fair trial, the officials who administer the jury system should take whatever positive steps are necessary to insure that young adults are fairly represented on jury lists.” And prosecutors, we might add, should refrain from striking them for no reason beyond age alone.
6. Moreover, as our Supreme Court noted in a similar context in Motton, “Even if Black women were not a cognizable group, the systematic exclusion of Black women would inevitably result in a disproportionate underrepresentation of Black persons generally on the jury. (See discussion in People v. Fields (1983) 35 Cal.3d 329, 349–350, fn. 7 [197 Cal.Rptr. 803, 673 P.2d 680].)” (Id., at p. 606, fn. 2, 217 Cal.Rptr. 416, 704 P.2d 176.)
CROSBY, Acting Presiding Justice.
WALLIN, J., concurs. SONENSHINE, J., joins in all but section IV of the court's opinion.