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Court of Appeal, Second District, Division 4, California.

Daniel HERNANDEZ, Petitioner, v. The MUNICIPAL COURT of the Los Angeles Judicial District, Respondent, The PEOPLE, Real Party in Interest.


Decided: April 28, 1987

Wilbur F. Littlefield, Public Defender, Laurence M. Sarnoff, Deborah Christian and Albert J. Menaster, Deputy Public Defenders, for petitioner. Chase, Rotchford, Drukker & Bogust, John J. Geary, Jr., and Frederick L. Glasser, Los Angeles, for respondent. James K. Hahn, City Atty., William N. Sterling and Susan S. Dwyer, Deputy City Attys., for real party in interest.

In this proceeding in mandate Daniel Hernandez (petitioner) challenges the denial of his motion in the municipal court (respondent) attacking the jury draw in the criminal action against him.   Petitioner argues that the manner in which jurors are assigned to branch courts in the Los Angeles Municipal Court District violates his Sixth Amendment right to a jury drawn from the locality or vicinage of the alleged crime.1  We grant the relief sought.2

The facts are as follows:

On October 8, 1985, a criminal complaint was filed against petitioner alleging two counts:  first, a violation of Vehicle Code section 23152, subdivision (a), driving under the influence of alcohol or drugs, and second, a violation of Vehicle Code section 12500, subdivision (a), driving without a license.   The offenses were alleged to have occurred in the City of Los Angeles on September 29, 1985.   The location of the arrest was in the vicinity of 46th Street and Avalon.

On October 18, 1985, petitioner was arraigned at the Central Traffic Courthouse at Hill Street and pled not guilty.   His case was originally set for trial on November 22, 1985.   The trial date was continued many times.   On May 7, the case trailed to May 14.   The docket sheet for May 14 indicates that the last day on which the case could be brought to trial before becoming subject to mandatory dismissal pursuant to Penal Code section 1382, subdivision (3) was May 19.3  It was trailed to May 19.

On May 19, 1986, the case, now a “last day” case, was transferred from Division 66 of respondent's Central Traffic Court to Division 1 in the county courthouse and sent out for trial to Division 70.   However, petitioner filed a peremptory challenge under Code of Civil Procedure section 170.6.   Subsequently, petitioner's case was returned to the traffic courthouse, this time to Division 64.   From Division 64, it was sent to Division 134 in the San Fernando Valley Courthouse.

In Division 134, the case was called at 7:11 p.m.   Petitioner informed the court that he wished to make a motion challenging the jury draw.   However, petitioner was unprepared to proceed with the motion because a necessary witness was not present.   A jury panel was sworn, without objection from petitioner, and the matter recessed until the next day.

Petitioner's motion was heard on May 20.   The basis of petitioner's motion was what his counsel characterized as the requirement imbedded in the Sixth Amendment that the jury “represent the area where the alleged crime is committed.”   Petitioner maintained that because of Code of Civil Procedure section 203, the jury selection system in Los Angeles would not require a juror to serve at a courthouse more than 20 miles from his or her home.4  Since the San Fernando Courthouse was at least 20 miles distant from where he allegedly committed the charged offenses, petitioner argued he was effectively denied jurors drawn from that area.

At the very outset, the trial court took the position that the vicinage provision merely required that jurors be drawn from the same judicial district in which the accused was tried.   Since the Los Angeles Municipal Court District is a single judicial district, the court stated that petitioner could prevail only if he showed that the jurors were drawn from outside the district and that none of the jurors drawn for the San Fernando Courthouse lived within 20 miles of 46th Street and Avalon.

Petitioner called Juanita Blankenship, Assistant Director of the Juror Services Division, to testify on behalf of the motion.   The People stipulated to her qualifications.   Ms. Blankenship testified that there was a “low” to “almost a zero” probability that a juror from the civic center area would serve at the San Fernando Courthouse because the assignment of jurors by computer takes into account the right of jurors to refuse to serve more than 20 miles from their homes.5  The 20 miles is measured from the branch courts.   Accordingly, jurors living beyond a 20–mile radius around the San Fernando Courthouse would not be drawn for jury service there.   Ms. Blankenship testified that the civic center is more than 25 miles from the San Fernando Court.   Furthermore, the actual scene of the alleged crime at 46th and Avalon is south of the civic center, further reducing the probabilities that a prospective juror from that area would serve on a jury in San Fernando.   Accordingly, Ms. Blankenship testified that jurors from the downtown area around the civic center “would not be selected” to serve in San Fernando.   Her examination of impanelment lists for the San Fernando Courthouse for the preceding three weeks confirmed that during that period there had been no persons summoned to San Fernando from the area where the offenses occurred.

However, Ms. Blankenship also testified that there is an area of overlap between the 20–mile radius used by the San Fernando Courthouse to draw jurors and the 20– mile radius around the civic center from which jurors are summoned for service in the downtown courts.   This overlapping area, though, did not include the location where petitioner's offenses allegedly occurred.   She also testified that there were jurors drawn for service in San Fernando who were residents of the City of Los Angeles and who lived within 20 miles of the civic center.

The court denied the motion on the basis of its finding that “a large percentage of the jurors utilized ․ in this courthouse in the San Fernando jury pool” were drawn from areas which were within 20 miles of both the downtown courts and the San Fernando Court.

The prosecution moved to amend the complaint to add a third count, which was granted.   The court then granted petitioner's motion to continue the trial date and the previously sworn jury was dismissed.   Trial was set for June 23, 1986, in Division 134.

On June 17, 1986, petitioner filed a writ of mandate in superior court seeking, inter alia, to grant his challenge to the jury draw.   On August 6, 1986, the petition was summarily denied.   On August 14, 1986, petitioner filed his petition for writ of mandate with this court.   On September 12, 1986, we issued a temporary stay.   However, on October 21, 1986, concluding that the dismissal of the jury panel rendered the petition moot, we vacated the stay and dismissed the petition without prejudice.   On October 29, petitioner filed a petition for review in the Supreme Court.   On December 4, 1986, the petition was granted and the matter was transferred to this court with directions to issue an alternative writ.6  On December 24, we issued the writ.


 The Sixth Amendment provides that a criminal defendant “shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law․”  (U.S. Const., 6th Amend.)   These guarantees are applicable to state criminal prosecutions by virtue of the Fourteenth Amendment.  (People v. Jones, supra, 9 Cal.3d at p. 556, 108 Cal.Rptr. 345, 510 P.2d 705.)   The right to a trial by a jury of the vicinage has been characterized as an “essential feature of jury trial” (id., at p. 550, 108 Cal.Rptr. 345, 510 P.2d 705) which the drafters of the Constitution explicitly preserved from the common law (Williams v. Florida (1970) 399 U.S. 78, 96–97, 90 S.Ct. 1893, 1903–1904, 26 L.Ed.2d 446).   Accordingly, the vicinage requirement is an indispensable aspect of the constitutional safeguards provided to a criminal defendant by the Sixth Amendment.

The use of the term “district” in the Sixth Amendment has been held to refer to judicial districts, the creation of which are delegated to the relevant legislative power.  (Williams v. Florida, supra, 399 U.S. at p. 96, 90 S.Ct. at p. 1903;  O'Hare v. Superior Court (1987) 43 Cal.3d 86, 95, 233 Cal.Rptr. 332, 729 P.2d 766 [“․ 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.”].)

The relationship between the vicinage requirement and the legislative power to define judicial districts has been explored in Jones v. Superior Court, supra, 9 Cal.3d 546, 108 Cal.Rptr. 345, 510 P.2d 705.   In Jones, the defendant was arrested in the 77th Street Los Angeles Police Department Precinct, an area within the jurisdiction of the Central Superior Court District.   However, the defendant's case was set for trial in the Southwest Superior Court District.   Prospective jurors residing in the 77th Street Precinct served in the Central but not the Southwest District.   The defendant sought to transfer the trial to the Central District on the ground that jurors from the area where the alleged crimes occurred were excluded from the jury panel of the Southwest District.   The motion was denied and the defendant was ultimately tried and convicted in the Southwest District.   On appeal, the State Supreme Court reversed.

In Jones, the People argued that as used by the Sixth Amendment “district” meant county and since all the jurors in Jones were drawn from Los Angeles County, there was no violation of the vicinage requirement.   The defendant agreed that had the jury been drawn from the entire county there would have been no violation.   However, he argued that the portion of the county wherein the alleged crime occurred had been excluded from the jury draw resulting in the violation.

The Supreme Court agreed:  “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.”  (9 Cal.3d at p. 553, 108 Cal.Rptr. 345, 510 P.2d 705.)   The court concluded that the “immutable” mandate of the Sixth Amendment requires that “[t]he district, however large or small, from which the jury is drawn must include the area wherein the crime was committed.”  (At p. 554, 108 Cal.Rptr. 345, 510 P.2d 705.)

 The lesson to be learned from Jones is that the Sixth Amendment's guarantee of a representative jury requires that the district from which the jury is drawn, however defined, include the site of the alleged offense.   This rule was relatively easy to apply in Jones since it involved the trial of the defendant in one judicial district while the location of the alleged offenses lay in a different district.

Yet, as a subsequent Supreme Court decision shows, application of Jones is not limited to situations involving multiple judicial districts.   As explained in O'Hare v. Superior Court, supra, 43 Cal.3d 86, 233 Cal.Rptr. 332, 729 P.2d 766, Jones also applies when jurors living in the area of the crime are excluded from jury service within a single judicial district.

O'Hare involved a division of the San Diego Superior Court district called the North County Branch.   North County Branch formerly drew jurors from a supervisorial district which was encompassed by, but geographically smaller than, the area served by the North County Court.   That system was held improper in Johnson v. Superior Court (1984) 163 Cal.App.3d 85, 87–88, 209 Cal.Rptr. 425, because, as the O'Hare court observed, the “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.”  (O'Hare v. Superior Court, supra, 43 Cal.3d at p. 99, 233 Cal.Rptr. 332, 729 P.2d 766.)

O'Hare, therefore, recognizes that practices within a single judicial district which exclude residents of the scene of an alleged crime from jury service may violate the rule of Jones.7  Bearing this in mind, we now turn to the situation that confronts us in the instant case.


The state Constitution provides for the division of counties into municipal court districts but prohibits the division of a city into more than a single such district.  (Cal. Const., art. VI, § 5, subd. (a).)  Thus, the City of Los Angeles comprises a single municipal court judicial district.  “Each of the Los Angeles Municipal Court branches therefore must be treated as integral parts of a single district.”  (People v. Beltran (1981) 124 Cal.App.3d 335, 340, 177 Cal.Rptr. 262.)   If jurors were drawn from the entire municipal court district, no Sixth Amendment problem would arise.   However, jurors are not drawn from the entire district due to the manner in which the jury commissioner has implemented Code of Civil Procedure section 203.

That section provides that prospective jurors are not required to serve more than 20 miles from their homes.  (Code Civ.Proc., § 203.)   The record, although not as explicit as we would like, reflects that the jury commissioner has implemented the 20–mile rule so that a prospective juror living outside a 20–mile radius of a municipal court branch will not be summoned to serve at that branch.   Accordingly, the assignment of jurors to municipal court branches based on the geographical considerations in section 203 inevitably results in the exclusion of jurors, who are otherwise eligible, from serving at some of the branch courts within the judicial district.

Though the mobility of jurors in Los Angeles Municipal Court is limited by state law and administrative practice, the movement of cases is apparently unfettered.   Since each of the municipal branch courts is an integral part of a single district, each has equal jurisdiction over any criminal case filed within the district.  (People v. Beltran, supra, 124 Cal.App.3d at pp. 339–340, 177 Cal.Rptr. 262.)   As a declaration submitted by the presiding judge of the Los Angeles Municipal Court makes clear, “last day” cases are frequently transferred among branches to avoid dismissal.8  Consequently, within the Los Angeles Municipal Court District there has evolved a system in which criminal defendants may find their cases transferred to remote branch courts to which jurors from the areas where the alleged crimes occurred are not required to serve and are in fact not summoned for service.   The question before us is whether this constitutes a violation of a criminal defendant's vicinage rights.

Respondents maintain, with some tenacity, that all Jones requires is a trial by jurors residing within the judicial district wherein the alleged offenses occurred.   Under their interpretation of Jones, there has been no violation of petitioner's Sixth Amendment rights because even by limiting its jury draw to those who reside within 20 miles of the San Fernando Courthouse, that court does draw some residents of the City of Los Angeles who, by definition, are also residents of the Los Angeles Municipal Court District.9  This argument ignores the fact that these Los Angeles Municipal Court jurors are not from a pool of jurors made up of the entire Los Angeles area.   It also disregards the fact that jurors from the area of the crime are systematically excluded when a case is transferred from the branch court where it arose to a court at the remote reaches of the district.10

 As we have pointed out, the requirement in Jones that the judicial district include the area of the crime is for the express purpose of making residents of that area available for jury service.   To adopt respondents' view that Jones is satisfied so long as the area of the crime is contained within the district even though no jurors are drawn from that area reduces the holding of Jones to an empty formalism.   We cannot subvert Jones in this manner when its mandate is so clear:  “In our view, the rule quite simply is that a criminal defendant is entitled to a jury drawn from a jury panel which includes jurors residing in the geographic area where the alleged crime occurred.”   (9 Cal.3d at p. 554, 108 Cal.Rptr. 345, 510 P.2d 705.)


Having identified the violation, we turn to a closer examination of its cause.   Two factors have given rise to the current situation in the Los Angeles Municipal Court district.   The first factor is the 20–mile rule as implemented by the jury commissioner which, for the purpose of the jury draw, effectively subdivides the constitutionally defined municipal court district into smaller 20–mile units around each of the branch courts.   The second factor is the municipal court's practice of transferring “last day” cases among these branch courts.

 As previously stated, if section 203 did not exist, jurors in the Los Angeles Municipal Court District would be drawn from the district as a whole eliminating any vicinage problem.   Further, a close study convinces us that the 20–mile statute, even as implemented by the jury commissioner, is not necessarily incompatible with Sixth Amendment guarantees.   There is no constitutional violation so long as the 20–mile radius making up the jury pool includes jurors from the scene or area of the crime for which the defendant is to be tried.11

The vicinage problem arises from the transfer of cases from a branch court which draws jurors from the area or scene of the crime to one which does not.   We are mindful that the transfer of cases is neither arbitrary nor motivated by whim but, rather, arises out of administrative necessity.

We do not disapprove of the transfer of cases within the district as long as such transfers do not result in the systematic exclusion of residents of the area of the crime from the jury panel.   Our reading of Jones compels the conclusion that the transfer of a case to a municipal branch court where the jury draw does not include residents of the area of the crime violates a criminal defendant's Sixth Amendment right.

It is true that, in the instant case, there are points of overlap between the 20–mile radius surrounding the San Fernando Courthouse and the 20–mile radius around the civic center.   Nonetheless, these points of overlap do not include the area of the crime which, indeed, is more than 25 miles south of the San Fernando Courthouse.   As Ms. Blankenship's testimony established, there is virtually no probability that prospective jurors from the area of the crime would ever serve in San Fernando.   So even if it can be said that, technically, there are some prospective jurors living within the 20–mile radii of both the San Fernando and the downtown courthouses, the reality is that none of these prospective jurors are residents of the area wherein the crime occurred.   To uphold this case on so narrow a technicality is inconsistent with the Sixth Amendment's mandate as explained in Jones.

 For the purposes of the vicinage requirement, jurors are not, ultimately, fungible.   A jury draw must incorporate residents of the area of the crime as prospective jurors.

We are aware that our holding may have a serious impact on the administration of cases in the municipal court.   However, administrative inconvenience or even hardship must, on balance, give way to the defendant's constitutional rights.

It should be noted that we see no bar to the waiver of vicinage rights so long as the waiver is knowing and intelligent.   The solicitation of such a waiver might be appropriate when a criminal defendant asks that his or her case be continued or trailed.

In the instant case, as trial has not yet commenced, all that petitioner asks of us by way of writ is to order the transfer of his case back to the Central Traffic Court from whence it came.

Accordingly, let a peremptory writ of mandate issue commanding respondent court to vacate its order denying petitioner's vicinage motion, grant the motion and transfer this case, Municipal Court No. V– 216558, from the San Fernando Courthouse to the Central Traffic Courthouse for trial.12


1.   The Sixth Amendment requires that a criminal defendant be tried “by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law․”  (U.S. Const., 6th Amend.)   This provision arises out of the common law right of criminal defendants to be tried by a “jury of the vicinage” and, hence, is referred to by the cases as the vicinage requirement.  (People v. Jones (1973) 9 Cal.3d 546, 550–551, 108 Cal.Rptr. 345, 510 P.2d 705.)   We refer to it as such.

2.   Both respondent and the People (real party in interest) filed preliminary oppositions and returns to petitioner's petition.   We refer to them, generically, as “respondents.”

3.   Penal Code section 1382 requires that a person, not in custody, charged with a misdemeanor must be brought to trial within 45 days of arraignment unless the defendant agrees to continue the trial date beyond the 45–day period.   In that case the defendant must be brought to trial within 10 days of that trial date.

4.   Code of Civil Procedure section 203 provides in pertinent part:  “In counties with more than one court location, the rules shall reasonably minimize the distance traveled by jurors.   In addition, in the County of Los Angeles no juror shall be required to serve at a distance greater than 20 miles from his or her residence.”

5.   The civic center to which Ms. Blankenship referred includes the Criminal Courts Building and the Central Traffic Court where, originally, petitioner's case was set for trial.

6.   The issue before us involves questions of the geographical area from which a jury is drawn, not its demographic composition.   Originally, petitioner sought to raise the issue of the demographic composition of the jury at the hearing of his vicinage motion.   The trial court prevented him from doing so because he failed to challenge the composition of the jury panel before it was sworn.Petitioner challenged the court's ruling preventing him from attacking the jury's composition both in his petition to the superior court and this court.   However, he did not raise the issue before the Supreme Court after his petition for writ of mandate was dismissed by this court.   The only issue he addressed in his petition for review was vicinage, and that is the sole issue before us.

7.   Even the court below implicitly recognized the applicability of Jones to a single judicial district.   Initially, the court stated the petitioner's motion would lie only if he could establish that prospective jurors were drawn from an entirely different judicial district.   Yet, the court did not deny petitioner's motion because he failed to show that prospective jurors in San Fernando were drawn from outside the municipal court district.   Rather, confining itself to the manner in which jurors were drawn from within the district, the court concluded that the vicinage requirement was satisfied because there is an area of overlap between the 20–mile radii surrounding the San Fernando and downtown courthouses creating some common pool of jurors.   This finding was tantamount to an acceptance by the trial court of petitioner's position that there can be a violation of the vicinage requirement within a single judicial district.

8.   See footnote 3, infra.

9.   The San Fernando jury draw also includes prospective jurors who are not residents of the City of Los Angeles but of other parts of Los Angeles County.   This mix is consistent with both state statute and local municipal court rule allowing the municipal court to use the same jurors as are used by the county-wide superior court draw.  (Code Civ.Proc., § 203.3;  Muni.Ct. of L.A. Co.—Uniform Rules, rule 18.)

10.   Respondents' reliance on People v. Crenshaw (1984) 161 Cal.App.3d 702, 207 Cal.Rptr. 779, is unavailing.   In Crenshaw, the defendant committed the crime for which he was convicted in the City of Richmond.   He claimed, therefore, that the Sixth Amendment required that jurors for his trial be drawn in part or entirely from the city rather than other areas of the surrounding county wherein he was apparently tried.   The reviewing court, applying Jones, rejected his argument on the basis that there had been no “systematic exclusion” of jurors from any part of the county including, presumably, the City of Richmond.  (Id., at p. 706, 207 Cal.Rptr. 779.)  Crenshaw, therefore, is authority for the proposition that a criminal defendant is not entitled to a jury composed primarily or exclusively of jurors from the vicinage as long as such jurors are not excluded from the jury draw.   In the instant case, of course, there was a systematic exclusion of jurors from the area of the crimes with which petitioner is charged.

11.   Petitioner does not seek a declaration that section 203 is unconstitutional nor has he demonstrated its unconstitutionality.   Moreover, our interpretation of the statute “flows from the fundamental principle that if reasonably possible the courts must construe a statute to avoid doubts as to its constitutionality.  [Citations.]”  (People v. Smith (1983) 34 Cal.3d 251, 259, 193 Cal.Rptr. 692, 667 P.2d 149.)

12.   We recognize that petitioner's was a “last day” case at the time he made his vicinage motion and, had it been granted, there is some question as to whether an appropriate court could have been found to try the case in a timely manner.   However, dismissal of the case was not part of the relief sought by petitioner.   Moreover, whether dismissal is appropriate turns upon facts as to the availability of courts and jurors which were not part of the record before us.   We, therefore, do not determine whether petitioner's case is dismissable.

WOODS, Presiding Justice.

KINGSLEY and McCLOSKY, JJ., concur.