PEOPLE v. McDONALD

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

The PEOPLE, Plaintiff and Respondent, v. Eddie Bobby McDONALD, Defendant and Appellant.

B016666.

Decided: April 28, 1987

Richard D. Rome, Van Nuys, under appointment by the Court of Appeal, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Robert F. Katz and Mark Alan Hart, Supervising Deputy Attys. Gen., for plaintiff and respondent.

Eddie McDonald (appellant) appeals his conviction for second degree murder after a retrial which resulted from the Supreme Court's reversal of his first trial due to the exclusion of testimony from a defense expert on eyewitness identification.  (People v. McDonald (1984) 37 Cal.3d 351, 208 Cal.Rptr. 236, 690 P.2d 709.)

One of appellant's numerous contentions is that the method employed by Los Angeles County to assign jurors to the Long Beach Courthouse resulted in an underrepresentation of Black jurors which denied him his constitutional right to a jury drawn from a fair cross-section of the community.  (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;  U.S. Const., Amend. VI;  Cal. Const., art. I, § 16.)   He presented evidence that Los Angeles County assigns jurors to the courthouse nearest their homes.   That policy is based upon the county's interpretation of Code of Civil Procedure section 203, which states:  “Each court shall adopt rules supplementary to such rules as may be adopted by the Judicial Council, governing the selection of persons to be listed as available for service as trial jurors.   The persons so listed shall be fairly representative of the population in the area served by the court, and shall be selected upon a random basis.   Such rules shall govern the duties of the court and its attachés in the production and use of the juror lists.   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. ”  (Emphasis added.)

The evidence showed that the county's assignment policy will always result in a relatively low percentage of Blacks at the Long Beach Courthouse, because there are other courthouses within 20 miles of it which are closer to the concentrated area of Blacks in the south central part of the county.

We hold that, while the 20–mile radius exemption is constitutionally sound, section 203 cannot be interpreted so as to further reduce the area of jury selection by requiring assignment to the nearest courthouse within the 20–mile zone.   We have concluded that the state's asserted interest in juror convenience is not sufficiently significant to rebut the prima facie showing of a denial of appellant's fundamental right to a jury drawn from a fair cross-section of the community.   We therefore reverse.

I

Appellant's motion to quash the jury was based upon the evidentiary record developed in another Long Beach case, People v. Lee Edward Harris, No. A018568.   The Harris jury challenge occurred on retrial after the Supreme Court had reversed Mr. Harris's earlier conviction (People v. Harris (1984) 36 Cal.3d 36, 201 Cal.Rptr. 782, 679 P.2d 433), because a prima facie showing had been made that use of voter registration lists as the sole source for the jury pool violated the right to a fair cross-section of the community.   The jury pool on the Harris retrial was drawn from both voter registration and Department of Motor Vehicles (DMV) records.   All parties agreed there was no longer a problem with the initial master list.   There was also no question that the county did not intentionally discriminate against any group, as it had no knowledge of any prospective juror's race at any point in the selection process.

Testimony showed that the master list taken from voter registration and DMV records contains over five million names and represents about 95 percent of the county's adult population.   After eliminating duplicate names from the master list, the county sends out juror qualification questionnaires to a randomly-selected sample of names from the list.   Almost one million such questionnaires were mailed in the year 1983–1984.   About 44 percent were either undeliverable or not returned.   Thirty-seven percent more were excluded based on excuses such as hardship and incompetency.   The remaining 19 percent of persons actually qualifying were placed on the impanelment list and sent summonses to appear.   Of those summoned, about 9.5 percent actually served at a courthouse.

The racial composition of jurors appearing at a courthouse can be determined by having them fill out questionnaires.   Some conclusions about the race of qualified jurors on the impanelment list can be drawn from the census tract number which accompanies each name on that list.

The defense evidence showed that, based upon 1980 census information concerning persons 18 years of age and older, the jury eligible Black population in Los Angeles County as a whole was 11.8 percent.1  The same population within a 20–mile radius of the Long Beach Courthouse was 14.8 percent.   Three jury panels surveyed at the Long Beach Courthouse in May 1985 contained 6.2 percent Blacks.   The Harris panel itself originally contained 5 percent Blacks, which was raised to 7.5 percent when additional jurors were needed and were transferred from the Compton Courthouse.

The original Harris panel had an absolute disparity of minus 6.8 percent with the Los Angeles County figure for Blacks, and a comparative disparity of minus 58 percent.   Using the three panels tested in May 1985, the absolute disparity would be minus 5.6 percent and the comparative disparity minus 47 percent.   The comparative disparities suggested there were only half the number of Black jurors serving at the Long Beach Courthouse as there should be based on the county as a whole.

If the pertinent community were based upon the 20–mile radius of the Long Beach Courthouse, there would be an absolute disparity of minus 9.8 percent or a comparative disparity of minus 66 percent, meaning that only one-third of the qualified Black jurors were reporting for jury service in Long Beach.

The primary defense witness was demographer Dr. Edgar Butler, the chairman of the Department of Sociology at the Riverside campus of the University of California, and the same expert relied upon in the Supreme Court's opinion in People v. Harris, supra, 36 Cal.3d 36, 201 Cal.Rptr. 782, 679 P.2d 433.   Dr. Butler testified to his disappointment when adoption of the dual source list, which he had advocated at the original Harris jury challenge, failed to change the continuing disparity of Black representation on jury panels.   Assuming there was a proper percentage of Blacks in the 19 percent of qualified jurors on the impanelment list, he believed the racial disparity was caused by the county's system of deciding which jurors went to which courthouses.

The problem arose from the county's interpretation of section 203 of the Code of Civil Procedure.   There are 32 courts in the county, including 10 superior courts.   Some of these courthouses are within the 20–mile radius of the Long Beach Courthouse.   The county utilized a computer program which assigned each juror from the impanelment list to the courthouse closest to the juror's home as needed.   If the draw was filled at the courthouse closest to the person's home, the potential juror would be sent to the next closest courthouse.   Analysis of eight panels of jurors at the Long Beach Courthouse in April, May and June of 1985, showed that no jurors were sent to that courthouse from approximately 80 percent of the 538 census tracts within a 20–mile radius of the Long Beach Courthouse.   Most of the predominantly Black areas were excluded, including, for example, Inglewood, Compton and Watts, because other courthouses were closer to those areas.   By contrast, just two census tracts near the Long Beach Courthouse, which were almost exclusively White, produced over 8 percent of its jurors.

To alleviate the problem, Dr. Butler proposed that the final allocation to courthouses be changed to a “stratified census tract approach” under which qualified jurors for each courthouse would be randomly selected from randomly-selected census tracts within the 20–mile radius of that courthouse.   That system would result in an equal dispersion of jurors from all census tracts, including those which were nearly all White or all Black.   He had designed a computer program to test this method.   The eight random samples he generated contained no statistically significant difference in the percentage of Blacks on the panels from the percentage of Blacks in the entire census tract population within a 20–mile radius of the Long Beach Courthouse.   He further testified that it would not cost the county more than $10,000 or $15,000 to change to a system utilizing census tracts at the final stage of the selection process, since the information was already in the computer.

Additionally, Dr. Butler testified that the problem of unequal distribution of Black jurors existed throughout the county.   The county's superior courthouses all had an underrepresentation of Blacks, except the Central District courthouse downtown.   That courthouse, which utilized about 40 percent of the county's total jurors, had an overrepresentation of Blacks.   Nobody from the greater central area of Los Angeles was being assigned to branch courts like those in the North Valley District in San Fernando or Norwalk.   People living in the predominantly Anglo areas on the periphery of the county tended to go to the branch courts.   The racial disparity was caused by basing courthouse assignment on geographical location, even though the system did not look at potential jurors' race.

Under cross-examination, Dr. Butler recognized the existence of legal excuses for economic or medical hardship, such as a mother with small children and no alternative child care.   He knew of no evidence that Blacks were more likely to be excused or exempted on those bases, or were less likely to return the jury questionnaires.   He conceded that there were more Blacks than Whites at the poverty level, and that it might be a hardship on a poor person to accept a daily juror paycheck of $10 instead of a subsistence level income.   On the other hand, unemployment was higher among Blacks, and $10 per day plus mileage might be appealing to somebody who was not working.

The final witness was Raymond Arce, the Director of the Superior Court's Juror Services Division, and the authorized representative of the county jury commissioner.   He explained that the jury commission made recommendations to committees of superior court judges regarding jury policies.   Staff members kept abreast of the current law on jury selection procedures by reviewing cases arising in California and other jurisdictions, reading pertinent literature, attending workshops, receiving reports on pending legislation, and exchanging information with court administrators in other jurisdictions.   Statistical and data processing consultants were employed from time to time.

In compliance with Code of Civil Procedure section 204.5, the jury commissioner had prepared a written plan “designed to insure the random selection of a fair cross section of the persons residing in the area served by the court.”   The plan, which became effective in 1984, utilized a methodology proposed by a statistical consultant based on an independently-verifiable, widely-accepted random number generator.   Among the objectives of the plan were to achieve a random selection of a fair cross-section of jurors;  assign jurors to the courthouse closest to their homes;  minimize distance traveled;  minimize transfers by jurors who declined to travel more than 20 miles from their homes;  and reduce transportation costs for which jurors had to be reimbursed.   There was some inconsistency among those objectives, and the consultant was presently studying alternative methods of random allocation which might be permissible under the statutes.

According to Mr. Arce, 1980 census figures gave the over 18 Black population in Los Angeles County as 11.4 percent, although he believed the figure might actually be greater than that.   1980 and 1982 samplings of jurors reporting to courthouses countywide showed 13 percent Blacks.   There was thus no underrepresentation of Blacks on juries if the county were taken as a whole.   The jury commissioner assumed that the statutory requirement of a fair cross-section within the area “served by the court” meant the entire county, although judicial clarification was necessary.   There was also no disparity between the 7.5 percent of Blacks in the panel for the Harris trial and the 7.6 percent of eligible Blacks in the South District of the superior court which sat in Long Beach.

Mr. Arce conceded that there was “a consistent underrepresentation over time of Blacks appearing in Long Beach vis a vis the community that is Los Angeles County as a whole.”   He was concerned by the recently-available data showing the limited number of census tracts represented at Long Beach.   Surveys conducted by the county in 1980 and 1982 2 showed 9.9 percent Blacks and 8.9 percent Blacks, respectively, at the Long Beach Courthouse.   In contrast, Central District Courthouse jurors surveyed in those years measured 25.5 percent Black and 20.4 percent Black.   A 1985 county survey showed 8.7 percent Blacks at the Long Beach Courthouse.   The Black population within a 20–mile radius of the Long Beach Courthouse was 16.2 percent.3

Mr. Arce criticized Dr. Butler's census tract proposal, as he believed the statutes did not authorize selecting jurors based on geographic boundaries.   He further thought that the excusal policy hit predominantly Black census tracts harder than predominantly White census tracts, so that to obtain a juror from each census tract, greater numbers of jurors from predominantly Black census tracts would have to be selected.   The proposal also did not appear random to him, did not consider the factor of convenience to individual jurors, and seemed impractical, since there might not be qualified jurors from a particular census tract at the time a selection was made.

Despite the figures showing that Blacks served on juries on a countywide basis in proportion to their numbers in the population, Mr. Arce insisted that Blacks were less likely to qualify as jurors.   The countywide response rate on juror questionnaires was 29 percent, while the nonresponse rate from census tracts which were predominantly Black or Hispanic ranged between 29 and 75 percent.   A higher percentage of questionnaires from minority census tracts were returned by the post office as undeliverable.   1983 records showed that the south central area had a rate of qualifying replies of 30 to 35 percent, compared to 80 to 90 percent qualifying replies in other areas of the county.

Mr. Arce believed that a certain level of disparity was unavoidable, due to factors like economics, health, transportation, and care of dependent relatives which were likely to bear more heavily on minority groups.   The state policy of not making jury service an undue burden added to the disparity.   He also thought Blacks might be less likely to report to the Long Beach courthouse because transportation from the predominantly Black areas might be more convenient to other courthouses.   He conceded, however, that he had no statistical basis for his impression that socio-economic factors were discouraging Blacks from going there.

Finally, Mr. Arce emphasized the huge numbers with which the jury commissioner had to contend.   The jury commission needed 90,000 jurors to provide 10 days of service at the county's 32 court locations.   It had to contact 10 times that many people to get the requisite number of jurors.   The county's resources were not unlimited.   It did have the statistical consultant studying alternative methods of allocation, and had recently revised its refusal policy, which might increase the percentage of minorities at some courthouses.

At the conclusion of the evidence and argument, the trial court found that there was no disparity if the pertinent community was defined as the judicial district, but a prima facie showing of underrepresentation if the relevant community was either the 20–mile radius of the Long Beach Courthouse or the eligible jurors within the entire county.   The underrepresentation was caused by the allocation process which assigned jurors to the nearest courthouse.   The state had carried its burden of proving that the underrepresentation was justified by an overriding state interest in maximizing the participation of all potential jurors in the county and minimizing hardship excusals for prospective jurors who did not drive or lacked transportation for long distances.   The county had made reasonable ongoing efforts to follow the law and obtain a fair cross-section, although the defense statistics showed that a major problem continued to exist.

II

In analyzing the validity of the county's juror assignment policy, we first consider the legislative history underlying Code of Civil Procedure section 203.4

Prior to 1975, jurors for Los Angeles County branch courts were drawn solely from the particular superior court district in which the branch court was located.   Jurors for the courthouse at the Central District downtown were drawn from the county as a whole.  (People v. Taylor (1975) 46 Cal.App.3d 513, 531, 120 Cal.Rptr. 762.)   The constitutionality of the “dual draw” system was repeatedly attacked in the courts, although it was always upheld.5

The Legislature responded to the attacks by amending section 206 to provide that Los Angeles County jurors were to be “selected annually on a countywide basis,” but a prospective juror could claim an exemption from service more than 20 miles from home.  (Stats.1974, ch. 806, § 3, p. 1755;  Sen.Com. on Judiciary, Analysis of Sen. Bill No. 2317 (1973–1974—Reg.Sess.).)   The countywide draw system of amended section 206 was held constitutional in Bradley v. Judges of Super. Ct. for Los Angeles County (9th Cir.1976) 531 F.2d 413, which did not involve the 20–mile exemption.   The exemption was apparently intended to provide a limitation on jurors' travel distance in the face of the shift to a countywide draw.

The 20–mile exemption was moved to section 203 and the direction to “reasonably minimize the distance traveled by jurors” in “counties with more than one court location” was added as part of a major revision of the juror selection statutes in 1980.  (Stats.1980, ch. 81, § 9.)   The language in section 206 directing that “all trial jurors shall be selected annually on a countywide basis” was deleted at that time.  (Stats. 1980, ch. 81, § 18.)

Earlier drafts of the 1980 legislation omitted the 20–mile exemption altogether and said nothing about jurors' travel distance.  (Assem. Bill No. 1454, as amended by the State Assembly on Jan. 7 and Jan. 28, 1980.)

Members of the Los Angeles County court system expressed strong support both for retaining the 20–mile exemption and for the proposed new language minimizing jurors' travel distance.   A representative of the County's Municipal Court Judges' Association told the Senate Finance Committee that the provision on minimizing travel distance was essential in a large county like Los Angeles where travel could create a serious hardship for an individual juror.   The county's jury commissioner and a superior court judge spoke out against abolition of the 20–mile exemption at a public hearing which was held by the Assembly Committee on the Judiciary on October 3, 1979.6  And the American Civil Liberties Union wrote to the Governor, stressing that the provision minimizing jurors' travel distance “will help to reduce the antagonism of jurors who had been required to make long trips and will also permit many persons who do not have a means of transportation to begin to participate in the jury process․”

It is obvious from the above that there is a valid state interest in making it more convenient for jurors to participate in the court process by reducing their travel distance.   Both the 20–mile exemption and the language on minimizing travel distance in section 203 address that same concern.   It is possible that there are jurors unwilling to travel as far as 20 miles from home, but willing to serve at courthouses 5 or 10 miles away.

The crux of the case before us is whether the interest in juror convenience which underlies the county policy of assignment to the nearest courthouse can outweigh a defendant's fundamental right to a jury drawn from a fair cross-section of the community.

III

Justice Mosk's opinion in People v. Wheeler, supra, 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748, explained the rationale behind the fair cross-section requirement to be “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.”  (22 Cal.3d at pp. 266–267, 148 Cal.Rptr. 890, 583 P.2d 748;  fn. omitted.)

The right to a jury drawn from a representative cross-section of the community does not mean that a litigant “has the right to a jury that mirrors the demographic composition of the population, or necessarily includes members of his own group, or indeed is composed of any particular individuals.   [Citations.]  [¶ ]  What it does mean, however, is that a party is constitutionally entitled to a petit jury that is as near an approximation of the ideal cross-section of the community as the process of random draw permits.”  (People v. Wheeler, supra, 22 Cal.3d at p. 277, 148 Cal.Rptr. 890, 583 P.2d 748.)

In People v. McDowell (1972) 27 Cal.App.3d 864, 104 Cal.Rptr. 181, the Fourth District of the Court of Appeal reviewed a San Bernardino County jury selection procedure which automatically excluded all otherwise eligible residents of the county who lived more than 25 miles from the courthouse.   The included area encompassed most of the county's heavily populated area, and excluded less than 18 percent of the county's total population.   The county itself was more than 20,000 square miles.  (Id., at p. 874, 104 Cal.Rptr. 181.)  McDowell quoted language from Thiel v. Southern Pacific Co. (1946) 328 U.S. 217, 66 S.Ct. 984, 90 L.Ed. 1181, that while the fair cross-section requirement “ ‘does not mean, of course, that every jury must contain representatives of all the economic, social, religious, racial, political and geographical groups of the community ․;  [i]t does mean that prospective jurors shall be selected by court officials without systematic and intentional exclusion of any of these groups.’ ”  (People v. McDowell, supra, 27 Cal.App.3d at pp. 872–873, 104 Cal.Rptr. 181, quoting Thiel v. Southern Pacific Co., supra, 328 U.S. at p. 220, 66 S.Ct. at p. 985;  emphasis deleted.)  McDowell then found no constitutional problem with the geographical exclusion, because there was no evidence that the 25–mile rule operated to disproportionately exclude any specifically identifiable class.   The court cautioned:  “It may well be, however, under special circumstances, a geographical limitation which acts to eliminate a disproportionate number of a particular social, economic, or racial group is constitutionally invalid.”   (McDowell, supra, 27 Cal.App.3d at p. 875, 104 Cal.Rptr. 181.)

 A defendant seeking to make a prima facie showing of a violation of the fair cross-section requirement must meet the test adopted in Duren v. Missouri, supra, 439 U.S. at page 364, 99 S.Ct. at page 668.   (People v. Harris, supra, 36 Cal.3d at p. 50, 201 Cal.Rptr. 782, 679 P.2d 433.)   That test requires a showing (1) that the excluded group is a distinctive group within the community, (2) that the representation of that group in jury venires is not fair and reasonable in relation to the number of people in that group in the community, and (3) that the underrepresentation is due to systematic exclusion in the jury-selection process.   No evidence of discriminatory purpose is necessary.   Once a prima facie showing has been made, the burden shifts to the state to justify the underrepresentation by showing that a significant state interest is advanced by those aspects of the jury selection process which result in the underrepresentation.7  (Duren v. Missouri, supra, 439 U.S. at pp. 364, 368, 99 S.Ct. at pp. 668, 670.)   Applying these criteria to the instant case, we find:

(1) Exclusion of a distinctive group.

Since Harris expressly held that Blacks are a cognizable group for purposes of fair cross-section analysis, there is no question that appellant established the first element of the Duren test.8  (36 Cal.3d at p. 51, 201 Cal.Rptr. 782, 679 P.2d 433.)

(2) Unfair representation of the group in relation to the group's size in the community.

Analysis of the second element of the Duren test is complicated by the absence of a definition of the applicable community.   The issue is critical here, since there was a significant disparity if the pertinent comparison was between Black jurors reporting to the courthouse and prospective Black jurors within a 20–mile radius of the courthouse or in the countywide population.   The People conceded that there was a significant variance if the pertinent community were based upon the 20–mile radius.

Several of the pertinent statutes refer to a fair cross-section of the “area served by the court.”  (Code Civ.Proc., §§ 203, 204.5, subd. (b);  see also §§ 193, 197.)   There is, however, no statutory definition of that term.

Our Supreme Court has not directly addressed this issue.

In People v. Harris, supra, the court found that the defendant had stated a prima facie case based on figures which compared the percentage of minorities at the Long Beach courthouse with the equivalent percentage in the total county population.   The court expressly stated, however, that the case had been presented by the parties “on the assumption that all juries in Los Angeles County must be representative of the entire county․  The state has not attempted to [argue] that the Long Beach juries need only represent those persons living within 20 miles of the courthouse, and has not attempted to show that such juries were truly representative of that limited area.”  (36 Cal.3d at p. 48, 201 Cal.Rptr. 782, 679 P.2d 433.)   Thus, the plurality opinion of Justices Broussard, Bird and Reynoso did not address the issue of the appropriate community because the parties had not raised it.

The absence of evidence regarding the 20–mile radius was viewed as important by the other Harris justices.   Justice Mosk's dissent, in which Justice Richardson (sitting by assignment) concurred, thought that statistics were necessary not on Los Angeles County as a whole but on “the ethnic composition of the community or area that is Long Beach, or from the supervisorial district in which the city is located․”  (36 Cal.3d at p. 73, 201 Cal.Rptr. 782, 679 P.2d 433.)   Justice Kaus's separate dissent found that no prima facie showing had been made because “there is no showing that population figures for the whole of Los Angeles County are relevant with respect to a 20–mile radius from Long Beach.”  (At p. 75, 201 Cal.Rptr. 782, 679 P.2d 433.)   And Justice Grodin's concurrence noted that there “may be merit ․ in the dissenters' view that the more appropriate focus for statistical analysis is the area within a 20–mile radius from the Long Beach courthouse” (at p. 71, fn. 1, 201 Cal.Rptr. 782, 679 P.2d 433), although the defendant's statistics had not been challenged on that ground.

The issue of what constitutes the pertinent community for Los Angeles County was directly addressed at the appellate level in Williams v. Superior Court (Cal. App.) (L.A. 32206, review granted June 20, 1986), in which Division Seven of this court held that the 20–mile radius was the appropriate community.   The Supreme Court did not reach the issue raised by Williams, because Williams was remanded for reconsideration in light of the Supreme Court's subsequent decision in O'Hare v. Superior Court (1987) 43 Cal.3d 86, 223 Cal.Rptr. 332, 729 P.2d 766.9  We therefore look to O'Hare for guidance.

The defendant in O'Hare sought to have his case transferred from the North County Branch of the San Diego Superior Court to the downtown branch because there was a significantly lower percentage of jury-eligible Blacks in the North County venire than downtown.   He contended that North County improperly limited its selection of jurors to a venire taken from the North County Judicial District rather than the county as a whole.   Statistics showed that the North County jury panel fairly reflected the jury-eligible Black community of North County but not that of the entire county.

O'Hare recognized that cases under the fair cross-section requirement, such as People v. Harris, supra, 36 Cal.3d 36, 201 Cal.Rptr. 782, 679 P.2d 433, generally question the means by which jurors are selected from an agreed upon community.   In contrast, the defendant in O'Hare relied upon the fair cross-section requirement to argue that there were limitations on the government's power to define the pertinent community, so that an artificially small judicial district could not be created which distorted the demographics of the larger community of the county itself.  (O'Hare v. Superior Court, supra, 43 Cal.3d at pp. 93–94, 233 Cal.Rptr. 332, 729 P.2d 766.)

In rejecting that contention, O'Hare first determined from historical evidence and case law that the Sixth Amendment does not limit the power of government to define the pertinent community.  (43 Cal.3d at pp. 95–97, 233 Cal.Rptr. 332, 729 P.2d 766.)   The court then found no reason why the San Diego Superior Court rather than the Legislature could not adopt a local rule defining the boundaries of the North County Branch, since statutes required that the superior court hold daily sessions in the Northern San Diego County city of Vista, and authorized selecting jurors in cities outside the county seat from the supervisorial districts in which such cities were located.  (Id., at pp. 98–99, 233 Cal.Rptr. 332, 729 P.2d 766.)

O'Hare reemphasized that the Sixth Amendment guaranteed every defendant the right to “a jury drawn from a venire from which no member of the local community was arbitrarily or unnecessarily excluded.”  (Id., at p. 101, 233 Cal.Rptr. 332, 729 P.2d 766.)   However, since there was no claim of improper exclusion from the venire, which could properly be drawn solely from the North County Judicial District, the defendant was not entitled to relief.

Justices Broussard, Bird and Reynoso dissented on the ground that the Legislature but not judicial administrators had the power to define the pertinent community.   Since the Legislature had not spoken, the relevant community was the county as a whole.  (Id., at pp. 101–106, 233 Cal.Rptr. 332, 729 P.2d 766.)

As we read O'Hare, the fair cross-section requirement entitles a defendant to a jury which is representative of the community from which the jury is drawn.   Even though the focus of O'Hare was upon juries drawn from judicial districts, and the Los Angeles Superior Court is divided into judicial districts, the fact that jurors are granted the 20–mile exemption shows that in Los Angeles County the 20–mile zone is the appropriate standard for the community.

It appears that the county as a whole cannot constitute the community from which jurors are drawn, so long as the 20–mile radius limitation is upheld.   Jurors appearing at a particular courthouse are not in fact drawn from the county as a whole, they are drawn from a 20–mile radius of the courthouse.   The Legislature has specified that the “area served by the court” is the pertinent community.

Historical considerations further support reliance upon the 20–mile area as the pertinent community, as court juror assignments in Los Angeles County have not been based on judicial districts since the change to a countywide system in 1975.  (Stats.1974, ch. 806, § 3, p. 1755.)

 We, therefore, hold that it is the area within a 20–mile radius of the courthouse which defines the pertinent community in Los Angeles County for the purpose of analysis under Duren.   Since appellant established a significant disparity as to that community, he proved the second element of the Duren test.

(3) Underrepresentation due to systematic exclusion in the jury selection process.

The evidence further supports the third element of the Duren test through the testimony that assigning Black jurors to the courthouse nearest their homes consistently resulted in an underrepresentation of Blacks at the Long Beach Courthouse.   Despite the county's evidence that prospective jurors from predominantly minority census tracts were less likely to respond to questionnaires and to qualify as jurors, the facts that there were sufficient numbers of Black jurors on a countywide basis, and too many at the downtown courthouse, strongly support the finding that the problem at the Long Beach Courthouse resulted at least in part, if not exclusively, from the allocation process.

(4) The state's rebuttal.

Since we agree with the trial court that appellant established a prima facie case, the critical question we must answer is whether the state met its burden of proving a significant state interest which justified the consistent underrepresentation of Blacks on Long Beach jury panels due to the allocation process.   We turn to cases which have considered the nature of the state's burden.

Duren v. Missouri, supra, 439 U.S. 357, 360, 99 S.Ct. 664, 666, held that provisions of Missouri law which exempted women from jury duty upon request resulted in a systematic exclusion of women which violated the fair cross-section requirement of the federal Constitution.   After finding that the defendant had established a prima facie case, Duren explained that the state could overcome the defendant's showing by proof “that a significant state interest [was] manifestly and primarily advanced by those aspects of the jury-selection process, such as exemption criteria, that result in the disproportionate exclusion of a distinctive group.”  (At pp. 367–368, 99 S.Ct. at p. 670.)   More than “merely rational grounds” was required.  (At p. 367, 99 S.Ct. at p. 670, quoting Taylor v. Louisiana (1975) 419 U.S. 522, 534, 95 S.Ct. 692, 699, 42 L.Ed.2d 690.)   It was the state's burden to justify the infringement of the right to a proper jury “by showing attainment of a fair cross-section to be incompatible with a significant state interest.”  (At p. 368, 99 S.Ct. at p. 671.)

No proof having been presented, the Duren court rejected arguments that the low percentage of women might be due to other factors including greater numbers of women than men obtaining other exemptions.   It then found no merit in the state's claim that the exemption for women advanced the state interest in safeguarding the important role of women in home and family life, as that argument did not reflect the reality of women's role in modern society.10

 It should be noted that Duren speaks of the state's burden to show a “significant” state interest, and does not use the term “compelling” state interest which applies in equal protection cases.  (San Antonio Independent School District v. Rodriguez (1973) 411 U.S. 1, 16–17, 93 S.Ct. 1278, 1287–1288, 36 L.Ed.2d 16;  Note, The Irrebuttable Presumption Doctrine in the Supreme Court (1974) 87 Harvard L.Rev. 1534, 1535–1536, fn. 9.)   A “significant” state interest appears to be something less than a “compelling” state interest, yet something more than a “rational” state interest since Duren states that “ ‘[t]he right to a proper jury cannot be overcome on merely rational grounds․' ”  (Duren v. Missouri, supra, 439 U.S. at p. 367, 99 S.Ct. at p. 670, quoting Taylor v. Louisiana, supra, 419 U.S. at p. 534, 95 S.Ct. at p. 699.)

There is little California law on the type of rebuttal evidence which is required.   In People v. Fields (1983) 35 Cal.3d 329, 197 Cal.Rptr. 803, 673 P.2d 680, the defendant contended that exclusion of persons who would automatically vote against the death penalty but could be impartial on guilt resulted in a guilt phase jury which was not a representative cross-section of the community.   Applying the Duren test, the plurality opinion of Justices Broussard, Mosk and Richardson held that (1) such “guilt phase includable” jurors were not a cognizable class under Duren (id., at p. 349, 197 Cal.Rptr. 803, 673 P.2d 680), and (2) exclusion of the group was justified by the state's interest in maintaining a unitary jury for both phases of the trial.   That interest involved more than just considerations of convenience or expense, as it assured “that the decision-making process of a death penalty case is a coherent whole.”  (Id., at p. 352, 197 Cal.Rptr. 803, 673 P.2d 680.)   The state's asserted interest in juror convenience in the case before us obviously does not rise to this level of significance.

People v. Harris, supra, 36 Cal.3d 36, 59, 201 Cal.Rptr. 782, 679 P.2d 433, was not faced with the question of the sufficiency of the state's rebuttal evidence, as the state's entire argument there was based on the absence of a prima facie case.   The opinion does indicate:  “The state may be able to [rebut] by showing, through use of figures defining those presumptively eligible for jury service, that no disparity of constitutional significance exists, or that even with the use of multiple sources and all other practical means, a certain level of disparity is unavoidable.   Finally, it may be able to justify the underrepresentation by showing ‘that a significant state interest [is] manifestly and primarily advanced by those aspects of the jury-selection process ․ that result in the disproportionate exclusion.’ ”   (Quoting Duren v. Missouri, supra, 439 U.S. at pp. 367–368, 99 S.Ct. at p. 670.)

Thus, Harris defines the state's required rebuttal showing as either that (1) there actually is no disparity, (2) the disparity is inevitable despite use of all practical means, or (3) the aspect of the process which causes the disparity is justified by a significant state interest.   We question whether the second ground would withstand scrutiny in the federal court, and we note that Duren set forth no such ground, but we are compelled to apply it.

In O'Hare v. Superior Court, supra, 43 Cal.3d 86, 93, footnote 6, 233 Cal.Rptr. 332, 729 P.2d 766, the court declined to address any asserted state interest, as the defendant had not succeeded in making a prima facie showing.

Johnson v. Superior Court (1984) 163 Cal.App.3d 85, 88, 209 Cal.Rptr. 425, left open the question “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,” as there were no facts there to show that convenience was actually served by conducting trials in the branch court rather than the downtown court, as the trial court had held.   In contrast, we may safely assume that assignment to the nearest courthouse is more convenient than assignment to a courthouse as much as 20 miles away.   The question remains whether avoidance of that additional travel distance justifies the resulting disparity in minority representation.

Appellant relies heavily on People v. Buford (1982) 132 Cal.App.3d 288, 182 Cal.Rptr. 904.  Buford held that the defendant had made a prima facie showing that Blacks were underrepresented on Contra Costa County juries due to the jury commission's use of an informal excusal policy which was likely to have a greater impact on low-skilled nonunion employees.   Without deciding whether the Contra Costa system was invalid, Buford reversed because a prima facie showing had been made and the prosecution had not come forward with any evidence of justification “to enable the court to determine whether the county [was] doing all that [could] reasonably be expected to achieve the constitutional goal mandated in Wheeler. ”  (Id., at p. 299, 182 Cal.Rptr. 904;  fn. omitted.) 11  The opinion stated:  “It may be that the disparities demonstrated by appellant's statistical showing can be adequately explained on the basis of other, permissible, factors, or that certain of the procedures can be justified by considerations of practical necessity or other countervailing policies.”  (Id., at p. 299, 182 Cal.Rptr. 904.)   The adequacy of any rebuttal showing was not before the court.

The Buford majority opinion was written by Justice Grodin (then sitting by assignment with the Court of Appeal) and concurred in by Presiding Justice Racanelli.   Justice Elkington, who dissented in Buford, authored the next case involving the Contra Costa County jury selection system, People v. Jones (1984) 151 Cal.App.3d 1029, 199 Cal.Rptr. 185.  Jones held that the prosecution had met its burden of going forward with evidence which showed that Contra Costa County was doing all that could reasonably be expected to achieve the constitutional goal.   The prosecution had shown that the system of excusals from service had been formalized;  all names were selected at random, a sizeable proportion of prospective jurors established reasons for ineligibility, deferment or excusal for hardship;  and there was no indication of a prospective juror's race throughout the selection process.  (Id., at pp. 1032–1033, 199 Cal.Rptr. 185.)

The First District has followed the Jones holding in People v. Simmons (1985) 164 Cal.App.3d 1070, 211 Cal.Rptr. 60, People v. Pervoe (1984) 161 Cal.App.3d 342, 207 Cal.Rptr. 622, and People v. Black (1984) 160 Cal.App.3d 480, 206 Cal.Rptr. 744.12

The Fifth District utilized a practical approach similar to Jones when it evaluated the Kern County juror selection system in People v. Alexander (1985) 163 Cal.App.3d 1189, 210 Cal.Rptr. 306.   The defendant there contended that the reason for a disparity in Blacks and Hispanics on the jury venire was that the county utilized the type of informal excusal policies which had been condemned in People v. Buford, supra, 132 Cal.App.3d at pages 297–298, 182 Cal.Rptr. 904.  Alexander criticized Buford on the ground that Buford had simply speculated, without proof, that the disparity was caused by the informal excusal system.  (Alexander, supra, 163 Cal.App.3d at pp. 1200–1201, 210 Cal.Rptr. 306.)   It emphasized the difficulty of pinpointing the cause of such disparity, which may be due to economic, cultural, social and language factors beyond the control of the courts.  (At pp. 1201–1203, 210 Cal.Rptr. 306.)   It is, however, the duty of the courts to “comply with all statutory and rule requirements in the area of excusal from jury service” and to “do what they can to assist in alleviating the problem.”  (At p. 1203, 210 Cal.Rptr. 306.)   Since Alexander had been tried before Harris, the case was remanded to allow the People to present rebuttal evidence.

Respondent relies heavily on Jones, Simmons, Pervoe, Black and Alexander.   As indicated, the focus of those cases is on whether a county is “doing everything that can reasonably be expected” to remedy a complex problem.   The testimony from the jury commissioner here showed that Los Angeles County is indeed making a determined effort to comply with the statutory and constitutional goals of providing representative juries.   As we have previously indicated in our discussion of Harris, we question the legitimacy of this test and believe that the emphasis should be on proof of a significant state interest to rebut a prima facie showing that a county's jury selection process results in systematic exclusion of a cognizable group.   In any event, we cannot say that Los Angeles County is doing everything reasonably possible to provide proper juries, where it has adopted an assignment system which by its nature causes a disparity in minority representation on juries, and alternative assignment systems are available.   Moreover, the cases from other counties cannot provide persuasive authority on the Los Angeles County system, which is distinct due to its exemption of jurors from service at a courthouse more than 20 miles from a juror's residence, and the existence of multiple courthouses within the 20–mile zone.

Two cases by Division Three of this district, Adams v. Superior Court, supra, 27 Cal.App.3d 719, 104 Cal.Rptr. 144, and People v. Taylor, supra, 46 Cal.App.3d 513, 120 Cal.Rptr. 762, contain language suggesting that juror convenience is a compelling state interest.

Both Adams and Taylor arose under the pre–1975 “dual draw” system of jury selection in Los Angeles County, under which jurors for the branch courts were chosen solely from residents of that branch court's district, while jurors for the Central District downtown were chosen on a countywide basis.   The Central District had a much higher percentage of Black residents than the other districts.

Adams concerned a defendant at the downtown courthouse whose complaint was that choosing jurors for that courthouse on a countywide basis provided him a lower percentage of Black jurors than if the selection had been made from the Central District alone.  (27 Cal.App.3d at p. 722, 104 Cal.Rptr. 144.)   In Taylor, a branch court defendant complained that choosing jurors solely from the branch court's district denied him the greater percentage of Black jurors he would have had if the jurors were selected on a countywide basis.  (46 Cal.App.3d at pp. 532–533, 120 Cal.Rptr. 762.)   Both Adams and Taylor found no equal protection problem in the “dual draw” system.   Given Los Angeles County's vast population and geographical area, choosing branch court jurors from the respective branch court districts enabled the superior court to function “ ‘in such a manner as to reasonably accommodate litigants, jurors, witnesses and other interested persons.’ ”  (People v. Taylor, supra, at p. 533, 120 Cal.Rptr. 762, quoting Adams v. Superior Court, supra, 27 Cal.App.3d at p. 732, 104 Cal.Rptr. 144.)   At the same time, the countywide draw for the downtown court was necessary to ensure a representative jury for defendants whose lengthy cases were transferred downtown because they would overly burden the more limited resources of the branch courts.  (Adams, supra, at pp. 732–733, 104 Cal.Rptr. 144.)

We disagree with Adams and Taylor to the extent they find juror convenience to be a compelling state interest.   As Justice Cobey stated in his dissent to Adams :  “[S]ervice on trial juries is one of the fundamental obligations of citizenship and although alleviation of this burden upon residents of a certain geographical area may be a laudable object, considered by itself, it cannot reasonably be said to rise to the stature of a necessarily compelling governmental interest.”  (Adams v. Superior Court, supra, 27 Cal.App.3d at pp. 736–737, 104 Cal.Rptr. 144 (emphasis in original).)

Moreover, the Adams majority itself stated:  “[A]s long as the system of jury selection is in compliance with the cross-sectional principle, it is constitutionally permissible to enact provisions, aimed at minimizing inconvenience to jurors and expense to the county, which limit the geographical area from which jurors are chosen for service in a particular judicial district.  [Citations.]”  (Id., at pp. 728–729, 104 Cal.Rptr. 144;  emphasis added.)

 In the case before us, the system of assigning jurors to the nearest courthouse does not comply with the cross-section principle, but in fact has resulted in a denial of that fundamental right.   The interest in juror convenience is simply not sufficiently significant to justify that result.

We are convinced that the policy of assigning jurors to the courthouse closest to their residences gives undue weight to the state's asserted interest in juror convenience, at the expense of a defendant's constitutional right to a jury which represents a fair cross-section of the community.

The Legislature has already addressed the question of juror convenience by providing Los Angeles County jurors the 20– mile exemption.   That distance is a reasonable accommodation of the competing state interest.   Where the jury selection system has gone awry is in reducing those 20–mile radii through assignment to the nearest courthouse to the jurors' residences, which results in increasing the disparity of minority representation on juries.

We hold that the sentence of section 203 of the Code of Civil Procedure which requires counties to adopt rules which “reasonably minimize the distance traveled by jurors” cannot constitutionally be interpreted in Los Angeles County to allow assignment of jurors to their nearest courthouse where to do so reduces the 20–mile exemption specifically set forth for Los Angeles County.

Respondent suggests in its supplemental brief that, in the event this court finds both that a prima facie showing was made under Duren and that no significant state interest was shown in rebuttal, we should remand to allow the People to present further evidence regarding juror convenience, such as traffic patterns and the availability of public transportation in the Los Angeles urban area.   We see no basis for remand.   The prosecution was granted the opportunity below to present rebuttal evidence, and did so.   The fact that more rebuttal evidence might have been presented is not a convincing argument for remand.

 Respondent further proposes that, in the event we declare a new rule regarding the application of section 203, our holding should be made prospective only.   We agree, in light of the extent of reliance on the jury commissioner's interpretation of section 203, and the potentially devastating effect that retroactivity would have on the administration of justice.  (Donaldson v. Superior Court (1983) 35 Cal.3d 24, 36–39, 196 Cal.Rptr. 704, 672 P.2d 110;  People v. Bustamante (1981) 30 Cal.3d 88, 102, 177 Cal.Rptr. 576, 634 P.2d 927;  People v. Cook (1978) 22 Cal.3d 67, 99, fn. 18, 148 Cal.Rptr. 605, 583 P.2d 130.)   Accordingly, with the exception of the instant appeal, the holding of this opinion shall apply only to trials held after the date of finality of this opinion.

The judgment is reversed.

FOOTNOTES

1.   The countywide Black population figure here was more precise than in People v. Harris, supra, 36 Cal.3d 36, 201 Cal.Rptr. 782, 679 P.2d 433, where the under 18 population was not eliminated from the statistic.   The “jury eligible” figure here did not, however, exclude people who might be ineligible due to reasons like felony convictions or mental incompetency, for which no data was available.

2.   The purpose of the surveys was to measure the effect of adding the DMV lists to the voter registration list.   The change had no statistically significant impact.

3.   There are some obvious small differences between the statistics provided by the defense and prosecution below.   The discrepancies were not resolved by the trial court and do not appear important to this decision.

4.   We utilize certain documents regarding legislative history which were furnished by the Legislative Intent Service.  (See Commodore Home Systems, Inc. v. Superior Court (1982) 32 Cal.3d 211, 218, fn. 9, 185 Cal.Rptr. 270, 649 P.2d 912.)

5.   Adams v. Superior Court (1972) 27 Cal.App.3d 719, 732–733, 104 Cal.Rptr. 144;  People v. Taylor, supra, 46 Cal.App.3d at p. 533, 120 Cal.Rptr. 762;  People v. Superior Court (Bowen) (1972) 27 Cal.App.3d 738, 740, 104 Cal.Rptr. 159;  Sandoval v. Superior Court (1972) 27 Cal.App.3d 741, 744, 104 Cal.Rptr. 157;  People v. Brooks (1975) 51 Cal.App.3d 602, 606, 124 Cal.Rptr. 492.

6.   When a witness at the hearing proposed extending the 20–mile exemption to counties other than Los Angeles, the committee chairman responded that such a rule might mean courthouses in sparsely populated rural counties would lack sufficient jurors.   It may be that jurors in other parts of the state routinely travel more than 20 miles for jury service.   Such distances, however, may not require the same actual driving time as in the crowded urban sections of Los Angeles County.

7.   Challenges to juries based on a denial of a fair cross-section of the community utilize a different analysis from jury challenges based on a denial of equal protection.   A prima facie showing of a denial of equal protection can be rebutted by proof of the absence of discriminatory intent, while a prima facie showing of a denial of a fair cross-section is rebutted by proof of a significant governmental interest justifying the imbalance.  (Castaneda v. Partida (1976) 430 U.S. 482, 497–498, 97 S.Ct. 1272, 1281–1282, 51 L.Ed.2d 498;  Davis v. Zant (11th Cir.1983) 721 F.2d 1478, 1482, and fn. 6.)

8.   Harris also held that Hispanics are a cognizable group.   (36 Cal.3d at p. 51, 201 Cal.Rptr. 782, 679 P.2d 433.)   The defense motion here was limited to Blacks.

9.   The Supreme Court again avoided the issue of the appropriate community in People v. Myers (1987) 43 Cal.3d 250, 263, 233 Cal.Rptr. 264, 729 P.2d 698, in finding that Harris was nonretroactive.   The Attorney General argued in Myers that the pertinent community was the one within a 20–mile radius of the courthouse rather than the county as a whole.

10.   Several post-Duren federal cases have considered the adequacy of the prosecution's rebuttal showing in response to a prima facie case.   United States v. Benmuhar (1st Cir.1981) 658 F.2d 14, 18–20, held that a defendant in the United States District Court for the District of Puerto Rico had established a prima facie case that an English proficiency requirement for jurors denied a fair cross-section.   That showing was rebutted by the significant state interest in having a branch of the national court system operate in the national language.   In contrast, La Roche v. Perrin (1st Cir.1983) 718 F.2d 500, held that the state had not rebutted the defendant's prima facie showing that 18 to 34 year olds were consistently underrepresented on juries in a New Hampshire county, as the state could only speculate regarding legitimate reasons for the disparity.  (La Roche was later overruled in Barber v. Ponte (1st Cir.1985) 772 F.2d 982, 1000, on the ground that “young adults” were not a cognizable class.)   And Davis v. Zant, supra, 721 F.2d 1478, 1485–1486, held that the state failed to meet its burden of rebutting a prima facie case that a Georgia county's jury selection procedures improperly excluded Blacks and women, as the state offered nothing other than testimony from the jury commissioners that they had not engaged in discrimination.None of the federal authorities are especially helpful on the significance of the state's asserted interest here, juror convenience, which appears qualitatively different from the other types of interests considered above.

11.   While Buford did not rely on Harris for that rebuttal test, it is obviously similar to Harris' test that the disparity is unavoidable despite use of “all other practical means.”  (People v. Harris, supra, 36 Cal.3d at p. 59, 201 Cal.Rptr. 782, 679 P.2d 433.)

12.   Presiding Justice Racanelli has expressed continuing reservations regarding “the seemingly chronic appearance of unrepresentative criminal juries in Contra Costa County.”  (People v. Black, supra, 160 Cal.App.3d at p. 483, 206 Cal.Rptr. 744;  People v. Simmons, supra, 164 Cal.App.3d at p. 1073, 211 Cal.Rptr. 60.)   He has also questioned whether the county was really doing all that could “reasonably be expected” when it made little effort to “follow up” on jurors who failed to respond, did not try to reduce the level of attrition caused by jurors who failed to qualify, and never invoked statutory remedies designed to compel juror compliance.  (People v. Simmons, supra, at pp. 1072–1073, 211 Cal.Rptr. 60.)   Justice Kline dissented in Pervoe on the similar ground that the county should be required to utilize available statutory sanctions against potential jurors who failed to respond or refused to serve.  (People v. Pervoe, supra, 161 Cal.App.3d at p. 362, 207 Cal.Rptr. 622.)   The Pervoe majority responded that extensive use of sanctions against noncooperating jurors could not reasonably be expected, would not result in cooperative jurors, and might not improve the statistical disparity in any event.  (At p. 354, fn. 7, 207 Cal.Rptr. 622.)

WOODS, Presiding Justice.

KINGSLEY and McCLOSKY, JJ., concur.