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

PEOPLE of the State of California, Plaintiff and Respondent, v. Calvin GAINES, Defendant and Appellant.


Decided: August 23, 1984

John K. Van de Kamp, Atty. Gen., Gloria F. DeHart, Ronald D. Smetana, Deputy Attys. Gen., San Francisco, William A. O'Malley, Dist. Atty., Martinez, for plaintiff and respondent. Quin Denvir, State Public Defender, Janet M. Lande, Deputy State Public Defender, San Francisco, for defendant and appellant.

On defendant Calvin Gaines' appeal from a Contra Costa County judgment of conviction of second degree murder with use of a firearm, he contends only that:  “Appellant was denied an impartial jury drawn from a fair cross-section of the community as guaranteed by article I, section 16, of the California Constitution, and the Sixth and Fourteenth Amendments to the United States Constitution.”

The contention is that of Buford (People v. Buford, 132 Cal.App.3d 288, 182 Cal.Rptr. 904) error.   It is argued that since Buford “held unconstitutional [emphasis added] the system of juror excusals and deferrals as practiced in [Contra Costa County],” Gaines' jury, stipulated as impaneled under the same system of excusals and deferrals, was constitutionally invalid, mandating reversal of all Contra Costa County convictions by juries impaneled under that system.

Gaines misinterprets Buford.

Buford did not hold “unconstitutional the system of juror excusals and deferrals as practiced in Contra Costa County.”

Instead, Buford expressly stated:  “We emphasize that we do not hold existing jury procedures in Contra Costa County to be invalid.”  (132 Cal.App.3d at p. 299, 182 Cal.Rptr. 904;  emphasis added.)

And although Buford's conviction was reversed, the Buford court said:  “We hold only that upon a showing such as made by appellant in this case, the prosecution should have been required to come forward with available evidence of explanation and justification, so as to enable the court to determine whether the county is doing all that can reasonably be expected to achieve the constitutional goal mandated in [People v. Wheeler, 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748].”  The reversal was undoubtedly to emphasize the latter holding, a recourse which was eminently successful according to People v. Jones, 151 Cal.App.3d 1029, 199 Cal.Rptr. 85, and People v. Black, 160 Cal.App.3d 480, 206 Cal.Rptr. 744.

Moreover we note in Buford, that while it was found “that the percentage of blacks in [Contra Costa County's] eligible adult population is about 7.3 percent,” the ratio of blacks called for the impanelment of Buford's jury was but 4.3 percent of the total persons called.   Of the persons called for the impanelment of Gaines' jury, concededly under the same “system of juror excusals and deferrals” as in Buford, the proportion of blacks called constituted 10 percent (8 out of 80) ** of the total persons called.

Gaines' appeal is patently without merit.

The judgment is affirmed.


FOOTNOTE.   Counsel for the respective parties had stipulated (1) that they “did observe out of the represented 80, there [were] at least eight people that are definitely of the black race,” and (2) that of the total persons eligible in the county for jury service, 8.1 percent of them were “of the black race.”

ELKINGTON, Acting Presiding Justice.

HOLMDAHL and RUSHING ***, JJ., concur.Hearing denied;  BIRD, C.J., BROUSSARD and GRODIN, JJ., dissenting.

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