PEOPLE v. CASTRO (1977)

The People appeal following entry of an order granting defendants' motion to quash and vacate an indictment returned by the 1974–1975 San Joaquin County Grand Jury.¹ In their motion to quash, the three defendants claimed that certain classes of persons were systematically excluded or substantially underrepresented on the grand jury. Such classes were claimed to be: (1) people with Spanish surnames; (2) people under 30 years of age; (3) ‘Blue-collar’ people; and (4) people with annual incomes under $6,000.² The trial court rejected the claim as to the first three classes but sustained it as to the fourth, concluding that members of families with an annual income of less than $6,000 form a distinct class in San Joaquin County, that this class was underrepresented on the panel, and that the seven superior court judges in San Joaquin County had not discharged their ‘affirmative duty’ to insure the representation of such persons on the panel.

The People contend on appeal:

(1) The definition of low income persons as those with an annual family income below $6,000 is arbitrary and does not meet the legal standard of a class;

(2) The hybrid grand jury selection procedure employed in San Joaquin County did not in any event systematically exclude such persons; and

(3) The superior court judges of San Joaquin County did not violate their affirmative duty to seek an adequate cross-section of the community.

It is unnecessary for us to discuss the first contention because we have concluded that the trial court's order must be reversed on the basis of the second and third.³

I

The composition of the grand jury in question was determined by a combination of (1) persons nominated individually by the superior court judges and (2) persons selected at random from the county's voter registration list. Early in 1974, Presiding Judge William Biddick directed the county clerk to compile a master grand jury panel of 75 persons, consisting of 15 from each of the 5 supervisorial districts in the county (each of which had approximately the same population). This master list was to include 21 names to be furnished by the judges; the remaining 54 were to be picked at random from the existing list of available petit jurors, who had in turn been earlier selected at random from the voter registration list.

The 21 judicial selections consisted of 3 from each of the 7 judges. Judge Biddick's memorandum to the judges asking for their nominations advised them of the procedure to be followed, and stated: ‘Please keep in mind that we need a balanced grand jury. We always need leadership material. In the past, we have tended to nominate people in the Stockton area and to nominate more men than women. We have had few young people nominated, although we had some excellent younger people nominated last year. We have also had excellent minority nominations from the judges in the past few years.’

The judges made their individual selections and the clerk's office complied with Judge Biddick's directive. The 75 prospective grand jurors were then individually interviewed by the county clerk and their number reduced to 45 (pursuant to Judge Biddick's further directive), 9 from each district; hardship, inconvenience and reluctance to serve were the causes for removal of nominees in order to achieve the 45 member intermediate panel.⁴ Of the 45, 20 were judges' nominees. Then 30 names were drawn randomly from the 45, after which 19 were similarly drawn from the 30 to bring about the official 19-person grand jury. Nine of the nineteen grand jurors stemmed from the original twenty-one nominations of the judges, ten from the original petit jury list.

Ralph Epperson, the county clerk, testified that his office was working assiduously and closely with community organizations to expand registration. These orgainizations included The League of Women Voters, the Democratic and Republican Central Committees, the Mexican-American Political Activity Committee, the A. Randolph Institute (a Black organization in South Stockton), Raza Unida, and the Community Service organization (a Mexican-American organization in South Stockton). Deputy registrars were trained to work either door-to-door or in designated locations with these organizations to facilitate and increase voter registration.

All seven judges testified at length regarding the considerations which entered into their nominations. Judge Biddick emphasized the necessity for balance. He described balance as ‘achieving a representation among minority groups . . . trying to get adequate balance between men and women, trying to get some younger people on the Grand Jury, trying to have representatives of all walks of life, all occupations.'⁵ He presided over approximately 30 jury trials, in which the jury panels (aggregating about 700 persons) were drawn from the same list as that from which the 1974–1975 grand jurors were chosen. The voir dire process enabled him to ascertain the approximate place of the jurors and their spouses in society. He realized that these trial jurors comprised a broad spectrum, including every element of the community. As a resident of San Joaquin County for his entire life and a superior court judge for 14 years, he felt better able to select representative persons by examining his own background and the people with whom he had become familiar than by resorting to organizations. He was acquainted with persons from many walks of life. Of his three nominees to the 1974–1975 grand jury, one in his opinion had an annual family income below $6,000. Although he had in the past solicited names of prospective jurors from others, he did not do so in the year in question, not did he solicit names from organizations or groups.

Judge Darrah resided in Stockton for 42 years and had been in office for some 5 years. He asked for suggestions from personal and professional acquaintances, but did not solicit suggestions from any organizations or groups.

Judge Dozier lived in San Joaquin County for 59 years, and had been a superior court judge since 1962. One of his nominees had an annual income below $6,000. He did not solicit suggestions for nominees from individuals or groups. He was aware that the bulk of the grand jury pool would come from the petit jury list; and as a result of his jury trials, he knew that large numbers of petit jurors were unemployed or modestly compensated for their employment.

Judge Sullivan has resided in the county since 1942 and has been a superior court judge since 1971. He spoke to several individuals in his quest for nominees, but did not consult with community organizations or groups. His nominees were personal acquaintances, and a serious question with them was whether or not they would be able to devote the necessary time to grand jury service. One of his nominees was under the age of thirty.

Judge Papas lived in San Joaquin County for 49 years, and had been a superior court judge since January 7, 1973. He actively attempted to select persons from minorities and from different parts of the county. He too had a difficult time getting persons to serve because of the time requirements.

Judge Cechini also lived in San Joaquin County all his life, and had been on the superior court since 1966. One of his nominees was under thirty. The criteria employed bt him were age, ethnic and geographic representation, and knowledge of the community. Cechini did not ask for suggestions from other persons or organizations. He was familiar with the make-up of the petit jury panels from which grand jurors were selected.

Judge Woodward, a life-long resident of San Joaquin County, had been a superior court judge since 1974. He contacted many persons in an attempt to obtain nominees, one of whom was an individual of Spanish-American descent. He did not contact any community organzations. Prior to his superior court service he was a judge of the Stockton Municipal Court, during which time he presided over numerous jury trials. In his opinion, the petit jury list contained a fairly accurate cross-section of the county.

Judge Biddick emphasized that the reason for judicial nominees was twofold, to insure minority representation and to obtain leadership so that the grand jury would efficiently carry out its civil function. He opined that by balancing the grand jury along racial and occupational lines, the judges would thereby balance it economically as well.

All of the judges testified that they had not asked any of their nominees the amount of their income and that they were not aware that a $6,000 annual income had any particular significance insofar as delineating a class of persons specifically entitled as such to grand jury representation. In general, the judges were aware of judicial decisions holding that economic status was a factor in determining an identifiable group; they recognized that poor persons constitute a large portion of the county's population and are geographically visible; and they were aware that there community organizations from which nominees of low economic status could be obtained. Some of the judges asserted that they had no reason to believe that persons making less than $6,000 per year were underrepresented on the grand jury; one of the judges equivocally concluded that ‘offhand they probably were underrepresented.’

II

Robert Blauner, an associate professor of sociology at the University of California, testified for the defendants. In his professional opinion, persons with an annual family income under $6,000 constituted an identifiable group in the community; he described the cut-off figure of $6,000 as a ‘ball-park figure.’ In his opinion, the characteristics of the class are: (1) a higher proportion of the people in this group obtain some or all of their income from various forms of public assistance; (2) they are therefore ‘stigmatized’ more than other persons; (3) such persons are less likely to have their own means of transportation, and thus are more dependent on public transportation; (4) larger amounts of their time are consumed in satisfying basic needs; and (5) they have a greater tendency to feel ‘marginal’ and out of the mainstream of society. He also opined that low income groups are underrepresented in voter registration lists.

David Hughes, assistant professor of mathematics and statistics at the University of the Pacific, also testified for the defendants. He analyzed the original pool at 75 persons, the later pool of 30 persons, the 19 members of the grand jury, and the individual nominees of the judges. He took into consideration the composition of the general population of San Joaquin County by use of census materials which indicated that 26.3 percent of its ‘families and unrelated individuals' have an annual income below $6,000. Hughes concluded that in the groups of 75, 30, and 19 persons, the under $6,000 per year class showed statistical underrepresentation. He also concluded that as to an aggregate of 25 judicial nominees,⁶ the income of 24 of which was known to him, there was no sufficient evidence of underrepresentation if the person whose income was unknown were deemed to be in the class.

In the pool of 75, the incomes of 5 persons were not known. Eight of the remaining seventy (11.4%) had annual incomes below $6,000. Of the 54 whose source was the voter registration list, the incomes of 4 were not known; 6 of the remaining 50 (12%) had annual incomes below $6,000. Only one of the persons with annual incomes below $6,000 survived to become one of the nineteen final grand jurors.

As above noted, the trial court concluded that 11.5 percent⁷ of the judges' nominees had an annual family income below $6,000, that persons with such income constitute a distinct class within San Joaquin County comprising 26.3 percent of all families therein, and that the defendants were members of the class. It determined that the judicial selectors consequently ignored the low income class in their own selections, improperly relying on the random selections from the petit jury list to provide a proper cross-section of the community. The court quashed the indictment, concluding finally that the failure actually to ensure a balanced panel with reference to this economic class resulted in substantial underrepresentation thereof on the grand jury.

III

The courts, both federal and state, have long recognized the right of a defendant to an impartial jury drawn from a cross-section of the community. (People v. White (1954) 43 Cal.2d 740, 749, 278 P.2d 9.) It is a equally well settled that the right of a defendant to a fairly selected jury ‘does not mean . . . that every jury must contain representatives of all the economic, social, religious, racial, political and geographical groups of the community; frequently such complete representation would be impossible. But it does mean that prospective jurors shall be selected by court officials without systematic and intentional exclusion of any of these groups. Recognition must be given to the fact that those eligible for jury service are to be found in every stratum of society.’ (Thiel v. Southern Pacific Company (1945) 328 U.S. 217, 220, 66 S.Ct. 984, 985, 90 L.Ed. 1181.)

The rule for evaluating whether or not in a given instance a particular class had been singled out for discriminatory treatment is succinctly set out in People v. Pinell (1974) 43 Cal.App.3d 627, 631–632, 634, 117 Cal.Rptr. 913, 916, 918, as follows: ‘The long-established rule is that equal protection is denied only by a method of selection which ‘intentionally and systematically’ excludes or underrepresents a cognizable class [citations]. The rule applies to grand as well as petit juries. . . . [Fn. omitted.]

‘To suggest a rule in any way based upon some requirement of proportional representation of the many possible divisions of age and economic groups is to introduce an element of extreme and unwarranted difficulty into the jury selection process.’ (Emphasis added.)

This Court had recent occasion to add further insight to the right of a criminal defendant to a fairly constituted grand jury in People v. Superior Court (Dean) (1974) 38 Cal.App.3d 966, 971–972, 113 Cal.Rptr. 732, 736. We there noted: ‘The decisions requiring the accused to show systematic, purposeful discrimination do not square with others which condemn discrimination stemming from negligence or inertia. The latter recognize that official compilers of jury lists may drift into discrimination by not taking affirmative action to prevent it. In formulating a panel for a grand jury endowed with the criminal indictment function, officials must adhere to a standard more stringent than mere abstention from intentional discrimination; they have an affirmative duty to develop and pursue procedure aimed at achieving a fair cross-section of the community.’ [Fn. omitted.] (Citing, in part, Cassell v. Texas (1950) 339 U.S. 282, 70 S.Ct. 629, 94 L.Ed. 839.)

The trial judge expressly found that there was no history of substantial underrepresentation of any distinct group or class; he therefore based his decision solely upon the complement of the master panel for the 1974–1975 grand jury. He faulted the judges for relying upon a 72 percent (54 out of 75) random selection to provide appropriate representation of the class in question, concluding that the judges thus ignored it. He ruled that ‘there was only a cursory examination of the kinds of persons or of the quality of persons selected for the Grand Jury Panel; no real studies nor investigations were made or conducted, and, as a result, the selectors, who professed to be seeking an adequate cross-section of the entire community, ignored low income persons, who constitute a sizable portion of the population, and who are substantially under-represented on the panel.’

We note that recent California cases analyzing grand jury selection procedures, without exception, are concerned with plans wherein the judges select all the nominees. (See People v. Goodspeed (1972) 22 Cal.App.3d 690, 699–700, 99 Cal.Rptr. 696; People v. Superior Court (Dean), supra, 38 Cal.App.3d at pp. 969–970, 113 Cal.Rptr. 732; People v. Johnson (1974) 38 Cal.App.3d 228, 113 Cal.Rptr. 303; People v. Wells (1974) 40 Cal.App.3d 11, 14, 114 Cal.Rptr. 777; People v. Pinell, supra, 43 Cal.App.3d at p. 630, 117 Cal.Rptr. 913; People v. Navarette (1976) 54 Cal.App.3d 1064, 1068, 127 Cal.Rptr. 55.) To our knowledge this is the first case in which a hybrid system of the type employed here has been challenged.

In performing their ‘affirmative duty to develop and pursue procedure aimed at achieving a fair cross-section of the community,’ how can a group of superior court judges best proceed? We believe that no method of selection is better calculated to avoid any conceivable claim of favoritism (active or passive) and at the same time guarantee as far as reasonably possible a fair social, racial, cultural, and economic cross-section of the community over the long term than the random drawing of names from the list of registered voters. The voting booth is open to every citizen, and constant efforts are expended in this state (and as shown by the evidence, in San Joaquin County) to bring about registration of all who are eligible. By leaving to chance the ultimate designation of the particular individuals who will serve but requiring that their source be the entire list of persons registered to vote, substantial objectivity is obtained and all legal objections with which the cases on the subject have dealt are vitiated.⁸ (See People v. Sirhan (1972) 7 Cal.3d 710, 749–740, 102 Cal.Rptr. 385, 497 P.2d 1121 and cases enumerated therein.)

The objection usually voiced against use of voter lists for jury selection is that many eligible persons do not register to vote and are therefore excluded, with the result that the jury does not represent a true ‘cross-section of the community.’ This objection has never been sustained and has been repeatedly rejected, as in United States v. Dangler (1970) 5 Cir., 422 F.2d 344, 345, where the court states: ‘It is plain, however, that if they [Jehovah's Witnesses] do not serve as jurors, it is not because they are deliberately excluded but because they are excused at their own request. We have approved the use of voter registration lists as the sole source of names for jury duty unless it results in the systematic exclusion of ‘a cognizable group or class of qualified citizens.’ Camp v. United States, 5 Cir. 1969, 413 F.2d 419. And we have held that those who do not choose to register cannot be considered a cognizable group. Grimes v. United States, 5 Cir. 1968, 391 F.2d 709, cert. denied, 393 U.S. 825, 89 S.Ct. 87, 21 L.Ed.2d 96.' (Emphasis added.)

Therefore when the San Joaquin County judges turned to the voter registration list for 72 percent of the master panel, they took a giant step toward proper discharge of their affirmative duty under Dean. They correctly relied upon this procedure to produce a fair representation of all segments of the community, including people with annual income below $6,000.

We proceed to the next question. By retaining to themselves the personal and individual nomination of 28 percent of the master panel, did the judges so dilute their otherwise commendable method of selection as to in effect fail to perform their affirmative duty? We answer in the negative, at least in the context of this case where there is no finding and no evidence whatever suggesting a willful or systematic exclusion of any class. On the contrary, such retention demonstrates an even more scrupulous attention to duty than if the judges had allowed random selection to produce the entire master panel. They can hardly be faulted for personally retaining 21 nominees for the primary purposes inter alia of assuring minority representation (which they could properly emphasize) and leadership for performance of the grand jury's civil functions (Pen.Code, § 925 et seq.). Nor can they be faulted for personally making certain in advance of nomination that a minimum number of panel members are of ‘ordinary intelligence, of sound judgment, and a fair character’ (Pen.Code, § 893, subd. (a)(2)); for no one can seriously claim that persons accused of crime should be indicted by persons of less than ordinary intelligence, of unsound judgment or of unfair character. Refusing to totally abdicate what they doubtless considered their obligation to personally participate in the selection process, the judges struck a conscientiously motivated and well conceived balance between personal and random selection.

The fact that in the process of reducing the master panel of 75 to a lesser panel of 45, only 1 judicial nominee was lost, does not in any way detract from the foregoing. From the judges' point of view, this was a matter of chance. They had no way of knowing who would be eliminated after personal interview, although admittedly one would expect the judges to have fairly accurately determined in advance the availability of their nominees. But even if we use the ratio of 20 to 45 rather than 21 to 75, the result is the same. Forty-four percent of the nominations would thus have been made by the judges personally while fifty-six percent would still have been by random selection. There is nothing in this to alter either our reasoning or our conclusion.

In summary, we hold that the use of a hybrid process of grand jury formation by which over 50 percent of a pool from which the jurors are ultimately drawn consists of random selections having as their source the county-wide voter registration list satisfies all constitutional rights of criminal defendants, unless it is demonstrated that with reference to the selections reserved to themselves the judges actually engaged in systematic or purposeful discrimination.⁹ Such a showing was not made here, and we approve of and commend the San Joaquin County practice.

Although discrimination in grand jury selection may result from negligence or inertia rather than from willful conduct, such a finding may be based only upon a showing of discriminatory results over some period of time. In Rabinowitz v. United States (5th Cir. 1966) 366 F.2d 34, 58, the court states: ‘If a fair cross-section is consistently lacking, then, without more, it is established that the [jury] commissioners have failed in their duty.’ (Emphasis added.) In People v. Pinell, supra, 43 Cal.App.3d at pp. 631–632, 117 P.2d at p. 916, the court graphically states the rule thus: ‘Direct proof that elimination or undue reduction of members of a class is intentional or purposeful is frequently impossible. But the element of purpose may be deduced from a substantial history of gross inadequacy of representation of the class. (E. g., Smith v. Texas, 311 U.S. 128, 131, 61 S.Ct. 164, 85 L.Ed. 84, 86–87.) When a defendant shows such a history, he has made a prima facie case of discrimination, and the burden shifts to the prosecution to explain and justify the discrepancy. Since this grand jury is the first chosen in Marin County under the present method, there is no such history.

“Purposeful discrimination is not sustained by a showing that on a single grand jury the number of members of one race is less than that race's proportion of the eligible individuals . . .. Defendants under our criminal statutes are not entitled to demand representatives of their racial inheritance upon juries before whom they are tried . . .. The mere fact of inequality in the number selected does not in itself show discrimination.' (Akins v. Texas, 325 U.S. 398, 403, 65 S.Ct. 1276, 1279, 89 L.Ed. 1692, 1696.) Proportional representation is not required, and the proportional limitation necessary to achieve it is forbidden. (Cassell v. Texas, 339 U.S. 282, 287, 70 S.Ct. 629, 94 L.Ed. 839, 847.)'

We expressly recognized this in our Dean opinion when we stated (38 Cal.App.3d at p. 972, 113 Cal.Rptr. at p. 737): ‘As a consequence, constitutional attack on grand jury composition may be supported by statistics which demonstrate discriminatory result rather than discriminatory design. However ineffectual to prove discriminatory design, the statistics sought by the Nevada County questionnaire would possess some significance as part of a larger body of data intended to show consistently discriminatory results.’ (Emphasis added.)¹⁰

As pointed out above, the trial judge expressly stated that there was no history of underrepresentation of the class which he determined to exist. His conclusion was reached on statistics involving only the single grand jury in question. Thus his decision cannot be sustained.

The judgment (order granting the motion to quash and vacate the indictment) is reversed.

FOOTNOTES

1.  Defendants were indicted for violation of Penal Code section 452, subdivision (b) (possession of a firebomb).

2.  Originally defendants' motion also argued that Negroes were similarly excluded; this contention has been abandoned.

3.  In articulating our holding, we necessarily assume that for grand jury selection purposes, persons with annual family incomes below $6,000 form a distinct and legally cognizable class in San Joaquin County. We make it clear however that we do not so hold.

4.  Three of the judges' nominees were also removed during this process because of an imbalance in such nominees among the supervisorial districts. These three were however replaced by three new judges' nominees from other districts. While the record is somewhat unclear on this point, it appears that one, and possibly two, other judges' nominees were also replaced.

5.  Judge Biddick testified that the particular minority groups that all the judges attempted to include in their nominations were Blacks, Orientals, people with Spanish surnames, women, and young people.

6.  We do not understand why Hughes determined the percentage of judges' nominees on the basis of 25 rather than the 21 who actually formed a part of the 75 person pool. It is undisputed that those newly nominated by the judges after their original 21 selections replaced original nominees removed from the pool; thus at no time were more than 21 judges' nominees ever available for ultimate random selection. This point was briefly inquired into by the trial judge but was not thereafter pursued. Our own analysis of the testimony and exhibits discloses that the income of one of the 21 judges' nominees is unknown and that 2 of the remaining 20 (10%) had annual incomes below $6,000.

7.  The trial judge somehow added yet another judge's nominee, and thus started with 26, 2 of whom had annual incomes below $6,000. The income of one such nominee being unknown, he presumed it to also be below $6,000. Thus he obtained a fraction of 3/26. or 11.5 percent. (See fn. 6, ante p. 752.) Interestingly, if he had engaged in the same presumption as to the panel of 75, he would have concluded that 17.3 percent of that panel (13 out of 75) were members of the class in question.

8.  The authorities primarily address the issue with specific reference to petit juries. A fortiori, the considerations are the same in the grand jury context.

9.  And unless it is shown that discrimination was practiced in the voter registration process. (People v. Sirhan (1972) 7 Cal.3d 710, 750, 102 Cal.Rptr. 385, 497 P.2d 1121.)

10.  We note the reaffirmance of this principle in the very recent United States Supreme Court case of Castenada v. Partida (1977) 430 U.S. 482, 97 S.Ct. 1272, 51 L.Ed.2d 498 in which an 11 year period was used to demonstrate the prima facie discrimination which the court condemned.

PARAS, Associate Justice.

FRIEDMAN, Acting P. J., and EVANS, J., concur.