PEOPLE v. BLACK (1984)

A jury found defendant Black, a black, guilty of two counts of robbery (Pen.Code, § 211), assault with a deadly weapon (Pen.Code, § 245, subd. (a)), and burglary (Pen.Code, § 245).

On his appeal from the judgment entered on the jury's verdicts he contends only that:  “Appellant was denied his constitutional right to a jury drawn from a fair cross-section of the community.”

Black's reliance is upon this court's case of People v. Buford, 132 Cal.App.3d 288, 182 Cal.Rptr. 904, in which, guided by People v. Wheeler, 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748, we found that, although about 8 percent of Contra Costa County's population were black, only about 4 percent of persons there called for actual jury service were black.   We also found that about 45 percent of those sought for jury service in the county were excused for claimed legal reasons.   Concluding that there was a strong suggestion of racial discrimination in the jury selection process, we reversed.   But we said:

“We emphasize that we do not hold existing jury procedures in Contra Costa County to be invalid.   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.   We do not undertake to decide whether or to what extent the federal or state Constitutions may require a state or county to expend funds in order to eliminate or modify what may be pragmatic obstacles to minority representation on juries, such as the level of jury pay or the costs of transportation․  And we certainly do not suggest that a county should engage in race conscious selection procedures in order to assure representative juries.   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 Wheeler.  [22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748.]”  (132 Cal.App.3d at p. 298, 182 Cal.Rptr. 904.)

Soon after Buford, this court was confronted with People v. Jones, 151 Cal.App.3d 1029, 199 Cal.Rptr. 185 with a similar issue, and also arising in Contra Costa County.   There, as suggested by Buford, “the prosecution [had] 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 Wheeler.”   The evidence of Jones follows:

“Contra Costa County endeavors to contact approximately 50,000 prospective jurors each year.   Their names and addresses are randomly secured from voters registration lists, and from the Department of Motor Vehicles' records of automobile owners and driver's licenses.  (No other source is reasonably apparent;  census records are confidential.   See 13 U.S.C., § 9.)   When the names are obtained there is no indication of the person's race.   Each of the persons is furnished, by mail, with a juror ‘qualification affidavit’ and an accompanying letter.   Each is advised that the law requires his or her cooperation in filling out the affidavit under penalty of perjury.   A properly filled out and returned affidavit determines the eligibility for jury service, and excuses, if any, therefrom.   Approximately 40 percent of them establish ineligibility, a reason for deferment, or excuse from service for undue hardship.

“No excuses from service are accepted over the telephone;  they must be in writing.   Excuses are ordinarily accepted from mothers who must care for young children, workers who would lose employment compensation during jury service, and students attending school or college.   And many medical excuses are allowed, but only on doctors' reports establishing disability.   If a letter and affidavit sent a prospective juror are not responded to, a second letter and affidavit are sent demanding action.   Many such communications are returned by the post office, and many simply go unanswered.   There is no followup (for reasons of cost) when the second communication is unresponded to.

“The names and address of qualified and unexcused persons are placed in a computer.   Each week about 400 such names are randomly selected by the computer, and called for actual service.   All withdrawals of names from the computer are random selections.

“And throughout the entire process, until the prospective juror is called to a courtroom or juror assembly room, the system is calculated to give no indication of the person's race to the jury commissioner, his assistants, or other county employees.”  (151 Cal.App.3d at pp. 1032–1033, 199 Cal.Rptr. 185.)

 The practice followed in People v. Jones appears to have continued in respect of the case before us, as impliedly here found by the superior court.   We accept that determination, and conclude that Contra Costa County has been doing all that can reasonably be expected, to achieve the constitutional goal of Wheeler.

 We emphasize, however, that the trial courts of Contra Costa County, and all of the state's counties, should continue to closely monitor, and improve where possible, their jury selection procedures, to the end that the objective of Wheeler, supra, 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748, and Buford, supra, 132 Cal.App.3d 288, 182 Cal.Rptr. 904, be fully achieved.

The judgment is affirmed.

Based upon the uncontroverted evidence submitted at the hearing on defendant's motion challenging the venire, the following appears:  Blacks comprised 8.1 percent of the voter-eligible population;  of the 225 prospective jurors in the jury pool for the week involved, 5 to 8 (2.2 to 3.56 percent) were Black;  of the 35 jurors actually summoned for defendant's trial, only 1 was Black (2.86 percent).   The parties stipulated that the procedures used by the jury commissioner in the summoning, excusing and deferring of prospective jurors were the same as reflected in People v. Buford (1982) 132 Cal.App.3d 288 (as modified on denial of rehearing at 133 Cal.App.3d 895e–g [182 Cal.Rptr. 904 as modified] ).  However it was further shown that the number of prospective jurors excused and deferred (for a period up to 90 days) was considerably lower than that disclosed in Buford.   Apart from the minor variance in the racial percentages of the summoned panels, the record is factually indistinguishable from that in People v. Jones (1984) 151 Cal.App.3d 1029, 199 Cal.Rptr. 185 (hg. denied, Apr. 18, 1984) in which this court found no constitutional impediment.   Accordingly, I concur in the result reached herein but reiterate my reservation concerning the seemingly chronic appearance of unrepresentative criminal juries in Contra Costa County.  (See id., 151 Cal.App.3d at p. 1033, 199 Cal.Rptr. 185.)

ELKINGTON, Associate Justice.

NEWSOM, J., concurs.