People v. Coleman

BIRD, C. J. Concurring.

Nearly six years ago, two members of this court expressed the view that an accused’s state and federal constitutional rights to a jury drawn from a fair cross-section of the community are not abridged by the exclusion of resident aliens from the jury venire. 1 (Rubio v. Superior Court (1979) 24 Cal.3d 93, 99-105 [ 154 Cal.Rptr. 734 , 593 P.2d 595 ] (lead opn. of Mosk, J.).) Justices Richardson and Clark concurred in the result in Rubio , but expressed no views on the merits of the cross-sectional issue. (Id., at p. 105.) Three justices dissented on that issue. (Id., at pp. 105-120.)

It is well established that “in the decision of a case before the court in Bank the concurrence of at least four justices is necessary, and . . . any proposition or principle stated in an opinion is not to be taken as the opinion of the court, unless it is agreed to by at least four of the justices.” (Del Mar Water, etc. Co. v. Eshleman (1914) 167 Cal. 666, 682 [ 140 P. 591 ].) Thus, any language or opinion not concurred in by at least four justices of this court has “no controlling weight” and is of no precedential effect. (People v. Ceballos (1974) 12 Cal.3d 470, 483 [ 116 Cal.Rptr. 233 , 526 P.2d 241 ]; see also Scott v. Times-Mirror Co. (1919) 181 Cal. 345, 359-360 [ 184 P. 672 , 12 A.L.R. 1007 ]; Smith v. Evans (1974) 42 Cal.App.3d 154, 157 [ 116 Cal.Rptr. 684 ].)

Neither in Rubio nor in any other case has a majority of this court ever held that the exclusion of resident aliens from California juries satisfies the dictates of the state and federal Constitutions. The constitutionality of Code of Civil Procedure sections 198 and 199 is, therefore, before this court without any guidance from controlling precedent. No violation of the prin *96 ciples of stare decisis would occur were this court to entertain appellant’s claim and decide that those statutes contravene the state Constitution. 2

Therefore, while I concur in the reversal of appellant’s conviction on the ground that the trial court erred in admitting portions of his wife’s letters into evidence, I would address the jury issue in this case, and hold that the exclusion of resident aliens from California juries violates the cross-section requirement of the state Constitution.

The rationale of the lead opinion in Rubio is not persuasive. Its central premise is that while resident aliens are a unified group who share a common perspective arising from their life experiences, they may constitutionally be excluded from jury service because another group in the community-naturalized citizens—adequately represents their perspective. ( Rubio, supra, 24 Cal.3d at pp. 98-100 (lead opn. of Mosk, J.).) However, as Justice Tobriner’s dissent points out, such logic would entirely undercut the cross-section requirement. For example, under that reasoning, the arbitrary exclusion of one portion of an identifiable group could be justified on the ground that the remaining portion represents its interests, and the exclusion of an entire minority group could be upheld on the basis that another is permitted to serve. Such a formulation would uphold “a statute providing for the exclusion of blacks whose last names begin with A through L, . . . since blacks with last names beginning with M through Z could adequately represent the viewpoints of the group of excluded blacks.” (Rubio, supra, 24 Cal.3d at p. 106 (dis. opn. of Tobriner, J.).)

The principle of “vicarious” representation must not be viewed as a substitute for the cross-section requirement. That constitutional guarantee ensures that the venire reasonably reflect the relative proportions of all distinctive groups in the community. Resident aliens at least “rival naturalized citizens in numbers.” (Rubio, supra, 24 Cal.3d at p. 100, fn. 8 (lead opn.), 109, fn. 12 (dis. opn. of Tobriner, J.).) Since resident aliens represent a significant proportion of the community, their exclusion on the “vicarious” *97 representation theory constitutes a clear violation of the cross-section requirement. 3

The Rubio lead opinion also sought to justify the exclusion of resident aliens on the basis that political decisionmaking must be restricted to members of a state’s political community. {Rubio, supra, 24 Cal.3d at p. 104 .) However, as Justice Tobriner convincingly pointed out, serving on a jury does not amount to political decisionmaking. The vote cast by a juror is fundamentally different than the vote cast by an elector. {Id., at p. 115 (dis. opn.).) Since jurors decide questions of fact in individual disputes under the guiding instructions of the trial judge, their participation in the judicial process cannot be characterized as lawmaking in the legislative sense or policymaking in the executive sense. {Id., pp. 115-116.)

Moreover, even assuming arguendo that jury service does “substantially affect the members of the political community” {id., at p. 104 (lead opn. of Mosk, J.)), I think it appropriate to note that the state Constitution does not reflect that concern. The state charter contains no citizenship require *98 ment for jury service, but only for voting (art. n, § 2) and for election tó the Legislature (art. IV, § 2, subd. (c)) or the Governorship (art. V, § 2).

However, the state Constitution does guarantee the right to an impartial trial by jury. (Art. I, § 16.) This court has recognized that this right ensures that the venire will represent “a diversity of experience, knowledge, judgment, and viewpoints. ” (Hovey v. Superior Court (1980) 28 Cal.3d 1, 22 [ 168 Cal.Rptr. 128 , 616 P.2d 1301 ].) Such diversity is necessary in our culturally pluralistic society in order to “recognize a fuller range of possible meanings or explanations for particular behavior . . . [1] . . . [and to] insure that the common sense of the community is accurately expressed in applying [the reasonable doubt] standard to the facts.” (Id., at p. 24.) If the right to an impartial jury requires the widest diversity of possible views within the limits of the state Constitution, infringements on that right, founded upon no other specific state constitutional provision, are prohibited.

Since the California Constitution does not permit the exclusion of resident aliens from California juries, I would reverse the judgment on that additional ground.

Broussard, J., concurred.

Code of Civil Procedure sections 198 and 199 provide, inter alia, that a noncitizen is not competent to act as a juror.

As Justice Tobriner noted in his dissent in Rubio , “a number of federal cases have indicated that the exclusion of aliens from jury service does not violate the federal Constitution. (See Foley v. Connelie (1978) 435 U.S. 291 [ 55 L.Ed.2d 287 , 98 S.Ct. 1067 ]; Perkins v. Smith (D.Md. 1974) 370 F.Supp. 134 , affd., 426 U.S. 913 [ 49 L.Ed.2d 368 , 96 S.Ct. 2616 ]),” but that “those decisions are, of course, not controlling as to a defendant’s right to an impartial jury under article I, section 16 of our state Constitution. ” (Rubio v. Superior Court, supra, 24 Cal.3d at p. 117, fn. 22 (dis. opn. of Tobriner, J.).)

The assumption that differences between naturalized citizens and noncitizens are differences in degree but not in kind finds no basis in fact. In actuality, noncitizens differ significantly from naturalized citizens in racial, ethnic, and cultural characteristics. There has been a shift in the racial and ethnic composition of the immigrant groups due to the changing patterns of immigration and naturalization. Thus, the characteristics of immigrants who presently enjoy the status of naturalized citizens are quite different from those of immigrants who have not yet become citizens.

Consider the immigration statistics. Between 1931 and 1960, Europe provided 81 percent of the immigrant pool, while Latin America, excluding the Caribbean countries, provided only 15 percent. (Select Com. on Immigration and Refugee Policy, U.S. Imm. & the Nat. Interest: Final Rep., p. 95 (1981) [hereafter Final Report] (All percentages are computed from data reported in the cited reports).) Between 1961 and 1970, immigrants from Europe represented only 34 percent of the total immigrant pool, while the Latin American proportion increased to 25 percent. (U.S. Dept. Justice, Imm. & Nat. Service, INS Ann. Rep., table 13, p. 88 (1976) [hereafter 1976 Annual Report].) In 1979, due in part to the refugee flows, immigrants from Asia increased to 41 percent of the total pool, while immigrants from Europe decreased to 13 percent. Immigrants from Latin America diminished only slightly to 23 percent. (Final Report, op. cit. supra, at p. 95; U.S. Dept. Justice, Imm. & Nat. Service, INS Ann. Rep., table 1A, p. 2 (1979) [hereafter 1979 Annual Report].) Since at least five years’ residence is required for naturalization, it appears that the present non-citizen pool is predominantly Asian and Latin American.

Next, examine the naturalization statistics. Resident aliens from Europe comprised 25 percent of all persons naturalized in 1979, while resident aliens from Latin America comprised only 14 percent. (1979 Annual Report, table 39, p. 88.) A comparison of immigration statistics with naturalization statistics for these areas also indicates that European immigrants naturalize in greater proportions than do their Latin American counterparts. (Compare 1976 Annual Report, table 14, p. 89 with 1979 Annual Report, table 39, p. 88.) Moreover, naturalization rates differ by country of origin. Naturalization rates for immigrants from Mexico is particularly low. For example, between 1972 and 1979, approximately 12 percent of persons who had immigrated from Mexico became citizens. (Ibid.) This figure is especially significant given that a large percentage of this state’s resident aliens are from Mexico. Thus, it is manifest that exclusion of noncitizens adversely affects the proportion of Latin Americans, especially those of Mexican origin, on California juries.