People v. Harris

MOSK, J.

I dissent.

If some counties choose to use lists other than the voters’ registration for selection of jury panels certainly they may do so. But is a county constitutionally compelled to do so, and if it does not, should its omission be *73 deemed justification for reversal of a conviction obtained on overwhelming evidence? Unlike the majority, I would answer those questions in the negative.

I pause at the outset to observe that the statistics upon which the defendant relies contain a major gap. Dr. Butler’s survey revealed that of the Long Beach jury panels 5.5 percent were Black and 3.4 percent were Hispanic. He then takes a quantum leap to note that the estimated population figures for Los Angeles County—including persons who are under 18 and those who are aliens, legal and illegal—are 15 to 17 percent Black and 33 percent Hispanic in 1980.

The leading cases on the subject of jury selection (e.g., Taylor v. Louisiana (1975) 419 U.S. 522 [ 42 L.Ed.2d 690 , 95 S.Ct. 692 ]; People v. Wheeler (1978) 22 Cal.3d 258 [ 148 Cal.Rptr. 890 , 583 P.2d 748 ]) require that a defendant be provided trial by an impartial jury drawn from a representative cross-section of the community. Our code uses the term “area served by the court” (Code Civ. Proc., § 197), not the county in which the court is situated. It takes only a cursory knowledge of the demography of Southern California to realize that Long Beach courts serve an area completely distinct in population characteristics from the totality of Los Angeles County. Indeed, Long Beach is closer to the county seat of Orange County (21 miles) than it is to the county seat of Los Angeles (23 miles). The defendant has produced no statistics relating to the ethnic composition of the community or area that is Long Beach, or from the supervisorial district in which the city is located (see Code Civ. Proc., § 206a). Figures for the entire County of Los Angeles are not only irrelevant but in this instance significantly deceptive.

On the more fundamental issue, I perceive no persuasive reason to prevent exclusive reliance on voters’ registration lists. They are specifically authorized by Code of Civil Procedure section 204.7. These lists include persons who are citizens, of legal age, men and women; they represent all parts of the community, the area and the county; they are drawn from all economic strata, every occupation, all races, religions and political ideologies.

Citizens may become registered voters at no cost and regardless of their ethnicity or financial well-being. This can be said of no other available list. Telephone books? Installation and use of a telephone costs considerable money these days, and, in addition, generally only the so-called “head of the household” is identified. Automobile registration lists? Ownership of an automobile indicates a certain financial status, and here also, except in an affluent family, often only one owner per household is listed. Bank records, credit card lists, department store accounts, welfare rolls? All of these are *74 indicative of a certain economic status. Property tax rolls? Ownership of real property is limited to persons with resources. Income tax records? If the state were to permit their use, eliminated would be those whose income or exemptions required them to pay no tax.

There is even a $6 charge for one to obtain an identification card issued by the Department of Motor Vehicles pursuant to Vehicle Code section 13000 et seq., and $10 for a driver’s license pursuant to Vehicle Code section 12800 et seq. The lists of such licensees and ID card holders shall be used by jury commissioners “to the extent that systems for producing jury lists can be practically modified, without significant cost” (Code Civ. Proc., § 204.7). There are two answers to the rejection of these lists in the instant case: first, there is no showing that in a large metropolitan area this can be done “practically” without duplication and without significant cost; second, the lists do not represent a cross-section of the community, but only those persons with the initiative, motive and financial ability to apply for the licenses or identification cards, an effort considerably more complicated and costly than registering to vote. No statistics have been offered to indicate minorities are better represented on such lists than on voter registration lists, and there is good reason to believe they are not.

In short, any list one can suggest implies an elite status or a certain economic class and in most instances eliminates those of marginal or limited income. Only the voters’ registration permits all citizens over 18 to be listed at no cost whatever and with a bare minimum of effort. Indeed prior to each election the two major political parties, and most minor parties, conduct vigorous drives to encourage citizens—often minorities in particular—to register, and county registrars enlist hundreds of solicitors to be available on street corners and in shopping centers for that purpose.

Obviously citizens identified as being among the minorities cannot be coerced into exercising their civic duty to register and vote, but constant efforts are undertaken to persuade them to do so. Why minorities are said to be less interested than others in participating in the most important of the privileges of democracy is, if true, a mystery that requires more sociological and psychological study than can be undertaken with the superficial data offered in this case. In any event I suggest that any citizen—whether in the majority or minority population—who steadfastly ignores or avoids his simple civic duty to register and vote would be likely to ignore or avoid his more onerous civic duty to serve on a jury. And if he were by some means identified and reluctantly compelled to perform jury service he would in all likelihood not be a conscientious juror, a circumstance that might adversely affect a criminal defendant’s right to be tried by a serious and objective trier of fact.

*75 The majority opinion recites the evidence which overwhelmingly establishes this defendant’s guilt. I would affirm the judgment.

Richardson, J., * concurred.

Retired Associate Justice of the Supreme Court sitting under assignment by the Chairperson of the Judicial Council.