permitting the prosecution to charge both aggravating factors, but requiring court to instruct jury to consider the factors as one for purposes of determining appropriateness of death penalty
How later courts described this case
- permitting the prosecution to charge both aggravating factors, but requiring court to instruct jury to consider the factors as one for purposes of determining appropriateness of death penalty
- 56% comparative disparity for blacks, 87% comparative disparity for Hispanics
- high absolute disparity sufficient to show that random selection from racially neutral voter lists systematically excludes blacks
- Blacks and Hispanics are cognizable groups for purposes of fair cross-section analysis
Written by the judges who cited it.
Later courts went against this
Overruled on other grounds by People v. Melton, 44 Cal. 3d 713 (1988)
[5] (People v. Harris (1984) 36 Cal.3d 36, 59, 201 Cal.Rptr. 782, 679 P.2d 433, overruled on other grounds in People v. Melton (1988) 44 Cal.3d 713, 765-766, fn. 26, 244 Cal.Rptr. 867, 750 P.2d 741; People v. Wheeler, supra, 22 Cal.3d at p. 283, 148 Cal.Rptr. 890, 583 P.2d 748; People v. Granillo (1987) 197 Cal. App.3d 110, 123, 242 Cal.Rptr. 639; People v. Moss (1986) 188 Cal.App.3d 268, 277, 233 Cal.Rptr. 153.)
Declined to follow on other grounds by People v. Sanders, 51 Cal. 3d 471 (1990)
36 Cal.3d 36, 201 Cal.Rptr. 782, 679 P.2d 433, 442 (1984) (plurality opinion) (quoting David Kairys et al., Jury Representativeness: A Mandate for Multiple Source Lists, 65 Cal. L.Rev. 776, 785 n.63 (1977) (internal quotation marks omitted)), not followed on other grounds, People v. Sanders, 51 Cal.3d 471, 273 Cal.Rptr. 537, 797 P.2d 561, 570-72 (1990);
The opinion
KAUS, J.
I dissent from the plurality’s view that this defendant has made out a prima facie case of having been deprived of a fair cross-section of the community, I agree, however, that there was error at the penalty phase. Therefore, if the disposition were up to me, I would have to struggle with the issue of prejudice.
For what they are worth, I shall briefly state my views on the cross-section issue.
The issue is, undoubtedly, one whose time has come. This case, however, is a poor trigger, mainly for the reason set forth in Justice Mosk’s dissent: there is no showing that population figures for the whole of Los Angeles County are relevant with respect to a 20-mile radius from Long Beach. The fact that the People may not have stressed that point in their argument is neither here nor there: if the ruling of the trial court that no prima facie case has been established is correct, it is immaterial on appeal whether the proper basis was urged by the prevailing party. (People v. Braeseke (1979) 25 Cal.3d 691, 700 [ 159 Cal.Rptr. 684 , 602 P.2d 384 ]; E. L. White, Inc. v. City of Huntington Beach (1978) 21 Cal.3d 497, 511 [ 146 Cal.Rptr. 614 , 579 P.2d 505 ].)
There is one additional quarrel I have with the plurality opinion: it seems to me that it dismisses much too cavalierly the argument that we should be looking at the original “contact pool,” rather than the venire. It says that “[t]he panel which tried defendant was drawn from those jurors who appeared. The representative character of those jurors not of the ‘original contact pool,’ is the proper basis for comparison with the county population figures.” (Maj. opn., ante, p. 53.)
Perhaps all that the plurality is saying is that the composition of the contact pool is not a necessary part of defendant’s prima facie case. If so, I agree: given a prima facie case, let the People go forward and prove that the contact pool which resulted from the voter registration lists was properly balanced. What troubles me, however, is that the plurality seems to be saying more: that the composition of the contact pool is irrelevant. What if the contact pool had contained precisely the same percentages of Blacks and *76 Hispanics as the population which Dr. Butler used as the basis of his testimony? Surely this would go a long way to vindicate voters’ registration lists as a single source for prospective jurors, although it would, of course, make one wonder how all the Blacks and Hispanics got dropped between the first contact by the jury commissioner and the eventual assembly of the venires.
In any event, as a result of the plurality opinion the People will at some time be put to the burden of justifying the single-source procedure used to select prospective jurors. This is probably all to the good. If the method is unconstitutional, it ought to be flushed out. If it is not, the proof ought to settle at least this particular attack on the jury selection process.
Respondent’s petition for a rehearing was denied June 20, 1984. Mosk, J., Kaus, J., and Lucas, J., were of the opinion that the petition should be granted.