People v. Fields

BIRD, C. J., Dissenting.

When an individual is accused of a noncapital crime in California, the jurors who decide the question of guilt or innocence are drawn from virtually the entire population of fair and impartial, English-speaking adults in the community. (See Code Civ. Proc., §§ 198-202.5; Pen. Code, §§ 1071-1074.) However, when an individual’s life hangs in the balance, the state alters that jury pool. Excluded for all purposes is any adult who would not vote for a death sentence even though that person could fairly decide the question of guilt or innocence.

In Hovey v. Superior Court (1980) 28 Cal.3d 1 [ 168 Cal.Rptr. 128 , 616 P.2d 1301 ], this court attempted to determine whether significant and relevant differences exist between the jury pool used for the trial of the “usual” criminal case and the more limited “death-qualified” pool used for the determination of guilt or innocence in a death penalty case. The evidence presented in Hovey focused on the effect of the state’s exclusion of those fair and impartial jurors who would be unwilling to consider imposing a death sentence. That evidence established, and this court acknowledged, that this group—called the “guilt phase indudables”—differed on the average from the remaining fair and impartial jurors in such important matters as (1) its votes on guilt or innocence, (2) its attitudes toward the law and the criminal justice system, (3) its racial and sexual composition, (4) its *376 evaluation of evidence, and (5) its assessment of the “reasonable doubt” standard. In each instance, the “guilt phase includable” group was less prosecution-prone—or more defense-oriented—than the remaining jurors.

Nevertheless, this court rejected the contention, based on Witherspoon v. Illinois (1968) 391 U.S. 510, 520 , footnote 18 [ 20 L.Ed.2d 776, 784 , 88 S.Ct. 1770 ], that a death-qualified jury pool is “less than neutral with respect to guilt” when compared with the jury pool employed in other criminal cases in California. (See Hovey v. Superior Court, supra, 28 Cal.3d at pp. 63-69.) The fundamental defect in petitioner’s showing was his failure to recognize that a death-qualified jury pool differs from the usual criminal jury pool not only with respect to the exclusion of individuals unalterably opposed to voting for death but those who would always vote in favor of death. The studies presented by petitioner erroneously assumed that the latter group—the “automatic death penalty” group—was eligible to serve on capital juries. The data were not capable of being adjusted to account for that assumption, since neither the size, the behavior, nor the characteristics of the group were established.

Petitioner’s showing made it impossible to ascertain whether the exclusion of the “automatic death penalty” group would offset the effects of the exclusion of the “guilt phase includable” group and hence leave the jury pool in death penalty cases identical to the jury pool in nondeath cases. In view of this problem and the fact that the burden lay with petitioner to make a prima facie showing of unconstitutionality, petitioner’s Witherspoon contention was “rejected as not established by the record presently before this court.” (Hovey v. Superior Court, supra, 28 Cal.3d at p. 61 .)

The petitioner in Hovey declined to argue, and this court specifically reserved for a future case, whether the exclusion of the “guilt phase includable” group violated the fair cross-section requirement of our state and/or federal Constitutions. (Cal. Const., art. I, § 16; U.S. Const., 6th Amend. See Hovey v. Superior Court, supra, 28 Cal.3d at pp. 17-18, fn. 38.) A primary difference between a fair cross-section analysis and the “neutral jury” analysis of Witherspoon and Hovey is that under cross-section principles, the state cannot justify its exclusion of a “ ‘distinctive’ group in the community” 1 by claiming that the removal of another group “offsets” the effects of the challenged exclusionary policy. (Accord, maj. opn., ante, at p. 349, fn. 7; People v. Wheeler (1978) 22 Cal.3d 258, 283, fn. 30 [ 148 Cal.Rptr. 890 , 583 P.2d 748 ].) For example, a jury pool from which blacks were excluded would not fairly represent the community if prejudiced *377 whites were also removed, nor would the exclusion of misogynists restore cross-sectional balance to a jury pool devoid of women.

A majority of this court today admit that under a cross-section analysis, “the exclusion of one group could not be justified by excluding another sect with opposite views.” (Maj. opn., ante, at p. 349, fn. 7.) Nevertheless, they manage to reject the argument that exclusion of the “guilt phase includable” group violates fair cross-section principles. They do this by concluding that the “guilt phase includable” group is not “distinctive,” i.e., that its members are “united only by their determination to vote automatically against the death penalty [and are as] divided in all else” as persons permitted to serve on capital juries. (Id., at p. 349.)

These conclusions are entirely unsupported in the majority opinion and, in fact, are unsupportable. They are flatly contradicted by the Hovey decision and by the consistent results of each of the two dozen studies discussed therein. Unfortunately, all of this empirical data and precedent are simply ignored by today’s majority.

By any of the standards heretofore used by this court for determining a “cognizable class” or a “distinctive group in the community” under a fair cross-section analysis, the “guilt phase indudables” would qualify as cognizable or distinctive. In order to hold that they do not, the majority must ignore not only precedent and proof, but leave behind common sense as well.

As the reader may have surmised, I respectfully dissent. 2

I.

The right to a jury drawn from a representative cross-section of the community is guaranteed by both the state and federal Constitutions. (People v. Wheeler, supra, 22 Cal.3d at p. 272 ; Taylor v. Louisiana (1975) 419 U.S. 522, 528, 530 [ 42 L.Ed.2d 690, 698 , 95 S.Ct. 692 ].) However, not every exclusionary jury selection practice of a state is barred by cross-section principles. To establish a prima facie cross-sectional violation, an individual challenging a particular state practice must show, inter alia, that it adversely affects what the United States Supreme Court has variously called an “identifiable class of citizens,” 3 a “‘distinctive’ group in the community,” 4 a *378 “large, distinctive group[],” 5 and a “minorit[y] or other identifiable group[].” 6

This court, in turn, has looked for a “common thread running through the excluded group—a basic similarity of attitudes, ideas or experience among its members . . . .” (Adams v. Superior Court (1974) 12 Cal.3d 55, 60 [ 115 Cal.Rptr. 247 , 524 P.2d 375 ]; Rubio v. Superior Court (1979) 24 Cal.3d 93, 97-98 [ 154 Cal.Rptr. 734 , 593 P.2d 595 ] (lead opn. of Mosk, J.).) Frequently the term “cognizable” class or group has been employed to describe this aspect of the representative cross-section requirement. 7 The court has observed that “economic, sexual, social, religious, racial, political, or geographical groups” are cognizable. (Adams v. Superior Court, supra, 12 Cal.3d at p. 60 ; see also Thiel v. Southern Pacific Co. (1946) 328 U.S. 217, 220 [ 90 L.Ed. 1181, 1184-1185 , 66 S.Ct. 984 , 166 A.L.R. 1412 ].) It is significant for the consideration of this case that of these several groups, only two are defined by reference to an immutable characteristic (i.e., sex and race). The remainder are defined by some shared attribute which can change from year to year, or even day to day.

Even more to the point, several of these cognizable or distinctive groups— e.g., the religious and political groups—are defined solely by reference to their members’ attitudes and beliefs. Indeed, in Adams v. Superior Court, supra, 12 Cal.3d at page 60 , this court refused to find a group to be cognizable precisely because its members lacked a “basic similarity of attitudes, ideas or experience . . . .” This is so because “the goal of the cross-section rule is to enhance the likelihood that the jury will be representative of significant community attitudes, not of groups per se.” (Rubio v. Superior Court, supra, 24 Cal.3d at p. 98 , original italics (lead opn. of Mosk, J.).) Thus, in the present case, the fact that the “guilt phase includable” group is defined by reference to its members’ attitudes and beliefs would seem to support a finding that it is a “cognizable class” or a “distinctive group in the community.” 8

*379 Nevertheless, this court today refuses to hold that the “guilt phase indudables” comprise a “cognizable” or “distinctive” group. It is the basic contention of the majority that the members of this group have only a single attitude or belief in common—i.e., their “unwillingness to vote for death”— and that this shared attribute is insufficient to render them a “cognizable” or “distinctive” group. (Maj. opn., ante, at p. 349.) This contention cannot withstand close scrutiny.

At the outset, the premise underlying the majority’s reasoning is the belief that “the courts have not recognized an otherwise heterogeneous group as cognizable merely because its members agree on one particular matter.” (Maj. opn., ante, at p. 349.) The majority purport to rely on People v. Wheeler, supra, 22 Cal.3d 258, but Wheeler actually refutes their premise. There, in suggesting how a litigant might establish that peremptory challenges were being used improperly to exclude jurors for group association, this court indicated that the litigant might demonstrate that the excluded jurors “share only this one characteristic—their membership in the group— and that in all other aspects they are as heterogeneous as the community as a whole.” ( 22 Cal.3d at p. 280 .)

Moreover, the majority’s belief that an “otherwise heterogenous group” cannot be cognizable was expressly rejected as “fallacious” in Justice Mosk’s lead opinion in Rubio v. Superior Court, supra, 24 Cal.3d at page 99 . Responding to the contention that ex-felons and resident aliens were not *380 cognizable groups because they were “heterogenous in all other respects,” Justice Mosk wrote, “[t]he argument is fallacious, and proves too much: it could equally well be applied to the women excluded in Taylor v. Louisiana, supra, the blacks in Peters v. Kiff (1972) 407 U.S. 493 [ 33 L.Ed.2d 83 , 92 S.Ct. 2163 ], and our decision in Wheeler, and the daily wage earners excluded in Thiel v. Southern Pacific Co. (1946) 328 U.S. 217 .” ( 24 Cal.3d at p. 99 .)

Not only is the majority’s underlying premise questionable, the logic of the opinion is unsupportable on its face.

The majority hold that the distinctiveness of the “guilt phase indudables” is limited to the group’s unwillingness to vote for a death sentence. In “all other matters,” the group is said to be the same as the remaining jury pool. As an initial hypothesis, this assertion is, I suppose, arguable in the abstract. However, a few moments of thought should suggest it is not very plausible.

As amicus curiae observe, we are dealing here with values or beliefs so deeply held that the individuals holding them will forthrightly refuse to act against them, even in the face of the law’s insistence that they serve as jurors if they can consider voting for a death sentence in at least some cases. Values this strongly felt are likely to be an integral part of an individual’s basic system of beliefs and overall outlook. It is not very likely that such values will exist in random isolation, like a preference for strawberry ice cream which has no interrelationship with individuals’ attitudes, values, and beliefs about the world around them. Therefore, as an abstract proposition, the majority’s assumption about the limited differences between the “guilt phase indudables” and the other persons remaining in the jury pool seems to contradict common sense.

However, it is quite unnecessary to debate about what “seems” to be more likely. For, just three years ago, this court found, based on the uniform results of over 20 empirical studies, that the “guilt phase indudables” tend to differ from the rest of the jury pool in many matters in addition to their unwillingness to vote for a death sentence. (Hovey v. Superior Court, supra, 28 Cal.3d at pp. 26-69.)

Thus, the court found that the “guilt phase indudables” tend to differ in (1) the votes they cast on guilt or innocence and on lesser included offenses (28 Cal.3d at pp. 26-42); (2) their attitudes toward the criminal justice system, toward basic principles of criminal law, and toward the litigants (id., at pp. 43-54); and (3) their evaluation of evidence and their assessment of the reasonable doubt standard (id., at pp. 57-60). In each respect, the “guilt phase indudables” were found to be less prosecution-oriented on the average than the remaining jurors. In addition, the “guilt phase includable” *381 group was found to contain a higher percentage of blacks and women than the rest of the jury pool. (Id., at pp. 54-57.)

Without reiterating this evidence in detail, it is sufficient to observe that the evidentiary support for these findings was both consistent and overwhelming. The court even noted the “boring regularity” and the “almost monotony of the results,” which were consistent regardless of what categories of people were studied or how ¡the study was designed. (28 Cal.3d at pp. 40, 57, 63.) 9 As one commentator has subsequently observed, “[tjhese studies clearly establish that an individual’s attitude toward capital punishment is not an isolated phenomenon, but rather is closely related to other deeply held attitudes and values.” (Winick, Prosecutorial Peremptory Challenge Practices in Capital Cases: An Empirical Study and a Constitutional Analysis (1982) 81 Mich. L.Rev. 1, 71 [hereafter, Winick].) 10

If this evidence is considered, it is virtually impossible to conclude that the “guilt phase includable” group is not “distinctive” or that it does not differ from the remaining jurors on many significant matters in addition to an unwillingness to vote for a death sentence. Indeed, today’s majority do not attempt to harmonize their assumptions with this evidence. They simply ignore it.

The result is a court decision premised on an assumption that has already been demonstrated to be incorrect, and one which is at odds not only with common sense but with reality.

II.

The majority go on to suggest that even if the “guilt phase indudables” were distinctive or cognizable, the state’s interests in excluding the group *382 would outweigh any competing interests in having them included in the guilt phase jury pool. 11 I disagree. The state’s interests turn out to be insubstantial or fictitious, whereas the competing interests in an accurate verdict, when an individual is on trial for his or her life, are paramount.

The first concern that the majority speak to is “the expense and inconvenience involved” in any departure from the practice of using the same 12 jurors to decide both guilt and penalty. (Maj. opn., ante, at pp. 350-351.) However, the majority overlook the fact that “restrictions upon authority for securing personal liberty, as well as fairness in trial to deprive one of it, are always inconvenient—to the authority so restricted.” (In re Oliver (1948) 333 U.S. 257, 280-281 [ 92 L.Ed. 682, 698 , 68 S.Ct. 499 ] (conc, opn. of Rutledge, J.).)

In fact, the additional expense would appear to be relatively modest, for these trials are but miniscule in number and are a very small percentage of the total trials statewide. Further, the potential number of death penalty trials always exceeds the actual penalty phase trials since, as the majority opinion notes, “many cases terminate before reaching the penalty phase.” (Ante, at pp. 350-351.)

The attempt to justify the exclusionary policy on financial grounds fails for another reason. As one commentator has observed, “precisely these interests were held insufficient for a state’s attempt to reduce the size of misdemeanor juries to five members.” (Winick, op. cit. supra, 81 Mich. L.Rev. at p. 58, citing Ballew v. Georgia, supra, 435 U.S. at p. 244 [55 L.Ed.2d at p. 249].) “The five-member jury would have applied in all misdemeanor trials, an enormous number of cases, and therefore would have resulted in considerable cost savings to the state even if the savings in each individual case were minimal. As capital cases make up a relatively small *383 number of criminal trials, the savings here would be considerably less. Moreover, in view of the [United States Supreme] Court’s inclination to demand more in the way of due process in capital cases than in any other kind of case, it would seem that if the greater cost savings accomplished in the five-member misdemeanor jury context were deemed insufficient justification for the resulting infringement on defendant’s jury trial rights, then a fortiori the lesser savings would be deemed insufficient in the capital punishment context.” (Winick, op. cit. supra, 81 Mich. L.Rev. at pp. 58-59. See also Grigsby v. Mabry, supra, 569 F.Supp. at pp. 1319-1321.)

The final justification offered to support the exclusion of the “guilt phase includable” group is a claimed interest in excluding jurors whose “belieffs] as to the inappropriateness of the death penalty will improperly skew the determination of guilt or innocence . . . .” (Maj. opn., ante, at pp. 351-352.) Although the “guilt phase indudables” swear they will be fair and impartial in deciding guilt or innocence, the majority distrust their declarations, apparently believing that they will in fact have difficulty rendering an impartial verdict at the guilt and special circumstances phase of a death penalty trial.

Initially, this asserted state interest cannot be used to justify a state exclusionary policy unless it “can realistically be ascribed to the Legislature.” (See Cooper v. Bray (1978) 21 Cal.3d 841, 854 [ 148 Cal.Rptr. 148 , 582 P.2d 604 ].) 12 The Legislature has never expressed any concern that individuals who are unalterably opposed to the imposition of a death sentence are likely to be biased on the question of guilt or innocence. Indeed, language contained in the relevant statutory provision clearly suggests the contrary. (See Pen. Code, § 1074, subd. 8.)

The Legislature has required the exclusion of any juror “entertaining . . . such conscientious opinions as would preclude his finding the defendant guilty ...” in a death penalty case. (Pen. Code, § 1074, subd. 8.) The very wording of the statute reveals a legislative judgment that not all “conscientious opinions” would “preclude [a juror from] finding the defendant guilty.” If the Legislature had believed that jurors with conscientious opinions could not be trusted to find a defendant guilty when warranted by the evidence, it would not have limited this exclusionary policy to only those individuals “entertaining . . . such conscientious opinions as would preclude [their] finding the defendant guilty. ” Obviously, the Legislature does *384 not share the unsupported conjecture of the majority that the “guilt phase indudables” will deliberately lie or are deluding themselves when they swear they can be fair and impartial on the issue of guilt or innocence.

Nor would such a concern be consistent with other statutory provisions or legal principles. The general rule is that a juror’s declaration that he or she can be fair and impartial “must be presumed to be true.” (People v. Preston (1973) 9 Cal.3d 308, 313 [ 107 Cal.Rptr. 300 , 508 P.2d 300 ].) Indeed, the Legislature has extended this principle so far that even when a juror has actually formed or expressed an opinion concerning guilt prior to trial, the juror cannot be excluded for cause if “it appear[s] to the court, upon [the juror’s] declaration, under oath or otherwise, that he can and will, notwithstanding such an opinion, act impartially and fairly upon the matters to be submitted to him.” (Pen. Code, § 1076.) Clearly, subdivision 8 of section 1074 does not embody a legislative judgment that “guilt phase indudables” cannot be trusted when they swear to be fair on the question of guilt.

This court, too, has recognized on several occasions that the “guilt phase indudables” can act impartially as to a determination of guilt. Although the court has previously upheld the exclusion of the group from capital trials, it has specifically noted “their ability to fairly and impartially determine defendant’s guilt.” (People v. Washington (1969) 71 Cal.2d 1061, 1089-1090 [ 80 Cal.Rptr. 567 , 458 P.2d 479 ].) Recently, the court reiterated its view that “many jurors who are unable to be fair and impartial at the penalty phase would be capable of giving a fair hearing as to the issues of guilt or innocence. Therefore, it follows that when a ‘death-qualified’ jury pool is used to select jurors for the guilt phase of a [capital] trial, prospective jurors are excluded who could be fair and impartial at that phase.” (Hovey v. Superior Court, supra, 28 Cal.3d at p. 22, fn. 54 .)

There are sound reasons why neither the Legislature nor this court has taken the position that “guilt phase indudables” find it difficult to be impartial when deciding guilt or innocence. Simply put, “[i]t in no way follows that people who have strong feelings against the death penalty do not wish to see persons guilty of capital crimes convicted and punished.” (Grigsby v. Mabry, supra, 569 F.Supp. at p. 1313.) The members of this group forthrightly declare their inability to serve at the penalty phase, and these statements are accepted at face value. Why then would their sworn declarations as to the guilt phase be called into question? Do the majority truly believe that these jurors, having openly excluded themselves from the penalty determination, will nevertheless strive to sit on the guilt phase jury just to thwart a capital prosecution or that they have abruptly lost the capacity to assess their own abilities? I submit such a view is unwarranted.

*385 Jurors who strongly oppose capital punishment cannot even be excluded from the penalty trial unless they “ma[k]e unmistakably clear” that they would automatically vote against a death sentence or would be biased as to the issue of guilt. (Witherspoon v. Illinois, supra, 391 U.S. at pp. 522-523, fn. 21 [ 20 L.Ed.2d at p. 785 ].) Death penalty opponents are trusted to make that judgment despite their views on capital punishment. Do jurors suddenly lose the ability to speak truthfully just because they declare—truthfully— that they cannot vote to impose death? 13

Even when prospective jurors “frankly concede that the prospects of the death penalty may affect what their honest judgment of the facts will be or what they may deem to be a reasonable doubt,” they may not constitutionally be excluded from the jury on that basis. (Adams v. Texas (1980) 448 U.S. 38, 50 [ 65 L.Ed.2d 581, 593 , 100 S.Ct. 2521 ].) “Such assessments and judgments by jurors are inherent in the jury system, and to exclude all jurors who would be in the slightest way affected by the prospect of the death penalty or by their views about such a penalty would be to deprive the defendant of the impartial jury to which he or she is entitled under the law.” (Ibid. [ 65 L.Ed.2d at p. 593 ].) If a venireperson making the explicit declarations discussed in Adams cannot constitutionally be excluded for alleged bias, then it is difficult to understand the majority’s assertion in the present case that persons who do not make such admissions may be constitutionally excluded for the identical alleged bias.

In the end, this entire issue concerning alleged juror nullification by death penalty opponents is a red herring. When the United States Supreme Court decided in Witherspoon that many individual^ who had doubts about the death penalty should be allowed to serve on capital case juries, prosecutors claimed that the inclusion of this group would mean the de facto end of capital punishment. (See Meltsner, Cruel and Unusual (1973) p. 124.) How wrong they were. The reasoning of today’s majority is nothing more than an unsubstantiated assertion of those same unjustified claims. 14

The majority find the accused’s interest to be “not a very substantial [one].” (Maj. opn., ante, at p. 353.) It is said to be merely an interest in having “an elusive but ‘distinct quality’ or ‘flavor’ ” brought to the jury *386 room by the “guilt phase indudables.” (Ibid.) This view ignores the studies which indicate that the “guilt phase indudables” would tend to bring to many juries distinctive attitudes and viewpoints which have a bearing on how the evidence should be evaluated, credibility judged, and reasonable doubt assessed. (See Winick, op. cit. supra, 81 Mich. L.Rev. at p. 66.)

Moreover, even if the “guilt phase includable” group brought nothing more than a certain “quality” or “flavor” to the jury room, that would be a sufficient constitutional interest. Indeed, the United States Supreme Court, in striking down statutes which excluded women from criminal juries, found that “ ‘a flavor, a distinct quality is lost if either sex is excluded.’ ” (Taylor v. Louisiana, supra, 419 U.S. at p. 532 [ 42 L.Ed.2d at p. 699 ], quoting Ballard v. United States (1946) 329 U.S. 187, 194 [ 91 L.Ed. 181, 186 , 67 S.Ct. 261 ].) If such an interest was sufficient to sustain a cross-section challenge in Taylor , why not here? 15

It should be remembered that the defendant is on trial for his life in these cases. That alone should cause this court to be careful in its assessment of the competing interests. If only one of the interests identified by the accused was held to be sufficient in Taylor v. Louisiana, supra, 419 U.S. 522 , and there are a number of other important interests asserted, the balance would *387 appear to clearly support including rather than excluding the “guilt phase includable” group.

Since I sincerely believe that the majority have misapplied the law, I must respectfully dissent.

Duren v. Missouri (19579) 439 U.S. 357, 364 [ 58 L.Ed.2d 579, 586-587 , 99 S.Ct. 664 ],

Since I would reverse appellant’s conviction for the fair cross-section violation, I do not address the other issues discussed in the majority opinion.

Taylor v. Louisiana, supra, 419 U.S. at page 525 [ 42 L.Ed.2d at page 695 ],

Duren v. Missouri, supra, 439 U.S. at page 364 [ 58 L.Ed.2d at page 587 ]; accord, Taylor v. Louisiana, supra, 419 U.S. at page 538 [ 42 L.Ed.2d at page 703 ].

Id., at page 530 [ 42 L.Ed.2d at page 698 ]; accord, People v. Wheeler, supra, 22 Cal.3d at page 269 .

Ballew v. Georgia (1978) 435 U.S. 223, 236-237 [ 55 L.Ed.2d 234, 244 , 98 S.Ct. 1029 ].

See, e.g., People v. Wheeler, supra, 22 Cal.3d at page 280 ; Adams, supra, 12 Cal.3d at page 60 .

In Adams, this court suggested that persons opposed to the death penalty constitute a cognizable class. ( 12 Cal.3d at p. 60 .) It is therefore doubly perplexing to find in today’s majority opinion the assertion that the United States Supreme Court’s decision in Wither-spoon v. Illinois, supra, 392 U.S. 510 , “can be viewed as an implied holding that exclusion of persons opposed to capital punishment does not deny a defendant a representative jury at the guilt trial.” (Maj. opn., ante, at pp. 344-345.)

First, Witherspoon was not a fair-cross-section case. The federal fair-cross-section re *379 quirement flows out of the Sixth Amendment. (Taylor v. Louisiana, supra, 419 U.S. 522 .) At the time of Witherspoon’s trial, the Sixth Amendment was not applicable to the states. (DeStefano v. Woods (1968) 391 U.S. 631 [ 20 L.Ed.2d 1308 , 88 S.Ct. 2093 ]; Duncan v. Louisiana (1968) 391 U.S. 145 [ 20 L.Ed.2d 491 , 88 S.Ct. 1444 ].) This court has previously noted that Witherspoon was decided on due process “neutrality” principles and involved an analysis different from that of the cross-section requirement. (Hovey v. Superior Court, supra, 28 Cal.3d at pp. 17-18, fn. 38.) A “neutrality” analysis need not involve cognizable classes. (Id., at p. 20, fn. 45.)

Moreover, even if Witherspoon were viewed as a cross-section case, the majority’s interpretation of the case would be puzzling, since in Adams v. Superior Court, supra, 12 Cal.3d at page 60 , this court suggested that Witherspoon supports the opposite interpretation. Adams cited Witherspoon for the proposition that “the exclusion of other groups [in addition to economic, sexual, social, etc. groups] might also be improper.” Today’s majority leaps to a contrary conclusion without even acknowledging our discussion in Adams.

A recent federal court decision notes that the “Witherspoon argument” utilized by today’s majority “keeps cropping up despite the obviousness of the answer thereto.” (Grigsby v. Mabry (E.D. Ark. 1983) 569 F.Supp. 1273, 1286 .) The Grigsby court points out that the argument not only erroneously views Witherspoon as a Sixth Amendment case, but also conflicts with the fundamental premise underlying Witherspoon that “[inclusion, not exclusion [of community groups], must be the basic rule.” ( 569 F.Supp. at p. 1284 . See also Hovey v. Superior Court, supra, 28 Cal.3d at pp. 19-20, 21, and 66, fn. 113.) Under Witherspoon , penalty phase juries must be “as representative as can be” and include “all of those, but only those, who can honestly swear that they are able and willing to try the penalty issue in accordance with law of the state and the evidence presented. ” (569 F.Supp. at pp. 1286-1287.)

The issue in Hovey was whether the exclusion of the “guilt phase includable” group resulted in a nonneutral jury on the issue of guilt or innocence. Hovey rejected that claim, but not on the basis that the “guilt phase indudables” were indistinguishable from the remaining jurors on matters other than willingness to impose a death sentence.

Rather, as I have explained, the Hovey court found that the “guilt phase includable” group was distinctive but that petitioner had failed to account for the possibility that this distinctiveness might be offset by the state’s exclusion of another group with possibly opposite attitudes and tendencies—the “automatic death penalty” group. Obviously, this possibility in no way casts doubt upon the conclusion that the “guilt phase indudables” are themselves a distinctive class.

See Grigsby v. Mabry, supra, 569 F.Supp. 1273 . There, the court reviewed the Hovey studies and found that death penalty attitudes are “intimately tied to other attitudes and views which are directly implicated when jurors determine the guilt or innocence of a defendant in a criminal trial.” (Id., at p. 1283.) In striking down as a cross-section violation the same jury exclusionary practices that are involved in the present case, the Grigsby court found that “those excluded by death qualification are a distinct group and that no other of the death-qualified groups, not even those who hold milder scruples against the death penalty, can adequately represent their point of view or life perspective.” (Id., at pp. 1293, 1304.)

These various interests are discussed by the majority in the context of an equal protection challenge to the exclusion of the “guilt phase excludables” in capital cases. The majority apparently apply the “rational basis” standard to reject this claim, but they recognize that a stricter standard would apply if a prima facie cross-section violation were established. As the United States Supreme Court has held, “ ‘[t]he right to a proper jury cannot be overcome on merely rational grounds,’[]. Rather, it requires that a significant state interest be manifestly and primarily advanced by those aspects of the jury-selection process . . . that result in the disproportionate exclusion of a distinctive group.” (Duren v. Missouri, supra, 439 U.S. at pp. 367-368 [ 58 L.Ed.2d at p. 589 ], fn. omitted, quoting Taylor v. Louisiana, supra, 419 U.S. at p. 534 [ 42 L.Ed.2d at p. 700 ].)

Since the majority reject appellant’s cross-section claim on the ground that the “guilt phase includable” group is not distinctive, they do not reach the question as to whether the state can justify the exclusion of this group under cross-section principles. However, I assume that they would find basically the same interests to be involved in the cross-section context as in the equal protection setting. Whether the stricter standard would cause them to arrive at a different result than they reach under their equal protection analysis, I would hesitate to predict.

Cooper v. Bray involved an equal protection challenge to a statute, and the court applied the “rational basis” test. Cooper was not a representative cross-section case.

There is no reason to refuse to apply Cooper’s “actual purpose of the Legislature” test in the present context since a cross-sectional analysis requires the application of a stricter standard of review than merely “rational basis.” (See ante, at p. 354, fn. 11.)

If there is a valid concern that individual members of the “guilt phase includable” group may not be impartial, that can be explored through voir dire.

As Justice Jackson, a former prosecutor, has written, “prosecutors seldom fail to stress, if not exaggerate, the importance of the case before them to the whole social, if not the cosmic, order.” (Frazier v. United States (1948) 335 U.S. 497, 515 [ 93 L.Ed. 187 , 200, 69 S.Ct. 201 ] (dis. opn.).)

Justice Mosk of this court, himself a former California Attorney General, concurs with Justice Jackson. (See People v. Uhlemann (1973) 9 Cal.3d 662, 670 [ 108 Cal.Rptr. 657 , 511 P.2d 609 ] (dis. opn.).)

The majority opinion suggests that use of a single, death-qualified jury will actually benefit the accused, because it will guarantee that the penalty phase jury is aware of “lingering doubts” that may have survived the guilt phase deliberations. (Maj. opn., ante, at pp. 351-352.) This idea is similar to one expressed in a Fifth Circuit decision, which opined that empaneling a second jury for a penalty trial would deprive the accused of the benefits of whatever “whimsical doubt” as to guilt the jury might carry over into its penalty deliberations. (Smith v. Balkcom (5th Cir. 1981) 660 F.2d 573, 579-582 .) Whether this doubt is “lingering" or “whimsical,” it is an unsatisfactory basis for upholding the single-jury scheme.

First, there is not the slightest indication that such a defendant-protective purpose was ever contemplated by our Legislature in enacting the statute which authorizes the removal of the “guilt phase indudables.” (Pen. Code, § 1074, subd. 8.) Indeed, the words of the statute contradict such a conclusion. The statute orders the removal of any prospective juror whose death penalty views “preclude his finding the defendant guilty,” and it is difficult to view such exclusions as intended to benefit the defendant.

Moreover, as Professor Winick has written, “whether a capital defendant would be more disadvantaged by the destruction of the ‘whimsical doubt’ that would accompany the bifurcated trial remedy than he would by a unitary trial system in which ‘automatic life imprisonment’ jurors would be excluded from the determination of guilt is itself an unexplored empirical question. In any event, the [“lingering” or “whimsical” doubt] approach seems unduly paternalistic. The state’s substantial interest in a penalty jury capable of imposing capital punishment in accordance with the state’s statutory scheme can be satisfied either by removal of ‘automatic life imprisonment’ jurors from participation in the determination of both guilt and punishment, or by the bifurcated trial mentioned in Witherspoon . As the state’s interest in avoiding added costs should not itself justify the existing system, it would seem appropriate to allow a defendant himself to resolve the question as to which alternative would be more consistent with his own interests.” (Winick, op. cit. supra, 81 Mich.L.Rev. at pp. 60-61, fns. omitted.)