# People v. Pervoe

> California Court of Appeal · October 30, 1984 · 161 Cal. App. 3d 342

URL: https://www.frixlaw.com/law-library/cases/9731466

## Case

- **Full name:** The PEOPLE, Plaintiff and Respondent, v. MICHAEL DELGADO PERVOE, Defendant and Appellant
- **Court:** California Court of Appeal
- **Decided:** October 30, 1984
- **Citations:** 161 Cal. App. 3d 342; 207 Cal. Rptr. 622; 1984 Cal. App. LEXIS 2662
- **Precedential status:** Published
- **Opinion:** Dissent by Kline
- **Judges:** Smith, Kline, Rouse
- **Cited by:** 7 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

KLINE, P. J.
—I respectfully dissent.
The conclusion of the majority that defendant has failed to show a systematic exclusion of blacks from jury pools at the time of his trial (maj. opn. at p. 354) seems to be based upon two grounds: (1) “the narrowness of the statistical disparity,” and (2) the county’s implementation of new jury selection procedures subsequent to the decision in Buford. (Ibid.) I disagree with the majority’s conclusion because I believe the grounds upon which it rests do not genuinely exist. Moreover, by overstating the burden on defendant the majority improperly relieves the People of their responsibility “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." (People v. Buford (1982) 132 Cal.App.3d 288, 299 [ 182 Cal.Rptr. 904 ].) The burden on the defendant is not to prove that the fair cross-section requirement has been violated, all he need establish is a prima facie case. (Duren v. Missouri (1979) 439 U.S. 357, 364 [ 58 L.Ed.2d 579, 586-587 , 99 S.Ct. 664 ].) This he has done.
The majority reasons that the discrepancy shown between the number of blacks in the weekly jury pools (which averaged 3.76 percent) and the eligible blacks in the county population (8.1 percent) is inadequate because it is significantly smaller than the discrepancy alleged in Duren , where only 15 percent of jury venires were women despite the fact that women composed 53 percent of the eligible population. This invidious comparison renders the principle of Duren a dead letter except as to the most egregious of violations. Nothing in the opinion in Duren indicates that the principle was intended to be so limited.
Defendant has shown that during the relevant period that was examined eligible blacks comprised less than half their percentage of the county population. The significant discrepancy evidenced by this statistic, which is undisputed, seems to me a prima facie indication of unconstitutional under-representation that is certainly sufficient to shift to the prosecution the bur *362 den of explanation. As stated by the Fifth Circuit, “If a fair cross-section is consistently lacking, then, without more, it is established that the [jury] commissioners have failed in their duty.” (Rabinowitz v. United States (5th Cir. 1966) 366 F.2d 34, 58 , italics added.)
The new procedures instituted by the Contra Costa County jury commissioner subsequent to the decision in Buford , to which the majority attaches great significance, do not in my opinion represent all that can reasonably be expected to achieve the constitutional goal of truly representative juries. For one thing, as demonstrated by the statistics introduced by defendant, the new procedures have failed to produce a fair cross-section of the population. Furthermore, these procedures represent far less rigorous remedial action than is authorized by law. For example, Code of Civil Procedure section 204.3, subdivision (b), provides that “Any person who fails to return a completed juror questionnaire as instructed shall be summoned to appear before the jury commissioner to fill out the questionnaire.” (Italics added.) Section 225 of the same code provides that any person who fails to respond to the summons referred to in section 204.3 “shall be immediately resummoned” (italics added) and that the superior court may order this to be done by the sheriff. At the time of trial, section 238 of the Code of Civil Procedure stated that “Any trial juror summoned, who willfully and without reasonable excuse fails to attend, may be attached and compelled to attend; and the court may also impose afine not exceeding fifty dollars ($50), upon which execution may issue.” 1 (Italics added.) The county may also ask the court to exercise its contempt power with respect to eligible persons who do not respond to summons or, without a satisfactory excuse, otherwise refuse to serve as prospective jurors. 2
Measures such as these are admittedly severe; but their severity is warranted by the nature of the evil the Legislature sought to avoid when it authorized their use. The systematic underrepresentation of a racial group, whether intentional or not, deprives the jury system of the broad base it was designed to have in our society. It is a departure from the Constitution of our nation and that of our state. Moreover, as stated by Justice Douglas, “The injury is not limited to the defendant—there is injury to the jury system, to the law as an institution, to the community at large, and to the *363 democratic ideal reflected in the processes of our courts.” (Ballard v. United States (1946) 329 U.S. 187, 195 [ 91 L.Ed. 181, 187 , 67 S.Ct. 261 ]; see also Bobb v. Municipal Court, supra, 143 Cal.App.3d 860, 868-869 .)
Whether, when measured in this light, the Contra Costa County procedures constitute all that can reasonably be expected to achieve the constitutional goal presents a serious issue. As indicated, I am strongly inclined to the view that the procedures do not represent a serious effort and are inadequate. (Cf., for example, the procedures discussed in Macauley & Heubel, Achieving Representative Juries: A System That Works (1981) 65 Judicature 126.) In any event, the People were not required by the trial court to justify their procedures as all that can reasonably be done to end the chronic underrepresentation of blacks. This was error because defendant has established a prima facie violation of the fair cross-section requirement. Accordingly, I would reverse the judgment.
A petition for a rehearing was denied November 16, 1984. Kline, P. J., was of the opinion that the petition should be granted. Appellant’s petition for a hearing by the Supreme Court was denied January 24, 1985. Bird, C. J., and Broussard, J., were of the opinion that the petition should be granted.
By an amendment to section 238 that became effective on January 1, 1984, the amount of the fine that may be imposed on a juror who without reasonable excuse fails to attend was quintupled to $250. This amendment bespeaks a rigorous legislative intent that is inconsistent with the relatively indulgent attitude of Contra Costa County authorities.
The use of the contempt power in such instances is not forbidden by Bobb v. Municipal Court (1983) 143 Cal.App.3d 860 [ 192 Cal.Rptr. 270 ], because a principled reason for the refusal to serve will not have been provided. (See also United States v. Hillyard (E.D. Wash. 1943) 52 F.Supp. 612 .)

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9731466. Public record. Not legal advice.