The opinion
BROUSSARD, J., Concurring and Dissenting.
I.
I agree, under compulsion of O’Hare v. Superior Court (1987) 43 Cal.3d 86 [ 233 Cal.Rptr. 332 , 729 P.2d 766 ], that in determining whether a jury is representative of the “community,” each superior court district in Los Angeles County is a separate “community.” But although it does not do so explicitly, the majority opinion is intended to go further, and to decide that the community which is relevant is that of the district where the case is finally tried. 1 In my opinion, the relevant district should include the place where the crime occurred. But since Hernandez v. Municipal Court, ante, page 713 [ 263 Cal.Rptr. 573 , 781 P.2d 547 ], will permit a case to be tried anywhere in Los Angeles County, even in a district remote from the place of the crime, the decisions filed today threaten to eviscerate the right to a representative jury. Defendant will retain a right to a jury representative of *749 some community, but that community is not determined by an objective fact—the place of the crime—but by the decision of the state.
Such a rule opens obvious possibilities of forum shopping, since the prosecution can often determine the place of trial by choosing where to file charges. It also presents the danger that the court, for its own convenience, may transfer a case to a remote district unrelated to the crime. It thus threatens to undermine the defendant’s right to a jury representative of the community, for that right is meaningless if the community can be changed to suit the preference of the prosecutor or the convenience of the court. Such dangers can be avoided if we recognize that the defendant has more than a right to a jury representative of someplace or other; he has a right to a jury representative of the community where the crime was committed.
This conclusion finds support in the decision of the Alaska Supreme Court in Alvarado v. State (Alaska 1971) 486 P.2d 891 . Defendant was accused of raping a girl near Chignik, an Aleut Indian village in Alaska’s third judicial district about 450 miles from the district courthouse in Anchorage. The jury was selected from people residing within 15 miles of Anchorage. This selection method did not exclude Native Americans as such, since many lived in Anchorage, but it did exclude almost all those living in villages in the hinterland, thus significantly altering the racial composition of the jury.
In finding that defendant was denied his right to a representative jury, the court reasoned that “the traditional starting point for determining the community from which jurors are to be selected is the scene of the alleged offense. Hence ... in determining whether the source from which a given jury is selected represents a fair cross section of the community, we must adhere to a notion of community which at least encompasses the location of the alleged offense. It is the community in which the crime was committed that the jury must represent.” ( 486 P.2d at p. 902 .)
The federal district court in State of Maryland v. Brown (D.Md. 1969) 295 F.Supp. 63, 83 , reached a similar conclusion. Brown found that a change of venue at the instance of the prosecution did not violate a defendant’s constitutional rights, provided that the trial jury was not selected in a manner which arbitrarily excluded residents of the jurisdiction in which the crime was committed. 2
*750 The foregoing reasoning does not mean that the jury must be selected only from the immediate vicinity of the crime. What it means is that the jury must represent a community that includes the place of the crime. The Alvarado jury was unconstitutional because it was racially unrepresentative of any defined community which included Chignik. By the same token, Los Angeles Superior Court must be representative of a community defined as the entire county, or any part of the county which includes the place of the crime. A defendant’s right to a representative jury must mean a jury representative of the community where the crime was committed, not some other community selected for the advantage or convenience of the state.
II.
This is the latest of a series of recent decisions in which this court has discussed the right to a representative jury, and thus a suitable time to review those decisions as a whole.
The first to be filed was People v. Johnson (1989) 47 Cal.3d 1194 [ 255 Cal.Rptr. 569 , 767 P.2d 1047 ], which concerned the prosecution’s use of peremptory challenges to remove minority members from the jury. Prosecutors will generally attempt to justify such challenges by pointing to individual characteristics of the challenged jurors. Our prior decisions recognized that the most effective way to test the truth of those statements is to see if the prosecutor also challenged nonminority jurors with similar individual characteristics. (People v. Trevino (1985) 39 Cal.3d 667 [ 217 Cal.Rptr. 652 , 704 P.2d 719 ].) Johnson, however, overruled Trevino, depriving the appellate courts of the most effective way to review a trial judge’s decision upholding the challenges.
Johnson went on to state in dictum that the poor do not constitute a cognizable class ( 47 Cal.3d at p. 1214 ), which in context means that the prosecution may systematically exclude poor persons from a jury. That conclusion seems to be contrary to the United States Supreme Court decision in Thiel v. Southern Pacific Co. (1946) 328 U.S. 217 [ 90 L.Ed. 1181 , 66 S.Ct. 984 , 166 A.L.R. 1412 ], which held that the state could not systematically exclude economic groups from jury service. Then, in an astonishing footnote, Johnson suggests that although Blacks and Hispanics may not be excluded from juries, Asians and Jews may. ( 47 Cal.3d at p. 1217, fn. 3 .) If a prosecutor wants a 17th century jury of Christian freeholders, the Constitution, if interpreted as suggested in Johnson , is no barrier.
*751 The next case, People v. Morales (1989) 48 Cal.3d 527 [ 257 Cal.Rptr. 64 , 770 P.2d 244 ], concerned exclusion of minorities from the jury venire. The majority held that a statistical sample of 3,600 jurors was too small to prove systematic exclusion, even though statistical experts testified without dispute that the sample was sufficient to prove the point with a risk of error of only 1 in 1,000. (See pp. 578-579, dis. opn. of Broussard, J.) Morales further stated that a defendant could not show a constitutional violation by proving that a facially neutral practice had the effect of excluding a cognizable class. (Id. p. 546.) What this means is that the state cannot expressly exclude Blacks, but it can exclude all persons of characteristic “x” (low income, for example), even if “x” so closely correlates with race that the practice results in disproportionate exclusion of Blacks.
People v. Bell, ante, page 502 [ 262 Cal.Rptr. 1 , 778 P.2d 129 ], holds a showing of substantial and continuous underrepresentation of Blacks from a county’s juries is insufficient even to put the county to the burden of explaining the underrepresentation. Instead, a defendant must now point to a constitutionally impermissible aspect of the county’s jury selection procedure and show that this is the cause of the racial disproportionality. Such a specific showing is beyond the resources of most, if not all, defendants. Moreover, the holding itself assumes that the county, confronted with a showing that something in its method of selecting jurors is having the effect of excluding a cognizable group, has no duty to investigate and correct the system; it may continue to exclude minorities until someone is able to prove the exact cause of the problem.
Bell, supra, goes on to speak favorably of the “absolute disparity” test for determining when a defendant has made a prima facie showing of exclusion, and unfavorably of all other tests, (ante, at pp. 527-528, fn. 14.) The absolute disparity test measures the disparity as a percentage of total population. (I.e., if Blacks constitute 8 percent of county population, and all are excluded, this is “only” an 8 percent, not a 100 percent, exclusion.) It is the most restrictive of the competing tests, and in practical effect will make it impossible for a defendant to present a prima facie showing on behalf of a minority group which comprises less than 10 percent or so of the community.
Finally, Hernandez v. Municipal Court, supra, ante, page 713, together with the present case, denies a defendant the right to a jury chosen from, or representative of, the community where the crime was committed; he receives instead a jury representative of such community as the prosecutor or courts select.
This court has an obligation to consider the practical consequences of its decisions. Yet none of these decisions show any awareness of their impact *752 on the right of a defendant to obtain a jury which is in fact representative of the community and the vicinage of the crime. None show any recognition that racial bias, conscious or unconscious, is or ever was a matter of concern in this state. None show any sensitivity for the minority defendant facing trial before a predominately White jury. To the contrary, the decisions simply seem to assume that judges, jurors, jury commissioners and prosecutors lack any feelings of racial bias. They erect procedural barriers to make it difficult or impossible to prove subtle forms of bias. And they dismantle, step by step, the legal doctrines which have been created over the years to make the right to a representative jury an effective and enforceable right. I have dissented to each of these decisions, and now register my dissent to the ongoing process of undermining the right of the defendant and the community to a truly representative jury.
MOSK, J.
I agree in principle with the views of Justice Broussard.
On page 744, ante, the majority say that “we must determine whether in creating superior court (or ‘judicial’) districts in Los Angeles County, the Legislature intended to define community in that county as the judicial district where the case is tried.” (Italics added.) After several pages of analysis, none of which distinguishes between the district where the crime was committed and the district where the case was tried, the majority conclude that use of “the superior court judicial district as the appropriate ‘community’ in Los Angeles County effectuates this legislative purpose.” (P. 745, ante.) The majority opinion never directly states that by “judicial district” it means that judicial district where the case was tried.
We relied on Alvarado and Brown for our decision in People v. Jones (1973) 9 Cal.3d 546 [ 108 Cal.Rptr. 345 , 510 P.2d 705 ], where we declared that a defendant’s right to a jury of the vicinage entitled him to a jury which includes residents of the district where the crime occurred. The majority opinion in Hernandez v. Municipal Court, supra, ante, at page 724, criticizes that reliance on the ground that the primary issue in both Alvarado and Brown was *750 cross-section representation, not vicinage. Let us then restore these precedents to their proper place, as authority for the proposition that a jury must represent a community which includes the district of the crime.