recognizing that "[w]ere statistical evidence of recurring disparity alone adequate to establish a prima facie violation of the cross-section guaranty, the third prong of the Duren test would be surplusage," and further noting that "[b]y including as an element of aprima facie case a demonstration that the disparity is caused by `systematic exclusion' of members of the underrepresented group, the Supreme Court clearly intended to require more"
How later courts described this case
- recognizing that "[w]ere statistical evidence of recurring disparity alone adequate to establish a prima facie violation of the cross-section guaranty, the third prong of the Duren test would be surplusage," and further noting that "[b]y including as an element of aprima facie case a demonstration that the disparity is caused by `systematic exclusion' of members of the underrepresented group, the Supreme Court clearly intended to require more"
- observing that "it is one thing to say that a probability calculation is useful evidence; it is quite another to say that it embodies a constitutional standard"
- stating that felons cannot possess a firearm, even after receiving a certification of rehabilitation
- “A criminal defendant who asserts a systematic exclusion of a cognizable class of prospective jurors in a pretrial challenge to the jury venire or panel need not show that his trial jury was underrepresentative.”
Written by the judges who cited it.
The opinion
KAUFMAN, J., Concurring.
I concur in the judgment and most of what is stated in the majority opinion, including that defendant has failed to satisfy the third prong of the Duren test (Duren v. Missouri (1979) 439 U.S. 357 [ 58 L.Ed.2d 579 , 99 S.Ct. 664 ]). I cannot agree, however, with the conclusion stated in the opinion’s dicta that the question of whether defendant established a prima facie case of an unrepresentative jury venire is properly determined here on the basis of the gross population figures presented and that henceforth defendants must establish such a prima facie case by presenting jury eligible statistics only where the defendant “has access to census or other demographic data that reflect the percentage of the relevant group who are adult and thus presumptively jury eligible. . . .” (Maj. opn., at p. 526, fn. 12, italics omitted.)
The establishment of a prima facie case means the presentation of such proof as will support a ruling or order in favor of the moving party if no controverting evidence is presented. It would seem too obvious to require articulation that no prima facie case can be established by irrelevant evidence.
In a recent United States Supreme Court decision dealing with a minority set-aside provision for government subcontracts, a majority of the high court made plain that to be relevant to a claim of discrimination, statistical data must be based on the “relevant population,” those persons having the essential qualifications of the class claimed to have been excluded. (City of Richmond v. J.A. Croson Co. (1989) 488 U.S. 469 [ 102 L.Ed.2d 854 , 109 S.Ct. 706 ].)
The Court of Appeals in that case had held that the city’s 30 percent set-aside was chosen arbitrarily because it was tied to the total minority population of Richmond and “was not tied to the number of minority subcontractors in Richmond or to any other relevant number.” (City of Richmond, supra, 488 U.S. at p. _ [ 102 L.Ed.2d at p. 877 ].) The Supreme Court agreed.
In part III B of the opinion, Justice O’Connor speaking for the court stated; “Reliance on the disparity between the number of prime contracts awarded to minority firms and the minority population of the city of Richmond is . . . misplaced. There is no doubt that ‘[w]here gross statistical disparities can be shown, they alone in a proper case may constitute prima *555 facie proof of a pattern or practice of discrimination’ under title VII. Hazelwood School Dist. v. United States, 433 U.S. 299, 307-308 , 53 L.Ed.2d 768 , 97 S.Ct. 2736 (1977). But it is equally clear that ‘[w]hen special qualifications are required to fill particular jobs, comparisons to the general population (rather than to the smaller group of individuals who possess the necessary qualifications) may have little probative value.’ Id., at 308, fn. 13 , 53 L.Ed.2d 768 , 97 S.Ct. 2736 . See also Mayor v. Educational Equality League, 415 U.S. 605, 620 , 39 L.Ed.2d 630 , 94 S.Ct. 1323 (1974) (‘[T]his is not a case in which it can be assumed that all citizens are fungible for purposes of determining whether members of a particular class have been unlawfully excluded’).
“In the employment context, we have recognized that for certain entry level positions or positions requiring minimal training, statistical comparisons of the racial composition of an employer’s workforce to the racial composition of the relevant population may be probative of a pattern of discrimination. See Teamsters v. United States, 431 U.S. 324, 337-338 , 52 L.Ed.2d 396 , 97 S.Ct. 1843 (1977) (statistical comparison between minority truck drivers and relevant population probative of discriminatory exclusion). But where special qualifications are necessary, the relevant statistical pool for purposes of demonstrating discriminatory exclusion must be the number of minorities qualified to undertake the particular task. See Hazel-wood, supra, at 308, 53 L.Ed.2d 768 , 97 S.Ct. 2736 ; Johnson v. Transportation Agency, 480 U.S. 616, 651-652 , 94 L.Ed.2d 615 , 107 S.Ct. 1442 (1987) (O’Connor, J., concurring).
“In this case, the city does not even know how many MBEs in the relevant market are qualified to undertake prime or subcontracting work in public construction projects. Compare Ohio Contractors Assn. v. Keip, 713 F.2d at 171 (relying on percentage of minority businesses in the State compared to percentage of state purchasing contracts awarded to minority firms in upholding set-aside.) Nor does the city know what percentage of total city construction dollars minority firms now receive as subcontractors on prime contracts let by the city. [¶] . . . Without any information on minority participation in subcontracting, it is quite simply impossible to evaluate overall minority representation in the city’s construction expenditures.
“The city and the District Court also relied on evidence that MBE membership in local contractors’ associations was extremely low. Again, standing alone this evidence is not probative of any discrimination in the local construction industry. . . .
“For low minority membership in these associations to be relevant, the city would have to link it to the number of local MBEs eligible for member *556 ship. If the statistical disparity between eligible MBEs and MBE membership were great enough, an inference of discriminatory exclusion could arise. . . .” (City of Richmond, supra, 488 U.S. at pp._-_ [102 L.Ed.2d at pp. 886-888], first italics added.)
Similarly in the case at bench only adults are eligible for jury service, but defendant has attempted to make a prima facie showing of systematic exclusion of Black persons from jury venires on the basis of gross statistical data not based on the relevant population, i.e., “jury eligible persons,” but rather on the total Black population of Contra Costa County. 1
No rational inference of systematic exclusion can arise from the statistics presented and no prima facie case was made by defendant. Here, it was, and in the future it will be, the burden of the defendant to make out a prima facie case by presenting relevant evidence consisting of statistics based on the “relevant population,” persons eligible for jury service.
As the majority points out, there was evidence that about 38 percent of the total Black population were minors.