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
ARGUELLES, J., * Concurring and Dissenting.
I concur in the majority opinion in all respects, with the exception of its affirmance of defendant’s conviction for violation of Penal Code section 12021 (hereafter section 12021), possession of a concealable firearm by an ex-felon. On that point, I conclude that defendant was not an “ex-felon” for purposes of the section 12021 charge because he had obtained an honorable discharge from the Youth Authority under Welfare and Institutions Code section 1772 (hereafter section 1772) following his 1972 manslaughter conviction. Section 1772 expressly provides that such an honorable discharge shall release a person “from all penalties and disabilities resulting from the offense or crime for which he or she was committed,” and the Attorney General, in a formal opinion issued nearly 30 years ago, specifically concluded that section 12021 is one of the “penalties and disabilities” of which an honorable dischargee is relieved by virtue of section 1772. (See 32 Ops.Cal.Atty.Gen. 43 , 45-46 (1958).) Although the Legislature later amended the somewhat analogous provisions of Penal Code section 1203.04—which govern the effect of a dismissal of charges after the successful completion of probation—to provide that a Penal Code section 1203.4 dismissal shall not affect a discharged adult probationer’s status for purposes of section 12021 (Stats. 1961, ch. 1735, § 1, p.3744), the Legislature has not yet made a similar change in section 1772. While this may be an oversight that the Legislature may want to cure in the future, until the Legislature amends the provision I believe we must apply section 1772 as it *557 currently reads and has been interpreted. Indeed, as I read the Attorney General’s brief, he has virtually conceded that, in light of the current language of section 1772 and the past authorities construing similar language, defendant’s section 12021 conviction must be reversed. 1
While I conclude defendant’s section 12021 conviction must be reversed, I do not believe that this error could have prejudiced defendant at the penalty phase. Although it is true that under the court’s penalty phase instructions the jury might theoretically have considered the section 12021 conviction as an aggravating factor, the prosecutor did not argue that the jury should view the possession-of-a-firearm conviction as a significant or even a subsidiary factor which should lead it to impose a penalty of death rather than life without possibility of parole; indeed, the prosecutor never even mentioned the section 12021 conviction in his penalty phase argument at all. Because defendant’s principal culpability in this case stemmed from his violent use of a firearm to kill the victim rather than simply his wrongful possession of the weapon, and because the prosecutor—in discussing defendant’s past conduct—strongly emphasized the numerous instances in which defendant had in the past actually used a firearm in a violent manner, 2 there is in my view no risk that the jury’s penalty determination in this case was improperly influenced by the erroneous possession-of-a-firearm conviction.
Accordingly, while I dissent from the affirmance of the section 12021 conviction, I concur in all other aspects of the majority opinion, including the affirmance of the penalty judgment.
Retired Associate Justice of the Supreme Court sitting under assignment by the Chairperson of the Judicial Council.
In a supplemental brief directed in part to this issue, the Attorney General states: “Although no existing case authority is directly on point, the best reasoning supports the view that the restrictions on firearm possession contained within section 12021 do not apply to honorable dischargees.”
As the majority opinion notes, at the penalty phase the prosecution presented evidence of three incidents preceding the instant homicide in which the defendant had violently used a firearm: (1) his shooting and killing of Alcus Dorton in 1968, (2) his firing of three shots through the front door of Bobby Ingram’s residence in 1974, resulting in the wounding of Ingram, and (3) his firing of a shot at Vicky Clark in 1974, apparently because he was angry over her refusal to purchase a gun from him.