Ganz v. Justice Court for Arvin-Lamont Judicial Dist.

• Decision Date: 02 June 1969
• Docket Number: ARVIN-LAMONT
• Citation: 273 Cal.App.2d 612,78 Cal.Rptr. 348
• Court: California Court of Appeals Court of Appeals
• Parties: Marshall L. GANZ, Petitioner and Appellant, v. JUSTICE COURT FOR theJUDICIAL DISTRICT etc., Respondent; STATE of California, Real Party in Interest. Civ. 1068.

Page 348

78 Cal.Rptr. 348

273 Cal.App.2d 612

Marshall L. GANZ, Petitioner and Appellant, v. JUSTICE COURT FOR the ARVIN-LAMONT JUDICIAL DISTRICT etc., Respondent STATE of California, Real Party in Interest.

Civ. 1068.

Court of Appeal, Fifth District, California.

June 2, 1969.

Michael J. Brennan, Paul Driscoll and William B. Daniels, McFarland, for appellant.

No appearance for respondent.

Thomas C. Lynch, Atty. Gen., Doris H. Maier, Asst. Atty. Gen., Jack R. Winkler, Deputy Atty. Gen., Sacramento, for real party in interest.

CONLEY, Presiding Justice.

In this proceeding, the plaintiff appeals from the denial by the Superior Court of Kern County of a writ to forbid the Justice Court of the Arvin-Lamont Judicial District from using its general jury panel for a specific criminal trial. Marshall L. Ganz, the appellant, was originally charged in that court with failure to yield the right of way at an intersection (Veh.Code § 21800(b)). The defendant entered a not guilty plea and demanded a jury trial. The demand was granted and the case was set for trial on January 3, 1968. On January 2, 1968, appellant challenged the entire jury panel (Pen.Code § 1058), on the ground '(that there are) material departures from the forms prescribed in respect to the drawing and return of the jury.' (Pen.Code § 1059.) The justice of the peace denied the challenge and trial was reset for March 22, 1968. It was later continued without date at the request of the appellant in order to permit a hearing in the superior court on the question whether or not a writ of prohibition should be directed to the justice court preventing it from taking further proceedings with its present jury panel in the criminal action. On March 27, 1968, the Kern County Superior Court directed respondent justice court to show cause why a peremptory writ of prohibition should not issue. A return was made by the filing of a demurrer and an answer; the latter pleading was later amended to correct clerical errors.

The demurrer was argued on May 15, 1968, and on June 5, 1968, it was sustained without leave to amend on the grounds:

'There is no showing that the method used to select a jury panel denies the Petitioner, Marshall L. Ganz, an impartial jury. There is no showing that there is a systematic exclusion of persons or classes of persons to which Petitioner belongs.

'Sustained without leave to amend on Ground II, Page 2 of demurrer, that the Petition does not state a cause of action as a matter of law.'

A judgment dismissing the petition for a writ of prohibition was entered on July 25, 1968, and a notice of appeal to this court was filed on July 30, 1968.

The petition alleges that Marshall L. Ganz was charged with a traffic offense in the justice court and that his challenge of the entire jury panel was denied. It is further said that denial of said motion exceeded the respondent justice court's jurisdiction because it deprived appellant of his right to trial by a fair and impartial jury '* * * in that certain definite and identifiable groups in the district are excluded from jury service by the method used to select jurors for the jury list.'

It is claimed that the petitioner 'has no plain, speedy or adequate remedy in the ordinary course of law,' and further alleged: (A) that jury panels in said justice court are drawn solely from the list of registered voters of Kern County; (B) that the 'percentage of persons with Spanish surnames on the jury lists for the Arvin-Lamont Judicial District for the years 1963 up to and including 1967 varied from a high of 4 percent to a low of 2.5 percent in 1967'; (C) that a study conducted by the Fair Employment Practices Commission based on the 1960 United States Census indicates that 10 percent of the total populationof Kern County then had Spanish surnames; (D) that the telephone directory for the City of Arvin indicates that nine percent of the telephone users are persons with Spanish surnames; (E) that the records of the Lamont Water and Sewage District show that 21 percent of the persons receiving such services have Spanish surnames; and (F) that the Pacific Gas and Electric Company has customers with Spanish family names consisting of 18 percent of 2,000 subscribers. The appellant contends that his petition stated a cause of action, and that the sustaining of the general demurrer was error; he also claims that the court abused its discretion in not giving him leave to amend.

WHILE A WRIT OF PROHIBITION MAY BE REQUESTED TO PREVENT THAT 10 PERCENT OF THE TOTAL POPULATION OF ALLEGED UNCONSTITUTIONAL JURY PANEL, PRACTICAL CONSIDERATIONS MAKE THE GRANTING OF SUCH A REMEDY UNWISE EXCEPT IN UNUSUAL CASES.

The Attorney General has alleged in his brief, without contradiction, that petitioner has not cited any instance in which a criminal trial has been halted by a writ of prohibition on the ground urged here. It is proper, therefore, to consider briefly whether such a writ may be applied for in a situation of this kind. The practice of using a writ of prohibition to halt a proposed trial has grown remarkably in recent years, due to the fact that if it is apparent that improper methods are being employed in a prosecution, the postponement of their consideration until appeal after judgment results in lost time and consequent damage to the participants as well as to the judicial system of the State of California. It has been held, for example, that prohibition is a proper remedy to test venue (Vam Zanten v. Superior Court of San Diego County, 214 Cal.App.2d 510, 29 Cal.Rptr. 625), to prevent the retrial of a defendant who has been once in jeopardy (Paulson v. Superior Court of El Dorado County, 58 Cal.2d 1, 5, 22 Cal.Rptr. 649, 372 P.2d 641), to restrain prosecution under an unconstitutional statute or ordinance (Canon v. Justice Court for Lake Valley Judicial District of El Dorado County, 61 Cal.2d 446, 450, 39 Cal.Rptr. 228, 393 P.2d 428), and to ascertain whether a defendant was committed for trial without probable cause (Mardis v. Superior Court In and For County of San Bernardino, 218 Cal.App.2d 70, 72, 32 Cal.Rptr. 263); but, the Attorney General assures us that every case found in California in which discrimination in the selection of a jury is discussed arose by an appeal after conviction (People v. Durrant, 116 Cal. 179, 199, 48 P. 75; People v. Vaughn, 14 Cal.App. 201, 205, 111 P. 620; People v. Manuel, 41 Cal.App. 153, 155, 182 P. 306; People v. Shannon, 203 Cal. 139, 142, 263 P. 522; People v. Hines, 12 Cal.2d 535, 86 P.2d 92; People v. Parman, 14 Cal.2d 17, 19, 92 P.2d 387; People v. Jackson, 88 Cal.App.2d 747, 751, 199 P.2d 322; People v. Hernandez, 100 Cal.App.2d 136, 137, 223 P.2d 76; People v. Hess, 104 Cal.App.2d 642, 669, 234 P.2d 65; People v. White, 43 Cal.2d 740, 748, 278 P.2d 9; People v. Carter, 56 Cal.2d 549, 568, 15 Cal.Rptr. 645, 364 P.2d 477; People v. Mason, 259 Cal.App.2d 30, 66 Cal.Rptr. 601).

While the Attorney General raises the question whether a cause of action for prohibition founded on discrimination in jury selection may be stated at all, we do not concur with him in his doubt concerning the answer. There is no reason why a petition for a writ of prohibition cannot be filed in objecting to an unconstitutional and improper jury panel. However, this case itself furnishes a good example of the delay and consequent basic interference with the functions of the criminal courts that result from an application for a writ of prohibition with respect to the jury panel assigned to a given case. Here, the defendant was accused of a relatively minor breach of the law in August of 1967, and the trial has not been held and will be delayed for a considerable period of time still, because of the question whether the proposed jury panel is proper. It is apparent, furthermore, that a court is much better able to answer the question whether a defendant's jury panel is fair after trial rather than before. It, therefore, seems clear to us that the courts should not hesitate to invoke their discretionary right to refuse the issuance of a writ of prohibition before trial in cases of this caliber. The right to challenge a jury panel in advance through application for a writ of prohibition exists, but common sense would indicate that it should not be frequently asked for or granted.

It is the policy of the federal and state governments throughout the country to provide a fair and unprejudiced jury for the trial of any case, criminal or civil. As a consequence, there has grown up a basic viewpoint with respect to the quality of juries which is perhaps as well phrased as anywhere else by Congress in the 'Jury Selection and Service Act of 1968' (Public Laws 90--274; 82 Stats. 53), where sections 1861 and 1862 read as follows:

' § 1861. Declaration of policy

'It is the policy of the United States that all litigants in Federal courts entitled to trial by jury shall have the right to grand and petit juries selected at random from a fair cross section of the community in the district or division wherein the court convenes. It is further the policy of the United States that all citizens shall have the opportunity to be considered for service on grand and petit juries in the district courts of the United States, and shall have an obligation to serve as jurors when summoned for that purpose.

'1862. Discrimination prohibited

'No citizen shall be excluded from service as a grand or petit juror in the district courts of the United States on account of race, color, religion, sex, national origin, or economic status.'

When the principles of the foregoing declaration of policy are observed, much is left to the wise discretion of the trial judge and the attorneys in selecting a jury. The statutory right of counsel to exercise challenges for cause and peremptory challenges also gives wide scope to persons tried in the criminal courts to secure juries that are fair and competent.

THE SUSTAINING OF THE DEMURRER...