People v. McCoy

• Decision Date: 30 November 1995
• Citation: People v. McCoy, 47 Cal.Rptr.2d 599, 40 Cal.App.4th 778 (Cal. App. 1995)
• Court: California Court of Appeals
• Parties: , 64 USLW 2399, 95 Cal. Daily Op. Serv. 9116, 95 Daily Journal D.A.R. 15,786 The PEOPLE, Plaintiff and Respondent, v. Robert Earl McCOY, Defendant and Appellant. A064022.

Page 599

47 Cal.Rptr.2d 599

40 Cal.App.4th 778, 64 USLW 2399, 95 Cal. Daily Op. Serv. 9116,

95 Daily Journal D.A.R. 15,786

The PEOPLE, Plaintiff and Respondent, v.Robert Earl McCOY, Defendant and Appellant.

A064022.

Court of Appeal, First District, Division 1, California.

Nov. 30, 1995.

Review Denied March 14, 1996.

Certified for Partial Publication. ^*

David McNeil Morse, under appointment by the Court of Appeal, San Francisco, for appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Senior Assistant Attorney General, Ann K. Jensen, Supervising Deputy Attorney General, Allan Yannow, Deputy Attorney General, San Francisco, for respondent.

STRANKMAN, Presiding Justice.

AppellantRobert Earl McCoy was charged by information with murder, with a prior second degree murder special circumstance, personal knife use and great bodily injury enhancements, and two prior serious felonies.(Pen.Code, §§ 187,190.2, subd. (a)(2),12022, subd. (b),1203.075.)¹Appellant pled not guilty and not guilty by reason of insanity.Trial was by jury, which convicted him of second degree murder and found the enhancement allegations true.The trial court found the prior murder allegation true.In the sanity phase, the jury found appellant sane when he committed the murder.In the penalty phase, the jury found appellant should be sentenced to life without possibility of parole.

Appellant moved for a new trial on the ground the systematic exclusion of persons aged 70 and older from the jury pool violated his constitutional right to a jury drawn from a representative cross-section of society.In the published portion of this opinion, we conclude the motion was properly denied, because appellant did not show that the group allegedly excluded was a distinctive or cognizable group within the meaning of the representative cross-section rule.

I.FACTS ^**

II.CHALLENGE TO THE COMPOSITION OF THE JURY VENIRE

Background

Before trial, appellant moved for a continuance to "investigate the composition of the venire panel" so as to file a challenge.More specifically, he expressed concern about the low number of Blacks and East Palo Alto residents on the panel.The court denied the continuance.However, after the penalty phase of the trial, the matter was continued to enable appellant to investigate the process used to summon jurors in San Mateo County(the County).Later, appellant joined with two defendants in unrelated cases in a motion to quash the County jury venire; he also moved for a new trial.Shortly before the evidentiary hearing on the motions, appellant filed supplemental points and authorities, arguing for the first time that prospective jurors were being excluded improperly based on age.Our summary of the evidence at that hearing concerns only the evidence relating to that claim.

The County's manager of jury services, Tim Benton, explained the procedure for summoning, qualifying, and excluding prospective jurors.Under the system in effect when appellant was tried, approximately 8,000 persons per month were summoned to provide the necessary monthly venire of at least 2,500 qualified jurors.Summoned jurors were required to return an affidavit providing information on whether they met minimum statutory qualifications for jury service.A summoned juror returning an affidavit also might request deferral of jury service or seek to be excused based on several grounds, including health, extreme financial burden, lack of transportation, care of a dependent, or jury service within the past 12 months.The staff of the Jury Commissioner's Office(the Office) evaluated requests for excusal based on the information in the affidavit.In addition to the excusal categories listed on the affidavit itself, the Office had a category labeled "3F," created for unusual situations that did not fit into any other category.

The official policy of the office was to treat affidavits from prospective jurors over the age of 70 the same as those from younger persons, except that those 70 and older did not need a physician's letter to document a medical excuse.However, Benton had recently discovered that over the previous 2 years, apparently a routine practice had developed among certain staff members to be more lenient with individuals 70 and older.Most persons in that age group who requested excusal were excused, regardless of the nature of their excuse.Others in that age group were excused even without a request.

Demographer Dr. Paula Hudis surveyed prospective jurors who reported for jury duty during a six-week period in May and June 1993.Of the survey sample, approximately 1.13 percent were aged 70 or older.According to the 1990 census, 10.42 percent of the general population of the County were in that age group.During the 18-month period immediately preceding the hearing, approximately 90 percent of those excused in the "3F" category were 70 and older.

Social psychologist and social science researcher Dr. Carol Huffine testified as an expert in longitudinal research.She was of the opinion that people born during a particular period of time ("age cohorts") share unique and distinct attitudes, perspectives, and beliefs because they have experienced historical events or social change at the same stage of their lives.To illustrate, she described a study that attempted to determine the long-term effects on different age cohorts of having experienced economic deprivation between 1929 and 1933.Personality tests administered to adolescent boys born in 1928 and 1929 indicated that as a group, they displayed feelings of "incompetence, hopelessness, ... a sense of victimization."The same tests administered to adolescent boys born in 1921 and 1922 indicated they felt competent, optimistic, and hopeful.Tested again at age 40, both groups were basically normal and healthy, but the older cohorts demonstrated "more robust" psychological health.In Dr. Huffine's opinion, because persons 70 and older experienced the depression, World War II, and the post war economic boom at the same stage of their lives, they have similar attitudes and beliefs making them distinct from other groups, even those only a few years younger.

Psychologist Dr. Morton A. Lieberman testified as an expert in gerontology.He too was of the opinion that persons in a particular age group share a "common and distinct perspective," both because of the common personal and historical events they have experienced and because of the common attitudes and behaviors expressed by society toward particular groups.He distinguished between the "young old," who are 60 to 69, and the "old old," who are 70 and older.He was of the opinion that the latter group as a whole has more "acceptance, tolerance, and spirituality."They also have a "different kind of perspective and way of looking at information and processing it and judging it," described by some as "wisdom."

The trial court denied the motion.It concluded that the practice of excusing older jurors who had not requested excuses was unacceptable and wrong.At the same time, it rejected the argument that persons 70 and older were a cognizable or distinct class.²

Discussion

Under the Sixth Amendment of the United States Constitutionandarticle I, section 16 of the California Constitution, a defendant is entitled to a jury venire drawn from a representative cross-section of the community.(Duren v. Missouri(1979)439 U.S. 357, 363-364, 99 S.Ct. 664, 668-669, 58 L.Ed.2d 579;People v. Wheeler(1978)22 Cal.3d 258, 272, 148 Cal.Rptr. 890, 583 P.2d 748.)To establish a prima facie violation of the fair-cross-section requirement, defendant must first show that the group allegedly excluded is a " 'distinctive' " group in the community.(Duren, supra, at p. 364, 99 S.Ct. at p. 668.)

The United States Supreme Court has yet to define precisely what constitutes a distinctive group for purposes of the representative cross-section rule.(SeeLockhart v. McCree(1986)476 U.S. 162, 174, 106 S.Ct. 1758, 1765, 90 L.Ed.2d 137.)Nevertheless, it is settled as a matter of law that both Blacks and Hispanics are distinctive or cognizable groups (People v. Stansbury(1993)4 Cal.4th 1017, 1061, 17 Cal.Rptr.2d 174, 846 P.2d 756, revd. on other grounds and remanded(1994)511 U.S. 318, 114 S.Ct. 1526, 128 L.Ed.2d 293, affd.9 Cal.4th 824, 38 Cal.Rptr.2d 394, 889 P.2d 588;People v. Harris(1984)36 Cal.3d 36, 51, 201 Cal.Rptr. 782, 679 P.2d 433), as are women (Taylor v. Louisiana(1975)419 U.S. 522, 531, 95 S.Ct. 692, 698, 42 L.Ed.2d 690;Duren v. Missouri, supra, 439 U.S. at p. 364, 99 S.Ct. at pp. 668-669).In Rubio v. Superior Court(1979)24 Cal.3d 93, 154 Cal.Rptr. 734, 593 P.2d 595, our Supreme Court expressed two requirements for qualification as a cognizable or distinctive group.First, members of the group must share a common perspective arising from their life experience in the group, i.e., a common social or psychological outlook or perspective on human events gained precisely because they are members of that group.Second, the party seeking to demonstrate a violation of the rule also must show that no other members of the community are capable of adequately representing the perspective of the excluded group.³(Id. at p. 98, 154 Cal.Rptr. 734, 593 P.2d 595.)

California courts have not been receptive to the argument that age alone identifies a distinctive or cognizable group within the meaning of this rule.(See, e.g., People v. Henderson(1990)225 Cal.App.3d 1129, 1148-1153, 275 Cal.Rptr. 837[cognizability described as question of fact; persons 18 to 29 not a cognizable class]disapproved on other grounds inPeople v. Davis(1994)7 Cal.4th 797, 805-810, 30 Cal.Rptr.2d 50, 872 P.2d 591;People v. McGhee(1987)193 Cal.App.3d 1333, 1351-1352, 239 Cal.Rptr. 28[as a matter of law, youth not cognizable for purposes of Wheeler motion];People v. Marbley(1986)181...