People v. McDonald

• Citation: 203 Cal.App.3d 925,237 Cal.Rptr. 597
• Court: California Court of Appeals
• Decision Date: 28 April 1987
• Parties: Previously published at 203 Cal.App.3d 925 203 Cal.App.3d 925 The PEOPLE, Plaintiff and Respondent, v. Eddie Bobby McDONALD, Defendant and Appellant. B016666.

Page 597

237 Cal.Rptr. 597

Previously published at 203 Cal.App.3d 925

203 Cal.App.3d 925

The PEOPLE, Plaintiff and Respondent, v. Eddie Bobby McDONALD, Defendant and Appellant.

B016666.

Court of Appeal, Second District, Division 4, California.

April 28, 1987.

Review Granted July 23, 1987.

Richard D. Rome, Van Nuys, under appointment by the Court of Appeal, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Robert F. Katz and Mark Alan Hart, Supervising Deputy Attys. Gen., for plaintiff and respondent.

WOODS, Presiding Justice.

Eddie McDonald (appellant) appeals his conviction for second degree murder after a retrial which resulted from the Supreme Court's reversal of his first trial due to the exclusion of testimony from a defense expert on eyewitness identification. (People v. McDonald (1984) 37 Cal.3d 351, 208 Cal.Rptr. 236, 690 P.2d 709.)

One of appellant's numerous contentions is that the method employed by Los Angeles County to assign jurors to the Long Beach Courthouse resulted in an underrepresentation of Black jurors which denied him his constitutional right to a jury drawn from a fair cross-section of the community. (Duren v. Missouri (1979) 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579; People v. Wheeler (1978) 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748; U.S. Const., Amend. VI; Cal. Const., art. I, § 16.) He presented evidence that Los Angeles County assigns jurors to the courthouse nearest their homes. That policy is based upon the county's interpretation of Code of Civil Procedure section 203, which states: "Each court shall adopt rules supplementary to such rules as may be adopted by the Judicial Council, governing the selection of persons to be listed as available for service as trial jurors. The persons so listed shall be fairly representative of the population in the area served by the court, and shall be selected upon a random basis. Such rules shall govern the duties of the court and its attaches in the production and use of the juror lists. In counties with more than one court location, the rules shall reasonably minimize the distance traveled by jurors. In addition, in the County of Los Angeles no juror shall be required to serve at a distance greater than 20 miles from his or her residence. " (Emphasis added.)

The evidence showed that the county's assignment policy will always result in a relatively low percentage of Blacks at the Long Beach Courthouse, because there are other courthouses within 20 miles of it which are closer to the concentrated area of Blacks in the south central part of the county.

We hold that, while the 20-mile radius exemption is constitutionally sound, section 203 cannot be interpreted so as to further reduce the area of jury selection by requiring assignment to the nearest courthouse within the 20-mile zone. We have concluded that the state's asserted interest in juror convenience is not sufficiently significant to rebut the prima facie showing of a denial of appellant's fundamental right to a jury drawn from a fair cross-section of the community. We therefore reverse.

I

Appellant's motion to quash the jury was based upon the evidentiary record developed in another Long Beach case, People v. Lee Edward Harris, No. A018568. The Harris jury challenge occurred on retrial after the Supreme Court had reversed Mr. Harris's earlier conviction (People v. Harris (1984) 36 Cal.3d 36, 201 Cal.Rptr. 782, 679 P.2d 433), because a prima facie showing had been made that use of voter registration lists as the sole source for the jury pool violated the right to a fair cross-section of the community. The jury pool on the Harris retrial was drawn from both voter registration and Department of Motor Vehicles (DMV) records. All parties agreed there was no longer a problem with the initial master list. There was also no question that the county did not intentionally discriminate against any group, as it had no knowledge of any prospective juror's race at any point in the selection process.

Testimony showed that the master list taken from voter registration and DMV records contains over five million names and represents about 95 percent of the county's adult population. After eliminating duplicate names from the master list, the county sends out juror qualification questionnaires to a randomly-selected sample of names from the list. Almost one million such questionnaires were mailed in the year 1983-1984. About 44 percent were either undeliverable or not returned. Thirty-seven percent more were excluded based on excuses such as hardship and incompetency. The remaining 19 percent of persons actually qualifying were placed on the impanelment list and sent summonses to appear. Of those summoned, about 9.5 percent actually served at a courthouse.

The racial composition of jurors appearing at a courthouse can be determined by having them fill out questionnaires. Some conclusions about the race of qualified jurors on the impanelment list can be drawn from the census tract number which accompanies each name on that list.

The defense evidence showed that, based upon 1980 census information concerning persons 18 years of age and older, the jury eligible Black population in Los Angeles County as a whole was 11.8 percent. ¹ The same population within a 20-mile radius of the Long Beach Courthouse was 14.8 percent. Three jury panels surveyed at the Long Beach Courthouse in May 1985 contained 6.2 percent Blacks. The Harris panel itself originally contained 5 percent Blacks, which was raised to 7.5 percent when additional jurors were needed and were transferred from the Compton Courthouse.

The original Harris panel had an absolute disparity of minus 6.8 percent with the Los Angeles County figure for Blacks, and a comparative disparity of minus 58 percent. Using the three panels tested in May 1985, the absolute disparity would be minus 5.6 percent and the comparative disparity minus 47 percent. The comparative disparities suggested there were only half the number of Black jurors serving at the Long Beach Courthouse as there should be based on the county as a whole.

If the pertinent community were based upon the 20-mile radius of the Long Beach Courthouse, there would be an absolute disparity of minus 9.8 percent or a comparative disparity of minus 66 percent, meaning that only one-third of the qualified Black jurors were reporting for jury service in Long Beach.

The primary defense witness was demographer Dr. Edgar Butler, the chairman of the Department of Sociology at the Riverside campus of the University of California, and the same expert relied upon in the Supreme Court's opinion in People v. Harris, supra, 36 Cal.3d 36, 201 Cal.Rptr. 782, 679 P.2d 433. Dr. Butler testified to his disappointment when adoption of the dual source list, which he had advocated at the original Harris jury challenge, failed to change the continuing disparity of Black representation on jury panels. Assuming there was a proper percentage of Blacks in the 19 percent of qualified jurors on the impanelment list, he believed the racial disparity was caused by the county's system of deciding which jurors went to which courthouses.

The problem arose from the county's interpretation of section 203 of the Code of Civil Procedure. There are 32 courts in the county, including 10 superior courts. Some of these courthouses are within the 20-mile radius of the Long Beach Courthouse. The county utilized a computer program which assigned each juror from the impanelment list to the courthouse closest to the juror's home as needed. If the draw was filled at the courthouse closest to the person's home, the potential juror would be sent to the next closest courthouse. Analysis of eight panels of jurors at the Long Beach Courthouse in April, May and June of 1985, showed that no jurors were sent to that courthouse from approximately 80 percent of the 538 census tracts within a 20-mile radius of the Long Beach Courthouse. Most of the predominantly Black areas were excluded, including, for example, Inglewood, Compton and Watts, because other courthouses were closer to those areas. By contrast, just two census tracts near the Long Beach Courthouse, which were almost exclusively White, produced over 8 percent of its jurors.

To alleviate the problem, Dr. Butler proposed that the final allocation to courthouses be changed to a "stratified census tract approach" under which qualified jurors for each courthouse would be randomly selected from randomly-selected census tracts within the 20-mile radius of that courthouse. That system would result in an equal dispersion of jurors from all census tracts, including those which were nearly all White or all Black. He had designed a computer program to test this method. The eight random samples he generated contained no statistically significant difference in the percentage of Blacks on the panels from the percentage of Blacks in the entire census tract population within a 20-mile radius of the Long Beach Courthouse. He further testified that it would not cost the county more than $10,000 or $15,000 to change to a system utilizing census tracts at the final stage of the selection process, since the information was already in the computer.

Additionally, Dr. Butler testified that the problem of unequal distribution of Black jurors existed throughout the county. The county's superior courthouses all had an underrepresentation of Blacks, except the Central District courthouse downtown. That courthouse, which utilized about 40 percent of the county's total jurors, had an overrepresentation of Blacks. Nobody from the greater central area of Los Angeles was being assigned to branch courts like those in the North Valley District in San Fernando or Norwalk. People living in the predominantly Anglo areas on the periphery of the county tended to go to the branch courts. The racial disparity was caused by basing courthouse assignment on...