People v. McDowell

Citation104 Cal.Rptr. 181,27 Cal.App.3d 864
Decision Date20 September 1972
Docket NumberCr. 4869
CourtCalifornia Court of Appeals
PartiesPEOPLE of the State of California, Plaintiff and Respondent, v. Ronald Earl McDOWELL, Defendant and Appellant.

Bernard Kelber, Ontario, under appointment by this court, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Herbert L. Ashby, Chief Asst. Atty. Gen., William E. James, Asst. Atty. Gen., Derald E. Granberg and Jay M. Bloom, Deputy Attys. Gen., for plaintiff and respondent.


GABBERT, Acting Presiding Justice.

Appellant was charged in count I of an information with violating Penal Code section 211 (robbery); he was alleged to have used a firearm during the commission of the offense. He was also charged in count II with violating Penal Code, section 245 (assault with a deadly weapon). His challenge to the composition of the San Bernardino County petit jury panel was denied; his motion under Penal Code, section 1538.5 was also denied. A jury found appellant guilty on count I of robbery in the second degree, but concluded he was not armed during the commission of the offense; he was found not guilty on the charge within count II. Appellant's application for probation was denied, and he was sentenced to state prison for the term prescribed by law. He now appeals from the judgment.

The facts may be quickly stated. Appellant, apparently armed, entered the Jolly Farms Restaurant in Fontana. Appellant gave a sack to a Mrs. Jo Stein, an employee of the restaurant and ordered her to fill it with money. The son of the restaurant owner noted appellant was wearing dark pants, a gray shirt, and a red hard hat. The robbery of the restaurant constituted the charge set out in count I.

Two days later, one Louis Quade arrived for work at the Mobile Lunch Catering Service. Apparently because her suspicion was aroused, Mona Volk, secretary at the catering service, pointed out to Quade an old white Chrysler or Dodge with high tailfins and big tail lights, parked on the street. Quade and one Richard Pranausk tried to follow the vehicle in Quade's automobile in order to get the license number. They were only able, however, to read KCB, the first three letters of the license plate. While they were following the vehicle, Pranausk and Quade observed two puffs of smoke from the side of the car ahead. With the second puff, the windshield of Quade's automobile shattered. Pranausk identified appellant as the driver of the vehicle which he and Quade were following. The shooting incident constituted the basis of count II, on which the jury found appellant not guilty.

Several days later, Detective John Powell of the San Bernardino County Sheriff's office was investigating the shooting incident. In the course of his investigation, Detective Powell contacted Lynn Reese, the manager of the Red Wing Motel. Powell and Reese proceeded to room 2, and knocked at the door. Hearing no answer, Reese unlocked the door, and Powell entered the room; at that time, Powell had not obtained a search warrant. In the room Powell found two construction safety helmets. A stakeout was set up to observe the room, and Powell left to obtain a search warrant. Later in this opinion we set out the facts detailed in Detective Powell's affidavit in support of the search warrant, this in connection with appellant's contention the warrant was invalid.

A search of the motel room pursuant to the warrant uncovered twelve rounds of a .38 caliber ammunition, one red and one white construction safety helmet, a pair of gloves, a pair of blue slacks, a small amount of money, a vehicle purchase order dated October 25, 1970 in appellant's name for a Dodge 4-Door Sedan with the license under KCB 543, and a temporary license plate. Pursuant to the warrant, the police also seized the Dodge sedan. Appellant was subsequently arrested; the details of the arrest are not, however, in the record before us.

Appellant challenges the validity of the procedures used to select petit jury panels in San Bernardino County. He also contends the search warrant was invalid, both because it was tainted by Officer Powell's first allegedly unlawful entry, and because the affidavit upon which it rested was constitutionally insufficient. Finally, he asserts the prosecutor was guilty of prejudicial misconduct. As we shall explain, we conclude the petit jury selection procedures employed by San Bernardino County are constitutionally and statutorily valid. As we shall also explain, we conclude the warrant under which appellant's room was searched was not invalid. We also find no prejudicial misconduct on the part of the deputy district attorney at the trial.

Appellant first contends the San Bernardino County petit jury selection procedure is constitutionally invalid because jury panels are selected from lists of registered voters, and because voter lists do not provide a representative cross-section of the community. Appellant asserts he is 'poor and black and transcient,' and those of the same standing are less likely to register to vote than others.

The American jury system requires an impartial jury drawn from a cross-section of the entire community; recognition must be given to the fact that eligible jurors may be found in every stratum of society. (Thiel v. Southern Pacific Co., 328 U.S. 217, 66 S.Ct. 984, 90 L.Ed. 1181; People v. Carter, 56 Cal.2d 549, 569, 15 Cal.Rptr. 645, 364 P.2d 477; People v. White, 43 Cal.2d 740, 754, 278 P.2d 9.)

A county may constitutionally use voter registration lists as a sole source for petit jury selection at least absent a showing use of such lists resulted in the 'systematic exclusion of a 'cognizable group or class of qualified citizens" or such voter registration lists were compiled in a discriminatory manner. (People v. Sirhan, 7 Cal.3d 710, 749--750, 102 Cal.Rptr. 385, 413, 497 P.2d 1121, 1149; People v. White, Supra, 43 Cal.2d 740, 749, 278 P.2d 9; People v. Gibbs, 12 Cal.App.3d 526, 539, 90 Cal.Rptr. 866; People v. Newton, 8 Cal.App.3d 359, 389--390, 87 Cal.Rptr. 394; Gorin v. United States, 1 Cir., 313 F.2d 641, 644.) The use of voter registration lists also fulfills the statutory requirement of Code of Civil Procedure, section 206. (People v. Gibbs, Supra.)

Here appellant concedes he has failed to demonstrate the voter rolls of San Bernardino County do not fairly reflect a cross section of the community. Our inquiry would normally end here, since appellant has not met the burden of proof required and his contention must fail. (People v. Sirhan, Supra, 7 Cal.3d 710, 749--750, 102 Cal.Rptr. 385, 497 P.2d 1121; People v. Gibbs, Supra, 12 Cal.App.3d 526, 539, 90 Cal.Rptr. 866; People v. Newton, Supra, 8 Cal.App.3d 359, 390, 87 Cal.Rptr. 394; Gorin v. United States, Supra, 313 F.2d 641, 644.) Appellant asserts, however, the burden of proof is too severe in light of his indigency and the difficulty of such proof.

Even accepting as true appellant's unsubstantiated assertion of indigency, we do not think the burden onerous. It does not require, as appellant seems to assume, 'polls . . . of the San Bernardino County community and voters registrants (sic.) to prove the disparity between voter rolls and the community as a whole. A comparison between readily available census statistics 1 and voter registration lists would seem to be a sufficient basis for a proper challenge to the petit jury selection procedures. (See People v. Newton, Supra, 8 Cal.App.3d 359, 389--390, 87 Cal.Rptr. 394.)

Apart from the issue of selection from voter registration lists, appellant also asserts, both on constitutional and statutory grounds, procedures employed by the San Bernardino County Jury Commissioner in selecting petit jury panels are improper.

The record demonstrates some 35,000 names are selected by random electronic procedures from the voter registration lists provided by the registrar of voters. The 35,000 names are chosen, however, based on voting precincts: the random electronic procedure selects one of every five or six names per precinct, rather than on a county-wide basis. The ultimate lot chosen thus is not random throughout the county but random by precinct, and accordingly distributes the ultimate names on the master petit jury list on a geographical basis throughout the county. After statutory exemptions have been granted to those who are entitled and request such exemption (Code of Civ.Proc., §§ 198--200), the number remaining for petit jury service is some 15,000. From this ultimate number, names are drawn by random electronic selection to fill the jury rolls.

Two hundred and forty-six prospective jurors are then placed in each jury impanelment, and one new impanelment becomes available for call each week; each impanelment is, however, subject to call for twelve weeks. Each impanelment is placed with the previously activated impanelments, and juries are chosen from the total group thus created.

The foregoing selection procedures are limited, however, by one final fact: except in capital cases, or where directed by the judge, jurors are selected who reside within a twenty-five mile radius of the court.

We may pass quickly appellant's contention the major part of the jury selection procedures fails to comport with statutory or constitutional requirements. With the exception noted below, the procedures employed meet the statutory directives of Code of Civil Procedure, sections 198--199, 201 and 204 et seq. The use of random electric selection is authorized by Code of Civil Procedure, section 255. The procedures are also, on their face, constitutionally valid. The final step of the selection process, that of failing to summon those otherwise eligible jurors who live more than twenty-five miles from the courthouse, however, presents some difficulty.

As we noted above, the record demonstrates the practice of the San Bernardino County Superior Court Coordinator is to automatically exclude from...

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