People v. Spears

• Decision Date: 22 May 1975
• Docket Number: Cr. 12838
• Citation: 122 Cal.Rptr. 93,48 Cal.App.3d 397
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Arnett SPEARS, Defendant and Appellant.

Page 93

122 Cal.Rptr. 93

48 Cal.App.3d 397

PEOPLE of the State of California, Plaintiff and Respondent, v. Arnett SPEARS, Defendant and Appellant.

Cr. 12838.

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

May 22, 1975.

As Modified June 4, 1975.

Dennis K. Rothhaar, Oakland, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., W. Eric Collins, Terry A. Douglas, Dep. Attys. Gen., San Francisco, for plaintiff and respondent.

SIMS, Associate Justice.

Appellant has appealed from an order admitting him to probation on condition, among others, that he serve six months in the county jail. This order followed his conviction of battery on a policeman, in violation of sections 242 and 243 of the Penal Code, by verdict of a jury which was usable to agree with respect to a similar charge involving a second policeman. This count was dismissed at sentencing. A third such charge was dismissed during the trial on the motion of the defendant. The charges arose when the police, in an attempt to break up alleged gambling in a public park, undertook to arrest those believed responsible while confronted by a hostile group. Defendant does not question that there is evidence, which if believed, supports a finding that he struck the officer named in the count on which he was convicted. His attack on his conviction is predicated upon the make up of the jury panel which was summoned and available for the trial of his case. His counsel states, 'Appellant is a Black man who was arrested in a confrontation between a large group of Black men and women and a large group of predominately white policemen. Appellant challenged the composition of the panel from which his jury was chosen because it was not a representative cross-section of residents of the judicial district where the crimes allegedly were committed. His motion was denied.'

The offense was committed in the City of Richmond in Contra Costa County. 1970 census data submitted in support of defendant's contentions indicates that of a total county population of 555,805, 79,043, or 14.22 percent, resided in the City of Richmond, or, if the larger Richmond census division area is considered, 112,389, or 20.22 percent, of the county population would be found in that area. Of the latter figure, 32,138, or 28.60 percent, were listed as Blacks, whereas in the county as a whole there were 41,620, or 7.49 percent, Blacks. The next highest concentration of Blacks was found in the Pittsburg area in the northern part of the county. ¹

In Contra Costa County the principal seat of governmment is at Martinez, but there is a branch of the superior court in Richmond. Although defendant suggests that the best solution to the situation of which he complains would be to require trial of all offenses committed in Richmond in that city, with jurors selected from that area; he recognizes that the law does not require such a procedure. (See People v. Jones (1973) 9 Cal.3d 546, 553, 108 Cal.Rptr. 345, 510 P.2d 705; People v. Obie (1974) 41 Cal.App.3d 744, 758, 116 Cal.Rptr. 283; and Adams v. Superior Court (1972) 27 Cal.App.3d 719, 727--730, 104 Cal.Rptr. 144.) He contents himself with asserting that the jury in this case was selected in a manner which discriminated against members of his race, and that as constituted it denied him his constitutional right to a jury drawn from the vicinage of the crime.

On the day the case was called for trial the jury pool for the superior court consisted of 210 names. The first 109 were sent to the department in which defendant was to be tried. Of the 109 listed, one proved to be a resident of Alameda County. Six or 5.50 percent of the 109 were from Richmond. 63 or 57.80 percent of the original panel were from the Concord, Lafayette, Orinda and Walnut Creek areas, where the percentage of Blacks ranged from 0.20 percent to 0.35 percent and averaged but 0.26 percent. Of the 101 remaining jurors, 14 were from Richmond, so of the total 210 jurors summoned 20 of 9.52 percent were from Richmond.

In People v. Jones, supra, 9 Cal.3d 546, 108 Cal.Rptr. 345, 510 P.2d 705, the court reviewed applicable decisions of the United States Supreme Court ² and concluded: '. . . a criminal defendant in a state criminal prosecution has a constitutional right to be tried by a jury drawn from, and comprising a representative cross-section of, the residents of the district wherein the crime shall have been committed.' (9 Cal.3d at p. 551, 108 Cal.Rptr. at p. 349, 510 P.2d at p. 709, and see p. 556, 108 Cal.Rptr. 345, 510 P.2d 705.) In that case the court determined, 'Although a jury drawn either from an entire county wherein the crime was committed or from that portion of a county wherein the crime was committed will satisfy the constitutional requirement of 'an impartial jury of the State and district wherein the crime shall have been committed' (U.S.Const., 6th Amend.) a jury drawn from only a portion of a county, exclusive of the place of the commission of the crime will not satisfy the requirement.' (Id., p. 553, 108 Cal.Rptr. p. 350, 351, 510 P.2d p. 710--711. See also, Id. p. 556, 108 Cal.Rptr. 345, 510 P.2d 705; and People v. Casillas (1973) 33 Cal.App.3d 1078, 1080, 109 Cal.Rptr. 579 (hearing den. Oct. 10, 1973). Cf. People v. Obie, supra, 41 Cal.App.3d 744, 758, 116 Cal.Rptr. 283; People v. Powell (1974) 40 Cal.App.3d 107, 120--123, 115 Cal.Rptr. 109 (hearing den. Sept. 9, 1974); and People v. Williams (1973) 36 Cal.App.3d 262, 272, 111 Cal.Rptr. 378.)

Support for defendant's position is found in the opinion of Marshall, J., in Peters v. Kiff (1972) 407 U.S. 493, 92 S.Ct. 2163, 33 L.Ed.2d 83, wherein it recited, 'When any large and identifiable segment of the community is excluded from jury service, the effect is to remove from the jury room qualities of human nature and varieties of human experience, the range of which is unknown and perhaps unknowable. It is not necessary to assume that the excluded group will consistently vote as a class in order to conclude, as we do, that its exclusion deprives the jury of a perspective on human events that may have unsuspected importance in any case that may be presented.' (407 U.S. at pp. 503--504, 92 S.Ct. at p. 2169, fn. omitted. ³ See also Swain v. Alabama (1965) 380 U.S. 202, 204, 85 S.Ct. 824, 13 L.Ed.2d 759; Adams v. Superior Court (1974) 12 Cal.3d 55, 59--60, 115 Cal.Rptr. 247, 524 P.2d 375; and People v. Superior Court (Dean) (1974) 38 Cal.App.3d 966, 970, 113 Cal.Rptr. 732.)

In People v. Goodspeed (1972) 22 Cal.App.3d 690, 99 Cal.Rptr. 696, the court reviewed a contention that a grand jury was improperly constituted because persons unwilling to serve had been excluded. The court observed, 'The rule upon which defendant relies is premised upon the concept an impartial jury must be drawn from a cross section of the community (citations); is based on the conclusion the systematical and purposeful exclusion from a grand jury of a class of persons in the community denies due process and equal protection of the law (citations); applies only to the exclusion of members of an identifiable group in the community (citations); and embraces generally groups identified by race, sex, age, social or economic status, religious belief, educational attainment, political affiliation or geographical background. (Citations.)' (22 Cal.App.3d at p. 703, 99 Cal.Rptr. at p. 705. See also People v. Superior Court (Dean), supra, 38 Cal.App.3d 966, 970, 113 Cal.Rptr. 732.)

The burden of proof is on the defendant to show that there has been a systematic and purposeful exclusion of members of an identifiable group in the community. (Swain v. Alabama, supra, 380 U.S. 202, 205, 85 S.Ct. 824, 13 L.Ed.2d 759; People v. Superior Court (Dean), supra, 38 Cal.App.3d at p. 971, fn. 5, 113 Cal.Rptr. 732; and People v. Goodspeed, supra, 22 Cal.App.3d 690, 702, 90 Cal.Rptr. 696.) On the one hand it is not enough to show that the particular segment of the entire trial jury list from which the trial jury was selected failed to represent all important population concepts. See Swain v. Alabama, supra, 380 U.S. 202, 208, 85 S.Ct. 824, 13 L.Ed.2d 759; and People v. Superior Court (Dean), supra, 38 Cal.App.3d 966, 971, fn. 4, 113 Cal.Rptr. 732.) In the former case the court observed: '. . . a defendant in a criminal case is not constitutionally entitled to demand a proportionate number of his race on the jury which tries him nor on the venire or jury roll from which petit jurors are drawn. (Citations.) Neither the jury roll nor the venire need be a perfect mirror of the community or accurately reflect the proportionate strength of every identifiable group.' (380 U.S. at p. 208, 85 S.Ct. at p. 829.) On the other hand, it has been recognized 'that official compilers of jury lists may drift into discrimination by not taking affirmative action to prevent it. In formulating a panel for a grand jury endowed with the criminal indictment function, officials must adhere to a standard more stringent than mere abstention from intentional discrimination; they have an affirmative duty to develop and pursue procedures aimed at achieving a fair cross-section of the community.' (People v. Superior Court (Dean), supra, 38 Cal.App.3d at p. 972, 113 Cal.Rptr. at p. 736, fn. omitted. See also People v. Powell, supra, 40 Cal.App.3d 107, 133, 115 Cal.Rptr. 109.) ⁴

With these precepts in mind the record in this case may be examined. The requisites governing the periodic selection of the number of trial jurors that will be required are prescribed in sections 205 and 206 of the Code of Civil Procedure. (See Pen.Code, § 1046.) Section 205 provides, 'The selections and listings in each county shall be made at random of persons suitable and competent to serve as jurors, and in making such selections there shall be taken only the names of persons who are not exempt from serving, who are in the...