People v. Superior Court (Dean)

• Decision Date: 02 May 1974
• Citation: 38 Cal.App.3d 966,113 Cal.Rptr. 732
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Petitioner, v. SUPERIOR COURT OF the COUNTY OF NEVADA, Defendant and Respondent, Peter Stephen DEAN, Real Party in Interest. Civ. 14023.

Page 732

113 Cal.Rptr. 732

38 Cal.App.3d 966

The PEOPLE of the State of California, Plaintiff and Petitioner, v. SUPERIOR COURT OF the COUNTY OF NEVADA, Defendant and Respondent Peter Stephen DEAN, Real Party in Interest.

Civ. 14023.

Court of Appeal, Third District, California.

May 2, 1974.

Rehearing Denied May 16, 1974.

Hearing Denied June 26, 1974.

Evelle J. Younger, Atty. Gen. by Eddie T. Keller, Deputy Atty. Gen., Sacramento, for plaintiff and petitioner.

Brian Bishop, Asst. County Counsel, Grass Valley, for defendant and respondent.

Brian M. Sax, Oakland, for real party in interest.

FRIEDMAN, Associate Justice.

In October 1972 the Nevada County grand jury indicted Peter Dean on a charge of possessing marijuana for sale. In November of 1973 we denied Dean's petition to quash the indictment; we held that the evidence supporting the indictment had been secured by means consistent with the Fourth Amendment. (Dean v. Superior Court, 35 Cal.App.3d 112, 110 Cal.Rptr. 585, hg. den. Jan. 3, 1974.) We now confront another phase of the pretrial activity.

One ground for Dean's superior court attack on the indictment was a claim that the 1972 grand jury had been selected by means which resulted in exclusion or underrepresentation of identifiable classes of the county population: the poor, wage earners or blue collar workers, the young, and women. In support of his claim Dean had subpoenas issued for the 19 members of the 1972 grand jury. The Attorney General entered the case on behalf of the People and moved to quash the subpoenas. An assigned judge heard testimony of Honorable Harold Wolters, the superior court judge of Nevada County, who described his practices in selecting grand jury panels. ¹ At the close of the hearing the court refused to quash the subpoenas but ordered the 30 members of the grand jury panel to respond to a questionnaire in lieu of appearing in court. The Attorney General then petitioned this court for a writ of prohibition to restrain the superior court from submitting the questionnaire.

The questionnaire, to be answered without revealing the identity of the person responding, is designed to elicit information as to the age and 1971 family income of each of the 30 panel members. A copy of the questionaire appears in the margin. ²

An accused is entitled to inspection and discovery of evidence in the government's hands, subject to two areas of trial court discretion: discretion to curb disclosures harmful to legitimate governmental interests and discretion to demand a 'plausible justification' for the inspection. (Hill v. Superior Court (1974) 10 Cal.3d 812, 817, 112 Cal.Rptr. 257, 518 P.2d 1353; Joe Z. v. Superior Court (1970) 3 Cal.3d 797, 804, 91 Cal.Rptr. 594, 478 P.2d 26; Ballard v. Superior Court (1966) 64 Cal.2d 159, 167, 49 Cal.Rptr. 302, 410 P.2d 838.) An appellate court may utilize prerogative writs such as prohibition to annul or limit discovery orders which constitute an abuse of discretion; they should be reserved, nevertheless, for cases of some public importance. (Pac. Tel. & Tel. Co. v. Superior Court (1970) 2 Cal.3d 161, 169--170, 84 Cal.Rptr. 718, 465 P.2d 854; Witkin, Cal. Evidence (2d ed.) §§ 1050, 1063.)

Here the subpoenas and questionnaires addressed to the grand jury panel would elicit personal information to facilitate an indicted defendant's complaint of grand jury selection procedures. The vulnerability of grand jurors and panel members to this kind of inquiry without a counterbalancing inquiry into the defendant's actual or potential prejudice opens the door to delaying tactics in criminal cases and discourages Californians from undertaking grand jury service. (Cf. City of Carmel-By-The-Sea v. Young (1970) 2 Cal.3d 259, 270, 85 Cal.Rptr. 1, 466 P.2d 225.) The problem becomes more pointed because, according to the record, grand jurors in Nevada County spend 95 percent of their time investigating local governmental affairs, only five percent of their time of the criminal phase of their work. Thus, at the cost of pretrial delay in a felony prosecution, we issued an order to show cause.

Dean asserts a constitutional right to a grand jury composed of a representative cross-section of the county population; contends that he is entitled to obtain evidence in an effort to prove that young adults and persons of low income are excluded or underrepresented as a result of the subjective selection methods employed by the single superior court judge of Nevada County who, under California law, conducts the impanelment process. He points out that the questionnaire is but a step in his challenge to the grand jury; that the challenge is still pending and undecided in the superior court.

The deliberate exclusion of Negroes from grand and petit juries in the southern states was the genesis of the present body of constitutional restraints on impanelment procedures. The federal Supreme Court has repeatedly held that a black defendant is denied equal protection if he is indicted or tried by a grand or petit jury from which blacks have been systematically excluded. (See cases cited, Peters v. Kiff (1972) 407 U.S. 493, 497, fns. 6, 7, 8, 92 S.Ct. 2163, 33 L.Ed.2d 83.) These decisions formed the foundation for a wider body of doctrine, transcending racial discrimination and demanding general community representation on grand and petit juries. Current criteria were summarized in People v. Goodspeed (1972) 22 Cal.App.3d 690, 703, 99 Cal.Rptr. 696, 705: 'The rule upon which defendant relies is premised upon the concept an impartial jury must be drawn from a cross-section of the community (Thiel v. Southern Pac. Co., 328 U.S. 217, 220, 66 S.Ct. 984, 985, 90 L.Ed. 1181, (1184, 166 A.L.R. 1412); People v. Carter, supra, 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); 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 (Pierre v. State of Louisiana, supra, 306 U.S. 354, 356, 59 S.Ct. 536, 83 L.Ed. 757; People v. White, supra, 43 Cal.2d 740, 749, 278 P.2d 9); applies only to the exclusion of members of an identifiable group in the community (Swain v. State of Alabama, supra, 380 U.S. 202, 205, 85 S.Ct. 824, 827, 13 L.Ed.2d 759; In re Wells, supra, 20 Cal.App.3d 640, 649, 98 Cal.Rptr. 1; People v. Newton, 8 Cal.App.3d 359, 388, 87 Cal.Rptr. 394); and embraces generally groups identified by race, sex, age, social or economic status, religious belief, educational attainment, political affiliation or geographical background. (Thiel v. Southern Pac. Co., supra, 328 U.S. 217, 220, 66 S.Ct. 984, 958, 90 L.Ed. 1181; People v. White, supra, 43 Cal.2d 740, 749, 278 P.2d 9; People v. Gibbs, supra, 12 Cal.App.3d 526, 538, 90 Cal.Rptr. 866.)'

In this case the trial court temporarily halted its inquiry into the allegations of discriminatory selection when it directed issuance of the grand jury questionnaire. Consequently there are no findings accepting or rejecting the allegations. Judge Wolters testified that in assembling the 1972 grand jury panel he compiled a list of 30 persons (10 names known to him and 20 persons whose names were suggested by others) whom he believed were qualified by honesty, fairness, reasonable intelligence and interest in community affairs; that he attempted to achieve a cross-section of persons of various ages, purposely seeking out potential panelists under the age of 30; that most of the younger people could not devote enough time; that he paid no attention to the gender of the selectees; ³ that he attempted to find persons of diverse occupations, was not concerned about panelists' income and made no attempt to seek out poor persons. On the 30-member panel were two persons who might be classed as wage earners, a checker at a market and a utility linesman.

The Attorney General views the questionnaire as an invasion of the grand jurors' right of privacy without an overbalancing need for protection of the rights of the accused. He contends that the information sought by the questionnaire is irrelevant; that Dean can succeed only by demonstrating purposeful discrimination over a period of time; that at most the questionnaires will prove only absence of a particular age or economic group from the particular grand jury which indicted Dean; that Dean has no right to have any particular group represented; thus, that the information sought by the questionnaire will not support a claim of purposeful discrimination.

As the Attorney General points out, Dean has no right to a grand jury in which all important population components are represented. ⁴ Weighty authority, moreover, supports the assertion that the accused has the burden of showing 'systematic' or 'purposeful' discrimination. ⁵ A number of courts have thus discounted the significance of statistics bespeaking the socio-economic composition of a single grand jury. Reflecting no more than the age and income levels of a single grand jury, the Nevada County questionnaire is relatively ineffectual to demonstrate systematic, purposeful discrimination against the allegedly excluded or underrepresented groups. We cannot stop at that point, however.

The decisions requiring the accused to show systematic, purposeful discrimination do not square with others which condemn discrimination stemming from negligence or inertia. The latter recognize 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. ⁶

As a consequence, constitutional attack on grand jury composition may be...