Rubio v. Superior Court

Decision Date24 April 1979
Docket NumberS.F. 23711
Citation24 Cal.3d 93,154 Cal.Rptr. 734,593 P.2d 595
CourtCalifornia Supreme Court
Parties, 593 P.2d 595 Ralph RUBIO, Petitioner, v. The SUPERIOR COURT OF SAN JOAQUIN COUNTY, Respondent; The PEOPLE, Real Party in Interest.

Paul Halvonik, State Public Defender, Gary S. Goodpaster, Chief Asst. State Public Defender, Mark L. Christiansen, Richard Shapiro and Stephen Berlin, Deputy State Public Defenders, for petitioner.

Richard M. Pearl, Delano, Albert H. Meyerhoff, Marysville, Neil Gotanda, Oakland, Marion Standish, San Francisco, Ronald Vera, Calexico, Peter Schey, Los Angeles, and Tomas Olmos, Delano, as amici curiae on behalf of petitioner.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Roger E. Venturi, Edmund D. McMurray and Willard F. Jones, Deputy Attys. Gen., for respondent and for real party in interest.

MOSK, Justice.

Defendant Rubio is charged in respondent San Joaquin Superior Court with one count of murder. He moved to quash the petit jury venire on the ground that it contains neither ex-felons nor resident aliens, such persons being excluded by statute from jury service. 1 This exclusion, he contended, denies him his constitutional right to be tried by a jury drawn from a representative cross-section of the community, as well as due process and equal protection of the laws.

The parties stipulated to certain facts: e. g., that the offense occurred at Deuel Vocational Institution, where defendant is presently incarcerated; 2 that defendant is a convicted felon "of Mexican descent"; and that pursuant to the cited statutes the jury commissioner routinely excludes all ex-felons and resident aliens from the master list of jurors in San Joaquin County. 3 The trial court denied the motion to quash the venire, finding that neither ex-felons nor resident aliens constitute a cognizable group within the meaning of the representative cross-section requirement.

Defendant now petitions for a writ of prohibition to review that ruling prior to trial. Because of the seriousness of the pending charge and the desirability of trying it before a properly selected jury, we agree that appeal from the final judgment is an inadequate remedy and the petition is proper. (Ganz v. Justice Court (1969) 273 Cal.App.2d 612, 617-618, 78 Cal.Rptr. 348.) On the merits, however, we conclude that the challenged statutes are constitutionally valid and hence that defendant is not entitled to relief.


In our recent decision in People v. Wheeler (1978) 22 Cal.3d 258, 148 Cal.Rptr. 890, 898, 583 P.2d 748, 756, we held that in state criminal prosecutions the right to trial by a jury drawn from a "representative cross section of the community" is guaranteed equally and independently by the Sixth Amendment to the federal Constitution and by article I, section 16, of the California Constitution, and that such right is violated when a "cognizable group" within the community is systematically excluded from jury service. (Id. at p. 272, 148 Cal.Rptr. 890, 583 P.2d 748.) Because there was no doubt that the blacks excluded in Wheeler were such a group, we had no occasion to further define what constitutes a cognizable group within the meaning of the representative cross-section rule. (Id. at p. 280, fn. 26, 148 Cal.Rptr. 890, 583 P.2d 748.)

That process of definition, however, began in Adams v. Superior Court (1974) 12 Cal.3d 55, 115 Cal.Rptr. 247, 524 P.2d 375. The court there stated that "before exclusion may be held improper, there must be a common thread running through the excluded group a basic similarity of attitudes, ideas or experience among its members so that the exclusion prevents juries from reflecting a cross-section of the community." (Id. at p. 60, 115 Cal.Rptr. at p. 250, 524 P.2d at p. 378.) Two requirements must thus be met in order to qualify an asserted group as "cognizable" for purposes of the representative cross-section rule. First, its members must share a common perspective arising from their life experience in the group, i. e., a perspective gained precisely Because they are members of that group. It is not enough to find a characteristic possessed by some persons in the community but not by others; the characteristic must also impart to its possessors a common social or psychological outlook on human events. For example, in Adams the claimed cognizable group was composed of all persons who had resided in the community for less than one year; at any given moment the members of that group could be identified with certainty and thereby distinguished from all other persons in the community, but a majority of this court held that they had not acquired a true "commonality of interest" merely by virtue of the brevity of their residence. 4

Such a unifying viewpoint, however, is a necessary but not a sufficient condition for qualifying a group as "cognizable." The party seeking to prove a violation of the representative cross-section rule must also show that no other members of the community are capable of adequately representing the perspective of the group assertedly excluded. This is so because the goal of the cross-section rule is to enhance the likelihood that the jury will be representative of significant community Attitudes, not of groups per se. When a "cognizable group" is defined too narrowly, it may duplicate another group in the community with a similar experience and viewpoint. Yet if the members of the latter are permitted to serve on juries, even a total exclusion of the former will not impair the representativeness in fact of the list. As the court explained in Taylor v. Louisiana (1975) 419 U.S. 522, 538, 95 S.Ct. 692, 701, 42 L.Ed.2d 690, "The fair-cross-section principle must have much leeway in application. The States remain free to prescribe relevant qualifications for their jurors and to provide reasonable exemptions so long as it may be fairly said that the jury lists or panels are representative of the community."

Turning to the case at hand, we find that the first requirement of the foregoing analysis is satisfied. Ex-felons as a whole have had the experience of being deprived of their personal liberty by the state and, upon their return to the community, of being stigmatized both publicly and privately because of their former status. Similarly, resident aliens as a whole have had the experience of being excluded from the political processes of this nation by its government, and of being the victims of both official and unofficial discrimination by its citizenry. In each instance these experiences have tended to unify the group by giving its members a shared perspective on life in our society.

The Attorney General contends, however, that neither group qualifies because it is heterogeneous in all other respects: its membership cuts across racial, religious, sexual, economic, social, and occupational lines. The argument is fallacious, and proves too much: it could equally well be applied to the women excluded in Taylor v. Louisiana, supra, the blacks excluded in Peters v. Kiff (1972) 407 U.S. 493, 92 S.Ct. 2163, 33 L.Ed.2d 83, and our decision in Wheeler, and the daily wage earners excluded in Thiel v. Southern Pacific Co. (1946) 328 U.S. 217, 66 S.Ct. 984, 90 L.Ed. 1181. In each case the group was likewise heterogeneous in all respects save one but that one, as here, imparted to its members a shared viewpoint that could not be excluded from the master jury list without impairing its representativeness. Indeed, the Attorney General's contention has already been refuted in Wheeler : in suggesting ways in which a party may prove that prospective jurors are being removed because of their group association, we said it may be shown that such jurors "share only this one characteristic their membership in the group and that in all other respects they are as heterogeneous as the community as a whole." (22 Cal.3d at p. 280, 148 Cal.Rptr. at p. 905, 583 P.2d at p. 764.) 5

Nevertheless, we conclude that defendant's claim of a violation of the representative cross-section rule must ultimately fail because he cannot satisfy the second requirement of the "cognizable group" test: it cannot be shown that no other members of the community adequately represent the particular viewpoints of ex-felons and resident aliens. As to the former group, several classes of persons eligible for jury service have had similar experiences of loss of personal liberty followed by social stigmatization. Foremost among these are all convicted misdemeanants who have served time in county jail: the number of such persons in the community is larger than the number of ex-felons who have been incarcerated, and in cases of recidivism or consecutive sentences (Pen.Code, § 19a) their cumulative periods of imprisonment may be no less substantial. Other such groups are comprised of all persons who have been confined as youthful offenders in the custody of the Youth Authority, 6 or have spent periods of involuntary commitment in state mental institutions. 7

The same is true of resident aliens. Their exclusion from the political process and their exposure to discrimination have also been experienced by another group in our society: naturalized citizens. This class rivals resident aliens in numbers; 8 yet the vast majority of naturalized citizens were once resident aliens themselves, and were required to spend "at least five years" in that status. (8 U.S.C. § 1427(a).) Throughout such period, they shared both the disabilities and the resulting outlook of today's resident aliens. Indeed, the discrimination against them was more pervasive, at least on the official level: it is only in recent times that many longstanding restrictions on aliens' access to educational and social benefits, to employment in the public sector, and to the licensed professions have been struck down by the courts 9 or repealed by the...

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