EDDIE O‘HARE, Petitioner, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; THE PEOPLE, Real Party in Interest.
L.A. No. 32209
Supreme Court of California
Jan. 2, 1987
Robert F. Gusky for Petitioner.
Mitchell Zimmerman, Sally M. Abel, Fenwick, Davis & West and Geraldine S. Russell as Amici Curiae on behalf of Petitioner.
Lloyd M. Harmon, Jr., County Counsel, Daniel J. Wallace, Chief Deputy County Counsel, and Bruce W. Beach, Deputy County Counsel, for Respondent.
Edwin L. Miller, Jr., District Attorney, Peter C. Lehman, Sally J. Penso and Paul M. Morley, Deputy District Attorneys, for Real Party in Interest.
John K. Van de Kamp, Attorney General, John W. Carney, Frederick R. Millar, Jr., and Tim J. Nader, Deputy Attorneys General, Christopher N. Heard, Cecil Hicks, District Attorney (Orange), Michael R. Capizzi, Assistant District Attorney, William W. Bedsworth and Franklin L. Carroll, Deputy District Attorneys, as Amici Curiae on behalf of Real Party in Interest.
OPINION
THE COURT.-In this proceeding, defendant challenges the jury selection procedure of the North County Branch of the San Diego Superior Court, contending that the selection procedure is invalid insofar as it draws jurors to serve in criminal cases from only a portion of San Diego County, rather than from the county as a whole. After decision by the Court of Appeal, Fourth Appellate District, Division One, upholding the validity of the procedure, we granted review to give further consideration to the important issues presented. After reviewing the matter, we have concluded that the opinion of the Court of Appeal authored by Justice Howard B. Weiner and concurred in by Justice Edward T. Butler correctly analyzes and disposes of the issues involved and we adopt such opinion as and for the opinion of this court. Such opinion (with appropriate deletions and additions) is as follows:*
Eddie O‘Hare, charged by information with kidnapping (
FACTUAL AND PROCEDURAL BACKGROUND
Since 1970, the Legislature has required that the San Diego County Superior Court hold daily sessions in Vista, a city in Northern San Diego
Before the decision in Johnson v. Superior Court, supra, 163 Cal.App.3d 85, North County jurors were drawn from the master list for the Fifth Supervisorial District. In response to Johnson, the system was modified in March 1985 so that all jurors summoned for service in both the North County Branch of the Superior Court and the Municipal Court of the North County Judicial District are now drawn solely from the North County Judicial District.4 The North County Judicial District is larger than the Fifth Supervisorial District, but the increase in size did not change the percentage of jury-eligible Black persons in the jury panel. Although the North County jury panel fairly reflects the jury-eligible Black community as it exists in North County, it does not reflect the percentage of Black persons in San Diego County as a whole.
O‘Hare was arraigned on January 8, 1985, in the North County Branch and entered a plea of not guilty. In March, after initiation of the new jury selection procedure, O‘Hare filed a petition for writ of mandate with [the Court of Appeal] asking to have his case transferred to the Downtown Branch of the superior court. The petition was denied without prejudice on grounds O‘Hare had made no showing the venire would not be reflective of the community. (D002866, order dated Mar. 15, 1985.) O‘Hare then filed a motion in the superior court to transfer venue to the Downtown Branch. The motion was denied with the following findings:
“1. The geographical area served by the North County Branch of the Superior Court and the North County Judicial District is identical.
“2. Jury veniremen for the North County Branch of the Superior Court are drawn from the North County Judicial District. The North County Branch of the Superior Court and the Municipal Court of the North County Judicial District utilize the same jury venire.
“4. The composition of blacks in the community and the jury venire are not disparate.
“5. The composition of the jury venire served by the geographical area of the North County Branch of the Superior Court and the North County Judicial District is identical, not disparate, and representative of the community.
“Therefore, the motion of the defendant to transfer the case to the downtown court house for trial is denied.” O‘Hare then filed a second petition for writ of mandate which was denied [by the Court of Appeal] on grounds there was no abuse of discretion. [W]e granted O‘Hare‘s petition for review of the denial of his petition for writ of mandate. On transfer of the matter, [the Court of Appeal] issued an alternative writ.
DISCUSSION
O‘Hare‘s fundamental contention is that he is constitutionally entitled to a jury drawn from the entire County of San Diego rather than some construct of a northern county subdivision.
I.
The Sixth Amendment right to an “impartial jury,”5 which undergirds most of the constitutional law applicable to jury selection procedures, has been interpreted to entitle a criminal defendant to a jury “selected from a fair cross section of the community.” (Duren v. Missouri (1979) 439 U.S. 357, 359 [58 L.Ed.2d 579, 583, 99 S.Ct. 664]; see also Thiel v. Southern Pacific Co. (1946) 328 U.S. 217, 220 [90 L.Ed. 1181, 1184, 66 S.Ct. 984, 166 A.L.R. 1412]; Brown v. Allen (1953) 344 U.S. 443, 474 [97 L.Ed. 469, 498, 73 S.Ct. 397]; Williams v. Florida (1970) 399 U.S. 78, 100 [26 L.Ed.2d 446, 460, 90 S.Ct. 1893]; Taylor v. Louisiana (1975) 419 U.S. 522, 527 [42 L.Ed.2d 690, 696, 95 S.Ct. 692].) Virtually all the decisions in this area focus on the use of the jury selection process to exclude cognizable groups within that community, such as women, racial minorities or wage earners. (See, e.g., Duren, supra, 439 U.S. 357 [women]; Taylor,
It is important to recognize at the outset that this issue of “community” is related to but nonetheless distinct from questions of “vicinage.” As interpreted by [the California] Supreme Court in People v. Jones (1973) 9 Cal.3d 546, 551 [108 Cal.Rptr. 345, 510 P.2d 705], the Sixth Amendment includes the requirement that the defendant be tried by a jury drawn from an area which includes the location of the crime, or, in other words, “a jury of the vicinage.” (See also Williams v. Florida, supra, 399 U.S. at pp. 93-96 [26 L.Ed.2d at pp. 456-458].) Here, there is no question but that O‘Hare‘s jury would be drawn from an area which includes the location of the crime.
O‘Hare suggests, however, that the Sixth Amendment‘s cross-sectional requirement implies an additional limitation on the government‘s power to define the “community” against which the demographics of the venire are measured. In other words, O‘Hare‘s argument is not a procedural one, questioning the means by which the venire was selected from an agreed-upon community. (Compare, e. g., Duren v. Missouri, supra, 439 U.S. 357 [challenging the effect of state statute automatically excluding women on [their] request]; People v. Harris (1984) 36 Cal.3d 36 [201 Cal.Rptr. 782, 679 P.2d 433] [challenging the exclusive use of voter registration lists in choosing the venire]. [Court of Appeal brackets.]) Instead, he focuses on the notion of “community” itself, asserting that in addition to a means-oriented limitation, the Sixth Amendment also imposes a substantive requirement as to the size of the community which may serve as the source of the venire. Thus, according to O‘Hare, the government cannot create artificially small judicial districts which distort
Unfortunately for O‘Hare, the historical evidence which exists does not support a conclusion that the Sixth Amendment was designed to serve as a substantive limitation on government‘s power to define the community from which the jury venire is drawn. In Williams v. Florida, supra, 399 U.S. 78, the Supreme Court extensively reviewed the developments which led to the adoption of the Sixth Amendment in 1789. The common law “vicinage” concept, which by colonial times had come to be understood as requiring a jury drawn from the county in which the crime occurred, was only partially incorporated into the Sixth Amendment. Congress was concerned that the common law requirement was too strict. (Id., at pp. 95-96 [26 L.Ed.2d at pp. 457-458].) Thus, Williams explains that the Sixth Amendment, as finally proposed by Congress and adopted by the states, explicitly “left Congress the power to determine the actual size of the ‘vicinage’ by its creation of judicial districts.” (Id., at p. 96 [26 L.Ed.2d at p. 458], italics added, fn. omitted; accord Heller, The Sixth Amendment (1951) p. 93.)
As we explained earlier, the cross-section requirement on which O‘Hare bases his challenges is related to but distinct from the concept of “vicinage” as it survived in modified form in the Sixth Amendment. Nonetheless, it would be nonsensical to take away with the cross-section hand that which was given with the vicinage hand. In other words, Williams makes clear that the drafters of the Sixth Amendment intended there should be no limitation on the legislative power to define the confines of the “district” from which jurors in criminal trials are drawn. We could not in good conscience respond by holding that the cross-section requirement, which after all is merely implied by virtue of the Sixth Amendment‘s guarantee of an “impartial” jury, imposes just such a substantive limitation on the legislative branch of government.
It is thus not surprising to find that the starting point for cross-sectional analysis has routinely been the demographics of the territory served by the court or, in a generic sense, the court‘s “judicial district.”8 This is true whether the challenge is to a federal district court jury
It is thus a well-established principle of federal law that a congressionally authorized judicial district or subdivision from which the venire is drawn is not subject to constitutional challenge as being either larger or smaller than the relevant “community.” Decisions of the California Su-
II.
O‘Hare attempts to deflect the force of the historical evidence and distinguish federal precedent by arguing that the creation of local judicial districts within counties is a sui generis issue not encountered in the federal court system where districts nearly always encompass several counties and, not infrequently, entire states. In essence, he asserts there is a constitutionally guaranteed but as yet ill-defined lower size limit for venire drawing areas which the concept of “community” will not permit to be further subdivided. While such a conceptual approach appears to us at least facially inconsistent with the historical evidence discussed earlier, we need not reject the concept in order to reject O‘Hare‘s argument. For even if such a minimum size requirement exists, we are convinced it is not even approached on the facts of this case. [San Diego‘s North County Judicial District is, both geographically and by population, larger than a number of California counties and there is no suggestion that the district‘s boundaries have been gerrymandered to produce jury venires of a particular racial or ethnic composition.]
III.
Finally, O‘Hare argues that even if the Legislature might constitutionally define a judicial district with the same boundaries as the North County Branch, it has not done so. Instead, the branch court‘s boundaries are merely the creatures of a local court rule adopted by the San Diego County Superior Court. Accordingly, the only legislatively defined community in San Diego County is the county itself and the jury venire, to be constitutional, must reflect a cross-section of that community.
To the extent O‘Hare is arguing that only the Legislature can constitutionally draw the boundaries of [a] subcounty judicial district, we have trouble comprehending how O‘Hare‘s constitutional right [] can turn on who is attempting to abridge it. While it is true we accord deference to the views of the legislative branch in matters of constitutional interpretation (e.g., United States v. Curtiss-Wright Export Corporation (1936) 299 U.S. 304, 327-328 [81 L.Ed. 255, 266-267, 57 S.Ct. 216]; Delaney v. Lowery (1944) 25 Cal.2d 561, 569 [154 P.2d 674]), we extend similar deference to the executive department as well (see, e.g., The Pocket Veto Case (1929) 279 U.S. 655, 690 [73 L.Ed. 894, 902, 49 S.Ct. 463, 64 A.L.R. 1434]). It would be a curious comment indeed were we to view the understanding of constitutional rights possessed by judicial officers such as to warrant less deference than we show the legislative and executive branches of government.
Moreover, we think we can assume without considerable controversy that legislatively defined judicial districts may not be subdivided without legislative authorization. In the absence of such authorization, a local court rule purporting to create subdivisions would presumably be “contrary to legislative enactments” and hence not “have the force of procedural statutes” normally accorded court rules. (Shadle v. City of Corona (1979) 96 Cal.App.3d 173, 177; see also
O‘Hare admits that the Legislature has authorized the creation of judicial districts within subdivisions of Los Angeles County in
Thus, excepting the fact that in Los Angeles County the board of supervisors has designated the local judicial district boundaries whereas in San Diego they are designated by local court rule promulgated by the superior court, there is no functional difference between the two branch court systems. In both cases, the entity drawing the boundary lines has legislative authorization to do so.12 No precedent of which we are aware [] suggest[s] that what the Legislature can properly delegate to a local board of supervisors it cannot properly delegate to a local superior court. Moreover, abundant federal precedent including decisions of the United States Supreme Court approves the constitutionality of a congressional enactment delegating to federal district courts the authority to subdivide federal districts into divisions and to draw jurors solely from the division in which the court sits. (E.g., Ruthenberg v. United States (1918) 245 U.S. 480, 482 [62 L.Ed. 414, 418, 38 S.Ct. 168]; United States v. Gottfried, supra, 165 F.2d at p. 364; Zicarelli v. Dietz, supra, 633 F.2d at pp. 317-318; see also Heller, The Sixth Amendment, op. cit. supra, at pp. 96-97.)
While it is true [the court] held in Johnson v. Superior Court, supra, 163 Cal.App.3d 85 that it was improper to limit selection of the venire strictly to the relevant supervisorial district, [that] conclusion was based on the fact that the supervisorial district was considerably smaller than the geographic boundaries of the North County Branch. (Id., at p. 88.) Such a system
We are aware that [the] abbreviated discussion in Johnson contains language which can be interpreted to suggest that the county is the only relevant “community.” Relying on this language, O‘Hare argues that although a branchwide venire is now being used, he is no better off than Johnson was as far as inclusion of jury-eligible Blacks is concerned. [] From a practical standpoint, his argument is facially appealing but as a principle of jury selection, it proves too much. As [] explained, the constitutional cross-section requirement is a procedural and not substantive requirement. Whenever an accused has committed an offense, it will nearly always be possible, simply by enlarging the area from which the venire is drawn, to obtain different mixes of social/ethnic viewpoints and economic classes on a jury panel. However, it is practically necessary to limit the area of draw in some arbitrary manner, even though such limitation obviously restricts or alters jury composition. (See United States v. Gottfried, supra, 165 F.2d 360, 364.) Were the rule otherwise, county boundaries themselves could be challenged as resulting in a venire not fairly representative of the “community.” The issue thus cannot be whether there is disparity between the North County population and the population of San Diego County; rather, the issue must be whether the boundaries of the area served by the branch court constitute a permissible venire. Johnson did not hold that it was not; to the contrary, that decision says a supervisorial district is not proper because it was not the same as the judicial district, and “[a]s such, it cannot be considered the community for purposes of assessing the composition of the jury venire.” (Johnson v. Superior Court, supra, 163 Cal.App.3d at p. 88.) Here, however, we do have a judicial district, originally defined for the municipal court, but by local rules made applicable to the Vista sessions of the superior court as well. Not only does use of this district to draw jurors not violate any precedent, but it appears to comport
IV
It is in a sense paradoxical that the pluralistic nature of our society is at the same time a source of strength and a source of conflict for this state and nation. Courts in particular have been torn between the practical need to recognize differences in race, ethnicity, gender and religion for the purpose of rectifying discrimination and our aspirational goal that such differences are and should be irrelevant. (See generally University of California Regents v. Bakke (1978) 438 U.S. 265 [57 L.Ed.2d 750, 98 S.Ct. 2733]; see also Bakke v. Regents of University of California (1976) 18 Cal.3d 34 [132 Cal.Rptr. 680, 553 P.2d 1152].)
In the area of a criminal defendant‘s right to be tried by an impartial jury of his peers, however, we have firmly and unequivocally rejected the notion that a defendant cannot get a fair trial unless the jury contains some given number of persons sharing the defendant‘s personal characteristics. (Taylor v. Louisiana, supra, 419 U.S. at p. 538 [42 L.Ed.2d at p. 702]; Apodaca v. Oregon (1972) 406 U.S. 404, 413-414 [32 L.Ed.2d 184, 192-193, 92 S.Ct. 1628] [plur. opn. of White, J.].) In fact, given the ever-increasing mobility of our society, the jury which decides a defendant‘s guilt or innocence may have very little relationship to the defendant at all. The constitutional principles which guarantee a local jury require that jurors be selected from an area which includes the scene of the crime, which is not necessarily the same as or even close to the location where the defendant resides.
What the Sixth Amendment does guarantee to every defendant, regardless of his personal characteristics, is a jury drawn from a venire from which no member of the local community was arbitrarily or unnecessarily excluded. Because O‘Hare has not claimed that any cognizable group of persons in the North County Judicial District was excluded from the venire, and because the Legislature has authorized the North County Branch to draw jurors from less [than] the entire county, we hold there is no constitutional or statutory impediment to the use of a venire drawn solely from the population of the North County Judicial District for purposes of the trial of criminal cases in the North County Branch. []
[End of Court of Appeal opinion.]
The judgment of the Court of Appeal is affirmed.
While the Legislature may properly designate a portion of the county as the “community” from which the jury venire is drawn, it has not done so in San Diego County. The branch courts in that county do not constitute autonomous judicial districts, but function as units of a countywide system. The San Diego County Superior Court thus serves the entire county, which constitutes the relevant community. Both the state and federal Constitutions require that jury venires represent a fair cross-section of the countywide population.
I am troubled by the majority‘s casual treatment of a fundamental constitutional right. Relying only on the fact that it has not discovered any substantive limitation on the Legislature‘s power to establish the boundaries of the “community,” the majority leaps to the unsupportable conclusion that judicial administrators are also competent to do so. This position treats the definition of the “community” as a purely administrative function, and ignores the obvious impact on a criminal defendant‘s constitutional right to a representative jury. As Justice Staniforth aptly noted in his dissent to the opinion of the Court of Appeal, “it is constitutionally intolerable to abridge a defendant‘s right to trial by his peers based on an arbitrary, nonrepresentative, bureaucratic choice resting on undisclosed and possibly indefensible considerations.”
The Sixth Amendment guarantees criminal defendants “the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law....” (
Decisions of this court have affirmed this principle. In People v. Jones (1973) 9 Cal.3d 546, 554 [108 Cal.Rptr. 345, 510 P.2d 705], we stated that “[i]t is undeniable that the Sixth Amendment. . allows the Legislature to define the total size of [the area from which jurors are drawn] by defining the size of the judicial districts.” While Jones addresses the vicinage requirement rather than the fair cross-section requirement, it would be anomalous to recognize the Legislature‘s authority to define the area from which jurors are drawn for one purpose and not the other. Thus, the issue in this case is not whether the Legislature is authorized to define the “community” as an area contained within the county, but whether it has done so in San Diego County.
The majority attributes unwarranted significance to the Legislature‘s creation of the North County Branch of the San Diego County Superior Court. (
The Legislature treats the creation of branch courts differently from the creation of judicial districts.
Unlike decisions by the board of supervisors to create new branch courts, decisions to create new districts are subject to legislative review.
Furthermore, local rules make it clear that the superior court branches in San Diego County do not operate as independent judicial districts. Jurisdiction over criminal trials does not lie exclusively in the district in which the crime was committed. All felonies initiated by indictment are heard in the Downtown Branch. (San Diego County Super. Ct. Rules, div. III, § 1, rule 1.3.) Cases arising in the North County Branch may be transferred to the Downtown Branch for “good cause” or upon the supervising judge‘s determination that the “limitations” of the North County Branch make such a transfer appropriate. (Ibid.) Since one branch court may try cases which were initiated in another branch, the branches do not exclusively serve separate “areas” or “communities.”
The majority finds further support in
Ironically, the majority adopts the opinion of the same court which previously held that the Fifth Supervisorial District in San Diego County “cannot be considered the community for purposes of assessing the jury venire.” (Johnson v. Superior Court (1984) 163 Cal.App.3d 85, 88 [209 Cal.Rptr. 425].) That decision was based on two grounds. First,
The majority ignores half of the holding in Johnson and asserts that because the North County area is coterminous with the area from which the jurors are drawn, any previous constitutional defect is cured. However, just as
Neither
The jury venire for state criminal trials may be drawn from judicial districts within the county if the Legislature expressly creates such districts and provides that they will operate as “communities.” However, absent legislative redefinition, the county is the area served by a state trial court and constitutes the relevant community for purposes of assessing the composition of the jury venire. Juries in San Diego County must be drawn from and represent a fair cross-section of the countywide population.
Bird, C. J., and Reynoso, J., concurred.
On February 24, 1987, the opinion was modified to read as printed above.