*1 Sept. S004260. Crim. No. 20879. [No. 1989.] PEOPLE, THE Plaintiff and Respondent, BELL,
RONALD LEE Defendant and Appellant.
Counsel Bell, Jr., Zall,
Frank Defenders, O. and Harvey R. State Public under Court, Brooks, appointment Peter R. M. Supreme Silten and Philip Defenders, State Deputy Public for Defendant and Appellant. General, White, John K. Van de Attorney Kamp, Steve Chief Assistant General, Wilkinson, Matthias, Attorney F. Herbert S. Ronald Martin S. Raster, General, Kaye and W. Eugene Attorneys Deputy for Plaintiff and Respondent.
Opinion Bell, was convict Ronald Lee EAGLESON, J. and appellant, Defendant first degree Court of the County by jury Superior ed in the Contra Costa Code, Raymond attempt (Pen. 189)1 Murphy; murder §§ 211). also robbery (§ and of Benjamin (§§ 187); murder John circumstance under the special that the murder had been committed found 190.2, subd. robbery (former the commission of during of murder § each of those a firearm in the commission (c)(3)(i)); that defendant used in the commis bodily injury he inflicted (§ 12022.5); great offenses and that 12022.7). Finally, robbery (§ murder and attempted sion firearm an ex-felon of a concealable convicted defendant of possession *11 (§ 12021). 2, February was convicted occurred on
The offenses of which defendant murder with circum special Defendant was and convicted of charged 1978. 1977, 316, 4-14, (Stats. pp. under the death law. ch. penalty stances §§ 1256-1262; 190-190.6.) a trial which commenced on Following former §§ 26, 1978, jury October a had convicted defendant of the section prior violation, The charges. but had been unable to reach a verdict on the other trial trial on the firearm granted charge, court defendant’s motion for new a on second trial to the conviction on all counts commenced leading 11, 1978, ver jury December before a new which rendered its guilt phase 21, 8, January dicts on December After a commencing 1978. trial penalty jury January that rendered a verdict of death on penalty phase 1979.
The court denied defendant’s motion of the penalty for modification 2, 1979, (§ 190.4), and on March defendant imposed judgment sentencing Raymond seven-year to death for the murder of to a term for Murphy, years murder attempted Benjamin, of John with enhancements of two years firearm use and three bodily injury, for infliction of and to great years robbery. consecutive term of two and two-thirds for the No term was conviction, for the imposed the court that firearm-possession stating stayed term was permanently. 1 statutory specified Unless otherwise all herein are the Penal references Code. 20, 1978, jury reported 2The foreman had on December that three after ballots had verdict, jury
been unable to reach a and had stated that she did not believe the would be able profit jurors from further deliberations. Some felt follow that further deliberations on the day ing attempted. jury requested should be On December that some exhibits be jury testimony jury p.m. report sent to the room and that of one witness be read. At reached, explanation ed that some verdicts had been but asked for further of the instructions circumstances,, special premeditation, supplied jury on and “count two.’’ The court with agreed they copies questions written of the if ade instructions and to answer further were not quate. evening p.m. returned its verdicts on all counts that at 7:45
Defendant’s is automatic. appeal (§ (b).) subd. In prior opinion 3, 1987, filed on December this court affirmed the judgment all respects. however, Rehearing was granted, when it on appeared consideration of defendant’s petition for rehearing the record on appeal submitted to this court by the Clerk of the Contra Costa County Court differed Superior in pagination, volume designation, and in minor in content from respects that in the result, possession defendant. As a this court’s rejection of defendant’s claim regarding the constitutional of the propriety procedure which his had been selected faulty have rested on a factual premise.
Pursuant stipulation that the parties record possession the Attorney General is complete copies volumes of report- ers’ transcripts included therein made by the clerk of this court shall be deemed the entirety of such transcripts the original record on appeal, record on appeal this court has been supplemented with those copies.
Having reconsidered defendant’s claims in light of the corrected record we appeal, affirm the again judgment.
I The Prosecution Case Raymond Murphy managed Wolff’s Jewelry Store in Richmond. John Benjamin was in the employed store as a driver and A helper. watch repair- man in the working rear of the store on February heard two “bangs” that he thought were the sounds of a car one backfiring, about two other, seconds after about p.m. He completed the work he was doing and then went to the front of the store briefly where he glimpsed someone out the going door. He also saw a young girl in the store at that time. Raymond Murphy counter, was on lying the floor behind the east apparent- ly dead. Benjamin was lying on the floor behind the west counter. A show- case of near rings Benjamin inwas disarray, its sliding glass doors open.
An inventory following robbery-murder revealed that property with a $30,000 value in excess of was missing. Among items a missing number of rings. The assistant general manager which company owned Wolff’s Jewelry Store testified that Wolff’s held the on a copyright “Love Story” ring, approximately of which were in rings Wolff’s stores Bay Area. At trial he identified one such which ring had a break in its size, shank to reduce its and on which the initials “L. B.” had been en- amateur, graved by an 2, 1978, as a ring taken during February robbery. his arrest Larry following Bell That had been found ring possession February 1982. charge on an unrelated the neck. The bullet had been shot side of Raymond Murphy right trachea, vein jugular striking passing severed the external before fracturing gross left a rib. The through lung, lobe of the upper by blood in the injuries hemorrhage, respi- with apparent asphyxiation tree, at with a ratory Benjamin range caused his death. had been shot close three The slug .38-caliber fired at a distance of no more than feet. weapon each victim had been fired from either a .38-caliber special removed from revolver, and a .357-caliber Both could have been fired from a magnum. have been fired from either a although taken from could Murphy a marks were consistent handgun, groove revolver or semiautomatic “Detective with a slug discharged Special” with from .38-caliber Colt father, Bell, two-inch barrel. Defendant’s Richard testified that defendant’s (Richard brother had him a .38-caliber younger Larry given Bell) handgun later, as collateral for a loan in December a week defendant 1977. About Larry told his father that had authorized him to reclaim the Defendant gun. $50, his father paid given gun, and had been which his father had described to an investigator as a Colt with a two-inch barrel.
No evidence or physical fingerprints at the scene linked defendant to the killer, however, crimes. He eyewitness was identified as the an Dorton, aunt, shooting, Dorothy age 14-year-old Ruby who with her Judge, had been in the robbery store the time of the and murder. He was adult, Jackson, also identified Ruby Ernestine the sister of and aunt of Dorothy, who to him as he spoke walked her car toward the parked and, later, jewelry away store minutes saw him walk from the area front of the store carrying she had not seen earlier. plastic bag
Because the strategy Larry defense was to to establish that attempt crimes, Bell had committed the and eyewitnesses that these were biased defendant, with a motive for we implicating describe some detail their testimony and relationships.
Ernestine Jackson had Larry known both defendant and Bell at least years. defendant, She junior attended high high school and school with and had Larry. also attended school with only For some time she had lived and two one-half blocks from the Bell home. She was able to distinguish Larry brothers. was taller and had a lighter than defendant. complexion However, times,” years in recent she had seen defendant “a couple of and Larry “every now and then.”
Ernestine had Jewelry day driven to Wolff’s Store about 4 on the p.m. the crimes to a watch that pick up being Ruby, Dorothy, was repaired. Carter, niece,
four-year-old with car. Alicia another were her in the She in a red parked Ruby zone close to the store and waited while went in to she pick watch. As she waited observed defendant up approaching, window, him, her opened greeted saying you doing, “How’re Ronnie “Ernestine,” her, Bell.” He asked who it was and when she said greeted continued walking jewelry Dorothy toward store. Ernestine then told that defendant man Dorothy’s Dorothy was the who had killed father. then him said that she was to a look the car. going get good left When Ernestine later saw leave carrying defendant the area store street, what to appeared beige plastic be a and white cross the and then bag, corner, run of sight out as he turned a she herself went to the store jewelry Dorothy where told her that men had two been shot. Ernestine called the from a store next door. She later police photo identified of defendant as she had to person robbery. to She also identified him at spoken prior trial. defendant,
Dorothy did not know but was and had aware discussed with family members the fact that he had killed her very father when she was father, She had no recollection of her young. remembering only the funeral. Dorothy she Jewelry testified that had entered Wolff’s Store because she saw that the man had greeted who Ernestine had not walked the store past and concluded he was inside. Defendant waiting helped. was to be Ruby being a man who was out a helped Dorothy writing receipt. over Ruby Ruby walked and told to ask defendant if his name was “Larry.” Ruby did so. Defendant When replied Ruby “no.” went to the watch, back of store to for the defendant asked pay Benjamin show him ring, which defendant Dorothy tried on and returned. went waist, rear join Ruby, at which defendant point gun drew a from his told it,” Benjamin Benjamin, “hold shot and then turned and shot Murphy. defendant, who, Neither victim had made to restrain after attempt he shooting, scooped up jewelry some which in blue put bag bearing name Wolff’s in white Defendant out lettering. walked of the store after Dorothy to some telling “get jewelry.” At the instructions of a woman who store, worked Dorothy pushed then an alarm button.
Dorothy subsequently photo identified a of defendant hesitation without difficulty, or she was for a stating looking of defendant. She photograph at trial testified that she was positive jewelry she had seen in the person defendant, Larry. store was Larry and was not She had in past seen and trial, distinguish could She identified at Larry brothers. two photos taller, and testified Larry also was and lighter had skin. after she had store jewelry enter
Ruby testified that she saw defendant who directed a a blue suit wearing watch to man for the receipt handed Dorothy follow make She saw to payment. her to the rear of the store if defendant his that she had asked Ruby testified defendant into store. Bell,” Ruby “no.” also replied defendant had name was “Ronnie which counter; a a at the remove a to man ring examine and return saw defendant ring he returned the waistband; the man to whom had shoot gun from his defendant; and turn threatened had neither resistance nor and who offered scoop up in the She saw defendant and man store. toward shoot another him tell lettering, and heard bag and it in a white with blue jewelry place some Dorothy jewelry.” “get with their home Larry, both defendant and and
Ruby was familiar with had She had identified a elementary school she attended. which was near and also to distinguish defendant in a was able photograph photo lineup, and She was in Larry, being lighter. positive defendant and the latter taller had jewelry her as the she seen person identification defendant defendant Dorothy Ruby animosity Both and disclaimed toward store. Dorothy’s killing father. that, a 30- The also evidence with the presented exception absence, early February until 10:30 45-minute from afternoon on date, a p.m. Larry of that Bell had been with a woman in motel located Jewelry more than mile from Store. While there the “shot couple Wolff’s The was at a time it up Larry cocaine.” when Bell absent was when period Larry was dark. did have him in gun dark near Bell with the motel room. Evidence was was feet and presented also that while defendant five tall, six inches and at time weighed twenty-eight pounds one hundred arrest, tall, Larry his Bell five and inches and least feet eleven had arms, chest, large big well-defined muscles.
II The Defense brother, Bell, theory Larry The was that primary defense defendant’s had eyewitnesses committed the crimes and had been mistaken for de- fendant. Shomer, a defense witness was Dr. Robert principal psychologist eyewitness
specializing identification the effect of reinforcement attitudes. Dr. Shomer testified suggestion forming changing and/or Ernestine, Ruby, Dorothy as an manner in expert regarding the which defendant, have been influenced their identification of and his belief *15 initially that the witnesses been uncertain whether child had confused and Larry the of the was In of Dr. perpetrator offenses or defendant. the opinion Shomer, the manner in which officers had interviewed these investigating that suggested witnesses to them their belief defendant was the perpetrator and uncertainty. validity was correct resolved that He of the questioned by all eyewitnesses, identifications for a of reasons concluding variety that it was highly unreliable. Ernestine,
Dr. was Shomer’s conclusion based on his observation that killed, Dorothy, Ruby and were all related whom to man defendant had had a capable thus each reason to biased and believe defendant claim they violent acts. Their that bore ill committing feeling defendant no Ruby was unrealistic indicate might strong, hostility. unconscious had chair, told an that investigating officer defendant in belonged the electric was, fact, strengthening Dorothy that she hostile. impression was predisposed identify the as defendant had been perpetrator because she told Ernestine that the she had seen was Ronnie who had person Bell Ruby’s uncertainty killed her father. as identity to the man’s was demon- name, strated her asking jewelry the man store his young teenagers’ testimony is less generally reliable. In this case comments made by a detective which suggested his belief that defendant was the perpetrator them, could have influenced and there their had been testi- discrepancies mony regarding they worn man clothing had seen.
Defendant also evidence presented February that when arrested on above, Larry possessed Bell the “Love Story” ring described but two well. rings Larry other as was not testify called to as witness for the purpose permitting to view him. Defendant’s wife testified that defendant, Larry only an inch half was and a taller than but acknowledged Larry lighter that had skin and was more muscular than defendant. testimony Defendant also presented Boyden, of Thomas that on Feb- ruary about 11:15 p.m., Larry Boyden Bell had accosted Clarence McIntosh they as sat a car. Bell Larry told McIntosh to roll down the a gun window and stuck the window through when McIntosh Larry head, Boyden’s refused. put gun to but McIntosh grabbed gun as Boyden heard click indicating had been trigger pulled. gun similar to an exemplar exhibit. People’s
Finally, that it investigator testified would have been to walk possible Larry from the motel at which Bell February had been staying minutes, Jewelry 1 Wolff’s Store in from to 17 and the manager motel 3½ testified the registration card name bearing Larry Bell’s indicated exhibit, he had 3:04 checked into room 6 at for 3 hours. On a p.m. People’s *16 card, the room registration a copy as had certified witness substituted, the time shown with a “10” crossed out and number had been whether he had left or the time the person did not indicate 1:45. The card as him. rented to was during and the time room gone come III Penalty Evidence Phase was by defendant conduct Evidence three instances assaultive prior 15, 1968, Alcus Dorton. shot and killed On defendant offered. October his defendant’s arm around put Defendant when Dorton expressed anger Dorton, who gun, his and shot get threatened to home and girlfriend. go He push him home and attempted been after Dorton followed drinking, had way home. his into defendant’s fight a fist when May Bobby had Ingram
On defendant got fight, the best Ingram’s Ingram defendant made wife. advances fight had After the apologized. after defendant again and struck defendant in the three day car he a Later displayed pistol. defendant ran to his where a as went to answer through Ingram shots were fired front door Ingram’s window, defendant enter car and Ingram knock. from saw Looking away. drive
In June to sell Violet Clark a revolver which she 1974 defendant offered earlier. She recognized as similar to one stolen from her home two weeks made, it, refused to left the where the offer had been buy later as she bar defendant fired a shot in the her car. direction of
In he head mitigation defendant offered evidence that had suffered two child, as reflected injuries significant that a mental-status examination verbally, and ability brain disturbance in the to retain and reason damage, brain, ability all impaired abnormalities areas of his of which defendant’s think his and actions abstractly. personality This affected permanently in a society. Defendant well structured such setting toward would function as however. prison, in the family
Evidence form of relationships presented of defendant’s testimony his family his sister and wife who the love that expressed him. children feel for
IV Jury Issues Jury Contra Costa County Selection Procedures.
Defendant contends that the which procedure the Contra Costa Coun- ty Jury the pool Commissioner summons from and forms venires of pro- weekly spective jurors assignment for to trial courts results in panels on which Blacks underrepresented, are and that the imbalance is the product a systematic exclusion of Black residents of that On this county.3 basis he argues he was denied his under the Amendment right Sixth to the Constitution, I, 16, United States and article section of the California Con- stitution, by an to trial drawn a impartial jury from cross- representative community. section of the More his claim that the specifically, is evidence he a presented his first a during hearing prior to trial established facie prima violation shifting of the fair cross-section thus to the requirement, People the rebutting burden of that showing.
The both People dispute defendant’s claim that a prima established, facie violation was that the argue issue is one preserved for appeal judgment from the trial imposed following second because defendant did not demonstrate that the selection at that trial procedures were defective that the jury from which the panel petit actually and/or convicted him drawn was was underrepresentative.4
We shall address defendant’s claim the merits. Although, technically, mistrial, the motion at was raised the first trial which ended a the trial terms, arising imprecise 3To avoid the interchangeable confusion from the use we adopt usage proposed respondent. jury “pool” jurors eligible The list of is master compiled year period persons during for the or shorter from which will be summoned the rel period possible jury group jurors evant for service. A is prospective “venire” sum available, moned from made granted, that list and after excuses and been deferrals have assignment “panel.” “panel” jurors A group assigned to a is the from that venire to a court jury try and from which a particular will selected to case. 4 required The petit jury do not contend that defendant was his to show that itself underrepresentative, showing required. was nor was such a A criminal defendant who asserts systematic cognizable prospective jurors exclusion pretrial challenge class of in a to the jury panel jury venire injury need not show that underrepresentative. his trial jury practices injury from such jury selection “is not limited to the defendant—there to the system, institution, community large, the law as an at and to the democratic ideal (Ballard 187, (1946) processes reflected of our courts.” United States 329 U.S. 181, 187, 261]; L.Ed. S.Ct. see also Thiel Southern 328 U.S. Co. [91 Pacific 1412].) Although L.Ed. 66 S.Ct. 166 A.L.R. Ballard and Thiel in standards, statutory departure volved from since selection court has indicated that (Duren applies constitutionally challenges the rule based as well. v. Missouri 579, 587, 664].) U.S. L.Ed.2d 99 S.Ct. trial would be made at first ruled that all motions court thereafter manner in the same and ruled upon to have been renewed deemed second trial. Weekly List Panels Jury 1978 Master
1. Composition of County. Contra Costa first method selection was made
The motion challenging *18 27, 1978, day the second of renewal on October denied without to prejudice 1, 1978, trial, jury after the had first and was renewed on November the the Contra Costa At the on the renewed motion hearing been selected. the in which County jurors testified manner jury regarding commissioner sent the courtroom for jurors are and how the to procured, prospective been jury defendant’s selection had chosen. of The testimony juror
His reveals this selection. undisputed sequence jurors year’s jury for the jury procurement commissioner oversees the weekly the The jurors and on a basis as needed courts. summons pool, the from the Motor jury year compiled Department master list for is cards, Vehicles’ licenses or identification as persons holding list of driver’s “merge” list. a registration computerized well as the voters After lists, a file the supply a creates of names to computer process adequate be necessary qualify jurors number of it will to as for projected persons year. and coming Affidavits are sent to these for return persons completion 1978, 30,000 if In jury to determine for service. person qualified sent, 15,000 and respondents qualified affidavits were were found to be year. on the master list for the placed
When unit is prospective the data advised of number of processing will be a selects the names jurors given Monday, computer who needed for then from master list a random Summonses are sent to using process. was to Monday begin those For of the week defendant’s first trial people. to approximately summonses were sent whom persons, appeared did not at the roll call on October 1978. Two hundred two respond Monday granted had call. Deferrals were prior or been deferred roll of Civil 202”5on grounds hardship to “Code Procedure section pursuant 5 (Stats. Actually, repealed ch. of Civil section 202 had been in 1975 Code Procedure (see (b)), ). 1310 Code of Civil Procedure former section now subd. § § jury year, person upon adopted provided: “The court shall excuse a from service that finding person public jury hardship service entail undue on the or the served would person.” county superior required 201a court of each Code of Civil Procedure former section regulations adopted by “adopt supplementary rules be written rules and to such as county establishing whereby jury procedure of said or Judicial Council commissioner city ju- county empowered grant jury prospective be from service to such shall excuses called or to the Deferral person public. necessarily does not excuse
service, but may postpone service to later date. the reasons for deferral
Among accepted jury commissioner and the members of his staff who made such decisions were medical problems or illness, state, hardships, county business absence from the financial hard ship, inability child care. arrange Transportation problems were considered an aspect of financial The commissioner could hardship. interview a juror deferral and prospective seeking might written require for the claimed basis deferral. Race support and sex the prospective were juror not to be taken into account in granting com deferrals. missioner and his a “very that no policy” juror rejected staff followed firm race, color, because affiliation, religious faith, political social or economic status, or sex. The racial occupation, composition of a particular panel .6 to a trial assigned department is random 23, 1978, The commissioner’s records of the October showed that panel *19 23 persons had not and had not been appeared excused. Second notices had been sent to those persons. The office returned the post summonses sent to 17 as persons undeliverable or indicated that these had moved persons from county. given forty-seven Business was as the reason hardship persons excused; were nine were excused for reasons related to financial hardship; were eight family excused because of or forty-three child care problems; were reasons; excused for medical two were not suffered qualified, having felony convictions; one in Navy; twenty-seven was were on vacation or out of the county, area; students including attending schools out of the one inability excused because of to understand English; “judicial one had a excuse”; and one had a conflicting court appearance. opinion jury qualify rors who in the of the commissioner for excuses under Section 200.” Al- though jury policy commissioner had established an oral and some been memoranda had prepared, hearing policy adopted at the time of the no formal written had been in Contra County. Costa (see §218) Code of Civil Procedure former 246 provided section now further: “At the court, opening day jurors of court on the appear, jury trial have been summoned or summoned; jurors commissioner shall hear the provided, excuses of that it be left to the accept discretion of court to an affidavit of excuse other excuse under Section 200 with- personal appearance juror out a jurors in court of the summoned. The court shall select from panel process this for the voir dire in a manner to insure random selection.” 6 Code Civil required adopt “governing of Procedure former 203 section each court to rules persons jurors. the selection of persons to be listed as available for service as trial The so list court, fairly representative population by ed shall be of the in the area served and shall be upon govern selected a random basis. Such rules shall the duties of the court and its attachés production juror in the .” and use of the lists. . . 204.5, (see (b) 198), Code of Civil Procedure former section subdivision now enacted § 1980, specified jurors placed jury names of to be on the master list shall be selected “[t]he plan commissioner at random from the source lists. The for random selection used writing designed shall be in and shall be to insure the random selection of a fair cross persons residing section of the in the area served the court.”
523 ex- 25 to 30 were persons another Monday roll call morning After ju- reasons, 266 available prospective leaving a panel cused for similar 23, 1978, with was consistent panel with the October experience The rors. hundred week. Of the two any other categories those the excusal rate for week, all, with the possible available for jurors sixty-six prospective trials, including three, for the six to courtrooms assigned were exception 26, 1978, defendant, pro- week. October for the On anticipated that of trial in which defendant’s jurors department were spective assigned was conducted.7 Profile,” County, “Contra Costa A prepared
A document entitled some County Department, containing Planning the Contra Costa That county, of the was admitted evidence. characteristics demographic census, document, county population reflected based on the 1975 70,126, 582,820 or approximate- The of Richmond was 1975. population The Black ly population of the total total percent population. Thus, 45,452, 28,956. 63.7
county was and Richmond was approximately Plan- county lived in Richmond. The of the Black residents of the percent not, however, down the Black did break ning Department report population over, years and those persons age Richmond between below i.e., Black and the commissioner the potential jury-eligible population, study had done no to establish those statistics. believed that defense was correct in his asser- commissioner counsel jury duty
tion that of the who were called for on October persons Richmond, 6.6 were from and 7.5 as- percent percent panel *20 signed defendant’s were to trial from Richmond. jury
The commissioner had addressed each of Monday morning panel jurors that had been he office in prospective assembled since assumed his 23, 1978, Monday, on were a April 1978. He believed that October there In jurors average “few” Black summoned. an potential among persons jurors there ten Black and this week would between five and potential him a average “guess” average week to to be week. As appeared (or weekly of Blacks would be six less than 3 in a percent) panel. number size, in difference the October was its panel slightly been persons customary than usual because more than the had larger summoned.8 7 date, persons, appear subsequently and 32 were Of these several did not on that more or, motion, response challenges in those ac
excused to the court’s for reasons similar to cepted by jury commissioner. Cal.App.3d 8The trial the defendant in Buford County January place approximately in Contra in three months after took Costa 904] Bell’s first trial. The court, county’s considering challenge jury in se a similar Buford 1978-early judicial process operation in late of much of the lection took notice (Id. 291.) above-described evidence on the case. introduced issue this
2. Failed to Make a Prima Showing Systematic Facie Defendant Under Underrepresentation Duren. any
Defendant did not offer evidence other than statistical evidence underrepresentation jury Blacks on over venires a six-month period, testimony and the of the commissioner the manner in regarding which summoned, excused, were jurors weekly and the venires made That up. that, evidence established although county was not with compliance statutory requirements for written policies, selection criteria in use were race, sex, neutral with regard ethnicity, to Defendant religion. did not identify any of the aspect selection as the process probable cause of the Even with disparity. regard to his speculative assertion that defer hardship rals were he responsible, did not offer evidence to suggest these conclude, constitutionally therefore, deferrals were We shall suspect. defendant failed carry his burden of establishing a facie prima case under Missouri, the third Duren v. prong supra, 439 U.S. 364—that this due underrepresentation “systematic exclusion” of Blacks in the jury selection process.
Notwithstanding its length, its forceful articulation of the importance trial right by jury cross-section, drawn from a representative with which we agree entirely, the sole substantive area disagreement between Justice Broussard and ourselves is the “systematic nature of the exclusion” that a defendant must demonstrate to establish facie prima violation of his Sixth Amendment right drawn from a representative cross-section of the community.
Unlike Justice Broussard we do not understand the United States Su-
Court
preme
to have created such a minimal burden that a defendant need
demonstrate only that
has
underrepresentation
occurred over a
period
time,
which the
upon
court must presume that a constitutional defect is
system
Rather,
inherent
unless the People rebut the presumption.
we
*21
conclude, that when a county’s jury selection criteria are neutral with re-
race,
sex,
spect to
ethnicity,
and religion, more is required to shift the
burden to the
The
People.
identify
defendant must
some
of
aspect
the
manner in which those criteria are being
that
applied
(1)
is:
the probable
cause of the
(2)
disparity,
constitutionally impermissible.9
9Acceptance of the dissent’s
th
requirements
impose
formulation of
e Duren
would
unrea
time,
judicial system
sonable costs on
expenditure
the
in
delays
the
of courtroom
in criminal
prosecutions,
expense
People.
every
to
county
the
In
criminal case in a
in which mem
venires,
cognizable
made,
bers of a
underrepresented
jury
class were
challenge
a
could be
held,
hearing
a
People
would have to be
gather
and the
would have to
and obtain evidence to
right
the.
trial
jury
encompasses
of
guaranty
Sixth Amendment
drawn from
jury
representa
trial
right
by
to
impartial
in issue here—a
consid
cases this court
In two
community.10
prior
of the
tive cross-section
for
lists and
jury
master
compiling
in
the
which procedures
ered manner
v.
right. (People
on that
impinge
jury might impermissibly
the trial
selecting
Harris,
v.
list];
master
People
of the
[composition
In Duren creating facie showing, the elements of that prima Court defined preme fair of the “In establish a facie violation prima test: order to three-prong (1) that the group the defendant must show requirement, cross-section community; (2) excluded is a alleged group be ‘distinctive’ venires are selected is juries of this from which representation group in the commu persons fair and reasonable in relation to number such systematic exclusion of nity; (3) that this is due to underrepresentation (Id. pp. in the L.Ed.2d at group jury process.” selection 586-587].) noted, the particular
As we have a defendant need not show that are panel panels or to the court in which his to be selected assigned States, 187, 195; U.S. (Ballard v. United underrepresentative. supra, Co., 217, Indeed, many 225.) Thiel Southern 328 U.S. Pacific cases, are assigned particularly lengthy prosecutions, panels several capital jury, to a courtroom the selection the trial and those during panels venires.11As the weekly Supreme turn have been selected from several inaccurate, aspect the se- establish that the defendant’s statistics were or that there was no constitutionally process impermissible disparity. lection that was either cause though required nothing underrepresenta- All this even more would there was than infringement rights suggest an actual Sixth Amendment tion itself defendant’s occurring. I, right (People v. 10The same under article section of the California Constitution. exists 748].) Cal.Rptr. determining is Wheeler Cal.3d P.2d In case, systematic ju cognizable prospective sue crucial this whether of a class of exclusion coextensive, established, guaranties has been the federal and state trial are rors (See, analysis e.g., identical. v. Harris 36 Cal.3d 48-49 [201 Therefore, 433].) rights guaranteed 679 P.2d our reference to the the Sixth Amendment I, guaranteed also includes those article section 16. *22 11 case, however, the from which his In this defendant's evidence established that venire weekly panel assigned composition typical period had venire over a a of the created several months. 526 Duren, explained
Court in burden show “the the defendant’s is to that representation of in venires which are selected is not group juries [the] from in community; fair and reasonable the persons relation number in Missouri, (Duren . . v. 587], 439 U.S. 364 L.Ed.2d supra, p. at at p. [58 413, 415, added; (9th Bradley Judges 1976) italics see also v. Cir. 531 F.2d 34, 3; (5th fn. v. 1966) 59; Rabinowitz United States Cir. 366 v. F.2d Rubio 93, 108, 734, (1979) Court 24 Superior Cal.3d fn. 10 P.2d 593 Cal.Rptr. [154 Tobriner, 595], J.; dis. v. opn. of Montez Court 10 Superior (1970) 343, 736].) 348-349 Cal.App.3d Cal.Rptr. [88
That the first Duren prong of was established here is undisputed. are Blacks a within v. cognizable meaning of Duren. group (People Harris, supra, 51.) Only 36 Cal.3d the adequacy showing of defendant’s to meet the prongs second third is in issue. satisfy
To the second a prong defendant must show that the number of members of cognizable is not fair and in group reasonable relation the number of in members the relevant community—here Costa County.12 Contra The evidence Monday established that the normal venire included ten between six and 430 Customarily Blacks. prospective jurors Monday were summoned on a appear up make venire 12 adult, accepted population figures Because the court presumptively total rather than Harris, eligible, population figures prima People supra, a in establish facie case v. 36 Cal.3d 36, 55, hereafter, however, we do so here. In cases tried has defendant who access to census demographic figures population or other data that reflect adult challenge must base his on that data. Missouri, part supra, The Harris court relied a footnote in v. Duren 439 U.S. 579, 587], 23 comparison makeup footnote L.Ed.2d which to a referred venire [58 “community.” with relying We believe Harris court erred in on dictum in that footnote, in accepting population figures total regardless availability of the actual of mo- re refined data. The actual basis underrepresentation for the Duren court’s conclusion that cognizable class had showing petitioner been established was the that case “that community slightly the relevant over half of the adults are women.” demographic Where defendant has access percent- to census other data reflect age group eligible, of the relevant presumptively jury who are adult and thus there is no why (See jury challenge reason he should not base his data. on that Alexander v. Louisiana 536, 540, 1221]; 405 U.S. People L.Ed.2d 92 S.Ct. Alexander Cal.App.3d 306]; Buford, People 1201-1202 p. Cal.App.3d eligible at population introduced that the adult Black in Contra [evidence County that, Costa percent.) regard the relevant time was 7.3 therein We observe this presently, approximately percent population County of the Black of Contra Costa is under (U.S. Census, years age (108th Bureau of the Statistical Abstract of the United States ed. 1988) 15)—and jury eligible. thus not If the defendant prima may, has made out a facie prong, case under second course, accurately introduce presumptively jury-eligible evidence to more popu- define the statistics, evidence, lation—e.g., general reliable or other which factor out from adult ex-felons, population figures persons By ineligible—noncitizens, those who are so etc. doing People may disparity suggested demonstrate a lesser than is the defendant’s thereby showing, prima rebut the facie case.
527 in which the week was summoned for number larger Although the week. selected, with regard the experience was jury defendant’s the of venires over typical deferral was reasons for of Blacks and percentage Black number of average eight an therefore Assuming six months. past forty-five persons hundred the two jurors among approximately prospective venire,13 3 over slightly percent would constitute weekly on a Blacks placed at time County venires the of Contra Costa jurors of the on prospective 8 of comprised approximately percent At time Blacks defendant’s trial. reflected these county. disparity of The absolute the total the population 5 was thus figures percent. the representa- of renders disparity degree
It does not that a this appear in relation to venires than fair and reasonable jury tion of Blacks on less However, County. in the of Contra Costa general population their numbers definitively by on either the means yet the has not Supreme spoken Court the limit of disparity permissible which be measured14 or constitutional selected, eligible prospective ju in which the venire of 13Forthe week defendant’s persons 57 rors after and was 266 of the 468 summoned for service—or excuses deferrals (430 average percent. persons), slightly week was less Since the number of summonses mailed approximate eligible prospective jurors placed weekly venires was the number of (57 430). percent 245 of Court, acknowledged by Supreme tests the utilized the 14Severalstatistical have been states, (See by legal suggested lower and the of our sister and scholars. federal courts courts Lists, al., Jury Multiple 65 Kairys Representativeness: A Mandate Source et for 776, 789-790.) Cal.L.Rev. disparity” representativeness the The “absolute test measures the difference between proportion proportion underrepresented category, the of population of the in the and those persons pool underrepresented category. in the In this case is the source or in the the source registration merged Department list Motor Vehicle driver’s drawn from voter disparity suggested hypothetical example card holders. In of absolute license/identification in Black, Kairys, supra, percent percent population if is but 20 30 18-and-over Black, disparity percent percent, list is 30 minus 20 or 10 source absolute Blacks is (Id., 789-790.) percent. pp. Cal.L.Rev. at (439 Supreme disparity analysis Court used an absolute statistical in Duren. U.S. at 588].) Many p. p. approved disparity L.Ed.2d at federal courts have the absolute test prima as the make fair statistical method choice which to out a face cross-section viola- (4th (See, 1431; e.g., 1988) v. F.2d ex rel. tion. United States Cecil Cir. United States (5th 1115, 1121-1122.) 1981) v. Barksdale Blackburn Cir. 639 F.2d complex disparity method—e.g., sig- more Use of tests than absolute “statistical “comparative disparity” distorting pro- nificance" test or the criticized as test—has been (See representation group allegedly very portional small. United States when excluded (1st (D.N.J. 1982) 1984) 21, 24; v. Cir. 726 F.2d United States Musto Hafen 355-356; Kairys, 103.) F.Supp. supra, 65 at fn. The “statisti- see also Cal.L.Rev. involving significance” complex assignment cal test involves mathematical formula division, values, subtraction, roots, taking ultimately square reference to a “nor- “ (See Buford, Cal.App.3d mal Z distribution table or ‘two-taled’ Table." 296-297, 3.) pp. 2 and fns. Court, Although Supreme our review of the cases convinces us that the United States courts, many accepted—without embellishment—a test that other federal state have proportion cognizable group presumptively looks to the difference between the *24 here, We disparity.15 attempt need not to resolve these uncertainties we that since are satisfied defendant has not made facie prima out case by by “systemat under third that is caused prong showing disparity ic” exclusion of Blacks.
Defendant did contend master not that the list was underrepresentative offered it may no evidence to that have been. Instead he suggest fo- venires, weekly cussed on the but even here no evidence offered identi- fying cause of the He now that the probable disparity. speculates alleg- edly in informal manner which deferrals were to hardship granted prospec- factor,16 jurors tive was a but he offered no evidence Blacks sought that granted grounds were deferral of in relative hardship greater numbers “systematic than members of of groups. other His claim exclusion” is based solely on a statistical showing of consistent Defendant underrepresentation. “systematic thus facie assumes that a case of of the under- prima exclusion” may be represented demonstrated than an group nothing more inference that constitutional defect is process. inherent selection Justice Broussard also concludes that a of nature showing statistical this is ade- to meet under quate the defendant’s burden the third of Duren. prong jury-eligible population, scrutiny constitutionally and that in venire under as a permissible disparity prong means which to demonstrate statistical under second test, past any adopt methodology the Duren we have in declined to one statistical Harris, 47, (People 2.) supra, p. exclusion of the v. 36 others. Cal.3d at fn. Broussard, dissenting opinion authority, 15The of Justice without discussion or deems a 5 thus, percent disparity constitutionally significant presumably, “substantial” and so as to clear, however, prong percent meet second Duren. It far a 5 disparity is from that prima prong. satisfies this element of the defendant’s facie case under the second We have jurisdiction no found that so holds. disparity enough It difficult to discern from the case law one threshold of substantial constitutionally significant be deemed prong to under the second Duren of the test. In Alex- Louisiana, 625, v. supra, prior ander 405 U.S. differing a case decided to Duren that it an equal protection challenge discriminatory jury involved allegedly procedures, selection high court indicated it had never “announced mathematical standards for the demonstra- ‘systematic’ (Id. jury pools. p. p. tion exclusion blacks” from at 630 L.Ed.2d at [31 541].) percent disparity seemingly constitutionally significant A 14 absolute was found in that Louisiana, (Alexander 630; supra, p. (1965) compare case. v. 405 v. U.S. at Swain Alabama 202, 759, 766, disparity U.S. percent 380 208-209 L.Ed.2d 85 S.Ct. deemed inad- [13 824] [10 Blackburn, equate]; ex see United States rel. v. 1127 Barksdale 639 F.2d [absolute disparities ranging insufficient]; 4.5 percent Maseny from v. 11.49 deemed United States 183, (5th 1980) insufficient].) percent disparity Cir. 609 190 F.2d than 10 held [less 16 288, People Buford, supra, Cal.App.3d In v. 132 Appeal, considering the Court of after random, disparity existing likely evidence that the at the time this trial was not con that procedure hardship granted might cluded the informal which explain deferrals were 527, disparity. (1989) People Cal.Rptr. As we noted v. Morales 48 Cal.3d 546-547 [257 64, however, 244], 770 presented subsequent P.2d evidence in cases at a time when Buford guidelines adopted written procedures change had been and the reformed reflected no in the (See 1070, (1985) percentage disparity. People v. Cal.App.3d Simmons 1072-1073 [211 60]; (1984) Cal.Rptr. People 622]; Cal.App.3d Cal.Rptr. People v. Pervoe [207 Cal.App.3d Cal.Rptr. 744]; Black 482-483 Jones Cal.App.3d 185].) 1029 [199 statistical evi- acceptance Court’s Neither the Supreme
We disagree. a chance occur- case underrepresentation that the dence rence, itself dem- “systematic disproportion nor the court’s statement interest in a chosen from defendant’s infringement onstrates fn. 26 L.Ed.2d (439 cross U.S. community fair section” *25 representative in Amendment the a Sixth 589]), supports proposition a chance is not disparity evidence that challenge cross-section statistical all burden in situations. meet the defendant’s to adequate occurrence a to establish alone recurring adequate Were evidence disparity statistical of the third of prong guaranty, facie violation of the cross-section prima a facie By prima test as element surplusage. including Duren would be exclusion” “systematic a is caused disparity case demonstration that the clearly Court the underrepresented group, Supreme of members of more. intended to require in in and the court’s holding
The context which the statement quoted in jury being Duran made—that a state which the selection criteria were understanding in the mean- were not neutral—must considered applied “systematic as used that The selec- ing phrase. the court disproportion” which were in use in the State of Missouri when the Duren tion criteria class, women, a to challenge cognizable was made members of permitted Thus, case all jury claim from service. the defendant in that met exemption (1) (2) three of the test: the class was it was prongs cognizable, underrepre- sented, a (3) constitutionally impermissible basis for those excusing class members had been identified as the cause of probable disparity. The evidence statistical tended to show the causal between relationship and the thus disparity impermissible feature. The defendant made out facie as to we by showing case the third both of elements prima prong hold are in the at bench neither. required. Defendant case did decision, Court in a albeit in Supreme has noted recent another context, that in positions special gross statistical requiring qualifications have little value in facie disparities probative establishing pattern or prima “ of discrimination. In such it cannot be assumed that ‘that practice cases all citizens are of a fungible purposes determining whether members ” unlawfully have (City class been excluded.’ Richmond v. J.A. particular _ 854, 887, 706], Croson Co. 488 U.S. L.Ed.2d 109 S.Ct. [102 Mayor League (1974) 415 Equality from Educational U.S. quoting 630, 644, 1323].) L.Ed.2d S.Ct. This observation would appear jury system. with force selection apply equal Therefore, were even we to assume Contra Costa arguendo adult, County jury fairly master list itself was representative pre- county, we could find no jury eligible, population Black sumptively defendant, basis the statistical made re- showing or the evidence and criteria for deferral the garding procedure excusal or commis- use, testified sioner were to establish a facie Sixth prima Amendment through systematic violation exclusion from of Blacks venires. Unlike selection Taylor in Duren and v. Louisiana U.S. procedures L.Ed.2d S.Ct. 692], the criteria for deferral or excusal applied County single Contra Costa did out cognizable were, are, race, group. They neutral with ethnicity, respect religion, sex, etc. Defendant offered no evidence that criteria were those not applied race, sex, evenhandedly ethnicity, religion, without regard economic status.
Nor do we accept proposition inherent in defendant’s claim that *26 constitutionally “systematic exclusion” could be impermissible shown that a demonstrating underrepresentation of class is the cognizable result neutral criteria to on applying grant grounds deferrals of hard- Defendant for ship. that the he speculates, example, disparity exists proved a because of Black large percentage County residents of Contra Costa live Richmond, income, have lower lack average ready than transportation They to courthouse Martinez. qualified hardship deferrals on that however, holds, No basis. case that disparity notwithstanding that results application of neutral and presumptively constitutionally permissible jury “systematic selection criteria a product is exclusion.” The high court has not suggested that the state must create venires that reflect a representative cross-section population. of the The Sixth Amendment forbids the exclusion of a cognizable ju members of class of rors, but it does not that a require venires created neutral selection to procedure supplemented achieve the selection goal of from a represen Cecil, (United tative cross-section of the v. population. States supra, hold, however, F.2d 1447-1449.) We do dissenting not as the of Justice opinion suggests, procedures Broussard that if neutral and criteria are used in the selection those process, procedures on the impact defendant’s a ability jury to select from a cross-section representative never relevant. That is not before us since defendant question failed identify any in the jury criterion used that selection was process arguably manner, or was impermissible applied and while he impermissible speculated that deferrals were he hardship involved neither demonstrated they that caused the nor they established that the basis on disparity which granted constitutionally were impermissible.
Had defendant that a demonstrated number of Blacks disproportionate were deferred on grounds hardship, aspect identified of the them, hardship criteria we used to defer would be called to determine upon in permitting pro interest sufficiently compelling has a whether state impact that basis its justify deferrals on jurors to obtain spective Missouri, 357, 367-368 (Duren v. 439 U.S. venire. supra, of the composition Morales, 527, 548; 48 Cal.3d 588-589]; supra, L.Ed.2d People Harris, 36, 59.) 36 Cal.3d reason to conduct authority, or compelling In the absence of controlling aon solely that are based statistical hearings challenges respond however, then-existing proce- are that the we satisfied showing disparity, (former 1055 et Legislature our jury dures for established challenges §§ Duren, criminal adequately protect with the seq.) comport teaching of the representative from a cross-section right defendant’s drawn population. notes, selection
As the of Justice Broussard dissenting opinion County at the trial did used in Contra Costa time of defendant’s procedures with then in effect. Defendant did not comply respects all the statutes statutory his to the venire on from state challenge departure base however, that argue any departure and does not now from procedure, jury. affected the He relies on the asser- composition procedure based rejecting tion the trial court erred in his Sixth Amendment he failed facie case of challenge. prima systematic Because to establish *27 the jury exclusion class in the selection trial court cognizable process, challenge. denied his properly
V Guilt Phase Issues
A. Prosecutorial Misconduct.
1. to Statement Reference of Informant. Defendant identifies as misconduct numerous statements made the to the in his examination of witnesses One prosecutor argument jury. such statement was made the cross-examination of de- during prosecutor’s Shomer, expert, eyewit- fendant’s Dr. who had offered his that the opinion An ness identification of defendant as the killer was not reliable. informant had told that the had seen of a police possession informant defendant handgun day small the the crime. The statement was on before informant’s included in a had the but the informant police report, parties stipulated would not be In cross-examination the prosecutor called. nonetheless asked forming Dr. Shomer if he had considered the police report opinion, his you I the the stating: Page “And take it that considered where report of a possession witness said that had been observed small-bar- ‘suspect ” the crime.’ cleaning day reled and was before gun weapon objected Defendant that the had violated the prosecutor stipulation, irrelevant, grounds hearsay, highly that the statement was was and was objection The court sustained the and instructed the prejudicial. statement, which the disregard prosecutor reading had finished without objection. acknowledging clearly action was misconduct whether or not it prosecutor’s Dr.
violated the Shomer’s of that statement stipulation. knowledge reliability was not relevant to his of the police report opinion regarding identification. An bemay regarding subject cross-examined expert relates, testimony which his the matter on which he his opinion, bases Code, 721, (Evid. (a).) reasons for his subd. There opinion. § fore, a attack the party seeking credibility may bring expert attention of the material relevant to the issue on which the has expert offered an of which the was unaware which he did opinion expert consider. The of an purpose permissible scope impeachment expert is to call into question testimony. truthfulness of witness’s Impeach (Kennemur ment is not general rebuttal. State of California 393].) Cal.App.3d Dr. Shomer did not offer an opinion guilt. on defendant’s He tes witnesses, tified about the factors that have might influenced the child believed, factors, and that he based on those that the identifications were unreliable. that an unidentified Knowledge informant claimed defendant shortly had been in of a before the murder irrele possession handgun vant to his that the of outside influences on the children opinion impact made their identification unreliable. “The asking deliberate *28 questions calling for inadmissible and answers is misconduct.” prejudicial (People (1971) 368].) Fusaro Cal.App.3d [96 If merely the was to show that Dr. had prosecutor trying Shomer not read all the of as the now he could police reports, argue, easily have done so without if he had considered the the asking particular part of fact, above, that the reports included informant’s statement. In as noted it to ask if he had considered of the pointless part informant’s state ment about the that gun knowledge because would not bear on the witness’s opinion regarding reliability eyewitness testimony. It thus appears that the in prosecutor engaged a deliberate inadmissible and attempt put prejudicial evidence before the that when jury, misconduct was exacerbated he continued to read from the after defense counsel had police report objected. because the pros here egregious
The misconduct was particularly a who was not hearsay statement of jury person ecutor before the put cross-examination, that defend and that statement suggested available for used like that believed to have been ant not a possessed weapon This, murderer, robbery/murder. the eve but was it on of cleaning him his according defendant evidence before the without argues, put It fol Sixth Amendment to confrontation and cross-examination. rights lows, claims, he that a federal constitutional is involved right v. Cali reasonable-doubt standard of reversible error declared Chapman 705, 710, 18, 24 (1967) 386 U.S. L.Ed.2d 87 S.Ct. [17 fornia 1065], A.L.R.3d must be applied.
There is some for defendant’s in decisions of the Unit- support argument Court, ed States but none that misconduct of this holds Supreme expressly nature violates the defendant’s Sixth Amendment In a case rights. involving even more misconduct a egregious prosecutor, guise refreshing recollection of the defendant’s read from a document “said to accomplice, abe confession" a statement the defendant. The court held that implicating case, in the inability circumstances of that the “petitioner’s to cross-examine as to the confession denied him the alleged plainly right [the witness] cross-examination secured the Confrontation Clause.” v. Ala- (Douglas 934, 937, bama 380 U.S. L.Ed.2d 85 S.Ct. The 1074].) answer, court recognized reading, that the and the witness’s refusal to were technically testimony, but reasoned that in the mind of the by the reading testimony. have been the prosecutor might equivalent Again, Donnelly v. U.S. 637 L.Ed.2d DeChristoforo 431, 94 S.Ct. 1868], court recognized prosecutorial misconduct evidentiary puts jury may deny matters before right confrontation cross-examination, but declined to treat lesser error as an invasion of a specific constitutional guaranty. argument misconduct issue was that the suggesting already defendant had in order pleaded guilty to obtain a lesser sentence. every The court emphasized: trial error or “[N]ot infirmity which call might application supervisory powers corres- pondingly constitutes a ‘failure to observe that fundamental fairness essen- ” very tial to the justice,’ and held that the concept case was not one “in which the State has denied defendant the benefit of a specific provision of . the Bill of . . When Rights. specific of the Bill of are guarantees Rights involved, this Court has taken special care to assure that prosecutorial *29 in way conduct no them. impermissibly infringes But here the claim is a that remark prosecutor’s respondent’s about at trial itself expectations so infected trial with unfairness as make the resulting conviction a (416 denial of due U.S. at 642-643 L.Ed.2d at 436- process." pp. pp. [40 437].) Rejecting a Sixth Amendment claim the based court said: “Respon-
534 him
dent does statements have suggest prosecutor’s deprived Texas, of the 380 right (1965). to confrontation. See Pointer v. U.S. 400 But merit, this for own argument simply is without stated his prosecutor no for opinions persons introduced statements made unavailable 643, (Id. at trial.” at fn. 15 L.Ed.2d also questioning p. at See [40 437]. 141, v. 23 People (1979) 396]; Bolton Cal.3d 208 589 P.2d Cal.Rptr. [152 (1985) v. 167 1216 People Blackington 800]; Cal.App.3d Cal.Rptr. [213 v. (1961) 193 360 People LoCigno 354].) Cal.App.2d Cal.Rptr. [14 Here the did before a prosecutor put statement a person unavailable directly trial. The statement did not questioning implicate crimes, however, other, defendant in the and there uncontradicted testimony that had long defendant obtained a from his father not handgun addition, before the crimes. In the trial judge admonished the promptly that it was to statement. disregard prosecutor’s Assuming therefore here misconduct asserted must be treated denial of right as defendant’s cross-examination, in- confrontation and and thus as an impermissible of a fringement guaranty Rights, of the Bill re- specific reversal is not beyond We are quired. satisfied reasonable doubt that this instance v. misconduct alone did not affect the verdict. prosecutorial (Chapman 18, California, 24.) U.S. 386
We will consider
whether
below
the cumulative
impact
several
instances of prosecutorial misconduct was
v.
prejudicial (People Beivelman
60,
521,
(1968) 70 Cal.2d
913];
447 P.2d
v. Watson
[73
818,
Cal.2d
P.2d
“so
243]), or
infected the trial with
[299
unfairness as to make
a denial
resulting conviction
of due process.”
637,
431,
(Donnelly
DeChristoforo, supra,
U.S.
L.Ed.2d
[40
violation,
437].)
“To constitute
due
process
prosecutorial
‘
misconduct must
sufficient
be “of
to result in the
of a
significance
denial
’ .
defendant’s
to a fair trial.”
. .
right
When the defendant
that a
contends
unfair,
prosecutor’s question
fundamentally
rendered his trial
it is impor
tant
‘as
initial
place
matter
context.’
th[e] remar[k]
[Citations.]
sequence of
. . .—a single question,
objection,
events
an immediate
two
curative
]—clearly indicates that
prosecutor’s improper
instructions[
(Greer
question did not
rights.”
violate
due
Miller
process
[defendant’s]
630-631,
483 U.S.
765-766
L.Ed.2d
107 S.Ct.
See
3102].
also Darden v. Wainwright (1986) 477 U.S.
L.Ed.2d
2. Other Misconduct.
In addition to what to have been appears intentional misconduct in read statement, ing from the police informant’ defendant report identifies *30 as miscon he characterizes which by the prosecutor other actions several to some object failed to initially that defendant We observe duct. misconduct. he as prejudicial now claims argument statements and of the “ the correct be to opportunity given ‘the trial court should Because harmful thus, instructions if suitable prevent abuse and possible, ” v. Green jury’ (People the minds of the effect upon [of misconduct] 1, deemed 1, a defendant will be 468]), 609 P.2d 27 Cal.3d if he the matter at trial. waived fails to raise objection to have “[T]he complains all in which defendant initial be decided cases question timely is whether a the first time on appeal misconduct for prosecutorial would, the the harm. If it would have cured admonition objection not, . . . if must then ; must it would court rejected contention on whole record the harm resulted then reach the issue whether (Id. at within the Constitution.” miscarriage justice meaning Cal Rptr. 34. See also v. Malone 47 Cal.3d 36-37 p. these well 762 P.2d We consider defendant’s claims 1249].)17 light settled rules. misconduct, claims
a. additional instances defendant As Dr. law when he that prosecutor argued misstated facts and the all read Shomer was not to offer an because he had not competent opinion had failed deliberately of the that defense counsel police reports; suggested Shomer; and to discuss with Dr. parts reports implied had have additional information that should been considered. prosecutor Shomer; aren’t prosecutor stated about Dr. “His opinions worth He no he wasn’t anything. right has make those because opinions testify, at the scene and he didn’t see he read eyewitnesses] hasn’t [the case, all the police reports in the and he has no to make those right opin technically ions.” This misleading assertion was since the Evidence Code Code, (Evid. permits opinion 801-805), admission of and Dr. expert §§ was, however, Shomer had been as an expert. objection There no qualified to this remark.
After had the police during closing defense counsel criticized Larry for to make a argument failing thorough more into investigation case, in the “He goes Bell’s role at prosecutor responded: length course, apply 17The same rule in should when the defendant asserts the claim as one Miller, volving due process. denial of In Greer 483 U.S. L.Ed.2d 765 [97 misconduct, 630], objection noted the prosecutorial the court both the and the trial court’s jury. responsibili primary admonition The court also observed that “trial counsel bore ty ensuring advantageous that the cured in the client. Once error was manner most to his mistrial, apparent judge grant duty going it became that the was not it of counsel was the (Id. strategy to determine what in his client’s L.Ed.2d best interest.” at fn. 8 [97 p. 631].) *31 536 you why
asks to the didn’t more suppose imagine officers time spend stand, investigating Larry. Tye, Did he ask Detective who was on the what Larry? were made efforts to No. Did he into with Detective investigate go offense, Tye other 30 pages concerning the the Bell which plus report his did, he have I expert deliberately? didn’t his look at Because if he could go into it as I? part opinion, bring maybe his couldn’t out some he things didn’t hear.”18The said: prosecutor also “You don’t know what was in the made, and police you arrest don’t know whether reports, efforts were bring because didn’t them out.” He had earlier referred to [defense counsel] “many, many, many the pages of his police reports” during cross-examina- Shomer, Dr. tion of thus again jury to the that there was addi- suggesting the jury tional evidence that not heard. had true, It as the argues, reports is defendant that to which the police prose- However, cutor referred were not in evidence. defendant’s criticism of the police invited the remark the investigation to attention the calling jury Nonetheless, the existence of an extensive in investigatory the ab- report. sence of evidence the that matters in other than report, those read pages Shomer, by Dr. were relevant opinion, to his it not proper suggest jury jury the or to that “deliberately” ask the to infer defense had counsel withheld about information the offense from Dr. Shomer. The suggestion of the People that the prosecutor’s merely remarks were to remind intended the that Dr. jury Shomer was not an qualified opinion to render because he and, earlier, had read all reports implausible not of the as we have noted was a misstatement of the law.
b. Dr. Shomer had Although already been qualified expert, as the that prosecutor suggested jury he should be in the classified category operators, polygraph and truth serum hypnotists, operators, his attempted challenge qualifications by cross-examination suggesting that an had appellate court found the witness’s unreliable.19There is opinion 18 object point prosecutor Defense counsel did not at the at which the asserted the wit police reports, prosecutor subsequently ness not read all sug had did so when but gested jury. that he had additional information before judge attorney beyond The that if admonished either went evidence heard, disregarded. had were judge comments to be The also admonished counsel to arguments confine their record. 19 fact, qualifications In Dr. questioned Shomer’s not been had the case to which the referred, prosecutor Cal.App.3d Guzman 380 Cal.Rptr. 69]. Appeal simply upheld excluding testimony Court of a decision the trial proffered court grounds testimony expert regarding factors involved was not nec identification essary. Appeal Superior The Court of noted the discussion Ballard Court Cal.2d 1416], rhetorically: P.2d A.L.R.3d asked go allowing testimony, “How far should the poly courts so-called scientific that of such as administrants, graph operators, hypnotists, drug’ general purveyors psy “truth as as well theories, chological jury? Surely to substitute for the common sense of the the answer is ‘not too, here, misconduct deliberately no doubt that the committed prosecutor in an he of the Court of deliberately holding Appeal since misstated *32 have been jury. argument to mislead the of this attempt impact diminished, however, by the trial court’s comment that there are times that Dr. ignored, jury’s when courts should be and the awareness appellate many in in testify Shomer had been to this case but also permitted other courtrooms.
c. The might that defense counsel believe that prosecutor implied defendant was and also that the defense was free to mis guilty, suggested lead the jury. confuse and/or
During his rebuttal
remarked that
argument
prosecutor
defense coun-
issues,
sel had
some time
man
spent
circumstances
“and for a
special
crime,
says
who
that his client didn’t commit the
that must be a waste of
But,
hand,
time.
on the other
he
be worried that he did commit it.” It
might
is
for a
improper
prosecutor
argue
analysis
to the
as an
of the
argument
defense
strategy
defense counsel believes his client is
(See
104,
guilty.
(1963)
Purvis
60 Cal.2d
People
Cal.Rptr.
[33
The People suggest that the remark was not here since the improper belief, prosecutor was not a making factual statement of defense counsel’s but was simply out the “internal pointing disharmony” between the defense theories that the crimes were not premeditated and that the charge against defendant involved identity. mistaken A similar re argument was Purvis, in jected Cal.2d equally here. There unavailing is no inconsistency in denying that an accused was the of an perpetrator offense while simultaneously that matter arguing no who committed it the crime was not premeditated. We note also that while comment on apparent in argument inconsistencies is permissible, defense counsel’s per sonal belief guilt his client’s or innocence is no more relevant than the cases, ordinary in all good or even in the judgment judge or usual cases.’ The of the trial . . . (47 385-386.) must control the absence a clear Cal.App.3d pp. abuse of discretion.” at Although Guzman was criticized this court v. McDonald Cal.3d Cal.Rptr. 1011], holding 690 P.2d 46 A.L.R.4th its basic that the trial court’s exercise of will discretion not be a disturbed absent clear abuse of discretion was reaffirmed. Shomer, testimony We did note there expert the distinction between such as that Dr. psychologist, (Id. 372.) produced scientific evidence a machine. asking After Dr. Shomer place on cross-examination if he would not “in himself the cate- administrators, gory polygraph operators, hypnotists, drug purveyors general truth theories,” psychological not,” “certainly replied to which the prosecutor witness asserted that there “is some opinion guilt phase argument difference of there.” suggested Then he holding that this had been Appeal: “Okay, just couple Court of more comments any on Shomer. I can’t appellate they do better than the court did when his classified testimo- administrators, ny along hypnotists, with drug purveyors truth psychological theories." (See belief of the prosecutor. People Bain Cal.3d 848-849 684, 489 564].) P.2d Inviting jury about speculate such however, belief is misconduct. Here again, there was objection no remark. Had there been one an admonition court that the views of counsel were irrelevant could have avoided possible prejudice.
In closing his and rebuttal argument, the prosecutor commented: “It’s very common thing expect the defense to focus on areas which tend to confuse. That is—and that’s all right, because that’s job. [defense counsel’s] you’re sidetracked, If you’re confused you then won’t be able to bring in a verdict.” He also job said: “It’s his in your eyes, throw sand and he *33 it, times, does a good job of but bear mind at all and consider what said, counsel that job it’s his to man get his off. He [defense wants to has] you.” confuse
Although counsel have broad
discretion
discussing
legal
Beivelman,
and factual merits of a case
v.
(People
supra,
60),
Cal.2d
it is
to
improper
70,
misstate
law.
v. Pike
(People
(1962) 58 Cal.2d
97 [22
664,
Cal.Rptr.
Had counsel believed the jury might misunderstand the prosecutor’s however, meaning, made, an objection should have been and the misleading aspect of the argument regarding counsel’s could responsibility have been by cured admonition. objection No was made.
d. In closing argument, pursuing theory the defense that Larry crimes, Bell was the perpetrator of the defendant’s counsel commented that the senseless nature of the killings might by Larry’s accounted for use of cocaine. In rebuttal the prosecutor stated: you “Those of who have some medical downer, knowledge know that cocaine is a you mellow get on it. It’s not like methedrine you which stokes up you and causes to do irrational acts. Cocaine is a downer. You don’t go out and shoot on cocaine. people love; You make you’re mellow.” factually
The remarks to have been inaccurate20and were appear improp- er evidence related to a matter of they since were neither based on the nor common inaccurate and remarks knowledge. prosecutor’s misleading far beyond suggestion regarding went of defense counsel speculative Larry effect of cocaine on Bell since the to be possible prosecutor purported a scientific fact. Even if were stating improper defense counsel’s remarks evidence, based on the state of the did not they justify prosecutor’s (See v. response. Perry, 789.) Cal.3d at People however, Again, defendant did object remarks. prosecutor’s The impropriety was one that could have been offset an instruction or court, admonition and thus the claim is one that must be deemed waived the failure object.
Finally, reject we claim defendant’s com prosecutor’s ment on Larry defendant’s failure to call Bell at trial was misconduct. Comment on the failure call witness logical proper. Ford (People Cal.3d 754 P.2d Cal.Rptr. A.L.R.4th 1507]; Szeto 29 Cal.3d 623 P.2d *34 213]; Vargas (1973) 9 People Cal.3d Cal.Rptr. 509 P.2d 959].)
3. Prejudicial Impact Misconduct.
In none of the instances of misconduct to which defendant failed object to was the misconduct egregious timely so that a admonition 20The acknowledge incomplete, they that the remarks were but claim were not However, “substantially testimony inaccurate.” summarizing experts numerous People v. Davis Cal.App.3d 817], Appeal Court of not agreement ed their that “cocaine depressant drugs is not narcotic. . . . Narcotics are . . . stimulant, Appellants’ experts . . . activity, testified that as a [¶] cocaine increases brain pressure, body blood temperature, causing and sleeplessness, euphoria appe and reduced [A]mong tite. . . . cocaine’s acute fatigue, improved effects lessened attentiveness and [are] alertness, speed learning, activity enhanced speed and increased motor and with which complex might performed.” Respondent’s tasks be experts in Davis had testified that chronic behavior, hallucination, (Id. cocaine use can lead paranoia.” 257.) to “antisocial cocaine, description Association, a similar Psychiatric For effect of see: American Diagnostic (3d 1987) and Statistical Manual of Mental pages Disorders rev. ed. 145-146: maladaptive may “The fighting, behavior effects impaired judgment, include . . . and inter- occupational functioning ference with social or .... high Intoxication with doses of cocaine may paranoid Curiosity associated with . . . . . . ideation. and bizarre behavior . . . be observed.” Thus, contrary prosecutor argument, assertions of the in his People’s and the claim inaccurate, substantially that those remarks were not depressant. may cocaine is not a It be a “downer” that Larry “mellows” the user. Nor was the evidence that Bell had been shooting cocaine at the time of the offense might inconsistent with the idea that he have shot the victims. would not have cured its We consider then the misconduct impact. which made in objection was whether assessing notwithstanding the admo- Green, given nitions was such that impact reversal is required. (People 1, 34.) 27 Cal.3d That misconduct included: Shomer, a. Improper cross-examination of Dr. that an suggesting court had him appellate testify found unqualified as an and had expert, his analogized expertise to that of polygraph examiners and who persons administer truth serum. The trial court did jury not admonish the that the irrelevant, Court of Appeal holding was or that the had misstat prosecutor ed the holding, only: but said “I hesitate say that I should ignore Appel Courts, late but sometimes we do.”
b. the informant’s Reading statement that defendant had been cle aning small handgun night before the Jewelry robbery Wolff’s Store When shooting. returned to the courtroom after had counsel argued defense motion for mistrial objection to the cross-examina tion, lunch, court announced that the would be permitted go to attention, explaining that other were matters engaging court’s and then said: “The Yancey comments read Mr. have been stricken by the Court record, from the and the jury is admonished to those in all re disregard with the spects them, same force and effect if you as had never heard they are not to be considered by you whatsoever.” purpose
c. Advising jury that there awas which 30-page police report Shomer, defense deliberately counsel did not have read Dr. and which contained information that the prosecutor could otherwise have brought *35 out. The court admonished the jury by that comments attorney either that exceeded the bounds of the evidence were to be disregarded.
While we do not condone the conduct of the we prosecutor, are satisfied that the trial court’s admonitions and were instructions sufficient to offset any that impact conduct might otherwise have had on the verdicts.
The voir dire of Dr. Shomer his regarding qualifications took place in the presence jury of the which was therefore aware regardless case, what may have occurred the Guzman he had been found qualified testify this case. This knowledge, reinforced subsequent instructions regarding the manner in which an expert’s opinion should be treated jury, made it clear jury to the that Dr. Shomer had been found qualified offer expert and the opinion, prosecutor’s argument should be understood as to the that the believed should be going weight prosecutor given to that opinion.21
The given instructions to deliberation also reinforced prior that argument by regarding court’s admonition counsel matters that were not in evidence disregarded. jury must was instructed that it any “must not consider as evidence statement of counsel made during trial,” that it “must never to be true insinuation speculate any suggested witness,” asked a and that matter that had stricken question been was “to you be treated as though extremely unlikely had never heard of it.” It is therefore that the jury disregarded both the court’s admonition and its instructions, and that there was additional evidence of speculated defend ant’s in the guilt or that Dr. Shomer’s police report opinion had been formed without access to relevant evidence. addition,
In the improper cross-examination was directed only to wheth- er Dr. Shomer was qualified to offer an It did opinion. not call into question accuracy of the factors on which his opinion was based. Those factors, which included the possible bias of the witnesses arising out of father, knowledge defendant had killed Dorothy’s were explained to jury which could itself evaluate the weight given to be to the opinion based on those matters.
The most troubling instance of misconduct is the reading infor- mant’s statement that defendant had cleaned a small handgun on the night before the robbery. The trial court had instructed the that it was not to statement, however, consider the earlier, and as noted defendant’s father had testified that defendant took such a from him gun before the long robbery.
We recognize that the jury had been unable to reach a verdict on the murder, robbery, trial, murder attempted counts the prior and the 21 Overruling prosecutor’s objection testimony, expert admission of the the court had ruled that while “there are prosecutor some obvious developed, areas that that I’m [the had] account, sure the will take into . . . background, training based on the witness’ and ex perience, it qualified would seem to me he opinion. Any to offer weaknesses that there opinion process go be in the weight opinion be accorded that rather than the *36 admissibility,. . .” “ prior retiring was instructed to person qualified testify to deliberate that: A is to expert special as an if he knowledge,skill, has experience, training or education sufficient to qualify expert subject him as an on the testimony Duly to which qualified his relates. ex [¶] may perts give opinions questions their controversy in you deciding at a trial. To assist questions, you may it, such opinion consider given any, by with the if reasons the ex expert. pert gives may opinion. who You qualifications credibility also consider the of the conclusive, accept You are not bound expert opinion to give [ ¶] as but should it to weight you to which find it disregard any to be entitled. opinion you You such if find it to be unreasonable.’’
jury in the instant trial at one found itself point deadlocked. We conclude nonetheless that it is not reasonably that a more favorable verdict probable would have been reached absent the misconduct of the and that prosecutor, this misconduct did not render defendant’s trial unfair fundamentally so as to him deny due of law. process We reach the same conclusion in consider- ing cumulative effect of both these instances of misconduct to which made, objection and those as to which there was objection. no Defend- ant was identified as of these crimes perpetrator by two direct witnesses well testimony as as a third witness whose afforded additional circumstan- tial evidence that it he jewelry was who had entered the store and shot the victims. Two of these witnesses had known both defendant and Larry Bell years for several and had hesitancy no in distinguishing the brothers. The third Larry had known Bell and was certain that the person jewelry defendant, store had been Larry.
B. Judicial Misconduct.
Defendant also contends he was denied a fair trial because judge failed to intervene sua sponte to curb the misconduct of the prosecu tor during closing While it arguments. duty is judge “control trial, all . proceedings during and to limit. . the of counsel to argument relevant and material (§ 1044), matters” we do not expect judge correct each instance of misconduct on his own motion. Adcox (People 47 Cal.3d 763 P.2d Cal.Rptr. 906]; Poggi 45 Cal.3d 335-336 1082].) P.2d Counsel are allowed case, considerable discretion presenting just their arguing as opposing counsel are permitted to determine in the first instance whether and when object any perceived abuse of that In discretion. this setting restricted, the role of the is judge somewhat he although must be more than trial, a bystander or umpire duty has a to assure a fair he is not required misconduct, to identify as or correct sua sponte, improper prosecutorial Moreover, argument. because we have determined that the cumulative effect of the prosecutor’s errors in this case was not reversal prejudicial, because of the failure of the judge to have prevented or corrected those same errors sua sponte not warranted.
C. Conviction Violation Section 12021. Defendant was charged with violating section which prohibits person who has been convicted a felony from owning possessing concealable firearm. It was alleged day that on the defendant committed the principal crimes this case he inwas of a and that he had possession pistol, previously been convicted of the felonies of and theft. At trial manslaughter the prosecution produced documentary years that 10 proof earlier defend- *37 Au- committed to Youth manslaughter had been convicted of ant section charge violating defense to the Defendant on no thority.22 put it, was permanently but sentence thereon duly 12021 and was convicted of time for the first that as defendant contended stayed. appeal In his brief on 12021 because he had under section law he could not be convicted matter of Authority manslaughter on the from the Youth honorably discharged been General Attorney stipulated investigation, in 1972. After commitment Au- honorably from his Youth discharged defendant had indeed been that commitment, that may take notice of judicial and that this court thority fact. Welfare and Institutions Code section subdivi-
Defendant relies on honorably dis- every which in relevant (a), part person sion provides all thereafter be released from Authority the Youth “shall charged from the offense or crime for which he or resulting and disabilities penalties to, any . . . including, disqualification she was committed but not limited license, both, by any created other or or employment occupational of law.” provision a con against carrying
Whether the
of section
prohibition
“disability”
cealable firearm is a
within the
of Wel
“penalty”
meaning
fare and
section 1772 is a
of first impression.
Institutions Code
question
There
to be
two
in which the latter terms have
appear
reported cases
been construed. In
v. Navarro
Although holding dispositive appeal, defendant’s alternate contention that his honorable from the discharge Authority Youth relieved him of the bar section 3052. We proceeded also Authority the two statutes. The Youth analyzing policies underlying Act, reasoned, youthful we was intended to protect public subjecting Dorton, apparently shooting 22This crime was defendant’s fatal Alcus father of one eyewitnesses herein.
544 offenders to rehabilitation rather than punishment; retributive such rehabili- education, tation by variety is achieved of programs, including vocational work training, supervised ultimately honorable dis- furloughs, parole, of criminal charge Similarly, record. of the expungement purpose narcotic by addict commitment is to program protect public substitut- ing the addicts for their rehabilitation of and the is also punishment, goal by achieved such methods as with training, parole, and supervised discharge expungement. youthful We concluded that in of the ad- the case narcotic dict, commitment the addict program rehabilitation would promote law, purposes Authority of the Youth hence that such the bar to by commitment section 3052 presented should deemed one of the penal- by ties and discharge disabilities released honorable from the Au- Youth Navarro, thority. v. (People 280-281.) 7 Cal.3d at pp.
The second construe case to Welfare and Institutions Code 1772 section v. Jackson 470], Cal.App.3d Cal.Rptr. [222 There the prior felony defendant was for impeached two convictions which he had Authority been committed to the Youth and honorably dis- involved, charged. Again the court looked to the policies that the reasoning of the rehabilitative Youth Act would purposes Authority to some extent be frustrated if a youthful offender were from own dissuaded in his testifying behalf because of the taint lingering of an offense for which he been had honorably (Id. from the Authority. Youth discharged 711-712.) at pp. Code, 12021,
We undertake a analysis similar here. “Penal section part is (Stats. scheme legislative originally ch. promulgated 145, 221, p. 1) commonly Dangerous known as the Weapons Control § Act. . . . clear intent of the Legislature weap adopting ons control act was to limit as far possible as use of com instruments and, monly associated with criminal activity mini specifically, ‘to [citation] mize the safety danger public arising from the free access to firearms Scott, can be used for crimes of violence.’ v. 24 Cal.2d (People 782 [151 P.2d 517].)” Washington (People (1965) 237 Cal.App.2d 545].) The law Cal.Rptr. presumes the danger greater when the person possessing concealable firearm been felony, has convicted previously and the is not presumption impermissible. (People Dubose Cal.App.3d 849-850 235].) It is evident “the almost ‘burden’ frivolous suffered a convicted felon denied (id. ‘right’ carry 850) concealable weapon” pales comparison suffered, with the true disability example, narcotic addict Navarro, supra, 1 Cal.3d who opportunity was denied the for treatment in the addict rehabilitation program. More while that treatment important, is consistent with and supportive of the remedial of the Youth purposes law, Authority could same not be said of a decision permit youthful *39 of that the prohibition firearms. We conclude carry concealed ex-felons to by released honorable or disabilities 12021 not one of the penalties section conviction hence that defendant’s Authority, and from the Youth discharge is valid. that statute violating of the governing par- in the legislation our conclusion
We find for support release from success- prison, et After ex-felons. 4852.01 (§ seq.) don of adult rehabilitation and a additional lengthy period ful completion parole, life,” “live an honest and upright the ex-felon must during this state which moral good and “exhibit a sobriety industry,” with and “conduct himself a certificate 4852.05), may he the court for (§ petition superior character” If, au- by after law enforcement (§ 4852.07). investigation rehabilitation matter, that the into the the court finds thorough hearing thorities and a to exercise all demonstrated “his rehabilitation his fitness petitioner has it will issue a certificate of of the civil and political rights citizenship,” a full grant pardon. rehabilitation the Governor recommending 4852.13.) But even such a entitles the ex-felon thereafter (§ though pardon rights specifically including to exercise all civil and political privileges, 4852.17), lawful the right any (§ legislation the to own or firearm possess restored, declares that “this shall not be and Sections right expressly if was ever convicted of of the Penal Code shall the apply, person (Ibid.; a a felony dangerous the use of see also involving weapon.” § inmates].) [pardon prison short,
In determined that adult convicted of a Legislature has dangerous-weapon felony subject should be forever to bar of section Governor, regardless of how his rehabilitation. Even the complete V, (art. 8), vested with the the Constitution cannot pardoning power § restore such firearm. The person’s privilege carry implica- concealable tions for the case at bar are clear: because honorable prerequisites from the Youth “a discharge Authority—i.e., good parole” record (Welf. Code, 1772)—are & Inst. much less than the stringent require- § ments for a full we cannot believe the obtaining gubernatorial pardon, Legislature intends such a a benefit that it discharge grant expressly denies to a pardon.
We are aware rejected that the same was a different but reasoning related v. Taylor context 479-480 Cal.App.2d 1203.4, That case dealt with section which that an provides 186]. adult defendant successfully who fulfills the conditions of his probation court for dismissal of the of which he was petition superior charge convicted, and that the will him penalties dismissal release from “all Taylor disabilities” from the conviction. In the Court of resulting Appeal held that the 1203.4 penalties and disabilities released section included bar against of section 12021 carrying concealable firearm. We are not persuaded by court’s attempt distinguish above-discussed statutes limiting but we need pardoning power, formally it: in the disapprove decided, very Taylor next session after Legislature settled the mat- ter amending section 1203.4 specifically declare that dismissal of a after charge completion probation does not to own or permit person firearm, possess prevent concealable his under conviction section 12021.23
D. Assistance Counsel. Ineffective
Defendant contends he was denied effective assistance of during counsel the guilt object because his failed phase counsel to to several instances of prosecutorial misconduct. counsel,
To make a
successful claim ineffective
assistance
i.e.,
(1)
deficient,
defendant
show
must
that
representation
counsel’s
was
it
fell
an objective
below
standard of reasonableness under prevailing profes
norms;
(2)
sional
counsel’s deficient
subjected the de
representation
i.e.,
fense to prejudice,
there is a reasonable
that but for
probability
coun
(Strickland
sel’s
failings
result would have been
v.
more favorable.
668,
674,
(1984)
698,
Washington
466 U.S.
694
L.Ed.2d
104
2052];
S.Ct.
[80
883,
v.
People
336,
Williams
44
(1988) Cal.3d
751 P.2d
Cal.Rptr.
[245
171,
395];
404,
v.
People
Ledesma
43 Cal.3d
217-218
Cal.Rptr.
section 12021 because section 1203.4 and Welfare and Institutions Code section (32 essentially 46.) Ops.Cal.Atty.Gen. Accordingly, accept “are identical." decline we People’s concession of error this issue. keep 24Defendant also claims trial counsel’s failure to from his evidence of prior manslaughter persuaded. conviction amounted to ineffective assistance. We are not Knowledge Dorothy that defendant important had killed Dorton’s father cross-exanti- several committed above that the prosecutor
We have determined record, object. failed defense counsel misconduct to which acts of however, part legitimate were whether the omissions does not reveal Under were, oversights. inexcusable implies, as defendant strategy trial (23 425- Cal.3d reject we must defendant’s contention. therefore Pope 426.)
VI Penalty Issues Phase A. Misconduct. Prosecutorial Penalty Phase.
1. Green in the Application various remarks the pros Defendant as misconduct assigns prejudicial object He failed to arguments. ecutor during penalty phase *41 Green, however, remarks, v. 27 People supra, of these hence under 1, 34, is have of them on right Cal.3d deemed to waived the complain by unless not have corrected they the harm caused could been appeal instructions. appropriate
Defendant circumvent that not by claiming apply seeks to Green it does in trial. He no in but penalty phase capital authority support, the of cites first, in makes the the acts of misconduct Green simply following argument: second, all occurred the the during guilt phase, purpose applying the rule of Green errors not be served it to by applying would guilt phase penalty phase errors. timely objec- for argument requiring is The rationale unpersuasive.
tions at trial to acts of alleged equally penalty misconduct applies The trial given court should be the abuse phase. opportunity correct by effect of prevent any suitable instructions harmful the misconduct. (27 Cal.3d at in p. 27.) nothing language suggests There the Green that intended to holding we limit our in the manner defendant Green urges. Adcox, 207, (See in any the trial. v. 47 Cal.3d applies phase People 494, 258; (1988) v. 47 P.2d Cal.Rptr. Moore Cal.3d 92 762 [252 v. 1218]; (1988) 45 753 P.2d People Dyer Cal.Rptr. Cal.3d [246 !](cid:127)) eyewitness accuracy opinion regarding in nation of the and as a factor Dr. the Shomer’s identification, eyewitness suggested might if we can the since it that all be biased. Even deficient, simply performance conclude that counsel's we cannot conclude that such perfomance subjected probability prejudice: deficient the defense to there is not reasonable kept that the result more if had from the would have been favorable counsel the conviction
jury. argues Defendant next instances “substantial misconduct” prosecutor “automatically fall during penalty phase excep- within the tion to the Green rule because no court can state with assurance that instructions or appropriate admonitions would have cured the harm result- ing from misconduct.” in out Although defendant is correct pointing difficulty the inherent whether misconduct deciding penalty phase trial, could been have cured at we need he not inflexible rule adopt The fact that an error proposes. is “substantial” its does establish that harmful effects could not have been cured in timely fashion. For example, prosecutor may commit substantial error by misstating jury, law to the but the harm may easily be corrected the court. What it does mean is that a reviewing court must exercise caution whether the determining effects of were misconduct curable instruction or admonition.
2. Lack Remorse.
In argument as, his made “I prosecutor such comments might during add nowhere the course of this case has there been one scintilla of evidence of remorse events neither in the question, guilt phase Nothing.” penalty phase. Defendant did not to these object remarks.
He first contends comments constitute error under Griffin U.S. 609 L.Ed.2d 1229], S.Ct. and People California Coleman Cal.2d 1159 248], P.2d Griffin holds that the prosecution may not comment on a defendant’s failure to *42 testify on his behalf. Similarly, own under the Coleman prosecution not suggest that “a defendant’s failure to confess his after he has been guilt found guilty his demonstrates lack remorse and that therefore such failure should be considered as a ground for the death imposing penalty.” (Id. Here, however, 1168.) at p. the prosecutor’s remarks did not amount to Rather, a comment on defendant’s failure his testify to failure to confess. they merely constituted a to statement the effect that remorse—a nonstatu 739, tory in mitigation factor v. (People (1987) Ghent 43 771 Cal.3d [239 82, Cal.Rptr. 1250])—was 739 P.2d absent. Because remorse not a is statu factor, tory comment on its absence is irrelevant and in cases inappropriate in which the defendant not has the acknowledged responsibility killing for (See or otherwise invited the comment. v. 45 People (1988) Thompson 86, 245, Here, however, Cal.3d 124 37].) 753 P.2d Cal.Rptr. there was [246 objection. no Had there been one an admonition could have to pointed out jury irrelevance argument.
3. Predictions Future Violence.
In his closing argument to prosecutor suggested jury that to sentence defendant life imprisonment without possibility would parole
549 said, Instead, defendant he “society.” him from effectively remove not would be in which there society, but one in a “narrower” be placed would clerics, prisoners—whom and fellow as beings—such guards, human other asked the then prosecutor harm in the future. might defendant before future violent acts potential committing for consider defendant’s for error to these remarks assigns Again, his defendant determining penalty. first on appeal. time (1981) Cal.3d 733 v. Murtishaw People on primarily Defendant relies Murtishaw, 738, we fore expert In held that 631 P.2d Cal.Rptr. 446]. [175 and were highly value were limited probative casts of future violence at few matters more imagine prejudicial We “One can stated: prejudicial. an and credentialed testimony expert trial from established than penalty defendant, would be possibility parole, to life without if sentenced (Id. 773.) argues Defendant that com kill at likely again.” p. testimony by like by the dangerousness prosecutor, ments on future witness, comments of not be allowed. Because the should expert expert a neutral nor an party can claim neither who prosecutor, have the for potential prejudice, human behavior do not same predicting is permis Comment on future controlling. dangerousness Murtishaw not from that evidence. if on or inferences to be drawn sible based the evidence Adcox, v. 258-259; Dyer, People supra, 47 Cal.3d (People 81; Cal.Rptr. v. Miranda Cal.3d People Cal.3d actually 1127].) Finally, predict 744 P.2d here did prosecutor violence, merely asked the that defendant would commit future acts of but penal for acts in committing making to consider his such potential ty decision.
Defendant Love Cal.2d also relies held was 33], 366 P.2d which the court it misconduct *43 has a deterrent punishment stronger the to claim that prosecutor capital Love, however, with comments effect on crime than dealt imprisonment. clearly which is an the effect of general capital punishment, about deterrent indi particular basis on which to the death on improper impose penalty Here, the fact comments related obvious vidual. the prosecutor’s defendant in this case prevent particular that the death would the penalty this do not type future acts of violence. Comments of committing from 480, 487-488 (1969) v. Varnum 70 Cal.2d (People violate Love. [75 Talbot, 161, v. 64 553]; supra, 450 see also Cal.2d Cal.Rptr. People P.2d 26, 712.) comments on Dyer, prosecutor’s As in 45 Cal.3d the supra, (See violence in this case future were also improper.25 People Thomp- son, 124-125.) Cal.3d at pp. B. Regarding Instructions Mental Condition. Defendant's Drake, Dr. a neurologist, testified on defendant’s behalf at the penalty He defendant had a that phase. reported cerebral disorder his impaired to think ability abstractly and to foresee the of his He consequences acts. also testified that defendant had blood above damaged vessel his ear produced disturbing constant noise. It was the witness’s expert opin- ion that defendant’s have resulted two neurological problems from injuries likely childhood head and that these were problems to be perma- nent.
The court instructed the that in determining penalty the it should consider, relevant, if or not at time of capaci the offense the “[w]hether ty of the defendant to appreciate criminality of con his conduct or to form his conduct of law was as a requirements result impaired (Italics mental disease (Former or effects of added.) intoxication.” 190.3, factor (g).) Defendant contends that his is a condition § disease,” “mental defect” rather than a “mental and that failing the jury instruct that it could consider evidence of “mental defect” well as as “mental disease” court withdrew its mitigat from consideration the ing evidence of Dr. Drake. point unconvincing. Although such should instruction be given (see
when warranted the evidence and by a requested party People Robertson 33 Cal.3d Cal.Rptr. 655 P.2d [plur. 279] no opn.]), prejudicial error record appears begin of this case. To with, given the instruction here was entirely correct insofar as it allowed jury to consider the effect of “mental disease” on defendant’s mental capaci law, ty. It was taken directly from the language of and there is no claim that its reference to “mental disease” was If improper misleading. defendant believed the instruction was incomplete or needed elabora tion, it was his request an additional or responsibility clarifying instruc tion. (E.g., v. Anderson Cal.2d
414 P.2d such 366].) No was made. request important,
More it is clear from record that the did given instruction not in fact Dr. withdraw Drake’s from testimony consideration. jury’s 25 attorney Defendant also claims he was denied effective assistance of counsel because his *44 object foregoing alleged prosecutorial failed to to the of penalty instances in the misconduct misconduct, phase. Because we find no such the claim without For the merit. same reason point there is no merit in defendant’s additional that the trial court have its should acted on alleged own to prosecutor. motion “curb” the misconduct of the “men- condition as First, to defendant’s never referred Dr. Drake himself injuries defect,” defendant’s head terms that specific in more tal but testified in various resulting in brain his “pathology” a certain have caused Second, never ar- the prosecutor and “abnormalities.” behavioral physical it is a because disregarded should be mental condition gued that defendant’s contrary, the issue as the he stated than a “disease.” On “defect” rather “would make it damage” brain that “organic had whether defendant being challenged being." He then a normal human for him to act as impossible insufficient, under- to seeking but testimony Dr. as irrelevant as Drake’s not inconsistency. lack of foundation as grounds mine it on such common turn, testimony in arguing Drake’s heavily on Dr. In counsel relied defense affected seriously that has mercy organic damage of “the brain because in fixing instructed that Finally, jury also judgment.” Ronnie’s trial, and in in the all the evidence introduced weigh it should penalty while whether acted “under consider defendant particular should cir- any other mental or emotional disturbance” influence of extreme It is inconceivable “extenuates the of the crime.” gravity cumstance that testimony, argument, heard juror, such having reasonable instructions, he consid- have that was somehow barred from could believed Drake, condition, by Dr. in deciding defendant’s mental as described ering the issue of penalty. by
C. Factors Not Shown the Evidence. Mitigating to Reference No. enumerates 10 in aggravation Former CALJIC 8.88.1 factors by to considered “if in mitigation jury making penal be applicable" ty the court erred this list reading decision. Defendant contends entirety, factors that were deleting mitigating factors its instead four not the evidence this case. shown First, clearly
The contention is the instruction states unpersuasive. the case. is to consider such factors as are applicable Second, each jury’s factor is relevant to the consideration mitigating subject that the it consider- Legislature proper sense has identified as Thus, ation in the its penalty. hearing selection of an appropriate collec- entirety merely factors the receives not mitigating list case, may may tion but is applicable of circumstances that also other factors relevant to recognize mitigating and evaluate helped Williams, 883, 959-960.) Cal.3d sentencing (People decision. however, the entire list of reading
Defendant that the complains, factor that was not applicable factors allowed the discuss each prosecutor case factor as an present mitigating this and to absence such we held that would be aggravating Although argument factor. such *45 (1986) in improper Davenport Cal.3d 288-290 [221 794, 710 861], P.2d did make prosecutor not that contention Instead, in the merely case bar. he reviewed the on the mitigating factors list and to show that each was either or He attempted lacking unimportant. never a characterized absence a factor factor expressly mitigating as aggravation, unlikely it is would have his brief jury interpreted Thus, comments about the in that inapplicable mitigating factors manner. there no error in reading was of former CALJIC No. 8.88.1 or on the prosecutor’s mitigating comments factors included that instruc- tion.
D. Jury Court’s a Inquiry. The Response After less than two hours of deliberation the jury presented the court (1) with a note whether the asking verdict must be unanimous and penalty whether, (2) “if we automatically on the death we disagree penalty, go do life The court imprisonment?” replied jury that either instructing verdict—death or life imprisonment without be possibility parole—must unanimous, verdict, jurors if the are unable to reach a unanimous asked, they so inform must the court. The foreman “What then?” happens answered, and the court jury. “That would not be of concern to the That would of concern to the court.” The court went on to that explain “If the is reach jury you unable to a verdict and have oppor- exhausted the you tunities of discussion and feel further that discussion would longer no verdict, be beneficial to the jury, you have been unable to reach a then let me know On that.” that the ascertaining jury wished continue deliberating, the court allowed it so. day to do The next the jury returned a death. verdict of 190.4, (former
The in effect at the time this legislation (b)) trial subd. § if provided jury a agree unable to on would penalty court a impose sentence of life without Defendant parole.26 contends the court the jury should have told this statutory and that its provision, failure do so a arbitrary created risk of decisionmaking by injecting “extraneous irrelevant considerations” into the deliberations. But the “considerations” defendant has mind are pure conjecture: he speculates verdict, that the if jurors might they have believed that could reach a (or either the penalty case) the entire phase perhaps would have to be retried, court would impose sentence of life with possibility The parole. point unconvincing. instruction given—that penalty initiative, 26Today penalty jury law Under is different. the 1978 death if the is unable to deadlocked, agree penalty impanel jury; the court must a new if the is also second impanel impose court has imprisonment discretion to a third or to of life sentence 190.4, (b).) possibility parole. (§ without subd.
553 law, defendant did unanimous—correctly stated verdict must be legal on the conse educate the when the refused to court complain v. Bel (People was not error. That refusal of a deadlock. quences possible 126, 744, 310]; 755 P.2d (1988) Cal.Rptr. 45 Cal.3d 813-815 montes [248 148, 480, 749 511-516 (1988) Cal.Rptr. v. 44 Cal.3d Kimble People [244 803].) P.2d
E. Burden of Proof unusual and cruel process contends the due
Defendant and/or require the federal and state Constitutions clauses of punishment doubt that beyond find a reasonable be instructed that it must capital jury death is the mitigating factors and outweigh factors aggravating under both the 1977 rejected We have this contention appropriate penalty. Williams, 883, 960; v. 44 Cal.3d legislation supra, death penalty (People 281, 142, v. 25 599 P.2d (1979) Cal.Rptr. Frierson Cal.3d 180 People [158 Malone, 1, 59; v. 47 Cal.3d (People and the 1978 initiative 587]) supra, 849, 1222, 42 1285 729 P.2d (1986) Cal.Rptr. v. Allen Cal.3d People [232 115]).
F. Review. Proportionality his
Defendant contends his death sentence disproportionate 34 (1983) v. Dillon meaning People individual within the culpability 441, 390, re 697], Lynch and In Cal.3d 477-482 668 P.2d Cal.Rptr. [194 217, 410, he (1972) 8 Cal.3d 503 P.2d But Cal.Rptr. 423-429 [105 921]. claim, analysis no the facts this and our persuasive support offers of the record it. reading refutes
He next death violated argues legislation 1977 penalty it did not provide cruel unusual clause because punishment and/or rejected “intercase” claim both review. The has been proportionality v. 465 United Court Harris U.S. 51-53 Supreme (Pulley States Frierson, 29, 40-42, v. L.Ed.2d this 871]) (People S.Ct. court 180-184; v. 28 Cal.3d supra, People Cal.3d Jackson 149]), 618 P.2d and it merit under the 1978 also lacks Allen, 1285). initiative 42 Cal.3d at (People supra, Finally, violated the urges legislation defendant that the 1977 clause because it denied to defendants equal protection capital compara tive granted sentence review that is defendants section noncapital (f). rejected We an identical claim as to the 1978 initiative subdivision Allen, 1286-1288, are reasons pages Cal.3d at our equally applicable legislation. is affirmed. judgment
Lucas, J., Panelli, J., C. concurred.
KAUFMAN, J., Concurring.
I concur
in the
judgment
most of what is stated
the majority opinion, includ
ing
satisfy
that
has
defendant
failed to
the third
of the Duren
prong
test
(Duren
579,
Missouri
In a recent United States
Court decision
with a
Supreme
dealing
minority
subcontracts,
set-aside
for
provision
government
a
of the
majority
high
discrimination,
court made
that to be
a claim
plain
relevant to
of
statistical
data must
be based on
population,”
having
“relevant
those
persons
essential
qualifications
(City
class claimed
have been excluded.
of
854,
Richmond v.
J.A. Croson Co.
The Court Appeals that had held that city’s case set- percent aside was arbitrarily chosen it was tied to minority because the total popula- tion of Richmond “was not minority tied to number of subcontrac- Richmond, tors in or to any (City Richmond other relevant number.” _ at U.S. L.Ed.2d at p. 877].) The Court Supreme agreed. In part III B the opinion, Justice O’Connor for the court speaking
stated;
on the
“Reliance
the number
disparity
prime
between
contracts
minority
awarded to
minority
city
firms and the
of Rich-
population of
mond
. . . misplaced.
is
doubt
gross
There is no
statistical
‘[w]here
shown,
disparities can
a
they
alone in
case
proper
may constitute prima
VII. Hazel
under title
of discrimination’
or practice
facie
proof
pattern
States,
299, 307-308, 53 L.Ed.2d
433 U.S.
Dist. United
wood School
qual
(1977).
special
But
is
clear
equally
“In the
training,
minimal
statistical
positions
positions requiring
compari-
level
or
the racial
of
racial
of an
workforce to
composition
employer’s
sons
of a
of
pattern
of the relevant
composition
population
probative
States,
324, 337-338,
U.S.
United
discrimination. See Teamsters
(statistical
minority
between
L.Ed.2d
“In this not even know how does work in subcontracting relevant market are to undertake qualified prime v. Keip, Ohio Contractors Assn. public projects. Compare construction minority at 171 on businesses in the State com (relying F.2d of percentage minority firms pared purchasing of state contracts awarded percentage city Nor what of total set-aside.) percentage in does the know upholding minority firms receive as subcontractors on city construction dollars now . . any let . Without information on minori prime city. contracts [¶] evaluate ty subcontracting, impossible it is participation quite simply expenditures. in the minority representation city’s overall construction city “The relied on evidence that MBE mem- District Court also extremely in local was low. stand- bership Again, contractors’ associations in the local alone this evidence is not discrimination ing probative industry. . . . construction relevant, minority to be membership
“For low these associations MBEs for member- city eligible would have to link it to the number of local If the ship. disparity statistical between and MBE eligible MBEs member- ship were great enough, discriminatory inference exclusion could Richmond, . . .” (City arise. 488 U.S. at pp._-_ L.Ed.2d at pp. 886-888], added.) first italics service, Similarly case at bench adults are eligible for but defendant attempted systematic has to make a facie prima showing exclu- sion of Black from persons jury venires on the basis of statistical data gross i.e., not based on the relevant “jury but population, eligible rather persons,” on the total Black population of Contra Costa County.1 systematic
No rational inference of exclusion can from the arise statistics Here, was, presented no facie case made it prima defendant. be,
in the future it will burden of defendant make out a prima facie case relevant presenting evidence based consisting statistics the “relevant population,” persons eligible for service. *
ARGUELLES, J., Concurring Dissenting. I concur majority in the opinion respects, all with the exception its affirmance of defendant’s conviction violation of Penal Code section *49 (hereafter 12021 12021), section of a firearm possession by concealable an ex-felon. On that I conclude that defendant an point, was not “ex-felon” for of the 12021 purposes section because he had obtained an charge honorable discharge from the Youth Authority under Welfare and Institutions Code (hereafter section 1772 1772) section following manslaughter his 1972 con viction. expressly Section 1772 that such an provides honorable discharge shall release a “from all person penalties resulting disabilities from the committed,” offense or which crime for he or the Attorney she General, in nearly a formal opinion years issued ago, specifically con cluded that section 12021 is “penalties one of the disabilities” which an dischargee (See honorable virtue 1772. relieved section Ops.Cal.Atty.Gen. 45-46 (1958).) Legislature later Although amended the somewhat analogous provisions of Penal Code section 1203.04—which the effect of a after the govern dismissal success charges ful completion of that a probation—to Penal Code section 1203.4 provide dismissal shall affect a adult not status discharged probationer’s for pur (Stats. 1961, poses section 12021 the Legislature ch. p.3744), § yet has not made a similar in section 1772. this change While be an future, oversight that Legislature may want to cure in the until the Legislature I we provision amends believe must section 1772 as apply it out, majority points 1As the percent there was that of the evidence about 38 total Black population were minors. * Supreme sitting Retired Associate Justice of the assignment Court under the Chair person of the Judicial Council. Indeed, Attorney Ias read the interpreted. been currently reads and has that, brief, lan- in of the current virtually light he conceded General’s has language, similar construing section 1772 and the authorities past guage be reversed.1 12021 conviction must defendant’s section reversed, I section 12021 conviction must While conclude defendant’s at the defendant prejudiced believe this error could have I do not phase true under the court’s penalty it is phase. Although penalty considered the section theoretically have might instructions factor, that the did not argue as aggravating prosecutor conviction as a significant view the conviction possession-of-a-firearm should of death subsidiary impose penalty which should lead it to even factor indeed, the never prosecutor than life possibility parole; rather without penalty argument even mentioned the section conviction his phase from in this case stemmed at all. Because defendant’s principal culpability than simply wrongful violent use of a firearm to kill the victim rather his his de- discussing of the and because the weapon, prosecutor—in possession fendant’s the numerous instances past conduct—strongly emphasized man- actually which defendant had in the used a firearm a violent past ner,2 in this my jury’s there is view no risk that the determination penalty case was influenced the erroneous improperly possession-of-a-firearm conviction.
Accordingly, while I dissent from the affirmance of the section conviction, I concur in all aspects majority opinion, including other the affirmance of judgment. the penalty us,
MOSK, J. When I dissent. this cause was before I conclud- originally ed in the opinion prosecutor’s court that misconduct prepared serious, guilt did phase, although subject defendant to prejudice. *50 closely Having considered the after we I question again granted rehearing, from depart my must former view conclude that the cannot misconduct be deemed harmless. identity
The crucial issue at trial was the of the person who committed murder, murder, robbery Jewelry the crimes of at attempted Wolff’s 1 issue, Attorney supplemental part In a in states: “Al brief directed this the General existing authority directly reasoning though point, supports view no case on the best the possession apply restrictions section 12021 that the on firearm contained within do not dischargees.” honorable 2 notes, majority opinion penalty presented phase prosecution at the evidence of As the the violently preceding used a three incidents the instant homicide in which the defendant had 1968, (2) (1) killing shooting firing firearm: his of Alcus in his three shots Dorton through Bobby Ingram’s resulting wounding In the front door of residence in the Vicky angry gram, firing apparently his at was of a shot Clark in because he purchase gun him. over her refusal to from Store February on 1978. The set out prosecution to establish that defend- ant the perpetrator through testimony eyewitnesses. of three For its part, the defense attempted to show that defendant was not involved. It introduced evidence pointing to defendant’s brother as the culprit. Perhaps more important, presented it Dr. expert opinion of Robert Shomer challenging reliability eyewitness testimony in general and specifically eyewitness testimony relied the prosecution. demonstrates, As the discussion the majority opinion prosecutor engaged misconduct that can only be characterized as deliberate and egregious.
For example, reading from a police report as he Dr. posed question to cross-examination, Shomer on the prosecutor put before the a double- hearsay statement an unidentified informant that defendant “had been observed in possession of a small-barreled gun and was cleaning weapon day before the crime.” The prosecutor’s act was intentional and plainly just as plainly improper.
Also, the prosecutor suggested that in v. Guzman People (1975) 47 Cal.App.3d Cal.Rptr. 69], Court of Appeal implied Dr. Shomer’s on the opinion unreliability eyewitness testimony was not cross-examination, worthy of belief. During he asked Dr. Shomer: “[D]o you agree the Guzman your testimony should be placed [with court] administrators, the category of polygraph truth operators, hypnotists, drug and purveyors general psychological theories?” In closing argument, he “Okay. remarked: Just more couple comments on Shomer. I can’t do better than the Appellate they Court did when testimony classified his along administrators, with hypnotists, truth drug purveyors general psycholog- ical theories.” The prosecutor’s clearly characterization was immaterial to the present even proceeding—and clearly more in Guzman, lacking any support whatever in (see opinion Guzman court People 384-386). Cal.App.3d pp. course,
Of prosecutorial misconduct if requires subjected reversal it (See, defendant to prejudice. e.g., Bolton Cal.3d 214-215 396].) Generally, 589 P.2d prejudice is not “ *51 cause, presumed but is determined ‘after an examination of the entire the v. including Watson (People Cal.2d evidence[.]”’ VI, 4½, Const., 243], P.2d quoting former art. Cal. of the predeces [299 § VI, sor of current 13.) art. Prejudice is found when “it is reasonably § probable that a result more favorable to the would have appealing party Watson, been reached in the absence of the error” at (People 836)—or p. differently, stated when it is reasonably the probable error of cases reveals A review our the outcome. contributed to
marginally meaning the same substantially used here bears as probability” “reasonable aof component the prejudice to define the identical phrase employed as A “reasonable of counsel. ineffective assistance constitutionally of claim than not altered likely “more that the error probability is not probability” (Strickland 466 U.S. Washington in the case” the outcome 674, 697, “a probability but 2052]), simply 104 S.Ct. L.Ed.2d at outcome” undermine confidence {id. sufficient to 698]). L.Ed.2d at p. view, case prosecutor this my
In the misconduct committed with, identity To the issue of was begin must be prejudicial. considered To the point. The record of the trial establishes only crucial but also close. sure, at in the crimes testimony defendant eyewitness inculpating be was But also not insubstantial Jewelry Wolff’s Store was not insubstantial. of The the issue the evidence him from closeness exculpating responsibility. fact; trial the identity of is confirmed this second following and at its day came deadlock the second of deliberations arrived close to on evidence, third; at the substantially verdict on the similar murder, murder, attempted trial was unable reach a verdict on the prior robbery and charges.
Further, heavily directly misconduct bore on the prosecutor’s of For his the unidentified identity. reading issue of example, improper his challenged testimony eyewit- informant’s statement supported Store,” eve he very Jewelry nesses: “on the the events at Wolff’s insinuat- ed, have merely “defendant did not have of what been possession crimes, it actually but for use.” weapon employed was preparing Also, Dr. his that the Guzman court Shomer’s improper suggestion implied worthy of unreliability eyewitness testimony on the was not opinion eyewitnesses. belief undermined the to his challenge defense Thus, his case on strengthened misconduct prosecutor’s improperly the crucial and close at the time identity improperly issue of same When prosecu- weakened of the defense. here the conflict between as is near such be deemed to have equal, tion defense misconduct must had a effect prejudicial jury’s balancing inculpating exculpat- on the guilt evidence and on its determination of the ing consequent question innocence. however, find no The their majority, prejudice. premise underlying identity was not in fact that the crucial issue of appears
conclusion above, It that defendant close. But as shown the record is otherwise. is true eyewitness But eyewitnesses. vagaries identified three “[t]he *52 well-known; identification are the annals of criminal law are rife with in- (United stances of mistaken identification.” States Wade 388 U.S. 1149, 1158, 1926]; generally L.Ed.2d 87 S.Ct. see McDonald 37 Cal.3d 363-365 690 P.2d Moreover, 46 A.L.R.4th 1011].) testimony the record shows that the eyewitnesses reliability. in this case is of problematical majority
The conclude no prejudice prosecutor’s improper arose from of the unidentified informant’s statement that on the eve of the reading in in question crimes defendant had small-barreled his gun possession they was in fact In cleaning weapon. assert that the statement support directly did not defendant in the crimes. But even if the implicate implica- direct, tion was it was nevertheless clear and strong. majority rely
The on the “fact” also that the unidentified informant’s statement was cumulative to evidence that defendant had obtained hand- ante, father gun from his “not before the crimes.” at long (Maj. opn., evidence, however, 534.) The was that in defendant obtained the gun latter part of December 1977. A statement that defendant had a gun in very fact it on the eve cleaning altogether crimes is different nature and effect from evidence that defendant had obtained a more gun than a month earlier. majority next cite the trial jury court’s admonition to the concerning
the unidentified informant’s statement. After the read the state prosecutor ment and objection, defense counsel made his the court excused the jury. motion, Defense counsel then moved for a mistrial. The court denied the but decided “to strike the comment and admonish the it disregard in, . . . .” After ordering the bailiff to back bring court made statement; the following “The record reflect the are all jurors back time, their assigned At this ladies and I’m places. gentlemen jury, [¶] going jury go to let the to lunch. There are engaging matters Court’s attention that are time taking you some here. Rather than here about keep Martinez, Mondays busy days noon hour—and are there a full time, other panel jurors—so you we’ll let in ahead of them. At get this [¶] however, the comments read by have been stricken prosecutor] [the record, Court from the and the jury is admonished to those all disregard them, with the same if respects you force and effect as had never heard they are not to be by you considered I purpose whatsoever. also [¶] would like that if suggest we are able to a little bit after 1:00 get going o'clock, if that’s not everybody, ready, try too difficult for if we’re to be here luncheon, at about 1:00 you o’clock. Have a and we’ll see pleasant [¶] 1:15 at the latest.” *53 mind, informant’s the unidentified reading the my prosecutor’s
To identity issue of to the crucial and close significance was of such statement casual, event, weak, the court’s beyond any as In to be nullification. admonition, com- unremarkable sandwiched as it was between nonspecific business, to the task. manifestly was unequal about routine court ments court's to the trial rely understood on Finally, majority may the be evidence, they “must consider as general jurors instructions to the not trial”; never any they speculate counsel “must during statement of made witness”; true, asked a any by question to insinuation suggested be consider, . . . that was evidence any any “must not for they purpose, had court; you to be though matter is treated as stricken out such inherent in the it.” But the grave prejudice never heard of in view of statement, instruc- informant’s such prosecutor’s reading unidentified and too must be deemed to be too little late. tions majority prosecutor’s The also conclude no arose from prejudice court Dr. Shomer’s suggestion implied opinion the Guzman improper In eyewitness testimony worthy on was of belief. unreliability Dr. they presented that in view of the evidence Shom- speculate support testimony, and the delivered on er’s instructions qualifications expert weight would have understood the to prosecutor’s suggestion go Dr. its I am not admissibility. be Shomer’s not to given opinion correct, But majority argument even if the is their altogether persuaded. little: the Dr. crucial. proves weight given too to be Shomer’s opinion called into they assert—may That the have prosecutor’s suggestion—as only the question opinion impor- itself and not its basis is of no practical tance on the record here. majority sugges then assert that impact prosecutor’s “[t]he [the there have been ... the trial comment that diminished court’s
tion] ante, . are when . . .” appellate ignored (Maj. opn., times courts should 537.) at I did cannot It must be that the court simply agree. emphasized cure the at all to harm threatened words. nothing prosecutor’s Specifically, it did not correct the not to suggestion admonish Rather, merely it it in the purpose. following consider engaged with counsel after made objection prose defense counsel an colloquy of Dr. court. questioning opinion cutor’s Shomer on of the Guzman Honor, I’m going object. improper. Your This “[Defense Counsel]: relevancy to all what has There is no this Court proceeding Appellate Let ques said in another case. me rephrase [The [¶] Prosecutor]: tion, Your Honor. I hesitate to that I should say ignore [¶] [The Court]: Courts, but sometimes we do.” Appellate have been prosecutor’s improper suggestion
I whether the could doubt *54 I have no was not “dimin- by an But doubt it “diminished” admonition. Indeed, actually its by the court’s remark. comment can ished” flippant Dr. Shom- court did in fact understood to the Guzman consider imply unworthy eyewitness testimony to be of unreliability er’s opinion belief. trial court’s
Finally, majority rely be understood to on the grave above. in view the instructions to the referred to But general in the such instruc- prejudice improper suggestion, inherent prosecutor’s entirely must be held to ineffectual. tions have been above, reasonably I am the it is opinion For the reasons stated egregious marginally misconduct probable prosecutor’s deliberate record, on this misconduct was guilt: contributed to verdict of his as undermine confidence in the outcome.1 significance sufficient entirety. I judgment would reverse the in its Accordingly, BROUSSARD, J. a prima Defendant Ronald Lee Bell made I dissent. system that the which were Contra showing by facie venires selected County venires that reflected a substantial and continuous produced Costa In the ab- community. of the Black underrepresentation population underrepre- rebuttal from that the People demonstrating sence of interest, by was caused or served state legitimately important sentation we should reverse defendant’s convictions.1 1(Mosk. J.)B requires prosecutor’s ecause I have come conclusion that the misconduct Watson, 818, Cal.2d I probability” reversal under the “reasonable test of 46 question reach the whether the to error of federal need not and do not misconduct amounts does, general federal dimension. If it a fortiori. The rule is that
constitutional reversal follows analysis “beyond subject a reasonable error is harmless-error under the constitutional (1967) Chapman v. 87 S.Ct. test of 386 U.S. L.Ed.2d doubt” [17 California test; exception reversal. A.L.R.3d (Rose is stricter than the Watson is automatic 1065]—which 460, 469-471, 3101].) v. Clark 478 U.S. 576-579 L.Ed.2d 106 S.Ct. 1(Broussard. ) j agree Arguelles was under Penal with Justice that defendant not an “ex-felon” J. Author discharge 12021 because he an honorable from the Youth Code section had obtained manslaughter con ity following Welfare and section 1772 his 1972 under Institutions Code cone, ante, (See J.,* 556.) pro Arguelles, opn., expressly viction. and dis. Section resulting penalties dischargee that an honorable is released “from all and disabilities vides Arguelles offense or crime for he or she was committed. . . .” As Justice from the which brief, out, General, Attorney virtually sec points defendant’s even the in his concedes that past au language 1772 and 12021 conviction should be reversed because of the of section tion de construing language. Arguelles with in that I believe thorities similar I differ Justice by phase. prejudiced penalty 12021 conviction at the fendant section Chairper sitting assignment Supreme *Retired Associate Justice of Court under son of the Judicial Council. I. by jury representative trial drawn from right this state the
“[I]n
community
independently
guaranteed equally
cross-section of the
I, section
article
the Sixth Amendment to the federal Constitution
Constitution,
the responsibility
It therefore becomes
of the California
[¶]
a hollow form
this
not be reduced to
guarantee
of our courts to insure that
words,
and effective
of the liberties
safeguard
but remain a vital
citizens.”
Wheeler
Cal.3d
(People
California
*55
740,
890,
(1954)
v.
43 Cal.2d
754
583 P.2d
see
White
748];
That
and is
on all states.
9].)
right
fundamental,
binding
P.2d
is
[278
690,
(Taylor
(1975)
692].)
v.
Justice “[t]he unstated, decisions, society jurors in heterogeneous often is that our these defined overlapping groups to diverse and often inevitably belong will education, sex, race, occupation, age, national origin, ethnic or religion, residence, condition, affiliation; it is that and political economic place even be devoid of jurors opinions, preconceptions, unrealistic to expect in groups; life such experiences derived from their biases deep-rooted is to an overall only way impartiality to achieve practical hence that the so that jury such on the variety groups of a encourage representation members, are they antagonistic, to the extent of their biases respective Wheeler, Cal.3d supra, (People will tend to cancel each other out.” 258, 266-267.)
II. a facie violation of prima court stated: “In order to establish Duren (1) that the the defendant must show requirement, the fair-cross-section community; is a in the group to be excluded ‘distinctive’ group alleged are in from which select- group juries that the of this venires representation in of such ed and reasonable in relation to the number persons is not fair systematic is due to ex- community; that this underrepresentation Missouri, (Duren v. jury clusion in selection group process.” 586-587].) 439 U.S. at L.Ed.2d at p. pp. [58 exclusion,” “systematic The Duren court as used the third defined system results from the prong, as consistent underrepresentation a selection It held “demonstration that procedures. petitioner’s large just occasionally, every weekly occurred not venire for a discrepancy but nearly manifestly period year indicates that the cause of the underrepre- is, systematic—that sentation was in the particular jury-selection inherent (439 process utilized.” U.S. at p. p. 588].) Combining at L.Ed.2d the Duren court held Sixth prongs, further that “in Amendment fair-cross- cases, systematic section an infringement demonstrates disproportion itself the defendant’s community interest chosen fair cross sec- from tion. The is there remaining justification whether question adequate infringement.” (Id. for this p. fn. 26 589], L.Ed.2d at italics added.)
Defendant this case made out a case prima facie of a violation of his *57 Blacks, to a right representative cross-section under Duren. He showed class, a cognizable made 8 County, about Contra up percent of Costa where he was tried. He showed substantial underrepresentation3 in that Blacks constituted 3 percent of the prospective jurors County Contra Costa 4(See venires at the time of his trial. maj. 526-527.) at He opn. pp. proved 3 dicta, majority In disparity" determining describe the “absolute test group for when a underrepresented, is Supreme many and state that the United States Court and federal and “accepted” fact, state courts have This imply preferred this test. seems to that it is the test. In however, tests, Supreme the United States Court has to a number adopt referred of without ing any (see particular methodology statistical to the of v. exclusion others Alexander Louisi 625, (1972) 536, 541, ana U.S. 1221]); 405 630 L.Ed.2d 92 S.Ct. other federal and state [31 variety courts also use a of tests. tests, disparity satisfactory. likely Of the various is absolute the least Its effect California extremely impossible would be make it minority difficult or most groups for most coun- prima ties to establish a facie Duren violation. If have we ever to choose one to the exclu- test others, sion disparity adopt. of absolute is not test we I should trust that California courts test, recognize will adopt that this court not herein disparity does nor absolute fixed necessary threshold prima to establish a facie case under that test. 4 months, disparity Such a longer, certainly that is consistent over at least six if not sub (See 526-527.) test, maj. opn. pp. stantial. If comparative disparity many at we use the which
566
the underrepresentation
evidence that
exclusion
statistical
systematic
County: it
in Contra Costa
jury
selection
system
Blacks resulted from
months,
(See maj.
a chance occurrence.
and was not
was consistent for six
fact,
underrepresenta
that the
526.)
probability
In
the statistical
at
opn.
p.
(See
v.
1 percent.
People
than six-tenths of
due to chance was less
tion was
288,
297
(1982)
Cal.App.3d
132
904] [the
[182
Buford
Buford
venire
jury
of defendant Bell’s
notice of the
judicial
composition
court took
County’s jury selec
Costa
Contra
challenge
Buford’s successful
during
found,
studying
after
of Appeal
The Court
procedure].)
tion
Buford
trial, that
time
defendant’s
during
venires
injury
underrepresentation
inference, in the absence of
warrant the
was “so small as to
this probability
(Ibid, at
exclusion.’’
systematic
results from
that the
explanation,
disparity
Blacks resulted
297.)5
underrepresentation
defendant
proved
Since
exclusion,
his
facie violation of
prima
he has made out
systematic
from
to a
cross-section.
right
representative
al.,
(see Kairys
Jury
minority groups
et
applied
small or medium-sized
courts have
(1977)
776, 796),
L. Rev.
Multiple
Lists
65 Cal.
Representativeness: A Mandate
Source
being represented
were
in a
disparity
percent, which indicates that Blacks
is well over 50
test,
(See,
disparity
United
comparative
manner.
for courts that used
fair and reasonable
150;
(10th
1981)
(8th
1981)
660
United States v. Yazzie
Cir.
v.
Cir.
640 F.2d
States Clifford
464,
422, 426-428,
(1982)
1282];
102 S.Ct.
United
States
(10th
35,
(1980)
97];
v.
Cir.
101
United States Test
The
facie
majority
prima
hold that defendant did not establish
violation
he
not
the un-
representative
right
cross-section
because
does
show
County
Costa
venires
derrepresentation
jury
of Blacks Contra
resulted
524.)
“systematic
(Maj.
“systematic
from
exclusion.”
at
To
opn.
p.
prove
exclusion” under the third Duren
that a defend-
majority require
prong,
ant
identify
system
“constitutionally
that
is
particular aspect
impermissible”
constitutionally
then that he
that the
prove
impermissi-
ble factor is the
(Maj.
cause” of the
at
“probable
underrepresentation.
opn.
addition,
524.) In
p.
they hold that evidence of substantial and continued
class,
itself,
by
of a
underrepresentation
cognizable
is insufficient to show
systematic exclusion of that
when the
facially
class
selection
are
procedures
(Maj.
524.)
neutral.
opn.
majority
sadly
at
are
p.
mistaken.
I
(as
would hold that “systematic exclusion” is underrepresentation
un-
derrepresentation
is defined
the second Duren
that is consistent
prong)
Thus,
and that
system
results from the
selection
I
procedures.
as
stated,
have
a defendant
systematic
who demonstrates
underrepresentation
a cognizable
class has fulfilled the three Duren
and made out a
prongs
facie
prima
case. This view is supported by the
of Duren v.
holdings
Missou-
ri,
supra,
U.S.
v. Kentucky (1986)
Batson
The Duren court held that underrepresentation that occurred regularly,
in every weekly venire for
a year,
almost
as a
system jury
result of the
selection procedures
(Duren
“systematic
constituted
exclusion.”
v. Missou-
ri,
439 U.S.
at
p.
588],)6
L.Ed.2d at
Such
p.
systematic under-
representation by
was sufficient to make out a prima facie violation itself
the defendant’s
right to representative cross-section.7 The court held that
agree
6I
majority’s
cannot
disapproval
with the
holding
of this
court’s
v. Harris
after a facie case had prima been the burden to justify infringe- 368, (Id. ment rested with the state. fn. 26 589].) at L.Ed.2d at p. p. [58 79, In the v. Kentucky, recent and seminal case of Batson 476 U.S. supra, which a petit jury, involved the court reaffirmed that “In involving cases venire, has found a facie prima case on that members of the proof [it] defendant’s race substantially were the venire underrepresented from drawn, which his jury and that the venire was selected under a practice " (Id. 'the providing opportunity discrimination.' at 95 L.Ed.2d at p. [90 86], added.) p. Similarly, italics court facie prima found case Buford because Buford demonstrated a consistent statistical and also disparity, “a suggested systematic plausible for some explanation degree disparity, i.e., the by informal which Contra procedure County Costa about goes (132 excusing jurors from prospective 298.) service.” Cal.App.3d majority The ignore the decisions of the United States Supreme Court but also the plain meaning “systematic of the term exclusion.” “systematic” word means that which system,” constitutes “a and is charac- (American terized Diet, “regularity” its “methodical” nature. Heritage (1981) of the English 2.) Language p. “Systematic col. exclu- necessarily sion” does not mean an exclusion that is “intentional” or “invid- It ious.” does not the use nonneutral require “constitutionally or imper- missible” criteria. All it means is that the system exclusion is the result of a selection, regularly, that it occurs in contrast to exclusion which is the result of chance or random factors and consequently occurs infre- (See v. quently sporadically.8 Morales Cal.3d (dis. Broussard, P.2d opn. J.).) [257 244] The majority City cite v. Richmond J.A. Croson Co. 488 U.S. L.Ed.2d 706], 109 S.Ct. their support holding that substan- [102 venires—indeed, tial and continuous underrepresentation statistical disparity—is “systematic insufficient to show exclusion” and a violation of the to a right cross-section. That representative case does not Croson, provide iota of authority for such In holding. court held that the City of Richmond failed to demonstrate a compelling governmental interest to justify “an racial unyielding quota,” which set aside 30 policy percent city’s construction minority-owned contracts for businesses. (Duren exemption resulting advanced' disproportionate representation.” criteria in the Missouri, omitted.) supra, p. 591], p. 439 U.S. at L.Ed.2d at italics added and majority charge “systematic meaning 8The that this exclusion” render the would third prong surplusage obviously Duren prong. meaning to the second Duren But this different prong, from that of the simply representation cognizable second Duren which is of a Missouri, (Duren group in defendant’s “is venire not fair and reasonable.” 439 U.S. p. 587].) L.Ed.2d at *60 _ (Id. p. 885].) at L.Ed.2d at stated p. court that statistical [102 discrimination, disparity was relevant to show intentional differed but from City of Richmond’s position issue of which statistics to use. It held: statistical . . . facie disparities may constitute prima proof “[G]ross VII”; a pattern practice of discrimination under Title but where contrac tors with are to fill “special qualifications required particular jobs, compari (rather sons to the general than to the smaller of individu population group als who possess necessary may have little value.” qualifications) probative (I at omitted.) L.Ed.2d at p._ p. 887], and citations quotations [102 d. case,
In the instant I disagree do not with the majority “[w]here defendant has access to census or other data that reflect the demographic percentage of the relevant are group who adult and thus presumptively jury ” eligible, he should such data compare against the percentage cognizable 526, 12.) members in group venire. fn. (Maj. opn. at Croson p. some provides authority for this undisputed but does point, support that a holding statistical disparity based on the data is appropriate insufficient to make aout facie prima violation of the to a right representa- tive cross-section.
The majority’s erroneous “systematic definition of betrays exclusion” their inability or unwillingness to comprehend difference between an equal protection analysis and a representative analysis. cross-section Under an equal protection analysis, the defendant must show purposeful discrimi- Missouri, (See nation. 368, Duren v. 439 U.S. supra, at fn. 26 p. L.Ed.2d [58 589]; at v. p. Batson Kentucky, 79.)9 supra, U.S. If he proves prima case, facie the government may rebut merely the case by showing that Partida, neutral criteria (See or procedures were used. v. Castaneda supra, 482, 430 U.S. contrast, L.Ed.2d at In p. 511].) under representative analysis, cross-section the defendant need not show discriminatory Missouri, (See intent. Duren v. 368, 26; 439 U.S. fn. v. p. McCray (2d 1984) Abrams Cir. 1131-1132; F.2d Waller v. Butkovich (M.D.N.C. 1984) 942, 949.) stated, 593 F.Supp. As I have he need only prove that a cognizable group being systematically underrepresented.
The Duren case itself highlights the difference between the analyses. There the State of Missouri its argued that exemption criteria were facially neutral, and that the underrepresentation of women have been due to a greater teachers, number of women qualifying for exemptions, such as discrimination, prove 9To purposeful underrepresentation may by itself be evidence of dis Missouri, (Duren criminatory purpose. effect and supra. v. 439 U.S. at fn. 26 [58 p. 589]; l..Ed.2d at see Castaneda Partida 430 U.S. 493-495 L.Ed.2d 509-511, 1272]; Healthy 97 S.Ct. City Mt. Doyle Board Ed. 429 U.S. 287 [50 471, 483, 568].) L.F.d.2d 97 S.Ct. *61 workers, at 368 L.Ed.2d at (439 over 65. U.S. p. government persons [58 neutral facially court that such 589].) high specifically responded The p. criteria, a would still have to they significant underrepresentation, caused if at state interest. at 367-369 L.Ed.2d by significant (Id. pp. a justified interest, facially state a neutral law that 588-590].) Absent a pp. significant a would not constitutional underrepresentation pass causes substantial muster. maj. Duren majority’s (see the mischaracterization of
Notwithstanding at the Duren court never determined whether the opn. p. 529), underrepre- Missouri, County, sentation of women in Jackson occurred as a result of facially county’s neutral state or the automatic for exemptions exemption neutral, Instead, facially women. it held that whether or not the cause was system sys- as a a consistent produced underrepresentation—or whole consis- resulting tematic exclusion—of women: “The disproportionate tent and at the venire jury stage exclusion of women from the wheel obviously system by juries due to the which were selected. Petitioner quite final demonstrated that the of women underrepresentation pool jurors was due to the of Missouri’s crite- prospective operation exemption statutory ria—whether the automatic or other women exemption in Jackson Women therefore implemented County. were exemptions—as systematically Taylor.’’'’ within the U.S. underrepresented meaning (439 588-589], omitted.) at L.Ed.2d at fn. The this. pp. majority ignore case, substantially jury In the instant Blacks underrepresented were trial, venires at the time of defendant’s was admit- underrepresentation months, tedly virtually continuous over at least six and there was no chance something occurred as result of other than underrepresentation system jury County. venire selection in Contra Costa Given this evidence, I have systematically no choice but to conclude Blacks were excluded from has jury County, venires Contra Costa and that defendant jury established a facie violation of his constitutional to a drawn prima right from a community. cross-section of the representative
IV. majority county The admit that “the was not in with statu- compliance” tory—and facially neutral—jury selection but are presumably procedures, unconcerned because defendant offers a assertion” that “speculative county’s caused the of Blacks. noncompliance underrepresentation (Maj. county statutory in two opn. p. 524.) procedures violated First, ways. jurors it commissioner to excuse permitted prospective excusal regulations governing procedures.10 without written rules and Second, jurors jury commissioner to excuse permitted prospective it verify affidavit to without either or written requiring personal appearance seemed to statutory In the commissioner violating procedure, claim. any hardship.12 almost who “The anyone have excused or deferred claimed jury venire], only net was that summoned persons result [in service.” (People remained available for (about percent) *62 132 at Buford, supra, Cal.App.3d 292.) p. court, trial, referring procedures to the time of defendant Bell’s described the 10The Buford by county jury prospective jurors which from “The the excused service: commissioner tes [during percent ju approximately prospective tified that the all time of defendant’s 40 trial] of deferred; percent rors are either excused or that less 5 those excused ever than or deferred of deferral; approxi submit their or written asserted reasons excuse and that verification of for mately granted percent requests phone 80 the over excuses or are the one of for deferral staff, guidelines.” (132 the Cal.App.3d p. commissioner's without the written at benefit of added.) italics 200, provided juror Code of Civil Procedure former section court shall a for the excuse hardship.” “undue delegate Code of Civil Procedure former section allowed 201a the court jury power regulations govern adopting commissioner written rules which Here, however, procedure. the granted excusal the commissioner “approximately excusals to percent jurors” prospective guidelines.” 40 of all (People “without the benefit v. of written Buford, supra, Cal.App.3d p. 298.) 132 at empower jury Since the court not did the commis sioner grant prospective jurors, county written rules to excusáis to the former sec violated tions 200 201a. 11 Additionally, “approximately percent requests 80 the grant excuses or are for deferral phone by ed over the one the per commissioner’s staff” with concomitant no demand for appearance Buford, sonal (People or v. supra, Cal.App.3d p. 298.) written 132 at affidavit. This Code required violated of Civil Procedure former section which the court hear or, discretion, the juror excuse of accept summoned its vi affidavit of excuse. These statutory jury county’s procedure procedure olations of the selection open left the to abuse. This continuing power court warned before defendant’s “the prospective trial that to excuse
jurors grounds ‘suitability’ nature, discretionary on the hardship highly and ‘undue’ Wheeler, and courts must be prevent (People supra, 273.) alert to its abuse.” v. 22 Cal.3d regulations Since no court had regarding procedure, issued written rules or selection not empowered jurors, commissioner not guidance to excuse but he had no as to legitimate what hardship” constituted a “undue excuse Code under of Civil Procedure for- Further, mer 200. section proof because commissioner never demanded of an excuse as required by Code of Civil Procedure former given section he never knew if excuse was true. testimony 12The court following concerning found the of the commissioner Buford hardship” category “undue “ of Code of Civil Procedure former section 200 instructive: know, ‘[Although year, you we will not excuse someone if—in discussion we will they pay employers tell them if don’t serving] receive their while that we defer [from cost, particular $6 them they day’s for this pay, per time because it is a a will lose diem ” Buford, will not it.’ (People supra, Cal.App.3d p. 298.) cover v. at commented, As Legislature court “It is doubtful that either the or Judicial Buford every Council (Cal. intended that financial cost be treated as an ‘extreme financial burden.’ Court, is, all, appen., 4.5(b)(2).) Jury duty Rules of right. service after as well a . . . as § sex, fees, grounds job excuses on age, obligations, inadequate jury such as ‘[E]xcessive can Wheeler, upset demographic respects.’ (People supra, balance the venire in essential v. p. 273.)” Buford, (People supra, pp. Cal.3d at v. 132 Cal.App.3d 298-299.) at Defendant’s assertion” in “speculative actually this case hits the nail on statutory the head. The violations of jury selection procedures during time of defendant’s trial provided for discrimination” and “opportunity suggested systematic for the “plausible explanation” consistent and sub- stantial of Blacks. To underrepresention “impose a defendant the upon burden of all excluding possible and for underre- permissible explanations onerous, presentation” order to make out facie case would be prima contrary “unrealistic and . . . .” Buford, applicable principles (People Missouri, supra, Cal.App.3d at Duren v. U.S. citing supra, Wheeler, 368-369 L.Ed.2d at pp. pp. 589-590], Cal.3d at pp. 286-287.) violations, claim,
These although necessary to make a Duren when combined with defendant’s showing substantial and continued underre- venires, presentation county of Blacks in the conclusion that compel *63 venires, Blacks were systematically excluded from those and that defendant has established a prima facie violation of his to a right representative cross- section.13
V.
The
of a
right
representative cross-section demands the result that venires
truly
be
of the
representative
community, at least to the
that
extent
practi-
cal reality
It does
permits.
that
require simply
facially neutral laws exist
Duren,
without regard for their
In
consequences.
the United States Supreme
Court
repeated
that Sixth
years
Amendment case what it stated
earlier:
“
remain free to prescribe relevant
for their
qualifications
jurors
‘[S]tates
and to provide reasonable
so
it
exemptions
long
fairly
as
said that the
”
lists or
are
jury
panels
representative
community.’
U.S. at
(439
367
p.
Louisiana,
L.Ed.2d at p. 589],
Taylor v.
quoting
419 U.S. at
supra,
[58
538
p.
L.Ed.2d at
702], italics
The
p.
added.)
court has stated that
[42
maintaining
“broad representative character of the jury” assures
Louisiana,
“diffused
v.
impartiality.” (Taylor
573 698].) jury L.Ed.2d at While the court has not ruled that a must p. petit “mirror the it has venire community,” “fairly held that must be community.” of the 538 representative 703].) L.Ed.2d at p. p. {Id. [42 The of a if right representative cross-section is violated this is not achieved venire, by whether or not exclusion is intentional. Duren v. (See Missouri, Abrams, 26; 439 U.S. at fn. supra, McCray v. 750 p. supra, Butkovich, 1113, 1131-1132; F.2d Waller v. 593 In supra, F.Supp. 949.) way, this the right maximizes the chance of obtaining representative petit jury. right achieve helps the fundamental of a purpose jury, which is to “guard against the arbitrary exercise of power” making available “the Louisiana, commonsense judgment of the community.” (Taylor supra, 419 U.S. at L.Ed.2d 698].) at p. [42
I do not share the majority’s
trust that
unquestioning
facially neutral
laws are almost always valid and equitable,
irrespective
impact
Morales,
racial minority
As I stated in
groups.
dissent in
527, 580-581,
Cal.3d
“Our nation’s history
is shadowed
many
too
exam
ples
facially neutral rules which operated to exclude minority groups
from their fundamental rights for us to be confident that a neutral law
necessarily operates fairly. The
tax
poll
v. Forsennius
{Harman
50, 60,
U.S.
L.Ed.2d
For reasons set forth I would reverse defendant’s convictions. Appellant’s for a was denied November petition rehearing 1989. Mosk, J., Broussard, J., were of the that the should be opinion petition granted.