Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. 010652-6.
Haerle, J.
I. INTRODUCTION
In December 2006, a Contra Costa County jury convicted appellant, an African-American, of two counts of second-degree robbery (Pen. Code, § 211), one count of discharge of a firearm with gross negligence (§ 246.3), and one count of possession of a firearm by a convicted felon (§ 12021.1). As to the first two counts, the jury also found to be true the charged enhancements alleging intentional discharge of a firearm. (§ 12022.53.) After finding numerous alleged “priors” to be true, the trial court sentenced appellant to 45 years to life in state prison. He appeals, claiming that (1) the trial court erred in denying his request, at the commencement of the trial, for a new jury panel, when the venire that was initially called into the courtroom contained no African-Americans among their 78 members and (2) he was entitled to more custody credits than awarded him by the trial court.
All statutory references are to the Penal Code.
II. FACTUAL AND PROCEDURAL BACKGROUND
Appellant’s request for judicial notice is granted.
Bearing in mind the limited issues raised by appellant, it is unnecessary for us to describe in detail the facts of the crimes of which appellant was convicted. Suffice it to say that the jury found that, as charged, on the evening of January 6, 2001, he robbed a San Pablo restaurant at gunpoint, shot a hole in its ceiling, and then took a little over $2,000 from the cash register (also at gunpoint), but was soon captured nearby when followed by a restaurant security officer and a San Pablo Police officer, who had been parked nearby.
III. DISCUSSION
The Attorney General concedes that appellant’s second point, regarding the calculation of custody credits, is correct, and that the case should be remanded to the trial court for the recalculation of those credits. We will, therefore, discuss only appellant’s first, and major, point regarding the composition of the jury venire, and the law regarding that issue.
Before doing that, however, a brief description of how and when that issue arose is appropriate. During jury selection, appellant’s trial counsel noted that her client was African-American and thus objected to the jury venire called into the courtroom on the ground that were “no apparent African-American jurors in the panel” of 78 potential jurors, and that this violated appellant’s “state and federal due process rights in having [a] jury panel [that] would be fair to him.”
In response, the court noted that there appeared to be one potential juror who might be African-American, but expressed its (understandable) hesitation at making such a determination visually. The prosecutor echoed the court’s observation, and contended that whether there were or were not African-American persons in the jury venire could not be determined visually.
The court denied the request of appellant’s trial counsel to summon a new jury venire, stating: “I would note, as I explained to our prospective jurors, it is a random process. We can’t hand select our groups for a good reason. And sometimes it makes for different mixtures in each jury panel. [¶] I will note it for the record. And, again, I’ll say I’m very uncomfortable making assessments based strictly on a visual because there are people who have mixed backgrounds and one particular aspect of that may be more prominent than others. So I’m always a little uncomfortable doing this strictly by a visual inspection. [¶] But I’ll note your objection for the record. And based on the random nature of the process, I don’t think it’s necessary to call in a different panel. And we certainly can’t hand select our groups.”
Relying on the federal constitutional law laid down by the United States Supreme Court in Duren v. Missouri (1979) 439 U.S. 357 (Duren), at least four times in the last decade our Supreme Court has rejected trial court challenges similar to that involved here. Thus, in People v. Massie (1998) 19 Cal.4th 550, 580 (Massie), a unanimous court held: “‘In order to establish a prima facie violation of the fair-cross-section requirement, the defendant must show (1) that the group alleged to be excluded is a “distinctive” group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.’ (Duren [, supra,] 439 U.S. [at p.] 364.) Defendant satisfies the first of these requirements: our cases hold that both Blacks and Hispanics qualify as ‘distinctive’ groups for purposes of the fair-cross-section requirement. [Citations.] We need not determine, however, whether defendant has complied with the second requirement (showing that Blacks and/or Hispanics are underrepresented), because he has not met the third requirement: a showing that any under representation is the result of systematic exclusion of the particular group in the jury selection process. [¶] A defendant cannot establish a prima facie case of systematic exclusion of a distinctive group merely by presenting statistical evidence that the group is underrepresented in the jury pool, venire, or panel. Rather, the defendant must show that the underrepresentation ‘is the result of an improper feature of the jury selection process.’ [Citations.]” (Massie, supra,19 Cal.4th at p. 580, fn. omitted.)
And numerous times before that: see, e.g., People v. Morales (1989) 48 Cal.3d 527, 545-549; People v. Bell (1989) 49 Cal.3d 502, 520-531 (dealing also with Contra Costa County); People v. Sanders (1990) 51 Cal.3d 471, 489-496; People v. Breaux (1991) 1 Cal.4th 281, 295-299; People v. Danielson (1992) 3 Cal.4th 691, 706, overruled on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069; and People v. Horton (1995) 11 Cal.4th 1068, 1087-1091.
In People v. Ochoa (2001) 26 Cal.4th 398, 427, the court rejected a similar challenge based on jury venires selected in part of Los Angeles County because “defendant clearly failed to satisfy Duren’s third prong.” It explained: “The third prong requires defendant to show the state selected the jury pool in a constitutionally impermissible manner that was the probable cause of the disparity. [Citation.] The evidence presented below showed Los Angeles County had formerly relied on voter registration lists to compile its jury pools, and added Department of Motor Vehicles records in the early 1980's to provide a more representational list. We have observed that Code of Civil Procedure section 197 prescribes that a list derived from voter and driver records ‘“shall be considered inclusive of a representative cross-section of the population”’ where it is properly nonduplicative. [Citation.]” (Id. at p. 427.)
Two years later, and citing Ochoa, the court ruled to the same effect regarding a challenge raised by an African-American appellant to the venire called into the courtroom in Riverside County. (People v. Burgener (2003) 29 Cal.4th 833, 857-858 (Burgener).)
The following year, and understandably citing Burgener, the court denied a writ of habeas corpus brought by an African-American defendant convicted of murder in Riverside County. In In re Seaton (2004) 34 Cal.4th 193, 207-208, the court held: “As we have said in a previous case: ‘A defendant does not discharge the burden of demonstrating that the underrepresentation [of a racial or ethnic group] was due to systematic exclusion merely by offering statistical evidence of a disparity. A defendant must show, in addition, that the disparity is the result of an improper feature of the jury selection process.” (Burgener [, supra,] 29 Cal.4th [at p.] 857.) In Burgener, the defendant relied on a declaration by Dr. Butler, the same expert used by petitioner here, who stated that the statistical evidence of a disparity was so strong that there was ‘“probably one chance in 10,000 that that would have happened by chance.”’ Nevertheless, we upheld the trial court's ruling that the defendant had failed to show that the disparity was the result of systematic exclusion. [¶] Our holding in Burgener [citation] is dispositive of petitioner's claim here that his trial counsel should have challenged the panel of prospective jurors. A successful challenge would have required evidence that the jury commissioner was deliberately removing minority jurors from other jury panels and placing them in [special panels]; statistical evidence of a disparity would not have sufficed. Petitioner does not allege facts demonstrating that his trial counsel could have presented the required evidence.”
Also during the past decade, Division Five of this District dealt with precisely this issue in a decision cited with approval by our Supreme Court in Ochoa. (Ochoa, supra, 26 Cal.4th at p. 428.) Even more importantly, Division Five’s case dealt with the same jurisdiction and the same issue involved here: the difficulty in getting African-American citizens, largely resident in the West County portion of Contra Costa County, to report for jury duty in Martinez, some distance to the east. We refer to People v. Currie (2001) 87 Cal.App.4th 225 (Currie).
“[T]wenty miles away” according to appellant’s brief.
Another and even more recent Court of Appeal decision reaching the same result as all the other precedents cited herein is Roddy v. Superior Court (2007) 151 Cal.App.4th 1115, 1133-1134.
In Currie, as here, an African-American defendant convicted of second degree murder, made a claim on appeal identical to that made by this appellant. In a careful, thorough and thoughtful unanimous opinion, Justice Stevens of Division Five rejected that claim. He concluded that rejection in these words: “In the final analysis, appellant has established nothing more than statistical evidence of disparity; he has not associated the underrepresentation of African-Americans with any constitutionally impermissible feature of the Contra Costa County jury selection process. The procedures employed by the county to summon and select persons for jury service are, according to the undisputed evidence, entirely race-neutral. The lower court found that the disparity in representation is attributable to the disproportionately high rate of failure to appear by those summoned for service from the Bay Judicial District. ‘Statistical underrepresentation of minority groups resulting from race-neutral . . . practices does not amount to “systematic exclusion” necessary to support a representative cross-section claim. [Citations.]’ [Citation.] Nor, as we have found, is the county required to implement racially disparate practices to correct underrepresentation caused by factors unrelated to exclusionary features of the jury selection process. [¶] The evidence presented by appellant fails to establish a prima facie case of systematic exclusion of a cognizable class in the jury selection process. The trial court did not err in making this finding. [Citations.]” (Currie, supra, 87 Cal.App.4th at pp. 237-238.)
In the course of coming to this conclusion, Division Five cited, of course, Duren, Massie, and many of the earlier Supreme Court cases cited in our footnote 2, supra. In the process of so doing, it devoted a little over six pages in stating, and then explaining why it was rejecting, almost precisely the same arguments made by this appellant in his brief to us.
No reply brief was filed by appellant after the filing of the Attorney General’s brief citing Currie and many of the other precedents noted above.
We will not reiterate at length the points made in those pages, but in brief they were: (1) although there was possibly some tangible disparity between the percentage of the African-American adult population of Contra Costa County (as per the 1990 census) and the percentage of African-Americans on jury venires (8.4 percent versus 4.6 percent), this issue was not dispositive one way or the other because, (2) as in Bell, which also involved Contra Costa County, the case could be resolved under the third Duren prong (Currie, supra, 87 Cal.App.4th at pp. 234-235), (3) the “underrepresentation of African-Americans on Contra Costa County jury venires, arising from the higher rate of such jurors failing to appear in response to a summons, is a long-standing problem, dating back at least 20 years” (id. at p. 235), but (4) that appellant mainly proposed solutions to that “problem,” i.e., “‘insuring direct transportation from the west county’” to Martinez (id. at p. 236) because, quoting a federal case quoted in Bell, the federal constitution “‘“does not require that venires created by a neutral selection procedure be supplemented to achieve the goal of selection from a representative cross-section of the population [citation]”’” (id. at pp. 236-237, quoting Bell, supra, 49 Cal.3d at p. 530) and (5) that appellant’s other suggested methods of improving the situation, “even if constitutionally permissible, would appear to be unavailing as a practical matter.” (Currie, supra,87 Cal.App.4th at p. 237.)
The thorough analysis of Division Five in Currie then concluded with the paragraph quoted earlier in this opinion.
This appellant does not suggest any new “solutions” to the problem, but instead makes two contentions/suggestions which we are inclined to address. First of all, he maintains that the problem is almost entirely caused by the “twenty mile” distance between the “west county” area and the Martinez courthouse of the county. This is flatly contrary to Currie, where the court noted: “The failure-to-appear rate for Richmond jurors remains constant, whether jurors are summoned to appear at the local Richmond courthouse or at the superior court in Martinez. In fact, to obtain sufficient jurors to operate the local Richmond courts, the county has been required to increase the frequency of summoning local Richmond residents for jury service. Appellant paradoxically assails the county for doing so, suggesting that local Richmond residents, who are likely to be African-Americans, would be less willing to serve given the greater frequency upon which they are summoned. Appellant however presents no evidence to support such speculation.” (Currie, supra, 87 Cal.App.4th at p. 237.)
Then appellant presents if not a solution, at least a broader complaint: the failure of Contra Costa County to build a felony-jury trial courthouse in Richmond. His counsel argues, in her brief to us: “[In recent decades], the underrepresentation of African[-] Americans on Contra Costa County juries has continued unabated. While the cause of that underrepresentation is documented and well known, Contra Costa County has chosen not to take any effort to address it. Instead, in 1987 Contra Costa County constructed the Bray building with additional Superior court courtrooms––in Martinez. More recently, the Peter Spinetta family law center was constructed with yet more courtrooms––again, in Martinez. The Richmond branch court still stands and is used for a limited scope of trials and hearings, but appellant’s felony trial was held in Martinez, a location known to effectively minimize the participation of the county’s African[-]American population in the judicial process as jurors.”
The answers to this quasi-contention are multiple: (1) as stated in Currie, the premise is incorrect, as the rate of African American non-participation in the jury process is the same in both areas of the county; (2) we are not, under the applicable constitutional standard, going to come within a country mile of telling Contra Costa County where it ought to build its courthouses; and (3) when all is said and done, appellant has simply not satisfied the third prong of Duren, as appellant concedes in his brief.
IV. DISPOSITION
The case is remanded to the trial court for the recalculation of the custody credits to which appellant is entitled; otherwise, the judgment is affirmed.
We concur: Kline, P.J., Lambden, J.