Filed 11/4/14 P. v. Paulino CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B239878 and B246625
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA138096)
v.
DELBERT PAULINO,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County, Robert J.
Perry and George G. Lomeli, Judges. Affirmed.
Patricia A. Scott, under appointment by the Court of Appeal, for Defendant and
Appellant in No. B239879.
Winston Kevin McKesson for Defendant and Appellant in No. B246625.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, and Scott A. Taryle and
Tannaz Kouhpainezhad, Deputy Attorneys General, for Plaintiff and Respondent.
_______________________
In two appeals, which we consider concurrently, Delbert Paulino appeals from the
judgment entered following his conviction of first degree murder (Pen. Code,1 § 187,
subd. (a)), second degree robbery (§ 211), and kidnapping for robbery (§ 209, subd. (b)).
He raises two arguments on appeal. First, Paulino asserts that the trial court abused its
discretion when it denied, in part, his motion for an in camera review of law enforcement
personnel records pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
Second, Paulino argues that the trial court erred when it denied his motion to compel
discovery of evidence believed to prove a violation of his constitutional right to a jury
drawn from a representative cross-section of the community. We affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
I. The Evidence at Trial
Paulino was charged with the murder, robbery, and kidnapping for robbery of
Aundra Boykins.2 On the night of January 3, 1996, Paulino met with Austin Hemsley,
Gerald McKenzie, and Equilla Jones. The group devised a plan to rob Boykins, who
recently had begun dating Jones and had been seen carrying a large of amount of cash.
Paulino, Hemsley, and McKenzie got into Paulino’s Ford Thunderbird and followed
Jones in her vehicle as she and Boykins drove to a motel. As Jones was parking her
vehicle in the motel parking lot, Paulino stopped his car directly behind them. Hemsley
and McKenzie got out of the car, grabbed Boykins, and forced him into the backseat. As
the other men held down Boykins, Paulino used duct tape to wrap his hands behind his
back. Paulino then continued driving while the others searched Boykins in the backseat.
Boykins only had a small amount of cash in his possession, but after being
severely beaten by Hemsley and McKenzie, he told them that there was a large sum of
1 Unless otherwise stated, all further statutory references are to the Penal Code.
2 Paulino previously was tried and convicted on these charges, but his judgment of
conviction was later reversed by the Ninth Circuit Court of Appeals based on an error in
jury selection under Batson v. Kentucky (1986) 476 U.S. 79. (Paulino v. Castro (9th Cir.
2004) 371 F.3d 1083.) This appeal is from the judgment of conviction following retrial.
2
money in the closet of his home. While Paulino stayed with Boykins in his car, Hemsley
and McKenzie went to Boykins’s house to search for the money, but eventually returned
empty-handed. Paulino kept telling the others that they should let Boykins go because he
did not have any money, but Hemsley refused. At Hemsley’s direction, Paulino drove
the group to a secluded area near a freeway off-ramp, where Hemsley shot Boykins
multiple times. Boykins’s body was later discovered by the off-ramp. Shell casings
recovered near the body were matched to a gun that was found in McKenzie’s home
with Hemsley’s fingerprints on the weapon.
On September 11, 1996, Paulino was detained and taken into police custody.
Later that day, he was interrogated by Los Angeles Police Detectives Robert Felix and
James Edwards in two recorded interviews. The first interview was audiotaped and the
second interview was videotaped. Following the interviews, Paulino also handwrote and
signed a detailed statement. In both his interviews with the police and his handwritten
statement, Paulino admitted his involvement in the events leading to Boykins’s death,
but insisted that he did not shoot Boykins or intend for him to be killed. At trial, Paulino
testified that he wanted to release Boykins once he realized that the man did not have any
money, but he feared that he also would be killed if he let Boykins go free.
II. The Verdict and Sentencing
The jury found Paulino guilty of one count of first degree murder (§ 187, subd.
(a)) with a special circumstance finding that the murder occurred during the commission
of a kidnapping for robbery (§ 190.2, subd. (a)(17)), one count of second degree robbery
(§ 211), and one count of kidnapping for robbery (§ 209, subd. (b)). As to each count,
the jury found true the allegation that a principal was armed with a firearm during the
commission of the crime (§ 12022, subd. (a)(1)). The trial court sentenced Paulino to
life in prison without the possibility of parole, plus one year on the firearm enhancement.
On February 29, 2012, Paulino filed a notice of appeal from his judgment of
conviction (Case No. B239878). On September 13, 2012, following the trial court’s
3
denial of his motion to compel discovery regarding juror allocation methods, Paulino
filed a second notice of appeal from the order denying that motion (Case No. B246625).
DISCUSSION
I. Motion for Discovery of Pitchess Material
Paulino first argues that the trial court abused its discretion and violated his right
to due process when it denied, in part, his Pitchess motion for an in camera review of the
personnel records of the interrogating officers. Paulino specifically asserts that the trial
court erred in limiting the discovery of complaints against Detective Felix to allegations
of falsity on Miranda3 waiver forms, rather than all allegations of dishonest conduct by
the detective. Paulino also requests that we independently review the sealed transcript of
the in camera proceedings to determine if the trial court properly found that there was no
discoverable material in Detective Felix’s personnel records.
A. Relevant Background
At the preliminary hearing, Detective Felix testified that, prior to interviewing
Paulino on September 11, 1996, he presented Paulino with an admonition and waiver of
Miranda rights form, which Paulino signed. The signed form shows a handwritten date
of September 11 or 12, 1992 (rather than 1996) at the top and Paulino’s signature at the
bottom. The body of the form includes four pre-printed admonitions with Paulino’s
handwritten initials next to each admonition. It also includes the handwritten word “Yes”
next to two pre-printed questions asking whether Paulino understood each of these rights
and whether he wished to give up the right to remain silent.4 There is no response to a
3 Miranda v. Arizona (1966) 384 U.S. 436.
4 It appears that, in response to the question asking whether Paulino understood his
Miranda rights, the word “Yes” may have been written over some other indecipherable
handwriting.
4
third pre-printed question asking whether he wished to give up the right to speak to an
attorney and have the attorney present during questioning. Beneath Paulino’s signature is
a handwritten notation stating, “I want to speak to Felix.”
At the start of the first audiotaped interview conducted on September 11, 1996,
Detective Felix orally advised Paulino of his Miranda rights and asked him if he
understood those rights. In response, Paulino asked, “Where’s the attorney?” Detective
Felix answered that there was “no attorney here but if you want one before I ask you
these questions I’m gonna ask you, you have a right to do that.” Paulino then asked,
“You mean it’s gonna take him long to come?” Detective Felix responded, “Well, I’m
just asking you a question, man – do you want to talk to me?” Paulino replied, “Okay, I
want to talk to you but I wanna know what’s going on.” When Detective Felix stated that
he would explain what was going on, Paulino said, “I want to talk to you Detective
Felix.” Detective Felix then proceeded with the interview during which Paulino admitted
his involvement in the crimes against Boykins. In a second videotaped interview with
both Detective Felix and Detective Edwards, Paulino again confessed to his role in the
crimes.
On August 11, 2010, prior to the start of the retrial, Paulino brought a Pitchess
motion for discovery of the personnel records of Detectives Felix and Edwards. Paulino
specifically sought records of complaints related to each officer’s “dishonesty, filings of
false police reports, and information regarding [the] officer’s credibility, in particular,
misrepresentation of witness statements, and the voluntariness of statements and the
waiver of Miranda.” The motion was supported by a declaration from Paulino’s trial
counsel, which stated, upon information and belief, that Paulino “did not voluntarily
waive and give up his right to have an attorney present when questioned by officers,” and
“did not sign the form given [to] him by officers so as to indicate that ‘Yes,’ he
understood his rights.” The trial court initially denied the Pitchess motion in its entirety
on November 3, 2010.
Paulino thereafter renewed his request for discovery by filing a second Pitchess
motion. The second motion was substantively the same as the first, but was supported by
5
a sworn declaration from Paulino (as opposed to his attorney). In his declaration, Paulino
stated that he “did not voluntarily waive and give up [his] right to have any attorney
present when questioned by the officers.” He further stated that he “did not sign the form
given [to him] by officers,” and he “did not cross out the word ‘No,’ nor did [he] write
‘Yes’ on the form” in response to the question asking whether he understood his rights.
Paulino’s renewed Pitchess motion was heard on January 11, 2011. At the start of
the hearing, the trial court stated: “I must tell you I’m very skeptical of this claim that the
defendant is making that he did not sign the form that is at issue, and my skepticism
comes from the fact that this is a retrial of a matter that was tried many years ago and this
claim was not raised years ago. But putting this court’s skepticism aside, I think I must
accept the fact that the defendant has stated under oath that he did not cross out the word
“no” on the form and he did not sign the form waiving his Miranda rights.” After
hearing from counsel, the trial court decided that it would conduct a limited Pitchess
review of Detective Felix’s personnel records for past allegations of falsity on Miranda
waiver forms, but would not review Detective Edwards’s personnel records because
Paulino’s waiver form indicated that only Detective Felix had advised him of his
Miranda rights.
Paulino’s counsel requested that the scope of the trial court’s Pitchess review
include all allegations of dishonesty, rather than being limited to allegations of falsity on
Miranda forms. In response, the trial court stated: “You have a tape recorded statement
of a defendant, and the issue is the defendant is now saying . . . years after conviction,
reversal for Wheeler error, he’s now saying, oh, gee, I did not willingly make that
statement. There’s no question as to what he said. This is not a question of is Felix lying
about what the defendant told him. The question is, did this defendant fill out a form
which bears his apparent signature. And it’s almost inconceivable to think that a
detective could fill out a form, sign the defendant’s name, and then the defendant would
talk to him and give a confession. It’s inconsistent in my view. I suppose -- I mean, we
should look at the wording on the confession. . . I just think it’s something that comes at
a very late time in . . . these proceedings and I think I’ve made my skepticism clear. So I
6
am going to acknowledge that the defendant says now, I did not sign the form. But that’s
the issue to me, . . . has Felix ever been accused of fabricating forms of confessions in his
long career as a detective and I’m going to find out.”
After conducting an in camera review of Detective Felix’s personnel records, the
trial court determined that there was no discoverable material. Back in open court, the
trial court noted that the reviewed records included a complaint by Paulino that he was
not advised of his Miranda rights, but no complaint that Detective Felix had falsified any
document relating to his Miranda waiver. The court also noted that Paulino’s complaint
had been determined to be unfounded, and that documents related to that complaint
already had been disclosed to the defense.
B. Applicable Law
“For approximately a quarter-century our trial courts have entertained what have
become known as Pitchess motions, screening law enforcement personnel files in camera
for evidence that may be relevant to a criminal defendant’s defense.” (People v. Mooc
(2001) 26 Cal.4th 1216, 1225 (Mooc) (fn. omitted); see Pitchess, supra, 11 Cal.3d 531.)
To balance the defendant’s right to discovery of records pertinent to his or her defense
with the peace officer’s reasonable expectation that his or her personnel records will
remain confidential, the Legislature has adopted a statutory scheme requiring a defendant
to meet certain prerequisites before his or her request may be considered. (§§ 832.5,
832.7, 832.8; Evid. Code, §§ 1043-1047 [statutory scheme governing Pitchess motions].)
Specifically, a defendant seeking discovery of a peace officer’s confidential
personnel records must file a written motion describing the type of records or information
sought, and must include with the motion an affidavit demonstrating good cause for the
discovery and the materiality of such evidence to the defense. (Mooc, supra, 26 Cal.4th
at p. 1226; Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1019 (Warrick).) The
information also must be requested with “sufficient specificity to preclude the possibility
of a defendant’s simply casting about for any helpful information.” (Mooc, supra, at
p. 1226.) “These requirements ensure that only information ‘potentially relevant’ to the
7
defense need be brought by the custodian of the officer’s records to the court for its
examination in chambers. [Citation.]” (Warrick, supra, at p. 1024.)
Once the trial court concludes that the defendant has satisfied these prerequisites,
the custodian of records is obligated to bring to court all documents “‘potentially
relevant’” to the defendant’s motion. (Mooc, supra, 26 Cal.4th at p. 1226.) The trial
court must examine the information in chambers, outside the presence of any person
except the proper custodian “and any other persons as the person authorized to claim the
privilege is willing to have present.” (Evid. Code, §§ 915, subd. (b), 1045, subd. (b); see
Warrick, supra, 35 Cal.4th at p. 1019.) Subject to certain statutory exceptions and
limitations,5 the trial court must then disclose to the defendant “‘such information that is
relevant to the subject matter involved in the pending litigation.’” (Mooc, supra, at
p. 1226; accord, Warrick, supra, at p. 1019.) “A trial court’s ruling on a motion for
access to law enforcement personnel records is subject to review for abuse of discretion.
[Citation.]” (People v. Hughes (2002) 27 Cal.4th 287, 330.)
In Warrick, the California Supreme Court concluded that, in addition to a specific
description of the discovery sought and a demonstration of a logical link between the
defense proposed and the pending charge, good cause for Pitchess discovery requires
only that the defendant present a factual scenario of officer misconduct “that might or
could have occurred.” (Warrick, supra, 35 Cal.4th at p. 1026.) The Court also recognized
that, depending on the circumstances of the case, the defendant’s factual scenario “may
consist of a denial of the facts asserted in the police report.” (Id. at pp. 1024-1025.) At
the Pitchess discovery stage, a factual scenario is sufficiently plausible when it “presents
5 The trial court must exclude from discovery: “(b)(1) Information consisting
of complaints concerning conduct occurring more than five years before the event or
transaction that is the subject of the litigation in aid of which discovery or disclosure is
sought. [¶] (2) In any criminal proceeding the conclusions of any officer investigating a
complaint filed pursuant to Section 832.5 of the Penal Code. [¶] (3) Facts sought to be
disclosed that are so remote as to make disclosure of little or no practical benefit.” (Evid.
Code, § 1045; see also Mooc, supra, 26 Cal.4th at pp. 1226-1227.)
8
an assertion of specific police misconduct that is both internally consistent and supports
the defense proposed to the charges.” (Id. at p. 1026.)
C. The Trial Court Did Not Err in Partially Denying the Pitchess Motion
Paulino contends that the trial court erred when it declined to conduct a Pitchess
review of Detective Felix’s personnel records for any and all allegations of dishonest
conduct by the officer, and instead limited the scope of its review to allegations of falsity
related to Miranda waiver forms. As described by Paulino, dishonest conduct not only
encompasses falsified Miranda waivers, but also extends to the filing of false police
reports, fabrication of witness statements, coercion of involuntary confessions, and any
other matter related to the officer’s credibility. Paulino reasons that complaints regarding
any act of dishonesty by Detective Felix were material to the defense theory that Paulino
did not voluntarily waive his Miranda rights prior to questioning. We conclude that the
trial court did not abuse its discretion in partially denying the Pitchess motion.
As our Supreme Court observed in Warrick, “a showing of good cause requires a
defendant seeking Pitchess discovery to establish not only a logical link between the
defense proposed and the pending charge, but also to articulate how the discovery being
sought would support such a defense or how it would impeach the officer’s version of
events. This court has long required that the information sought must be described with
some specificity to ensure that the defendant’s request . . . is limited to instances of
officer misconduct related to the misconduct asserted by the defendant.” (Warrick,
supra, 35 Cal.4th at p. 1021.) The specificity requirement accordingly “excludes requests
for officer information that are irrelevant to the pending charges.” (Ibid.; see also
People v. Jackson (1996) 13 Cal.4th 1164, 1220 (Jackson) [where defendant alleged that
his confession was coerced, trial court properly limited its Pitchess review to complaints
against the interrogating officers regarding coerced confessions]; People v. Hustead
(1999) 74 Cal.App.4th 410, 416 [where only remaining charge against defendant was for
evasion of arrest, trial court did not err in denying Pitchess request for complaints of
excessive force by the arresting officers].) It also “enables the trial court to identify what
9
types of officer misconduct information, among those requested, will support the defense
or defenses proposed,” and “establishes the statutorily required materiality prong of the
good cause showing that a defendant must make to receive in-chambers review of
potentially relevant officer records.” (Warrick, supra, at pp. 1021-1022.)
In this case, Paulino’s sole claim of misconduct by the interrogating officers was
that Detective Felix falsified his Miranda waiver form by crossing out the word “no” and
writing “yes” in response to the question asking whether Paulino understood his rights,
and then forging Paulino’s signature on the form. Paulino did not claim that Detective
Felix fabricated any of the statements that Paulino made during the interrogation, or that
he coerced Paulino into making incriminating statements about his participation in the
crimes. As the trial court observed, because Paulino’s interviews with the police were
recorded, “there’s no question as to what he said” during the interviews, and thus, no
claim that Detective Felix was “lying about what [Paulino] told him.”6 In support of his
Pitchess motion, Paulino did allege that Detective Felix lied in his police report, but that
allegation was directed at the statements in the report that Paulino was advised of, and
waived, his Miranda rights by signing the written waiver form. Paulino did not allege
that Detective Felix made any other false statements in his police report, or engaged in
any other misconduct in connection with the interrogation. Under these circumstances,
the trial court did not err in limiting the scope of Pitchess discovery to allegations of
falsity in the Miranda waiver forms procured by Detective Felix.
6 Paulino asserts that, at the start of the first audiotaped interview, there was a gap in
the recording during the time that Detective Felix was orally advising him of his Miranda
rights, which supports his claim that he did not voluntarily waive his rights. However,
Paulino did not allege in his declaration that Detective Felix engaged in any misconduct
during the oral Miranda advisement, and instead limited his claim of officer misconduct
to the alleged fabrication of the written Miranda form. Moreover, the transcript of the
recording shows that, after advising Paulino of his Miranda rights, Detective Felix
specifically asked Paulino if he wanted to talk to him, and Paulino unequivocally
answered, “I want to talk to you Detective Felix.”
10
D. The Trial Court Did Not Err in Conducting the In Camera Review
As discussed, after ruling on Paulino’s Pitchess motion, the trial court conducted
an in camera review of Detective Felix’s personnel records and determined that there was
no discoverable material. On appeal, Paulino requests that we independently review the
sealed record of the in camera proceedings to determine if the trial court abused its
discretion in conducting its Pitchess review. We have reviewed the sealed transcript and
conclude that the trial court properly exercised its discretion in finding that none of the
material reviewed was discoverable, and therefore, the disclosure of information from
Detective Felix’s personnel records was not appropriate. (Mooc, supra, 26 Cal.4th 1216
at p. 1229; People v. Hughes, supra, 27 Cal.4th at p. 330.)
II. Motion to Compel Discovery Related to Juror Allocation Methods
Paulino also challenges the trial court’s denial of his motion to compel discovery
of information pertaining to the Los Angeles County Jury Commissioner’s method of
allocating jurors. He contends that the trial court applied the incorrect legal standard in
ruling on the motion by requiring him to state a prima facie case of underrepresentation
of Blacks and Hispanics in the jury pool. He further claims that the denial of his motion
constitutes reversible error because it deprived him of the constitutional right to a jury
drawn from a fair cross-section of the community.
A. Relevant Background
Paulino’s case was tried in the Central Judicial District of the Los Angeles County
Superior Court. On August 24, 2011, before voir dire began, Paulino objected to the jury
panel. His counsel stated that he believed the panel was racially exclusive because only
two of the first 35 prospective jurors were Black. The trial court overruled the objection,
but decided to ask each prospective juror to identify his or her race in voir dire in addition
to answering the standard background questions. Later that day, during voir dire, Paulino
again objected to the panel. His counsel explained that, based on the responses provided,
“almost every single juror in this case is selected from a town north of this courthouse.”
He also reiterated his concern about the small number of African-Americans on the panel.
11
The trial court overruled the objection and continued with jury selection. Paulino’s jury
ultimately was comprised of seven White jurors, four Asian jurors, and one Black juror.
According to Paulino, none of the jurors resided in the Central District.
Following the jury’s verdict, Paulino filed a motion to compel discovery of
information related to the Jury Commissioner’s method of allocating prospective jurors
for assignment to local courthouses. Paulino specifically contended that the jury venire
for the Los Angeles County Superior Court was not drawn from a representative cross-
section of the community because African-Americans were underrepresented in the jury
venire for the Central District. In support of this claim, Paulino alleged that residents of
the Central District, which had a higher percentage of African-American residents than
other judicial districts, were being systematically excluded from serving at courthouses
within that district based on the Jury Commissioner’s allocation methods. Paulino also
alleged that, among the prospective jurors assigned to serve in the Central District,
African-American jurors were being disproportionately assigned to the Metropolitan
Courthouse, where more misdemeanor cases were tried, and excluded from the Foltz
Criminal Justice Center, where more felony cases were tried. Paulino supported his
motion with statistical information and analysis on the racial demographics in the various
judicial districts, and declarations from counsel about their personal observations of jury
venires in the Central District.7
At a subsequent hearing on Paulino’s motion, Gloria Gomez, Director of Juror
Services for the Los Angeles County Superior Court, testified about the process of
allocating jurors for assignment to local courthouses. As described by Gomez,
prospective jurors are randomly selected for service from a computerized master file that
combines the list of registered voters and the Department of Motor Vehicles list of
licensed drivers and identification cardholders who reside in Los Angeles County. The
master file, which is created every 12 to 15 months, contains the name, address, and date
7 The two attorney declarations that Paulino submitted in support of his motion to
compel discovery are not included in the record on appeal.
12
of birth of each person listed, but does not include any information about the person’s
race or ethnicity. After prospective jurors are randomly selected for service from the
master list, a different computerized program assigns them in random order to serve at
one of 34 courthouses in Los Angeles County. Jurors are assigned to a courthouse within
a 20-mile radius of their residence, with the first preference being an assignment to the
courthouse that is closest to the juror’s residence. If the courthouse closest to the juror’s
residence already has a sufficient number of jurors at the time of assignment, the juror
will be assigned to the next closest courthouse within the 20-mile radius that needs jurors.
Jurors are not assigned according to the judicial district in which they reside, and thus,
they may be assigned to a courthouse outside of their district if that courthouse is closest
to the juror’s residence and requires additional jurors at the time of assignment. The
program that makes the assignments does not contain any information about the
prospective jurors’ race or ethnicity, and accordingly, does not consider race or ethnicity
in assigning jurors to a particular courthouse or district. The Jury Commissioner seeks to
ensure that jury venires are drawn from a representative cross-section of the community
by drawing jurors randomly from the race-neutral master file.
On July 16, 2012, the trial court denied Paulino’s motion to compel discovery.
In a detailed written decision, the court concluded that Paulino had “failed to satisfy
the requisite burden for the granting of [his] discovery motion, which is to say of
establishing a ‘particularized showing’ supporting a reasonable belief that the alleged
underrepresentation of African Americans or Hispanics in the jury venire exists as the
result of a practice of systematic exclusion.”
B. Applicable Law
“Under the federal and state Constitutions, a defendant is entitled to a jury drawn
from a representative cross-section of the community. (U.S. Const., 6th Amend.; Cal.
Const., art. I, § 16; [citations].) This guarantee mandates that courts select juries from
pools that do not systematically exclude distinctive groups in the community.
[Citation.]” (People v. Lucas (2014) 60 Cal.4th 153, 255.) “The relevant ‘community’
13
for cross-section purposes is the community of qualified jurors in the judicial district in
which the case is to be tried. [Citations.]” (People v. Currie (2001) 87 Cal.App.4th 225,
233.)
“[T]o 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 v. Missouri (1979) 439 U.S. 357, 364
(Duren); see also People v. Burgener (2003) 29 Cal.4th 833, 856.) “Where . . . a
county’s jury selection criteria are neutral with respect to the distinctive group, the
defendant must identify some aspect of the manner in which those criteria are applied that
is not only the probable cause of the disparity but also constitutionally impermissible.
[Citation.]” (People v. Burgener, supra, at p. 858.) “‘If a defendant establishes a prima
facie case of systematic underrepresentation, the burden shifts to the prosecution to
provide either a more precise statistical showing that no constitutionally significant
disparity exists or a compelling justification for the procedure that has resulted in the
disparity in the jury venire. [Citations.]’” (Id. at p. 856.)
“In order to investigate whether the court has failed to draw a jury from a
representative cross-section of the community, . . . a defendant has certain rights to
discovery.” (People v. Lucas, supra, 60 Cal.4th at p. 255.) In People v. Jackson, supra,
13 Cal.4th 1164, the California Supreme Court held that, where a defendant’s request for
discovery of information relevant to jury selection procedures is denied, “we consider not
whether defendant has made a prima facie case, but the prior question of whether
defendant was wrongly denied the discovery of information necessary to make such a
case.” (Id at. p. 1194.) Rather than establishing a prima facie case of systematic
underrepresentation, a defendant need only make “a particularized showing supporting a
reasonable belief that underrepresentation in the jury pool or the venire exists as the
result of practices of systematic exclusion.” (Ibid., italics added.) Upon such a showing,
14
“the court must make a reasonable effort to accommodate the defendant’s relevant
requests for information designed to verify the existence of such underrepresentation and
document its nature and extent.” (Ibid.) “‘[A] “reasonable belief” is simply a
“conviction of mind . . . arising by way of inference” [citation], a “belief begotten by
attendant circumstances, fairly creating it, and honestly entertained.” [Citation.]’
[Citation.]’ (Roddy v. Superior Court (2007) 151 Cal.App.4th 1115, 1135, italics
omitted.) A trial court’s “ruling on a discovery motion is subject to review for abuse of
discretion.” (People v. Prince (2007) 40 Cal.4th 1179, 1232.)
C. The Trial Court Did Not Err in Denying the Discovery Motion
Paulino argues that the trial court erred in denying his motion to compel discovery
by incorrectly deciding the case under the Duran test, which required him to establish a
prima facie case of systematic underrepresentation in the jury selection process, rather
than the Jackson test, which merely required him to demonstrate a reasonable belief that
underrepresentation in the jury venire existed as a result of systematic exclusion. Paulino
also asserts that he satisfied his burden of proof under the Jackson test, and was thus
entitled to discovery to verify a violation of his constitutional right to a jury drawn from a
representative cross-section of the community. We conclude that the trial court properly
denied Paulino’s motion.
First, Paulino fails to provide any support for his claim that the trial court applied
the incorrect legal standard in ruling on his motion, and the record on appeal establishes
that there was no such error. In its written ruling, the trial court correctly set forth the
applicable law, stating that “[i]n order to be entitled to discovery on the issue of juror
information, . . . a defendant, must first establish a ‘particularized showing’ supporting
a ‘reasonable belief’ that underrepresentation in the jury pool or venire, in the instant
case African-Americans and Hispanics, exists as the result of practices of systematic
exclusion.” After reviewing the evidence proffered by Paulino in support of his motion,
15
the trial court found that he “failed to satisfy the requisite burden for the granting of [his]
discovery motion, which is to say of establishing a ‘particularized showing’ supporting a
reasonable belief that the alleged underrepresentation of African Americans or Hispanics
in the jury venire exists as the result of a practice of systematic exclusion.” The trial
court did not make any reference to the Duren test in ruling on the motion, but rather
properly applied the Jackson test in deciding whether Paulino had satisfied his requisite
burden.8
Second, the trial court did not abuse its discretion in ruling that Paulino had failed
to make the particularized showing required for discovery under Jackson. As Gomez
testified, the Los Angeles County Superior Court randomly selects prospective jurors
from a master list that is comprised of the list of registered voters and the list of drivers
and identification cardholders from the Department of Motor Vehicles after being purged
of duplicate names. Code of Civil Procedure section 197, subdivision (b) specifically
provides that “[t]he list of registered voters and the Department of Motor Vehicles’ list
of licensed drivers and identification cardholders resident within the area served by the
court, are appropriate source lists for selection of jurors,” and that “[t]hese two source
lists, when substantially purged of duplicate names, shall be considered inclusive of a
representative cross section of the population.” The California Supreme Court likewise
has held that the combination of these source lists “‘“‘shall be considered inclusive of a
representative cross-section of the population’” where it is properly nonduplicative.’
[Citation.]” (People v. Burgener, supra, 29 Cal.4th at p. 857.) Because the County’s jury
selection criteria are neutral with respect to race and ethnicity, Paulino had the burden of
establishing the basis for a reasonable belief that the manner in which those criteria are
being applied is the probable cause of the alleged disparity and is constitutionally
8 The trial court did apply the Duren test in ruling on a separate motion to quash a
jury venire, which was brought by a different defendant but considered in conjunction
with Paulino’s motion to compel discovery.
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impermissible. (Id. at p. 858; Jackson, supra, 13 Cal.4th at p. 1195.) Paulino did not
meet his burden here.
“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.]” (People v. Danielson (1992) 3 Cal.4th 691, 706,
overruled on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069,
fn. 13.) Accordingly, “[a] defendant does not discharge the burden of demonstrating that
the underrepresentation 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. [Citation.]” (People v.
Burgener, supra, 29 Cal.4th at p. 857.) Furthermore, “[s]peculation as to the source of
the disparity is insufficient to show systematic exclusion [citation], as is evidence the
disparity is unlikely to be a product of chance [citation] or has endured for some time
[citation].” (Id. at p. 858; see Roddy v. Superior Court, supra, 151 Cal.App.4th at
p. 1143 [“it cannot be reasonably believed, based solely on an apparent statistical
disparity between a cognizable group’s representation in the community . . . and its
representation in a master jury list, that either a source list . . . or the practices used in
forming that master jury list potentially constitute an improper means of jury selection”].)
In support of his discovery motion, Paulino presented statistical demographic
evidence consisting of (1) 2010 census data on the racial and ethnic makeup of the adult
population in each judicial district, and (2) a report prepared by a statistician that purports
to analyze the probability of obtaining Central District jury panels with a percentage of
African-Americans and Hispanics that mirrors their general population percentages in
that district. As described by Paulino, the report “uses a subjective weighing scheme
provided by defense counsel that is designed to mirror the venire pools presented to
[another defendant] and Paulino with respect to the judicial district of origin of the
potential juror.” The report states that when jury venires in the Central District are drawn
from communities outside the district with lower populations of African-American and
Hispanic residents, it becomes very improbable to have a venire panel representation that
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closely approximates the percentages of African-Americans and Hispanics in the Central
District.
As the trial court correctly observed, the statistical evidence offered by Paulino is
speculative and conclusory in nature. The statistician’s report appears to assert that there
is an underrepresentation of African-Americans and Hispanics in the Central District jury
venires. However, apart from alleging the bare fact of underrepresentation, the report
fails to demonstrate how the purported disparity may be the result of a practice of
systematic exclusion. To the extent the report is postulating that the source of the alleged
disparity may be the inclusion of jurors outside the Central District in venires within that
district, such hypothesis appears to rely on a “subjective” weighing scheme that is not
supported by underlying statistical data and is not clearly defined in the report. The
report itself also vaguely notes that it is “based on a set of assumptions the veracity of
which is difficult to ascertain in the absence of more detailed data.” There is nothing in
Paulino’s proffered evidence which would support a reasonable belief that the Jury
Commissioner’s method of assigning jurors in random order to courthouses within a
20-mile radius of their residence is an improper means of jury selection. Based on this
record, the trial court reasonably could find that Paulino failed to make the particularized
showing required for discovery under Jackson.
Finally, Paulino asserts that the Jury Commissioner has an affirmative duty to
allocate prospective jurors to courthouses in a manner that ensures the resulting jury
venires represent a fair cross-section of the judicial district where the case is to be tried.
Paulino further reasons that the Jury Commissioner breaches that affirmative duty by
drawing jurors randomly from the master list. However, it is well-established that a jury
selection process that uses neutral criteria is not constitutionally impermissible in its
application merely because it ‘“‘may . . . operate to permit the de facto exclusion of a
higher percentage of a particular class of jurors than would result from a random draw.”’”
(People v. Danielson, supra, 3 Cal.4th at p. 706.) As the Supreme Court explained in
People v. Bell (1989) 49 Cal.3d 502, a state is not required “to create venires that reflect
a representative cross-section of the population. The Sixth Amendment forbids the
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exclusion of members of a cognizable class of jurors, but it 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.” (Id. at p. 530.) “So long as
the state uses criteria that are neutral with respect to the underrepresented group,” a
defendant cannot establish a prima facie case of systematic exclusion “by showing the
state could have adopted other measures to improve further the group’s representation.”
(People v. Ochoa (2001) 26 Cal.4th 398, 427-428.) Because Paulino failed to satisfy his
burden under Jackson, the trial court did not abuse its discretion in denying his motion to
compel discovery of information related to the method of allocating prospective jurors.
DISPOSITION
The judgment is affirmed.
ZELON, J.
We concur:
PERLUSS, P. J.
SEGAL, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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