People v. Jones

BURKE, J.

I dissent. The majority opinion reverses appellant’s conviction on the ground that he was denied his right to a trial by a “jury of the State and district wherein the crime shall have been committed” (italics added) as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution. For the reasons set forth below, I have concluded that the jury selection procedure employed in this case does not violate the Sixth Amendment’s so-called “vicinage” requirement.

I. Vicinage

Although the concept of “vicinage” (see ante, p. 550, fn. 1) was embodied in the Sixth Amendment, it is evident that Congress did not intend the Sixth Amendment’s “vicinage” provision to connote the identical meaning the term had come to acquire in England.1 The issue in this action is whether this provision of the Sixth Amendment, made binding on the states by the Fourteenth Amendment, mandates the inclusion of Los Angeles Central District residents in appellant’s jury panel. Although the majority answer this inquiry affirmatively, I reach tire contrary conclusion.

As used in the Sixth Amendment, the term “district” refers to the judicial districts created by the Judiciary Act of 17892 and not to the subdivisions of a single county, as here, the administrative branch court districts of the Los Angeles County Superior Court. The Sixth Amendment includes the provision that the district from which the jury is to be chosen “shall have been previously ascertained by law.” A reasonable interpretation of this clause leads to the conclusion that the framers of the Sixth Amendment intended to refer to the federal judicial districts, such as the present Northern District of California, since the Judiciary Act of 1789 was passed on the day preceding the recommendation of the constitutional amendment *559to the states.3 Thus, I see no basis whatever for assuming that the term “district” could refer to the administrative branch court districts in Los Angeles County.

Even assuming arguendo that “district” was intended to refer not only to a federal judicial district but to the county in which the offense was committed, it still follows that since appellant’s jury panel was drawn from within Los Angeles County, the procedure employed to select his jury panel complied with the “vicinage” requirement of the Sixth Amendment. Rather than narrowly restricting the area from which a jury may be selected, the Sixth Amendment marked the extreme bounds of this area.4 The fact that appellant’s jury panel was drawn from only a portion of the county, which did not include residents of the central district wherein the offense was committed, is insufficient to render the conviction invalid.

United States v. Florence (4th Cir. 1972) 456 F.2d 46, supports this position. In Florence, a draft evasion case, defendant was ordered to report for induction at Parkersburg, West Virginia, one of the six cities designated for holding court in the Northern District of West Virginia. Prospective jurors from Wood .County, defendant’s county of residence, were included only in the jury panels for trials held at the Parkersburg “division” of the Northern District of West Virginia. However, defendant was indicted, tried, and convicted in Elkins, West Virginia. Since the residents of Wood County served only on Parkersburg juries, the grand and petit juries of the Elkins “division” which indicted and convicted defendant excluded residents of both defendant’s home county and the Parkersburg “division.”

The Fourth Circuit affirmed the conviction, holding that “[W]e conclude that Florence had neither a constitutional nor statutory right to a district-wide jury nor to a jury selected from the Parkersburg ‘division.’ ” (United States v. Florence, supra, 456 F.2d 46, 50.) That decision was premised upon the Jury Selection and Service Act of 19685 which requires the selection of jurors to be made from the counties or political subdivisions surrounding the place of trial.

Although the Florence court did not explicitly mention'the Sixth Amendment, its implied conclusion was that there is no right to the inclusion on the jury panel of residents from either the defendant’s home county or the “division” wherein the crime was committed. The similarities between the *560situation in Florence and in the case under review are striking. Here, the offense occurred in the 77th Street Precinct, but trial was had in the Southwest District which excluded 77th Street Precinct and other Central District residents from the jury panel. In Florence the trial was held in the Elkins “division” and the jury panel excluded all residents of the counties within the Parkersburg “division.” Thus, since the procedure employed in Florence comported with statutory and constitutional requirements, so does the procedure involved in this case. I fail to perceive the reasons which underlie the contrary conclusion of the majority.

The Supreme Court of Iowa, when presented with a similar issue affirmed the constitutionality of a local jury selection statute in State v. Kappos (Iowa 1971) 189 N.W.2d 563, appeal dismissed, 405 U.S. 982 [31 L.Ed.2d 449, 92 S.Ct 1246], Following a jury trial in a municipal court located in the City of Ames, defendant was convicted of knowingly permitting a minor to purchase or consume alcoholic beverages on the premises of a licensed liquor establishment. On appeal defendant contended, inter alia, that Iowa Code section 602.346 was unconstitutional. Defendant’s tavern, the site of the offense, was located in Cambridge, a small town in Story County, which is within the territorial jurisdiction of the municipal court where the trial was had.7 Thus, by operation of statute defendant was tried by a jury composed entirely of the residents of Ames and which excluded residents from other portions of the territorial jurisdiction of the municipal court.

In upholding the constitutionality of the challenged statute, the court-rejected the contention that defendant had been denied due process and equal protection of law under the state and federal Constitutions. Although the concept of “vicinage” was not discussed, the court remarked “We hold the selection of jurors as provided in section 602.34 did not violate defendant’s constitutional rights nor deprive him of an impartial jury.” (State v. Kappos, supra, 189 N.W.2d 563, 564.) It appears that the primary focus in Kappos was on the impartiality of the jury rather than “vici*561nage.” Yet, by sustaining the validity of the challenged provision the Supreme Court of Iowa impliedly concluded that the jury panel need not include residents of the portion of the district wherein the crime was committed. In view of the majority’s extensive references to impartiality in conjunction with the discussion of “vicinage,” I consider it necessary to comment next upon that particular point.

II. Impartiality

Having explained why appellant was not denied his constitutional right to a jury trial in the “district” wherein the crime was committed (i.e., vicinage), I turn to the related question whether appellant was denied the further right to a jury “representative of a cross section of the community”8 (i.e., impartiality).

The majority’s holding appears to be based upon a synergistic combination of these two foregoing principles, and an interchangeable use of the terms “district” and “community.” Thus, the majority conclude “Therefore, a criminal defendant in a state criminal prosecution has a constitutional right to be tried by a jury drawn from, and comprising a representative cross-section of, the residents of the district wherein the crime shall have been committed.” (Ante, p. 551.) Yet, just as the term “district” under the Sixth Amendment has no relation whatever to a particular administrative “district” in Los Angeles County, likewise the term “community,” as used in cases discussing the issue of impartiality, is neither the geographical equivalent of, nor the lexical synonym of, a local, inter-county district such as the Central District of Los Angeles.

The inferential and unwritten conclusion derived from the majority holding is that the exclusion of 77th Street Precinct residents somehow denied appellant a jury which reflected a representative cross-section of his “community.” Without attempting to define the metes and bounds of the elusive concept of “community,” I submit that the appellant’s jury panel did not exclude any “significant element” or “discernible class,” and consequently was not unreflective of a representative cross-section of the “community.” Two recent decisions support this conclusion.

In United States v. Butera (1st Cir. 1970) 420 F.2d 564, after conviction for attempted income tax evasion, defendant appealed the denial of his motion to dismiss the indictment on the ground that it was returned by an unlawfully constituted grand jury. The court agreed that the jury lacked three cognizable and distinct groups (see Hernandez v. Texas, 347 U.S. *562475, 478-480 [98 L.Ed. 866, 870-871, 74 S.Ct. 667]), namely, young adults, women, and the “less educated.” In discussing the defendant’s contention that geographical areas constituted an additional discernible group, the court remarked “[W]e are not aware that residents of counties can be said to hold views and attitudes which are in any way ‘distinct’ from those of their neighbors in nearby counties, nor has defendant given us any evidence of such distinctness. While common experience tells us that people’s attitudes differ to some degree along lines of age, sex, and extent of education, we are not aware that they differ along county lines. We have been willing above to give a broad meaning to the requisite ‘distinctness’ of classes but in each instance we could point to some indication that the groups isolated by defendant—at least in a general sense—possessed the essential element of distinctness. [Fn. omitted.]” (United States v. Butera, supra, 420 F.2d 564, 572.)

Recently, in People v. McDowell, 27 Cal.App.3d 864 [104 Cal.Rptr. 181], defendant challenged the procedure employed to select jury panels in San Bernardino County which automatically excluded individuals residing more than 25 miles from the courthouse. The court, in affirming the jury selection process, stated (p. 875), “While experience tells us attitudes may differ along lines of education, sex, age, race and social and economic class, we are not aware they normally differ along lines respecting place of residence within a county. Although the geographical limitation might have some significance if it divided the county into rural and urban districts, appellant has offered no statistics showing those excluded might think or react differently from those included on matters which might be submitted to them as jurors.”

On the basis of the Butera and McDowell decisions, I have concluded that the absence of 77th Street Precinct residents from the appellant’s jury panel cannot be said to have amounted to an exclusion of any “significant element” or “discernible group” and that the jury accordingly reflected a cross-section of the community. The discussion in the aforementioned cases relating to lack of differences in or between counties is equally applicable to the branch court districts of the superior court within Los Angeles County. Appellant has made no affirmative showing of any significant feature sufficient to differentiate the 77th Street Precinct from any other area within Los Angeles County.

Additionally, examination of the cases relied upon by the majority demonstrates little support for the proposition that appellant was deprived of his constitutional rights. State of Maryland v. Brown (D.Md. 1969) 295 F.Supp, 63, treated the issue whether defendant was entitled to remove his *563case to federal court under applicable provisions of the United States Code. The portion of that decision quoted by the majority was largely dictum and unnecessary for a proper resolution of that controversy. Since lower federal court decisions are not binding upon this court, I would accord the gratuitous language in the Brown decision little weight in the determination of the present controversy. (See People v. Bradley, 1 Cal.3d 80, 86 [81 Cal.Rptr. 457, 460 P.2d 129]; People v. Clark, 2 Cal.App.3d 510, 519-520 [82 Cal.Rptr. 682].)

The principles to be drawn from Alvarado v. State (Alaska 1971) 486 P.2d 891, warrant further analysis in light of the majority’s reliance upon that decision. The Supreme Court of Alaska was primarily concerned with securing an impartial jury which reflected a cross-section of the community rather than with the “vicinage” requirement of the Sixth Amendment.9

The portions of A Ivarado quoted by the majority appear to support, at least initially, the blanket proposition that selection of jurors must in every situation include the area surrounding the scene of the crime. However, footnote 29, page 902, which limits the language cited by the majority, reads “This does not mean that the source of prospective jurors must in all instances include residents of the place in which the crime was allegedly committed, for it is conceivable that the source of prospective jurors may exclude the scene of the alleged offense, yet . . . reasonably represent a cross section of the community which includes the scene of the offense. Thus, several decisions imply that selection of prospective jurors from a restricted area within a judicial district, even if the scene of the crime is omitted from that area, will be acceptable if there is no indication that the population of the restricted area differs significantly from the population of the entire district. [Citations.]”10

*564In Alvarado, of course, the officials faced unique circumstances in the process of selecting prospective jurors in Alaska. Although the majority find “that the great cultural differences between Chignick and Anchorage are merely dramatically illustrative of one of the purposes of the constitutional rule and do not represent an indispensable factor in its application,” I am compelled to conclude otherwise. The circumstances presented in Alvarado are unlike any other conceivable situation in the United States; Alvarado can be more appropriately likened to the trial of an aboriginal tribesman in an urban Australian metropolis for an offense allegedly committed in the wilds of the bush country. That the differences between the village of Chignick and the City of Anchorage were foremost in the minds of the justices of the Supreme Court of Alaska is evidenced by their detailed and lengthy discussion of this point.11 Thus, although it cannot be said that the same factors which distinguish life in Chignick from life in Anchorage should be the parameters by which we determine the differences, if any, between the 77th Street Precinct and the Southwest District, the appellant has failed to demonstrate the existence of any significant differing characteristics which warrant our wholesale adoption of Alvarado.

I believe the majority’s decision could significantly impede the administration of criminal justice in Los Angeles County. The presiding judge of the superior court is empowered to allocate and when necessary to shift the trials of cases to any branch court districts in order to alleviate congested court calendars and to guarantee the right to a speedy trial.12

*565However, in light of the majority opinion and Code of Civil Procedure section 206,13 the aforementioned powers of the presiding judge will be severely restricted. The burdensome workload of the courts is presently overwhelming, and in the absence of any constitutional imperative, I fail to perceive any justifiable reasons for adding this additional restriction upon the orderly administration of justice.14

Accordingly, I would affirm the judgment of conviction.

McComb, J., and Wood, J.,* concurred.

See Heller, The Sixth Amendment (1951) pages 92-97; Blume, The Place of Trial of Criminal Cases: Constitutional Vicinage & Venue (1944) 43 Mich.L.Rev., pages 59, 60-67.

Section 2 of the Judiciary Act (1 Stat. 73 (1789)) reads in part: “[T]he United States shall be, and they hereby are, divided into thirteen districts, . . .” Each of the original eleven states was designated a single district except for Massachusetts and Virginia, which were each divided into two districts.

Heller, supra, page 94.

Heller, supra, pages 92-93, 97.

28 United States Code section 1861 et seq.

Iowa Code section 602.34 reads in pertinent part: “Jury list. The commission, in the presence and under the supervision of the judge of said court . . . shall, on the establishment of the court, prepare from the pollbooks of the last preceding general election in the territory included in the municipal court district, a list equal in number to one-tenth of all electors thereon qualified for jury service, which shall be known as the ‘jury list,’ . . .” (Italics added.)

Iowa Code section 602.1 defines a municipal court district: “A municipal court may be established in any city having a population of five thousand or more, by proceeding as hereinafter provided. All that part of each civil township within the corporate limits of such city shall constitute the municipal court district.”

Iowa Code section 602.16 reads in part “The jurisdiction of the municipal court shall be coextensive with the territorial limits of the county. . . .”

See Peters v. Kiff (1972) 407 U.S. 493 [33 L.Ed.2d 83, 92 S.Ct. 2163].

This conclusion is supported by the following language: ■ “The narrow issue with which we are presented in this case, then, is whether . . . Alvarado’s jury panel was drawn from a fair cross section of the community.” (P. 898.)

Later the court concluded: “As we have already noted, under certain circumstances it may be permissible to exclude the area of the crime from the source of jury selection [in. omitted], . . . Our ultimate objective is only that juries be selected at random from a source which reflects a fair cross section of the community in which the crime has allegedly occurred; if this goal is attained, the accused will truly have been judged by a jury of his peers. [Fn. omitted.] What we do hold, then, is that an individual should not be forced, against his will, to stand trial before a jury which has been selected in such a manner as to exclude a significant element of the population of the community in which the crime was allegedly committed.” (Italics added; pp. 904-905.)

This footnote appears in the text of Alvarado cited on page 552 of the majority opinion where it is noted that a footnote is omitted between portions of the italicized language.

See Alvarado v. State, supra, 486 P.2d 891, 899-901. Characteristic of this discussion are the following excerpts: “The evidence in the record, summarized above, convincingly reveals the unique situation which prevails in the third judicial district [out of which Alvarado arose] and, indeed, throughout the State of Alaska. This evidence vividly portrays the enormous gulf which separates the mode of life of the typical Alaskan villager from the type of existence led by most residents of Anchorage and other cities of the state. The differences between a Native village and the City of Anchorage are neither simple nor superficial; they are not restricted to a single element such as occupation or income. [Fn. omitted.] Rather, the lines of separation are profound and intersect areas including occupation, economy, domestic relations, politics, language, religion, race, cultural heritage, and geography.” (P. 899.)

The court also stated (p. 900) that “The gap stretching between these two distinct classes of community is of far greater magnitude than that which normally separates city from city or small town from city elsewhere in the United States. We are faced here with the order of differences which distinguishes one culture from another.” (Italics added.)

Rule 2, section 5, of the Rules of Superior Court of Los Angeles County provides: “Whenever, in the opinion of the Presiding Judge, the calendar in any district including t.he Central District, has become so congested as to jeopardize the right of a party to a speedy trial or to materially interfere with the proper handling of the judicial business in the district, he may order the transfer of one or more cases pending in that district to another district for trial or may order, for a limited period, that cases which may be filed in that district shall be filed in a different district.”

Code of Civil Procedure section 206 reads in pertinent part: “. . . In a county of the first class [Los Angeles County], where sessions of the superior court are held in cities other than the county seat, the names for such list to serve in the city shall all be selected from the district in which the city is located and no names from such district shall be selected to serve as trial jurors for any other part of the county, other than in the county seat.”

Although a jury of the “vicinage” is guaranteed by the Sixth Amendment and is binding on the states by reason of the Fourteenth Amendment, today’s strict construction by the majority appears to serve no useful purpose in the administration of justice. One author has noted that “essentially we remain faced with the fact that vicinage is an anachronism unsuited to modern conditions and productive of neither better justice nor greater liberty.” He additionally remarked, “Vicinage, revitalized, as was suggested above, as a political argument of the Revolution, as a legal concept appears to be at cross purposes with the ideal of impartiality. The inclusion of both impartiality and vicinage in the same amendment is indicative of the transitory stage of criminal procedure at that time, but need not be taken as attaching equal weight and significance to the two requirements.” (Heller, supra, p. 95.)

Assigned by the Chairman of the Judicial Council.