I dissent. I would grant the writ.
The question presented is whether the current dual system of selection of prospective trial jurors in criminal cases in the Superior Court of Los Angeles County is unconstitutional under the equal protection clause of the Fourteenth Amendment to the United States Constitution and under article I, sections 11 and 21 of the California Constitution. I have been unable to find any definitive authority on the point but I believe that the dual system, is unconstitutional because it results in the systematic exclusion of residents of the Central District from the possibility of service as trial jurors without a compelling governmental interest and necessity to justify such discrimination.
The Superior Court of Los Angeles County has nine districts. In all the districts except the Central District the selection of prospective trial jurors in criminal cases is made at random from registered voters living in the particular district. In the Central District, however, such selection is made at random from registered voters residing throughout the county. In short, for Central District criminal cases there is a county-wide draw of prospective jurors; in all other districts prospective jurors are drawn only from residents of the particular district.
I concede that the use of either system of prospective juror selection is constitutionally permissible if either were the only system used in criminal cases in the Superior Court of Los Angeles County. (See People v. Jones (1972) *(Cal.App.) 103 Cal.Rptr. 475.) The rub lies in the use of both systems at the same time.
*734The makeup of the Central District is quite different from that of Los Angeles County as a whole. The Central District contains approximately 22 percent of the county’s population. The population of the Central District is, however, 31.5 percent black and 18.3 percent brown (Mexican-American). The population of the county, on the other hand, is 11 percent black and approximately 10 percent brown. Indeed, approximately 62 percent of the entire black population of the county resides in the Central District.
The Central District is apparently, for the most part, a ghetto of low income working-class families. The people within it have little mobility and live, work and exist almost completely within the district. Their way of life is largely unique when it is compared to the ways of life obtaining in the other districts. This uniqueness extends to life style, environment, problems, perception of life and even, to some extent, to language.
The superior court’s basic reason for returning to the dual system of prospective juror selection was because the most complicated and lengthy civil litigation involving the most money tends to be tried in the Central District because of the location within this district of the large downtown law firms and presumably of their principal local business clients. Apparently the impact of the change in the system of prospective juror selection upon the composition of juries in criminal cases was not even considered prior to the change.
In my opinion the dual system constitutes a systematic means of excluding residents of the Central District from jury service in the trial of criminal cases in the Superior Court of Los Angeles County. Instead of these residents being the sole source of such prospective jurors for cases tried in the Central District as the residents of other districts are for cases tried in their district, they constitute but 22 percent of such jurors. Their position as the source of such prospective jurors has been reduced therefore from 100 percent to-22 percent — a reduction of 78 percent.1 Furthermore, *735residents of other districts may be jurors in criminal cases tried in the Central District; residents of the Central District may never become jurors in criminal cases tried in other districts.
Modifying slightly the language of Mr. Justice Marshall in his court opinion for three members of the court in the very recent case of Peters v. Kiff (1972) 407 U.S. 493, 503-504 [33 L.Ed.2d 83, 94, 92 S.Ct. 2163], quoted by the majority, supra, “[When the opportunity of any large and identifiable segment of the community to be prospective trial jurors in criminal cases is drastically reduced], the effect is to remove from the jury room qualities of human nature and varieties of human experience, the range of which is unknown and perhaps unknowable. It is not necessary to assume that the excluded group will consistently vote as a class in order to conclude, as we do, that their exclusion deprives the jury of a perspective on human events that may have unsuspected importance in any case that may be presented.”
Turning from the effect of the dual system upon the opportunity of residents of the Central District to serve as trial jurors to its effect upon the constitutional right of defendants in criminal cases tried in the Central District, such as Rickey Adams, I have this to say. Since the decision of the United States Supreme Court in Duncan v. Louisiana, 391 U.S. 145 [20 L.Ed.2d 491, 88 S.Ct. 1444], on May 20, 1968, the grant in state courts of jury trials for serious offenses (such as those involved in this case), is a fundamental constitutional right “essential for preventing miscarriages of justice and for assuring that fair trials are provided for all defendants.”2 (Duncan v. Louisiana, supra, at pp. 157-158 [20 L.Ed.2d at p. 501].)
It seems clear to me that Rickey Adams’ constitutional right to a jury trial is directly affected by the dual system, of selecting prospective trial jurors in criminal cases in the Los Angeles County Superior Court. Since he is to be tried in the Central District his prospective jurors will be drawn countywide, but one tried for precisely the same crimes in another district would be tried by a jury drawn exclusively from, residents of that particular district. The constitutional right of a defendant in a criminal case to trial by jury includes trial by a proper jury. (See Glasser v. United States (1942) 315 U.S. 60, 85 [86 L.Ed. 680, 707, 62 S.Ct. 457].) Similarly situated *736defendants in criminal cases in Los Angeles County are constitutionally entitled to be tried by juries selected on the same basis. Otherwise the concept of constitutional equal protection of the laws that “persons similarly situated with respect to the legitimate purpose of the law receive like treatment” (see Purdy & Fitzpatrick v. State of California (1969) 71 Cal.2d 566, 578 [79 Cal.Rptr. 77, 456 P.2d 645, 38 A.L.R.3d 1194]) is violated.
Accordingly, since both a fundamental constitutional right of defendants in criminal cases is involved and there is likewise some indication of suspect classifications (wealth and race), the dual selection system before us is constitutional only if it can be justified in tenns of both necessity and a compelling governmental interest. (See Purdy & Fitzpatrick v. State of California, supra, at p. 579; In re Antazo (1970) 3 Cal.3d 100, 110-111 [89 Cal.Rptr. 255, 473 P.2d 999].) The majority have been unable to meet this burden. They do not show necessity. They refer to only two types of cases in which the criminal case load in the Central District differs from those of the other districts. First, as a matter of convenience for the district attorney, all indictments are filed in the Central District and all criminal cases starting with an indictment are therefore tried in the Central District. These cases, however, comprise only a negligible portion of the total number of criminal cases tried by juries in the Central District (69 in 1970, 79 in 1971).
The second justification offered is that since the Central District has by far the largest number of judges, courtrooms and related personnel and facilities generally, it is the district to which large, difficult and lengthy cases originating in the other districts are transferred for trial. This is true, but again these transferred cases run about 20 to 25 a year out of the roughly 700 criminal cases tried by jury per year in the Central District. Furthermore, as the public defender has suggested, a countywide draw limited to these two types of cases and to civil cases as well would appear to be both constitutionally permissible and feasible. I note that the case before us falls into neither of these two categories.
This leaves as the only justification advanced by the majority for the dual system the fact that the burden of jury service upon the residents of the Central District is thereby substantially reduced. Since roughly one-half of the criminal cases tried to a jury are tried in the Central District, containing a little over one-fifth of the county’s population, this burden is disproportionate and not inconsequential. But service on trial juries is one of the fundamental obligations of citizenship and although alleviation of this burden upon residents of a certain geographical area may be a laudable object, considered by itself, it cannot reasonably be said to rise *737to the stature of a necessarily compelling governmental interest. Furthermore, as previously mentioned, an effect of the dual system of jury selection is to deny to residents of the Central District alone the right to serve on juries elsewhere than in the Central District.
I do not believe that Whittaker v. Superior Court (1968) 68 Cal.2d 357 [66 Cal.Rptr. 710, 438 P.2d 358], compels a contrary conclusion. There the question before our Supreme Court was whether it is constitutionally permissible to have in this state two differently sized courts to hear appeals from justice court misdemeanor convictions when the differentiation in size depends upon whether the particular county has a municipal court. (Whittaker v. Superior Court, supra, at pp. 366, 368.) A fundamental right of defendants in criminal cases was not involved and, as pointed out in Whittaker at page 369, under our constitutional system judges, unlike trial juries, are not supposed to be representative.
I would grant the writ.
A petition for a rehearing was denied October 10* 1972, and the opinion was modified on October 10 and 11, 1972, to read as printed above. Cobey, J., was of the opinion that the petition should be granted. Petitioner’s application for a hearing by the Supreme Court was denied November 9, 1972. Peters, J., and Mosk, J., were of the opinion that the application should be granted.
A hearing was granted on October 18, 1972.
In fact, because of the lack of response and the higher percentage of persons excused from jury service in the Central,District, only 11 .percent of the prospective jurors drawn countywide are actually residents of the Central District. Of this 11 percent, 3 percent are black and 2 percent are brown.
My position is that the equal protection clause and its California counterparts (see Serrano v. Priest (1971) 5 Cal.3d 584, 597, 609, 596, fn. 11 [96 Cal.Rptr. 601, 487 P.2d 1241, 41 A.L.R.3d 1187]) prohibit such a gross exclusion of an identifiable geographical group, regardless of the subjective nondiscriminatory intent of those adopting the dual system of prospective juror selection. (See Thiel v. Southern Pacific Co. (1946) 328 U.S. 217, 220 [90 L.Ed. 1181. 1185, 66 S.Ct. 984, 166 A.L.R. 1412, 1415]; Apodaca v. Oregon (1972) 406 U.S. 404 [32 L.Ed.2d 184, 193, 92 S.Ct. 1628] (Ct. opn. for four members of the court); Carmical v. Craven (9th Cir. 1972) 457 F.2d 582, 587-588 (cert, applied for June 19, 1972).) Such discrimination, *735whether practiced ingeniously or ingenuously, is constitutionally proscribed. (See Smith v. Texas (1940) 311 U.S. 128, 132 [85 L.Ed. 84, 87, 61 S.Ct. 164].)
Duncan does not apply to cases tried in state courts where the trials began prior to May 20, 1968. (DeStefano v. Woods (1968) 392 U.S. 631, 635 [20 L.Ed.2d 1308, 1312, 88 S.Ct. 2093].)