People v. Pinell

Opinion

All defendants were indicted for murder (Pen. Code, § 187), conspiracy (Pen. Code, § 182), and assault with a deadly weapon by a prisoner either under life sentence (Pen. Code, § 4500) or a sentence for less than life (Pen. Code, § 4501). All moved to quash the indictment (Pen. Code, § 995) on the ground that the grand jury which returned the indictment in 1971 was improperly chosen.

Respondents contend that “significantly indentifiable elements” of the population of Marin County had been excluded from the pool of 30 names from which the 19 grand jurors for 1971 were drawn. An extended evidentiary hearing was held. Among the witnesses were the judges of the superior court. They solicited names of prospective jurors from a total of 79 civic, labor, ethnic and other organizations of the county, receiving 75 names from that solicitation. They added 30 names they had personally gathered. The judges testified that they collectively sought to obtain a fair cross section of the community, including old and young, male and female, black and white, rich and poor, and those with a knowledge of each section of the county, and that no group was intentionally excluded. Questionnaires were sent to each of the 105 thus chosen. From the replies, the judges unanimously selected 30 names for the grand jury panel. These names were placed in the jury wheel, and the 19 to serve on the 1971 grand jury were chosen by the usual random method.

From the mass of evidence before it, the trial court concluded that “the means used by the selectors did not assure a fair representation of the group to which the moving Defendants belong, to wit: The Blacks, the Latin Americans, the blue collar working class and the young in the pool from which the Grand Jury was selected. The pool was not shown to represent a cross-section of the community.”

Whether a group constitutes a “distinct class” in a particular community is a question of fact. (Hernandez v. Texas, 347 U.S. 475 , 478 [ 98 L.Ed. 866 , 870, 74 S.Ct. 667 ].) There is evidence to support the trial court’s finding of four such classes in Marin.

“Purposeful discrimination is not sustained by a showing that on a single grand jury the number of members of one race is less than that race’s proportion of the eligible individuals .... Defendants under our criminal statutes are not entitled to demand representatives of their racial inheritance upon juries before whom they are tried .... The mere fact of inequality in the number selected does not in itself show discrimination.” (Akins v. Texas, 325 U.S. 398 , 403 [ 89 L.Ed. 1692 , 1696, 65 S.Ct. 1276 ].) Proportional representation is not required, and the proportional limitation necessary to achieve it is forbidden. (Cassell v. Texas, 339 U.S. 282 , 287 [ 94 L.Ed. 839 , 847, 70 S.Ct. 629 ].)

Here there is no evidence of intentional discrimination by the selectors against any of the four groups which the trial court found to exist. Their testimony to the contrary is not disputed. Respondents, however, argue that they met their burden by showing that the selectors had an opportunity to discriminate and that four cognizable groups are statistically underrepresented. The authority they cite (Alexander v. Louisiana, 405 U.S. 625 , 631 [ 31 L.Ed.2d 536 , 542, 92 S.Ct. 1221 ]) does not support this argument. The one decision most nearly approaching respondents’ view (United States v. Butera (1st Cir. 1970) 420 F.2d 564 , 569) notes (fn. 7, p. 568) that it does not create a constitutional standard for the states, but rests upon the supervisory power of the federal appellate courts over the federal trial courts. Moreover, Butera holds only that such a situation places upon the government the burden of demonstrating that the disparities are not the product of discrimination. Thus even if the rule be fully applied to the facts before us, it does not result in holding this selection process invalid. We look at each of the four groups involved.

As to the class of “Latin Americans” found by the trial court to be a cognizable group, the problem of representation is statistically more difficult. Census figures identify but two classes—“Spanish surname” (1.7 percent of the population) and “persons of Spanish language.” (4.1 percent.) Respondents variously, and sometimes apparently interchangeably, refer to “Chícanos” (those of Mexican or Central American origin or descent), and “Latinos” (those whose origin or descent traces to countries of South America). Mexican-Americans and “Spanish heritage people,” the group which respondents most emphasize, and which the court terms Latin Americans, are natives of Mexico and Central America and their children. Census figures do not cover such a group. One witness for respondents testified that 3,000 of the “Spanish language persons” in Marin County are Mexican-American. It is apparent that it is but a small proportion of the whole. There is evidence that they have a feeling of ethnic identity, experience common economic and educational difficulties, and suffer some job discrimination. This evidence, as we have held, supports the finding that they constitute & cognizable group. But there is no evidence or suggestion of any discrimination by the selectors.

We recognize that where a substantial racial group, long-recognized and visible in the locality, is limited to mere token representation, the discrepancy cannot be excused upon the ground that the selectors knew no qualified persons of the misrepresented race (Cassell v. Texas, supra, 339 U.S. 282 , 289 [ 94 L.Ed. 839 , 848]). It is quite true that although the panel included three classified as “Spanish surname,” none were Chicanos or Latin Americans. The selectors here testified that they knew of no organizations of Latin Americans, did not consider this racial group an identifiable group of the population, and for these reasons, did not specifically seek out representation of that group. But Cassell obviously is designed to root out disguised discrimination. Here, the record disclosed omission of a group which constituted at most a very small proportion of the population, was not readily visible, was geographically dispersed, pos

. As to both the classes of youth and “blue collar workers” the selectors’ testimony that they made particular efforts to secure their full representation is uncontradicted. There is no evidence of intentional or. systematic exclusion. To suggest a rule in any way based upon some requirement of proportional representation of the many possible divisions of age and economic groups is to introduce an element of extreme and unwarranted difficulty into the jury selection process. (See Hamling v. United States, 418 U.S. 87 [ 41 L.Ed.2d 590 , 94 S.Ct. 2887 ]; People v. Johnson, 38 Cal.App.3d 228 , 241, fn. 5 [ 113 Cal.Rptr. 303 ].) Respondents, focus upon the 21-30 age group. Of the total population of Marin County over the then age of majority, 22 percent were in the 21-30 age bracket, but only 6.6 percent of the panel were in this group. As to “blue collar workers” 25 percent to 29 percent of the population is in that class, and the panel contained 6.6 percent. (We note appellant’s'contention that 20 percent of the panel had incomes under $9,000, but feel it irrelevant in light of the trial court’s use of “blue collar workers” as the relevant class.) But under even the broadest interpretation of Butera, “it is not the significant unexplained disparities themselves which are unconstitutional, [citations]; they only raise the inference of discrimination. [Citations.] Once that inference has been raised, it is the government’s failure or inability to demonstrate that the disparities are not the product of discrimination which confirms the inference and invalidates the jury pool.” (420 F.2d at p. 569.)