Rubio v. Superior Court

593 P.2d 595, 24 Cal. 3d 93, 154 Cal. Rptr. 734, 1979 Cal. LEXIS 245

• Court: California Supreme Court
• Decided: April 24, 1979
• Docket: S.F. 23711
• Status: Published

Opinions

Opinion

MOSK, J.

— Defendant Rubio is charged in respondent San Joaquin Superior Court with one count of murder. He moved to quash the petit jury venire on the ground that it contains neither ex-felons nor resident aliens, such persons being excluded by statute from jury service.¹ This exclusion, he contended, denies him his constitutional right to be tried by a jury drawn from a representative cross-section of the community, as well as due process and equal protection of the laws.

The parties stipulated to certain facts: e.g., that the offense occurred at Deuel Vocational Institution, where defendant is presently incarcerated;² that defendant is a convicted felon “of Mexican descent”; and that

pursuant to the cited statutes the jury commissioner routinely excludes all ex-felons and resident aliens from the master list of jurors in San Joaquin County.³ The trial court denied the motion to quash the venire, finding that neither ex-felons nor resident aliens constitute a cognizable group within the meaning of the representative cross-section requirement.

Defendant now petitions for a writ of prohibition to review that ruling prior to trial. Because of the seriousness of the pending charge and the desirability of trying it before a properly selected jury, we agree that appeal from the final judgment is an inadequate remedy and the petition is proper. (Ganz v. Justice Court (1969) 273 Cal.App.2d 612, 617-618 [78 Cal.Rptr. 348].) On the merits, however, we conclude that the challenged statutes are constitutionally valid and hence that defendant is not entitled to relief.

I

In our recent decision in People v. Wheeler (1978) 22 Cal.3d 258 [148 Cal.Rptr. 890, 583 P.2d 748], we held that in state criminal prosecutions the right to trial by a juiy drawn from a “representative cross-section of the community” is guaranteed equally and independently by the Sixth Amendment to the federal Constitution and by article I, section 16, of the California Constitution, and that such right is violated when a “cognizable group” within the community is systematically excluded from jury service. {Id. at p. 272.) Because there was no doubt that the blacks excluded in Wheeler were such a group, we had no occasion to further define what constitutes a cognizable group within the meaning of the representative cross-section rule. {Id. at p. 280, fn. 26.)

That process of definition, however, began in Adams v. Superior Court (1974) 12 Cal.3d 55 [115 Cal.Rptr. 247, 524 P.2d 375]. The court there stated that “before exclusion may be held improper, there must be a common thread running through the excluded group — a basic similarity of attitudes, ideas or experience among its members so that the exclusion prevents juries from reflecting a cross-section of the community.” (Id. at p. 60.) Two requirements must thus be met in order to qualify an asserted group as “cognizable” for purposes of the representative cross-section rule. First, its members must share a common perspective arising from their life experience in the group, i.e., a perspective gained precisely because they are members of that group. It is not enough to find a characteristic possessed by some persons in the community but not by others; the characteristic must also impart to its possessors a common social or psychological outlook on human events. For example, in Adams the claimed cognizable group was composed of all persons who had resided in the community for less than one year; at any given moment the members of that group could be identified with certainty and thereby distinguished from all other persons in the community, but a majority of this court held that they had not acquired a true “commonality of interest” merely by virtue of the brevity of their residence.⁴

Such a unifying viewpoint, however, is a necessary but not a sufficient condition for qualifying a group as “cognizable.” The party seeking to prove a violation of the representative cross-section rule must also show that no other members of the community are capable of adequately representing the perspective of the group assertedly excluded. This is so because the goal of the cross-section rule is to enhance the likelihood that the jury will be representative of significant community attitudes, not of groups per se. When a “cognizable group” is defined too narrowly, it may duplicate another group in the community with a similar experience and viewpoint. Yet if the members of the latter are permitted to serve on juries, even a total exclusion of the former will not impair the representativeness in fact of the list. As the court explained in Taylor v. Louisiana (1975) 419 U.S. 522, 538 [42 L.Fd.2d 690, 702, 95 S.Ct. 692], “The fair-cross-section principle must have much leeway in application. The States remain free to prescribe relevant qualifications for their jurors and to provide reasonable exemptions so long as it may be fairly said that the jury lists or panels are representative of the community.”

Turning to the case at hand, we find that the first requirement of the foregoing analysis is satisfied. Ex-felons as a whole have had the experience of being deprived of their personal liberty by the state and, upon their return to the community, of being stigmatized both publicly and privately because of their former status. Similarly, resident aliens as a whole have had the experience of being excluded from the political processes of this nation by its government, and of being the victims of both official and unofficial discrimination by its citizenry. In each instance these experiences have tended to unify the group by giving its members a shared perspective on life in our society.

The Attorney General contends, however, that neither group qualifies because it is heterogeneous in all other respects: its membership cuts across racial, religious, sexual, economic, social, and occupational lines. The argument is fallacious, and proves too much: it could equally well be applied to the women excluded in Taylor v. Louisiana, supra, the blacks excluded in Peters v. Kiff (1972) 407 U.S. 493 [33 L.Ed.2d 83, 92 S.Ct. 2163], and our decision in Wheeler, and the daily wage earners excluded in Thiel v. Southern Pacific Co. (1946) 328 U.S. 217 [90 L.Ed. 1181, 66 S.Ct. 984, 166 A.L.R. 1412]. In each case the group was likewise heterogeneous in all respects save one — but that one, as here, imparted to its members a shared viewpoint that could not be excluded from the master jury list without impairing its representativeness. Indeed, the Attorney General’s contention has already been refuted in Wheeler, in suggesting ways in which a party may prove that prospective jurors are being removed because of their group association, we said it may be shown that such jurors “share only this one characteristic — their membership in the group — and that in all other respects they are as heterogeneous as the community as a whole.” (22 Cal.3d at p. 280.)⁵

Nevertheless, we conclude that defendant’s claim of a violation of the representative cross-section rule must ultimately fail because he cannot satisfy the second requirement of the “cognizable group” test: it cannot be shown that no other members of the community adequately represent the particular viewpoints of ex-felons and resident aliens. As to the former group, several classes of persons eligible for jury service have had similar experiences of loss of personal liberty followed by social stigmatization. Foremost among these are all convicted misdemeanants who have served time in county jail: the number of such persons in the community is larger than the number of ex-felons who have been incarcerated, and in cases of recidivism or consecutive sentences (Pen. Code, § 19a) their cumulative periods of imprisonment may be no less substantial. Other such groups are comprised of all persons who have been confined as youthful offenders in the custody of the Youth Authority,⁶ or have spent periods of involuntary commitment in state mental institutions,⁷

The same is true of resident aliens. Their exclusion from the political process and their exposure to discrimination have also been experienced by another group in our society: naturalized citizens. This class rivals resident aliens in,numbers;⁸ yet the vast majority of naturalized citizens were once resident aliens themselves, and were required to spend “at least five years” in that status. (8 U.S.C. § 1427(a).) Throughout such period, they shared both the disabilities and the resulting outlook of today’s resident aliens. Indeed, the discrimination against them was more pervasive, at least on the official level: it is only in recent times that many longstanding restrictions on aliens’ access to educational and social benefits, to employment in the public sector, and to the licensed professions have been struck down by the courts⁹ or repealed by the Legislatures.¹⁰ These are memories not soon forgotten, and many naturalized citizens still carry with them the deep imprint of their former status. Between them and resident aliens, in this respect, there may be differences of degree but not of kind.

For the foregoing reasons ex-felons and resident aliens are not cognizable groups within the meaning of the representative cross-section rule, and the trial court was correct in so ruling.

II

Defendant next contends that the statutory exclusion of ex-felons and aliens from jury service violates the equal protection clauses of the United States and California Constitutions. As will appear, the contention fails on several grounds.

We begin with the exclusion of ex-felons. Defendant does not claim that the classification is “suspect,” and Adams held (at p. 61 of 12 Cal.3d) that jury duty is not a “fundamental right.” It follows that the exclusion does not violate equal protection if it has any rational relationship to some legitimate state objective. (Id. atp. 62.)¹¹

In the case at bar the objective of the legislation is evidently to protect the right to trial by an impartial jury. The latter right is expressly guaranteed by the Sixth Amendment; and in Wheeler we held it is no less implicitly guaranteed by the declaration of article I, section 16, of the California Constitution that “ Trial by jury is an inviolate right and shall be secured to all.’ ” (22 Cal.3d at p. 265.)

The present exclusion bears a rational relationship to that objective. The Legislature could reasonably determine that a person who has suffered the most severe form of condemnation that can be inflicted by the state — a conviction of felony and punishment therefor — might well harbor a continuing resentment against “the system” that punished him and an equally unthinking bias in favor of the defendant on trial, who is seen as a fellow underdog caught in its toils. Because these antisocial feelings would often be consciously or subconsciously concealed, the Legislature could further conclude that the risk of such prejudice infecting the trial outweighs the possibility of detecting it injury selection proceedings. The exclusion of ex-felons from jury service thus promotes the legitimate state goal of assuring impartiality of the verdict. (See United States v. Test (10th Cir. 1976) 550 F.2d 577, 594; United States v. Armsbury (D.Ore. 1976) 408 F.Supp. 1130, 1134; United States v. Arnett (D. Mass. 1970) 342 F.Supp. 1255, 1261.)

Defendant contends, however, that the classification is overinclusive because it assertedly bars from service some ex-felons who would not in fact be biased jurors, and that it is not necessary to protect the integrity of the jury system because of other statutory provisions guaranteeing juror competency (Code Civ. Proc., §§ 198, subds. 2 & 3, 205, subd. (a)) and probity (Pen. Code, §§ 93, 96) and the right of voir dire and challenge (Pen. Code, § 1055 et seq.). As authority defendant relies principally on our decision in Otsuka v. Hite (1966) 64 Cal.2d 596 [51 Cal.Rptr. 284, 414 P.2d 412].

The citation betrays the flaw in the argument. Otsuka dealt with a former California constitutional provision depriving persons convicted of an “infamous crime” of the right to vote. We held that suffrage was a “fundamental right” triggering a strict scrutiny analysis, i.e., that the state was required to show that it had a compelling interest in abridging the right and that any limitation thereof was drawn with narrow specificity. (Id. at p. 602.)¹² As we explain above, however, jury duty is not a “fundamental right” and any restriction thereof is to be judged by the rational relationship standard. Under that standard the exclusion of ex-felons is a permissible legislative response to the problem of juror bias even though it is arguably imprecise and to some extent duplicates other statutory solutions.¹³ We do not, of course, weigh the wisdom of this legislation.

Defendant cites Otsuka for still another purpose, but again the reliance is misplaced. He contends that the Legislature exceeded its authority in excluding all ex-felons from jury service because a provision of the state Constitution requires only that some ex-felons be so excluded. The provision in question is subdivision (b) of section 8, article VII, which declares in relevant part that “Laws shall be made to exclude persons convicted of bribery, peijuiy, forgery, malfeasance in office, or other high crimes from office or serving on juries.” In Otsuka we had occasion to address the same language when it also barred the right of suffrage and appeared in a predecessor section of the Constitution. (Former art. XX, § 11.) We reasoned (at p. 608 of 64 Cal.2d) that “It would seem that under the rule of construction ejusdem generis, the term ‘high crimes’ should be deemed to refer to criminal conduct evidencing the kind of moral corruption and dishonesty inherent in the listed offenses of ‘bribery, perjury, forgery, malfeasance in office.’ ”

We adhere to that view, but it is not dispositive of the issue before us now. The constitutional provision does not purport to be an exclusive list of grounds of disqualification from jury service, but rather a directive to the Legislature that “laws shall be made” disqualifying at least the classes of ex-felons listed therein. Nothing in this provision or any other part of the Constitution limits the power of the Legislature to add further classes of ex-felons to those mentioned, or indeed to exclude all such persons from jury service if it is deemed appropriate to do so in aid of a legitimate state goal.

Finally, we reach defendant’s contention that he was denied equal protection because of the exclusion of resident aliens from jury service. The argument is untenable for either of two reasons.

First, defendant appears to lack standing to raise the point. He does not allege that he is a resident alien, and the parties stipulated merely that he is “of Mexican descent.” If we construe this stipulation to mean that defendant is not in fact a member of the class of resident aliens, his claim is barred by the general rule that “a charge of unconstitutional discrimination can only be raised in a case where this issue is involved in the determination of the action, and then only by the person or a member of the class of persons discriminated against.” (People v. Globe Grain & Mill. Co. (1930) 211 Cal. 121, 127-128 [294 P. 3]; accord, Estate of Horman (1971) 5 Cal.3d 62, 77-78 [95 Cal.Rptr. 433, 485 P.2d 785]; Lumber Co. v. Bank of America etc. Assn. (1936) 7 Cal.2d 14, 22 [59 P.2d 1019]; A. F. Estabrook Co. v. Industrial Acc. Com. (1918) 177 Cal. 767 [177 P. 848]; Francis v. County of Stanislaus (1967) 249 Cal.App.2d 862, 868-869 [57 Cal.Rptr. 881], and cases cited.) Indeed, “This is a matter on which the courts in all jurisdictions are in full agreement.” (16 Am.Jur.2d, Constitutional Law, § 123, p. 320, fn. 6, collecting cases.) We have admitted a limited exception to this rule in cases in which no member of the class would ever be in a position to complain of the discrimination (Quong Ham Wah Co. v. Industrial Acc. Com. (1920) 184 Cal. 26, 32 [192 P. 1021, 12 A.L.R. 1190]; see also Barrows v. Jackson (1953) 346 U.S. 249, 257-258 [97 L.Ed. 1586, 1595-1597, 73 S.Ct. 1031]), but that situation is obviously not presented here.¹⁴

In the alternative, if we construe the stipulation to mean that defendant is a Mexican national lawfully residing in our country, the short answer to his claim is that jury service has now been recognized as one of the basic decision-making functions of government that substantially affect the members of the political community and hence may constitutionally be restricted to citizens. In Foley v. Connelie (1978) 435 U.S. 291 [55 L.Ed.2d 287, 98 S.Ct. 1067], the United States Supreme Court held that a New York statute excluding aliens from service on the state police force did not violate the equal protection clause of the Fourteenth Amendment. In explaining its holding the court reasoned, inter alla, as follows: “A new citizen has become a member of a Nation, part of a people distinct from others. [Citation.] The individual, at that point, belongs to the polity and is entitled to participate in the processes of democratic decisionmaking. Accordingly, we have recognized ‘a State’s historical power to exclude aliens from participation in its democratic political institutions,’ [Sugarman v. Dougall, 413 U.S. at p. 648 (37 L.Ed.2d at p. 863, 93 S.Ct. at p. 2850)], as part of the sovereign’s obligation ‘ “to preserve the basic conception of a political community.” ’ 413 U.S. at p. 647 [37 L.Ed.2d at p. 863, 93 S.Ct. at p. 2850],

“. . . This is not intended to denigrate the valuable contribution of aliens who benefit from our traditional hospitality. It is no more than recognition of the fact that a democratic society is ruled by its people. Thus, it is clear that a State may deny aliens the right to vote, or to run for elective office, for these lie at the heart of our political institutions. See 413 U.S., at pp. 647-649 [37 L.Ed.2d at pp. 862-864,93 S.Ct. at pp. 2850-2851], Similar considerations support a legislative determination to exclude aliens from jury service. See Perkins v. Smith, 370 F.Supp. 134 (Md. 1974), aff’d, 426 U.S. 913 (1976) [49 L.Ed.2d 368, 96 S.Ct. 2616].” (Italics added.) (435 U.S. 291, 295-296 [55 L.Ed.2d 287, 292, 98 S.Ct. 1067, 1070-1071].)

We are not persuaded that a different result should be reached under the equal protection clause of the California Constitution (art. I, § 7, subd. (a)). Our courts have applied the principle that aliens may lawfully be excluded from participation in the decision-making functions of the government of this state (Padilla v. Allison (1974) 38 Cal.App.3d 784 [113 Cal.Rptr. 582] [exclusion of resident aliens from voting]; People v. Rodriguez (1973) 35 Cal.App.3d 900 [111 Cal.Rptr. 238] [same]), and no reason appears at this time to view jury service as any less a part of that process than does the United States Supreme Court.

We conclude that the statutes barring ex-felons and resident aliens from jury service in California are not vulnerable to the constitutional attack here pressed, and hence that respondent superior court may properly proceed to try defendant on the charge pending against him.

The alternative writ is discharged and the peremptory writ is denied.

Manuel, J., concurred.

Clark, J., and Richardson, J., concurred in the result.

1 Code of Civil Procedure section 198 declares in part that a person is competent to be a juror if he is “A citizen of the United States.”

Code of Civil Procedure section 199 provides in part that “A person is not competent to act as a trial juror if any of the following apply:

“(a) The person does not possess the qualifications prescribed by Section 198.

“(b) The person has been convicted of malfeasance in office or any felony or other high crime.

Penal Code section 1072 lists “A conviction of felony” among the permissible grounds for a challenge of a prospective juror for cause.

We note that in the Jury Selection and Service Act of 1968 the Congress likewise excluded aliens and ex-felons from service on federal juries. (28 U.S.C. § 1865(b)(1) & (b)(5).)

2 DeueI Vocational Institution is a medium-security correctional facility for “mature” youths. (Pen. Code, § 2036.)

3 In addition, the parties stipulated to certain figures concerning the number of resident aliens in California and in San Joaquin County, and the number of ex-felons released from prison or discharged from parole during several recent years. The figures are neither current nor complete; and in the view we take of the case, they are also irrelevant.

In his motion defendant complained of the exclusion of all “resident non-citizens.” We assume defendant asserts his claim only as to resident aliens in order to distinguish them from visiting aliens and illegal aliens. Yet if we were to declare invalid the legislative restriction of jury service to citizens, it would be difficult to grant relief to one category of aliens while denying it to others. The Constitution (art. I, § 7, subd. (a); see also U.S. Const., 14th Amend.) declares only that “a person” shall not be deprived of equal protection of the laws.

4 In its first session after the decision of this court in Adams the Legislature repealed the one-year residence requirement for jurors. (Stats. 1975, ch. 172, § 1, p. 317.)

5 In a footnote at this point (p. 280, fn. 27) we gave the following illustration, equally relevant here: “in a case of alleged exclusion on the ground of race, it may be significant if the persons challenged, although all black, include both men and women and are of a variety of ages, occupations, and social or economic conditions.”

6 Such persons may even be transferred to Deuel Vocational Institution, the very facility in which defendant and other convicted felons are incarcerated. (Pen. Code, § 2037.)

7 At least one of the latter, Atascadero State Hospital, is a maximum-security institution that has been described by various studies as more like a prison than a medical facility. (See People v. Burnick (1975) 14 Cal.3d 306, 319-320 & fn. 11 [121 Cal.Rptr. 488, 535 P.2d 352].)

8 In the year 1976 a total of "4,776,000" registered aliens reported their presence in the United States, as required by law. (8 U.S.C. § 1305.) Naturalized citizens, of course, are not required to so report; but an estimate of their number in this country can be inferred from the fact that since 1930, for example, a total of 6,625,000 persons have been granted the status of naturalized citizens. (Statistical Abstract of U.S. (98th ed. 1977) tables 130 & 131, p. 89.)

9 See, e.g., Nyquist v. Mauclet (1977) 432 U.S. 1 [53 L.Ed.2d 63, 97 S.Ct. 2120] (financial assistance for higher education); Examining Board v. Flores de Otero (1976) 426 U.S. 572 [49 L.Ed.2d 65, 96 S.Ct. 2264] (license to practice as civil engineer); Hampton v. Mow Sun Wong (1976) 426 U.S. 88 [48 L.Ed.2d 495, 96 S.Ct. 1895] (employment in federal civil service); Sugarman v. Dougall (1973) 413 U.S. 634 [37 L.Ed.2d 853, 93 S.Ct. 2842] (employment in state civil service); In re Griffiths (1973) 413 U.S. 717 [37 L.Ed.2d 910, 93 S.Ct. 2851] (practice of law); Graham v. Richardson (1971) 403 U.S. 365 [29 L.Ed.2d 534, 91 S.Ct. 1848] (welfare benefits); Raffaelli v. Committee of Bar Examiners (1972) 7 Cal.3d 288 [101 Cal.Rptr. 896, 496 P.2d 1264, 53 A.L.R.3d 1149] (practice of law); Purdy & Fitzpatrick v. State of California (1969) 71 Cal.2d 566 [79 Cal.Rptr. 77, 456 P.2d 645, 38 A.L.R.3d 1194] (employment in public works).

10 See, e.g., Statutes of 1972, chapters 1204, 1285; Statutes- of 1970, chapters 652, 653.

11 For the same reason there is no merit in defendant’s alternative contention that the exclusion of ex-felons from jury duty violates due process of law because it assertedly creates a conclusive statutory presumption against the exercise of a “fundamental right.”

12 The latter requirement was thereafter tightened to provide that any such limitation must be “necessary” to promote the state interest and the “least burdensome” alternative possible. (Ramirez v. Brown (1973) 9 Cal.3d 199, 207-211 [107 Cal.Rptr. 137, 507 P.2d 1345]; revd. on other grounds sub nom. Richardson v. Ramirez (1974) 418 U.S. 24 [41 L.Ed.2d 551, 94 S.Ct. 2655], dism. as moot (1974) 12 Cal.3d 912 [117 Cal.Rptr. 562, 528 P.2d 378].)

13 In a sense it is more precise than the restriction on suffrage involved in Otsuka: surely an ex-felon’s experience of incarceration is more likely to affect his deliberations as a juror than his vote as an elector.

14 Cases such as Taylor v. Louisiana (1975) supra, 419 U.S. 522, 526 [42 L.Ed.2d 690, 695-696], and Peters v. Kiff (1972) supra, 407 U.S. 493, 496-505 [33 L.Ed.2d 83, 89-95], are not in point on this issue. They hold only that for the purpose of claiming a violation of the right to a jury drawn from a representative cross-section of the community, the defendant need not be a member of the cognizable group excluded from jury service. California law is in accord, and it is for this reason that in Part I of this opinion we do not discuss the question of defendant’s citizenship when we review his claim that the exclusion of aliens violates the representative cross-section requirement.