People v. Rivera (Cal. App. 6/22/16) [UNPUBLISHED]

Filed 6/22/16? P. v. Rivera CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS?

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b).? This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.?

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent, v. SAMUEL ISIDRO RIVERA, Defendant and Appellant.

??????????? A144059   (Contra Costa County Super. Ct. No. 51415611)

After a jury trial, defendant Samuel Isidro Rivera was convicted of first-degree residential burglary (Pen. Code, ???459, 460, sub.(a)[1]).? The jury found not true a related allegation that another person, other than an accomplice, was in the home during the burglary (??667.5, sub.?(c)(21)).? The court sentenced defendant to the lower term of two years in state prison.

On appeal defendant?s sole contention is that his conviction should be reversed because he was denied his constitutional right to a trial by a jury drawn from a representative cross-section of the community.? We conclude defendant?s claim is without merit. ?Accordingly, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND[2]

??????????? A jury trial was held over the course of several days in October 2014.? On the first day of trial, after a group of ?prospective jurors entered the courtroom,? jury selection commenced.[3]? On the second day of trial jury selection continued.? Before the questioning of the jurors commenced, defense counsel sought relief regarding the purported underrepresentation of certain jurors in the following manner:? ?I noticed yesterday that, of the entire venire[4] of 85[[5]] jurors that we have in there, there are only two African-Americans.?.?.?. ?I know that our county is a minimum of 10 percent African-American; so that?s a huge disparity, and the venire is not representative. [?] I think it?s interesting also that .?.?. on the first two pages of the juror profile list, there?s only one West County person, and that would be number 8 from El Sobrante.? And the West County tends to be more diverse, especially in the area of Richmond and San Pablo and also lower income as opposed to the central county which is wealthier and primarily white. [?] Then continuing through that juror profile, there are very few jurors from West County.? And I?m wondering if .?.?. the lack of transportation in the county accounts for the disparity. [?] In any event, .?.?. I believe this is an ongoing problem in this county.?.?.?. I believe that Jury Services does not accommodate in any way people?s difficulty in transportation .?.?. and that kind of accommodation would make for a larger pool of low income and minority jurors. [?] I know that since .?.?.Currie [People v. Currie (2001) 87 Cal.App.4th 225] .?.?. the courts have looked to see if there?s any intentional discrimination, and that would be the test as to .?.?. whether there?s a remedy for this problem.? But I think that .?.?. once a Jury Services or a county is aware that there is a significant disparity in racial composition of a jury that does not match the population of the community at large, once you?re aware that that?s occurring, I believe that there?s an obligation to change that.? But continuing with the system that consistently results in an underrepresentation of minorities I believe can become intentional discrimination. [?] I?m going to request that your Honor dismiss this panel and impanel a new panel.? And if we have the same problem, I would like to investigate the methodology of Jury Services.?

In response to defense counsel?s request, the trial court stated:? ?I didn?t make the observations regarding the number of African-Americans in the panel that you?ve noted. .?.?.?. [?] But if you?re going to make comments regarding a disparity in income, I will note that central county has its share of locations where they are typically lower income, for example, Concord, Bethel Island.? And we have people from there.? Pleasant Hill can be considered in some locations low income.? We have Martinez which is represented.? Some areas of Martinez are definitely low income.? We also have Antioch represented, Pittsburg represented.? Those are certainly areas traditionally known as working class, very blue collar areas. ?We also have .?.?. Hercules is a mix.? And we do have Richmond jurors on this list as well. [?] So, as we know, Jury Services has recently changed its method in which it pulls people for cases, and there are a number of jurors from all over the county now instead of simply central county versus west county versus east county.? We know that they pull from the DMV rolls.? We also don?t know regarding this panel whether or not people were summoned and just failed to appear. [?] So with that said, I don?t think any showing has been made that there?s any type of discrimination regarding the summoning of potential jurors to this courthouse.? So that motion is denied.? Without further comment by counsel, the court proceeded with the selection of a jury and the trial.

DISCUSSION

??????????? Defendant argues his conviction should be reversed because he was denied his right to trial by a jury drawn from a representative cross-section of the community under the Sixth Amendment to the United States Constitution and article I, section 16, of the California Constitution. ?However, as we now discuss, we conclude defendant?s appellate arguments do not require reversal as on the present record defendant cannot show he was improperly denied a jury drawn from a representative cross-section of the community.

The parties present various arguments discussing whether defendant has preserved for our review his appellate arguments.? However, we need not address these arguments.? Even if defendant?s appellate claims are not forfeited, they fail on the merits.

?It is uncontroverted that ?[i]n California, the right to trial by a jury drawn from a representative cross-section of the community is guaranteed equally and independently by the Sixth Amendment to the federal Constitution (Taylor v. Louisiana (1975) 419 U.S. 522, 530 [42 L.Ed.2d 690, 698, 95 S.Ct. 692]) and by article I, section 16 of the California Constitution (People v. Wheeler (1978) 22 Cal.3d 258, 272 [148 Cal.Rptr. 890, 583 P.2d 748]).?? (Williams v. Superior Court (1989) 49 Cal.3d 736, 740 [263 Cal.Rptr. 503, 781 P.2d 537].)?? (People v. Jackson (1996) 13 Cal.4th 1164, 1194 (Jackson).) ??In determining the issue crucial to this case, whether systematic exclusion of a cognizable class of prospective jurors has been established, the federal and state jury trial guaranties are coextensive, and the analysis identical.?? (Bell, supra, 49 Cal.3d at p.?525, fn.?10, citing to People v. Harris (1984) 36 Cal.3d 36, 48-49.) ??Therefore, our reference to the rights guaranteed by the Sixth Amendment includes also those guaranteed by article I, section 16.?? (Bell, supra, at p.?525, fn.?10.)? The constitutional mandate means that ?jury wheels, pools of names, panels, or venires from which juries are drawn must not systematically exclude distinctive groups in the community and thereby fail to be reasonably representative thereof.?? (Taylor v. Louisiana, supra, 419 U.S. at p.?538; see Bell, supra, at p.?525.)

To establish a prima facie violation of the fair-cross-section requirement (known as the Duren test (Duren v. Missouri (1979) 439 U.S. 357)), a 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 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.? (Id. at p.?364; see People v. Horton (1995) 11 Cal.4th 1068, 1087-1088 (Horton); People v. Howard (1992) 1 Cal.4th 1132, 1159 (Howard).)? ?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.?? (Horton, supra, at p.?1088, citing to People v. Sanders (1990) 51 Cal.3d 471, 491.)

There is no dispute that defendant satisfied the first prong of the Duren test as ?African-Americans are a distinctive group in the community.?.?.?.?? (People v. Burgener (2003) 29 Cal.4th 833, 859 (Burgener).) [6]? However, we need not determine whether defendant has complied with the second prong of the Duren test (showing that African-Americans were underrepresented), because he has not met the third prong: a prima facie showing that any underrepresentation is the result of systematic exclusion of African-Americans in the jury selection process. ?(People v. Massie (1998) 19 Cal.4th 550, 580 (Massie) [court need not address second prong of Duren test where defendant failed to present prima facie evidence demonstrating third prong of Duren test].)

To establish a prima facie case of systematic exclusion, the third prong of the Duren test requires a defendant to show ?specific, constitutionally impermissible jury selection procedures that were the systematic cause of any disparity, and .?.?. speculation on these matters [will] not suffice.?? (People v. Anderson (2001) 25 Cal.4th 543, 568 (Anderson); see Duren, supra, 439 U.S. at p.?366 [?in order to establish a prima facie case, it was necessary for petitioner to show that the underrepresentation [of the distinctive group], generally and on his venire, was due to their systemic exclusion in the jury-selection process?]; People v. Ochoa (2001) 26 Cal.4th 398, 427 [?[t]he third prong requires defendant to show the state selected the jury pool in a constitutionally impermissible manner that was the probable cause of the disparity?].)? ?A defendant cannot establish a prima facie case of systematic exclusion of a distinctive group merely by presenting statistical evidence that the group is underrepresented in the jury pool, venire, or panel.? Rather, the defendant must show that the underrepresentation ?is the result of an improper feature of the jury selection process.???? (Massie, supra, 19 Cal.4th at p.?580, fn. omitted, quoting from Howard, supra, 1 Cal.4th at p.?1160, and citing to Bell, supra, 49 Cal.3d at pp.?528-529.)

Massie, supra, 19 Cal.4th 550, is both instructive and dispositive of defendant?s appellate claims.? In that case, defendant unsuccessfully moved to quash the panel of prospective jurors from which his jury was selected in San Francisco County, asserting that various types of jurors were underrepresented on the panel, and that therefore his jury was not selected from a fair cross-section of the community.? (Id. at p.?579.)? The motion was based on testimony offered by a psychologist involved with the National Jury Project, and the records of motions in three other criminal cases that challenged jury selection procedures in San Francisco County (People v. White (Super. Ct. S.F. County, 1991, No. 117535), People v. Thompson (Super. Ct. S.F. County, 1991, No. 124613), and People v. Henderson (Super. Ct. S.F. County, 1986, No. 109544), with the court taking judicial notice of the files on appeal.? (Id. at pp.?579-580 & fn.?6.)? Defendant challenged the denial of his motion to quash, arguing that African-Americans and Hispanics were underrepresented on his jury panel, in violation of his federal and state constitutional rights.? (Id. at p.?580.)? In upholding the denial of the motion to quash, our Supreme Court found that defendant had not met his burden under the third prong of the Duren test as he had failed to show that underrepresentation of African-Americans and Hispanics in the jury pool, venire, or panel, was due to ???an improper feature of the jury selection process.???? (Massie, supra, at p.?580.)? In so ruling, the court explained:? ?Here, defendant has presented no evidence describing the manner in which jury pools, venires, and panels were created in San Francisco in November 1988, when jury selection in his case began. ?True, the records of the three San Francisco Superior Court cases mentioned above, which were considered by the trial court in this case, contained evidence describing the manner in which this process had occurred in previous years. ?But defendant has offered no evidence that the process operated in the same manner at the time of his trial. ?As a result, he has not shown that the jury selection process contained any ?improper features.???? (Id. at p.?581.)

So, too, in this case, we find that defendant has not met his prima facie burden under the third prong of the Duren test.? In support of his argument to the contrary, defendant asserts his burden is met because ?[t]he courts of appeal have recognized for more than twenty years? that African-Americans are systematically excluded from jury service in Contra Costa County ?because the county exempts from service those jurors who fail to appear when summoned,? and it has a ?broad policy of exempting any ?workers who would lose employment compensation during jury service.???? However, defendant did not present any evidence in the trial court describing how county officials handled nonresponders or applied exemption criteria at the time of defendant?s trial in October 2014.? Instead, he asks us to consider, for the first time on appeal, evidence submitted in other appellate court cases describing the county?s jury selection procedures in previous years.? (See, e.g., Bell, supra, 49 Cal.3d at pp.?529-530; Currie, supra, 87 Cal.App.4th at pp.?232, 235, 237; People v. Simmons (1985) 164 Cal.App.3d 1070, 1072-1073; People v. Pervoe (1984) 161 Cal.App.3d 342, 352, 354, fn.?7; People v. Jones (1984) 151 Cal.App.3d 1029, 1032-1033; People v. Buford (1982) 132 Cal.App.3d 288, 291, 298-299, 300.)? Aside from the fact that the cited appellate cases were decided no later than 2001, some 13 years before defendant?s trial in October 2014, defendant?s trial counsel did not even ask the court to consider the evidence presented in those cases in support of defendant?s motion.? Consequently, our reliance on such evidence in evaluating the trial court?s ruling in this case is not appropriate.? In all events, even assuming the evidence of the earlier cases had been made a part of the record, it would not be sufficient to meet defendant?s prima facie burden of showing that the county?s jury selection procedures failed to produce a jury that represented a fair cross section of the community at the time of his trial in 2014.? (Massie, supra, 19 Cal.4th at pp.?580-581.)

We therefore conclude that defendant?s motion to dismiss the jury panel was properly denied as he failed to make a prima facie showing that any underrepresentation of African-Americans was the result of systematic exclusion of that group in the jury selection process that occurred at the time of his 2014 trial.[7]

DISPOSITION

??????????? The judgment is affirmed.

??????????????????????????????????????????????????????????????????????????????????? _________________________
Jenkins, J.

We concur:

 

_________________________
Pollak, Acting P. J.

 

_________________________
Siggins, J.

 

People v. Samuel Isidro Rivera, A144059

 

Footnotes:

[1]?????????? All further unspecified statutory references are to the Penal Code.

[2]?????????? We set forth only those facts necessary to resolve defendant?s appellate contentions.

[3]?????????? The voir dire of jurors was reported but not transcribed as part of the record on appeal.

[4]?????????? ?The jury ?pool? is the master list of eligible jurors compiled for the year or shorter period from which persons will be summoned during the relevant period for possible jury service. ?A ?venire? is the group of prospective jurors summoned from that list and made available, after excuses and deferrals have been granted, for assignment to a ?panel.? ?A ?panel? is the group of jurors from that venire assigned to a court and from which a jury will be selected to try a particular case.?? (People v. Bell (1989) 49 Cal.3d 502, 520, fn.?3 (Bell).)

[5]?????????? The court granted defense counsel?s motion to mark the ?juror profile list? as a court exhibit in support of the motion, but the exhibit has not been submitted to this court.? The record does contain a document, labeled, ?Case Information Sheet,? indicating that 83 jurors were sent to the courtroom.

[6]?????????? On appeal defendant limits his argument to the underrepresentation of African-Americans.? In the trial court, defense counsel also argued that the jury panel in the courtroom appeared to be underrepresented as to persons of low income.? However, our Supreme Court has ?held that persons of low income do not constitute a cognizable class under the first prong of the Duren test.? (People v. Carpenter (1997) 15 Cal.4th 312, 352 [63 Cal.Rptr.2d 1, 935 P.2d 708] .?.?.?.)?? (Burgener, supra, 29 Cal.4th at p.?856; see People v. Johnson (1989) 47 Cal.3d 1194, 1214.)

[7]?????????? Defendant made no argument either in the trial court, or in his appellate briefs, that ?he lacked the means to discover whether the venire from which his jury panel was drawn was representative of the community,? or that he ?was denied the ability to discover information necessary to make a prima facie showing of underrepresentation.?? (Jackson, supra, 13 Cal.4th at p.?1195; see also, Anderson, supra, 25 Cal.4th at pp.?567, 568 [trial court properly rejected defendant?s belated request for a continuance to explore county?s jury selection procedures, which was based on an expert?s unsupported speculation that the large number of nonresponders might tip disproportionately toward minority populations, and the conceded lack of follow-up on nonresponders might account for the underrepresentation on the venires]; cf. Jackson, supra, 13 Cal.4th at p.?1194 [?upon 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, 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?].)? Accordingly, we see no abuse of discretion in the trial court?s refusal to ask for a new jury panel, and if the same purported disparity occurred, to allow defendant to investigate the jury selection process at that time.