People v. Powell (40 Cal. App. 3d 107, 1974)

Opinion

VOGEL, J.

Appellants were convicted in separate trials of first degree murder. Appellant Gregory Ulas Powell was sentenced to death and appellant Jimmy Lee Smith was sentenced to imprisonment for life. Each conviction has come to this court by way of a separate appeal. However, prior to the trial on the merits appellants were jointly prosecuted and almost all of the pretrial proceedings involved common appearances. Because the case arises from a single incident in which both appellants participated and because a majority of the issues on appeal pertain to joint legal proceedings, we dispose of the appeals in one opinion.

Facts

There are no substantial disagreements as to the factual background on which the charge against Powell and Smith is predicated. On March 9, 1963, Smith was a passenger and Powell was the driver of a 1946 Ford automobile. They were driving in the Hollywood area of Los Angeles County. Both men were armed.

The Ford automobile was noticed by two Los Angeles police officers, Ian Campbell and Karl Frank Hettinger. The officers were then assigned to a plainclothes detail in an unmarked 1960 Plymouth automobile. They observed that the 1946 Ford did not have an illuminated rear license plate. The police vehicle followed and the officers directed its red spotlight on the rear window of the vehicle occupied by appellants. Both vehicles made a stop on Gower Street. Campbell was the driver of the police vehicle and brought it to a stop an inordinate distance from the curb and directly behind the Ford. Campbell and Hettinger got out of the police vehicle. They approached the Ford. Campbell went to the driver’s side and Hettinger approached the passenger’s.

When Powell brought the Ford to a stop, Smith removed the hand gun on his person, dropped it to the floor of their automobile and kicked it under the seat. Smith then got out of the Ford and approached Hettinger. Within seconds, Campbell, with Powell behind him, was also moving to the rear of the Ford automobile and approaching Hettinger and the police vehicle. Powell informed Smith and Hettinger that he had “gotten the drop on” Campbell. Campell verified this fact and informed Hettinger that Powell was armed. Powell directed Smith to take Hettinger’s weapon. Smith complied. The police officers were ordered into the Ford. Before leaving the area, Smith unsuccessfully attempted to move the police vehicle from its conspicuous position. Smith was unable to release the hand brake of the police vehicle and abandoned his effort to reduce its visibility. Smith returned to the Ford where Campbell was in the driver’s seat, Hettinger was behind the front seat on the floorboard and Powell was in the front passenger seat guarding the prisoners. Campbell was ordered to begin driving in the direction of Bakersfield.

During the course of the drive Smith and Powell, located in the front seat, pointed weapons at the police officers and made various threatening statements. Smith and Powell had their own hand guns, the weapons taken from the police officers, as well as the officers’ flashlights. Before reaching their ultimate destination Powell inquired as to the amount of cash Campbell and Hettinger had on them. He ordered Hettinger to give him his currency. Powell took it, but later returned it during the course of the drive. t

When they arrived in Kern County, and before reaching Bakersfield, Campbell was directed to turn on to a secluded dirt road and to drive out into a field. Finally, he was ordered to bring the vehicle to a stop and all four persons got out. Campbell and Hettinger were standing next to each other with Smith and Powell facing them. Powell then asked Campbell whether he had heard of the “Little Lindbergh Law.” Campbell replied affirmatively and Powell raised his gun and shot him in the mouth. Hettinger immediately turned and began to run. He ran down a dirt road, through a fence and into another field. While in flight he turned around and saw three figures: one of them prone, one firing a gun into the prone figure, and the third approaching him. The individual approaching Hettinger fired two shots at him. Hettinger resumed his flight.

Smith and Powell quickly gave chase after Hettinger. Powell took out on foot with a flashlight and Smith took the Ford automobile apparently to use its lights in the search for Hettinger. In the course of this effort Smith and Powell separated.

Ultimately, Hettinger found his way to a farm house and made contact with law enforcement authorities, advising them of the events that had transpired. Smith used the automobile to escape from the area, abandoned it near Bakersfield and made his way to a rooming house known as “Mom’s Place.” It was there that Smith was arrested on March 10 sometime after 10:40 p.m. At that location the arresting officers found a leather jacket and a .38 caliber revolver underneath it. The jacket and revolver were located in the room apparently occupied by Smith. The weapon was identified as the one that was taken from Hettinger.

Powell was arrested during the early morning hours on the day after the homicide by a California Highway Patrol officer approximately 20 miles south of Bakersfield. He was then driving a vehicle that had been reported as stolen.

Further factual background will be given where necessary to explain and resolve the issues raised on appeal.

Appellants were previously tried, convicted of first degree murder and sentenced to death. That conviction was reversed by the California Supreme Court and remanded for retrial. (People v. Powell (1967) 67 Cal.2d 32 [59 Cal.Rptr. 817, 429 P.2d 137].) Thereafter, appellants made numerous pretrial motions, including an application for change of venue and to quash the 1968-1 and 1968-2 jury venire. These motions were denied and another trial on the merits commenced against appellants in a joint proceeding. On the motion of Smith, his then trial counsel was discharged and the case was finally severed in order to permit Smith’s newly appointed counsel to prepare for trial. For that reason Smith’s trial on the merits was delayed to commence after and separate from the trial on the merits as to Powell.

We now turn to the issues raised on appeal designating the same by abbreviated titles and indicating to which appellant each issue pertains.

Smith and Powell Venue

Appellants argue that the Los Angeles Superior Court was without territorial jurisdiction and that venue was actually in Kern County. Appellants strenuously urge that Penal Code section 790 required that the trial be held in Kern County and that Penal Code section 781 is not applicable because no element of the offense was accomplished in other than Kern County.

The record plainly shows that the chain of events culminating in the death of Campbell commenced in Los Angeles County where appellants were stopped by the deceased and his partner Hettinger. At that time appellants “got the drop” on the officers, took their weapons, under threat of force compelled Campbell and Hettinger into the Ford automobile and ordered Campbell to drive the group to Bakersfield where Campbell was shot to death. Even if none of the events described prior to the shooting of Campbell constituted any element of the crime charged (Pen. Code, § 187), they were preliminary acts accomplished in Los Angeles County.

In this very case the Supreme Court determined that the “preliminary acts” were sufficient to fix jursidiction in Los Angeles County. (People v. Powell (1967) 67 Cal.2d 32, 62-63 [59 Cal.Rptr. 817, 429 P.2d 137].) Appellants urge that the Supreme Court’s construction is dictum and should not be followed. Whenever the Supreme Court interprets a statute other courts are obliged to follow it. (People v. Hallner (1954) 43 Cal.2d 715, 720-721 [277 P.2d 393]; Steelduct Co. v. Henger-Seltzer Co. (1945) 26 Cal.2d 634, 642 [160 P.2d 804].) In holding that Penal Code section 781 was applicable to circumstances where preliminary acts take place in one county and the perpetration of the crime occurs in another, the Supreme Court construed the legislative intent and purpose as broadening jurisdiction beyond rigid limits fixed by the common law. (People v. Williams (1973) 36 Cal.App.3d 262, 268-269 [111 Cal.Rptr. 378].)

The holding as to jurisdiction in People v. Powell, supra, is not dictum. Even though it was not necessary for the court to address that issue to accomplish its result, confronting the subject was entirely consistent with the law. (Code Civ. Proc., § 43.) Since the reversal required a new trial it was appropriate to recognize and rule on this issue because it was bound to be a continuing problem: “Independent of the mandate of the code provision, the obligation rests on the court in the efficient and proper administration of the law to determine all questions legitimately submitted by an appeal. Justice so demands and the litigants are entitled to no less.” (King v. Kaplan (1949) 94 Cal.App.2d 697, 700 [211 P.2d 578].) Therefore, jurisdiction was properly fixed in Los Angeles County because it was so determined in the earlier appeal and thereby became the law of the case. (People v. Durbin (1966) 64 Cal.2d 474, 477 [50 Cal.Rptr. 657, 413 P.2d 433]; People v. Harvey (1958) 156 Cal.App.2d 516, 518-519 [319 P.2d 689].) In People v. Durbin the court stated; “Questions determined by an intermediate appellate court constitute the law of the case after the decision becomes final. In the absence of exceptional circumstances of hardship and injustice the need for attributing finality to considered judicial determinations compels adherence to the previous decision.” (P. 477.) For this same reason, it was not error not to instruct the jury on this issue.

Appellants also claim that they were deprived of their Sixth Amendment right to be tried by a jury of the “district wherein the crime shall have been committed,” as interpreted in People v. Jones (1973) 9 Cal.3d 546, 554 [108 Cal.Rptr. 345, 510 P.2d 7.05]. This claim is distinct from the one decided by the Supreme Court on the previous appeal, which related only to venue. Strictly speaking, the Sixth Amendment right to a “jury of the vicinage” refers to the geographical area from which the jury is summoned rather than to the place of trial, the venue. In practical effect, however, the summoning of a jury from the vicinage usually requires that the venue be, at least in part, coterminous. Thus, in California the requirement of section 198, subdivision 1, of the Code of Civil Procedure, that jurors be one-year residents of the county where they sit, would have made it difficult, to say the least, to have Kern County residents in a Los Angeles venire.

We are, of course, bound by the Supreme Court’s interpretation of the vicinage clause of the Sixth Amendment, insofar as it may be relevant to the facts of this case. Jones involved charges of selling marijuana. (Health & Saf. Code, § 11531.) According to the proof the offenses were committed entirely within the Central District of the Los Angeles County Superior Court. For certain administrative reasons the case was tried in the southwest district of that court, from which district alone the jurors were drawn. Applying the vicinage clause of the Sixth Amendment in the context of that prosecution, the court held that “. . . the rule quite simply is that a criminal defendant is entitled to a jury drawn from a jury panel which includes jurors residing in the geographic area where the alleged crime occurred.” (Id. p. 554.)

At the oral argument of this appeal, the People conceded that the seriousness of their Sixth Amendment problem arises from the following facts:

1. Although California statutory provisions concerning venue were satisfied even if only preliminary acts were accomplished in Los Angeles County, such preliminary acts do not necessarily satisfy the Sixth Amendment test set forth in People v. Jones, supra, which speaks of juries drawn from the “geographical area where the alleged crime occurred.”

2. Although there is a tremendous amount of evidence, direct and circumstantial, that elements of the crime of first degree murder were committed in Los Angeles County, the evidence to that effect is not 100 percent compelling. Thus, if the intention to take .Campbell’s life was not formed until the party reached Kern County and if the taking of any of the victims’ property in Los Angeles County was not accompanied by the required animus furandi (cf. People v. Butler (1967) 65 Cal.2d 569, 573 [55 Cal.Rptr. 511, 421 P.2d 703]), all the actual elements of first degree murder took place in Kern County.

3. The jury was never asked to resolve the conflict in the evidence.

4. Therefore, to rule in favor of the People on appellants’ Sixth Amendment point requires us to hold that a jury venire from which Kern County residents were systematically excluded—as, of course, they were by virtue of section 198, subdivision 1, of the Code of Civil Procedure— did not violate the Sixth Amendment under any view of the facts of this case.

We so hold. The factual situation in Jones was not even remotely similar to the one at bar, where a Los Angeles kidnaping directly and inexorably led to a Kern County execution, whether or not clemency was still in the cards when the county line was crossed. Jones involved three sales of marijuana. Each offense was confined to an intracounty judicial district from which no prospective jurors were drawn. The district where the case was tried and which furnished the entire venire had no" connection whatever with the alleged crimes: it merely had an available courtroom. We feel certain that the conviction would not have been set aside on “vicinage” grounds if, for example, Jones had journeyed into the southwest district for the specific purpose of procuring the marijuana later sold in the central district.

In Jones the Supreme Court was faced with the difficult problem of applying what was originally conceived as a right against the federal government in the context of a state criminal prosecution. After all, we do not have “districts”—the geographical territories mentioned in the Sixth Amendment—nor are we really faced with the evil which appears to have triggered the vicinage clause: the removal of- prisoners for trial in England. Clearly, it was not confronted with the issue which we face: whether it is a violation of the Sixth Amendment to confine the summoning of jurors to a geographical area in which every act preliminary to the actual crime was committed, but in which the elements which technically constitute the crime did not occur.

Whatever may be the answer to that question from a constitutional point of view, it is clear that as a practical matter a slavishly literal reading of Jones—• “. . . area where the alleged crime occurred.” (Id. p. 554.) (Italics added.)—would either nullify the ameliorative provisions of section 781 of the Penal Code as interpreted and applied in People v. Powell (1967) 67 Cal.2d 32, 62-63 [59 Cal.Rptr. 817, 429 P.2d 137], or require the importation of jurors from one county into another—a practice in violation of section 198, subdivision 1, of the Code of Civil Procedure.

We do not believe that Jones compels either result. From a constitutional point of view, the combined effect of the two California code sections is merely that we have divided the State into “districts” as defined in section 781 of the Penal Code, permitting trials to take place in any county which forms part of such a “district”; further, we have provided that the jury is to be drawn exclusively from such county of trial, even if only certain preliminary acts take place in such county. If that means that for Sixth Amendment purposes California interprets the word “crime” as including preliminary acts which satisfy the venue requirement of section 781 of the Penál Code, so be it. If we consider that in the federal context Congress is free to redistrict at its pleasure and to define crimes in such a way that defendants can be tried in districts with which they do not have the remotest connection, we are satisfied that no constitutional right of appellants was violated here.

Smith and Powell Material Variance

The information charges in part as follows:

“That the said Gregory Ulas Powell and Jimmy Lee Smith, on or about the 10th day of March, 1963 at and in the County of Los Angeles, State of California, did willfully, unlawfully, feloniously and with malice aforethought murder Ian Campbell, a human being.”

Appellants direct our attention to the fact that the mortal wounds were inflicted and the homicide resulted in Kern County, California. This is the predicate to their claim of a material and prejudicial variance between the information filed and the evidence produced at trial. “No accusatory pleading is insufficient, nor can the trial, judgment, or other proceeding thereon be affected by reason of any defect or imperfection in matter of form which does not prejudice a substantial right of the defendant upon the merits.” (Pen. Code, § 960.)

“The test of the materiality of a variance is whether the indictment or information so fully and correctly informs the defendant of the criminal act with which he is charged that, taking into consideration the proof which is introduced against him, he is not misled in making his defense . . . (People v. LaMarr (1942) 20 Cal.2d 705, 711 [128 P.2d 345]; Witkin, Cal. Criminal Procedure (1963) § 195, pp. 183-184.)

The contention that this variance is prejudicial is specious. Appellants have failéd to demonstrate that they were misled in the preparation and conduct of their defense and the evidence heard and considered by the jury. Appellants were previously tried for the same charge. Both had the benefit of a preliminary transcript and a full trial transcript. In no way could they or their counsel have been misled as to the nature of the evidence that the prosecution would offer.

Smith and Powell Challenge to Jury Venire

Validity of Selection Procedure

On August 8, 1968, Smith and Powell made a pretrial motion challenging the entire 1968-1 and 1968-2 jury venires for Los Angeles County. Generally, the challenge was predicated on the contention that the composition of the jury venire did not thoroughly represent a cross-section of identifiable classes of persons within the community. Specifically, appellants asserted that members of minority groups and the lower socioeconomic elements were excluded from jury service.

It is important to understand that appellants’ primary assault was based upon an attempted showing that the actual number of persons selected for jury service from designated areas was so disproportionate to the expected probable draws that the burden of proving the legality of the venire shifted to the People. The demonstration was premised on the application of a statistical formula designated Chi square. This technique was employed to show whether or not a segment of the community had been chosen for jury service in numbers consistent with a random selection from the general population. In this case, appellants employed the Chi square formula in an effort to show that there was an improbable disparity between the number of certain minorities actually selected for jury service and their numbers in the general population for designated districts. Appellants contend that such disparity implies that a random selection of the jury venire was unlikely.

The evidence offered in support of the motion was profuse, redundant and frequently recondite. It required nearly six months for its production. No useful purpose would be served in making a detailed exposition of this evidence in this opinion. Therefore only pertinent parts will be set forth.

In response to the motion, the People produced evidence outlining the method by which the jury venires were and had been selected in Los Angeles County for the time periods in question. This evidence served as a useful backdrop to an understanding of the issue.

The Los Angeles Superior Court has as a part of its administrative staff a jury commissioner. (Code Civ. Proc., § 204a.) It was his responsibility to provide residents of the county to serve as jurors in cases conducted by the superior court. To implement the execution of this responsibility, the Los Angeles Superior Court adopted as a part of its official rules, rule 25. Selection of jurors. This rule was in effect for the time period relevant to this action. Section 2 thereof has been the primary basis by which the jury commissioner proceeded with the selection of jurors. Following that provision he made his draw three times a year from the registered voters list of Los Angeles County. Specifically, the jury commissioner made an estimate as to the size of the venire that would be required and directed a request to the registrar of voters asking that a certain number of names be selected from specific precincts.

In making the selection from the register of voters the juiy commissioner used a key number system, selecting prospective jurors from every sixth precinct and having the registrar of voters draw every fifth name from each of the designated precincts. In order to avoid duplication in the source from which the jurors were drawn, if a precinct had been used in prior years it would be excluded until other precincts had been used.

This process results in two venires per calendar year. The challenge in the present action was addressed to both lists of jurors selected and approved for 1968 and identified as the “1968-1” and “1968-2” venire.

The jury commissioner called for a list of prospective jurors 10 times greater than that needed. This was done in anticipation that for every registered voter that qualified, nine would either not respond, be excused or not qualify. For each of the 1968 venires the jury commissioner expected to need 8,000 qualified jurors. Therefore, he asked that the registrar of voters provide him with approximately 80,000 names. Using data processing to sort the index of registered voters, every fifth name was drawn from each of the precincts indicated by the jury commissioner in his letter to the registrar. These cards were reproduced for the purpose of addressing letters that were prepared by the jury commissioner and provided to the registrar of voters. Nearly 700 letters were addressed for each one of the 112 mailing days that pertained to each of the venires for a single year. This resulted in an automated random selection.

The letters that were sent to those registered voters whose names were drawn advised them that they had been included on the list of prospective jurors and requested them to appear for an interview on a particular date. On the reverse side were instructions which informed the voter that if he was unable to perform jury duty for certain stipulated reasons he could request an excusal.

Some prospective jurors used the reverse side of the advisory letter requesting exemption or excusal. If it appeared that the excuse was valid and was within the operation of Code of Civil Procedure section 200 or section 201 there was no follow-up. If the written request for excusal did not show on its face that it was within the operation of any statutory basis for exemption or excusal from service, a second request for additional facts was made. The additional information was obtained by way of written communication or by personal interview. If the prospective juror made a personal appearance he completed a personal data sheet and a prospective juror examination. He was then interviewed and the data sheet and the examination were reviewed by one of four interviewers.

At the time of the interview the prospective juror was informed of the rate of compensation and whether or not any of the information contained on the data sheet or otherwise obtained would exempt or excuse him.

Ultimately, the selection process provided a venire of qualified jurors. Their identities were compiled on IBM print-out lists and circulated among the members of the superior court. When a majority of the judges of that court signed the list it became certified.

We emphasize that the first step in the selection process is the random withdrawal of names from the list of those who have registered to vote within the county. This approach is unassailable. (People v. Sirhan (1972) 7 Cal.3d 710, 749-750 [102 Cal.Rptr. 385, 497 P.2d 1121]; People v. Murphy (1973) 35 Cal.App.3d 905, 918-919 [111 Cal.Rptr. 295]; People v. McDowell (1972) 27 Cal.App.3d 864, 869-870 [104 Cal.Rptr. 181].) The qualifications to register as a voter are substantially less restrictive than those that pertain to qualifying for jury service. (Ganz v. Justice Court (1969) 273 Cal.App.2d 612, 623 [78 Cal.Rptr. 348]; cf. Castro v. State of California (1970) 2 Cal.3d 223 [85 Cal.Rptr. 20, 466 P.2d 244].) Being blind, deaf or decrepit does not operate to disenfranchise the voter. However, those adversities would disqualify one from being a juror. The register of voters probably constitutes the most pervasive listing of qualified citizens from both sexes, all races and all walks of life that is readily available to the government for its jury selection. Its compilation is not the product of those who are charged with the responsibility of selecting the jurors. Most importantly, it identifies citizens who are prima facie eligible to participate as jurors. The government’s ability to frustrate voter registration is almost negligible. Therefore, appellants are prima facie confronted with a jury venire for Los Angeles County, apparently selected at random and in accordance with judicially approved methods. (United States v. Kelly (2d Cir. 1965) 349 F.2d 720, 777-778, cert. den., 384 U.S. 947 [16 L.Ed.2d 544, 86 S.Ct. 1467].) The burden then fell on them to prove that the procedures followed operated systematically to exclude identifiable segments of the community resulting in a venire that did not fairly reflect a cross-section of the community.

In this case appellants asked that certain comparisons be made of the results of this selection process in four areas selected by appellants. Three of these areas constitute geographically defined districts within census reports prepared by the regional planning commission for the County of Los Angeles. These districts are identified as “Statistical Areas” and given identification numbers by the Regional Planning Commission. They are delineated in the exhibits offered by appellants and entitled “Quarterly Bulletin Population and Dwelling Units.” These are generally referred to as “Avalon,” “Boyle Heights” and “Watts” Districts. A fourth area was designated and geographically defined by appellants. This area was generally referred to as the “Mulholland District.” With respect to all four of the districts, the voter precincts used for the 1968-1 and 1968-2 jury venire were delineated by reference to the official councilmanic district maps obtained through the City Clerk for the City of Los Angeles. These four districts were identified on four exhibits offered by appellants and received into evidence. The precincts were indicated thereon. The Watts and Avalon Districts were selected because they are predominantly populated by members of the black community; the Boyle Heights District was selected because of the fact that it is heavily populated by persons with Spanish surnames; and the Mulholland District was an arbitrary designation of an area that is purported to be populated predominantly by “Caucasians.”

The number of precincts included from each of the designated districts for the 1968-1 and 1968-2 jury venires is set forth below:

Watts: 1968-1 9; 1968-2 8

Avalon: 1968-1 17; 1968-2 16

Boyle Heights: 1968-1 19; 1968-2 18

Mulholland: 1968-1 16; 1968-2 17

Total precincts 61 59

In all of Los Angeles County there were at least 7,000 precincts. In the various attacks made by appellants on the selection process for the venire of Los Angeles County the court was asked to apply statistical equations that were predicated on samplings that pertain only to the populations within each of these districts. Essentially, this was an invitation to predict a determination based upon probabilities that were arrived at by comparing each of these districts with the others and with the County as a whole.

In support of the motion appellants called Nancy Ward for the purpose of offering certain demographic information. She was the research director of the Los Angeles County Human Relations Commission. She had conducted statistical analyses based on the McCone Commission’s Report to the Governor concerning the 1965 Watts riot. In that connection she spent three years making estimates of large minority population groups within the County of Los Angeles. Based on a variety of computations and formulations, Ward made certain estimates and projections as to the adult population for the designated areas within Los Angeles County and the county as a whole. These estimates and projections purported to produce population information covering the period for the jury selection of the 1968-1 and 1968-2 jury venires.

The source material used by her and upon which her conclusions were dependent included estimates, approximations and projections. Included in the material she referred to were 1960 census tract maps designating home values, family income and population characteristics of blacks. She also referred to the 1950 federal census figures, the 1965 special census report, the Quarterly Bulletin Supplement of Los Angeles County Regional Planning Commission, population data available through the City of Los Angeles and pupil protractions provided to the State Department of Education and pertaining to the County of Los Angeles in particular. Obviously, the conclusions reached by Ward required her to work with a variety of data, none of it really verifiable, and most of it probably not capable of being comparatively related. For example, the population figures of the county and city were in part based on the number of dwellings existing within the identifiable statistical areas. For the purposes of computing the population, someone had to make an educated guess as to the number of persons residing within each dwelling. The accuracy of that estimation is not demonstrated anywhere in this record. Another example is the substantial variable that must exist with respect to pupil protractions. Obviously, if one is to estimate population based upon the number of students enrolled within any given district, there must be some basic assumption as to family size. Ward used the confidential statistics of the county mental health department to determine what percentage of the population within each district was adult. That statistical information encompasses people under the age of 20 and does not specifically account for persons who are 21 years of age. These statistics, however, were a poor means of arriving at her goal, the adult population, since they classified the population in age groups such as 14 to 19 and 20 to 64. There really was no way of determining what part of the latter group was over 21 and, by the standards of the time, adult. With admirable candor appellants stipulated with the People that all of this witness’ computations contained errors. The most basic deficiency in her computations and projections is her total disregard of whether the adults in the sample districts were registered voters. Because the register of voters was the exclusive source for the selection of jury venires—other than the rare nomination by a judge of the court—it was only the registered adult population to which she should have referred for comparison purposes. Thus, her estimates concerning the populations, prospective jury lists and approved jury lists were calculated with reference to a general adult population. The significance of that error is apparent when it is recognized that these projections constitute one of the factors of the Chi square formula appellants employed to challenge the venire. Her conjectures were based upon ratios comparing the known qualified jury draw for the period in question with the total estimated county adult population at that time. Using that ratio with respect to the number of adult persons that she estimated to populate each of the above districts, she indicated the expected number that would appear on the prospective jury list and the number to be qualified within each of these sample areas. Her disregard of the fact that not all of the adult persons were registered voters makes her conclusions almost irrelevant and certainly not compelling.

Ultimately, appellants demonstrated that the number of qualified jurors selected for the period in question was less than the number estimated by Ward with respect to Avalon, Boyle Heights and Watts. By this demonstration, as will be more expansively discussed, appellants attempted to prove through statistical calculation that the probability of disparity was so great that it must be presumed to be the result of a systematic exclusion of members of the minority community.

It is appropriate to inquire why the particular sample areas were selected. The Los Angeles County 1960 census maps showed that there were several concentrations of minority populations and that the distributions of family income and home values were widely spread. Admittedly, the Los Angeles County 1960 census map entitled Population Characteristics of Negroes shows that the concentration within the Avalon and Watts Districts is black. However, the map indicates equivalent distributions in the Pasadena and San Fernando Valley areas. Additionally, it was not shown that this condition had remained static. The record does not reveal that the trial court was provided with evidence that the designated districts constituted a fair sample of the minority groups and the lower socioeconomic segment upon which reliable statistical conclusions could be predicated. It is incumbent upon defendants who challenge the venire to make that showing.

Appellants also called Dr. Wayne Zimmerman to apply the projections of Ward concerning jury selection and composition. He used Ward’s estimated projections as a part of the statistical analysis about which he testified. Zimmerman holds a Ph.D. in psychology with a major in psycho-metrics. He classified himself as a “professional test constructor.” At the time of the hearing he was the testing officer at California State College at Los Angeles and had experience in the field of determining whether or not tests had been proven as to reliability and validity.

It was stipulated that Zimmerman had been provided with certain IBM print-outs of the 1968-1 and 1968-2 prospective jury lists. This information consisted of, among other things, the actual precinct numbers, the total number of prospective jurors that were contacted, that responded and that qualified for the 1968-2 jury venire for each of the selected districts.

Using this information Zimmerman was cognizant of the actual number of prospective jurors that qualified for the 1968-2 jury venire. He used this as one factor in an equation for the purpose of attempting to demonstrate that the numbers of prospective jurors that qualified from Avalon, Boyle Heights and Watts were numerically deficient. The witness employed the Chi square formula. As mentioned, the formula required two factors for its computation: the observed number of jurors that qualified and the estimated number of jurors that would be expected to qualify as jurors within the designated districts. Zimmerman used the computed conclusions of Ward for the second factor, the expected number of qualified jurors.

In essence, the witness made these computations to produce a Chi square number which could then be referred to a standard table of Chi square values indicating a numerical probability for measuring the degree of expectancy for the actual number of approved jurors. Part of that is best demonstrated by the testimony of Zimmerman as follows:

“Q. By Mr. Maple: Does the Chi square calculation that you perform have anything to do with probability?

“A. Yes.

“Q. And what does it have to do with probability, doctor?

“A. A Chi square of this size or any size for that matter would occur by chance a certain number of times; therefore you can interpret a Chi square by indicating its probable occurrence, how many times it might be expected to occur during any given number of times.

“Q. How many times would it be expected to occur by pure chance?

“A. That is correct.”

According to Zimmerman the probability of the observed number of prospective jurors that qualified and were selected from each of the designated districts is demonstrated as follows:

District Observed Selected Jurors Probability of Occurrence

Avalon 25 .05

Boyle Heights 37 .0003 or .0004

Mulholland 43 .6

Watts 11 .1

Quite obviously appellants are attempting to fashion their argument after the opinion of the United States Supreme Court in Whitus v. Georgia (1967) 385 U.S. 545 [17 L.Ed.2d 599, 87 S.Ct. 643]. There the Supreme Court was disturbed by a jury selection system operating in Mitchell County, Georgia, which appeared to systematically exclude blacks from grand and petit juries. In Mitchell County blacks constituted 27.1 percent of the tax digest from which jurors were selected. However, blacks constituted only 9.1 percent of the grand jury and 7.8 percent of the petit jury. The Supreme Court believed that this disparity, coupled with the fact that the tax digest was prepared under a segregated system, compelled the conclusion that blacks had been systematically excluded from the grand and petit juries. The important point for our purposes is that the Supreme Court took notice of the “probability” involved in this situation. A specific comment in Whitus is as follows:

“While unnecessary to our disposition of the instant case, it is interesting to note the ‘probability’ involved in the situation before the Court.

“The record does not indicate how many Negroes were actually on the ‘revised’ jury list of approximately 600 names. One jury commissioner, however, said his best estimate was 25% to 30%, which is in close proximity to the 27.1% who were admittedly on the tax digest for 1964. Assuming that 27% of the list was made up of the names of qualified Negroes, the mathematical probability of having seven Negroes on a venire of 90 is .000006. See Finkelstein, The Application of Statistical Decision Theory to the Jury Discrimination Cases, 80 Harv. L. Rev. 338 (1966).” (Whitus v. Georgia, supra, at p. 552, fn. 2 [17 L.Ed.2d at p. 605].)

The judicial system should pay attention to evidence that shows an apparent and meaningful disparity between the presence of identifiable segments of the community—racial, economic, ethnic—and their absence from the jury venires. From demonstrated improbabilities courts may infer that the selection system is purposefully or systematically excluding certain segments of the community. (Adams v. Superior Court (1972) 27 Cal.App.3d 719, 728 [104 Cal.Rptr. 144]; People v. Jones (1972) 25 Cal.App.3d 776, 782 [102 Cal.Rptr. 277].) The procedural consequence of such a demonstration is to shift the burden of proof to the prosecution to demonstrate a justifiable and rational explanation for the disparity. Whether or not a prima facie case has been made out will turn on whether or not the disparity has been proven and then only if the differential constitutes a number that would probably have an effect on the quintessence of the entire venire.

The problem is that appellants employed a spurious factor in arriving at this Chi square number. Specifically, Ward’s estimates were “soft” since they were arrived at without reference to the registered voter population and were otherwise largely speculative. The trial court was not required to accept these statistical conclusions unless it was persuaded that they were founded on substantially reliable data. (Cf. People v. Collins (1968) 68 Cal.2d 319, 327-328 [66 Cal.Rptr. 497, 438 P.2d 33, 36 A.L.R.3d 1176].)

Smith and Powell Challenge to Jury Venire

Exemptions and Excusáis

Appellants challenge the method by which the provisions of Code of Civil Procedure section 201 were administered. In particular, issue is taken with the fact that the jury commissioner, by and with his examiners, has the authority to make a determination as to whether or not a person should be excused when he asserts that service would constitute a hardship or an inconvenience threatening his property or would be adverse to his health or the health and proper care of his family. Rule 25, section 3, authorized the jury commissioner to make this determination. This is consistent with the provisions of Code of Civil Procedure section 201a. It is true that there was no specific criterion as to what would constitute a hardship or inconvenience and that the Jury Commissioner’s office was provided with no definitive guidelines in that regard. It was admitted that there were no written standards for excusing persons for financial hardship. The variety of personal circumstances necessitated a rather flexible approach. Therefore, the absence of any fixed standard should not be condemned. It appears to us that the Jury Commissioner and his staff attempted to use common sense in determining if a prospective juror should be excused. It is to be noted that being excused on one occasion did not constitute an excuse for all time. Those persons who conducted the interview and had the authority to grant excusáis all testified in the course of this trial. We are impressed that their primary motivation was the recruitment of competent jurors. Nothing shows that they applied a different standard with respect to different classes or ethnic groups. While this method is admittedly fluid, it is better that this program be one of recruitment than one of conscription. (Adams v. Superior Court, supra, at pp. 728-729; People v. Gibbs (1970) 12 Cal.App.3d 526, 538-539 [90 Cal.Rptr. 866]; cf. People v. Milan (1973) 9 Cal.3d 185, 195-196 [107 Cal.Rptr. 68, 507 P.2d 956].)

Smith and Powell Challenge to Jury Venire

Prospective Juror’s Examination

When prospective jurors personally appeared in response to the directive mailed to them, they were requested to fill out a personal data sheet and to complete a prospective juror’s examination. A copy of the examination is found in the Appendix. Appellants urge that this examination systematically disqualifies inordinate numbers of racial minorities and the lower socioeconomic members of the community. As a backdrop to this problem, a brief history of the examination should be considered.

About 1935 Dr. Niel D. Warren was invited to prepare an examination at the instance of certain superior court judges. Warren was then professor of psychology at the University of Southern California. Presumably, the preparation of the examination was prompted by a concern to invoke the last two criteria of Code of Civil Procedure section 198:

“§ 198. A person is competent to act as juror if he be: . . . 2. In possession of his natural faculties and of ordinary intelligence and not decrepit; 3. Possessed of sufficient knowledge of the English language.”

Warren conceded that he did not have a full recollection of all the events that surrounded his preparation of the examination in 1935. He recalled that he discussed the problem with Judge Fletcher Bowron, and made some study of jury instructions. His purpose was to prepaje a test designed to permit a jury commissioner to select those persons who would understand the discussions and the instructions of the court during the trial. It was a test of verbal knowledge and was composed of words, “some of which were fairly frequently found in legal proceedings,” and others which were simply selected because they would measure verbal knowledge.

As ultimately drafted and employed the examination is in two parts, the first part consisting of a 25-word vocabulary test and the second part consisting of an eight-question reading comprehension examination. Warren recommended a single cutting score. That is, notwithstanding that the examination consisted of two parts, he intended that there be a single score which included a count of the number correct for both parts. He could not recall what that cut-off number was. It was his testimony that the cut-off number established was one to correspond to a certain level of general intelligence with the intention of failing only those who were distinctly below average in intelligence.

In 1967 the examination was administered and graded in two parts. In order to pass the examination it was necessary to obtain 17 correct answers on the first part and 5 correct answers on the second part. This is referred to as the successive cut-off method. The jury commissioner had used this successive cut-off method for all periods of time relevant to this record. When and why the successive cut-off method came into use is obscure. The examination as drafted by Warren continued in use without change except for the order in which the vocabulary words appear and a minor revision in two questions in the second part pertaining to modifications of jury instructions. As of the time of the pretrial motion, no studies had been conducted to determine the validity or reliability of this examination.

Dr. Burton Michael, a professor of education and psychology at the University of Southern California, informed the court that intelligence is an extremely “complex and multifarious” faculty. According to Michael, the ability to comprehend the meaning of words in printed context is a form of intelligence. He examined the juror’s qualification examination and gave the opinion that a person who graduated from high school would be able to pass that test if 60' percent or 70 percent was passing. In general, Michael was of the opinion that differentiations and the ability to pass the test in Los Angeles County were based primarily on educational differences.

Michael testified that there was a differentiation among socioeconomic levels insofar as they can be identified. The most salient observation as to testing in general was the following: “It is found, for example, that people who are of the Latin American race [s/c] and the Negro race typically, on the average, score somewhat lower on psychological tests than do people of the Anglo-Saxon or Caucasian group. Jewish people do better. Much of this is a function of the amount of education that individuals have had. Frequently, your Negroes and your Latin Americans have not had as much education, even though they may have had as many years; or they have not been associated with schools where a higher level of education is being given. “. . . The longer . . . Negroes have lived in large cities and have been associated with Caucasians and have attended their schools, the higher their I.Q. or intelligence tests are.”

His testimony emphasizes that education makes the difference. Michael did not offer an opinion as to whether or not the educational level of the prospective jurors for Los Angeles County was above or below the level of a person who has graduated from high school. He did proffer an opinion as to what one might consider if he undertook the difficult task of designing a test that would be adequate for the purposes of making a determination as to whether or not the criteria of Code of Civil Procedure section 198 had been met. We stress that he would require such a test to determine whether or not a juror could pay attention and whether or not he would be able to handle the vocabulary that is utilized by the lawyers in the courtroom or by the court when it was giving instructions. In other words, this educator and psychologist was not offended by the concept that jurors be qualified to function within the legal milieu.

In addition to rendering an opinion concerning probabilities predicated on the application of the Chi square formula as aforementioned, Zimmerman’s testimony was offered with respect to the evaluation of the jury qualification examination. In that regard, Zimmerman testified that he performed an analysis and study of the results demonstrated from certain IBM data print-out information concerning the performance of approved jurors selected at large for the 1968-2 venire and the results obtained by prospective jurors who were examined within each of the sample districts selected by appellants. An independent comparison was made with respect to the 25-word vocabulaiy test and the 8-item reading comprehension test. It will be recalled that a passing score on the vocabulary test required 17 correct answers and a passing score on the reading comprehension test required a passing score of 5 correct answers. The product of Zimmerman’s analysis is demonstrated below:

Vocabulary Reading

rtt Mean Sigma N rtt Mean Sigma

C68 64 22.0 2.5 67 33 7.3 .9

C66 54 22.0 2.1 29 23 7.1 .9

C67 67 22.4 2.4 364 30 7.3 .9

Avalon 86 16.9 5.2 45 54 6,3 1.5

Boyle Heights 91 18.0 5.8 76 63 6.2 1.7

Mulholland 79 21.6 3.2 72 56 6.8 1.4

Watts 81 16.7 4.6 26 49 5.8 1.6

In the first column there is an identification of a selected random group and the four selected districts. The random groups being identified as “C” and then followed by the Arabic numerals 68, 66 and 67, simply to indicate that different keys were used to score the vocabulary examination. The second column, which is designated by an “rtt,” indicates the reliability score Zimmerman attributed to each of the examinations. In this context, reliability is defined as the dependability or consistency with which the measure will repeat the same result under similar circumstances. The third column indicates the mean average obtained by those examined, and the fourth column, designated by a sigma sign, represents the standard deviation. The numbers that appear in that column were the witness’ estimate of the dispersion or frequency of scatter of scores about the mean score.' The final column, designated under the letter “N,” indicates the number of persons taking the examination.

Obviously, there is a real disparity between the mean score and the standard deviation for the random selected groups and the specific districts upon which appellants focus attention. However, it must be emphasized that this study and analysis did not provide the hard data as to the number of persons passing and the number of persons failing. It does not reflect the same statistical information as was provided to the court in Carmical v. Craven (9th Cir. 1971) 457 F.2d 582, 585. Without a doubt, the mean score differentials tend to support appellant’s assertion that prospective jurors from three of the selected districts do not score as well on the jury qualification examination. However, it does not necessarily imply that significant numbers from those selected districts failed the jury qualification examination. The “mean score” is not determinative of the number of persons who received a passing score. It may equally reflect a significant disparity in the scores of those who took the examination. This differential or spread in the scores among the group examined is numerically evaluated by the standard deviation. This analysis is simply not determinative of the percentage of persons who passed or failed. Furthermore, the deficiency noted with respect to the analysis made by Zimmerman in comparing the estimated and obtained jurors from the selected district is also present here. Namely, there was no showing that the sample was sufficient for ■the purpose of adequately indicating the claimed obstructive nature of the jury qualification examination with respect to minorities and any lower socioeconomic segment of Los Angeles County.

Zimmerman expressed his own opinions concerning both parts of the examination. He testified that the vocabulary section was entitled to a reliability evaluation of .80 and .90; the eight-item reading comprehension section was entitled to a reliability evaluation ranging between .50 and .60. In simple terms, this expressed his opinion that the vocabulary test is of moderate reliability and would be normally acceptable for screening. He characterized the eight-item reading comprehension section as low in terms of reliability and not adequate for screening. In his opinion, the cut-off point of 17 in the 25-word vocabulary test eliminated a large number of people who have had only a grade school education and would eliminate a significant number of people who had not completed high school.

Zimmerman was most critical of the eight-item true-false reading comprehension test. Declaring that it would not be adequate for individual selection, he expressed the opinion that “roughly three-quarters to two-thirds of the variance of the test would be considered to be error by variance.” An error by variance is something that would happen by chance alone. Consequently, it could not be a meaningful obstacle to anyone but would constitute only a random and nonselective form of impediment. If the witness’ assessment of this part of the examination is correct, its operation would be purely happenstance among all segments of the community. Recalling that five correct answers are required with respect to this part of the examination, it is interesting to note that the mean score for all those tested is above passing and that the standard of deviation is relatively narrow.

Considering that this case involves a challenge to the entire jury venire for the Central District for Los Angeles County, appellants’ application of a statistical analysis is not surprising. A totally empirical study may not be feasible in a countywide analysis of the jury selection system. However, we are impressed with the. enormous quantity of factual information that was provided to appellants at their request pursuant to an order of September 24, 1968. This information was supplied through the offices of the jury commissioner, and included the following data for the 1968 venire pertaining to the four selected districts; 1) the total number of persons in the City of Los Angeles who were mailed notices to appear for jury service in the Central District; 2) data processing print-out schedules identifying by name, address, precinct and initial interview date for all such persons; 3) a designation of the number and means of communication from all such persons who responded to the notice to appear for jury service; 4) a designation of all such persons who were excused without examination or personal interview; 5) the total number of persons who took the prospective juror examination and who were excused from service and a tabulation showing whether they passed or failed; 6) the total number of all such persons who responded to the notice to appear for jury service and who were excused after interview with a designation of each of the reasons for excusal.

These data were compiled into four schedules. Each of the schedules represented one of the selected districts. The title of each schedule bears the name of each respective district to which it pertains (Avalon, Boyle Heights, Mulholland and Watts) and the further title “1968-2 Excusáis By Precincts.” These data were used by Zimmerman in his statistical analysis of the jury qualification examination. It will be recalled that he extracted from them the mean score and standard deviation for each of the prospective jurors tested within the selected districts. On reflection it is curious that appellants did not point to any specific comparative percentages or proportions indicating the pass/fail rate between whites and blacks- or any other distinguishable segments in these relatively small areas. Our curiosity is further aroused by the representations in declarations in support of a motion to quash the 1969-1 jury venire for the Central District.

This motion was filed on January 29, 1969. We stress that the motion to challenge the 1968 venire was definitely denied before appellants argued their second motion to quash the later venire approved by the judges of the Superior Court of Los Angeles County. This second motion was denied on January 31, 1969.

In support of this second motion to quash the 1969 venire appellants’ offer of proof was less oblique than the approach taken with respect to the first motion. Specifically, appellants offered to prove “that in a white middle-class area of Long Beach, 13% of those taking the test during the 1968 draw failed; that in the largely black area of central Long Beach 48% failed; that in the approximately one-half Mexican-American section of San Pedro 57% failed; and that the combined fail rate in the low income in high percentage Mexican-American areas of San Pedro and Wilmington, was 45%.” The offer of proof also included the proffered testimony of appellants’ investigator that he had determined by actual observation that only 5 of the 29 persons from the “black community of central Long Beach” were placed on the approved list of jurors. In several other respects this offer of proof in support of the second motion was based on simple percentage comparisons of the pass/fail rate between distinguishable segments of the community. In fact, the offer of proof nearly parallels that made in People v. Jones (1972) 25 Cal.App.3d 776, 781 [102 Cal.Rptr. 277]. In substance, the offer of proof proposed a demonstration that almost one-half of the black and Mexican-American eligibles in the Long Beach and San Pedro/Wilmington area were excluded from jury service because they failed the juror qualification examination.

This offer of proof illustrates the kind of evidence which was not produced in support of the challenge to the 1968 venires. Having in mind the enormous effort and expense devoted to that challenge, the trial court would have been justified in wondering just why appellants chose not to produce evidence concerning the racial characteristics of the relatively few jurors from the four chosen sample areas who passed and failed the test.

As a matter of fact, appellants’ submissions to us do not even summarize the pass/fail results from the four test areas, though these results are clearly ascertainable from the exhibits. Realizing that they do not rely on them, we nevertheless think it appropriate to summarize them.

District Total Examined Total Fail Percentage of Fail Percentage of Pass

Avalon 84 15 17 83

Boyle Heights 159 22 13 87

Mulholland 101 7 6 94

Watts 39 10 25 75

Looking at these figures without the benefit of statistical guidance, it is, of course, apparent that the prospective jurors from the Mulholland District did better on the examination than those from the other three test areas. At the same time, it should be noted that the differences were nothing like those involved in Carmical v. Craven (9th Cir. 1971) 457 F.2d 582 at page 585, where the fail rate in a predominantly black area was 81.5 percent, while that in a white area was 14.5 percent; nor do the figures reveal as drastic a difference in result as those appellants wanted to produce with respect to prospective Long Beach-San Pedro-Wilmington jurors.

We do not, of course, suggest that satisfactory proof that a juror qualification test which systematically excludes about three times as many blacks as whites is .not suspect under certain circumstances. We do, however, point out that even appellants do not argue that their proof takes us that far. In this, they are wise: First, the sample areas are pitifully small compared to the total eligible population; second, we just do not know—though the proof could have been procured—how many of the 25 prospective jurors who failed from the Avalon and Watts areas were actually black or, conversely, how many of the 94 who passed from the Mulholland area were really white; third, no expert statistical e