THE PEOPLE, Plaintiff and Respondent, v. LEON DWIGHT JONES, Defendant and Appellant, 9 Cal. 3d 546

Opinion SULLIVAN, J. Defendant Leon Dwight Jones was found guilty by a jury of three counts of selling marijuana (Health & Saf. Code, § 11531) and sentenced to state prison for the term prescribed by law. Defendant appeals contending that the systematic exclusion from the jury of all residents of the district where the crime was committed violated his right under the Sixth and Fourteenth Amendments to the United States Constitution to a trial “by an impartial jury of the State and district wherein the crime shall have been committed” and thereby invalidated his conviction.

The pertinent facts, as stipulated to by the parties, are as follows: Defendant was a resident of the 77th Street Los Angeles Police Department Precinct (77th Street Precinct). All of the crimes with which 'he was charged occurred within that precinct. Pursuant to Los Angeles County Ordinance No. 9743, effective March 21, 1969, the 77th Street Precinct had been removed from the Southwest Superior Court District (Southwest District) and included within the Central Superior Court District (Central District) of Los Angeles County.

On May 26, 1970, the presiding judge of the Los Angeles Superior Court ordered that all crimes committed in the 77th Street Precinct be tried in the Southwest District instead of the Central District “because there were not enough judges or courtrooms downtown to handle the volume of work, and it was contemplated that the 77th Street cases would be tried in the Southwest District until the new Criminal Courts Building was completed in downtown Los Angeles in the Fall of 1972.” During this period all jurors who sat on cases in the courthouse in Torrance in the Southwest District were drawn from the geographical area known as the Southwest District.

Jurors who resided in the 77th Street Precinct in the Central District were not drawn for jury service in the Southwest District, but were drawn to serve exclusively in the Central District. However, the Jury Commissioner of Los Angeles County indicated that it would be possible to select and transport residents of the 77th Street Precinct to the Southwest District to serve as jurors.

The 1970 census figures show the following pertinent population statistics: the 77th Street Precinct had a population of approximately 240,000 of which 73 percent were Negro; the Southwest District had a population of approximately 700,000 of which 7 percent were Negro; the population of the Central District was 31 percent Negro; the combined population of the Southwest District and the 77th Street Precinct would be 23 percent Negro. Pursuant to the May 26, 1970, order, defendant’s case was set. for trial in department “F” of the Southwest District.

Defendant moved to transfer the trial to the Central District on the ground that the jurors from the area where the alleged crime (for convenience we refer to defendant’s offenses in the singular) occurred were included within the Central District jury panel, but excluded from the jury panel of the Southwest District. The motion was denied.

Following an unsuccessful attempt to secure a writ of prohibition from the appellate courts, defendant made a motion challenging the jury panel on the same grounds and urging inclusion in the jury panel of a proportional number of jurors residing in the district where the alleged crime occurred. The motion was heard and denied in department “A” of the Southwest District. Defendant was then tried and convicted in department “F” of the Southwest District by a jury drawn from a panel which systematically excluded potential jurors who resided in the Central District. This appeal followed.

The Sixth Amendment to the United States Constitution provides in pertinent part: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, ...” Invoking his right to a jury under this amendment, defendant argues that it is an essential feature of such a jury that it be drawn from the “district wherein the crime shall have been committed.” The United States Supreme Court held in Duncan v.

Louisiana (1968) 391 U.S. 145, 149 [20 L.Ed.2d 491, 496, 88 S.Ct. 1444], that “the Fourteenth Amendment guarantees a right of jury trial in all criminal cases which—were they to be tried in a federal court—would come within the Sixth Amendment’s guarantee.” (Fn. omitted.) In Williams v. Florida (1970) 399 U.S. 78 [26 L.Ed.2d 446, 90 S.Ct. 1893], the high court determined that not all “features of the jury system, as it existed at common law, were preserved in the Constitution” (id. at p. 99 [26 L.Ed.2d at p. 460]), but only essential features were preserved in the Sixth Amendment.

The court determines those features which are indispensable components of a jury under the Sixth Amendment by examining the “function that the particular feature performs and its relation to the purposes of the jury trial.” (Id. at pp. 99-100 [26 L.Ed.2d at p. 460].) More recently in Peters v. Kiff (1972) 407 U.S. 493 [33 L.Ed.2d 83, 92 S.Ct. 2163], the Supreme Court said: “In Williams v. Florida, 399 U.S. 78 (1970), we sought to delineate some of the essential features of the jury that is guaranteed, in certain circumstances, by the Sixth Amendment.

We concluded that it comprehends, inter alia, ‘a fair possibility for obtaining a representative cross-section of the community.’ 399 U.S., at 100.” (Id. at p. 500, fn. omitted [33 L.Ed.2d at p. 92].) The court took pains to explain the significance of a representative jury: “The principle of the representative jury was first articulated by this Court as a requirement of equal protection, in cases vindicating the right of a Negro defendant to challenge the systematic exclusion of Negroes from his grand and petit juries. E.g., Smith v. Texas, 311 U.S. 130 (1940).

Subsequently, in the exercise of its supervisory power over' federal courts, this Court extended the principle, to permit any defendant to challenge the arbitrary exclusion from jury service of his own or any other class. E.g., Glasser v. United States, 315 U.S. 60, 83-87 (1942); Thiel v. Southern Pacific Co., 328 U.S. 217, 220 (1946); Ballard v. United States, 329 U.S. 187 (1946). Finally it emerged as an aspect of the constitutional right to jury trial in Williams v.

Florida, 399 U.S. 78, 100 (1970).” (407 U.S. at p. 500, fn. 9 [33 L.Ed.2d at p. 92].) In Williams the Supreme Court detailed the legislative history behind the passage of the Sixth Amendment and emphasized that the common law right to be tried by a “jury of the vicinage,” unlike the common law right to a jury of 12 members, was an essential feature of jury trial, which was explicitly preserved, though redefined, by the Sixth Amendment. It observed: “Indeed, pending and after the adoption of the Constitution, fears were expressed that

Article Ill’s provision .failed to preserve the common-law right to be tried by a ‘jury of the vicinage.^[] [Fn. omitted.] That concern, as well as the concern to preserve the right to jury in civil as well as criminal cases, furnished part of the impetus for introducing amendments to the Constitution that ultimately resulted in the jury trial provisions of the Sixth and Seventh Amendments.

As introduced by James Madison in the House, the Amendment relating to jury trial in criminal cases would have provided that: ‘The trial of all crimes . . . shall be by an impartial jury of freeholders of the vicinage, with the requisite of unanimity for conviction, of the right of challenge, and other accustomed requisites . . . .’ [Fn. omitted.] The Amendment passed the House in substantially this form, but after more than a week of debate in the Senate it returned to the House considerably altered. [Fn. omitted.] ...

As reported in a second letter by Madison on September 23, 1789, the Senate remained opposed to the vicinage requirement, partly because in its view the then-impending judiciary bill—which was debated at the same time as the Amendments— adequately preserved the common-law vicinage feature, making it unnecessary to freeze that requirement into the Constitution. ‘The Senate,’ wrote Madison: ‘are . . . inflexible in opposing a definition of the locality of Juries.

The vicinage they contend is either too vague or too strict a term; too vague if depending on limits to be fixed by the pleasure of the law, too strict if limited to the county . . . .’ The version that finally emerged from the Committee was the version that ultimately became the Sixth Amendment .... Gone were the provisions spelling out such common-law features of the jury as ‘unanimity,’ or ‘the accustomed requisites.’ And the ‘vicinage’ requirement itself had been replaced by wording that reflected a compromise between broad and narrow

definitions of that term, and that left Congress the power to determine the actual size of the ‘vicinage’ by its creation of judicial districts. [Fn. omitted.]” (Williams v. Florida, supra, 399 U.S. at pp. 93-96 [26 L.Ed.2d at pp. 456-458].) It thus seems abundantly clear that the “vicinage” requirement as stated in the Sixth Amendment, namely trial by a jury of the district wherein the crime shall have been committed, is an essential feature of jury trial preserved though changed by the Sixth Amendment and made binding upon the states by the Fourteenth Amendment.

As stated earlier in this opinion, Peters and Williams explain that another essential feature of jury trial is that the jury consist of a representative cross-section of the community. Therefore, a criminal defendant in a state criminal prosecution has a constitutional right to be tried by a jury drawn from, and comprising a representative cross-section of, the residents of the district wherein the crime shall have been committed.

In the case at bench, defendant’s position is essentially this: Since his alleged crimes occurred in the Central District and since he was tried by a jury from which residents of that district had been systematically excluded, he was denied his constitutional right to a trial by a jury representing a cross-section of the district where the crime had been committed.

The People’s position on the other hand is this: Since “district” as used in the Sixth Amendment means county and all the jurors were drawn from Los Angeles County, defendant was not deprived of any constitutional right to a trial by a jury drawn from the cross-section of the community. Defendant concedes that, a jury drawn from the whole county would satisfy the “vicinage” requirement and that a jury drawn from only a portion of the county, provided the crime was committed in that portion of the county, would also satisfy that requirement.

He contends, however, that a jury drawn from only a portion of a county, which specifically excludes that portion of the county where the crime was committed, fails to satisfy the “vicinage” requirement of a jury of the district where the crime was committed. Defendant in support of his position relies upon Alvarado v. State (Alaska 1971) 486 P.2d 891 and State of Maryland v. Brown (D.Md. 1969) 295 F.Supp. 63. In Alvarado the defendant was charged with committing a crime in the native village of Chignick, Alaska, but was tried and convicted in Anchorage, Alaska.

The jury panel for criminal trials was drawn from an area within a 15-mile radius of Anchorage. Since Chignick, the scene of the crime, was more than 15 miles from Anchorage, all jurors from the village where the crime was committed were excluded from the jury panel.

The Alaska Supreme Court reversed the conviction because the .defendant had been denied his constitutional right to an impartial jury, drawn from a source truly representative of a fair cross-section of the community where the crime was committed. “[T]he traditional starting point for determining the community from which jurors are to be selected is the scene of the alleged offense. [Fn. omitted.] Hence, we feel that in determining whether the source from which a given jury is selected represents a fair cross-section of the community, we must adhere to a notion of community which at least encompasses the location of the alleged offense. [Fn. omitted.] It is the community in which the crime was committed that the fury must represent. [1fl Because the focus of the concept of community is on the place where the offense has allegedly been committed, any narrowing of the area from which prospective jurors are drawn will have no effect on the impartiality of jury panels, so long as the narrow area of selection continues to include the scene of the crime, . . .

Where, on the other hand, prospective jurors are selected from an area which does not encompass the scene of the alleged crime, there will always be a danger that significant elements of the community in which the crime occurred will be excluded from representation on the jury panel, and that the panel will consequently fail to represent a fair cross-section of the community.” (Alvarado v. State, supra, 486 P.2d at pp. 902-903.) (Italics added.) In State of Maryland v.

Brown, supra, 295 F.Supp. 63, the defendant was charged by indictment with various offenses alleged to have been committed within Dorchester County. Over Brown’s objection, the place of trial was changed from Dorchester County to Harford County on the motion of the prosecution made on the ground that it would be impossible to have a safe, fair, orderly trial in Dorchester County because of the public reaction to the crimes.

Brown then sought to remove the case to the federal courts, claiming, inter aha, he “will also be denied his rights to a jury which fairly represents the community in which the alleged crime was supposed to have taken place, . . .” (Id. at p. 72.) His motion was denied on the ground that he had failed to meet the standard for removal, namely inability to enforce a racially oriented right in the state court.

Emphasizing the distinction between venue, i.e., a trial in a particular place, and vicinage, i.e., a jury drawn from a particular locality, the court held that the change of venue under state law from the county where the crime was committed to another county of the state violated none of Brown’s constitutional rights. Nevertheless, the court declared that if the Harford County jury were drawn from a panel which excluded jurors residing in Dorchester County, the scene of the alleged crime, Brown’s constitutional right to a jury of the district where the crime was committed would be violated.

Observing that in such event Brown’s remedy would be to insist that Dorchester County residents be included in the jury panel or comprise the whole jury panel, the court went on to say: “[Tjhere would appear to be nothing in the federal Constitution to prevent a state from trying any criminal case anywhere within the state, with a state-wide jury or with a jury selected from residents of the jurisdiction in which the alleged offenses were committed.

While there may be due process, equal protection, or other constitutional limitations on the power of a state governmental system arbitrarily to exclude from a jury panel residents of the jurisdiction in which the crimes have allegedly been committed, a defendant would seem to have no right to be tried by a jury which is selected from a population base which includes such residents if a fair and impartial jury cannot thereby be provided or if there are other sufficiently compelling reasons for excluding from the jury residents of that jurisdiction.” (295 F.Supp. at p. 83; original italics.) We may distill from Alvarado and Brown the following principle: Although a jury drawn either from an entire county wherein the crime was committed or from that portion of a county wherein the crime was committed will satisfy the constitutional requirement of “an impartial jury of the State and district wherein the crime shall have been committed” (U.S.

Const., 6th Amend.) a jury drawn from only a portion of a county, exclusive of the place of the commission of the crime, will not satisfy the requirement. We find the reasoning of Alvarado and Brown persuasive. The People would distinguish Alvarado on the ground that Alaska is unique—that the vast cultural, sociological and ethnic differences between the village of Chignick and the City of Anchorage were necessary to the decision and that similar differences simply do not occur between the Southwest and Central Districts of Los Angeles County.

Contrary to such claim, it appears to us that the great cultural differences between Ghignick and Anchorage are merely dramatically illustrative of one of the purposes of the constitutional rule and do not represent an indispensable factor in its application. In our view, 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.

It is undeniable that the Sixth Amendment did enlarge the total area from which the jury can be drawn over the area which obtained at common law and that the Sixth Amendment allows the Legislature to define the total size of that area by defining the size of the judicial districts. The first federal judicial districts created by the Judiciary Act of 1789 were, with only two exceptions, statewide. As a result, in the trial of crimes committed within a particular judicial district, the jury of that district could be drawn from a statewide panel.

When subsequently in our history additional judicial districts, and finally divisions within such districts, were created, it was held that the jury could be drawn solely from the division within the district consistent with the Sixth Amendment juror-residence requirement. However, it is noteworthy that in all those cases the crime had apparently been committed within the division from which the jury was drawn.

Thus, while the outer limits of the “district” as used in the Sixth Amendment are flexible, encompassing greater or smaller areas as the Legislature deems wise, the mandate of the Sixth Amendment remains immutable. The district, however large or small, from which the jury is drawn must include the area wherein the crime was committed. The Alvarado court, as well as the Brown court, stated and recognized this rule.

The Alvarado court then went on to demonstrate the interrelationship between this feature of a trial by jury and another feature of such a trial equally applicable to the states, namely the “impartial” nature of the jury. Pointing out that the constitutional requirement of a trial “by an impartial jury” means a jury comprising a representative cross-section oí the community, the court emphasized that such community meant that in which the crime had been committed.

In the case before us the judicial district where the crime occurred—the Central District—had a population that was 31 percent Negro; the judicial district from which the jury was drawn—the Southwest District—had a population that was 7 percent Negro. This represents a serious difference. However, even if the two judicial districts had contained an identical proportion of Negroes, defendant would still be entitled to a jury drawn from a panel including residents of the judicial district where the crime was committed.

The People argue that even the Brown court recognized that there may be sufficiently compelling reasons to justify the exclusion of the residents of the place where the crime was committed and that the inconvenience and cost to the court system and to prospective jurors resulting from the transportation of residents from the 77th Street Precinct to court in the Southwest District constituted sufficient reason to justify the procedures followed in the instant case. We are not impressed by the argument.

In the first place, we do not think that the Brown case can be read as holding inconvenience and cost to be compelling reasons in view of its following language: “The miles and hours separating the county seats of Dorchester and Harford counties hardly present insurmountable or even highly inconvenient barriers.” (State of Maryland v. Brown, supra, 295 F.Supp. at p. 82.) In the second place, .there would not appear to be any substantial inconvenience and cost in the instant case since for years prior to 1969 the residents in the 77th Street Precinct served on juries in the Southwest District.

In 1969 when the 77th Street Precinct was placed in the Central District and its residents were called for jury service in that district, the 77th Street Precinct was of course not physically changed but merely moved on a map. It is inconceivable to us that drawing lines on a map somehow made the journey to jury duty in the Southwest District highly inconvenient and costly. Finally, if inconvenience and cost were deemed sufficient to justify the exclusion from the jury panel of residents in the district where the crime was committed, the People could defeat this constitutional right by merely changing venue.

We do not say that there may not be an exceptional case where inconvenience and cost could constitute sufficiently compelling reasons; we are satisfied that this is certainly not such a case. To recapitulate, we hold that the Sixth and Fourteenth Amendments to the United States Constitution as interpreted in Williams and Peters, guarantee a criminal defendant in a state trial the right to be tried by an impartial jury comprising a representative cross-section of, and selected from residents of, the judicial district where the crime was committed.

Since the alleged crime in the instant case occurred within the 77th Street Precinct in the Central District and since the jury was drawn from a panel which excluded all residents from the Central District, including those residing in the 77th Street Precinct, the juror-residence requirement contained in the Sixth Amendment and made applicable to the states through the Fourteenth Amendment was violated.

For the guidance of the court upon retrial, it is necessary to examine defendant’s final contention, namely that it was error to give CALJIC instruction No. 4.71 when the prosecution’s evidence pointed to the offense occurring at a particular time and when defendant presented an alibi for the time shown by the evidence of the prosecution. Officer Moore testified that he purchased marijuana from defendant upon three occasions, February 17, March 10 and March 24, 1970.

Officer Moore first testified that the final purchase occurred on March 17, but then after reviewing his notes testified that March 24, 1970, was the correct date. Upon cross-examination, Officer Moore emphasized that March 24, 1970, was the date of the final purchase. The majority of the defense evidence went to establish that defendant was in Texas on March 24, 1970.

The comment to CALJIC No. 4.71 states in pertinent part: “This instruction is improper if the People’s evidence fixes the commission of the offense at a particular time to the exclusion of any other time and the defendant has presented evidence of an alibi as to that particular time. . . .” This comment accurately recognizes the rule as developed by the courts. In People v. Morris (1906) 3 Cal.App. 1 [84 P. 463] the prosecutrix in a rape case fixed the act of rape at 4 o’clock in the afternoon of a particular day. The defendant offered an alibi for that time.

The court held it was error not to instruct the jury to confine their consideration to the time that the prosecution evidence showed the offense had been committed. In People v. Waits (1936) 18 Cal.App.2d 20 [62 P.2d 1054] the prosecution evidence fixed the crimes as occurring on April 7, 1936. Defendant offered an alibi for that day.

The court held: “In light of appellant’s alibi defense, the time the alleged offenses were committed became material, and it was the duty of the trial court to limit the jury in its consideration of the evidence to the period which the prosecution selected as the time of the commission of the offenses. (People v. Morris, 3 Cal.App. 1, 10 [84 Pac. 463].) It was, therefore, prejudicially erroneous for the trial court to instruct the jury . . . that it was wholly immaterial on what day the offenses were committed.” (Id. at p. 21.) People v. Brown (1960) 186 Cal.App.2d Supp. 889 [9 Cal.Rptr. 53] is in accord.

This court in People v. Wrigley (1968) 69 Cal.2d 149, 154-157 [70 Cal.Rptr. 116, 443 P.2d 580] specifically affirmed these cases and recognized this rule. Thus, since Officer Moore testified that the final purchase from defendant had been made on March 24, 1970, and since defendant offered evidence establishing an alibi, namely that he had been in Texas on that date, it was error to give CALJIC instruction No. 4.71.

The People seem to recognize that the giving of this instruction was error but argue that defendant waived his right to object by cross-examining Officer Moore as to the accuracy of his recollection of the date in question. Defendant contended that he had gone to Texas on March 20, 1970, and was still there on March 24. Since Officer Moore initially testified that the final purchase occurred on March 17, it was crucial to the defense to establish and emphasize the March 24th date as the defense had an alibi for that date.

Establishing and emphasizing that date by cross-examination could hardly be construed as waiving the right to an alibi on that specific date. The trial court should be guided accordingly in the event of retrial. The judgment is reversed. Wright, C. J., Tobriner, J., and Mosk, J., concurred. The court explained: “Technically, ‘vicinage’ means neighborhood, and ‘vicinage of the jury’ meant jury of the neighborhood or, in medieval England, jury of the county. . . . While

Article III provided for venue, it did not impose the explicit juror-residence requirement associated with the concept of ‘vicinage.’ See Maryland v. Brown, 295 F.Supp. 63, 80 (1969).” (Williams v. Florida, supra, 399 U.S. at p. 93, fn. 35 [26 L.Ed.2d at p. 456].) “Only in the Judiciary

Article does the Constitution purport to restrict the venue of criminal cases. The Sixth Amendment’s provision here under discussion pertains only to the locality from which the jury is to be selected; in other words, it defines the outer limits of the vicinage from which the jury must be summoned.” (Heller, The Sixth Amendment (1951) pp. 92-93.) Williams v. Florida, supra, 399 U.S. 78, 93-96 [26 L.Ed.2d 446, 456-458], Massachusetts and Virginia were each divided into two districts. (1 Stat. 73 (1789).) In United States v.

Wan Lee (N.D.Wash/1890) 44 F. 707 the court held that a jury can constitutionally be drawn from a division within a judicial district and need not be drawn from the whole judicial district, provided: “The court can only bring to trial at any term persons accused of committing offenses within the division; and the jurors, grand and petit, should, to accomplish the purpose of this act, be summoned only from that part of the district.” (Id. at p. 708; italics added.) (See Ruthenberg v. United States (1917) 245 U.S. 480, 482 [62 L.Ed. 414, 418, 38 S.Ct. 168]; United States v.

Titus (2d Cir. 1954) 210 F.2d 210, 212-213; United States v. Ayres (D.S.D. 1891) 46 F. 651.) The People refer to the following excerpt from Brown: “. . . _a defendant would seem to have no right to be tried by a jury which is selected from a population base which includes such residents if a fair and impartial jury cannot thereby be provided or if there are other sufficiently compelling reasons for ¿xcluding from the jury residents of that jurisdiction.” (State of Maryland v. Brown, supra, 295 F.Supp. at p. 83.) Penal Code

section 1060 requires that all challenges to the jury panel be made “before a juror is sworn.” It is well settled that challenges, including constitutional challenges, to the jury panel must be taken within the time prescribed by

section 1060 and cannot be raised for the first time on appeal. (People v. Sirhan (1972) 7 Cal.3d 710, 751-752 [102 Cal.Rptr. 385, 497 P.2d 1121]; People v. Gardner (1969) 71 Cal.2d 843, 854-855 [79 Cal.Rptr. 743, 457 P.2d 575]; People v. Schader (1969) 71 Cal.2d 761, 784 [80 Cal.Rptr. 1, 457 P.2d 841]; People v. Neal (1969) 271 Cal.App. 2d 826, 836-837 [77 Cal.Rptr. 65]; People v.

Sparks (1967) 257 Cal.App.2d 306, 310-311 [64 Cal.Rptr. 682].) It is equally well settled that where the claimed errors could have been but were not raised upon appeal, such errors cannot be raised by writ of habeas corpus, absent special circumstances. (In re Shipp (1965) 62 Cal.2d 547, 552 [43 Cal.Rptr. 3, 399 P.2d 571]; In re Dixon (1953) 41 Cal.2d 756, 759 [264 P.2d 513]; see People v. Wilson (1963) 60 Cal.2d 139, 146 [32 Cal.Rptr. 44, 383 .

P.2d 452] and In re Anderson (1955) 134 Cal.App.2d 552, 553 [285 P.2d 690], holding that failure to object to the lack of speedy trial in the trial court barred raising the point for the first time either on appeal or by habeas corpus.) Therefore, only those defendants who have made an appropriate timely challenge to the jury panel in the trial court and reiterated the challenge upon appeal may avail themselves of the ruling in the instant case.

CALJIC No. 4.71 provides: “When, as in this case, it is alleged that the crime charged was committed ‘on or about’ a certain date, if the jury finds that the crime was committed it is not necessary that the proof show that it was committed on that precise date; it is sufficient if the proof shows that the crime was committed on or about that date.