Williams v. Superior Court CA2/5 ( 2015 )

Filed 1/12/15 Williams v. Superior Court CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
SECOND APPELLATE DISTRICT
DIVISION FIVE
BERNARD WILLIAMS, B257934
S221063
Petitioner,
(Super. Ct. No. NA091969)
v.
THE SUPERIOR COURT OF LOS
ANGELES COUNTY,
Respondent;
THE PEOPLE,
Real Party in Interest.
ORIGINAL PROCEEDIINGS; petition for writ of mandate. Mark C. Kim, Judge.
Peremptory Writ of Mandate granted.
Ronald L. Brown, Public Defender of Los Angeles County, California;
Jackie Lacey, District Attorney of Los Angeles County, by Phyllis C. Asayama
and Matthew Brown.
No appearance for Respondent.
INTRODUCTION
The Superior Court of the County of Los Angeles, respondent court, erred in
denying the motion of defendant, an African American accused of murder, for
appointment of an expert demographer to investigate and opine regarding his contention
there was a significant disparity between eligible African American jurors in the South
Judicial District compared to those summoned to the Long Beach Courthouse. The
California Supreme Court ordered that we issue an alternative writ, which we did. The
trial court did not comply with the alternative writ and failed to issue the appropriate
order. Accordingly, we issue peremptory writ directing the respondent court to vacate its
order denying the motion and to enter a new order granting it.
PROCEDURAL HISTORY
Petitioner Bernard Williams, an indigent, after a trial in which he was acquitted on
one count and a mistrial declared on the remaining two counts, moved for an order from
respondent court to appoint and pay demographer Ashley Thomas as an expert to assist
petitioner in demonstrating his contention that the current method of summoning jurors to
Long Beach Courthouse deprives him of a jury derived from a cross section of the
community. Petitioner’s motion, supported by a declaration of counsel and exhibits,
sought to establish his claim of a significant disparity between eligible African American
jurors in the South Judicial District compared to the African Americans who were
summoned to the Long Beach Courthouse as jurors—that is that there was an
underrepresentation of African Americans on the jury panel.
Petitioner contends the jury services director confirmed jurors were summoned
using the “bulls eye” method, which method draws jurors to the courthouse closest to
their home. Petitioner claims an expert is needed to review 2010 United States Census
data to determine whether the alleged disparity was constitutionally significant and
determine the expected ethnic composition of the prospective panel of jurors assigned for
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service under the “bulls eye” method of selection compared to a random method of
selection.
The trial occurred in Long Beach, which is within the South Judicial District of the
Los Angeles County Superior Court. Petitioner contends that during the first trial, 95
prospective jurors participated in voir dire, but none was from North Long Beach, part of
the South Judicial District. Most of the potential jurors came from areas of Long Beach
nearest the courthouse and from San Pedro. In his motion for appointment of the expert
demographer, petitioner contended: “I believe the manner in which the Superior
Court…assigns prospective jurors for service at Long Beach Courthouse is not random as
is required by the Code of Civil Procedure…the current method decreases the number of
African American jurors likely to serve on Mr. Williams [sic] jury.” Petitioner sought
“…to demonstrate the current method of subpoenaing jurors using the ‘bulls-eye’ method
violates William’s [sic] right to a jury…from a representative cross section of the
community guaranteed by the Sixth Amendment…” Petitioner contends that the
Division of Jury Service records show that residents of the South Judicial District who
live in the 13 zip codes of the District closest to the courthouse, are more than two and
one half times more likely (2.59) than residents of the three zip codes within the City of
Long Beach furthest from the courthouse, to be summoned to jury duty at the Long
Beach Courthouse.
On June 2, 2014, respondent court denied petitioner’s motion on the grounds it
failed to show a prima facie case for relief, contains only vague and conclusory
allegations, and is based on the same facts and law as a prior application, that need not be
reconsidered. Petitioner contends respondent court applied the wrong legal standard and
abused its discretion in denying his application for expert appointment. He contends the
denial is premised on the respondent court’s mistaken belief he needs to show a prima
facie case to have the expert appointed, when he claims he needs only to demonstrate that
the expert services are reasonably necessary to his defense.
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Petitioner sought mandate directing respondent to vacate its denial of his motion
and to enter a new order granting it. On August 28, 2014, we denied petitioner’s mandate
petition. The Supreme Court granted petitioner’s petition for review, and transferred the
case back to this court with directions to vacate our order denying mandate and to issue
an alternative writ. In compliance with the Supreme Court order, we then issued an
alternative writ of mandate, vacating our order of August 28, 2014, and directing the
respondent court to vacate its order of June 2, 2014, and to enter a new order granting
petitioner’s motion for appointment of a demographer to assist him in demonstrating his
contention the current method of summoning jurors to the Long Beach Courthouse
deprives him of a jury derived from a cross section of the community, or to show cause
why a peremptory writ ordering it to do so should not issue. The respondent court
declined to comply with the writ’s directive to vacate its prior order and to enter a new
one.1
The real-party-in-interest, People of the State of California, represented by the Los
Angeles County District Attorney, filed a return to the mandate petition. Real-party-in-
interest contends that it only has a limited interest in the petition and respondent court
should be opposing it, if it chooses to do so. Real-party-in-interest contends Williams’
petition was untimely, and he did not provide an adequate record for review. Real-party-
in-interest further contends petitioner was not entitled to the appointment of an expert on
an ancillary matter unrelated to guilt or innocence, that indigent defendants are entitled
only to experts relevant to a defense—not to explore collateral matters such as jury
demographics—and there was no showing respondent court abused its discretion by
denying his request for an expert. Real party-in-interest argues even assuming a
statistical disparity affecting African American jurors, petitioner did not show this was
1 The trial court appears to have been under the misapprehension that it could not
vacate its order without a peremptory writ being issued by this court. The trial court had
the authority to comply with the act required to be performed in lieu of showing cause
why it had not done so. (Code Civ. Proc., § 1987.)
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caused by any unconstitutional aspect of juror assignment and that using proximity to the
courthouse as a criterion for assigning jurors does not amount to a systematic exclusion.
At the December 5, 2014 hearing before respondent court on this court’s alternative writ,
the real-party-in-interest indicated that it was not opposing the appointment of an expert
if the court wanted to make one.
DISCUSSION
Petitioner contends respondent court applied the wrong legal standard and abused
its discretion in denying his application for appointment of an expert demographer. He
contends the denial was premised on the court’s mistaken belief he needed to show a
prima facie case of jury disparity to have the expert appointed. The Supreme Court has
required that we issue an alternative writ and we did so. The trial court erroneously
refused to comply.
The grounds supporting the Supreme Court’s action are set forth by the petitioner.
They include the following: Petitioner needs only to demonstrate the requested expert
services are reasonably necessary to his defense. Evidence Code section 730 provides
that when expert evidence is or may be required by any party, the trial court may appoint
experts to investigate, render a report and testify as an expert at the trial relevant to the
fact or matter. Under Evidence Code section 731 and Government Code section 29603,
the County must pay for the expenses.
The Supreme Court in Corenevsky v. Superior Court (1984) 36 Cal.3d 307, 319-
321 (Corenevsky), held that the right to counsel includes effective counsel and reasonably
necessary ancillary defense services. Counsel for an accused, especially one accused of
murder as here, is entitled to the aid of such expert assistance as he may need in preparing
his defense. A right to ancillary defense services arises if the defendant has demonstrated
the need for such services by reference to the general lines of inquiry he wishes to pursue.
The respondent court should view with considerable liberality a motion for such pretrial
assistance. The trial court in Corenevsky granted, and the Supreme Court affirmed, the
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defendant’s requests for expert witnesses, including a jury selection expert, based on
counsel’s belief that the difficulty of selecting a jury in a murder case with special
circumstances requires the assistance of an expert. (See also People v. Guerra (2006) 37
Cal.4th 1067, 1085, disapproved on another ground in People v. Rundle (2008) 43
Cal.4th 76, 151 [disapproved on another point in People v. Doolin (2009) 45 Cal.4th 390,
421, fn. 22]; People v. Gaglione (1994) 26 Cal.App.4th 1291, 1304, overruled on another
ground in People v. Martinez (1995) 11 Cal.4th 434, 452.) Although the trial court’s
decision concerning the appointment of an expert may only be set aside for an abuse of
discretion (Corenevsky, supra, 36 Cal.3d at p. 321), “court-ordered defense services may
be required in order to assure a defendant his constitutional right not only to counsel, but
to the effective assistance of counsel.” (Id. at p. 319.)
To establish a prima facie violation of a jury disparity, the defendant must show
that the group alleged to be excluded is a distinctive group in the community; the
representation of these group in venires from which juries are selected is not fair and
reasonable in relation to the number of such persons in the community, and this
underrepresentation is due to systematic exclusion of the group in the jury selection
process. A defendant does not meet the burden of demonstrating the underrepresentation
was due to a systematic exclusion by establishing only statistical evidence of a disparity,
but also must show the disparity is the result of an improper feature of the jury selection
process. (People v. Ramirez (2006) 39 Cal.4th 398, 444; People v. Anderson (2001) 25
Cal.4th 543, 566.) Petitioner should not be required to prove a prima facie case before
appointment of a demographer to support his contention of jury disparity. Corenevsky,
supra, 36 Cal.3d, at pp. 319-323, requires only that the defendant, especially one accused
of murder as the petitioner here, demonstrate the requested expert services are reasonably
necessary to his defense. Petitioner met that showing.
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DISPOSITION
A peremptory writ of mandate shall issue directing the respondent court to vacate
its June 2, 2014 order denying petitioner’s motion for appointment of a demographer
expert, and to enter a new order granting his motion.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MOSK, Acting P. J.
We concur:
KRIEGLER, J.
GOODMAN, J.
 Judge of the Superior Court of Los Angeles County, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
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