Alfaro v. Super. Ct.

Filed 12/30/20 (unmodified opn. attached)
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
EDENILSON MISAEL ALFARO,
Petitioner,
A159577
v.
THE SUPERIOR COURT OF ORDER MODIFYING OPINION
MARIN COUNTY, AND DENYING REHEARING
[NO CHANGE IN JUDGMENT]
Respondent;
THE PEOPLE et al., (Marin County
Real Parties in Interest. Super. Ct. No. SC197429E)
BY THE COURT:
It is ordered that the opinion filed herein on December 9, 2020, be
modified as follows:
(1) In the third sentence of footnote 10 on page 12, replace “the County’s
master list” with “the master list”.
(2) In item (2) of the disposition on page 28, replace “enter a new order
granting Defendant’s renewed discovery motion as to the master and
qualified jury lists,” with “enter a new order granting Defendant’s renewed
*Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this
opinion is certified for publication with the exception of part II & IV.
1
discovery motion as to the requested information on the master and qualified
jury lists, to wit, the names and zip codes appearing on those lists,”.
There is no change in the judgment.
Appellant’s petition for rehearing is denied.
Dated: 12/30/2020 SIMONS, J. , Acting P.J.
2
Superior Court of Marin County, No. SC197429E, Hon. Andrew E. Sweet,
Judge.
Law Office of Michael N. Burt and Michael N. Burt; Law Office of John T.
Philipsborn and John T. Philipsborn, for Petitioner.
Sanger Swysen & Dunkle, Stephen Kerr Dunkle, for California Attorneys for
Criminal Justice, Amicus Curiae in support of Petitioner.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General,
Alice B. Lustre and Sarah J. Farhat, Deputy Attorneys General, for Real
Party in Interest the People.
Cummings, McClorey, Davis, Acho & Associates, Sarah L. Overton, for Real
Party in Interest James M. Kim.
No appearance for Respondent Superior Court.
3
Filed 12/9/20 (unmodified opinion)
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
EDENILSON MISAEL
ALFARO,
Petitioner,
v. A159577
THE SUPERIOR COURT OF
MARIN COUNTY, (Marin County
Super. Ct. No. SC197429E)
Respondent;
THE PEOPLE et al.,
Real Parties in Interest.
Petitioner Edenilson Misael Alfaro (Defendant), a defendant in a
capital murder case filed in Marin County (the County), sought discovery in
connection with his claim that juries in the County were not selected from a
fair cross-section of the community. The records he sought included the
County’s master list of prospective jurors. Defendant relied on Pantos v. City
and County of San Francisco (1984) 151 Cal. App. 3d 258 (Pantos), which held
a court’s “master list of qualified jurors . . . is a judicial record subject to
public inspection and copying.” (Id. at pp. 260–261.) The trial court denied
the request, finding that Pantos was no longer good law in light of
*Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this
opinion is certified for publication with the exception of parts II and IV.
1
subsequent statutory developments, and that Defendant failed to make the
showing required for discovery related to a fair cross-section challenge.
We consider subsequent statutory developments and countervailing
privacy interests, and conclude Pantos is still good law, at least as to the
names and zip codes appearing on master jury lists. Accordingly, we will
issue a writ directing the trial court to reverse its order denying Defendant’s
request for these records.
LEGAL BACKGROUND
A. Procedure for Compiling Lists of Prospective Jurors
Jury selection in California is governed by the Trial Jury Selection and
Management Act (hereafter, the Act; Code Civ. Proc. § 190 et seq.).1 Each
county has a jury commissioner “responsible for managing the jury system
under the general supervision of the court in conformance with the purpose
and scope of [the Act].” (§ 195, subds. (a) & (c).)
Jurors “shall be selected at random, from a source or sources inclusive
of a representative cross section of the population of the area served by the
court.” (§ 197, subd. (a).) “The list of registered voters and the Department
of Motor Vehicles’ list of licensed drivers and identification cardholders
resident within the area served by the court, are appropriate source lists for
selection of jurors. These two source lists, when substantially purged of
duplicate names, shall be considered inclusive of a representative cross
section of the population . . . .” (§ 197, subd. (b).)2 “The jury commissioner
1 All undesignated section references are to the Code of Civil Procedure.
2 Section 197 was recently amended, effective January 1, 2021, to require the
Franchise Tax Board to furnish county jury commissioners with “a list of
resident state tax filers for their county” and, beginning January 1, 2022,
“the list of resident state tax filers, the list of registered voters, and the
2
shall, at least once in each 12-month period, randomly select names of
prospective trial jurors from the source list or lists, to create a master list.”
(§ 198, subd. (b).) “The master jury list shall be used by the jury
commissioner, as provided by statute and state and local court rules, for the
purpose of (1) mailing juror questionnaires and subsequent creation of a
qualified juror list, and (2) summoning prospective jurors to respond or
appear for qualification and service.” (§ 198, subd. (c).)
Marin County Local Rules, rule 8.17 sets forth jury selection
procedures for the County. A list of jurors is generated from “the list of
registered voters and the Department of Motor Vehicle’s list of licensed
drivers and identification card holders. [¶] These two source lists are
combined for use in the computer; using predetermined matching criteria, the
computer then compares the names on the two lists and eliminates any
duplicates which results in a single merged file list.” (Id., subd. (B).) “After
the source lists are combined, duplicates eliminated, and disqualified
individuals purged, as set forth in this rule, a master list will be produced by
using the complete randomization technique and shall be generated at least
once each year.” (Id., subd. (B)(3).)
B. Fair Cross-Section Challenge
“A criminal defendant has a ‘right, under the Sixth and Fourteenth
Amendments, to a petit jury selected from a fair cross section of the
community.’ [Citations.] ‘In order to establish a prima facie violation of the
fair-cross-section requirement, the defendant must show (1) that the group
Department of Motor Vehicles’ list of licensed drivers and identification
cardholders resident within the area served by the court, when substantially
purged of duplicate names, shall be considered inclusive of a representative
cross section of the population . . . .” (Stats. 2020, ch. 230, § 1 [eff. Jan. 1,
2021].)
3
alleged to be excluded is a “distinctive” group in the community; (2) that the
representation of this 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 (3) that this underrepresentation is due to systematic
exclusion of the group in the jury-selection process.’ ” (People v. Henriquez
(2017) 4 Cal. 5th 1, 18–19.)
Whether a defendant is entitled to “the discovery of information
necessary to make such a case” requires a different analysis. (People v.
Jackson (1996) 13 Cal. 4th 1164, 1194 (Jackson).) “A defendant who seeks
access to this information is obviously not required to justify that request by
making a prima facie case of underrepresentation. Rather, upon a
particularized showing supporting a reasonable belief that
underrepresentation in the jury pool or the venire exists as the result of
practices of systematic exclusion, the court must make a reasonable effort to
accommodate the defendant’s relevant requests for information designed to
verify the existence of such underrepresentation and document its nature and
extent.” (Id. at p. 1194.) We consider below whether this particularized
showing requirement applies to master jury lists, or whether such lists are
disclosable as public records without the need for a particularized showing.
FACTUAL AND PROCEDURAL BACKGROUND
In June 2018, Defendant and a co-defendant were charged by
information with murder and other crimes. The People filed a notice of intent
to seek the death penalty against Defendant.
Defendant filed a motion for discovery seeking, for purposes of pursuing
a fair cross-section challenge, “the master jury wheel,” “the qualified jury
wheel,” and “the actual computer program, operation manual and/or other
documentation describing the method by which the voter record information
4
list and the driver record information list is merged and purged of duplicate
names.”3 Like the parties, we hereafter refer to records sought by the last
request as the “merge/purge information.” Defendant also requested
permission to conduct an anonymous survey of prospective jurors in the jury
lounge to obtain their self-identification as to “race/ethnicity and gender.”
Defendant then served a subpoena duces tecum on the County’s jury
commissioner (the Jury Commissioner) seeking the same information, and
the Jury Commissioner moved to quash the subpoena.4
As to the master and qualified jury lists, Defendant argued these were
public documents for which no particularized showing was required, citing,
inter alia, Pantos, supra, 151 Cal. App. 3d 258, and further argued any
concerns about information such as home addresses or driver’s license
numbers could be resolved through redactions or a protective order. The Jury
Commissioner argued the master and qualified lists were not public records,
citing prospective jurors’ right to privacy and various statutes, enacted after
Pantos, prohibiting the disclosure of certain information. As to the
merge/purge information and jury survey, the parties disputed whether
Defendant had established the requisite particularized showing. The trial
court granted the Jury Commissioner’s motion to quash, finding statutes
enacted after Pantos constituted a compelling reason for withholding
disclosure of the master list, Defendant was therefore required to make a
3Additional discovery sought by Defendant is not relevant to this writ
proceeding.
4 Defendant’s counsel later explained that, following conversations with
counsel for the Jury Commissioner, “we agreed, to short-circuit this litigation,
I would issue a subpoena without conceding that was required . . . .”
5
“particularized showing” before receiving any of the requested records, and
Defendant had failed to do so.5
Defendant subsequently filed a motion seeking to prohibit trial under
the County’s current jury selection system because it would violate his right
to a jury selected from a fair cross-section of the community.6 The motion
further argued the trial court’s denial of Defendant’s discovery motion
deprived him of the ability to adequately present this challenge. The Jury
Commissioner opposed the motion.
Dr. John Weeks, qualified by the court as an expert in demography as
it applies to jury composition challenges, testified at the evidentiary hearing
on Defendant’s motion, and a declaration Weeks prepared was received into
evidence. Weeks used United States Census Bureau data to determine the
“jury eligible population” of the County; i.e., County residents who were
citizens, 18 years or older, and spoke English. His analysis determined that
7.9 percent of the jury eligible population of the County is Hispanic. He then
analyzed approximately 1,800 prospective jurors in a 2013 County case
(including prospective jurors in the jury pool and those summoned but
excused for hardship). Because Weeks did not have data from the County
about the race or ethnicity of its prospective jurors,7 he analyzed the
5 Defendant separately served a subpoena duces tecum on Jury Services, Inc.
(JSI), previously identified by the Jury Commissioner as “the company who
manages the Court’s computer program.” Defendant’s subpoena sought,
among other records, the merge/purge information. JSI filed a motion to
quash, which the trial court granted on the ground that Defendant failed to
make the requisite particularized showing.
6 Other aspects of the motion are not relevant here.
7Although Defendant had received some informal discovery from the Jury
Commissioner, including annual reports to the Judicial Council and a blank
6
surnames of the prospective jurors and determined that approximately 5.2
percent were Hispanic. He thus opined there was a 2.7 percent absolute
disparity, and a 34 percent relative disparity, between jury-eligible County
residents who were Hispanic and prospective jurors who were Hispanic.
Weeks identified several possible reasons for the disparity, including
problems with the merge/purge process. However, he clarified that he could
not determine with certainty the cause of the disparity without additional
information.
During the evidentiary hearing, Defendant renewed his discovery
request with respect to the master and qualified lists, the merge/purge
information, and the jury survey. The parties reiterated their arguments
about whether the master list is a public record. The trial court denied the
renewed motion and denied the fair cross-section challenge.
Following the court’s ruling, Defendant sought writ relief in this court.
We issued an order to show cause, and the People and the Jury
Commissioner filed returns.8 California Attorneys for Criminal Justice filed
an amicus brief on behalf of Defendant.
juror summons, the produced records contained no data about the
demographic characteristics of prospective jurors. The Jury Commissioner
testified at the evidentiary hearing that the County does not keep
demographic statistics on prospective jurors.
8 Defendant urges us to strike the People’s return because it is unverified.
“[A] return of an alternative writ may be made ‘by demurrer, verified answer
or both.’ (Code Civ. Proc., § 1089.)” (Ashmus v. Superior Court (2019) 42
Cal. App. 5th 1120, 1124, fn. 4.) Defendant points to authority that an
“unverified return which is not a demurrer should be stricken in terms of the
merits of the mandate petition.” (Universal City Studios, Inc. v. Superior
Court (2003) 110 Cal. App. 4th 1273, 1287.) Defendant does not address
whether the verification requirement applies to public entities such as the
People. (Compare Verzi v. Superior Court (1986) 183 Cal. App. 3d 382, 385
7
DISCUSSION
I. Propriety of Writ Review
Defendant seeks a writ directing the trial court to reverse its order
denying Defendant’s renewed discovery motion and to reopen Defendant’s
fair cross-section challenge for consideration of the new discovery. Our order
to show cause reflects our determination that writ review is appropriate as to
this request. (Pacific etc. Conference of United Methodist Church v. Superior
Court (1978) 82 Cal. App. 3d 72, 80.) Among other reasons for our
intervention, we observe that while “ ‘[w]rit proceedings are not the favored
method for reviewing discovery orders’ ” (Perlan Therapeutics, Inc. v.
Superior Court (2009) 178 Cal. App. 4th 1333, 1342), “[m]andamus is
appropriate to address discovery issues that present novel issues of first
impression and general importance.” (Maldonado v. Superior Court (2012) 53
Cal. 4th 1112, 1124; accord, Oceanside Union School District v. Superior Court
(1962) 58 Cal. 2d 180, 186, fn. 4 [“[T]he prerogative writs should only be used
in discovery matters to review questions of first impression that are of
general importance to the trial courts and to the profession, and where
general guidelines can be laid down for future cases.”].) The question
presented here—whether Pantos’s holding that master jury lists are
[verification not required]; with People v. Superior Court (Alvarado) (1989)
207 Cal. App. 3d 464, 469–470 [verification required].) We need not decide the
issue because, as Defendant concedes, courts have at times treated unverified
returns “ ‘as a return by demurrer, because a demurrer admits the facts
pleaded in a writ petition,’ ” where, as here, “the brief was ‘essentially a
memorandum of points and authorities in support of a demurrer’ to the
petition for writ of mandate.” (Ashmus, at p. 1124, fn. 4.) We so construe the
People’s return. We note that, other than arguing that writ review is
improper, the People simply join in the Jury Commissioner’s arguments.
8
disclosable public records remains good law despite subsequent statutory
developments—is such an issue. Accordingly, writ review is appropriate.
Defendant’s petition also seeks writ review with respect to other
rulings: (1) certain evidentiary rulings made at the hearing on Defendant’s
fair cross-section challenge, and (2) the trial court’s order, issued more than
60 days before Defendant’s writ petition was filed, granting JSI’s motion to
quash Defendant’s subpoena. As our order to show cause explained, writ
review as to these rulings is not appropriate. (People v. Municipal Court
(Ahnemann) (1974) 12 Cal. 3d 658, 660 [“It is well settled that neither a writ
of prohibition nor a writ of mandate will lie to resolve an issue as to the
admissibility of evidence.”]; Volkswagen of America, Inc. v. Superior Court
(2001) 94 Cal. App. 4th 695, 701 [“ ‘An appellate court may consider a petition
for an extraordinary writ at any time [citation], but has discretion to deny a
petition filed after the 60-day period applicable to appeals, and should do so
absent “extraordinary circumstances” justifying the delay.’ ”].)9 Accordingly,
we will deny the petition as to these issues.
II. Procedural Arguments
The Jury Commissioner asserts various procedural arguments. The
arguments are unavailing.
9 As for JSI, our order to show cause determined “the petition is untimely as
to this entity. As JSI was not a participant in the proceedings that led to the
ruling on petitioner’s renewed discovery motion, the court finds it
inappropriate to extend the time period for seeking writ relief as to JSI.
Additionally, petitioner does not demonstrate he lacks another adequate
remedy at law by issuing another subpoena to JSI in the event the
underlying petition is granted as to discovery motion requests (4) and (5)
directed to real party Court Executive Officer/Jury Commissioner, since the
materials sought from JSI were similar to those requests.”
9
For the first time in his return, the Jury Commissioner claims
Defendant’s renewed discovery motion was not properly before the trial court
because “the trial court did not hear petitioner’s discovery motion in the first
instance, only the motion to quash,” and because Defendant cannot move for
discovery from the Jury Commissioner, a nonparty to the criminal
proceedings. In the trial court, the Jury Commissioner opposed Defendant’s
renewed discovery motion on the merits and incorporated arguments made in
the motion to quash briefing. In this court, the Jury Commissioner’s informal
response characterized the renewed discovery motion as a reprise of the
motion to quash proceedings, referring to “defendant’s renewed discovery
motion (i.e. the motion to quash the defense subpoena).” Defendant could
have easily cured any error below. Accordingly, the Jury Commissioner has
forfeited this procedural objection. (NBCUniversal Media, LLC v. Superior
Court (2014) 225 Cal. App. 4th 1222, 1236–1237 [“[Real parties in interest]
concede they did not raise this issue in their opposition to the motion for
summary judgment. Nor did they raise it in their preliminary response. . . .
Thus, [they] have forfeited this argument.”].)
We also reject the Jury Commissioner’s argument that Defendant may
not raise certain issues which were raised during the motion to quash
proceedings but were, according to the Jury Commissioner, insufficiently
reraised during the renewed discovery proceedings. First, the Jury
Commissioner contends Defendant is precluded from seeking the qualified
jury list because “no specific request was made” during the renewed discovery
proceedings, even though, as the Jury Commissioner concedes, Defendant’s
counsel referred to the qualified list during argument. Given that Defendant
sought the qualified list during the previous discovery proceedings, counsel’s
reference to the list during argument was sufficient to include it in his
10
renewed discovery motion. Second, the Jury Commissioner complains that,
during the renewed discovery proceedings, Defendant did not restate that the
master and qualified lists could be redacted or subject to a protective order.
Dr. Weeks’s declaration was clear that the information sought from the
master and qualified lists was the jurors’ last names and zip codes. The Jury
Commissioner cites no authority that it was Defendant’s burden to raise the
possibility of redactions or a protective order. To the contrary, “[i]f a judicial
administrative record contains information that is exempt from disclosure
and the exempt portions are reasonably segregable, a judicial branch entity
must allow inspection and copying of the record after deletion of the portions
that are exempt from disclosure.” (Cal. Rules of Court, rule 10.500(e)(1)(C).)
Third, the Jury Commissioner contends Defendant is precluded from arguing
that he is entitled to the master and qualified lists under the United States
Constitution, the California Constitution, and the Act. We need not decide
this issue because, as discussed post, we resolve the matter on other grounds.
Finally, we reject the Jury Commissioner’s contention that, to the
extent Defendant seeks review of the trial court’s order granting the Jury
Commissioner’s motion to quash Defendant’s subpoena, the petition is
untimely. The petition seeks review of the trial court’s order denying
Defendant’s renewed discovery motion, and is timely.
III. Master and Qualified Jury Lists
We now turn to whether master and qualified jury lists are disclosable
public records, or whether Defendant must satisfy the particularized showing
requirement before obtaining them for purposes of his fair cross-section
11
challenge.10 Although in general discovery rulings are reviewed for abuse of
discretion, where, as here, “ ‘ “the propriety of a discovery order turns on . . . a
question of law,” we “determine the issue de novo.” ’ ” (Jimenez v. Superior
Court (2019) 40 Cal. App. 5th 824, 829.)
A. Presumption of Public Access to Judicial Records
Although the California Public Records Act (Gov. Code, § 6250 et seq.)
does not apply to judicial records (Copley Press, Inc. v. Superior Court (1992)
6 Cal. App. 4th 106, 111), it is well-established, under constitutional principles
and the common law, that such records are presumptively public. “Both the
federal (First Amendment to the United States Constitution) and the state
(article I, section 2(a), California Constitution) Constitutions provide broad
access rights to judicial hearings and records.” (Copley Press v. Superior
Court, supra, at p. 111.) “Records from judicial proceedings . . . are . . .
subject to a public right of access . . . . as a continuation of the common law
right to inspect and copy judicial records.” (KNSD Channels 7/39 v. Superior
Court (1998) 63 Cal. App. 4th 1200, 1203 (KNSD).)
“The common law right of access to judicial records is not absolute, but
‘must be reconciled with legitimate countervailing public or private
10 The parties do not define the terms “master list” and “qualified list” or
explain the differences, if any, between the two. Section 194 defines “ ‘Master
list’ ” as “a list of names randomly selected from the source lists” and
“ ‘Qualified juror list’ ” as a list of people who meet the statutory
qualifications for jury service. (§ 194, subds. (g), (j)–(k); see § 203 [listing
qualifications].) Marin County Local Rules, rule 8.17(B)(3) states the
County’s master list is produced after “disqualified individuals [are] purged,”
suggesting the master and qualified lists for the County may be the same.
(See also Pantos, supra, 151 Cal.App.3d at p. 260 [referring to “master list of
qualified jurors”].) In any event, no party suggests our analysis is any
different as between these two lists, and we accordingly consider them
together.
12
interests . . . .’ [Citation.] However, the fundamental nature of the right
gives rise to a ‘presumption’ in favor of public access.” (KNSD, supra, 63
Cal.App.4th at p. 1203.) “California also recognizes the presumption of
accessibility of judicial records in criminal cases and allows a trial court
limited authority to preclude such access. ‘[W]here there is no contrary
statute or countervailing public policy, the right to inspect public records
must be freely allowed.’ ” (Id. at pp. 1203–1204; see also Estate of Hearst
(1977) 67 Cal. App. 3d 777, 783 [“[T]here can be no doubt that court records
are public records, available to the public in general, including news
reporters, unless a specific exception makes specific records non-public.” (Fn.
omitted)].)
This presumption of openness applies equally to jury selection. “[S]ince
the development of trial by jury, the process of selection of jurors has
presumptively been a public process with exceptions only for good cause
shown.” (Press-Enterprise Co. v. Superior Court of California (1984) 464 U.S.
501, 505 (Press-Enterprise).) For example, in determining whether “to close
any portion of jury selection,” courts apply the following standard: “ ‘The
presumption of openness may be overcome only by an overriding interest
based on findings that closure is essential to preserve higher values and is
narrowly tailored to serve that interest. The interest is to be articulated
along with findings specific enough that a reviewing court can determine
whether the closure order was properly entered.’ ” (Bellas v. Superior Court
(2000) 85 Cal. App. 4th 636, 643 (Bellas); see also id. at p. 645 [applying
standard to prospective juror questionnaires].)
13
In addition to constitutional principles and the common law, California
Rules of Court, rule 10.500(e)(1)(A)11 provides: “A judicial branch entity must
allow inspection and copying of judicial administrative records unless the
records are exempt from disclosure under this rule or by law.”12 By its own
terms, the rule “clarifies and expands the public’s right of access to judicial
administrative records and must be broadly construed to further the public’s
right of access.” (Rule 10.500(a)(2).)13
B. Pantos and Related Cases
Pantos relied on the presumption of public access to judicial records in
concluding that a court’s “master list of qualified jurors” was a public judicial
record: “The master list of qualified jurors has the status of a judicial record,
available to the public in general. There are no exemptions and no
11 All undesignated rule references are to the California Rules of Court.
12Rule 10.500 was adopted pursuant to Government Code section 68106.2,
subdivision (g), which requires the Judicial Council to adopt “rules of court
that provide public access to nondeliberative or nonadjudicative court
records, budget and management information.” (See rule 10.500(a)(1) [“this
rule . . . implement[s] Government Code section 68106.2(g)”].)
13 Defendant also relies on a section of the California Constitution providing
“the writings of public officials and agencies shall be open to public scrutiny”
and “[a] statute, court rule, or other authority . . . shall be broadly construed
if it furthers the people’s right of access, and narrowly construed if it limits
the right of access.” (Cal. Const., art. I, § 3, subd. (b)(1)–(2).) However, the
section also provides, “Nothing in this subdivision supersedes or modifies the
right of privacy guaranteed by Section 1 or affects the construction of any
statute, court rule, or other authority to the extent that it protects that right
to privacy.” (Cal. Const., art. I, § 3, subd. (b) (3).) As discussed post in
part III.D, the Jury Commissioner relies on the constitutional privacy rights
of prospective jurors. Because, as explained below, we resolve the issue
without the need to invoke the constitutional public access provision, we need
not explore the interaction between it and the constitutional privacy
provision.
14
compelling reasons for nondisclosure. Courts do have the inherent power to
control their own records to protect jurors’ privacy, litigants’ rights or to
protect the public from injury. Nothing has been presented to justify
nondisclosure. The law favors maximum public access to judicial proceedings
and court records. [Citations.] Judicial records are historically and
presumptively open to the public and there is an important right of access
which should not be closed except for compelling countervailing reasons.
[Citation.] No such reasons have been presented. Upon payment of
reasonable costs, plaintiff [the operator of a commercial jury investigation
service] is entitled to a copy of the master list of qualified jurors containing
names and addresses.” (Pantos, supra, 151 Cal.App.3d at pp. 262–263.)
The proposition that master jury lists are public records was restated
by the Supreme Court in Jackson, albeit in dicta.14 (Jackson, supra, 13
Cal.4th at pp. 1194–1195 [“master lists of jury pools . . . are judicial records
that are or should be available to the public”].) Jackson relied on Pantos for
this proposition, as well as a second case which itself relied on Pantos.
(Jackson, at pp. 1194–1195; People v. Rhodes (1989) 212 Cal. App. 3d 541,
550.) Although Jackson established the “particularized showing” required for
discovery related to a fair cross-section challenge, the court indicated no such
showing is required for public records. (Jackson, at pp. 1194–1195; see
Roddy v. Superior Court (2007) 151 Cal. App. 4th 1115, 1135 (Roddy)
[“Regardless of a defendant’s constitutional right to pretrial discovery, ‘some
14We are mindful that “even dicta of the Supreme Court should not be
disregarded by an intermediate court without a compelling reason.”
(California Coastal Com. v. Office of Admin. Law (1989) 210 Cal. App. 3d 758,
763.)
15
of the information sought, such as master lists of jury pools, . . . are judicial
records that are or should be available to the public.’ ”].)15
C. Post-Pantos Statutes
The Jury Commissioner contends that various statutes enacted after
Pantos have effectively overruled the case by prohibiting the disclosure of
information contained in the master and qualified lists. We disagree.
1. Section 197(c)
The primary statute relied on by the Jury Commissioner is section 197,
subdivision (c) (hereafter, section 197(c)): “The Department of Motor Vehicles
shall furnish the jury commissioner of each county with the current list of the
names, addresses, and other identifying information of persons residing in
the county who are age 18 years or older and who are holders of a current
driver’s license or identification card . . . . The jury commissioner shall not
disclose the information furnished by the Department of Motor Vehicles
pursuant to this section to any person, organization, or agency.” The Jury
Commissioner argues section 197(c)’s prohibition on the disclosure of
information furnished by the Department of Motor Vehicles (DMV)
encompasses the master and qualified lists, which are created in part with
that information.
“ ‘As in any case involving statutory interpretation, our fundamental
task here is to determine the Legislature’s intent so as to effectuate the law’s
purpose.’ [Citation.] The well-established rules for performing this task
15The Jury Commissioner notes that in Jackson, the Supreme Court affirmed
the trial court’s refusal to disclose the master jury list. (See Jackson, supra,
13 Cal.4th at pp. 1193, 1195.) The Supreme Court affirmed on harmless
error grounds, however, and did not find the trial court’s refusal was proper.
(Ibid. [“any error the trial court may have made in denying defendant access
to jury pool master lists or other public records was not prejudicial”].)
16
require us to begin by examining the statutory language, giving it a plain and
commonsense meaning. [Citation.] We do not, however, consider the
statutory language in isolation; rather, we look to the statute’s entire
substance in order to determine its scope and purposes. [Citation.] That is,
we construe the words in question in context, keeping in mind the statute’s
nature and obvious purposes. [Citation.] We must harmonize the statute’s
various parts by considering it in the context of the statutory framework as a
whole. [Citation.] If the statutory language is unambiguous, then its plain
meaning controls. If, however, the language supports more than one
reasonable construction, then we may look to extrinsic aids, including the
ostensible objects to be achieved and the legislative history.” (Los Angeles
County Metropolitan Transportation Authority v. Alameda Produce Market,
LLC (2011) 52 Cal. 4th 1100, 1106–1107.)
The plain language of section 197(c), with its blanket prohibition on
disclosure of information furnished by the DMV, could be construed to
prohibit the disclosure of subsequent iterations of that information, such as
the master and qualified juror lists. However, such a construction is not
compelled by the language. Moreover, to so construe the statute would
prohibit any disclosure of juror names furnished by the DMV, a construction
in direct conflict with section 237, subdivision (a), which provides, “The
names of qualified jurors drawn from the qualified juror list for the superior
court shall be made available to the public upon request,” absent a compelling
interest in nondisclosure. (§ 237, subd. (a)(1), italics added.)
17
Accordingly, we turn to the legislative history of section 197(c) for
assistance in construing the statute.16 Section 197 was enacted in 1988 as
part of the then-new Act. (Stats. 1988, ch. 1245, § 2.) The Legislative
Counsel’s Digest characterized an early version of the bill as enacting “an
extensive revision of the law with respect to juries, consolidating various
provisions relative to juries in civil and criminal causes, and revising
provisions relative to,” among other subjects, “juror’s rights to privacy.”
(Assem. Bill No. 2617 (1987–1988 Reg. Sess.) as amended Jan. 4, 1988, at
pp. 1–2.) This early version of the bill included provisions stating, “It is the
policy of the State of California that all persons selected for jury service have
a right to personal privacy. The jury commissioner shall not release, disclose,
or provide access to, any information gathered in connection with jury
selection or service” except on a showing of good cause, and “All records and
papers compiled and maintained by the jury commissioner in connection with
the selection and service of jurors are confidential and shall not be subject to
disclosure pursuant to the Public Records Act.” (Assem. Bill No. 2617 (1987–
1988 Reg. Sess.) as amended Jan. 4, 1988, at pp. 9-10.) These provisions
remained through two amendments; a third amendment retained the latter
16 We grant Defendant’s request for judicial notice of this legislative history,
except for those records included in Defendant’s submission that were created
after the bill’s enactment or that are letters to various legislators or the
governor for and against the bill. (See Metropolitan Water Dist. v. Imperial
Irrigation Dist. (2000) 80 Cal. App. 4th 1403, 1425–1426 [“[A] court will
generally consider only those materials indicative of the intent of the
Legislature as a whole. . . . [L]etters to various legislators and to the
Governor expressing opinions in support of or opposition to a bill
. . . generally should not be considered.”].) We also grant Defendant’s
unopposed request for judicial notice of the legislative history of a
predecessor to section 197(c). We deny as irrelevant Defendant’s request for
judicial notice of a 1986 Judicial Council report and the legislative history of
a 2000 statute.
18
but replaced the former with provisions prohibiting jury commissioners from
releasing information gathered in connection with jury selection absent a
court order, and providing for courts to give access to the master list, upon
written request, to parties, and to nonparties absent compelling reasons to
deny access. (Assem. Bill No. 2617 (1987–1988 Reg. Sess.) as amended
Jan. 21, 1988, at pp. 10–11; id., as amended Mar. 23, 1988, at pp. 10–11; id.,
as amended Jun. 15, 1988, at pp. 10–12.)
Legislative committee reports discussing these versions of the bill
expressly refer to Pantos’s holding that master lists of qualified jurors are
subject to public inspection and note that Pantos “would therefore be
overruled by” the bill. (Assem. Com. on Judiciary, Analysis of Assem. Bill No.
2617 (1987–1988 Reg. Sess.) as amended Jan. 4, 1988, p. 2; Sen. Com. on
Judiciary, Analysis of Assem. Bill No. 2617 (1987–1988 Reg. Sess.) as
amended June 15, 1988, p. 5.) One committee report noted these provisions
were “[b]y far the most contentious area” of the bill, with opponents including
the California Newspaper Publishers Association, the American Civil
Liberties Union, and the National Jury Project. (Sen. Com. on Judiciary,
Analysis of Assem. Bill No. 2617 (1987–1988 Reg. Sess.) as amended June 15,
1988, pp. 3, 5.) A committee report set forth competing arguments:
“Proponents state that the intent of the privacy/disclosure provision is to
provide guidance for jury commissioners because of the delicate nature of this
issue. In one sense they are concerned about the protection of jurors who in
many instances are edgy about performing jury duty. The other aspect of
that concern is the potential for liability on the part of a commissioner or
staff person who releases information about a juror to a member of the public
and the latter ends up inflicting serious injury or worse on the juror. [¶]
Opponents reply to this point by referring to a 1986 Judicial Council report
19
which concluded that very few jurors are concerned about invasion of their
privacy. The report stated that ‘no statutory or regulatory action is necessary
or desirable.’ Only 2.93% of the jurors expressed concern about privacy.
Their concern was based on fear of a criminal defendant’s use of identifying
information which might lead to retaliation. Opponents suggest that the
court is not precluded from implementing special controls to protect the
privacy of jurors in the unusual situation where extraordinary protection is
required.” (Sen. Com. on Judiciary, Analysis of Assem. Bill No. 2617 (1987–
1988 Reg. Sess.) as amended June 15, 1988, p. 4.)
Although the nondisclosure language of section 197(c) appeared in
early versions of the bill, the provision was not referred to in any of these
discussions. (Assem. Bill No. 2617 (1987–1988 Reg. Sess.) as amended Jan.
4, 1988, at p. 6; id., as amended Jan. 21, 1988, at p. 6; id., as amended Mar.
23, 1988, at p. 6; id., as amended Jun. 15, 1988, at p. 6.) Significantly, unlike
the juror privacy provisions set forth above, the nondisclosure language of
section 197(c) was already present, in substantial part, in then-section 204.7.
(Former section 204.7, as amended by Stats. 1983, ch. 425, § 1 [“The jury
commissioner shall not disclose the information furnished by the Department
of Motor Vehicles pursuant to this section to any person, organization, or
agency for any use other than the selection of trial jurors.”].) Former section
204.7 was repealed by the same bill that enacted section 197(c). (Stats. 1988,
ch. 1245, § 1.)
In a late amendment, the controversial provisions limiting access to the
master list and other jury selection records were removed, and they were not
included in the enacted bill. (Assem. Bill No. 2617 (1987–1988 Reg. Sess.) as
amended Aug. 2, 1988, at pp. 10–11; Stats. 1988, ch. 1245, § 2.) Section
197(c), of course, was included in the enacted bill. (Stats. 1988, ch. 1245, § 2.)
20
The Governor’s Office of Local Government Affairs commented about the
enrolled bill, “The bill received widespread opposition in earlier versions, but
recent amendments have removed this opposition.” (Off. of Local
Government Affairs, Enrolled Bill Rep. on Assem. Bill No. 2617 (1987–1988
Reg. Sess.) Sept. 16, 1988, p. 3.) The Legislative Counsel’s Digest notes the
bill “consolidat[ed] various provisions relative to juries in civil and criminal
causes, and revis[ed] provisions relative to” a number of aspects of jury
selection and service. (Legis. Counsel’s Dig., Assem. Bill No. 2617 (1987–
1988 Reg. Sess.) Summary Dig., pp. 415–416.) The list of revised provisions
does not include “juror’s rights to privacy,” which had appeared in the Digest
to earlier versions of the bill. (Compare ibid.; with, e.g., Legis. Counsel’s
Dig., Assem. Bill No. 2617 (1987–1988 Reg. Sess.) as amended Jan. 4, 1988,
at pp. 1–2.)
This legislative history strongly indicates the Legislature did not
understand section 197(c) to restrict public access to jury lists. First,
committee reports referred to Pantos’s holding as “existing authority,”
indicating an understanding that it reflected the then-current state of the
law. Second, section 197(c)’s material language was simply moved from a
different statute, suggesting that its enactment was not intended to change
existing law, but rather was part of the Act’s “consolidati[on of] various
provisions relative to juries . . . .” (Legis. Counsel’s Dig., Assem. Bill No. 2617
(1987–1988 Reg. Sess.) Summary Dig., p. 415.) Third, the extensive
discussion of proposed provisions that would “overrule[]” Pantos, and the
omission of these provisions from the enacted bill, demonstrate the
Legislature’s overarching intent to leave Pantos intact. Accordingly, we have
little difficulty concluding that section 197(c) does not prohibit disclosure of
master or qualified jury lists as public records.
21
2. Additional Statutes
The Jury Commissioner also relies on a number of other statutes
enacted after Pantos that prohibit the disclosure of specific information, to
wit, “home address, telephone number, email address, precinct number, or
other number specified by the Secretary of State for voter registration
purposes” (Gov. Code, § 6254.4, subd. (a), added by Stats.1994, ch. 1207, § 12,
with subsequent amendments); “California driver’s license number, the
California identification card number, the social security number, and any
other unique identifier used by the State of California for purposes of voter
identification” (Gov. Code, § 6254.4, subd. (c), added by Stats. 1996, ch. 1123,
§ 14, with subsequent amendments; Elec. Code, § 2194, subd. (b)(1), added by
Stats. 1994, ch. 1207, § 8, with subsequent amendments); and “driver’s
license number, identification card number, social security number, and
signature contained on an affidavit of registration” (Elec. Code, § 2138.5,
subd. (a), added by Stats. 2007, ch. 305, § 1, with subsequent amendments).
We need not decide whether any of these statutes prohibit disclosure of
this information when it appears on the master or qualified jury lists,
because none of the statutes prohibit disclosure of the only information
sought by Defendant: names and zip codes. The Jury Commissioner’s
unsupported protest that redaction of other information from the master list
database will require “additional cost” does not establish that redaction will
be unduly burdensome and is not a basis to refuse disclosure of the names
and zip codes on the list. “If a judicial administrative record contains
information that is exempt from disclosure and the exempt portions are
reasonably segregable, a judicial branch entity must allow inspection and
copying of the record after deletion of the portions that are exempt from
disclosure.” (Rule 10.500(e)(1)(C); see also Copley Press, Inc. v. Superior
22
Court (1991) 228 Cal. App. 3d 77, 88 (Copley Press) [“certain information [on
prospective juror questionnaires] (e.g., telephone number, social security
number, driver’s license number) . . . should be segregated from the other
questions and not released to the public”].) We are also not persuaded by the
Jury Commissioner’s cursory assertion that a protective order will not protect
the privacy rights of persons not party to the order. A protective order
prohibiting disclosure of social security numbers or other information
contained in the master and qualified jury lists would protect the privacy
rights of persons on that list. (Millaud v. Superior Court (1986) 182
Cal. App. 3d 471, 476 [“We have no doubt the broad power of the trial court to
fashion criminal discovery procedures . . . includes the power to issue
protective orders preventing unjustified use of the requested
materials. . . . We see no reason why the court cannot protect against
disclosure which would hamper a third party or injure its interests . . . .”]; see
also Roddy, supra, 151 Cal.App.4th at p. 1140 [noting trial court ordered
“production of the merged or master list subject to a protective order”].)
The Jury Commissioner also relies on the following statement in People
v. Granish (1996) 41 Cal. App. 4th 1117: “ ‘the Legislature was trying to close
the door to access of juror addresses and telephone numbers to the extent
that it could—not open it to information on demand.’ ” (Id. at p. 1126.) But
both the facts of Granish and the statutes it construed involve postverdict
access to information about criminal trial jurors. (Id. at p. 1122; §§ 206, 237.)
The legislative intent stated in Granish, thus, does not apply to prospective
jurors. (Bellas, supra, 85 Cal.App.4th at p. 650 [“[A] truncated history of
section 237 clearly reveals that: 1) the harm the Legislature perceived from
disclosure of personal juror identifying information was postverdict
harassment and possible physical danger from those who obtained knowledge
23
of the juror’s name, address and telephone number; 2) the privacy interest to
be protected was the right of the jurors to be left alone once their service was
complete; 3) the class of jurors who needed protection was those who actually
sat on the jury and participated in the verdict; and 4) the permissible means
of protecting this limited right of confidentiality is to redact the personal
juror identifying information from court records, including questionnaires.”].)
Indeed, while one part of section 237 (one of the statutes construed in
Granish) provides that criminal trial jurors’ personal identifying information
shall be sealed following the verdict (§ 237, subd. (a)(2)), another part
provides, “The names of qualified jurors drawn from the qualified juror list
for the superior court shall be made available to the public upon request
unless the court determines that a compelling interest, as defined in
subdivision (b), requires that this information should be kept confidential or
its use limited in whole or in part.” (§ 237, subd. (a)(1); see also id., subd. (b)
[“A compelling interest includes, but is not limited to, protecting jurors from
threats or danger of physical harm.”].) Thus, not only was the Legislature’s
privacy concern limited to postverdict criminal trial jurors, the Legislature
also took pains to expressly provide that the presumption of openness applied
to the names of prospective jurors.17
17The Jury Commissioner does not argue that section 237, subdivision (a)’s
express provision somehow indicates that other lists of prospective jurors—
such as master and qualified lists—are not public. Such a construction would
contravene the well-established presumption of openness discussed ante in
part III.A, and would also have the absurd result of rendering a prospective
juror’s name nonpublic only until that prospective juror is called for possible
service.
24
Accordingly, none of the statutes relied upon by the Jury Commissioner
preclude disclosure of master and qualified jury lists.18
D. Privacy Rights
The Jury Commissioner also points to the privacy rights of persons on
the master and qualified jury lists. We find no basis to conclude that privacy
rights preclude disclosure of the names and zip codes on those lists.
The Jury Commissioner points to the right to privacy appearing in the
California Constitution. (Cal. Const., art. I, § 1 [“[a]ll people . . . have
inalienable rights” including “privacy”].) He also relies on rule 10.500’s
exemption of “personal information whose disclosure would constitute an
unwarranted invasion of personal privacy,” and an exemption applicable
when, “on the facts of the specific request for records, the public interest
served by nondisclosure of the record clearly outweighs the public interest
served by disclosure of the record.” (Rule 10.500(f)(3), (12).) The Jury
Commissioner does not contend that any unique privacy interests apply in
this case, nor did the trial court so find. In other words, the Jury
Commissioner’s argument is that privacy interests prohibit disclosure of
master or qualified jury lists in every case.
18 At oral argument, the Jury Commissioner pointed to a 2019 bill providing
for litigants pursuing fair cross-section motions to obtain, upon request,
“copies of the lists of all jurors’ names, including the identifying information
of all persons who have previously served as jurors . . . .” (Sen. Bill No. 310
(2019–2020 Reg. Sess.) as amended Apr. 29, 2019, at p. 4.) The Jury
Commissioner argued this showed the Legislature understood these lists
were not public records, and the Legislature’s decision not to enact this
provision demonstrates Pantos has been overruled. Even were we to agree
that the Legislature can overrule existing authority through inaction, we
disagree that the Jury Commissioner’s interpretation is the only possible
explanation. To the contrary, a more likely explanation is the Legislature
determined the provision was unnecessary in light of Pantos.
25
As an initial matter, such an approach has been found inappropriate.
“[A]n individualized approach rather than a blanket one is appropriate in
considering the privacy rights of prospective jurors. Not only does such an
approach preserve the constitutional values of openness, it also enables the
trial court to ‘ensure that there is in fact a valid basis for a belief that
disclosure infringes a significant interest in privacy.’ ” (Copley Press, supra,
228 Cal.App.3d at p. 86 [considering access to written questionnaires].)
Here, the Jury Commissioner makes no attempt to explain why
disclosure of the names and zip codes of prospective jurors would infringe a
significant interest in privacy. Lehman v. City and County of San Francisco
(1978) 80 Cal. App. 3d 309, concluded a prospective juror’s constitutional right
of privacy did not bar disclosure of his identity because, in part, “his status as
a prospective juror . . . . was not of personal nature” and his “appearance on
the list of prospective jurors was not voluntary and revealed nothing about
him since selection for jury duty is random.” (Id. at p. 313; accord, Pantos,
supra, 151 Cal.App.3d at p. 262 [acknowledging courts’ “inherent power to
control their own records to protect jurors’ privacy,” but finding no reason for
nondisclosure of master jury list].) This analysis remains persuasive and the
Jury Commissioner presents no contrary argument. (Cf. Press-Enterprise,
supra, 464 U.S. at p. 511 [“The jury selection process may, in some
circumstances, give rise to a compelling interest of a prospective juror when
interrogation touches on deeply personal matters that person has legitimate
reasons for keeping out of the public domain.”].)
26
Accordingly, we are not persuaded that, as a general matter,
prospective jurors’ privacy rights overcome the presumption of public access
to names and zip codes appearing on master and qualified jury lists.19
E. Conclusion
In sum, we conclude that master and qualified jury lists—at least with
respect to the names and zip codes on the lists—are disclosable as public
records.20 We will direct the trial court to grant Defendant access to these
records, and to reopen his fair cross-section challenge so that he may present
any new evidence and argument following review of these records.
IV. Merge/Purge Information and Jury Survey
Defendant does not dispute that, to obtain the merge/purge information
and permission to conduct a jury survey, he must make the particularized
showing identified in Jackson. The parties dispute whether Defendant
satisfied this burden. We need not and do not decide this issue.
In the trial court, Defendant argued that a reasonable approach would
be to allow him to analyze the master list before determining whether
19Because we have rejected the contentions that disclosure is precluded by
statute or privacy interests, we also reject the Jury Commissioner’s reliance
on Evidence Code section 1040, subdivision (b), which provides: “A public
entity has a privilege to refuse to disclose official information” if disclosure is
either “forbidden by . . . statute” or is “against the public interest because
there is a necessity for preserving the confidentiality of the information that
outweighs the necessity for disclosure in the interest of justice.” We need not
decide whether, as Defendant contends, the Jury Commissioner forfeited any
reliance on this statute by failing to raise it earlier.
20Because of this conclusion, we need not decide whether, as Defendant
contends, he is entitled to the master and qualified jury lists pursuant to his
constitutional or statutory fair cross-section rights. The Jury Commissioner’s
argument that the master and qualified jury lists will not assist Defendant in
his fair cross-section challenge is of no moment. Defendant need make no
such showing to obtain these public records.
27
additional discovery should be granted. Defense counsel argued, “If Dr.
Weeks can run an analysis on the master list, he’d have a large sample. And
if there was under-representation in that list, the current list, then, I think,
the next step would be for the Court to consider whether a jury survey . . .
would be appropriate.” Counsel later continued, “if we can’t show statistical
under-representation after reviewing that large list [the master list], then the
Court, I think, would be on solid grounds in saying, ‘There’s no point in going
forward at this stage given this record.’ ”
We see no reason not to follow the approach proposed by counsel. We
have concluded Defendant is entitled to the master and qualified jury lists.
After receiving and reviewing those lists, Defendant may choose to either
withdraw the remainder of his renewed discovery request, or he may seek to
establish entitlement to the remaining requests with the addition of data
from the master and qualified lists.
DISPOSITION
Let a peremptory writ of mandate issue directing the respondent court
to (1) set aside its order denying Defendant’s renewed discovery motion as to
the master and qualified jury lists, merge/purge information, and jury survey;
(2) enter a new order granting Defendant’s renewed discovery motion as to
the master and qualified jury lists, and reserving decision on the motion as to
the merge/purge information and jury survey pending Defendant’s review of
the master and qualified jury lists;21 (3) set aside its order denying
Defendant’s fair cross-section challenge; and (4) permit Defendant to present
any new evidence and argument on his fair cross-section challenge following
21 Nothing precludes the respondent court from establishing a deadline for
Defendant to either withdraw his discovery request as to these items or
revise that request in light of data contained in the master and qualified jury
lists.
28
his receipt of the master and qualified jury lists and any other discovery
granted by the trial court. In all other respects, the petition for writ of
mandate or prohibition is denied.
29
SIMONS, Acting P.J.
We concur.
NEEDHAM, J.
REARDON, J.*
(A159577)
*Judge of the Alameda County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
30
Superior Court of Marin County, No. SC197429E, Hon. Andrew E. Sweet,
Judge.
Law Office of Michael N. Burt and Michael N. Burt; Law Office of John T.
Philipsborn and John T. Philipsborn, for Petitioner.
Sanger Swysen & Dunkle, Stephen Kerr Dunkle, for California Attorneys for
Criminal Justice, Amicus Curiae in support of Petitioner.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General,
Alice B. Lustre and Sarah J. Farhat, Deputy Attorneys General, for Real
Party in Interest the People.
Cummings, McClorey, Davis, Acho & Associates, Sarah L. Overton, for Real
Party in Interest James M. Kim.
No appearance for Respondent Superior Court.
31