TOBRINER, J. — I dissent.
In concluding that the statutory exclusion of all ex-felons and all resident aliens from jury service is not inconsistent with the state or federal constitutional right to trial by a jury drawn from a “representative cross-section of the community,” the majority imposes a new “requirement” or “condition” on the right to a representative jury never before articulated, or countenanced, in any United States or California Supreme Court decision. In contrast to prior cases, which have established that the values secured by the representative juxy requirement suffer diminution whenever an identifiable group sharing a common perspective arising from their life experience is excluded from jury service, the majority holds that the exclusion of such a group does no violence to the Constitution unless it is shown “that no other members of the community are capable of adequately representing the perspectives of the group assertedly excluded.” (Ante, p. 98.)
As I shall explain, this additional requirement — fashioned by the majority out of whole cloth — would entirely undercut the constitutional right and invalidate virtually all prior decisions of the United States and California Supreme Courts striking down the exclusion of broad classes of individuals from jury service.1 For example, if the state arbitrarily [106]enacted a statute providing for the exclusion of blacks whose last names begin with A through L, under the majority’s theory the statute would not be invalid since blacks with last names beginning with M through Z could adequately represent the viewpoints of the group of excluded blacks. The majority’s “vicarious” representation analysis would place on the defendant the impossible burden of demonstrating that the experiences of the first group differs from the second group; absent such a showing, the state would not even be put to the burden of justifying such an irrational exclusion.
As I shall demonstrate, prior decisions of both this court and the United States Supreme Court have condemned the exclusion from jury service-of Chícanos, women, and wage earners, for example, but have never suggested that such exclusion of a broad class of individuals would be permissible as long as there remained in the jury pool some members of the community “capable of representing the perspectives” of the excluded group. In the long line of cases involving the exclusion of blacks, the courts have consistently held such practice unconstitutional and have uniformly limited the inquiry to whether that exclusion was demonstrated to be intentional or systematic.2
In Hernandez v. Texas (1954) 347 U.S. 475 [98 L.Ed. 866, 74 S.Ct. 667], the high court concluded that in view of the pervasive discriminatory attitudes of the local community against Chícanos, those of Mexican descent constituted a separate class distinct from whites. The 'court held unconstitutional the systematic exclusion from jury service of that identifiable class. Although the exclusion of Chícanos might have left in the jury pool other minorities of the community who had been subjected to similar discriminatory treatment, the court never suggested that such exclusion could have thereby become permissible.
In Thiel v. Southern Pacific Co. (1946) 328 U.S. 217 [90 L.Ed. 1181, 66 S.Ct. 984, 166 A.L.R. 1412], the Supreme Court invalidated jury selection procedures that tended to exclude wage earners. The fact the exclusion was not complete, leaving some wage earners on the jury panel who theoretically could have represented the viewpoints of that class general[107]ly, did not save the exclusionary policy. Although presumably former wage earners remained on the panel since most businessmen and other nonwage earners were, at one time, wage earners and therefore could, under the majority’s view, theoretically represent that “perspective,” their presence on the jury never even received consideration in the court’s analysis.
Most recently, in Taylor v. Louisiana (1975) 419 U.S. 522 [42 L.Ed.2d 690, 95 S.Ct. 692], the Supreme Court held that the Sixth Amendment right to a juiy drawn from a fair cross-section of the community forbade the systematic exclusion of “distinctive” groups such as women from the pool.3 Nothing beyond the ascertainment of the excluded class’ identifiability was necessary to invoke the constitutional protection.
In view of the total void of United States or California Supreme Court4 decisions for the majority’s new “vicarious” representation theoiy, I am not surprised that the majority cites no authority for its proposition. Indeed I find no intervening developments that justify a deviation from Justice Mosk’s former view expressed in his dissent in Adams v. Superior Court (1974) 12 Cal.3d 55, at page 66 [115 Cal.Rptr. 247, 524 P.2d 375], that once a group is found to exist and is identifiable and ascertainable, “[a]ny further determination of the ‘cognizableness’ of the class is unnecessary.”5
Not only is the additional requirement imposed by the majority without authority; an analysis of the prior decisions establishes a number of compelling reasons why such a requirement would be improper.
In the first instance, in Smith v. Texas (1940) 311 U.S. 128, 130 [85 L.Ed. 84, 86, 61 S.Ct. 164], the U.S. Supreme Court declared over 35 years ago that “[T]he exclusion from jury service of otherwise qualified groups not only violates our Constitution and the laws enacted under it... [108]but is at war with basic concepts of a democratic society and a representative government.”6 The majority opinion, in sanctioning the exclusion of qualified persons7 from jury service on the ground that other nonexcluded persons can adequately stand in their stead, validates a mode of constitutional analysis that is similarly “at war with basic concepts of a democratic society and a representative government.” The denial of jury participation to groups under the majority’s theory is no more proper than the denial of the right to vote to a class of citizens on the ground that their interests and perspectives are adequately served by a similar class who have been afforded that right.8
Moreover, since “[cjommunity participation in the administration of the criminal law ... is not only consistent with our democratic heritage, but is also critical to public confidence in the fairness of the criminal justice system,”9 we have been taught that “The injury is not limited to the defendant — there is injury to the jury system, to the law as an institution, to the community at large, and the democratic ideal reflected in the processes of our courts.”10 As Justice Mosk observed only five years ago, “Discrimination against any group makes participation less universal and detracts from the jury as a democratizing institution.” (Adams, supra, at p. 67.)11 The majority’s “vicarious” representation theory clearly conflicts with the fundamental democratic values underlying the cross-section requirement.
[109]Secondly, the requirement that the jury reflect a “fair cross-section of the community,” by definition, renders-significant the relative proportions of all cognizable groups comprising the jury pool. (Taylor v. Louisiana, supra, 419 U.S. 522; Thiel v. Southern Pacific Co., supra, 328 U.S. 217.) In People v. White, supra, 43 Cal.2d 740, 750, for example, this court invalidated a jury selection procedure under which the jury list was “improperly weighted so as to prevent having a good cross-section of the community for prospective jurors.” (Italics added.) Thus, even assuming that the excluded group shares identical viewpoints with another included group, the relative proportion of persons holding that viewpoint will be significantly reduced by the intentional and systematic exclusion. Although a cognizable viewpoint is not totally excluded, no “good cross-section of the community” would obtain.12
Finally, and perhaps most significantly, prior decisions suggest the impossibility of determining whether other groups can “adequately” represent the excluded group’s “perspectives.” In Peters v. Kiff (1972) 407 U.S. 493, at pages 503-504 [33 L.Ed.2d 83, at page 94, 92 S.Ct. 2163], Justice Marshall observed: “[T]he exclusion from jury service of a substantial and identifiable class of citizens has a potential impact that is too subtle and too pervasive to admit of confinement to particular issues or particular cases .... When any large and identifiable segment of the community is excluded from jury service, the effect is to remove from the juiy room qualities of human nature and varieties of human experience, the range of which is unknown and perhaps unknowable. It is not necessary to assume that the excluded group will consistently vote as a class in order to conclude, as we do, that their exclusion deprives the jury of a perspective on human events that may have unsuspected importance in any case that may be presented.” Similarly, the court stated in Ballard v. United States (1946) 329 U.S. 187, at pages 193-194 [91 L.Ed. 181, at page 186, 67 S.Ct. 261]: “[I]t is not enough to say that women when sitting as jurors neither act nor tend to act as a class. . . . [T]he subtle interplay of influence one on the other is among the imponderables. To insulate the courtroom from either [sex] may not in a given case make an iota of difference. Yet a flavor, a distinct quality is lost if either sex is excluded.”
[110]The subtleties and complexities of human experiences, beyond the court’s capabilities of evaluation, constitute the underpinning of the cross-section requirement. We are simply not in a position to make fine judgments as to the fungibility of identifiable segments of the community.
Indeed, the fallacy of the court’s assumption that it can determine which groups can adequately represent others find vivid demonstration in the majority’s application of its newly fashioned requirement to the two groups at controversy.
Regarding the exclusion of resident aliens, the majority asserts that naturalized citizens, most of whom presumably were previously resident aliens themselves and therefore shared both the disabilities and resulting outlook of today’s resident aliens, adequately represent their viewpoints on the jury. The passage of time and the intervening attainment of citizenship, however, may well have changed whatever “outlook” naturalized citizens may have previously held. Since we weigh important constitutional rights, we surely must eschew crucial assumptions based on unsupported speculations.13
Even apart from the tenuous factual assumptions upon which the majority’s holding rests, the theory of vicarious representation through former experiences threatens to undercut the efficacy of the cross-section requirement. Members of a “cognizable group” do not have to share an immutable status or trait. In Thiel v. Southern Pacific Co., supra, the Supreme Court held that “economic, social, religious, racial, political and geographic groups of the community” could not be systematically excluded from jury service consistent with the Constitution. (328 U.S. at p. 220 [90 L.Ed. at p. 1185].) (We reaffirmed that principle only recently [111]in Wheeler, supra, at p. 10.) Of those characteristics, only race constitutes an immutable status. Yet the majority’s characterization of resident aliens can apply to any of the other groups listed in Thiel.
Furthermore, the discussion as to ex-felons reveals a fundamental inconsistency between the majority’s jury cross-section and equal protection analyses. The majority asserts that the particular viewpoint of ex-felons is adequately represented on the juiy by individuals who have similarly experienced the “loss of personal liberty followed by social stigmatization,” such as misdemeanants who have served time in county jail, persons who have been confined in the custody of the Youth Authority, or spent periods of involuntary commitment in state mental institutions. Aside from the absence of evidence within or without the record to substantiate this “fact,”14 this assumption conflicts with the majority’s subsequent conclusion that the exclusion passes equal protection muster under the rational basis test because the Legislature could have reasonably determined that ex-felons in particular “might well harbor a continuing resentment against ‘the system’ that punished him and an equally unthinking bias in favor of the defendant on trial, who is seen as a fellow underdog caught in its toils.” {Ante, p. 101.)
If ex-felons cannot be distinguished from other persons formerly incarcerated for Sixth Amendment purposes, how can the two groups rationally be treated differently under the equal protection clause of the Fourteenth Amendment? Conversely, if it is reasonable to assume that ex-felons, “who ha[ye] suffered the most severe form of condemnation that can be inflicted by the state — a conviction of felony and punishment therefor” {ante, p. 101), are more “resentful” than other persons experiencing confinement, then that assumption would similarly establish that they are not adequately represented by such other persons on the jury. The factual predicates to the two conclusions the majority reaches are mutually exclusive and logically irreconcilable.
In rejecting the analysis adopted by the majority, I conclude that the challenged statutes exclude a “cognizable group” from jury service. Once a “cognizable group” has been excluded — and the majority concedes that but for the “vicarious” representation requirement, both resident aliens and ex-felons constitute “cognizable groups” — the state must come forth with substantial justification to demonstrate that the exclusion is neces[112]sary to serve an important state interest.15 Recently, in Taylor v. Louisiana, supra, 419 U.S. at page 534 [42 L.Ed.2d at page 700], the United States Supreme Court explained that a “defendant’s Sixth Amendment right to a jury drawn from a fair cross-section of the community . . . cannot be overcome on merely rational grounds. There must be weightier reasons . . . .” (Italics added.) Moreover, as Justice Mosk previously expressed in his dissent in Adams, supra, 12 Cal.3d at page 68, when a cognizable group has been excluded from jury service, “the state must not only establish a legitimate purpose in creating the classification but must show that the distinction drawn by the statute is necessary to further the asserted interest.” (12 Cal.3d at p. 68.) Our task, I believe, is to evaluate the broad exclusionary provisions at issue here against these previously articulated standards. (See also Duren v. Missouri (1979) 439 U.S. 357, 364-366 [58 L.Ed.2d 579, 587-588, 99 S.Ct. 664].)
The apparent objective of the Legislature in excluding ex-felons from jury eligibility is to protect the right to trial by an impartial jury. I have no doubt that this is a legitimate and compelling state interest. (Wheeler, supra, 22 Cal.3d at p. 266.) The exclusion, however, is not necessary to achieve that objective. Indeed, the scheme is not even rationally related to that purpose.
The majority posits that an ex-felon “might well harbor a continuing resentment against ‘the system’ that punished him and an equally unthinking bias in favor of the defendant on trial, who is seen as a fellow underdog caught in its toils.” (Ante, p. 101.) Starting with the fundamental tenet that “jury competence is an individual rather than a group or class matter” (Thiel, supra, 328 U.S. at p. 220 [90 L.Ed. at p. 1185]), the reliance upon presumptions about group or class biases in the exclusion of a cognizable group from the jury flies squarely in the face of the rationale of the cross-section rule.
As we noted in Wheeler, supra, 22 Cal.3d at pages 276-277, footnote 17: “ ‘It may be argued that the exclusion of jurors on the basis of group membership would be acceptable where it is believed that, for example, blacks are consistently more biased in favor of acquittal than whites. The argument misses the point of the right to an impartial jury under Taylor. [113]Blacks may, in fact, be more inclined to acquit than whites. The tendency might stem from many factors, including sympathy for the economic or social circumstances of the defendant, a feeling that criminal sanctions are frequently too harshly applied, or simply an understandable suspicion of the operations of government. Whites may also be more inclined to convict, particularly of crimes against a white victim. But these tendencies do not stem from individual biases related to the peculiar facts or the particular party at trial, but from differing attitudes toward the administration of justice and the nature of criminal offenses. The representation on juries of these differences in juror attitudes is precisely what the representative cross-section standard elaborated in Taylor is designed to foster.’ (Note, Limiting the Peremptory Challenge: Representation of Groups on Petit Juries (1977) 86 Yale L.J. 1715, 1733, fn. 77.)” (Italics added.)
Even were we to ignore our own observation in Wheeler that “the presumed group bias that triggered the peremptory challenges [or statutory exclusion as in the instant case] against its members is indistinguishable from the group perspective we seek to encourage by the cross-section rule” (22 Cal.3d at p. 276), the imprecise fit between the statute and its objective cannot constitutionally be tolerated. In the parallel context of Otsuka v. Hite (1966) 64 Cal.2d 596 [51 Cal.Rptr. 284, 414 P.2d 412], we held that a construction of the term “infamous crime” in article II, section 1 of the California Constitution permitting the blanket disenfranchisement of all felons would be unconstitutionally broad under the rational basis test of McLaughlin v. Florida (1964) 379 U.S. 184 [13 L.Ed.2d 222, 85 S.Ct. 283], (Otsuka, supra, 64 Cal.2d at p. 605.) Thus, in order to save the validity of that state constitutional provision, we construed it to apply only to those crimes, the elements of which “are such that he who has committed it may reasonably be deemed to constitute a threat to the integrity of the elective process.” (64 Cal.2d at p. 611.)16
The fatally overbroad character of the exclusion in Otsuka applies with equal force here. The instant exclusion applies to every former felon, regardless of his crime, the remoteness in time of the offense, the fact that the ex-felon may have since been leading an exemplary life and not evinced any “resentment” towards “the system,” and the relative severity [114]and length of time that has passed since the punishment sanctioned. Indeed, although the instant statutes presume that the ex-felon will be “resentful” as a result of incarceration experience, the fact that he may have received probation and never actually have been incarcerated is presently irrelevant to his jury eligibility.17
The statute is also underinclusive. As I have pointed out, the majority’s contention that other persons experiencing incarceration are capable of representing the viewpoints of ex-felons as a result of similar life experiences logically renders the exclusion of only ex-felons from juiy service irrational. Moreover, just as prodefendant bias is presumed of ex-felons by the exclusionary scheme, the converse corollaiy presumption of proprosecution bias on the part of victims of crimes would dictate their automatic exclusion as well. I fail to see how the state can reasonably differentiate between these groups in its effort to assure jury impartiality.
In view of the irrational fit between the avowed objective and classification of the statute and the countervailing policy and constitutional considerations, the exclusion is clearly irrational. A fortiori, the exclusion of ex-felons from jury service cannot pass constitutional muster under the more demanding scrutiny required by Taylor v. Louisiana, supra, 419 U.S. at page 534 [42 L.Ed.2d at page 700].
Similarly, I believe that the exclusion of resident aliens fails to pass constitutional muster under a realistic application of the appropriate governing standard. In defending the statutory exclusion of resident aliens from jury service, the majority assert that such exclusion is consistent with the “ ‘ “State’s historical power to exclude aliens from participation in its democratic political institutions as part of the sovereign’s obligation to preserve the basic conception of a political community.” ’ ” (Ante, p. 104.) In recent years, the United States Supreme Court has stated that this state interest in the preservation of a “political [115]community” permits a state to deny aliens the right to vote, to run for public office (see Sugarman v. Dougali (1973) 413 U.S. 634, 647-649 [37 L.Ed.2d 853, 862-864, 93 S.Ct. 2842]), or to hold important nonelective public positions, explaining that “officers who participate directly in the formulation, execution, or review of broad public policy perform functions that go to the heart of representative government.” (Id., at p. 647 [37 L.Ed.2d at p. 863].) For a number of reasons, however, I do not believe that jury service rationally falls within the ambit of voting or political decisionmaking, from which resident aliens may legitimately be excluded.
First, the role and function of the juiy is substantially different from that of the voter. In relation to the state’s sovereign interest, “voting produces a permanent effect upon the entire community, its governance, its fisc, its future; jury service involves the property or liberty of a single individual on an ad hoc basis.” (Adams, supra, 12 Cal.3d at p. 69 (dis. opn. of Mosk, J.).) And while the exercise of the political franchise of voting is of fundamental importance since it preserves all other basic civil and political rights and constitutes the very underpinning of a free and democratic society,18 the same cannot be said for jury service.19
Additionally, in contrast to the act of voting, which is an unrestrained personal expression of favor or disfavor for particular policies, personalities or laws, the jurors’ powers are closely circumscribed by the judge who determines the admissibility of evidence, who can suppress unreasonable appeals to prejudice, and who instructs the jury as to the applicable law.20 The special verdict and the directed verdict further limit the jury’s role.
Furthermore, although the general societal importance of juries cannot be gainsaid (see Duncan v. Louisiana (1968) 391 U.S. 145, 155 [20 L.Ed.2d 491, 499, 88 S.Ct. 1444]; Witherspoon v. Illinois (1968) 391 U.S. 510, 519, fn. 15 [20 L.Ed.2d 776, 783, 88 S.Ct. 1770]), their role is not equivalent to the public officials and important nonelected officials described in [116]Sugarman. Since the function of the jury is to apply given law to a specific set of facts on only an individual ad hoc basis, the role of jurors is not “so close to the core of the political process as to make [them] formulator[s] of government policy.” (In re Griffiths (1973) 413 U.S. 717, 729 [37 L.Ed.2d 910, 919, 93 S.Ct. 2851].)21
Our decision in Raffaelli v. Committee of Bar Examiners (1972) 7 Cal.3d 288 [101 Cal.Rptr. 896, 496 P.2d 1264, 53 A.L.R.3d 1149] and the United States Supreme Court’s decision in In re Griffiths, supra, 413 U.S. 717, are instructive on this point. In Raffaelli, we held that although attorneys hold positions of “high responsibility and trust,” and have a “privileged and intimate relationship with the courts of California” (7 Cal.3d at p. 301), the state could not, consistent with the Constitution, exclude aliens from practicing law. Similarly, in In re Griffiths, the high court recognized that Connecticut lawyers had broad authority given by the state to “ ‘sign writs and . . . take depositions and acknowledgment of deeds.’ . . . [and] command the assistance of a county sheriff or a town constable” and even were statutorily designated as “ ‘commissioner[s] of the Superior Court.’ ” (413 U.S. at p. 723 [37 L.Ed.2d at p. 916].) Yet the court found that this was insufficient to “place one so close to the core of the political process as to make him a formulator of government policy.” (Id., at p. 729 [37 L.Ed.2d at p. 919].) The court thus held, in accordance with our decision in Raffaelli, that the exclusion of aliens from the legal profession could not be constitutionally sustained. In view of the central and continuing role attorneys play as officers of the court (see In re Griffiths, supra, at pp. 730-734 [37 L.Ed.2d at pp. 920-922] (dis. opn, of Burger, C. J.)), I fail to see how jurors with narrow responsibilities acting on an ad hoc basis can be deemed to be part of the “political community” while attorneys are not.
[117]Accordingly, I would hold the exclusion of resident aliens from jury service invalid under article I section 16 of the California Constitution.22
In sum, in my view the statutory provisions excluding resident aliens and ex-felons from jury service violate a defendant’s right to an impartial jury drawn from a representative cross-section of the community, and therefore cannot be sustained.
Over 30 years ago, the United States Supreme Court observed: “Recognition must be given to the fact that those eligible for jury service are to be found in every stratum of society. Jury competence is an individual, rather than a group or class matter. That fact lies at the very heart of the jury system. To disregard it is to open the door to class distinctions and discriminations which are abhorrent to the democratic ideals of trial by jury.” (Thiel v. Southern Pacific Co., supra, 328 U.S. 217, 220 [90 L.Ed. 1181, 1185].) We would do well to heed that wisdom.
Bird, C. J., and Newman, J., concurred.
Although a number of lower federal courts appear to have imposed this additional requirement (see United States v. Guzman (S.D.N.Y. 1972) 337 F. Supp. 140, affd. 468 F.2d 1245 (2d Cir. 1972) cert den. (1973) 410 U.S. 937 [35 L.Ed.2d 602, 93 S.Ct. 1397]; United States v. Potter (9th Cir. 1977) 552 F.2d 901), these cases cite no direct authority of the Supreme Court for the proposition and in any event are not controlling in this court, even on the federal constitutional question.
Carter v. Texas (1900) 177 U.S. 442 [44 L.Ed. 839, 20 S.Ct. 687]; Norris v. Alabama (1935) 294 U.S. 587 [79 L.Ed. 1074, 55 S.Ct. 579]; People v. Hines (1939) 12 Cal.2d 535 [86 P.2d 92]; Smith v. Texas (1940) 311 U.S. 128 [85 L.Ed. 84, 61 S.Ct. 164]; Patton v. Mississippi (1947) 332 U.S. 463 [92 L.Ed. 76, 68 S.Ct. 184, 1 A.L.R.2d 1286]; Eubanks v. Louisiana (1958) 356 U.S. 584 [2 L.Ed.2d 991, 78 S.Ct. 970]; Swain v. Alabama (1965) 380 U.S. 202 [13 L.Ed.2d 759, 85 S.Ct. 824]; Peters v. Kiff (1972) 407 U.S. 493 [33 L.Ed.2d 83, 92 S.Ct. 2163]; People v. Wheeler (1978) 22 Cal.3d 258 [148 Cal.Rptr. 890, 583 P.2d 748].
See also Glasser v. United States (1942) 315 U.S. 60 [86 L.Ed. 680, 62 S.Ct. 457] and Ballard v. United States (1946) 329 U.S. 187 [91 L.Ed. 181, 67 S.Ct: 261],
The “vicarious” representation theory similarly has never been countenanced by any of our jury exclusion cases. See, e.g., People v. Hines (1939) 12 Cal.2d 535 [86 P.2d 92]; People v. White (1954) 43 Cal.2d 740 [278 P.2d 9]; Adams v. Superior Court (1974) 12 Cal.3d 55 [115 Cal.Rptr. 247, 524 P.2d 375]; People v. Wheeler (1978) 22 Cal.3d 258 [148 Cal.Rptr. 890, 583 P.2d 748],
The majority opinion in Adams did not hold to the contrary; the court merely held that residents of less than one year did not share sufficient common grounds to make them a cohesive or cognizable group — i.e., the class of new residents did not even meet the first stage of the majority’s test in the instant case.
See also Glasser v. United States, supra, 315 U.S. at pages 85-86 [86 L.Ed. at pages 707-708],
Ex-felons and aliens are excluded even if they meet the general qualifications set forth in Code of Civil Procedure section 198 et seq. requiring for jury eligibility, a minimum residency period, mental competence, fair character and approved integrity, and the ability to understand and speak English.
See Adams, supra, 12 Cal.3d at page 67 (dis. opn. of Mosk, J.)
Taylor v. Louisiana (1975) 419 U.S. 522, 530 [42 L.Ed.2d 690, 698, 95 S.Ct. 692].
Ballard v. United States (1946) 329 U.S. 187, 195 [91 L.Ed. 181, 186-187, 67 S.Ct. 261], Hence, reversible error stemming from an improperly constituted jury is not dependent upon a showing of actual prejudice in an individual case. (Id., at p. 195 [91 L.Ed. at p. 186]; Walter v. State (1935) 208 Ind. 231 [195 N.E. 268, 98 A.L.R. 607].) In fact, in Thiel, the Supreme Court found it immaterial that the jury which actually tried the particular case contained a substantial number of wage earners. (328 U.S. at p. 225 [90 L.Ed. at p. 1187].)
Ironically, the political and social value of governmental participation through jury service may be especially significant to groups historically disenfranchised and victimized by public and private discrimination, as are the two groups at controversy here. Particularly with respect to ex-felons, the stigma attached to their exclusion is likely to be “ ‘a hindrance to the efforts of society to rehabilitate former felons and convert them into law-abiding and productive citizens.’ ” (Richardson v. Ramirez (1974) 418 U.S. 24, 79 [41 [109]L.Ed.2d 551, 585, 94 S.Ct. 2655] (dis. opn. of Marshall, J.) (quoting a memorandum of the Secretary of State of California in opposition to certiorari).)
The majority’s own figures demonstrate that resident aliens rival naturalized citizens in numbers. (See majority opn., ante, p. 100, fn. 8.) Although there may be more ex-misdemeanants who have experienced incarceration than ex-felons in thé population, the size of the latter class is still substantial in relation to the former. In 1973, it was estimated that there were approximately 100,000 ex-felons in the state. (Ramirez v. Brown (1973) 9 Cal.3d 199, 203, fn. 2 [107 Cal.Rptr. 137, 507 P.2d 1345].)
Justice Mosk, in his dissenting opinion in Adams v. Superior Court, supra, pointedly rejected the practice of relying on such unsupported assumptions. He noted: “No authority is cited, and I have found none, either to support or refute petitioner’s ipse dixit declaration that newcomers have the same cross-section of views and backgrounds as more settled residents. It is more probable, however, that those who have residence of less than one year may not yet have irrevocably strong ties to the community; their involvement in local employment, business, homeownership, club or church activities, or school or neighborhood-associations is far less than that of long-term residents. Whatever osmotic influence these community roots may have ultimately on one’s outlook and perspective, newer residents are potentially different. To exclude them is to limit the structure of the panel as a genuine cross-section of the community; if there is a difference, that difference is excluded.” (Italics in original.) (12 Cal.3d at p. 66.) The majority notably admits “there may be a difference in degree but not of kind,” between resident aliens and naturalized citizens. But matters “of degree,” of the relative intensity of one’s experiences, attitudes, and opinions, may. have a substantial effect upon one’s responses as a juror. Therefore, the concession admits the flaw fatal to the majority’s conclusion.
Another example of the majority’s untempered willingness to speculate is found in its declaration that “surely an ex-felon’s experienced incarceration is more likely to affect his deliberations as a juror than his vote as an elector.” (Ante, p. 102, fn. 13.)
Commentators have argued for the applicability of strict judicial scrutiny when the cross-section requirement has been violated. (See Van Dyke, Jury Selection Procedures (1977) ch. 3, pp. 72-76; Kairys et al., Jury Representativeness: A Mandate for Multiple Source Lists (1977) 65 Cal.L.Rev. 776, 782-788; Daughtrey, Cross-Sectionalism in Jury-Selection Procedures After Taylor v. Louisiana (1975) 43 Tenn.L.Rev. 1, 47, fn. 212.)
Although we later tightened the requisite “fit” between the ends and means of such an exclusion so as to require a less onerous alternative analysis (see ante, p. 109, fn. 12), the result of our testing the challenged provision in Otsuka against the rational basis test remains intact.
Although conceding that the scheme is “arguably imprecise,” the majority asserts that “in some ways” the instant exclusion is more precise than the restriction on suffrage in Otsuka since an ex-felon’s, experience of incarceration is more likely to affect his deliberations as a juror than his vote as an elector. (Ante, p. 102, fn. 13.) But the posited juxtaposition is specious since the real question is whether the probative value of one’s incarceration experience in determining his ability to engage in unbiased deliberations as a juror is greater than the probative value of one’s proven criminality to his honest and uncorrupt exercise of his franchise. I submit that the fact that the statute takes no account of a former felon’s actual incarceration experience renders the exclusion as imprecise as the restriction in Otsuka.
Yick Wo v. Hopkins (1886) 118 U.S. 356, 370 [30 L.Ed. 220, 226, 6 S.Ct. 1064]; Reynolds v. Sims (1964) 377 U.S. 533, 561-562 [12 L.Ed.2d 506, 526-528, 84 S.Ct. 1362]; Harper v. Virginia Bd. of Elections (1966) 383 U.S. 663, 667 [16 L.Ed.2d 169, 173, 86 S.Ct. 1079].
The fact that jury service does not play as central a role as the exercise of political franchise does not mean that such participation in the judicial forum is not an important right. The observation is only a comparative one, and it is not inconsistent with the position that participation by all cognizable groups on juries is in accordance with, if not compelled by, adherence to democratic principles and ideals.
See United States v. Guzman (S.D.N.Y. 1972) 337 F.Supp. 140, 144.
It does not follow, however, that jury service from the viewpoint of excluded individuals is not a “fundamental interest” for purposes of equal protection analysis. A distinction must be drawn between the state’s sovereign interest and the interests of individuals seeking the opportunity to serve on juries. The fact that the jury is not involved in the formulation of broad governmental policy and that therefore jurors cannot be deemed part of the “political community” demonstrates only the limit of the state’s interest in protecting its sovereignty. In relation to the individual, participation in the judicial process constitutes a valuable singular opportunity to directly participate in one aspect of our democratic government. Since the importance of jury service to the state is not necessarily equivalent to its value to the individual, it is not inconsistent to find no legitimate state purpose here while maintaining that the right to serve on juries is a “fundamental right” under equal protection analysis. I continue to dissent from this court’s holding in Adams that there is no such fundamental interest of individuals to serve on juries.
Although a number of federal cases have indicated that the exclusion of aliens from jury service does not violate the federal Constitution (see Foley v. Connelie (1978) 435 U.S. 291 [55 L.Ed.2d 287, 98 S.Ct. 1067]; Perkins v. Smith (D.Md. 1974) 370 F.Supp. 134, affd., 426 U.S. 913 [49 L.Ed.2d 368, 96 S.Ct. 2616]), those decisions are, of course, not controlling as to a defendant’s right to an impartial jury under article I, section 16 of our state Constitution. We explicitly held in Wheeler that the representative cross-section requirement guaranteed by our state Constitution is independent of the similar federal guarantee under the Sixth Amendment. (22 Cal.3d at p. 272.) Because I believe that the federal cases noted above are inconsistent with prior California decisions involving discrimination against aliens, such as Raffaelli, I would hold the instant exclusion invalid under the state constitutional guarantee.