Cognizable Group Definition (Jury)
In Rubio v. Superior Court, supra, 24 Cal. 3d 93, the Supreme Court held that the right under the California Constitution to a jury drawn from a " 'representative cross-section of the community' " is violated whenever a " 'cognizable group' " within that community is systematically excluded from the jury venire. (Rubio at p. 97.)
It explained that, "Two requirements must thus be met in order to qualify an asserted group as 'cognizable' for purposes of the representative cross-section rule.
First, its members must share a common perspective arising from their life experience in the group, i.e., a perspective gained precisely because they are members of that group.
It is not enough to find a characteristic possessed by some persons in the community but not by others; the characteristic must also impart to its possessors a common social or psychological outlook on human events.
For example, in Adams [v. Superior Court (1974) 12 Cal. 3d 55 [115 Cal. Rptr. 247, 524 P.2d 375]] the claimed cognizable group was composed of all persons who had resided in the community for less than one year; at any given moment the members of that group could be identified with certainty and thereby distinguished from all other persons in the community, but a majority of this court held that they had not acquired a true 'commonality of interest' merely by virtue of the brevity of their residence." ( Id. at p. 98.)
Rubio is often referred to as a plurality opinion. and in fact, it was. the lead opinion, from which we quote, was penned by Justice Mosk, and signed only by him and Justice Manuel (Justices Clark and Richardson concurred in the judgment, providing the majority).
Indeed, Justice Mosk himself has, with characteristic restraint, noted that it is "uncertain . . . whether [Rubio] reflect[s] the views of a majority of the justices supporting the judgment . . . ." ( Amway Surety Ins. Co. v. Wilson (1995) 11 Cal. 4th 1243, 1267-1268 [48 Cal. Rptr. 2d 12, 906 P.2d 1112], and fn. 1 (conc. opn. of Mosk, J.).)
But we take that comment to refer only to the limited assent of Justices Clark and Richardson. the three dissenting justices, Bird, Newman, and Tobriner, had no quarrel with Justice Mosk's definition of "cognizability" but rather objected that the opinion took too narrow a view in allowing for the idea that groups other than those excluded from jury service--groups with similar characteristics--could represent the groups excluded, thereby curing the constitutional error.
A close reading of the dissenting opinions of Justices Tobriner and Newman turns up not a word of complaint about the lead opinion's "cognizability" definition. It appears to us there were five votes for that point.
The Rubio lead opinion was adopted in People v. Fields (1983) 35 Cal. 3d 329 [197 Cal. Rptr. 803, 673 P.2d 680].
Fields, too, is a plurality opinion. Nonetheless, Rubio has never been reconsidered, is still cited on this point with approval by the California Supreme Court (see, e.g., People v. Beeler (1995) 9 Cal. 4th 953, 998 [39 Cal. Rptr. 2d 607, 891 P.2d 153]), and has been frequently cited by courts impressed as we are by its scholarship, reason, and common sense. (See, e.g., People v. McCoy (1995) 40 Cal. App. 4th 778, 783 [47 Cal. Rptr. 2d 599]; People v. Cervantes (1991) 233 Cal. App. 3d 323, 334 [284 Cal. Rptr. 410]; People v. Macioce (1987) 197 Cal. App. 3d 262, 279-280 [242 Cal. Rptr. 771].)
Our confidence in the opinion is apparently shared by the Attorney General, whose brief adopts its definitions as the standard for cognizability.