¶1I dissent. Defendant Ronald Lee Bell made a prima facie showing that the system by which jury venires were selected in Contra Costa County produced venires that reflected a substantial and continuous underrepresentation of the Black population of the community. In the absence of any rebuttal from the People demonstrating that the underrepresentation was legitimately caused by or served an important state interest, we should reverse defendant’s convictions.
¶3“[I]n this state the right to trial by a jury drawn from a representative cross-section of the community is guaranteed equally and independently by the Sixth Amendment to the federal Constitution and by article I, section 16, of the California Constitution, [¶] It therefore becomes the responsibility of our courts to insure that this guarantee not be reduced to a hollow form of words, but remain a vital and effective safeguard of the liberties of California citizens.” (People v. Wheeler (1978) 22 Cal.3d 258, 272 [148 Cal.Rptr. 890, 583 P.2d 748]; see People v. White (1954) 43 Cal.2d 740, 754 [278 P.2d 9].) That right is fundamental, and is binding on all states. (Taylor v. Louisiana (1975) 419 U.S. 522 [42 L.Ed.2d 690, 95 S.Ct. 692].)
¶4In Duren v. Missouri (1978) 439 U.S. 357 [58 L.Ed.2d 579, 99 S.Ct. 664], the United States Supreme Court established the elements of a prima facie violation of the representative cross-section requirement. For almost four decades before Duren, however, the court has held that the Sixth Amendment protects the right to an impartial jury by requiring that it be drawn from a representative cross-section of the community.
¶5The right to a jury drawn from a representative cross-section under the Sixth Amendment is substantive, not procedural. Its violation removes “from the jury 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 its exclusion deprives the jury of a perspective on human events that may have unsuspected importance in any case that may be presented.” (Peters v. Kiff, supra, 407 U.S. 493, 503-504 [33 L.Ed.2d 83, 94].) “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 to the democratic ideal reflected in the processes of our courts.” (Ballard v. United States, supra, 329 U.S. at p. 195 [91 L.Ed. at p. 187].)
¶6Even the best intentions of courts or legislatures cannot infringe on the fundamental right of a representative cross-section: “Tendencies, no matter how slight, toward the selection of jurors by any method other than a process which will insure a trial by a representative group are undermining processes, weakening the institution of jury trial, and should be sturdily resisted. That the motives influencing such tendencies may be of the best must not blind us to the dangers of allowing any encroachment whatsoever on this essential right.” (Glasser v. United States, supra, 315 U.S. 60, 86 [86 L.Ed. 680, 707].)
¶7Justice Mosk, writing for this court, explained that “[t]he rationale of these decisions, often unstated, is that in our heterogeneous society jurors will inevitably belong to diverse and often overlapping groups defined by race, religion, ethnic or national origin, sex, age, education, occupation, economic condition, place of residence, and political affiliation; that it is unrealistic to expect jurors to be devoid of opinions, preconceptions, or even deep-rooted biases derived from their life experiences in such groups; and hence that the only practical way to achieve an overall impartiality is to encourage the representation of a variety of such groups on the jury so that the respective biases of their members, to the extent they are antagonistic, will tend to cancel each other out.” (People v. Wheeler, supra, 22 Cal.3d 258, 266-267.)
¶9The Durencourt stated: “In order to establish a prima facie violation of the fair-cross-section requirement, the defendant must show (1) that the group 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.” (Duren v. Missouri, supra,439 U.S. at p. 364 [58 L.Ed.2d at pp. 586-587].)
¶10The Durencourt defined “systematic exclusion,” as used in the third prong, as consistent underrepresentation that results from the system of jury selection procedures. It held that petitioner’s “demonstration that a large discrepancy occurred not just occasionally, but in every weekly venire for a period of nearly a year manifestly indicates that the cause of the underrepresentation was systematic—that is, inherent in the particular jury-selection process utilized.” (439 U.S. at p. 366 [58 L.Ed.2d at p. 588].) Combining the prongs, the Durencourt further held that “in Sixth Amendment fair-cross-section cases, systematic disproportion itself demonstrates an infringement of the defendant’s interest in a jury chosen from a fair community cross section. The only remaining question is whether there is adequate justification for this infringement.” (Id. at p. 368, fn. 26 [58 L.Ed.2d at p. 589], italics added.)
¶11Defendant in this case made out a prima facie case of a violation of his right to a representative cross-section under Duren. He showed that Blacks, a cognizable class, made up about 8 percent of Contra Costa County, where he was tried. He showed substantial underrepresentation
¶13The majority hold that defendant did not establish a prima facie violation of the representative cross-section right because he does not show the underrepresentation of Blacks in Contra Costa County jury venires resulted from “systematic exclusion.” (Maj. opn. at p. 524.) To prove “systematic exclusion” under the third Durenprong, the majority require that a defendant identify the particular aspect of the system that is “constitutionally impermissible” and then that he prove that the constitutionally impermissible factor is the “probable cause” of the underrepresentation. (Maj. opn. at p. 524.) In addition, they hold that evidence of substantial and continued underrepresentation of a cognizable class, by itself, is insufficient to show systematic exclusion of that class when the selection procedures are facially neutral. (Maj. opn. at p. 524.) The majority are sadly mistaken.
¶14I would hold that “systematic exclusion” is underrepresentation (as underrepresentation is defined by the second Durenprong) that is consistent and that results from the system of jury selection procedures. Thus, as I have stated, a defendant who demonstrates systematic underrepresentation of a cognizable class has fulfilled the three Durenprongs and made out a prima facie case. This view is supported by the holdings of Duren v. Missouri, supra,439 U.S. 357, and Batson v. Kentucky (1986) 476 U.S. 79 [90 L.Ed.2d 69, 106 S.Ct. 1712], as well by the plain meaning of the term “systematic exclusion.”
¶15The Durencourt held that underrepresentation that occurred regularly, in every weekly venire for almost a year, as a result of the system of jury selection procedures constituted “systematic exclusion.” (Duren v. Missouri, supra, 439 U.S. at p. 366 [58 L.Ed.2d at p. 588],)
¶16In the recent and seminal case of Batson v. Kentucky, supra,476 U.S. 79, which involved a petit jury, the court reaffirmed that “In cases involving the venire, [it] has found a prima facie case on proof that members of the defendant’s race were substantially underrepresented on the venire from which his jury was drawn, and that the venire was selected under a practice providing 'the opportunity for discrimination.' " (Id. at p. 95 [90 L.Ed.2d at p. 86], italics added.) Similarly, the Bufordcourt found a prima facie case because Buford demonstrated a consistent statistical disparity, and also suggested “a plausible systematic explanation for some degree of disparity, i.e., the informal procedure by which Contra Costa County goes about excusing prospective jurors from service.” (132 Cal.App.3d 288, 298.)
¶17The majority ignore not only the decisions of the United States Supreme Court but also the plain meaning of the term “systematic exclusion.” The word “systematic” means that which constitutes “a system,” and is characterized by “regularity” and by its “methodical” nature. (American Heritage Diet, of the English Language (1981) p. 1306, col. 2.) “Systematic exclusion” does not necessarily mean an exclusion that is “intentional” or “invidious.” It does not require the use of nonneutral or “constitutionally impermissible” criteria. All it means is that the exclusion is the result of a system of jury selection, and that it occurs regularly, in contrast to exclusion which is the result of chance or random factors and consequently occurs infrequently or sporadically.
¶18The majority cite City of Richmond v. J.A. Croson Co. (1989) 488 U.S. 469 [102 L.Ed.2d 854, 109 S.Ct. 706], to support their holding that substantial and continuous underrepresentation in jury venires—indeed, that any statistical disparity—is insufficient to show “systematic exclusion” and a violation of the right to a representative cross-section. That case does not provide an iota of authority for such a holding. In Croson, the court held that the City of Richmond failed to demonstrate a compelling governmental interest to justify “an unyielding racial quota,” a policy which set aside 30 percent of the city’s construction contracts for minority-owned businesses. *569(Id. at p. _ [102 L.Ed.2d at p. 885].) The court stated that statistical disparity was relevant to show intentional discrimination, but differed from the City of Richmond’s position on the issue of which statistics to use. It held: “[G]ross statistical disparities . . . may constitute prima facie proof of a pattern or practice of discrimination under Title VII”; but where contractors with “special qualifications are required to fill particular jobs, comparisons to the general population (rather than to the smaller group of individuals who possess the necessary qualifications) may have little probative value.” (Id. at p._ [102 L.Ed.2d at p. 887], quotations and citations omitted.)
¶19In the instant case, I do not disagree with the majority that “[w]here a defendant has access to census or other demographic data that reflect the percentage of the relevant group who are adult and thus presumptively jury eligible, ” he should compare such data against the percentage of cognizable group members in the jury venire. (Maj. opn. at p. 526, fn. 12.) Croson provides some authority for this undisputed point, but does not support a holding that a statistical disparity based on the appropriate data is insufficient to make out a prima facie violation of the right to a representative cross-section.
¶20The majority’s erroneous definition of “systematic exclusion” betrays their inability or unwillingness to comprehend the difference between an equal protection analysis and a representative cross-section analysis. Under an equal protection analysis, the defendant must show purposeful discrimination. (See Duren v. Missouri, supra,439 U.S. at p. 368, fn. 26 [58 L.Ed.2d at p. 589]; Batson v. Kentucky, supra,476 U.S. 79.)
¶21The Durencase itself highlights the difference between the analyses. There the State of Missouri argued that its exemption criteria were facially neutral, and that the underrepresentation of women may have been due to a greater number of women qualifying for exemptions, such as teachers, *570government workers, or persons over 65. (439 U.S. at p. 368 [58 L.Ed.2d at p. 589].) The high court specifically responded that such facially neutral criteria, if they caused a significant underrepresentation, would still have to be justified by a significant state interest. (Id. at pp. 367-369 [58 L.Ed.2d at pp. 588-590].) Absent a significant state interest, a facially neutral law that causes a substantial underrepresentation would not pass constitutional muster.
¶22Notwithstanding the majority’s mischaracterization of Duren(see maj. opn. at p. 529), the Durencourt never determined whether the underrepresentation of women in Jackson County, Missouri, occurred as a result of facially neutral state exemptions or the county’s automatic exemption for women. Instead, it held that whether or not the cause was facially neutral, the system as a whole produced a consistent underrepresentation—or systematic exclusion—of women: “The resulting disproportionate and consistent exclusion of women from the jury wheel and at the venire stage was quite obviously due to the system by which juries were selected. Petitioner demonstrated that the underrepresentation of women in the final pool of prospective jurors was due to the operation of Missouri’s exemption criteria—whether the automatic exemption for women or other statutory exemptions—as implemented in Jackson County. Women were therefore systematically underrepresented within the meaning of Taylor.’’'’ (439 U.S. at p. 367 [58 L.Ed.2d at pp. 588-589], fn. omitted.) The majority ignore this.
¶23In the instant case, Blacks were substantially underrepresented in jury venires at the time of defendant’s trial, the underrepresentation was admittedly continuous over at least six months, and there was virtually no chance that the underrepresentation occurred as a result of something other than the system of jury venire selection in Contra Costa County. Given this evidence, I have no choice but to conclude that Blacks were systematically excluded from jury venires in Contra Costa County, and that defendant has established a prima facie violation of his constitutional right to a jury drawn from a representative cross-section of the community.
¶24IV.
¶25The majority admit that “the county was not in compliance” with statutory—and presumably facially neutral—jury selection procedures, but are unconcerned because defendant only offers a “speculative assertion” that the county’s noncompliance caused the underrepresentation of Blacks. (Maj. opn. at p. 524.) The county violated statutory procedures in two ways. First, it permitted the jury commissioner to excuse prospective jurors *571without written rules and regulations governing the excusal procedures.
¶26*572Defendant’s “speculative assertion” in this case actually hits the nail on the head. The violations of statutory jury selection procedures during the time of defendant’s trial provided the “opportunity for discrimination” and suggested a “plausible systematic explanation” for the consistent and substantial underrepresention of Blacks. To “impose upon a defendant the burden of excluding all possible and permissible explanations for underrepresentation” in order to make out a prima facie case would be onerous, “unrealistic and contrary to applicable principles . . . .” (People v. Buford, supra,132 Cal.App.3d at p. 298, citing Duren v. Missouri, supra,439 U.S. at pp. 368-369 [58 L.Ed.2d at pp. 589-590], and People v. Wheeler, supra,22 Cal. 3d at pp. 286-287.)
¶27These violations, although not necessary to make a Durenclaim, when combined with defendant’s showing of substantial and continued underrepresentation of Blacks in county jury venires, compel the conclusion that Blacks were systematically excluded from those venires, and that defendant has established a prima facie violation of his right to a representative cross-section.
¶28V.
¶29The right of a representative cross-section demands the result that venires be truly representative of the community, at least to the extent that practical reality permits. It does not require simply that facially neutral laws exist without regard for their consequences. In Duren, the United States Supreme Court repeated in that Sixth Amendment case what it stated years earlier: “ ‘[S]tates remain free to prescribe relevant qualifications for their jurors and to provide reasonable exemptions so long as it may be fairly said that the jury lists or panels are representative of the community.’ ” (439 U.S. at p. 367 [58 L.Ed.2d at p. 589], quoting Taylor v. Louisiana, supra, 419 U.S. at p. 538 [42 L.Ed.2d at p. 702], italics added.) The court has stated that maintaining the “broad representative character of the jury” assures “diffused impartiality.” (Taylor v. Louisiana, supra, 419 U.S. at p. 530 [42 *573L.Ed.2d at p. 698].) While the court has not ruled that a petit jury must “mirror the community,” it has held that a jury venire must be “fairly representative of the community.” {Id. at p. 538 [42 L.Ed.2d at p. 703].) The right of a representative cross-section is violated if this is not achieved by a jury venire, whether or not the exclusion is intentional. (See Duren v. Missouri, supra,439 U.S. at p. 368, fn. 26; McCray v. Abrams, supra, 750 F.2d 1113, 1131-1132; Waller v. Butkovich, supra,593 F.Supp. 942, 949.) In this way, the right maximizes the chance of obtaining a representative petit jury. The right helps achieve the fundamental purpose of a jury, which is to “guard against the exercise of arbitrary power” by making available “the commonsense judgment of the community.” (Taylor v. Louisiana, supra, 419 U.S. at p. 530 [42 L.Ed.2d at p. 698].)
¶30I do not share the majority’s unquestioning trust that facially neutral laws are almost always valid and equitable, irrespective of the impact on racial minority groups. As I stated in dissent in People v. Morales, supra,48 Cal.3d 527, 580-581, “Our nation’s history is shadowed by too many examples of facially neutral rules which operated to exclude minority groups from their fundamental rights for us to be confident that a neutral law necessarily operates fairly. The poll tax {Harman v. Forsennius (1965) 380 U.S. 528, 543 [14 L.Ed.2d 50, 60, 85 S.Ct. 1177]), the literacy test {Louisiana v. United States (1965) 380 U.S. 145, 150 [13 L.Ed.2d 709, 713, 85 S.Ct. 817]), and gerrymandering (Gomillion v. Lightfoot (1960) 364 U.S. 339 [5 L.Ed.2d 110, 81 S.Ct. 125]) are all apparently neutral methods by which access to the franchise has been unconstitutionally impaired. States have persistently used apparently neutral standards to exclude minorities from juries. (Hernandez v. Texas (1954) 347 U.S. 475, 478-479 [98 L.Ed. 866, 870, 74 S.Ct. 667]; Norris v. Alabama (1935) 294 U.S. 587, 589 [79 L.Ed. 1074, 1076, 55 S.Ct. 579].) As early as 1886 the high court was called upon to invalidate an apparently neutral regulation which, as applied, invidiously discriminated against Chinese business people. (Yick Wo v. Hopkins (1886) 118 U.S. 356 [30 L.Ed. 220, 6 S.Ct. 1064].)”
¶31The majority’s holding does precisely what this court explicitly warned should not be done. They reduce the fundamental right of a representative cross-section to “a hollow form of words” and abrogate their responsibility to insure that it “remain a vital and effective safeguard of the liberties of California citizens.” (People v. Wheeler, supra,22 Cal.3d 258, 272.) The motives of the majority presumably are the best, but that “must not blind us to the dangers of allowing any encroachment whatsoever on this essential right. ” (Glasser v. United States, supra, 315 U.S. 60, 86 [86 L.Ed. 680, 707], italics added.) Tragically, the injury caused by the majority’s holding “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 to the democratic ideal *574reflected in the processes of our courts.” (Ballard v. United States, supra, 329 U.S. at p. 195 [91 L.Ed. at p. 187].) Their holding is inconsistent with the representative cross-section right of the Sixth Amendment, and the numerous federal and California cases interpreting that right for almost 50 years. Their holding “not only violates our Constitution and the laws enacted under it but is at war with our basic concepts of a democratic society and a representative government.” (Smith v. Texas, supra, 311 U.S. at p. 130 [85 L.Ed. at p. 86].) As this court has previously declared, in such a war the courts cannot be pacifists. (People v. Wheeler, supra,22 Cal. 3d at p. 267.)
¶32VI.
¶33For the reasons set forth above, I would reverse defendant’s convictions.
¶34Appellant’s petition for a rehearing was denied November 30, 1989. Mosk, J., and Broussard, J., were of the opinion that the petition should be granted.
¶35Retired Associate Justice of the Supreme Court sitting under assignment by the Chairperson of the Judicial Council.
¶36That right has also been codified in federal legislation. In the Jury Selection and Service Act (28 U.S.C. §§ 1861-1869), enacted in 1968, Congress declared, “It is the policy of the United States that all litigants in the Federal courts entitled to trial by jury shall have the right to grand and petit juries selected at random from a fair cross section of the community in the district or division wherein the court convenes. . . .” (28 U.S.C. § 1861, italics added.) The Sixth Amendment guaranty and this statutory requirement “have been construed as functional equivalents.” (United Slates v. Hafen (1st Cir. 1984) 726 F.2d 21, 22, fn. 1.)
¶37In dicta, the majority describe the “absolute disparity" test for determining when a group is underrepresented, and state that the United States Supreme Court and many federal and state courts have “accepted” this test. This seems to imply that it is the preferred test. In fact, however, the United States Supreme Court has referred to a number of tests, without adopting any particular statistical methodology to the exclusion of others (see Alexander v. Louisiana (1972) 405 U.S. 625, 630 [31 L.Ed.2d 536, 541, 92 S.Ct. 1221]); other federal and state courts also use a variety of tests.
¶38Of the various tests, absolute disparity is the least satisfactory. Its likely effect in California would be to make it extremely difficult or impossible for most minority groups in most counties to establish a prima facie Durenviolation. If we ever have to choose one test to the exclusion of others, absolute disparity is not the test we should adopt. I trust that California courts will recognize that this court does not herein adopt the absolute disparity test, nor any fixed threshold necessary to establish a prima facie case under that test.
¶39Such a disparity that is consistent over at least six months, if not longer, is certainly substantial. (See maj. opn. at pp. 526-527.) If we use the comparative disparity test, which many *566courts have applied to small or medium-sized minority groups (see Kairys et al., Jury Representativeness: A Mandate for Multiple Source Lists (1977) 65 Cal.L.Rev. 776, 796), the disparity is well over 50 percent, which indicates that Blacks were not being represented in a fair and reasonable manner. (See, for courts that used the comparative disparity test, United States v. Clifford (8th Cir. 1981) 640 F.2d 150; United States v. Yazzie (10th Cir. 1981) 660 F.2d 422, 426-428, cert. den. (1982) 455 U.S. 923 [71 L.Ed.2d 464, 102 S.Ct. 1282]; United States v. Butler (5th Cir. 1980) 615 F.2d 685, denying rehg. of (5th Cir. 1980) 611 F.2d 1066, cert. den. (1980) 449 U.S. 830 [66 L.Ed.2d 35, 101 S.Ct. 97]; United States v. Test (10th Cir. 1976) 550 F.2d 577, 589; United States v. Musto (D.N.J. 1982) 540 F.Supp. 346; Alexander v. Louisiana, supra, 405 U.S. 625; United States v. Goff(5th Cir. 1975) 509 F.2d 825; Stephens v. Cox (4th Cir. 1971) 449 F.2d 657; Quadra v. Superior Court (N.D.Cal. 1975) 403 F.Supp. 486; Ford v. Hollowed (N.D.Miss. 1974) 385 F.Supp. 1392; People v. Guzman (1982) 89 A.D.2d 14, 24, fn. 8 [454 N.Y.S.2d 852, 859]; State v. Acosta (Ariz.Ct.App. 1980) 125 Ariz. 146, 148 [608 P.2d 83]; State v. Barrow (1977) 239 Ga. 162 [236 S.E.2d 257, 260]; Jordan v. State (Fla.Dist.Ct.App. 1974) 293 So.2d 131.)
¶40Defendant also noted the process by which the jury venire was formulated. As stated by the court in People v. Buford, supra,132 Cal.App.3d at pages 291-292: “From the weekly panel of prospective jurors to the ultimate venire there is a substantial dropoff. The noticed record in People v. Bell . . . reflects that about two weeks prior to trial, 468 persons, whose names were selected at random from the master list, were summoned for jury duty. Seventeen summonses were returned by the post office as undeliverable, and approximately twenty-six of the persons summoned, though neither excused nor deferred, simply failed to respond or appear. Of the remaining 425 persons who did respond or appear, approximately 159 (about 38 percent) were either deferred or excused. The net result was that of the 468 persons summoned, only 266 (about 55 percent) remained available for jury service. The commissioner testified that prior to trial approximately 47 jurors were excused or deferred for ‘business hardship,’ 9 for ‘financial hardship,’ 8 for ‘family or child care problems,’ 43 for ‘medical reasons,’ and 27 were ‘on vacation or generally out of the County, like students who are attending schools out of the area.’ Several persons were excused for other reasons prior to trial, and the remainder of the 159 persons were apparently excused or deferred at the time they appeared, for reasons not disclosed in the record. According to the commissioner, these figures were ‘quite consistent with the excuse rate for categories of any other week.’ ’’
¶41I cannot agree with the majority’s disapproval of this court’s holding in People v. Harris (1984) 36 Cal.3d 36 [201 Cal.Rptr. 782, 679 P.2d 433], that “systematic exclusion” means what Durensaid it meant: that “the disparity is ‘inherent in the particular jury-selection process utilized.’ . . . [T]he underrepresentation results from the process utilized to choose jury venires—random selection from voter registration lists." (Id. at p. 58, citing Duren v. Missouri. supra,439 U.S. at p. 366.)
¶42Justice Rehnquist, the lone dissenter in Duren, also recognized that the majority in that case were saying that disproportionate representation is enough to make out a prima facie violation of the right to a representative cross-section. He wrote: “[U]nder equal protection analysis prima facie challenges are rebuttable by proof of absence of intent to discriminate, while under Sixth Amendment analysis intent is irrelevant, but the State may show ‘adequate justification' for the disproportionate representation of the classes being compared. We are reminded. however, that disproportionality may not be justified ‘on merely rational grounds' and that justification requires that ‘a significant state interest be manifestly and primarily *568advanced' by the exemption criteria resulting in the disproportionate representation.” (Duren v. Missouri, supra, 439 U.S. at p. 371 [58 L.Ed.2d at p. 591], italics added and omitted.)
¶43The majority charge that this meaning of “systematic exclusion” would render the third Durenprong surplusage to the second Durenprong. But this meaning is obviously different from that of the second Durenprong, which is simply that representation of a cognizable group in defendant’s venire “is not fair and reasonable.” (Duren v. Missouri, supra, 439 U.S. at p. 364 [58 L.Ed.2d at p. 587].)
¶44To prove purposeful discrimination, underrepresentation may by itself be evidence of discriminatory effect and purpose. (Duren v. Missouri, supra.439 U.S. at p. 368, fn. 26 [58 l..Ed.2d at p. 589]; see Castaneda v. Partida (1977) 430 U.S. 482, 493-495 [51 L.Ed.2d 498, 509-511, 97 S.Ct. 1272]; Mt. Healthy City Board of Ed. v. Doyle (1977) 429 U.S. 274, 287 [50 L.F.d.2d 471, 483, 97 S.Ct. 568].)
¶45The Buford court, referring to the time of defendant Bell’s trial, described the procedures by which the county excused prospective jurors from service: “The jury commissioner testified that [during the time of defendant’s trial] approximately 40 percent of all prospective jurors are either excused or deferred; that less than 5 percent of those excused or deferred ever submit written verification of their asserted reasons for excuse or deferral; and that approximately 80 percent of the requests for excuses or deferral are granted over the phone by one of the commissioner's staff, without the benefit of written guidelines.” (132 Cal.App.3d at p. 298, italics added.)
¶46Code of Civil Procedure former section 200, provided that the court shall excuse a juror for “undue hardship.” Code of Civil Procedure former section 201a allowed the court to delegate that power to the jury commissioner by adopting written rules and regulations which govern the excusal procedure. Here, however, the commissioner granted excusals to “approximately 40 percent of all prospective jurors” “without the benefit of written guidelines.” (People v. Buford, supra,132 Cal.App.3d at p. 298.) Since the court did not empower the jury commissioner by written rules to grant excusáis to prospective jurors, the county violated former sections 200 and 201a.
¶47Additionally, “approximately 80 percent of the requests for excuses or deferral are granted over the phone by one of the commissioner’s staff” with no concomitant demand for personal appearance or written affidavit. (People v. Buford, supra,132 Cal.App.3d at p. 298.) This violated Code of Civil Procedure former section 246, which required the court to hear the excuse of the summoned juror or, in its discretion, accept an affidavit of excuse. These violations of the statutory jury selection procedure left the county’s procedure open to abuse. This court warned before defendant’s trial that “the continuing power to excuse prospective jurors on the grounds of ‘suitability’ and ‘undue’ hardship is highly discretionary in nature, and courts must be alert to prevent its abuse.” (People v. Wheeler, supra,22 Cal.3d 258, 273.)
¶48Since no court had issued written rules or regulations regarding jury selection procedure, not only was the commissioner not empowered to excuse jurors, but he had no guidance as to what constituted a legitimate “undue hardship” excuse under Code of Civil Procedure former section 200. Further, because the commissioner never demanded proof of an excuse as required by Code of Civil Procedure former section 246, he never knew if any given excuse was true.
¶49The Bufordcourt found the following testimony of the commissioner concerning the “undue hardship” category of Code of Civil Procedure former section 200 instructive: “ ‘[Although we will not excuse someone for the year, you know, if—in discussion we will tell them if they don’t receive pay [from their employers while serving] that we may defer them for this particular time because it is a cost, they will lose a day’s pay, and $6 per diem will not cover it.’ ” (People v. Buford, supra,132 Cal.App.3d at p. 298.)
¶50As the Bufordcourt commented, “It is doubtful that either the Legislature or the Judicial Council intended that every financial cost be treated as an ‘extreme financial burden.’ (Cal. Rules of Court, appen., § 4.5(b)(2).) Jury service is, after all, a duty as well as a right. . . . ‘[E]xcessive excuses on such grounds as sex, age, job obligations, or inadequate jury fees, can upset the demographic balance of the venire in essential respects.’ (People v. Wheeler, supra,22 Cal.3d at p. 273.)” (People v. Buford, supra,132 Cal.App.3d at pp. 298-299.)
¶51The majority claim on page 528, footnote 16, that Contra Costa County “reformed” its jury selection procedure, but that the underrepresentation still occurred. They are mistaken again, for the county’s procedures remained “essentially the same.” In People v. Simmons (1985) 164 Cal.App.3d 1070, 1072-1073 [211 Cal.Rptr. 60], the court stated: “[T]he jury commissioner testified that . . . the jury selection procedures [in Contra Costa County] remained ‘essentially the same’ as described in Buford-, that although one ‘follow-up’ is attempted where a prospective juror fails to respond to a jury summons (8.9 percent), no procedures exist to ameliorate or reduce the significant level of attrition reflected in the initial qualifying phase (26 percent). Nor is there any indication that county authorities ever invoke or implement the statutory remedies designed to compel juror compliance. (See Code Civ. Proc., §§ 204.3, subd. (b) [summoning person to complete juror questionnaire], 225 [resummoning trial juror], 238 [attachment and fine for trial juror’s failure to appear].)”