This appeal challenges the constitutionality of Cal.Code Civ.P. § 206, governing jury selection, and the validity of convictions obtained under it. The district court dismissed the constitutional attack and denied the petitions for habeas corpus. We dismiss in part and affirm in part.

Los Angeles County is divided into nine judicial districts. The Central District contains large concentrations of the county's Black and Hispanic populations. For example, 32% of the Central District's population is Black, compared with 11% of the population of the county as a whole. Approximately 65% of the county's Black population resides in the Central District.

Jury selection for Los Angeles County is governed by Cal.Code Civ.P. § 206. Section 206, as it stood at the time this lawsuit was commenced, permitted the selection of jurors in either of two ways: In one (district draw) jurors are chosen from voters residing in the district of the trial. The other (dual draw) is the same, except that jurors for Central District trials are chosen from the voters of the whole county.

The choice of jury selection system was given to the judges of the Superior Court of the county. They chose the dual draw system. The use of the dual draw system results in a diminution of the participation of minority group members on juries. The dual draw produces juries with 5.5% Black representation. The Black population of Los Angeles County is 11%. The Black population of the Central District is 31.5%, and a county draw produces 8% Black representation.1

All appellants (appellants) were plaintiffs in a Civil Rights Act2 action. They allege that the dual draw system denied them equal protection of the law.3 Some of the appellants (petitioners-appellants) are also petitioners for writs of habeas corpus.4 The petitioners-appellants allege violations of due process and jury trial rights guaranteed by the Constitution,5 as a result of being tried in the Central District, by juries chosen by the dual draw system.

The district court, in Bradley v. Judges of Superior Court, 372 F. Supp. 26 (C.D.Cal. 1974), dismissed the Civil Rights Act action, holding abstention proper under Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971). The petitions for habeas corpus of Adams and Patterson were denied for lack of exhaustion of available state remedies. See 28 U.S.C. § 2254. Reaching the merits of the remaining habeas petitions, the court upheld the dual draw system. It rejected arguments that the use of a jury drawn from the voters of the county violated either due process or sixth amendment rights or that the petitioners had been prejudiced by the particular juries so drawn in their trials.

The petitioners-appellants' equal protection claim was rejected as well. The court held that, under San Antonio Indep. School Dist. v. Rodriguez, 411 U.S. 1, 93 S. Ct. 1278, 36 L. Ed. 2d 16 (1973), no suspect classification was involved, no fundamental interest had been denied, and that, while there was no compelling state interest supporting the dual draw system, it only had to, and did, meet a rational basis test.6 The rational basis was provided by differences in the trials held in the Central District. These differences included the docketing of all trials from grand jury indictments in the Central District and the fact that, as most of the major law firms are located in the Central District, much of the major litigation, involving issues of county-wide concern, is tried there.

Subsequent to the filing of this appeal section 206 was revised by the state legislature. All jury panels in Los Angeles County are now drawn from the registered voters of the county without regard for the judicial district of the trial or the jurors' residence (county draw). Persons residing more than 20 miles from the place of trial are allowed to excuse themselves from attendance.7

Whatever the constitutional defects of the dual draw system may have been, the amendments to section 206 appear to have cured them.

Equal protection violations8 of the dual draw system could have been cured by instituting either a district draw or a county draw system. Each can be complained about: The former gerrymanders minorities out of the larger community; the latter reduces the possibility of large numbers of minority persons on particular panels. Appellants argue that a district draw is affirmatively required. This argument is not based on any assertion that equal protection requires certain representation on jury panels. Indeed, any such argument would be futile given cases such as Apodaca v. Oregon, 406 U.S. 404, 92 S. Ct. 1628, 32 L. Ed. 2d 184 (1972), and Williams v. Florida, 399 U.S. 78, 90 S. Ct. 1893, 26 L. Ed. 2d 446 (1970).9 The argument is based, rather, on the sixth amendment's guarantee of 'an impartial jury of the State and district wherein the crime shall have been committed' and the requirement that the jury be acquainted with local conditions, customs, and mores, United States v. Duncan, 456 F.2d 1401 (9th Cir.) rev'd on other grounds, 470 F.2d 961 (9th Cir. 1972).

A requirement that juries in criminal trials be drawn from 'the vicinage,' contained in James Madison's proposed version of the sixth amendment was deleted by the Senate. Such a requirement was felt to be too strict. At the time, juries were drawn from the county in only a few states, and juries drawn from a whole state were not unheard-of. 1 Letters and Other Writings of James Madison 491--93 (1865) quoted in Williams v. Florida, 399 U.S. at 95 n. 39, 90 S. Ct. 1893 (1970).

While Los Angeles County is more populous than the United States was at the time the Bill of Rights was adopted, that population is concentrated in a small area (half the size of Massachusetts) and linked by an efficient network of transportation and communications. Mere numbers do not make modern Los Angeles County a less acceptable vicinage than a state of the Revolutionary period with a dispersed and isolated population.

Appellants also contend that juries must be drawn from the Central District because it is a community distinct from the rest of the county. This court is loath to attempt to discover or define communities, in Southern California or anywhere else; the Constitution does not mandate it to do so in this case. Even if the Central District resident has something special about him, we will not treat him differently from Black people or women by requiring that he be represented on certain juries. The present version of section 206 appears adequate to insure participation by a cross-section of a population with sufficient knowledge of local conditions.

Additionally, we note that the 'district' from which the Constitution requires a jury to be drawn need not be identical to a judicial subdivision such as the Central District.10

Since the amendments to section 206 have removed any constitutional infirmity complained of here, the Civil Rights Act action is dismissed as moot.

The petitions of petitioners-appellants Adams and Patterson were denied for lack of exhaustion of state remedies. This was proper, White v. Ragen,324 U.S. 760, 65 S. Ct. 978, 89 L. Ed. 1348 (1945), and is affirmed.

The remaining petitioners-appellants make three arguments: 1) the failure to use a jury drawn from Central District residents violated their right to trial by a jury of the local community; 2) the use of the dual draw system violated their due process rights by defining community differently for defendants tried in different districts and the sixth amendment's requirement that the district be previously ascertained by law by delegating a choice of either a dual draw or a district draw system to the judges; and 3) the dual draw system violated equal protection by reducing the participation of minority and poor persons on jury panels.

We reject the first of these contentions for reasons stated above in discussing the constitutionality of amended section 206. Also for the reasons stated above, we reject the equal protection, due process and sixth amendment claims insofar as they refer to the particular juries which convicted the petitioners-appellants. Since petitioners-appellants were convicted by county-drawn juries, and since the use of the county in drawing a jury does not, of itself, deny a fair trial or reduce the participation of any cognizable class, the specific panels in petitioners-appellants' trials are not subject to attack without allegations of prejudice. No such allegations are made in this case.

Habeas petitioners have been allowed to bring collateral attacks on their convictions on grounds of unconstitutional jury trial without being required to show that they were in fact prejudiced by the jury in question. See Taylor v. Louisiana, 419 U.S. 522, 538--39, 95 S. Ct. 692, 42 L. Ed. 2d 690 (1975) (Rehnquist, J., dissenting). However, only petitioners challenging jury selection systems in effect at the time that the court hears their appeal have automatically been entitled to a new trial. Once the unconstitutionality of a jury selection system has been determined, subsequent petitioners must argue that the decision which struck down the system should be applied retroactively. Compare Taylor v. Louisiana, supra (exclusion of women from jury panels unconstitutional), and Duncan v. Louisiana, 391 U.S. 145, 88 S. Ct. 1444, 20 L. Ed. 2d 491 (1968) (sixth amendment applies to the states through the fourteenth amendment), with Daniel v. Louisiana, 420 U.S. 31, 95 S. Ct. 704, 42 L. Ed. 2d 790 (1975) (Taylor not retroactive), and DeStefano v. Woods, 392 U.S. 631, 88 S. Ct. 2093, 20 L. Ed. 2d 1308 (1968) (Duncan not retroactive).

This case differs from retroactivity cases--there has been no judicial overturning of a statute or procedure, and, unlike Taylor or Duncan, the announcement of a new rule would not necessarily be involved in striking down former section 206. But, if the dual draw system was unconstitutional, the defect has been cured just as surely as if a court had ordered it cured, and petitioners-appellants are before us in a position equivalent to any appellant seeking retrospective application of a constitutional decision. Neither does it appear that the announcement of a new rule, the overturning of prior judicial opinion, is required to deny retroactivity. In Lemon v. Kurtzman, 411 U.S. 192, 93 S. Ct. 1463, 36 L. Ed. 2d 151 (1973) the Supreme Court held that non-public, sectarian schools could be reimbursed for services rendered up until its decision in Lemon v. Kurtzman, 403 U.S. 602, 91 S. Ct. 2105, 29 L. Ed. 2d 745 (1971) which had invalidated such reimbursements. The Court found a lack of bad faith in reliance on the statute, and that the statute was not clearly unconstitutional even though it was clear that the statute would be challenged. 411 U.S. at 207, 93 S. Ct. 1463, 36 L. Ed. 2d 151. The situation at hand is much the same.

A three-factor test, set out in Stovall v. Denno, 388 U.S. 293, 297, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967), was used by the Court to determine the retroactivity of Taylor and Duncan in Daniel and DeStefano. That test weighs:

(a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards.

388 U.S. at 297, 87 S.Ct at 1970.

Applying these factors to this case, we come out in favor of nonretroactive application. If we had struck down the dual draw system, the purpose would have been to ensure the fair participation of all facets of the community in the jury system and to safeguard the rights of defendants tried under that system. Reliance by the authorities here was not on any past decision of the courts upholding the system, but as we have noted, the use of the dual draw system did not rest on bad faith and the system was not patently and obviously unconstitutional. Finally, retroactive application of the new system would do little to vindicate the interests asserted since the petitioners-appellants would be retried by juries chosen virtually identically to the juries which convicted them. Thus the change in section 206 would not be applied retroactively even if the former version had been unconstitutional.

The dual draw system did not violate due process by defining 'community' inconsistently for the Central District and other districts. If all juries in subdivisions of judicial districts must be drawn from equivalent districts, then it would appear that they would all have to be drawn from the same district. One district differs from another district as much as a district differs from the county. Neither does the delegation of a choice between two systems of jury selection to the judges of the superior court make the districts chosen any less 'previously ascertained by law' than if the choice had been made by the legislature.

We can see no reason for granting the petitions.

Dismissed in part and Affirmed in part.