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Court of Appeal, First District, Division 2, California.

Edward WHITESIDE at al., Petitioners, v. The SUPERIOR COURT of the State of California IN AND FOR the COUNTY OF MONTEREY, Respondent, PEOPLE of the State of California, Real Party in Interest.

Civ. 31030.

Decided: May 31, 1972

Stender & Lapides, San Francisco, for Edward Whiteside. Michael Kaye, San Francisco, for Raymond Marquez. Evelle J. Younger, Atty. Gen., Herbert L. Ashby, Chief Asst. Atty. Gen.—Criminal Division, Doris H. Maier, Asst. Atty. Gen.—Writs Section, Robert R. Granucci, Karl J. Uebel, Deputy Attys. Gen., San Francisco, for Real Parties in Interest.

Petitioners, inmates of Soledad State Prison charged with violations of Penal Code section 4500, seek writ of mandate to compel respondent superior court (1) to set aside its order of February 7, 1972, changing venue from Monterey County to Merced County, and (2) to hold a hearing to determine a proper place to which the cause should be transferred.

On February 1, 1972, the court granted petitioners' motion for change of venue and continued the matter until February 7, 1972, for a hearing to determine a proper place to which the matter should be transferred.

Before the date of the scheduled hearing, however, the trial judge, alertly anticipating the adoption of procedures now embodied in rule 842, California Rules of Court, advised the Administrative Director of the Courts of the pending transfer. In response to that advice, the Administrative Director informed the judge that the courts of Santa Cruz, San Mateo and Merced Counties would not be unduly burdened by the trial of the case, except that San Mateo could accommodate the case only if Monterey could provide a judge. The judge was further advised to consult with the presiding judges of the three counties for confirmation and thereafter to select one of the three.

The trial judge determined from his own presiding judge that Monterey could not send a judge to San Mateo.

A conference with the presiding judge of Santa Cruz convinced the judge that in fact the court in Santa Cruz would be unduly burdened by a trial of petitioners' case in that county.

The presiding judge of Merced County agreed that his court could provide the requisite space and a judge to handle the trial.

Prior to the hearing of February 7, 1972, counsel for petitioner Whiteside submitted, and the court considered, a ‘Memorandum of Points and Authorities on Issue of Proper County to Transfer Cause’ urging Alameda, Contra Costa or San Francisco as the trial situs. Specific arguments were directed against Marin, Santa Clara, and San Mateo Counties.

At the beginning of the hearing on February 7, 1972, the court noted that petitioners' motion for a change of venue had been granted and that ‘this is the time for completing the transfer and setting the appearance in another county. Is there anything further to come up at this time?’

Counsel for defendant Whiteside then launched into a matter ‘that in a sense supersedes that issue.’ He informed the court that prior to the hearing the defendants had ‘now informed’ counsel that they did not want a change of venue and took the position that the motion for a change of venue was made without their permission, which assertion counsel refuted, stating that he wanted this to be made known to the court and to appear on the record.

When the court asked whether there was anything further, counsel for defendant Marquez informed the court that defendant Marquez wanted him to withdraw from the case. Defendant Marquez was permitted to submit a handwritten motion.

The court thereafter asked if there were any further motions to be made. Defendant Marquez asked to be sworn and was heard by the court. After defendant Marquez had been heard,1 the court ordered that the matter be transferred to Merced County, denying defendant Marquez' request that his counsel be relieved.

Petitioners mistakenly rely upon the rule established in cases reversing orders denying change of venue and requiring the trial court on remand to ‘hold a hearing to determine a place where a fair and impartial trial can be had, and transfer the cause to that place’ (Frazier v. Superior Court (1971) 5 Cal.3d 287, 295, 95 Cal.Rptr. 798, 804, 486 P.2d 694, 700; Fain v. Superior Court (1970) 2 Cal.3d 46, 55, 84 Cal.Rptr. 135, 465 P.2d 23; Maine v. Superior Court (1968) 68 Cal.2d 375, 388, 66 Cal.Rptr. 724, 438 P.2d 372).

Each of those cases, however, was governed by former Penal Code section 1035, which provided: ‘If the Court be satisfied that the representations of the applicant are true, an order must be made transferring the action to the proper Court of some convenient county free from a like objection.’

It was recognized by the Judicial Council of California in its Annual Report to the Governor and the Legislature (Jan. 4, 1971) that ‘The number of criminal cases being transferred to obtain a fair trial and avoid the effects of prejudicial pretrial publicity has greatly increased in recent years, undoubtedly as a result of the court decisions of the last few years. This increase has underscored the inadequacies of the existing statutory procedures governing the transfer of criminal cases.

‘Perhaps the most significant problem is the failure of the California statutes to provide an orderly system for determining where to transfer a case. Present law does not require prior consultation with a court before transferring a case to it, nor is there any requirement that an attempt be made to find a court that is not only free from prejudice but also whose calendar is relatively uncongested. Although in most cases as a matter of courtesy the transferring court has notified the receiving court before ordering the transfer, there have been instances where transfers were made to heavily congested courts without prior notice when there were other courts that could have more easily accepted the burden. In such instances the Chairman of the Judicial Council may thereafter receive urgent requests to provide judicial assistance to the receiving court to prevent its calendar from being completely disrupted.’

As a result of this obvious statutory inadequacy, legislative proposals were submitted resulting in the following action: Chapter 6 (commencing with § 1033) of Title 6 of Part 2 of the Penal Code was repealed in 1971 (Stats.1971, ch. 1476, § 2). Under Penal Code section 1038 of the newly enacted legislation (Stats.1971, ch. 1476, § 3, effective March 4, 1972), the Judicial Council was given the power to adopt rules of practice and procedure for change of venue in criminal actions. Rules 840–844, California Rules of Court, now govern the transfer of criminal actions.

Of pertinent significance is the deletion of the former language in Penal Code section 1035—‘the proper Court of some convenient county free from a like objection.’ Instead the test is simply that the court ‘shall transfer the case to a proper court as it determines to be in the interest of justice.’ (Rule 842; emphasis added.)

It is thus manifestly apparent that the decision of selecting the proper court is left to the broad general discretion of the court assisted by the recommendation of the Administrative Director of the Courts. No provision is made for a hearing. We think it is obvious that both the Legislature and the Judicial Council intended to simplify the expedition of transfer of criminal cases after a defendant's motion for change of venue has been granted.

To require an adversary hearing as to a ‘proper court’ would be counter-productive to such an intent, for it could conceivably lead to an inquiry concerning the ‘propriety’ of most, if not all, of the other counties in the state.

Even then the determination might only be temporary since facts might arise in the transferee county which would provide a basis for a new motion to change venue. Therefore, it would seem that the new rules should be taken at face value and that ‘The court to which the action is transferred shall proceed as if the action had been commenced in such court.’ (Rule 844.)

There is nothing in the Constitution of the United States, the California Constitution, or the statutes which entitle a defendant to select the county in which he is to be tried. On the contrary the statute simply provides that ‘the court shall order a change of venue:

‘(a) On motion of the defendant, to another county when it appears that there is a reasonable likelihood that a fair and impartial trial cannot be had in the county.’ (Pen.Code, § 1033; emphasis added.)

Procedural Due Process

At oral argument, petitioners urged that the newly adopted rules of practice and procedure for change of venue in criminal cases (rules 840–844) which became effective March 4, 1972, should not govern this case. Rather, they contend that our decision should be based upon Penal Code sections 1033 and 1035 as they existed at the time petitioners' motion to change venue was granted. In short, they argue that they had a vested right to a hearing to ‘determine a place where a fair and impartial trial can be had’ (Frazier v. Superior Court, supra, 5 Cal.3d at p. 295, 95 Cal.Rptr. 798, 804, 486 P.2d 694, 700).

We disagree. As pointed out earlier, both Penal Code sections 1033 and 1035 (as part of Chapter 6 of Title 6 of Part 2 of the Penal Code) were repealed, effective March 4, 1972, and supplanted by an entirely new Chapter 6, including Penal Code section 1038, providing ‘The Judicial Council shall adopt rules of practice and procedure for the change of venue in criminal actions.’

Government Code section 9606 provides that ‘Any statute may be repealed at any time, except when vested rights would be impaired. Persons acting under any statute act in contemplation of this power of repeal.’

In the absence of a saving clause or an expression of legislative intent to preserve a defendant's rights under former section 1035, repeal operates to extinguish “all such rights or powers which are at the time of repeal inchoate, incomplete, and unperfected.” (People v. One 1953 Buick (1962) 57 Cal.2d 358, 365, 19 Cal.Rptr. 488, 491, 369 P.2d 16, 19.)

We conclude that former section 1035 ceased to have existence on March 4, 1972, the effective date of the repeal, and that the new provisions added by the Legislature (Stats.1971, ch. 1476, § 3) are to be applied to all motions for change of venue in criminal cases, including those pending appellate review on and after March 4, 1972, and therefore govern the disposition of this proceeding.

Accordingly, the alternative writ of mandate, heretofore issued on April 13, 1972, is discharged. The petition for writ of mandate is denied.


1.  None of defendant Marquez' remarks were directed to the place to which the cause should be transferred; he opposed a transfer; moreover, he used his opportunity to speak as a forum to expound on his experiences as a prisoner.

KANE, Associate Justice.

TAYLOR, P. J., and ROUSE, J., concur.

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