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Court of Appeal, Third District, California.

The PEOPLE of the State of California, Petitioner, v. SUPERIOR COURT IN AND FOR the COUNTY OF LASSEN, Respondent; Joe Carl STANLEY, Real Party in Interest.

Civ. 17986.

Decided: January 08, 1979

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Criminal Division, Arnold O. Overoye, Asst. Atty. Gen., Gregory W. Baugher, James Ching, Deputy Attys. Gen., for petitioner. Arthur J. Anderson, Susanville, for respondent. Pardee, Henriques & Hill and Robert K. Hill, Susanville, for real party in interest.

The People seek a writ of mandate to reverse an order of the Lassen County Superior Court granting a motion for change of venue.

Joe Carl Stanley, the real party in interest, is charged with a violation of Penal Code section 4502 (possession of a deadly weapon while confined in a state prison). The charges arise out of a racial conflict between white and black groups of inmates at the California Corrections Center in Susanville on May 9, 1978. Stanley is black. A correctional officer testified at the preliminary hearing that just before the disturbance broke out, Stanley entered the dayroom of a prison dormitory holding a prison-made shank weapon. No prison staff members were attacked on this occasion, and apparently the most serious injury was a bloody nose.

This incident followed a racial conflict two days earlier, in which seven inmates were injured when guards fired warning shots to bring it to an end. Both incidents were summarily covered by the local press, with no mention of names or discussion of specific facts.

About a week later the Sacramento Bee newspaper published an “in-depth” investigative article on the racial situation at the Susanville prison, quoting extensively from interviews with prison personnel. The article was sympathetic to the recently-appointed superintendent, Senon Palacios, and concluded that the problems at the prison stemmed from the activities of a small group of prison employees who were racists, who sought to undermine efforts by the Department of Corrections to hire and promote minority staff personnel such as Palacios, and who reflected their racism in their treatment of inmates. We quote a segment of the article.

“Palacios and other present and former minority employees believe a small group of prison employees have met regularly over the past few years to design ways to subvert the affirmative action programs. Considerable research by the Bee, including interviews with numerous present and former Susanville employees and department officials, indicates that this group probably numbers No more than six or eight persons, with about a dozen strong sympathizers. They are united in their dislike of affirmative action programs, Bee sources say, in their belief that inmates have too many rights and freedoms, and in their specific disdain for Senon Palacios.

“At the fringes of the group, minority employees and others say, are those who verbally and in a few cases physically threatened minorities and women, as well as whites who resist some of the group's methods.” (Emphasis added.)

The article described an incident involving threats to a white staff member who was told to go along with efforts to “stack the cards” against Palacios after his appointment, as well as threats to a black prison hospital medical assistant. A Mexican correctional lieutenant described a bomb threat and implied that the general community was also racist. He said: “A lot of things were done to my kids and my wife . . . . The kids would come home with busted noses and torn clothing. I really questioned what the hell I was doing up there.” Another white employee complained that he was forced to take a medical leave because of harassment from his supervisor and two other employees for “being responsible for the promotion of a minority staff member.”

The article further quoted the Director of the Department of Corrections, Jerry Enomoto, as stating, “Racism permeates the institution.” It also stated that Palacios and his wife had been invited out only twice in 19 months and that “his Mexico-born wife has trouble cashing checks at the bank.”

The article provoked a heated public (the Lassen Advocate and local radio station KSUE) denial of racism from an employee organization whose membership included minority representation. The chairman of the Lassen County Board of Supervisors and the Mayor of Susanville both attacked the article for implying that the community was racist. For several days thereafter, the local newspaper and radio station carried stories relating to the article and to efforts to solve the problems at the institution.

Neither the Bee article nor any of the later responses to it mentioned real party or any facts relating to him. The newspaper articles and radio tapes were introduced into evidence at the hearing on the motion to change venue. Senon Palacios testified repeating in substance his statement in the Bee article that there was a small group of employees, “5 or 6 people” (out of 345 or 346 total employees), who were racist. On the basis of such evidence the court granted the motion, stating: “I do not believe this is a racist community, but when you get a massive outpouring of publicity in the commercial news media, and a potential intrusion of community involvement, external to the judicial process, as you have in this case, there may be created a reasonable likelyhood (Sic ) for an unfair trial for a defendant in Lassen County, and that's exactly what we're up against. (Par.) This thing arose at a time when and brought about this publicity. This race riot at the prison and the evidence in this case is going to bring out the race riot at the prison and it brought about this publicity and it brought about a massive what I consider a massive outpouring of publicity, and you can do all you want. You can try to Jurors can try to exclude it, but it's still there's a danger of external factors of some sort that will influence the trial.”

In a case of this sort “the appellate court may not limit itself to an ‘abuse of discretion’ review; rather, it makes an independent review of the evidence and reaches a de novo decision.” (Maine v. Superior Court (1968)68 Cal.2d 375, 381-382, 66 Cal.Rptr. 724, 438 P.2d 372; Coron)a v. Superior Court (1972) 24 Cal.App.3d 872, 875, 101 Cal.Rptr. 411, 413.)

Applying the foregoing standard we find little to discuss. The only theory upon which the publicity could possibly prejudice defendant's right to a fair trial is that Lassen County is indeed racist, along with its jurors. Yet the trial court specifically disavowed such a conclusion, and refused to permit the district attorney to question Palacios as to the results of any investigation into the allegations contained in the Bee article.

The publicity itself is patently insufficient to show any substantial, let alone widespread, racism in the county, for the article (and Palacios too) maintains unequivocally that the problem is caused by only a very few hard-core racists. Under such circumstances, if the publicity has any effect at all on Stanley's case, it likely is that jurors will more intensely concentrate on giving him the benefit of every doubt, inter alia, because the charges were possibly made by racist prison staff members. The jurors may also tend toward an acquittal in order to demonstrate their own lack of racism, and to vindicate their and the county's good name. This is at least as likely as any adverse consequence.

In short, there is nothing in this publicity to indicate that real party could not be fairly tried in Lassen County. (Pen.Code, s 1033; Maine v. Superior Court, supra, 68 Cal.2d at p. 383, 66 Cal.Rptr. 724, 438 P.2d 372.) Let a peremptory writ of mandate issue directing the Superior Court of Lassen County to vacate its order granting real party's motion for change of venue, and to enter an order denying said motion.

I respectfully dissent. The majority, assuming that “an ‘abuse of discretion’ review” is not appropriate in this case, makes an independent review of the evidence and reaches a de novo decision contrary to that made by the trial judge. I believe the majority errs in determining that a de novo decision is appropriate (much less required) where the People seek review of the Granting of a defendant's motion for a change of venue. Moreover, since the judge in the community found on sufficient evidence that there was a reasonable likelihood that defendant would not receive a fair trial, both the law and common sense require this court pay due deference to that decision.

I first turn to the proper scope of review. It is understandable that the majority believes independent review is appropriate here, since it is established that when a defendant seeks extraordinary relief from denial of a motion to change venue such review is required. (Maine v. Superior Court (1968) 68 Cal.2d 375, 66 Cal.Rptr. 724, 438 P.2d 372.) However, I believe that careful analysis of the evolution of the doctrine dictates a different result.

Since a motion for change of venue is not a judgment, review of the trial court's determination may be had on appeal. Accordingly, pretrial review of the trial court's determination to grant or deny a motion to change venue would ordinarily be determined under the law governing extraordinary writs and would be granted only upon a showing of an abuse of discretion.

In Maine, supra, however, the Supreme Court, recognizing that a denial of change of venue may preclude a fair trial consistent with due process, provided for pretrial review by mandamus. The right to pretrial review by mandamus of a grant of a change was then extended to the prosecution in People v. Superior Court (1971) 16 Cal.App.3d 811, 94 Cal.Rptr. 342. It does not follow, however, that each party has a right to the same scope of pretrial review.

It is established law that within constitutional limits venue for a criminal trial is “subject to legislative determination.” (Jackson v. Superior Court (1970) 13 Cal.App.3d 440, 443, 91 Cal.Rptr. 565.) The Legislature has provided that only the defendant has a right to seek a change of venue from the locus of the alleged crime when there is a reasonable likelihood that a fair and impartial hearing cannot be had (Pen.Code, s 1033). The People have no such correlative right (Jackson v. Superior Court, supra). In Maine v. Superior Court, supra, the Supreme Court held that when a defendant sought review of a denial of a motion to change venue, the appellate courts must “satisfy themselves de novo . . . that every defendant obtains a fair and impartial trial.” (68 Cal.2d at p. 382, 66 Cal.Rptr. at p. 728, 438 P.2d at p. 376.) Since the People have no right to move for change of venue based on the grounds of potential unfair trial, no de novo review to insure the right is required.

What then is the proper scope of review? Until Maine, the scope of review for both sides was an “abuse of discretion” test (See Witkin, Cal. Criminal Procedure (1963) Jurisdiction and Venue, s 78, p. 73). Since no occasion has been presented to change the standard (there having been no change in the statute) established principles of stare decisis require continued application of the test (6 Witkin, Cal. Procedure (2d ed. 1971) Appeal, s 683, pp. 4598-4600). Thus it appears to me that when the defendant seeks appellate review of a denial of change, asserting that he has been denied an opportunity for a fair trial, independent and de novo review is required (Maine v. Superior Court, supra), but since the People have no right to a change of venue on “fair trial” grounds at all (the predicate to independent review) their request for extraordinary relief is governed by the “ordinary” (i. e., pre-Maine ) rules of review. That is, in criminal cases, a motion for change of venue is directed to the sound discretion of the trial court (People v. Burwell (1955) 44 Cal.2d 16, 279 P.2d 744) and upon the People's writ, the appellate court test is a clear abuse of discretion. (People v. Fisher (1855) 6 Cal. 154; People v. Brite (1937) 9 Cal.2d 666, 72 P.2d 122.) No such abuse is even suggested here.

Moreover, the court fails to attend to one of the common sense imperatives of this case. We deal with a small community, clearly a factor to be considered (Lansdown v. Superior Court (1970) 10 Cal.App.3d 604, 89 Cal.Rptr. 154) and a judge who is in a much better position than we are to judge the effect the extensive publicity had on his community. Indeed, the Supreme Court itself has recognized that the trial court may use as one of the touchstones of its determination “the court's own evaluation of the nature, frequency, and timing of the material involved.” (Maine v. Superior Court, supra, 68 Cal.2d at pp. 383-384, 66 Cal.Rptr. at pp. 729, 438 P.2d at pp. 377.) The trial court showed remarkable sensitivity to his own community. Indeed, the trial court carefully examined the effect of the massive outpouring of publicity on community pride, a standard specifically recognized and approved by this very court (Corona v. Superior Court (1972) 24 Cal.App.3d 872, 101 Cal.Rptr. 411). The trial court observed, “(W)hen you get a massive outpouring of publicity in a commercial media, and a potential intrusion of community involvement, external to the judicial process, as you have in this case, there may be created a reasonable likelyhood (Sic ) for an unfair trial for a defendant in Lassen County, and that's exactly what we're up against . . . Jurors can try to exclude it, but it's still there's a danger of external factors of some sort that will influence the trial.” Many local representatives felt that the newspaper publicity constituted “a very unfair indictment of . . . the residents of Susanville” and the mayor noted that “I think it . . . is bad publicity for our community, . . .” The court noted that “this publicity tends to involve jurors, they feel a sense of community involvement that transcends their judicial function.” As this court has observed, “Understandably sensitive to community reputation, local jurors will feel a sense of community involvement transcending their strict juridical function. There is a danger that external factors of that sort will influence the trial despite honest efforts to eradicate them . . . the potential intrusion of community involvement external to the judicial process have created a reasonable likelihood of an unfair trial . . . .” (Fn. omitted; Corona v. Superior Court, supra, 24 Cal.App.3d at pp. 881-882, 101 Cal.Rptr. at p. 418.) We went on to say, “In counties geographically removed from the locale of the crime, lack of a sense of community involvement will permit jurors a degree of objectivity unattainable in that locale. . . . Local consciousness of the community's reputation for peace and security will be eliminated. If perfection is not within reach, optimum conditions are.” (P. 883, 101 Cal.Rptr. p. 419.)

Finally, the majority misconstrue the applicable standard, whether de novo or abuse of discretion, and that is, that when doubts exist, they should be resolved in favor of venue change. (Corona v. Superior Court, supra, 24 Cal.App.3d at p. 875, 101 Cal.Rptr. 411; Fain v. Superior Court (1970) 2 Cal.3d 46, 54, 84 Cal.Rptr. 135, 465 P.2d 23.)

It is clear to me that the majority opinion is in error and the trial court's sensitive determination of the facts in his own community should be upheld by denying the writ.

PARAS, Associate Justice.

PUGLIA, P. J., concurs.