MARTINEZ v. PEOPLE (1980)

Petitioner faces charges of murder (Pen.Code, s 187), robbery (Pen.Code, s 211), and attempted robbery in Placer County. The People have alleged special circumstances regarding the murder count (Pen.Code, s 190.2) and are seeking the death penalty. Codefendant Allen Davis, whose trial was severed, has already been tried and acquitted of the same charges in Placer County.

Petitioner filed a timely pretrial motion for a change of venue. The motion was denied, and petitioner seeks from this court a writ of mandamus directing the superior court to grant the motion and an order staying all further proceedings until the writ is issued or denied. Pursuant to the direction of the California Supreme Court, this court issued an alternative writ of mandamus and stay of further proceedings in the superior court pending our review. The single issue for our review is whether petitioner has demonstrated the right to transfer the trial of his case to another county by a venue change because of the dissemination of potentially prejudicial material about his case in the news media.

Mandamus lies for an appellate court to review a trial court's refusal of a request for venue change. (Maine v. Superior court (1968) 68 Cal.2d 375, 379-381, 66 Cal.Rptr. 724, 438 P.2d 372; for review after conviction, see People v. Caldwell (1980) 102 Cal.App.3d 461, 471, 162 Cal.Rptr. 397.) In the mandamus proceeding, the court must independently review the evidence and reach a decision de novo that the defendant will obtain a fair and impartial trial in the county in which he is tried. (Corona v. Superior Court (1972) 24 Cal.App.3d 872, 875, 101 Cal.Rptr. 411.) The governing standard for the independent review is whether, because of the dissemination of potentially prejudicial pretrial publicity, a reasonable likelihood exists that a fair trial cannot be had in the present forum. (Maine v. Superior Court, supra, 68 Cal.2d at pp. 383-385, 66 Cal.Rptr. 724, 438 P.2d 372.) “When the issue is raised before trial, doubts should be resolved in favor of venue change.” (Corona, supra, 24 Cal.App.3d at p. 875, 101 Cal.Rptr. at 413; Fain v. Superior Court (1970) 2 Cal.3d 46, 54, 84 Cal.Rptr. 135, 465 P.2d 23.)

This court's independent determination may be based on evidence such as “qualified public opinion surveys,” opinion testimony by individuals, as well as our “own evaluation of the nature, frequency, and timing” of the news coverage of the case. (Maine, supra, 68 Cal.2d at p. 383, 66 Cal.Rptr. at 729, 438 P.2d at 377.) Other factors are (1) the nature and gravity of the offense; (2) the limited size of the community in which the offense was committed and in which the defendant is to be tried; (3) the low or foreign status of the defendant in the community; (4) the popularity and prominence of the victim in the community; and (5) the extent to which the case has become embroiled in local politics. (People v. Salas (1972) 7 Cal.3d 812, 818, 103 Cal.Rptr. 431, 500 P.2d 7; People v. Martinez (1978) 82 Cal.App.3d 1, 13, 147 Cal.Rptr. 208; Maine, supra, 68 Cal.2d at pp. 386-387, 66 Cal.Rptr. 724, 438 P.2d 372; People v. Tidwell (1970) 3 Cal.3d 62, 71, 89 Cal.Rptr. 44, 473 P.2d 748.)

Although three local newspapers covered for more than a year petitioner's pending trial, primarily because of the on-going trial of codefendant Davis, our examination of the facts in the record do not reveal any highly sensational or inflammatory publicity which would render it likely that petitioner would not be accorded a fair trial within Placer County. To hold otherwise under the facts of this case essentially would mean that any defendant facing capital murder charges, obviously sufficiently newsworthy to be followed by the local press, would automatically have a right to venue change. For the reasons which follow, we do not think judicial precedent can be interpreted to have made such inroads into the general rule that a criminal defendant is tried in the county in which the crime was committed.

First, the nature of the murder was not of the same sensational and notorious ilk as has justified venue change in multiple-victim murder cases. (People v. Tidwell, supra, 3 Cal.3d at p. 62, 89 Cal.Rptr. 44, 473 P.2d 748; Frazier v. Superior Court (1971) 5 Cal.3d 287, 95 Cal.Rptr. 798, 486 P.2d 694; Corona v. Superior Court, supra, 24 Cal.App.3d 872, 101 Cal.Rptr. 411.) As reported in the newspapers, the prosecutor's murder theory here was the common scenario of narcotic addicts who robbed a local Roseville bar to obtain money to support their addictions, and during the course of the robbery, petitioner shot the victim in the back as he lay on the floor in the mistaken belief that the victim was a policeman. (Cf. Frazier v. Superior Court, supra, 5 Cal.3d at p. 295, 95 Cal.Rptr. 978, 486 P.2d 694.) Nor do the circumstances of a barroom murder engender the same community shock and indignation as the brutal and senseless murders associated with rape of the victims. (Maine v. Superior Court, supra, 68 Cal.2d at p. 385, 66 Cal.Rptr. 724, 438 P.2d 372; Fain v. Superior Court, supra, 2 Cal.3d at p. 49, 84 Cal.Rptr. 135, 465 P.2d 23.) Although the press reported the fact that the victim was shot in the back, we find no editorial characterization of petitioner as a “cold-blooded” killer.

Second, Placer County is not so small as to render unlikely the selection of an unbiased jury among its populace. With a population approximating 106,500 as of July 1, 1978, the county is not on par with the tiny communities of 51,200 in Mendocino County (Maine, supra, 68 Cal.2d at p. 385, fn. 10, 66 Cal.Rptr. 724, 438 P.2d 372) and of 42,000 in Sutter County. (Corona, supra, 24 Cal.App.3d at p. 876, 101 Cal.Rptr. 411.) Since the City of Roseville is contiguous with the Sacramento Metropolitan area, it also cannot be realistically characterized as remote, isolated, or xenophobic.

Third, petitioner was no stranger to the Roseville community, nor is there any indication in the record that he was a member of an unpopular subculture or otherwise an object of community hatred or vengefulness. (Cf. Frazier v. Superior Court, supra, 5 Cal.3d at p. 295, 95 Cal.Rptr. 978, 486 P.2d 694.) Though petitioner asserts he is a member of an Hispanic minority group, the record is devoid of a showing of anti-Hispanic prejudice in Placer County. (See Corona v. Superior Court, supra, 24 Cal.App.3d at p. 877, 101 Cal.Rptr. 411.) The only potentially prejudicial information about petitioner's past reported by the press was that petitioner had been in the state's rehabilitation center for drug abuse. We find no evidence to support a proposition that the people in Placer County harbor intense resentment against drug users, nor is the fact of prior drug abuse as potentially prejudicial as a press report of an arguably inadmissible confession. (Maine v. Superior Court, supra, 68 Cal.2d at p. 386, 66 Cal.Rptr. 724, 438 P.2d 372; Fain v. Superior Court, supra, 2 Cal.3d at p. 52, 84 Cal.Rptr. 135, 465 P.2d 23.)

Fourth, the victim of the crime was a nonresident from Tracy and of no prominence in the local community. In contrast to the “popular teenagers” in Maine, supra (68 Cal.2d at p. 385, 66 Cal.Rptr. 724, 438 P.2d 372), the “prominent” doctor and his family in Frazier, supra (5 Cal.3d at p. 295, 95 Cal.Rptr. 978, 486 P.2d 694), and the “well-known” members of the community in Tidwell, supra (3 Cal.3d at p. 65, 89 Cal.Rptr. 44, 473 P.2d 748), the victim here did not arouse local public sympathy or “pervasive civic involvement” in the victim's fate. (Cf. Maine, supra, 68 Cal.2d at p. 385, 66 Cal.Rptr. 724, 438 P.2d 372.)

Fifth, the news coverage by the Roseville Press Tribune, Auburn Daily Journal, and Sacramento Bee was for the most part factual in nature and neither highly sensational nor inflammatory. Although petitioner cites 13 press articles dealing primarily with the death penalty aspects of the case as adding an element of sensationalism to the reporting of events and one particular article in the Auburn Journal as implying to prospective jurors that the death penalty was “OK,” we do not think the average juror so naive or spineless as to slavishly adopt the editorializing of one newspaper article nor, as already indicated, do we believe that the fact that a defendant faces the death penalty alone justifies a venue change. The added factor that the newspapers reported the financial difficulties of the county sheriff's office and the recent failure of the prosecutor to attain convictions was not given particularly related to petitioner's case: the recent constitutionally mandated depletion of county coffers is more a state-wide concern. Furthermore, not only will any effect of the publicity of codefendant's Davis' acquittal in August of 1979 have subsided by the time petitioner faces his jury trial, that very acquittal is just as demonstrative of the impartial capacities of the Placer County jurors as not, and certainly generates no reasonable likelihood of unfair trial. We do not consider the circumstances of the bar killing of the type that would become “embedded in the public consciousness” (cf. Maine, supra, 68 Cal.2d at p. 387, 66 Cal.Rptr. 724, 438 P.2d 372), nor do we believe there is any “basis to suppose either that the reports attracted unusual interest in the case at the time they were published, or that, if such interest did exist, it continues to the present.” (Bunnell v. Superior Court (1975) 13 Cal.3d 592, 609, 119 Cal.Rptr. 302, 313, 531 P.2d 1086, 1097.)

Our conclusion is supported by the public opinion survey conducted by the Placer County district attorney's office to determine the effect local newspaper articles may have had on potential Placer County jurors. Although conducted by an interested party, the survey was “qualified” by being “well-conceived, impartially conducted and accurately recorded.” (Corona, supra, 24 Cal.App.3d at p. 882, 101 Cal.Rptr. at p. 418; Maine, supra, 68 Cal.2d at p. 383, 66 Cal.Rptr. at p. 730, 438 P.2d at p. 378; see also, People v. Martinez, supra, 82 Cal.App.3d at p. 14, 147 Cal.Rptr. 208.) Although all opinion surveys may have limited value since they do not match the more controlled conditions of “courtroom examination under oath and under stress of personal responsibility” (Corona, supra, 24 Cal.App.3d p. 882, 101 Cal.Rptr. p. 418), they nevertheless do shed some light on how press coverage affects newspaper readers.

The district attorney's office survey revealed the following: Of the 172 interviewees, 89 percent failed to recognize the name of the case; over half of those who failed to recognize the case by name also failed to recall having read or heard about the particular facts of the case; less than 5 percent had formed any opinion about the petitioner's guilt or innocence, and only 2 percent believed they could not disregard their opinions and decide the case on the evidence presented in court. And approximately 85 percent said that they could decide the case solely on evidence presented in the courtroom. (See People v. Martinez, supra, 82 Cal.App.3d at p. 14, 147 Cal.Rptr. 208.)

Under the present record, we conclude there is no reasonable likelihood that petitioner will not be accorded a fair and impartial trial in Placer County. We so hold without prejudice to petitioner's renewal of the motion if in fact it becomes impossible on voir dire to select a panel of unbiased jurors.

The alternative writ previously issued is discharged and the petition is denied.

I dissent. In my view petitioner's request for a change of venue should be granted because he has demonstrated a “reasonable likelihood that in the absence of such relief, a fair trial cannot be had.” (Maine v. Superior Court (1968) 68 Cal.2d 375, 383, 66 Cal.Rptr. 724, 729, 438 P.2d 372, 377.)

Our review of a writ of mandate must be an independent one, reaching de novo a decision as to the likelihood that defendant can obtain a fair trial. (Maine, supra, 68 Cal.2d at pp. 381-382, 66 Cal.Rptr. 724, 438 P.2d 372; Corona v. Superior Court (1972) 24 Cal.App.3d 872, 875, 101 Cal.Rptr. 411.) “ ‘A showing of actual prejudice shall not be required.’ ” (Maine, supra, 68 Cal.2d at p. 383, 66 Cal.Rptr. at p. 729, 438 P.2d at p. 377.) Rather, the test is whether there is a reasonable likelihood of a fair trial in spite of pretrial publicity. (Ibid.) In turn, “reasonable likelihood” does not mean the prejudice must be “ ‘more probable than not.’ ” (Frazier v. Superior Court (1971) 5 Cal.3d 287, 294, 95 Cal.Rptr. 978, 486 P.2d 694; Steffen v. Municipal Court (1978) 80 Cal.App.3d 623, 625, 145 Cal.Rptr. 782.) Importantly, since the issue is raised prior to trial, doubts must be resolved in favor of venue change. (Corona, 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.)

I

We should be guided in our review by the factors enumerated by the majority. It is as to the application of these legal principles that I am compelled to disagree. I discuss each briefly.

As enunciated by the majority, the first factor is “the nature and gravity of the offense.” The “nature” of the crime involves the peculiar facts which makes it especially inflammatory to a community; the “gravity” of a crime refers to its seriousness in the eyes of the law, and in the possible consequences to the defendant in the case of a guilty verdict. In its application, the majority focuses only on the nature (or sensationalism) of the crime, and not the gravity, characterizing the event as a “common scenario” of a barroom killing. However, the victim was shot in the back while lying on the floor because petitioner mistakenly thought him to be a police officer. This suggests the nature of the crime to be a cold-blooded murder¹ of a policeman rather than a mere “barroom” killing. The majority, in addition, points out that other major venue change cases involved crimes more heinous, notorious or shocking than those crimes for which petitioner is charged. That may be true; however, in all the cases cited, the trial court, assuming gravity, granted a venue change.

As mentioned, the majority disregards the factor of the gravity of the crime, yet this factor is most weighty here. The People, in seeking the death penalty, have transformed what might have been a “common scenario” into the gravest of all offenses. It is not necessary to believe that one facing capital punishment charges should “automatically” be granted a venue change, in order to recognize that a death penalty case is inherently newsworthy. The recent case of Steffen v. Municipal Court, supra, 80 Cal.App.3d 623, 145 Cal.Rptr. 782, suggests the gravity of an offense, even where largely devoid of a sensational nature, should be weighed in terms of its gravity to defendant. In that case, petitioners were granted a venue change on a writ of mandate for their forthcoming trial on charges of prostitution. The newspaper publicity had been neither inflammatory nor had it mentioned petitioners by name. However, there had been long-term publicity concerning petitioners' place of employment as one where prostitution was solicited, and this formed the basis for the requested venue change. The first district concluded: “We recognize that the charged offenses are not of a nature to inflame the community, . . . However, a suspected prostitute is just as much entitled to a fair trial before an impartial jury as is a suspected murderer.” (Id., at p. 627, 145 Cal.Rptr. at p. 784.)

The second factor involves the limited size of the community in which the offense was committed, and in which petitioner is to be tried. The majority compare Placer County, the setting of the instant case, with Mendocino County, the setting of Maine, supra, and conclude that Placer County “is not so small as to render unlikely the selection of an unbiased jury.” Placer County is the 29th most populous of California's counties; at the time Maine was decided, Mendocino County ranked a close 34th. More importantly, Placer County ranks 25th in density compared to Mendocino County which presently ranks 41st. This means that the bulk of Placer County's population is concentrated in the Roseville area where the alleged crime and publicity occurred, whereas Mendocino County's population is more evenly spread throughout the county. Changes of venue have been granted from counties larger than Placer County's 106,500. Petitioner's brief cites Stanislaus County with a population of 184,000 (see Fain, supra, 2 Cal.3d 52, fn. 1, 84 Cal.Rptr. 135, 465 P.2d 23), Santa Cruz County with a population of 123,790 (see Frazier, supra, 5 Cal.3d 293, fn. 5, 95 Cal.Rptr. 978, 486 P.2d 694), and San Mateo County with 575,000 (see Steffen, supra, 80 Cal.App.3d 626, 145 Cal.Rptr. 782). I conclude that the small size of Placer County, while not determinative, is an important factor weighing in favor of venue change.

The third factor is the low, foreign, or minority status of the petitioner in the community. The petitioner, Martinez, is a Chicano (Mexican-American) in a community where Mexican-Americans as well as other ethnic and racial minorities are few in number. Placer County is virtually an “all white” county. Of Placer County's 106,500 residents only 3,020 were classified as Mexican-American by the Department of Labor Statistics. All other ethnic minorities combined added up to only 2,396. These figures become all the more striking when compared to those from nearby Yolo County. Like Placer County, Yolo County is a semi-rural county contiguous with the Sacramento metropolitan area. Yolo County's population is nearly the same as Placer County's 106,200. Yet, Yolo County numbers 10,636 residents of Mexican-American descent and 5,131 residents from other ethnic groups. Thus, Yolo County with a population slightly smaller than Placer County has nearly three times the number of ethnic minorities. We may judicially notice the historic discrimination against Chicanos in our state. (See Castro v. State of California (1970) 2 Cal.3d 223, 85 Cal.Rptr. 20, 466 P.2d 244.) Presumably, chances are greater that the jury will include members of petitioner's ethnic group in a county which has a higher percentage of Chicanos. In addition to being Mexican-American, petitioner was characterized by the press as a heroin addict. Many of the news articles repeated by the prosecutor's theory of the crime, e. g., that the murder was committed in the course of a robbery by heroin addicts seeking to obtain funds to purchase narcotics. That petitioner is a Mexican-American and was described as a heroin addict, while not determinative in and of themselves, must be considered.

Fourth, the victim's status in the community must be weighed. Although the victim was an out-of-towner, his status as a brakeman for Southern Pacific Railroad was such as would arouse sympathy in the Roseville community. Southern Pacific is the largest employer in Roseville and, as is plain to anyone who has passed through Roseville and seen its enormous railroad yards, Roseville is a railroad town. Virtually every newspaper article, in describing the victim, identifies him as “a Southern Pacific brakeman,” indicating that his occupation was a newsworthy fact. The majority distinguishes this victim from the “popular teenagers” in Maine but fail to note that the victims in Corona were anonymous transients. In terms of the victim's potential for arousing community sympathy, the Southern Pacific brakeman probably falls between Maine and Corona. Our duty to resolve doubts in favor of a venue change here tips the balance in petitioner's favor.

The final factor involves the extent and nature of news coverage. The majority points out that the newspaper publicity in this case was not “highly sensational or inflammatory.” The point was made in People v. Tidwell (1970) 3 Cal.3d 62, 89 Cal.Rptr. 44, 473 P.2d 748, however, that “Maine (‘s) press coverage was neither inflammatory nor particularly productive of overt hostility.” (Id. at p. 70, 89 Cal.Rptr. at p. 49, 473 P.2d at p. 753.) Similarly, the coverage in Steffen v. Municipal Court, supra, “has not been inflammatory or particularly hostile, nor has it, in any sense, involved petitioners by name.” (80 Cal.App.3d at p. 626, 145 Cal.Rptr. at p. 783.) In the case at bar the majority admits that “three local newspapers covered for more than a year petitioner's pending trial.” A great many of these articles appeared on page 1, including a page 1 photo of petitioner and his codefendant in chains.

Much of the publicity surrounded the trial of petitioner's codefendant and his subsequent acquittal. The court in Tidwell, supra, also a murder case, regarded as prejudicial the fact that there was publicity regarding an alleged statement made by a codefendant which implicated defendant. The potential for prejudice here is much greater where the codefendant was actually acquitted, thus making it likely that the public would view petitioner as the guilty party.

In addition to publicity about the trial and acquittal of petitioner's codefendant, there was extensive press coverage of the death penalty aspect of this case. Ten articles mentioned “death penalty” in their headlines and one headline in the Auburn Daily Journal proclaimed “Death Penalty OK in Onyx Killing.”

II

Having raised, in my view, serious doubts as to the majority's application of each of the five factors it considered in determining the issue, I reiterate with emphasis the standard of review we must employ. That is, all doubts must be resolved in favor of the petition. Accordingly, I would grant petitioner's writ.

The case law is fairly consistent in upholding a generous and liberal spirit on the issue of change of venue based on potentially prejudicial pretrial publicity especially with respect to pretrial appellate review. “A significant difference between pretrial and posttrial review is that after conviction in determining whether a defendant received a fair and impartial trial under the ‘reasonable likelihood’ standard, the review is retrospective. It extends to an examination of what actually occurred at the trial.” (People v. Martinez (1978) 82 Cal.App.3d 1, 13, 147 Cal.Rptr. 208, 215; emphasis in original.) Maine, the seminal case on this issue, quotes with approval from a United States Supreme Court case, Sheppard v. Maxwell (1966) 384 U.S. 333, 363, 86 S.Ct. 1507, 1522, (16 L.Ed.2d 600, 620): “ ‘(R)eversals are but palliatives' and that ‘the cure lies in those remedial measures that will prevent the prejudice at its inception.’ ” (68 Cal.2d at p. 384, 66 Cal.Rptr. at p. 730, 438 P.2d at p. 378.) “Delays may be an efficacious antidote to publicity in medium-size and large cities, but in small communities, where a major crime becomes embedded in the public consciousness, their effectiveness is greatly diminished.” (Id., at p. 387, 66 Cal.Rptr. at p. 732, 438 P.2d at p. 379, fn. omitted.) “Any lingering doubt about the effectiveness of a continuance should be resolved in favor of a venue change.” (Id., at pp. 387-388, 66 Cal.Rptr. at p. 732, 438 P.2d at p. 379.)

If “any lingering doubt” remains as to the need for a venue change, it is provided by Penal Code section 190.1, which requires a two-phase proceeding to determine first the guilt, then the penalty, of a defendant accused of murder. While the jurors are cautioned to consider only the evidence properly before them in the guilt phase, there is no such caution at the penalty stage. The effect of this differentiation on the question of venue change, was articulated in People v. McKay (1951) 37 Cal.2d 792, 799, 236 P.2d 145, 150: “By law the determination of the penalty is left solely to the discretion of the jury (Pen.Code, s 190), and accordingly, it was of vital importance that they should exercise that discretion free from bias, prejudice, or pressure from the community.”

I would let the writ issue.

FOOTNOTES

FOOTNOTE.  

1.  The majority states that no editorial characterized the defendant as a “cold-blooded killer.” I believe the “nature of the offense” is a factor we should evaluate de novo, independent of the decision of local newspaper editors.

DeCRISTOFORO, Associate Justice.* FN* Assigned by the Chief Justice.

PUGLIA, P. J., concurs.