# People v. Williams > California Supreme Court · June 22, 1989 · 48 Cal. 3d 1112 URL: https://www.frixlaw.com/law-library/cases/9549855 ## Case - **Full name:** The PEOPLE, Plaintiff and Respondent, v. KENNETH DERREL WILLIAMS, Defendant and Appellant; In Re KENNETH DERRELL WILLIAMS on Habeas Corpus - **Court:** California Supreme Court - **Decided:** June 22, 1989 - **Citations:** 48 Cal. 3d 1112; 259 Cal. Rptr. 473; 774 P.2d 146; 1989 Cal. LEXIS 1479 - **Precedential status:** Published - **Opinion:** Concurrence by Eagleson - **Judges:** Kaufman - **Cited by:** 52 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9549855 ## Opinion text *1140 EAGLESON, J. I concur in the judgment insofar as it reverses the judgment of conviction and denies the petition for writ of habeas corpus. I dissent, however, from the remainder of the judgment which, on remand, directs the trial court to initiate proceedings to transfer the matter for retrial in another county. The record supports the conclusion of the majority that the trial court erred in denying defendant’s motion for change of venue, and the further conclusion that the error resulted in prejudice to the defendant’s ability to select an impartial jury. In directing the trial court to transfer the case for retrial, however, the majority fail to recognize that this is all we decide when resolving an appellant’s claim of error in denying a motion for a change of venue. We do not decide whether, assuming the defendant continues to desire a change of venue, there is presently evidence sufficient to warrant a change. (Pen. Code, § 1033, subd. (a).) Moreover, the majority forget that the error in denying the motion alone is not the basis for reversal of the judgment. It is the prejudicial effect of the error on defendant’s 1981 trial that mandates reversal. (Cal. Const., art. VI, § 13; People v. Bean (1988) 46 Cal.3d 919, 942 [ 251 Cal.Rptr. 467 , 760 P.2d 996 ]; People v. Balderas (1985) 41 Cal.3d 144, 178 [ 222 Cal.Rptr. 184 , 711 P.2d 480 ]; People v. Harris (1981) 28 Cal.3d 935, 949 [ 171 Cal.Rptr. 679 , 623 P.2d 240 ].) Neither the error in denying defendant’s 1981 motion, nor its prejudicial impact at that time, however, speaks to whether defendant can obtain a fair trial in Placer County in 1989. By directing the trial court to transfer the case for retrial, the majority do more than reverse the judgment. They order the trial court to grant the motion regardless of whether a fair trial can now be held in Placer County. This order is contrary to the command of Penal Code section 1261, which directs: “ When a new trial is ordered it must be directed to be had in the court of the county from which the appeal was taken.” (Italics added.) The order also contravenes the express legislative intent that a ruling granting a motion for change of venue is subject to reconsideration if conditions in the county of original venue have changed prior to the actual transfer. Penal Code section 1036.5, while directed to the power of the trial court, reflects a policy with which the order of this court is inconsistent. Penal Code section 1036.5 states: “Following the resolution of pre-trial motions, and prior to the issuance of an order under Section 1036 or the transmittal of the case file for the purpose of trial to the court to which venue has been ordered transferred, the court may, upon its own motion or the motion of any party and on appropriate notice to the court to which venue has been transferred, set aside its order to change venue on the ground *1141 that the conditions which originally required the order to change venue, as set forth in Section 1033 or 1034, no longer apply.” (Italics added.) By directing the transfer, the majority nullify the authority of the trial judge to determine whether a fair and impartial trial can now be held in Placer County. The majority offer neither authority nor explanation for this departure from the statutory command that the case be returned to Placer County or for the invasion of the trial court’s prerogative to determine the proper venue. 1 Eight years have passed since the trial in this case. There is no reason to believe that the publicity which pervaded the community in 1981 has continued or will be renewed. The small size of a county should not give rise to a presumption that a defendant cannot obtain a fair trial in a publicized case, particularly one in which the interest of the media and the public may well have diminished by the time of trial. The assumption apparently underlying the belief of the majority that a transfer is necessary is particularly inapt in this case since Placer County is one of the fastest growing counties in the state and may now provide a fully adequate jury pool. 2 I would reverse and remand without directions. (See Pen. Code, § 1262.) On remand to Placer County defendant would be free to renew his motion for change of venue, and the superior court free to evaluate it in light of contemporary conditions. The defendant’s rights would, therefore, be fully protected. The estimated 1988 population of Placer County is 151,800, a substantial increase over the 1980 figure of 117,247. The projected population in 1990 is 167,568. (Horner (edit.), Cal. Cities, Towns, & Counties (1989) p. 481.) --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9549855. Public record. Not legal advice.