“The usual problem with accomplice testimony — that it is consciously self-interested and calculated — is not present in an out-of-court statement that is itself sufficiently reliable to be allowed in evidence.”
How later courts described this case
- “The usual problem with accomplice testimony — that it is consciously self-interested and calculated — is not present in an out-of-court statement that is itself sufficiently reliable to be allowed in evidence.”
- no constitutional violation in limiting cross-examination where defendant had adequate opportunity to challenge witness’s credibility
Written by the judges who cited it.
The opinion
MOSK, J.,
Concurring.—I concur in the judgment. After review, I have found no error warranting reversal.
I write separately because I am troubled by the majority’s treatment of defendant’s contention that the trial court erred by denying his motion for change of venue.
To be sure, in the past our opinions have at times been somewhat ambiguous on the proper method of analysis for such a claim on appeal, appearing to conflate the logically separate questions of whether error was committed and, if so, whether reversal is required. (See, e.g., People v. Williams (1989) 48 Cal.3d 1112, 1125-1126 [ 259 Cal.Rptr. 473 , 774 P.2d 146 ]; People v. Adcox (1988) 47 Cal.3d 207, 231 [ 253 Cal.Rptr. 55 , 763 P.2d 906 ]; People v. Balderas (1985) 41 Cal.3d 144, 177 [ 222 Cal.Rptr. 184 , 711 P.2d 480 ]; People v. Harris (1981) 28 Cal.3d 935, 948-949 [ 171 Cal.Rptr. 679 , 623 P.2d 240 ] (plur. opn.).) Now, however, the principles are clear. (See People v. Douglas (1990) 50 Cal.3d 468, 541-542 [ 268 Cal.Rptr. 126 , 788 P.2d 640 ] (conc. opn. of Mosk, J.); People v. Cooper (1991) 53 Cal.3d 771, 805-806 [ 281 Cal.Rptr. 90 , 809 P.2d 865 ].)
Penal Code section 1033 provides in relevant part that “the court shall order a change of venue,” “[o]n 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.” {Id., subd. (a).)
As I explained in my concurring opinion in People v. Douglas, supra, 50 Cal.3d 468 , “When a defendant claims on appeal that a ruling denying a change-of-venue motion was erroneous, the first question, obviously, concerns whether the ruling was in fact such. The relevant inquiry is: Was there a reasonable likelihood that a fair and impartial trial could not be had in the county? This inquiry, of course, focuses on the ruling itself and the record on which it was made. It does not look to subsequent matters, such as the voir dire of prospective jurors.
“The second question—which must be resolved if error is found—concerns whether reversal is required. The relevant inquiry then becomes: Is *1254 there a reasonable likelihood that a fair and impartial trial was not in fact had in the county? This inquiry may consider pertinent matters subsequent to the challenged ruling. Only if the answer is affirmative must reversal be ordered.” (People v. Douglas, supra, 50 Cal.3d at p. 542 , italics in original (conc. opn. of Mosk, J.); accord, People v. Cooper, supra, 53 Cal.3d at pp. 805-806.)
The crucial phrase “reasonable likelihood” “means something less than ‘more probable than not[,]’ ” but “something more than merely ‘possible.’ ” (People v. Bonin (1988) 46 Cal.3d 659, 673 [ 250 Cal.Rptr. 687 , 758 P.2d 1217 ].)
On appeal, a ruling denying a change-of-venue motion is subject to independent review. (See generally People v. Bonin, supra, 46 Cal.3d at pp. 676-677.) Plainly, the reasonable likelihood vel non of a fair and impartial trial is a mixed question of law and fact; moreover, the issue is predominantly legal and also implicates constitutional rights. The determination of such a question is scrutinized de novo. (E.g., People v. Louis (1986) 42 Cal.3d 969, 987 [ 232 Cal.Rptr. 110 , 728 P.2d 180 ].)
In this case, I have some doubts about the majority’s conclusion that the trial court’s denial of defendant’s change-of-venue motion was not erroneous. After independent review, it appears at least arguable that at the time of the ruling, there was indeed a reasonable likelihood that a fair and impartial trial could not be obtained in the county. Indeed, at the hearing a sociological expert gave testimony, based on á survey he had conducted, that suggested that about 20 percent of the prospective jurors would have to be excused for cause for actual bias. Although the majority do not acknowledge the fact, the survey was commissioned by the People and the expert testified on their behalf
But even if the trial court did indeed err, I do not believe that reversal is required. There was not a reasonable likelihood that a fair and impartial trial was not in fact obtained. Certainly, the voir dire of the prospective jurors who were subsequently sworn to try the case supports only one conclusion, viz., that they were indeed fair and impartial. Defendant does not—and cannot—claim otherwise.
Accordingly, having found no prejudicial error in the trial court’s denial of defendant’s motion for change of venue or in any other matter, I concur in the judgment.
Appellant’s petition for a rehearing was denied September 25, 1991, and the opinion was modified to read as printed above.