Martinez v. Superior Court

RICHARDSON, J.

I respectfully dissent, believing that Placer County can afford a fair trial to petitioner.

Generally, a change of venue is granted when the defendant demonstrates a reasonable likelihood that in the absence of such relief, such an impartial trial cannot be had. (People v. Welch (1972) 8 Cal.3d 106, 113 [ 104 Cal.Rptr. 217 , 501 P.2d 225 ]; Frazier v. Superior Court (1971) 5 Cal.3d 287, 294 [ 95 Cal.Rptr. 798 , 486 P.2d 694 ]; Maine v. Superior Court (1968) 68 Cal.2d 375, 383 [ 66 Cal.Rptr. 724 , 438 P.2d 372 ].) It is our duty to make an independent evaluation of the record and to satisfy ourselves de novo that the defendant can obtain a fair and impartial trial, considering the nature and gravity of the offense, the size of the community, the status of the defendant in the community, the popularity and prominence of the victim, and the nature and extent of the news coverage. (People v. Salas (1972) 7 Cal.3d 812, 818 [ 103 Cal.Rptr. 431 , 500 P.2d 7 , 58 A.L.R.3d 832 ].) Considering carefully all of these pertinent factors, I eonclude that petitioner has failed to establish a reasonable likelihood that he will not be able to obtain an unbiased jury in Placer County.

The charged homicide was, allegedly, a drug-related shooting incident to a robbery at a bar. Although murder is a crime of the utmost gravity, this particular offense was neither sensational in nature nor did it arouse the same sense of community shock or indignation generally associated with cases in which change of venue has been granted. (See, e.g., Frazier v. Superior Court, supra, 5 Cal.3d 287 ; People v. Tidwell (1970) 3 Cal.3d 62 [ 89 Cal.Rptr. 44 , 473 P.2d 748 ]; Maine v. Superior Court, supra, 68 Cal.2d 375 ; Corona v. Superior Court (1972) 24 Cal.App.3d 872 [ 101 Cal.Rptr. 411 ] [involving bizarre, sensational, and multiple victim murder cases].) It differed little from the all too numerous killings routinely occurring in California, 2,941 in 1979. (Cal. Dept. of Justice, Crim. Justice Profile (1979) p. 22.)

*587 Secondly, Placer County is neither so small nor unsophisticated as to render unlikely the selection of an unprejudiced jury from its populace. Connected by California’s major freeways, this highly mobile community stretches from the Sacramento metropolitan area (population approaching 1 million) to the Nevada state line. It is served by numerous television and radio stations, and several newspapers. With a population in excess of 109,000, Placer County is the home of industry, agriculture, and popular resort areas. Many of its people, while living in Placer County, work in the Capital of California, commuting daily. Its industries include electronics, a major railroad, fruit, lumber product manufacturers and resort activities. Its people are neither parochial nor xenophobic but both informed and representative. Far from being remote or isolated, it is traversed by U.S. Highway 80, one of the nation’s busiest transcontinental highways. It may be accurately described as very much in the mainstream of modern California life.

There are no particular facets of either the defendant or victim which are likely to generate community antipathy towards the defendant or sympathy towards the victim. The defendant’s status as a Mexican-American does not make him the object of any community hatred por is he a member of any unpopular subculture. (Cf. Frazier, supra, at p. 295 .) Placer County is a community of many ethnic groups, including Japanese, Chinese, blacks, American Indians, and Filipinos. I find significance in the fact that petitioner’s codefendant, who was acquitted by a panel of Placer County jurors, was of Indian and Mexican descent, and in the absence of any showing of anti-Hispanic prejudice, there is no reason to believe that petitioner’s minority status would prohibit his receiving a fair trial in Placer County. Additionally, as in People v. Hathcock (1973) 8 Cal.3d 599, 620 [ 105 Cal.Rptr. 540 , 504 P.2d 476 ], in which we upheld denial of a change of venue, petitioner is no stranger or newcomer to the county and thus no additional prejudice is engendered.

The victim, on the other hand, was a stranger, a nonresident transient worker with no particular prominence in Placer County. His fate drew no particular expressions of broad public sympathy or community antipathy towards petitioner, in marked contrast to the victims in Maine, Frazier or Tidwell . For example, in Maine the victims were described as “prominent” and “a popular teenage couple from respected families in the area.” (68 Cal.2d at pp. 388, 385); in Frazier , the victims were “prominent local citizens” ( 5 Cal.3d at p. 293 ); in Tidwell the victims were described as “well known members of the community,” and it was *588 noted that the husband was a member of one of the oldest families in the valley and the brother-in-law of the sheriff, while his wife worked in a local drugstore and was known to many members of the community ( 3 Cal.3d at p. 65 ). In the case before us, as in other cases in which a change of venue has been found unnecessary, there was nothing about the victim that was likely to engender marked community feeling for the victim or against his accused assailants. (Hathcock, supra, at p. 620 ; People v. Sommerhalder (1973) 9 Cal.3d 290, 304 [ 107 Cal. Rptr. 289 , 508 P.2d 289 ].)

The majority stresses that the victim was employed as a Southern Pacific Railroad Company brakeman, noting that the railroad is the largest employer in Roseville. However, jurors will be summoned from throughout the entire county’s population, of which Southern Pacific employs less than 2 percent. It is hardly likely that the county would see this case as the murder of “one of us.” In my view, any sharpened loyalties or sympathy generated by the victim’s employment may be appropriately identified and challenged on voir dire.

Finally, the pretrial publicity in this case fails to disclose that petitioner will be unable to obtain a fair and impartial trial. The news articles and releases were no different in degree or intensity than the usual reporting of any homicide of this type. (People v. Carter (1961) 56 Cal.2d 549, 572 [ 15 Cal.Rptr. 645 , 364 P.2d 477 ]; People v. Mendes (1950) 35 Cal.2d 537, 542 [ 219 P.2d 1 ].) Maine focused primarily upon “prejudicial newspaper publicity which either caused or reflected widespread hostility to the defendant in the community,” suggesting that in determining whether a reasonable likelihood of prejudice exists in a particular case, the court must consider the “extent of the hostility engendered toward a defendant.” (Maine, supra, at pp. 382, 388 .)

As acknowledged by the majority, the extent and nature of the news coverage was neither highly sensational nor inflammatory. The absence of any hostility in the press accounts before us stands in sharp contrast with the adverse publicity and public sentiments expressed in the Corona and Frazier cases in which changes of venue were ordered.

Many of the news articles emphasized by petitioner involve totally unrelated cases, and others only vaguely refer to the charged offense before us. Those that report on petitioner’s case are, for the most part, accurate factual accounts of the preliminary proceedings which would not attract unusual interest in this case. Only one article describes the *589 bar as the “scene of a cold-blooded killing.” In my view, any potentially prejudicial impact of this one article is hardly determinative. Similarly, the fact that the case is one which may invoke the death penalty does not, standing alone, constitute sufficient reason for a change of venue. Several articles describing the district attorney’s lack of an adequate budget and staffing, have, of course, statewide implications and any remote influence these facts might have upon prospective jurors would exist in any venue in the state.

As noted, petitioner’s codefendant was tried in Placer County, and acquitted with an alibi defense. The pretrial publicity in that case presented no difficulty in the selection of impartial jurors. These jurors demonstrated no difficulty overcoming any prejudice arising from the “execution-type” murder charged against a minority defendant. Petitioner has also asserted an alibi defense, and the fact that his codefendant was acquitted and pointed the finger at petitioner does not, in my view, itself constitute such additional pretrial prejudice as would outweigh the demonstrated impartiality of Placer County jurors in acquitting that codefendant.

I also find significance in the fact that nearly three years have passed since the offense, and it is reasonable to believe that any pretrial publicity will have subsided by the time of petitioner’s trial. It is a sad fact that in the interim period many other homicides have been committed. In this connection, the Placer County District Attorney’s office conducted a study of potential jurors (see People v. Martinez (1978) 82 Cal.App.3d 1 [ 147 Cal.Rptr. 208 ]), which study concluded that 89 percent of those interviewed failed to recognize the name of the case. Over half of those failed to recall having either read or heard about the case when it was described to them; less than 5 percent had formed any opinion of guilt or innocence; and 85 percent believed they could decide the case solely on evidence presented in the courtroom.

I thus conclude on the record before us that it is probable that petitioner would be able on voir dire to select a panel of unbiased jurors from prospective jurors drawn in Placer County.

In Hovey v. Superior Court (1980) 28 Cal.3d 1 [ 168 Cal.Rptr. 128 , 616 P.2d 1301 ], we adopted a special procedure for capital cases (individualized voir dire) to achieve the very goal we seek to advance here—a fair and impartial jury. The assertions of the majority as to the potential prejudice of pretrial publicity in this particular case are, at *590 this point, purely speculative, properly tested on voir dire. If the trial court on voir dire becomes persuaded that an impartial jury cannot be obtained a motion for change of venue can then be entertained and granted.

The record before us reflects that the charged offense was not so spectacular or bizarre as to have aroused the attention of the community; the defendant is relatively obscure; the victim lacked prominence; the community from which the jury will be drawn is of average size; the pretrial publicity was neither sensational nor inflammatory; and there has been a very substantial time lapse. These factors in combination persuade me that the motion for change of venue should be denied at this point. The record does not suggest any reasonable likelihood that Placer County cannot give defendant a trial that is as impartial and fair as any trial that he would receive in any other county in the state. I would retain the cause in Placer County until that inability became reasonably demonstrable.

Mosk, J., concurred.

The petition of real party in interest for a rehearing was denied July 15, 1981. Rattigan, J., * and Hanson (P. D.), J.,* participated therein. Mosk, J., and Richardson, J., were of the opinion that the petition should be granted.

Assigned by the Chairperson of the Judicial Council.