“[D]efendant lacks standing to object to any perceived violation of [the witness’s] privilege against self-incrimination. That right is personal, and may not be vicariously asserted by another.”
How later courts described this case
- “[D]efendant lacks standing to object to any perceived violation of [the witness’s] privilege against self-incrimination. That right is personal, and may not be vicariously asserted by another.”
- “the exclusion is based on the idea that coerced testimony is inherently unreliable, and that its admission therefore violates defendant’s right to a fair trial”
Written by the judges who cited it.
Later courts went against this
Overruled on other grounds by People v. Marshall, 50 Cal. 3d 907 (1990)
50 Cal.3d 468, 539 , abrogated on other grounds in People v. Marshall (1990) 50 Cal.3d 907, 933, fn. 4
The opinion
MOSK, J.
I concur in the judgment. After reviewing the record, I can find no error requiring reversal.
I write separately to state clearly what I believe to be the proper method of analysis on appeal for a claim that the trial court erred by denying a motion for change of venue under Penal Code section 1033 (hereafter section 1033). Our opinions have at times been somewhat ambiguous on this point, appearing to conflate the logically separate questions of whether error was committed and, if so, whether reversal is called for. (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.).) In my view, the issue should be addressed as follows.
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 *542 appears that there is a reasonable likelihood that a fair and impartial trial cannot be had in the county.” (Id., subd. (a).)
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 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.
In this case, I agree with the majority that the court’s denial of defendant’s motion for change of venue was not erroneous, and was certainly not reversible. I also agree with them that no other error requiring reversal appears. Accordingly, I concur in the judgment.
Broussard, J., concurred.
Appellant’s petition for a rehearing was denied June 21, 1990, and the opinion was modified to read as printed above.