Griffin v. Superior Court

• Citation: 26 Cal.App.3d 672,103 Cal.Rptr. 379
• Court: California Court of Appeals
• Decision Date: 11 July 1972
• Parties: Donald Paul GRIFFIN, Petitioner, v. The SUPERIOR COURT of the State of California, FOR the COUNTY OF STANISLAUS, Respondent. The PEOPLE of the State of California, Real Party in Interest. Civ. 1735.

Page 379

103 Cal.Rptr. 379

26 Cal.App.3d 672

Donald Paul GRIFFIN, Petitioner, v. The SUPERIOR COURT of the State of California, FOR the COUNTY OF STANISLAUS, Respondent.

The PEOPLE of the State of California, Real Party in Interest.

Civ. 1735.

Court of Appeal, Fifth District, California.

July 11, 1972.

Hearing Denied Sept. 7, 1972.

[26 Cal.App.3d 678] Michael Korn, Sherman Oaks, for petitioner.

Evelle J. Younger, Atty. Gen., Herbert L. Ashby, Chief Asst. Atty. Gen., Doris H. Maier, Asst. Atty. Gen., Daniel J. Kremer and James T. McNally, Deputy Attys. Gen., Sacramento, for respondent and real party in interest.

GEO. A. BROWN, Associate Justice.

Petitioner, Donald Paul Griffin, seeks writs of mandamus and prohibition directed to the Superior Court of Stanislaus County after denial by that court of multiple pretrial motions on the eve of his second trial on a murder charge. He also seeks reversal of the trial court's order fixing bond for petitioner in the sum of $150,000 cash or corporate surety or $300,000 personal undertaking.

On August 22, 1969, petitioner was found guilty of first degree murder by a jury and he was sentenced to life imprisonment by the court (Pen.Code, § 190.1). His appeal to this court resulted in the judgment of conviction being reversed for errors grounded on the court's failure to have given certain instructions Sua sponte. (People v. Donald Paul Griffin, 18 Cal.App.3d 864, 96 Cal.Rptr. 218, filed July 22, 1971.)

Petitioner filed four motions in the trial court. They were:

1. A motion to change venue from Stanislaus County.

2. A motion to exclude as witnesses on behalf of the prosecution at petitioner's retrial those witnesses disclosed to the prosecution by petitioner's former counsel.

3. A motion pursuant to Penal Code sections 1538.5 and 1540 to suppress evidence obtained pursuant to search warrants.

4. A motion to suppress certain incriminatory statements taken by the police from petitioner allegedly in violation of his Miranda rights. (Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.)

All motions were denied. We shall consider them seriatim.

CHANGE OF PLACE OF TRIAL

The victim of the murder for which petitioner was convicted was one Albert Zamlich, a resident of Sunnyvale, Santa Clara County. His body was found in Del Puerto Canyon, a remote mountainous area just over the Stanislaus County line, on the early morning of May 28, 1969. At the time petitioner was a resident of Santa Clara County. However, he had spent his youth in Stanislaus County. His mother, his present stepfather and grandparents reside in Livingston. When 14 years of age, in 1953, in Modesto, he shot and killed his stepfather. He was found criminally responsible for that act and served time in the Youth Authority. In 1958 he was convicted in the brutal, unprovoked assault with a hammer on another person who was not acquainted with petitioner. Though the victim's skull was crushed and he was near death for a time, he did not lose his life, though he has never fully recovered. As a result of the latter incident that petitioner served 10 years in the penitentiary. He had been out about six months at the time of the Zamlich homicide.

Because petitioner went through a penalty trial after his conviction of murdering Zamlich at the first trial, the sordid details of these prior offenses and petitioner's personal history were fully aired before a jury. They were reported in the widely circulated newspaper, 'The Modesto Bee,' on almost a daily basis.

A Modesto Pathologist who examined the body of the victim shortly after it was discovered was quoted by 'The Modesto Bee' on May 28, 1969, as having described the slaying as 'the most brutal and calculated I have ever seen' and 'Torture has to be considered.' The victim had a wound resulting from firing a .38 caliber revolver jammed into the ear canal and three additional bullet wounds in the body. He also had a wound which appeared to result from ramming a sharp instrument into the other ear canal until it reached bone.

In support of the motion to change the place of trial, petitioner has submitted a Between the date of petitioner's arrest on May 29, 1969, until his conviction and sentencing on September 14, 1969, there were 24 articles published, covering 307 1/2 column inches not including headlines. Of these, 11 included reference to and discussion of petitioner's 1953 and 1958 convictions and his history of criminality. There can be little question that during August 1969 petitioner's trial was one of the major news events in Modesto and Stanislaus County. All details of the trial, conviction and sentencing were reported on a day-to-day basis. When the trial court pronounced sentence, the paper carried a front page article with a large headline followed by the word 'Bulletin.'

total of 40 news clippings taken from 'The Modesto Bee,' the principal newspaper in Stanislaus County. Eleven of the articles are dated between 1953 and October 1958 and relate to the earlier crimes. Because of their remoteness, they are obviously of little significance with respect to the current motion.

Between September 4, 1969, through March 2, 1972, there were five articles published, four of which included commentary concerning the 1953 and 1958 convictions, two of which included reference to evidence which was ruled inadmissible at the first trial and four of which discussed in some detail his 1969 conviction; two referred to this court's reversal of the 1969 conviction.

In approaching the motion to change venue on the ground of prejudicial pretrial publicity, we refer briefly to some of the principles established by the cases. A succinct statement of the criteria to be followed was stated by this court in Lansdown v. Superior Court (1970) 10 Cal.App.3d 604, at page 609, 89 Cal.Rptr. 154, at page 157:

'The standard against which we measure the record is articulated in Fain v. Superior Court, 2 Cal.3d 46, 51, 84 Cal.Rptr. 135, 137, 465 P.2d 23, 25: 'In making that appraisal the courts must now apply the standard we adopted in Maine (v. Superior Court) (68 Cal.2d 375 at p. 383, 66 Cal.Rptr. (724) at p. 729, 438 P.2d (372) at p. 377): "A motion for change of venue or continuance shall be granted whenever it is determined that because of the dissemination of potentially prejudicial material, there is a Reasonable likelihood that in the absence of such relief, a fair trial cannot be had . . .. A showing of actual prejudice shall not be required.""

'Reasonable likelihood' of prejudice does not mean that prejudice must be 'more probable than not' (Frazier v. Superior Court (1971) 5 Cal.3d 287, 294--295, 95 Cal.Rptr. 798, 486 P.2d 694).

In assaying the record against this standard, this court must make an independent evaluation of the evidence as in a de novo proceeding and arrive at an independent judgment. It is not an abuse of discretion review (Maine v. Superior Court (1968) 68 Cal.2d 375, 382, 66 Cal.Rptr. 724, 438 P.2d 372; Fain v. Superior Court (1970) 2 Cal.3d 46, 51, 84 Cal.Rptr. 135, 465 P.2d 23; Corona v. Superior Court (1972) 24 Cal.App.3d 872, 875, 101 Cal.Rptr. 411). Preference is given to a determination of the question before trial and doubts should be resolved in favor of granting the motion. (Fain v. Superior Court, supra, 2 Cal.3d 46, 54, 84 Cal.Rptr. 135, 465 P.2d 23.)

In this case the significant factors are:

First, the size of the county. Stanislaus County has been judicially recognized as not being of such seize as to disregard or be indifferent to a barrage of publicity detailing a serious crime. (Fain v. Superior Court, Supra, 2 Cal.3d 46, 84 Cal.Rptr. 135, 465 P.2d 23.) The size of the area and population of Kern County and Bakersfield, which are considerably larger than Stanislaus County and Modesto, has been held to be inadequate to sufficiently dissipate the impact of adverse publicity surrounding a criminal trial (Lansdown v. Superior Court, Supra, 10 Cal.App.3d 604, 609, 89 Cal.Rptr. 154). In Corona v. Superior Court, Supra, 24 Cal.App.3d 872, at page 883, 101 Cal.Rptr. 411, at page 419, with The second important consideration in this case is the gravity of the offense involved. This factor is particularly salient since it is a retrial after a conviction of first degree murder before a jury in this relatively small community. In addition to the wide publicity of that conviction and sentence, the twelve jurors who sat on that trial have since been free to disseminate further extrajudicial comment among the populace.

respect to the population factor, the court wisely stated: 'At this point community population becomes a factor. The potential of community bias mounts in direct ratio to the pervasiveness of publicity. Delay may counteract publicity in medium-size and larger cities, but in small communities, where a major crime becomes embedded in the public consciousness, the effectiveness of delay is diminished.' (Fn. omitted.)

Thirdly, very significant in this context is the persistent and repeated reference in the various newspaper articles to petitioner's prior criminal record, including the 1953 murder of his stepfather and the 1958 brutal assault on a stranger and the reference to the ten years he spent as a felon in a penitentiary.

It is true, as respondent alleges, that the newspaper reports were factual rather than inflammatory. But, 'A reasonable likelihood of unfairness may exist even though the news coverage was neither inflammatory nor productive of overt hostility.' (Corona v. People, Supra, 24 Cal.App.3d at page 877, 101 Cal.Rptr. at page 414.)

Respondent emphasizes the time that elapsed between the time of the 1953 murder and the 1958 assault and the current trial. No doubt, as we have indicated, if there had been no reference to petitioner's prior criminality in the current publicity or during the penalty phase of his first trial, those acts would be too obscure and remote to be weighed. However,...