Maine v. Superior Court of Mendocino County

Decision Date18 March 1968
Docket NumberS.F. 22588,22589
Citation66 Cal.Rptr. 724,68 Cal.2d 375,438 P.2d 372
CourtCalifornia Supreme Court
Parties, 438 P.2d 372 Leonard Eugene MAINE, Petitioner, v. The SUPERIOR COURT OF MENDOCINO COUNTY, Respondent; The PEOPLE, Real Party in Interest. Thomas Eugene BRAUN, Petitioner, v. The SUPERIOR COURT OF MENDOCINO COUNTY, Respondent; The PEOPLE, Real Party in Interest.

John W. Poulos, Merle P. Orchard, under appointment by the Supreme Court, and Newell Rawles, Ukiah, for petitioners.

Thomas C. Lynch, Atty. Gen., Albert W. Harris, Jr., Asst. Atty. Gen., Edward P. O'Brien and Derald E. Granberg, Deputy Attys. Gen., for respondent and real party in interest.

MOSK, Justice.

Petitioners, Leonard E. Maine and Thomas E. Braun, seek writs of mandate directed to the Superior Court of the County of Mendocino. By grand jury indictment they are each accused of murder (Pen.Code, § 187), two counts of kidnaping (Pen.Code, § 207), forcible rape (Pen.Code, § 261, subd. 4) and assault with intent to commit murder (Pen.Code, § 217). Petitioners each filed a timely motion under section 1033 of the Penal Code for a change of venue on the ground that a fair and impartial trial could not be had in Mendo cino County. 1 The trial court found there could be a fair and impartial trial and denied the motions.

In this proceeding petitioners request that we review the trial court's orders and direct that the venue be changed. The case at bench is one of first impression in this jurisdiction; this court has not heretofore entertained applications for mandamus relief before trial to compel a change of venue. As will appear, we conclude that mandate lies to test a nonappealable order denying a change of venue; we further conclude that petitioners' affidavits and exhibits persuasively demonstrate the need in this case for the mandamus relief requested.


While mandate has not been employed previously to compel a change of venue, the remedy has been adapted to a spectrum of pretrial circumstances and in each instance was found to be consistent with traditional criteria for issuance of the extraordinary writ. We deemed mandate a proper procedure to require a trial court to give a defendant before trial an opportunity to inspect and copy statements made by him to law enforcement officers (Cash v. Superior Court (1959) 53 Cal.2d 72, 75, 346 P.2d 407; Powell v. Superior Court (1957) 48 Cal.2d 704, 707, 312 P.2d 698) and to have the benefit of discovery of other prosecution evidence (Funk v. Superior Court (1959) 52 Cal.2d 423, 340 P.2d 593). Mandate has been considered appropriate to compel a trial court to permit hypnotic examination of a defendant in order to adequately prepare for trial (Cornell v. Superior Court (1959) 52 Cal.2d 99, 338 P.2d 447, 72 A.L.R.2d 1116); to compel dismissal of a criminal action not brought to trial within the time required by law (Harris v. Municipal Court (1930) 209 Cal. 55, 285 P. 699); to compel dismissal where a defendant has been denied the constitutional right to a speedy trial (Zamloch, For and on Behalf of Cowan v. Municipal Court (1951) 106 Cal.App.2d 260, 235 P.2d 25); and on two occasions reviewing courts have employed mandamus to require transfer of a case from one court to another (Gomez v. Superior Court (1958) 50 Cal.2d 640, 328 P.2d 976; Smith v. Municipal Court (1959) 167 Cal.App.2d 534, 334 P.2d 931).

The common thread woven through the foregoing examples of mandamus antedating trial is the responsiveness of appellate tribunals when initiative is required to protect a defendant's fundamental right to a fair trial. Availability of appeal often falls short of sufficient protection, since 'the burden, expense and delay involved in a trial render an appeal from an eventual judgment an inadequate remedy.' (Brown v. Superior Court (1949) 34 Cal.2d 559, 562, 212 P.2d 878, 880.) 2

It is neither novel nor inappropriate, therefore, for this court to review through a mandate proceeding a pretrial order which is likely to substantially affect a defendant's right to a fair trial. In civil actions, furthermore, the Legislature in 1961 enacted a specific provision making mandate available to review trial court orders granting or denying a change of venue. (Code Civ.Proc. § 400.) A fortiori similar review should apply to assure a fair trial in criminal cases where life and liberty are the premium.

But the People, who are the real party in interest, insist that mandate should not lie 'for very practical reasons': first, mandamus review will unduly prolong trial settings because most defendants will seek a writ of mandate if their motion for change of venue is denied; second, the present petitioners have an adequate remedy at law because the trial court denied their motion without prejudice to its renewal in the event that Voir dire examination of prospective jurors indicates that it is impossible to empanel a fair and impartial jury. We find neither of these contentions persuasive.

Conceding that some defendants who unsuccessfully seek a change of venue at the trial level will apply for a writ of mandate in appellate courts, the delay in the commencement of their trials will not be significant. 3 If the applications are frivolous or dilatory, the reviewing court may summarily deny relief. On the other hand, if the application has merit, the reviewing court must either grant the writ or issue a show cause order. (Cal. Rules of Court, rule 56(c).) Any delay that occurs pending appellate determination will be compensated in most cases, should the defendant be found guilty after a long and costly trial, by providing a substantial safeguard against subsequent reversal on appeal for failure to have changed the venue. We do not foresee, in short, that mandamus proceedings to compel a change of venue will deleteriously affect the administration of justice. 4

The People also contend that petitioners Maine and Braun have an adequate remedy at law in that the trial court denied their motion for a change of venue without prejudice to its renewal 'if the facts should so warrant.' It has long been the practice, sanctioned in the decisions of this court (see, e.g., People v. Kromphold (1916) 172 Cal. 512, 157 P. 599), to permit the trial court to defer its final ruling on a motion for a change of venue until the jury is empaneled. The trial court can thereby take into consideration any unanticipated difficulties encountered during Voir dire examination of prospective jurors.

Experience shows, however, that trial courts are often reluctant to order a venue change after a jury has been empaneled. Defense counsel, moreover, is placed in an unnecessarily awkward position: unless he exhausts all his peremptory challenges he cannot claim on appeal, in the absence of a specific showing of prejudice, that the jury was not impartial. Yet, convinced that he must go to trial because his motion for a venue change was at first denied and in all likelihood will not ultimately prevail, he may fail to use every peremptory challenge sensing that the jurors he has examined may be comparatively less biased than others who might be seated were his peremptory challenges exhausted. (See People v. Modesto (1967) 66 Cal.2d 695, 705, 59 Cal.Rptr. 124, 427 P.2d 788.) In an antagonistic atmosphere 'there will remain the problem of obtaining accurate answers on Voir dire--is the juror consciously or subconsciously harboring prejudice against the accused resulting from widespread news coverage in the community.' 5 We can only conclude that the naked right to renew the motion for change of venue is not an adequate remedy at law to require denial of a mandamus petition.

It would be inopportune, of course, to permit defendant to seek mandamus during or after empaneling the jury. (Cf. People v. Wilson (1963) 60 Cal.2d 139, 149, 32 Cal.Rptr. 44, 383 P.2d 452.) Due regard for the orderly progress of a trial dictates that a defendant apply for a writ of mandate in advance of trial so that, if the application appears meritorious, the appellate court pending its own decision can stay the trial court proceeding. If the appellate court denies the application or if appellate review is not sought, defense counsel can continue, as under the previous practice, to renew his motion for a change of venue during or after the Voir dire examination of prospective jurors, and the trial court should order a venue change if the situation so merits.

In holding that mandate lies to review a denial of a motion for a change of venue, we are in accord with the rationale of the Minnesota Supreme Court, which has long held mandate to be an expeditious vehicle to compel an appropriate venue change: 'It is proper, and often preferable, to determine the place of trial prior to the actual trial of the case rather than afterwards.' (State v. Thompson (1963) 266 Minn. 385, 386, 123 N.W.2d 378, 380.)


Our next point of inquiry is the test to be applied in mandamus proceedings designed to compel a change of venue. Ordinarily we are reluctant to depart from the sound principle invariably pronounced that mandate lies not to control an exercise of discretion but only to correct an abuse of discretion. Very early decisions of this court have recognized that the trial court's discretion is not absolute. (People v. Lee (1855) 5 Cal. 353, 354; People v. Yoakum (1879) 53 Cal. 566, 567.) In Yoakum this court said: 'The discretion of the Court invoked by the application (for a venue change) is not, however, a mere arbitrary discretion, but a discretion the exercise of which must be reasonable.' While we have thus held that the discretion must be reasonably exercised and will be subject to review on appeal for abuse, we have upheld the trial court's ruling whenever we were unprepared 'to say that the trial court abused the discretion vested in it when it denied the motion for change of venue.' (People v. Hall (1934) 220 Cal. 166, 170, ...

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