Martinez v. Superior Court

• Decision Date: 18 June 1981
• Docket Number: S.F. 24226
• Citation: 174 Cal.Rptr. 701,629 P.2d 502,29 Cal.3d 574
• Court: California Supreme Court
• Parties: , 629 P.2d 502, 7 Media L. Rep. 1685 Antonio Michael MARTINEZ, Petitioner, v. The SUPERIOR COURT OF PLACER COUNTY, Respondent; The PEOPLE, Real Party in Interest.

Page 701

174 Cal.Rptr. 701

29 Cal.3d 574, 629 P.2d 502, 7 Media L. Rep. 1685

Antonio Michael MARTINEZ, Petitioner, v. The SUPERIOR COURT OF PLACER COUNTY, Respondent The PEOPLE, Real Party in Interest.

S.F. 24226.

Supreme Court of California.

June 18, 1981.

Rehearing Denied July 15, 1981.

Blackmon, Wasserman & Blicker and Clyde M. Blackmon, Sacramento, for petitioner.

Quin Denvir, State Public Defender, amicus curiae for petitioner.

No appearance for respondent.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Edmund D. McMurray and Willard F. Jones, Deputy Attys. Gen., for real party in interest.

TOBRINER, Justice.

In this proceeding we must determine whether petitioner Antonio Martinez should be granted a change of venue for trial on charges pending against him in Placer County. Denying the motion, the trial court ruled against the sought change of venue, 108 Cal.App.3d 695. Our independent evaluation of the record, however, discloses a reasonable likelihood that a fair and impartial trial cannot be conducted in Placer County. We explain, therefore, why we have concluded that the venue should be changed.

Petitioner Martinez is charged by information with one count of murder (Pen. Code, § 187), three counts of robbery (§ 211), and one count of attempted robbery (§§ 664, 211). The People set forth special circumstances on the murder count (former § 190.2, subd. (c)(3)(i)) and, with respect to the robbery counts, allege use of weapons under sections 12022 and 12022.5. The prosecution initially charged Allen Davis as a codefendant; his case was severed for separate trial in June 1979; he was acquitted on August 30, 1979.

On September 28, 1979, petitioner moved for change of venue for his trial, then scheduled for November 13, 1979, on grounds that, because of pretrial publicity concerning the charges against him, he could not obtain a fair and impartial trial in Placer County. After denial of the motion, Martinez filed a petition for writ of mandate seeking to compel the trial court to grant a change of venue. An alternative writ has issued and trial has been stayed pending resolution of this matter.

A pretrial writ of mandate is an appropriate remedy to compel a change of venue. (Frazier v. Superior Court (1971) 5 Cal.3d 287, 95 Cal.Rptr. 798, 486 P.2d 694; Fain v. Superior Court (1970) 2 Cal.3d 46, 84 Cal.Rptr. 135, 465 P.2d 23; Maine v. Superior Court (1968) 68 Cal.2d 375, 378-379, 66 Cal.Rptr. 724, 438 P.2d 372.) On a pretrial writ, as on appeal from judgment of conviction, the appellate court must make an independent evaluation of the circumstances surrounding a defendant's claim for change of venue and must satisfy itself de novo that a fair trial is or was obtainable in the county of original venue. (People v. Harris (1981) 28 Cal.3d 935, 948, 171 Cal.Rptr. 679, 623 P.2d 240; People v. Welch (1972) 8 Cal.3d 106, 113, 104 Cal.Rptr. 217, 501 P.2d 225; Frazier v. Superior Court, supra, 5 Cal.3d at p. 293, 95 Cal.Rptr. 798, 486 P.2d 694; People v. Tidwell (1970) 3 Cal.3d 62, 69, 89 Cal.Rptr. 44, 473 P.2d 748; Maine v. Superior Court, supra, 68 Cal.2d at p. 382, 66 Cal.Rptr. 724, 438 P.2d 372.) The standard to guide the reviewing court finds expression in Maine: " '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." (68 Cal.2d at p. 383, 66 Cal.Rptr. 724, 438 P.2d 372.) The phrase "reasonable likelihood" denotes a lesser standard of proof than "more probable than not." (Frazier, supra, 5 Cal.3d at p. 294, 95 Cal.Rptr. 798, 486 P.2d 694.) Further, when the issue is raised before trial, any doubt as to the necessity of removal to another county should be resolved in favor of a venue change. (Fain, supra, 2 Cal.3d at p. 54, 84 Cal.Rptr. 135, 465 P.2d 23; Maine, supra, 68 Cal.2d at pp. 387-388, 66 Cal.Rptr. 724, 438 P.2d 372; Corona v. Superior Court (1972) 24 Cal.App.3d 872, 875, 101 Cal.Rptr. 411.)

With these general principles in mind, we examine the record in this case and attempt to isolate the factors which, in Maine and the cases that followed, have been considered criteria of the potential for prejudice from pretrial publicity. Factors to be considered include the extent and kind of the publicity as well as the size of the community in which the crime occurred. The nature and gravity of the crime serves as an important factor. We also consider the standing of the victim and the accused in the community. (Maine, supra, 68 Cal.2d at p. 385, 66 Cal.Rptr. 724, 438 P.2d 372; Frazier, supra, 5 Cal.3d at p. 293, 95 Cal.Rptr. 798, 486 P.2d 694; Fain, supra, 2 Cal.3d at pp. 51-52, 84 Cal.Rptr. 135, 465 P.2d 23.)

Our analysis convinces us that the controlling factors in the instant case which compel a change of venue are (1) the extensive publicity over a period of a year prior to the venue motion, especially the publicity attendant on the trial of the alleged accomplice Davis, (2) the size of Placer County, and (3) the nature of the crime, involving the gravest possible consequences to the accused. We find also significant, but less important and not controlling here, the status of the victim and the accused in the community.

1. The nature and extent of publicity evidences community bias and poses a danger to a fair trial.

The charges against petitioner stem from an attempted robbery of the Owl Club Bar in Roseville on the evening of July 14, 1978, and the robbery of the Onyx Club also in Roseville, on the morning of July 15, 1978. During the Onyx Club robbery, George Robert Alves was shot and killed.

For more than a year before petitioner moved to change venue, three local newspapers (the Auburn Journal, Press-Tribune, and Sacramento Bee) covered petitioner's pending trial. ¹ Commencing with front page pictures of petitioner and Davis in chains shortly after their arrest, the press followed the legal maneuverings that attend capital cases and, in almost daily articles, followed the testimony and developments in the trial of codefendant Davis.

Petitioner submits 97 newspaper articles to support his motion for change of venue. The press gave substantial coverage to the fact that the accused forced the patrons to lie face down on the floor during the robbery and shot the victim at close range in the back, reportedly because the killer mistook him for a police officer.

Of the 13 articles which dealt directly with the death penalty aspects of the case, 10 mentioned the death penalty in the headlines; 3 articles dealt with the dismissal of the special circumstances against Davis and bore headlines indicating that petitioner was still charged with a capital offense. One headline, in the Auburn Journal, proclaimed "DEATH PENALTY OK IN ONYX KILLING," arguably implying that the law approves imposition of that penalty on the person who killed Alves.

The media also devoted extensive coverage to the proceedings involving codefendant Davis. The press reported the prosecutor's theory that the Onyx Club robbers were narcotic addicts seeking money to buy heroin. Davis defended by presenting an alibi and contending that the petitioner and Raul Hernandez, a prosecution witness testifying under a grant of immunity, robbed the Onyx Club.

Some of the articles contained information potentially prejudicial to an impartial determination of petitioner's guilt or innocence. In reporting on the prosecutor's opening statement in the Davis trial, the Press-Tribune said, "(p)rosecutors believe he (Martinez) killed Alves." When the trial court ruled that Davis could not be charged with special circumstances, the Auburn Journal reported that the allegation was dismissed "because he didn't fire the gun which killed George Robert Alves in a Roseville bar." In one article a deputy district attorney is quoted as saying: "We will amend the special circumstances allegation to fit our charges of Martinez being the gunman and Davis being the aider to and abettor to the murder." The Sacramento Bee headlined "MURDER WITNESS INVOKES FIFTH AMENDMENT," reporting that Hernandez had admitted being petitioner's crime partner in other robberies and that he helped dispose of the weapon used in the Onyx Club killing. The net effect of the coverage was to suggest to the persons who were potential jurors in the trial of his case the probability that petitioner was the actual killer.

Petitioner also directs our attention to the newspaper articles which report the conflicts which have surfaced in the community because of the prosecutor's inability to secure a conviction in the Davis and other cases. After noting the lack of staff in the district attorney's office, the chief of police stated "The prosecution doesn't have the luxury of an outside defense attorney who can hire his own investigator." In the same article the sheriff and district attorney are quoted as deploring their inability to put all the evidence before the jury: "If the jury had been able to hear and see all the evidence we had, it probably would have voted differently." Petitioner urges that statements of this nature will have effect of leading people to believe that the problems in the prosecution's cases resulted from the lack of staff and the exclusion of evidence because of technicalities and not from the defective proof which might have indicated a defendant's innocence.

The Attorney General contends, however, that the articles do not cast light on petitioner "in an inflammatory or sensational manner" nor evidence any form of hostility toward him. Even if true, these observations do not control. "A reasonable likelihood of unfairness may exist even though the news coverage was neither inflammatory nor productive of overt hostility. (Citati...