People v. Fain, Cr. 837

• Decision Date: 15 June 1971
• Docket Number: Cr. 837
• Citation: 95 Cal.Rptr. 562,18 Cal.App.3d 137
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. William Archie FAIN, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 562

95 Cal.Rptr. 562

18 Cal.App.3d 137

PEOPLE of the State of California, Plaintiff and Respondent, v. William Archie FAIN, Defendant and Appellant.

Cr. 837.

Court of Appeal, Fifth District, California.

June 15, 1971.

[18 Cal.App.3d 140] Robert R. Coffin, Jr., Turlock, under appointment by the Court of Appeal, for defendant-appellant.

Thomas C. Lynch, Evelle J. Younger, Attys. Gen., Edsel W. Haws and Charles P. Just, Deputy Attys. Gen., Sacramento, for plaintiff-respondent.

OPINION

GARGANO, Associate Justice.

In 1967, appellant was convicted of murder in the first degree, numerous counts of forcible rape, kidnapping, attempted kidnapping and forcible sex perversion; as to the murder count, the jury fixed the punishment at death, but because of violations of the mandate of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776, the California Supreme Court reversed the judgment in part and remanded the cause to the Superior Court of Stanislaus County for a new trial on the penalty phase. (People v. Fain, 70 Cal.2d 588, 75 Cal.Rptr. 633, 451 P.2d 65.) Thereafter appellant moved for a change of venue, and his motion was denied. He petitioned this court for a writ of mandate to compel the superior court to grant his motion, and the petition was denied. Appellant's petition for writ of mandate directing a change of venue for the retrial on the penalty issue was ultimately granted by the Supreme Court (Fain v. Superior Court, 2 Cal.3d 46, 84 Cal.Rptr. 135, 465 P.2d 23). In the meantime appellant escaped from the Stanislaus County jail.

Appellant's escape from jail was effected as follows: As Deputy Sheriff Abernathy was returning two inmates, Drummond and Newton, from the first floor to their second floor cells, Drummond produced a serrated knife, put his arms around Abernathy's waist and threatened to kill him unless he opened the doors to the cells of several other prisoners. Abernathy complied and released appellant and three more inmates; appellant was also armed with a knife. Then Drummond took the keys from the officer and again threatened Abernathy's life and told him that one of the other inmates had a knife. The six inmates proceeded to the elevator and descended to the first floor. On the first floor appellant went directly to the gun lockers and searched them while the others overpowered Deputy Wilson; a sap was taken from the officer. At knife point the inmates forced Wilson to open the outside door and then escaped. Appellant ran across the street into an alley and spent the rest of the night on top of a building. The following day appellant stole an automobile from a parking lot and drove out of the area. He was recaptured that night and subsequently charged with escape, kidnapping and two counts of armed robbery.

Appellant pled not guilty to all counts but later withdrew his plea of 'not guilty' on the escape charge and entered a plea of guilty on that count. After jury trial appellant was found guilty on all remaining counts, and this appeal followed.

CHANGE OF VENUE

Appellant's counsel did not move for a change of venue nor present evidence to demonstrate that because of the dissemination of potentially prejudicial material it was unlikely that his client could receive a fair trial in Stanislaus County on the escape charges. On the day of the trial counsel reminded the trial judge that appellant's petition to compel a change of venue on the penalty phase of his murder trial was pending before the appellate court and stated that if the petition were granted appellant would also have grounds to appeal from any adverse verdict reached at the pending escape trial. Then he informed the court that he was ready to go to trial and, without objection, proceeded to select a jury. Appellant now argues that the trial judge should have ordered a change of venue Sua sponte and, further, that because his trial counsel did not make a timely motion for a change of venue appellant did not receive adequate representation during an important stage of the proceeding.

It is fundamental that a fair trial means a trial before an impartial tribunal, and it is for this salutary reason that our Supreme Court has approved the rule that "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." (Maine v. Superior Court, 68 Cal.2d 375, 383, 66 Cal.Rptr. 724, 729, 438 P.2d 372, 377.) But the formula adopted by the court is not one to be mechanically applied, and each case must be decided on its own facts. If the aid of an appellate tribunal is invoked, the court must be satisfied De novo on all the exhibits and affidavits that every defendant obtains a fair and impartial trial (Maine v. Superior Court, Supra, at p. 382, 66 Cal.Rptr. 724, 438 P.2d 372). As a consequence, a motion in the lower court for a change of venue and the production of relevant evidence in that forum are imperative if not absolutely essential. If the motion is denied, appellate review before actual trial, by a petition for writ of mandate, is the preferable procedure. (Maine v. Superior Court, Supra, at p. 381, 66 Cal.Rptr. 724, 438 P.2d 372.)

The Achilles heel of appellant's contention that the trial court's failure to order a change of venue compels reversal is in the fallacious assumption that because to prove that he conspired with his fellow-prisoners Court, Supra, 2 Cal.3d 46, 84 Cal.Rptr. 135, 465 P.2d 23, held that the adverse publicity environing the murder trial made it unlikely that appellant would receive a fair trial on the penalty phase, the high court necessarily held that he could not receive a fair trial on the charges arising from his escape from the county jail. As to the murder case, the Supreme Court was concerned with the adverse publicity appellant received during and after the trial, only insofar as it affected the likelihood of his receiving a fair trial on the penalty phase; the opinion stresses such factors as the press's hostility over the long delays and the Supreme Court's reversal of the penalty phase, appellant's confession to the murder on the witness stand, and the popularity of the murder victim, a local high school student. Furthermore, appellant's escape from the county jail and the fact that he was about to face trial on that charge were known to the court before the Fain opinion was filed. Yet the court stated on page 53, 84 Cal.Rptr. 135, 139, 465 P.2d 23, 27:

'Finally, the Attorney General points out that defendant has now been brought to trial on charges arising out of the escape, and argues that the successful selection of a jury in that case indicates veniremen impartial to defendant can be found in the county. The contention fails to recognize the distinctions between the two proceedings. To begin with, a conviction of escape (Pen.Code, § 5432,...