People v. Superior Court

• Decision Date: 20 April 1971
• Citation: 94 Cal.Rptr. 342,16 Cal.App.3d 811
• Parties: The PEOPLE of the State of California, Petitioner, v. The SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF SANTA CLARA, Respondent; Emile Aubert THOMPSON, Real Party in Interest. Civ. 29345.
• Court: California Court of Appeals Court of Appeals

Page 342

94 Cal.Rptr. 342

16 Cal.App.3d 811

The PEOPLE of the State of California, Petitioner, v. The SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF SANTA CLARA, Respondent Emile Aubert THOMPSON, Real Party in Interest.

Civ. 29345.

Court of Appeal, First District, Division 4, California.

April 20, 1971.

Louis P. Bergna, Dist. Atty., Leo F. Himmelsbach, Deputy Dist. Atty., San Jose County, for petitioner.

Clinton W. White, White, Cruikshank & White, Oakland, for real party in interest.

RATTIGAN, Associate Justice.

The People seek prohibition to restrain the transfer of a murder prosecution from Santa Clara County pursuant to an order of respondent court granting a defense motion for a change of venue from that county. We have concluded (1) that the People may properly pursue extraordinary relief in this court and (2) that, under the circumstances hereinafter recounted, an appropriate writ must issue.

The murder charge arises from a shooting in which Richard Huerta was killed in San Jose on August 6, 1970, while on duty as an officer of that city's police department. Shortly after the shooting, real party in interest Emile Aubert Thompson (hereinafter 'defendant') was arrested and charged with Officer Huerta's murder. ¹ After defendant had been held to answer in respondent court, and had been arraigned therein, he moved for a change of venue, pursuant to Penal Code, sections 1033 and 1034, upon the ground that a fair and impartial trial could not be had in Santa Clara County. Respondent court having granted the motion, the People commenced the present proceeding.

The first question pertains to the People's standing to pursue this proceeding. The decisions dealing with the pretrial right to appellant review of criminal venue orders have recognized that a Defendant may challenge an order Denying a change of venue by seeking an appropriate extraordinary writ in a higher court (Maine v. Superior Court (1968) 68 Cal.2d 375, 378--381, 66 Cal.Rptr. 724, 438 P.2d 372; Fain v. Superior Court (1970) 2 Cal.3d 46, 51, 55, 84 Cal.Rptr. 135, 465 P.2d 23; Smith v. Superior Court (1969) 276 Cal.App.2d 145, 147, 151, 80 Cal.Rptr. 693; Clifton v., Superior Court (1970) 7 Cal.App.3d 245, 248--249, 255, 86 Cal.Rptr. 612; Lansdown v. Superior Court (1970) 10 Cal.App.3d 604, 606, 610, 89 Cal.Rptr. 154; see People v. Tidwell (1970) 3 Cal.3d 62, 68, 89 Cal.Rptr. 44, 473 P.2d 748), but none holds that the People have an equivalent right where the trial court has Granted a change of venue pursuant to a defense motion therefor. Relying upon such lack of authority, and upon the fact that Penal Code, section 1033 gives to the defendant alone the right to Move for a change of venue, defendant contends that a writ should be denied herein because the People are without standing to seek it.

We disagree. The People have no right to Move for a change of criminal venue because Penal Code, section 1033 vests that right in the defendant alone (Jackson v. Superior Court (1970) 13 Cal.App.3d 440, 442--444, 91 Cal.Rptr. 565), as a result of calculated selectivity on the part of the Legislature. (Id., at p. 445, 91 Cal.Rptr. 565.) But nothing in section 1033 may readily be construed as denying either party the right to seek Appellate review of a criminal venue order, because the statute does not deal with that subject. Moreover, the related statute which is applicable to civil actions, but whose language contributed to the original decision giving a criminal defendant the right to seek such review, makes the extraordinary remedy available to both parties alike. (Code Civ.Proc. § 400 (cited to this effect in Maine v. Superior Court, Supra, 68 Cal.2d 375 at p. 379, 66 Cal.Rptr. 724, 438 P.2d 372).)

The People are ordinarily obligated to resist a defense motion for change of venue because the same Legislature has vested jurisdiction to prosecute for a crime in the county in which it was committed. (Pen.Code, § 777.) When they--the People--are placed in the position of Resisting such motion, no reason appears that they should be denied the right to press their resistance by an appropriate proceeding in an appellate court, and nothing in the relevant statutes or in the Jackson decision (Jackson v. Superior Court, Supra, 13 Cal.App.3d 440 at pp. 442--445, 91 Cal.Rptr. 565) requires such denial. We therefore hold that the People have standing to challenge the present order in this proceeding.

The same reasoning requires that the People seek appellate review by petitioning a higher court for an Appropriate extraordinary writ. The present petition is styled as seeking 'prohibition,' and its prayer, in part, is for a writ 'restraining' respondent court 'from taking any further steps or proceedings to transfer the case to another county.' Designation of the proceeding as seeking 'prohibition' obviously misses the mark: for one thing, the quoted portion of the prayer would prevent the challenged order's execution without disturbing the order itself. The prayer goes on, however, to ask that 'the order granting a change of venue be set aside.' We therefore treat the petition as seeking mandate to the just-quoted effect, and appropriate ancillary directions to the trial court. For the reasons next stated, we order a writ of mandate issued.

Defendant's motion for change of venue was made, and his affidavit and other documents in support thereof ² were filed, in open court. After the motion had been argued by both sides, the trial court discussed it at length; because the net effect of the court's remarks are decisive of our disposition, we set forth the remarks in full. After argument by counsel, the court stated as follows:

'I happen to be one person who resides in this county who never saw any newspaper articles. I was on a camping trip when this whole thing took place, so I haven't had time yet to read them, which I will do before I rule on the motion. From my own personal observations on the bench in this county, trying jury cases in the last four years, as a practicing attorney here and other parts of the state before that, I think there is no question but what the defendant can get a fair trial here. The population of this county is urban and metropolitan, and forty years ago in this county, a case like this would have incited people, a substantial segment who would be enraged. That doesn't take place any more. I never had trouble getting a jury that I thought was impartial, even in cases where there has been quite a bit of publicity. In the first place, in this county, this is my own opinion and I probably had as much of this as anybody, there is a segment of the community that doesn't read any paper. This is about 20 or 30 percent of the population who don't subscribe to any paper. They don't buy them, they don't watch the news on TV. They don't listen to the news on the radio. You wonder how do they know what is going on. The answer is they don't know. And then the rest of the people, if they read stories like this, most of them forget the stories and even if they recall them and they want to follow the case, it is usually more from a standpoint of curiosity than trying to get even, revenge or hostility or any attitude like that.

'This county does have slightly over a million people, as you indicated in your affidavit. I don't think there is any problem in getting a jury that is impartial with the extensive voir dire you subject them to in a case of this type. I think there is no problem, but the question is not actual prejudice. The Supreme Court says the defendant doesn't have to show actual prejudice, and as far as the trial judge's personal knowledge of the community and newspapers and jurors are concerned and the trial judge's experience, the Supreme Court says in so many words they pay no attention to that. The trial judge's ruling, they pay no attention to that. The Supreme Court is going to decide this on the basis of the cold record strictly. That is what they say they are going to do, and that is what they have been doing. That is the only thing they are going to consider. The defendant does not have to show actual prejudice. He doesn't have to make any showing than by a preponderance of the evidence. All he must do is raise a reasonable likelihood that an impartial trial cannot be had by the papers he files. The question is not for me to decide. All I am doing is guessing as to what the Supreme Court is going to decide because it is a question of fact, but it is different from any other question of fact that the trial court decides. The trial court's finding of fact is of no importance to the Supreme Court on this question. They say that. It is not a question of law. I can predict what they are going to say the law is because I can look at what they said the last time. And if I deny the motion and we have a trial, it is going to be a long trial and an expensive trial and the Supreme Court says it makes no difference whether they get the issue on the change of venue before or after the trial. They are not going to give any point to either side because of the difference, and they are just as willing to set aside a conviction afterwards for the same reason as they will on the ruling on the petition for a writ beforehand.

'So what I am doing is deciding whether or not it is worth spending all the money, substantial cost to the county and defendant's attorney also--he has got his own time involved in it--against the possibility that the Supreme Court might decide on the basis of the papers in front of me that a change of venue should be granted. It is a question I have to decide. So I am going to look at this matter further and come back at 1:30 (P.M.).'

After a midday recess, and without further discussion by counsel or other proceedings, the trial court continued:

'I am going to grant the motion. I am not granting it because I think there is any showing of prejudice in this county. I don't think...