Odle v. Superior Court

654 P.2d 225, 32 Cal. 3d 932, 187 Cal. Rptr. 455, 1982 Cal. LEXIS 255

• Court: California Supreme Court
• Decided: December 10, 1982
• Docket: S.F. 24362
• Status: Published

Opinions

Opinion

KAUS, J.

I

An information charges James Richard Odle with two counts of murder (Pen. Code, § 187), four counts of assault with a deadly weapon on a peace officer (Pen. Code, § 245, subd. (b)), three counts of auto theft (Veh. Code, § 10851), and counts of kidnaping (Pen. Code, § 207) and possession of a firearm by a felon (Pen. Code, § 12021). Special circumstances are alleged in connection with the murder counts.¹ There is no indication that the prosecution will not seek the death penalty. Odle’s nephew Brian, originally charged with Odle on one of the murders, was granted a severance.

Odle twice moved for change of venue on the ground that there was a reasonable likelihood that he could not receive a fair trial in Contra Costa County because of widespread and prejudicial publicity. The first motion was denied on March 13, 1981.² A second motion, following the appointment of new counsel, cited continuing pretrial publicity and brought to the court’s attention our decision in Martinez v. Superior Court (29 Cal.3d 574 [174 Cal.Rptr. 701, 629 P.2d 502]), decided on June 18, 1981. The second motion was denied on August 25, 1981.³

Odle then petitioned for mandate 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 proceeding.

II

Charges against Odle stem from the stabbing death of Rena Aguilar on April 30, 1980, and the shooting death of Floyd Swartz, a Pinole police officer, on May 3, 1980, as Swartz attempted to apprehend Odle. Immediately after the shooting of Officer Swartz, there ensued an intense police manhunt involving over a hundred East Bay police officers, a SWAT team, and dogs. An area of Pinole was cordoned off while Odle was sought in a wooded creekbed. After five hours he was apprehended without resistance. The People concede that the “police siege” received multimedia coverage and attracted 100 to 150 spectators, but they dispute Odle’s statement that the spectators cheered when he was placed in the police car or that the spectators called on the police to kill him.

The parties agree on the general principles of law and the standard of appellate review. We restated them recently in Martinez (29 Cal.3d at pp. 577-578): “On a pretrial writ, as on appeal from a 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. . . . The standard to guide the reviewing court finds expression in Maine [Maine v. Superior Court (1968) 68 Cal.2d 375 (66 Cal.Rptr. 724, 438 P.2d 372)]: ‘ “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.” ’ . . . The phrase ‘reasonable likelihood’ denotes a lesser standard of proof than ‘more probable than not.’ . . . 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.”

In Martinez and its predecessors we identified the indicators of otential prejudice in pretrial publicity. They include the nature and extent of the news coverage, the size of the community, the nature and gravity of the offense, and the respective standings of the victim and the accused in the community. (Martinez, supra, 29 Cal.3d at p. 578.)

The parties agree—and the trial court found—that in the two weeks of May 1980 after the officer’s death, the media coverage was extensive throughout the Bay Area. The parties also agree that Contra Costa is large in terms of population and geography; what is disputed is its “character” and the issue whether size alone—without large metropolitan centers—can dissipate potential prejudice. It also appears settled that there were no publicized confessions of the accused or his codefendant and that no political controversy surrounds the case or its participants.

The parties rely principally on two cases: Odle on Martinez v. Superior Court, supra, 29 Cal.3d 574, and the People on People v. Harris (1981) 28 Cal.3d 935 [171 Cal.Rptr. 679, 623 P.2d 240]. In Martinez we found a reasonable likelihood that a fair trial could not be had in Placer County where, although not inflammatory or highly sensational, extensive publicity continued for over a year before the change of Venue motion, climaxing during the trial of Martinez’ alleged accomplice. We stressed that the county was relatively small and rural. Although we declined to adopt a special rule giving rise to a presumption in favor of a requested change of venue in any capital case in which there has been extensive publicity, we held that the gravity of the crime charged was a most significant factor and that the rule that all doubts be resolved in favor of changing the venue took on particular significance. Odle urges that the instant case is similar to Martinez and requires the same result.

The People, on the other hand, compare this case with Harris where, despite highly sensational and inflammatory publicity, the trial was had in the community where the crime occurred. In that case the size of the community—San Diego, statewide third in population—tipped the balance against change.

Yet, each case must be decided on its own facts. With that truism in mind we examine the record and attempt to isolate the factors which should affect our determination.

m

Size of Community. Size of community was the primary factor relied on by the trial court in denying a change of venue and is the major thrust of the People’s opposition in this court. Contra Costa County, by latest available figures, has a population in excess of 666,000. Pinole has a population of under 15,000—just about 2 percent of the county’s population. One of the larger counties in the state and part of the San Francisco metropolitan area, Contra Costa is served by the metropolitan newspapers as well as the local and regional press. Although made up primarily of small cities and towns, like other counties—i.e., Marin and San Mateo—that border major urban communities, Contra Costa is as much suburban as rural. Its population is diverse. In the western portion, where the crimes occurred, the county is urban-industrial, the home of commercial and transport facilities of several major oil companies. That portion—including Richmond and Martinez, the county seat—constitutes almost one-third of the county’s population. The central portion, in the eastern foothills of the coast range, which includes Lafayette, Orinda and Walnut Creek, is primarily suburban and has more than one-half of the county’s population. The eastern portion, bordering on the San Joaquin Valley, is rural and has a population of less than 100,000.

Odle points out that venue changes have been granted from larger California counties⁴ and urges that size alone should not be the touchstone. We agree that “population size alone is not determinative” (Fain v. Superior Court (1970) 2 Cal.3d 46, 52, fn. 1 [84 Cal.Rptr. 135, 465 P.2d 23]), but in weighing the factors as we must, we are inclined to weigh the factor of community size in favor of the People. Whether it controls must await examination of the remaining data.

The Nature and Extent of Publicity. In the two weeks following the killing of Officer Swartz, press and other media coverage was extensive. There was television coverage of the manhunt and apprehension of Odle. Thereafter television and radio coverage ceased, and, essentially, so did the coverage by the San Francisco dailies. The East Bay papers, however, continued to report on the pretrial proceedings and developments, up to and including the requests for change of venue.⁵ Local and regional papers covered the funeral of the slain officer and have reported on the progress of a memorial fund set up for his family.

Odle submitted over 150 newspaper articles in support of his motions. Because of the number of papers involved, the articles are necessarily repetitive. Odle points to several facets of the reporting in this case which, he claims, is different from the “run of the mill” murder case. He notes that his name was used in headlines more than 70 times, indicating an expectation of name recognition and establishing him as a notorious person. He also finds in the articles an inordinate interest in all pretrial motions and proceedings, including, for example, the circumstances surrounding the substitution of attorneys. However, despite the fact that the capital aspect of the case is mentioned in almost every article, the reporting is no different in degree or intensity than the usual reporting of other homicides of the kind involved here. While several articles contained information that might be potentially prejudicial, they received very limited circulation, and the reporting on the whole was not inflammatory, sensational, or hostile. As we noted in Martinez, however, the controlling consideration is whether the net effect of the coverage was to suggest to persons who are potential jurors that Odle was the actual killer. (29 Cal.3d at p. 580.)

Unlike in Martinez, no press reports in this case stated the prosecution’s belief in Odle’s guilt, and the level of hostility observed in other cases—Harris, for oner-is absent. However, the net effect of the continuing publicity undoubtedly tended to focus attention on the prosecution’s view of the case which, at least insofar as the officer’s death was concerned, left little to the imagination. As to the girl’s murder, on the other hand, the facts were related on only two or three occasions in only two or three articles. It was noted that she was attacked and stabbed in her home, placed in a stolen van from which she managed to escape, and that she died on the front porch of a neighbor’s house. Odle and his nephew were the alleged assailants, but the reports did not dwell on incriminating details or motive.

We agree with the trial court that because of the passage of time after the initial period in the spring of 1980, the nature and extent of the news coverage alone does not compel a change of venue.

Status of the Accused. Pertinent to this factor is whether Odle was viewed by the press as an outsider, unknown in the community or associated with a group to which the community is likely to be hostile. Odle had served some time in prison and several articles noted that he was an “ex-convict” and a parolee. Certain reports suggested mental instability on his part.⁶ He had appeared in shackles in an unrelated burglary case, and the press reported on his attempts to avoid shackling and restraint during the pending murder trial. The press also reported on an aborted escape attempt and that Odle brought a civil suit in July of 1981 against the county alleging brutality on the part of deputies at the county jail in Martinez. However, as the People note, Odle is not an outsider; he has been a resident of Contra Costa County for 30 years and has lived and worked there all of that time. Nor has the press portrayed him as a “foreigner.” While the family of his nephew—and former codefendant—has reportedly abandoned Odle,⁷ there is nothing to indicate that he is “friendless” or without other familial support.

The Status and Prominence of the Victims. The trial court found that ‘Hhe victims were essentially private persons and could not be classified as prominent as the term is used in the case law.” While this characterization is correct as to both victims before their deaths, it fails to take into consideration that the slain officer, by virtue of the events and media coverage after the crimes, became a posthumous celebrity, at least in the western portion of the county where the crimes took place. Newspaper articles reveal that the officer and his family⁸ have been the objects of a great deal of sympathy and interest. He has been uniformly portrayed as a “good cop” who had earned numerous commendations. His funeral, attended by about 1,000 police officers from all over the state, was a civic event in Pinole and received countywide coverage. Schools were closed and flags were flown at half-mast. The Pinole-Hercules Chamber of Commerce named the officer “citizen of the year.”

A fund started for the family has raised over $50,000 from contributors all over the state and county. Well publicized benefits were conducted, with proceeds going to the fund. Most of the coverage in this respect has been in the west county press. A number of stories, again largely concentrated in the west county press, reported on a lawsuit brought by a former wife of the officer seeking participation in the fund on behalf of their child.

In sum, the effect of the status and prominence of the two victims on the issue before us is inconclusive.

Nature and Gravity of the Offense. As noted above, the circumstances surrounding the death of the young woman received little media attention, although, when referred to, it was portrayed as a “brutal stabbing” and she was described as a young (18 years) mother of a 2-year-old child. The details of the policeman’s death—he was shot in the throat or neck as he approached Odle—were seldom related. It was the characterization of the crime as a “cop killing” which sensationalized it in the media, and it was the outpouring of public sympathy for the slain officer and his family that is described in the media reports furnished to us. It is readily apparent that we do not have here the type of multiple and bizarre killings that were the object of media attention in Corona (Corona v. Superior Court (1972) 24 Cal.App.3d 872 [101 Cal.Rptr. 411]) and Frazier (Frazier v. Superior Court (1971) 5 Cal.3d 287 [95 Cal.Rptr. 798, 486 P.2d 694]), to name two. Nevertheless, Odle is charged with the gravest of crimes and faces the gravest of punishments. Capital cases inherently attract media coverage and for that reason “the factor of gravity must weigh heavily in a determination regarding the change of venue.” (Martinez, 29 Cal.3d at p. 583.)

Summary. We have reiterated the relevant criteria and set out the evidence which relates to each; we now assess the material and weigh it in order to determine the likelihood that Odle can receive a fair trial in the county. The publicity was extensive in the first two weeks—in May of 1980—and related principally to the killing of the officer and Odle’s apprehension. Thereafter, the only out-of-the-ordinary media attention was given to the fund-raising. Although all proceedings and court appearances were reported, the reports were low-key and not hostile. Most significant, however, is that the publicity after the first few weeks was concentrated in the three newspapers located in the western part of the county, where the crimes occurred. This part of the county is not only the most urban-industrial part; it also comprises less than a third of the total population of the county from which jurors will be selected. The size of Contra Costa County and the fact that the publicity was not pervasive in a geographic sense is an important factor in this case.⁹

The status of Odle in the community, as well as the status of the young woman who was killed, appear to be neutral factors. Both were residents and essentially unknown until May of 1980. Odle possesses no social or racial attributes which might arouse community prejudice or hostility, and his claim that he is represented in the press as a friendless pariah is not supported by our reading of the news reports. While the officer victim has become a posthumous celebrity, it is evident that it is his status as an officer, killed in the line of duty, that has propelled him to prominence. Communities undoubtedly have special hostility toward “cop killers,” but that aspect of the case would follow Odle to whatever community in which venue ultimately resides.

IV

The crux of this case is its potential for the ultimate imposition of the death penalty. In Martinez we rejected the proposal of a special rule to establish a presumption in favor of a requested venue change in capital cases. We concluded that such a rule was not necessary and that the rule for resolution of all doubts in favor of a change of venue was sufficient protection for the accused.¹⁰

It is, however, difficult to envision an eventual capital case which will not receive extensive media coverage, at least for a short period of time. If the early publicity attendant on a capital case alone suffices to raise a doubt as to the likelihood of a fair and impartial trial, a change of venue would perforce be required in every such case.

Time dims all memory and its passage serves to attenuate the likelihood that early extensive publicity will have any significant impact at the time of trial. It also serves to resolve any doubt concerning the likelihood that Odie can receive a fair and impartial trial in Contra Costa County. More than two years have passed since the crimes and the media coverage of May 1980, and additional time will pass before the case comes to trial. We conclude, therefore, that the extensive publicity of the two-week period that followed the crimes, either alone or in combination with the other criteria, does not establish a reasonable likelihood that a fair trial cannot be had in that county; any lingering doubt we may have is dispelled by the amount of time that has passed between the period of extensive media coverage and the prospective trial date.

Our conclusion is necessarily based on the evidence before us at this time. if our perceptions and conclusions are faulty and the voir dire reveals that, in fact, the dissemination of potentially prejudicial material was more widespread than was or could be anticipated, the trial court will have not only the opportunity, but the duty to order a change of venue upon renewed motion of defendant.¹¹

Mindful that trial courts are understandably reluctant to change venue when the parties and witnesses are in place and jury selection has begun, we stress that the trial court has the authority to change venue in an appropriate case even at that late date. (Maine v. Superior Court, supra, 68 Cal.2d 375.) Although Maine was concerned with the propriety of pretrial review of venue motions, it nevertheless recognized that the motion could be renewed at time of voir dire: “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 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. ” (68 Cal.2d at p. 381; italics added.)

Whether ruling on a motion to change venue well before trial or during the voir dire, the standard remains the same—the reasonable likelihood of a fair trial in view of the pretrial publicity. The additional evidence in a determination at voir dire is the jury panel itself. What had been a matter of some speculation at the earlier motion—i.e., the actual extent of exposure of those who are potential jurors—becomes, on a later motion, subject to more precise measurement and evaluation.

The primary purpose of voir dire is to determine the competency and qualification of particular jurors to serve (Pen. Code, §§ 1066-1089); the conduct of the voir dire and the qualification of jurors challenged for cause are matters within the wide discretion of the trial court, seldom disturbed on appeal. (People v. Duncan (1960) 53 Cal.2d 803, 816 [3 Cal.Rptr. 351, 350 P.2d 103].) To find actual bias on the part of an individual juror, the court must find “the existence of a state of mind” with reference to the case or the parties that would prevent the prospective juror “from acting with entire impartiality and without prejudice to the substantial rights of either party.” (Pen. Code, § 1073.) The basic common law requirement of entire or strict impartiality expressed in section 1073 has seemingly been modified by section 1076 which permits qualification of a juror who admits exposure to and influence by pretrial publicity, but declares credibly that he can act impartially.¹² Section 1076 thus serves the rule of necessity in permitting impanelment of a jury in those cases where, due to modem methods of communication and news reporting, it would be virtually impossible anywhere in the state to secure a jury with no knowledge or opinion of some sort of a notorious case.

While the propriety of a mling on challenge for cause is governed by the statutes referred to in the preceding paragraph, the ruling on motion to change venue—the analysis of a reasonable likelihood that a fair trial cannot be had in the county—is separate from, and requires a far more searching analysis than, the decision to qualify a particular juror. That each juror is qualified under applicable statutes and, specifically, that no juror fails to meet the criteria of section 1076, is not controlling. (See Irvin v. Dowd (1961) 366 U.S. 717, 724-725 [6 L.Ed.2d 751, 756-757, 81 S.Ct. 1639].) Resolution of the venue question requires consideration of the responses of jurors who do not ultimately become members of the trial panel as well as those who do. (See Murphy v. Florida (1975) 421 U.S. 794 [44 L.Ed.2d 589, 95 S.Ct. 2031]; Irvin v. Dowd, supra, 366 U.S. 717; People v. Tidwell (1970) 3 Cal.3d 62 [89 Cal.Rptr. 44, 473 P.2d 748].)

The role of the voir dire in the determination of potential for prejudice and partiality of the jury is illustrated by the Irvin and Murphy cases. Although both decisions involved postconviction review to determine whether defendant was denied a fair trial, they provide guidelines for the assessment of the declared impartiality of prospective jurors in a pretrial determination of the likelihood that a fair trial cannot be had.

Irvin recognized the reach and effect of the modem communications media (“To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror’s impartiality would be to establish an impossible standard”) and the need for modification of an absolute requirement of impartiality (“It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court”). (366 U.S. at p. 723 [6 L.Ed.2d at p. 756].) The court nevertheless examined the entire voir dire record to evaluate independently the testimony of the ultimately impaneled jurors. The court found a pattern of prejudice that was clearly reflected in the examination of a majority of those finally placed in the jury box.

As to the protestation of impartiality, the court stated: “No doubt each juror was sincere when he said that he would be fair and impartial to petitioner, but the psychological impact requiring such a declaration before one’s fellows is often its father. Where so many, so many times, admitted prejudice, such a statement of impartiality can be given little weight. ” (366 U.S. at p. 728 [6 L.Ed.2d at p. 759]; italics added.)

Using the same analysis, the United States Supreme Court upheld the jury selection process in Murphy v. Florida, supra, 421 U.S. 794, determining that under the totality of circumstances, Murphy was not denied a fair trial. The Murphy court reiterated the guidelines for assessing the declared impartiality of prospective jurors. The court noted: “The length to which the trial court must go in order to select jurors who appear to be impartial is another factor relevant in evaluating those jurors’ assurances of impartiality. In a community where most veniremen will admit to a disqualifying prejudice, the reliability of the others’ protestations may be drawn into question; for it is then more probable that they are part of a community deeply hostile to the accused, and more likely that they may unwittingly have been influenced by it. In Irvin v. Dowd, for example, the Court noted that 90% of those examined on the point were inclined to believe in the accused’s guilt, and the court had excused for this cause 268 of the 430 veniremen. In the present case, by contrast, 20 of the 78 persons questioned were excused because they indicated an opinion as to petitioner’s guilt. This may indeed be 20 more than would occur in the trial of a totally obscure person, but it by no means suggests a community with sentiment so poisoned against petitioner as to impeach the indifference of jurors who displayed no animus of their own.” (421 U.S. at pp. 802-803 [44 L.Ed.2d at p. 596].)

Use of the voir dire in assessing the reasonable likelihood of a fair trial in the county of venue is also illustrated by People v. Tidwell, supra, 3 Cal.3d 62. Although Tidwell was tried before Maine and the “reasonable likelihood” standard, the conviction was overturned in large measure because the trial court failed to heed and evaluate the expressions of partiality/impartiality of the prospective jurors. The court concluded: “In sum, this trial had no hope of enforcing procedural guarantees which have been built up over centuries of legal experience. From the outset the entire community from which all participants except the defendant were drawn was familiarized with the details of the prosecution’s case by extensive publicity of the progress of the investigation of the murders—including the apprehension of the defendant and the discovery of items in his possession which were linked with the victims. The formalities which would follow—authenticating, offering, and receiving or rejecting items of evidence in the trial—cannot hide the fact that all 12 jurors had heard news of the case, and many must certainly have been aware of the prosecution’s evidence. ...” (3 Cal.3d at pp. 75-76; italics added.)

While we have decided that, on the evidence before us, there is no reasonable likelihood that Odle cannot receive a fair trial in Contra Costa County, the actual impact on prospective jurors of the extensive early media coverage remains an unknown quantity. It may be that none of the jurors will have heard or recall the pretrial publicity. Whatever the extent of exposure, however, the trial court will be in the best position to assess its impact on the jury panel as well as to evaluate the declarations of impartiality/partiality by the individual jurors. Further, any danger that examination at voir dire will itself serve to publicize the early reports is minimized by the practice, in Contra Costa County, of an individualized voir dire procedure.¹³ (See People v. Rutkowsky (1975) 53 Cal.App.3d 1069, 1073 [126 Cal.Rptr. 104].)

As we recalled at the outset, in Martinez we said that “any doubt as to the necessity of removal to another county should be resolved in favor of a venue change.” (29 Cal.3d at p. 578.) We do not deviate from that principle. We do, however, point out that the necessity of granting a pretrial change of venue based on speculation decreases in direct proportion to the readiness of trial courts to Mfill their duty to change the place of trial when actual voir dire reveals as a fact that the right to a fair trial so demands.

The alternative writ of mandamus is discharged and the petition for writ of mandamus is denied.

Newman, J., Broussard, J., and Reynoso, J., concurred.

Richardson, J., concurred in the result.

1 There are allegations as to both murders under Penal Code section 190.2, subdivision (a)(3) that the accused is convicted of more than one first or second degree murder; as to one of the murders it is alleged under section 190.2, subdivision (a)(5) that the murder was committed to avoid arrest or escape custody and under section 190.2, subdivision (a)(7) that the victim was a police officer.

2 By written decision on denial of the motion, the trial court noted the presence of some of the indicia of unfairness, namely that the crime was of a revolting nature, media coverage was extensive, and the community in which it occurred had reacted with fear and hostility. However, the community from which the jury would be drawn was neither small nor provincial; the defendant was not a stranger there; media reports had contained no confessions or incriminating statements; and the victims were private persons of no particular prominence. With respect to media coverage, the court noted that although initial publicity had been “extensive, repetitive, and broad in scope,” recent coverage had been “infrequent and factual.” Coverage as a whole had not been “excessive or sensationalized” and, on the whole, had been “factual, restrained, and responsive. ” The court also observed that a year and a half had elapsed since the period of intensive coverage, “dulling the effect of any inappropriate media coverage.” Finally, the court noted, the Contra Costa County courts have been going “one step beyond” the Hovey (Hovey v. Superior Court (1980) 28 Cal.3d 1 [168 Cal.Rptr. 128, 616 P.2d 1301]) requirement of sequestered voir dire and have been conducting voir dire in sequestration “on all aspects of the nature and extent of the publicity and how, if at all, it may affect each potential juror.”

3 The second opinion concluded that the continuing publicity was neither extensive nor inflammatory and that the facts of Martinez were “not even remotely similar to the case at bar” except that in each case the death penalty was sought by the prosecution. The trial court found no “reasonable likelihood” that Odle could not receive a fair and impartial trial in Contra Costa County (Pen. Code, § 1033).

4 From Los Angeles County in Smith v. Superior Court (1969) 276 Cal.App.2d 145 [80 Cal.Rptr. 693]; from San Mateo County in Steffen v. Municipal Court (1978) 80 Cal.App.3d 623 [145 Cal.Rptr. 782]. The People distinguish the Smith case as involving a countywide political issue (charges of bribery and lying to the grand jury became enmeshed in the mayoralty campaign and the matter was of national interest, resulting in a Pulitzer Prize for a,newspaper expose). Steffen involved charges of prostitution which had received county wide notoriety.

5 Principal Contra Costa County papers are: The Contra Costa Times, a countywide newspaper with circulation of approximately 100,000 (6 days a week); Antioch Ledger, a daily with circulation of 14,000; West County Times (Pinole), published twice a week, circulation 41,000; San Pablo News, a weekly, circulation 27,000; North East Bay Independent and Gazette, published in Richmond 6 days a week, circulation 35,000; Martinez News-Gazette, 5 days a week, circulation 10,500.

The other East Bay papers are the Oakland Tribune (circ. 50,000) and the Berkeley Daily Gazette (circ. 15,000), published in Alameda County.

The above figures and review of the original of articles submitted by petitioner suggest that persons in the western portion of the county have been exposed to continuing pretrial coverage, whereas the central portion, with more than half the population of the county, has received much less publicity.

6 His ex-wife reported to the press that he had part of his brain removed after an accident.

7 During the preliminary hearing on the charges against Odle and his nephew, one article, relying on “anonymous sources” within their family, provided a vivid reconstruction of the murder of the young woman. Contained in the article was a statement, allegedly made by Odle and relayed to the “anonymous source,” which, if made, would indicate total callousness on Odle’s part. The article appeared on Saturday, July 25, 1980, in the North East Bay Independent and Gazette, a Richmond paper with a circulation of 35,000. The report was carried by no other newspaper.

8 The officer’s wife was pregnant when he died; they had an 18-month-old son, and he had a daughter by a prior marriage.

9 The People argue that the size of the community was the single factor that “tipped the balance” in Harris (28 Cal.3d 935) and that it should be the controlling factor in the instant case. It must be remembered, however, that the decision in Harris followed the conviction, and the ruling of the trial court was then supported by the actualities of voir dire, permitting the determination that Harris had not been denied a fair trial.

10 “We see no need at this time for so drastic a change in the procedural rules for change of venue, and we formulate no special rules for capital cases. First, the matter is more appropriately directed to the Legislature. Second, the existing rule that all doubts should be resolved in favor of a change of venue when ruling on a pretrial motion for change of venue provides both the trial and the appellate court with sufficient flexibility, after consideration of all the evidence, to insure a fair trial in any death penalty case that has been given extensive publicity.” (29 Cal.3d 574, 584.)

11 While the trial court may take the initiative to entertain a motion for change of venue to secure a fair and impartial trial, it has no statutory authority to change venue on its own motion for that purpose. (Jackson v. Superior Court (1970) 13 Cal.App.3d 440, 444 [91 Cal.Rptr. 565, 46 A.L.R.3d 290]; People v. Yeager (1924) 194 Cal. 452, 481 [229 P. 40].) Penal Code section 1033, subdivision (a), provides for change of venue on motion of defendant; a defendant may decide that factors other than pretrial publicity tip the scales in favor of retention of trial in the county of original venue.

12 Section 1076 provides: “In a challenge for implied bias, one or more of the causes stated in section one thousand seventy-four must be alleged. In a challenge for actual bias, the cause stated in the second subdivision of section one thousand seventy-three must be alleged; but no person shall be disqualified as a juror by reason of having formed or expressed an opinion upon the matter or cause to be submitted to such jury, founded upon public rumor, statements in public journals, circulars, or other literature, or common notoriety; provided, it appear to the court, upon his declaration, under oath or otherwise, that he can and will, notwithstanding such an opinion, act impartially and fairly upon the matters to be submitted to him. The challenge may be oral, but must be entered in the minutes of the court or of the phonographic reporter. ” (Italics added.)

13 In this regard, the trial court said: “Lastly and perhaps most significant, the Supreme Court in its recent case of Hovey v. Superior Court (1980) 28 Cal.3d 1, mandated a practice that this Court had been using in all capital cases since 1971 of requiring individual voir dire in sequestration of all potential jurors on issues which involve death, qualifying the jury. This Court has in fact been going one step beyond the holding in Hovey, and also conducts its voir dire in sequestration on all aspects of the nature and extent of the publicity and how, if at all, it may affect each potential juror. This is a safeguard that manifestly assures that the defendant can receive a fair trial. It also affords the fullest and broadest inquiry on any other sensitive issue that may exist in a particular trial, without possibly infecting the other members of the jury panel.”