“On a defendant’s motion, the court must order a change of venue ‘when it appears that there is a reasonable likelihood that a fair and impartial trial cannot be had in the county.’ (§ 1033, subd. (a); see People v. Famalaro (2011) 52 Cal.4th 1, 21.) On appeal from the denial of a change of venue, we accept the trial court’s factual findings where supported by substantial evidence, but we review independently the court’s ultimate determination whether it was reasonably likely the defendant could receive a fair trial in the county. In deciding whether to change venue, the trial court, and this court in its independent review, considers several factors, including the nature and gravity of the offense, the nature and extent of the media coverage, the size of the community, the defendant’s status within the community, and the victim’s prominence. On appeal, a defendant challenging the court’s denial of a change of venue must show both error and prejudice, that is, that it was not reasonably likely the defendant could receive a fair trial at the time of the motion, and that it is reasonably likely he did not in fact receive a fair trial.” (People v. Rountree (2013) 56 Cal.4th 823, 837.)
The nature and gravity of the offense are most serious, but those factors do not alone compel a change of venue. (People v. Edwards (1991) 54 Cal.3d 787, 807 [murder of a 12-year-old girl].) As the trial court recognized, neither the size of the community, nor the defendant’s status within the community, nor the victim’s prominence supported a change of venue. Defendant was not an outsider in any significant respect, and the victim was little known before her death. Although her death generated “an understandable outpouring of sympathy,” she “had no particular celebrity status in the community.” (Id. at pp. 807-808.) Moreover, prospective jurors would sympathize with Samantha Runnion’s fate wherever the trial was held. “The horrendous crime, not the locale of trial, evokes the sympathy.” (Id. at p. 808.) Orange County is one of the most populous counties in California, a factor that “weighed heavily against a change of venue.” (Id. at p. 807.)
As the trial court recognized, the extensive publicity was the factor most heavily supporting a change of venue. But, as the court also found, the publicity had dissipated over time. Trial was held two years and nine months after the crime and the initial outpouring of publicity. Other highly publicized cases had taken “center stage.” The public opinion surveys suggested that within a few months of the trial the case still remained in the public consciousness. But it was reasonable for the trial court to conclude that actual voir dire — during which the court and parties could question the jurors face to face — was a more reliable way to measure the effect of pretrial publicity than a survey conducted by a person chosen by one of the parties.
Accordingly, we conclude the court did not err in deferring a final decision until jury selection. During jury selection, another factor entered the case: the John and Ken Showon radio station KFI, which urged a death verdict in this case during the jury selection process itself. As defendant notes, transcripts indicate the show went so far as to state that it would be “great” “to have a John and Ken stealth juror.” But the court was warned about the show’s activities and took steps to prevent them from tainting the actual jury, including questioning the prospective jurors about whether they had listened to the program. The radio program did not alone compel a change of venue.
But even if we were to assume it was not reasonably likely defendant could receive a fair trial at the time of the motions, defendant has not shown that it is reasonably likely he did not in fact receive a fair trial. On the contrary, this record shows that he did receive a fair trial. Citing Sheppard v. Maxwell (1966) 384 U.S. 333, defendant contends the reasonably likely test this court has established is not the correct standard of prejudice. Rather, he argues the standard for federal constitutional error applies, and the People must prove he received a fair trial beyond a reasonable doubt. However, in Sheppard, the high court “concluded that Sheppard did not receive a fair trial,” which required the judgment be reversed. (Id. at p. 335.) That court has never held the prosecution must prove beyond a reasonable doubt that a defendant received a fair trial. If a defendant did not receive a fair trial, the judgment must be reversed. But it is appropriate to use the reasonable likelihood test to determine whether he did receive such a fair trial.
Indeed, the high court has used a comparable test in analogous situations. A defendant claiming ineffective assistance of counsel must establish a “reasonable probability” of prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 694.) Even more closely analogous is the high court’s test for determining whether instructional error occurred. The high court asks whether it is reasonably likely the jury applied the challenged instruction in a way that violated the Constitution. (Estelle v. McGuire (1991) 502 U.S. 62, 72-73 & fn. 4.) A comparable test is appropriate on appeal from the denial of a change of venue.
Defendant also contends the publicity was so pervasive, and the John and Ken Show so poisonous, that prejudice must be presumed and need not be established. (See generally People v. Prince (2007) 40 Cal.4th 1179, 1216-1218.) We disagree. The United States Supreme Court recently made clear that a “presumption of prejudice . . . attends only the extreme case.” (Skilling v. United States (2010) 561 U.S. 358, __ [130 S.Ct. 2896, 2915] (Skilling) [finding pervasive publicity from the Enron scandal did not require that prejudice be presumed].)
This case is far different from the cases, discussed in Skilling, supra, 561 U.S. 358 [130 S.Ct. 2896], in which the high court did find a presumption of prejudice. In Rideau v. Louisiana (1963) 373 U.S. 723, three times shortly before trial in the small community (Calcasieu Parish) where the trial was held, a local television station had broadcast the defendant’s confession, taken before the defendant was represented by counsel, which had been filmed without the defendant’s consent. “What the people of Calcasieu Parish saw on their televisions sets was Rideau, in jail, flanked by the sheriff and two state troopers, admitting in detail the commission of the robbery, kidnapping, and murder, in response to leading questions by the sheriff.” (Id. at p. 725.) It was estimated that over a third of the community had watched at least one of the televised confessions, and three actual jurors had done so. (Id. at pp. 724-725.) The high court found that the “kangaroo court proceedings” in which “the people of Calcasieu Parish saw and heard, not once but three times, a ‘trial’ of Rideau in a jail, presided over by a sheriff, where there was no lawyer to advise Rideau of his right to stand mute,” violated the defendant’s right to a fair trial. (Id. at pp. 726-727.)
The Skilling court explained that in Estes v. Texas (1965) 381 U.S. 532, “extensive publicity before trial swelled into excessive publicity during preliminary court proceedings as reporters and television crews overran the courtroom and ‘bombard[ed] . . . the community with the sights and sounds of’ the pretrial hearing. The media’s overzealous reporting efforts . . . ‘led to considerable disruption’ and denied the ‘judicial serenity and calm to which [Billie Sol Estes] was entitled.’ ” (Skilling, supra, 561 U.S. at p. __ [130 S.Ct. at p. 2914].) Another high court opinion described the trial in Estes as having “been conducted in a circus atmosphere.” (Murphy v. Florida (1975) 421 U.S. 794, 799.)
The Skilling court discussed the third case. “Similarly, in Sheppard v. Maxwell, 384 U.S. 333 (1966), news reporters extensively covered the story of Sam Sheppard, who was accused of bludgeoning his pregnant wife to death. ‘[B]edlam reigned at the courthouse during the trial and newsmen took over practically the entire courtroom,’ thrusting jurors ‘into the role of celebrities.’ Id. at 353, 355. Pretrial media coverage, which we characterized as ‘months [of] virulent publicity about Sheppard and the murder,’ did not alone deny due process, we noted. Id. at 354. But Sheppard’s case involved more than heated reporting pretrial: We upset the murder conviction because a ‘carnival atmosphere’ pervaded the trial, id. at 358.” (Skilling, supra, 561 U.S. at p. __ [130 S.Ct. at p. 2914].)
This case, like Skilling, does not present such an “extreme case.” (Skilling, supra, 561 U.S. at p. __ [130 S.Ct. at p. 2915].) There was no circus or carnival atmosphere, no spectacular confession repeatedly televised in a small community and seen by three actual jurors. Although there was indeed much publicity about this case, especially around the time of the crime, that alone did not make this such an extreme case. “ ‘[P]retrial publicity — even pervasive, adverse publicity — does not inevitably lead to an unfair trial.’ ” (Id. at p. __ [130 S.Ct. at p. 2916].) In Sheppard v. Maxwell, supra, 384 U.S. 333, the high court suggested that if there is “a reasonable likelihood” that publicity “will prevent a fair trial, the judge . . . continue the case until the [publicity] abates.” (Id. at p. 363.) Here, trial was held some two years, nine months after the crime.
The efforts of the John and Ken Show, although a concern, do not themselves make this an extreme case. We see no reason to assume that a court, forewarned, cannot control possible prejudice from a single radio station, one of many in a major metropolitan area. As the Skilling court noted, the high court “decisions have rightly set a high bar for allegations of juror prejudice due to pretrial publicity. [Citations.] News coverage of civil and criminal trials of public interest conveys to society at large how our justice system operates. And it is a premise of that system that jurors will set aside their preconceptions when they enter the courtroom and decide cases based on the evidence presented.” (Skilling, supra, 561 U.S. at p. __, fn. 34 [130 S.Ct. at p. 2925, fn. 34].) We will not presume prejudice; defendant has to show it.
He has not shown prejudice. In determining whether defendant in fact received a fair trial, “we consider the jury voir dire to determine whether the jurors may have been prejudiced by the pretrial publicity surrounding the case, bearing in mind that no presumption of a deprivation of due process of law arises from juror exposure to publicity concerning the case.” (People v. Proctor (1992) 4 Cal.4th 499, 526-527.) Here, the record shows the jurors were not prejudiced.
After the main jury had been selected, defense counsel stated she wished to peremptorily challenge six other jurors, specifically Juror Nos. 151, 194, 201, 210, 211, and 225. In this appeal, defendant asserts that all six “had acknowledged varying degrees of exposure to the publicity. These jurors had acknowledged prejudging [his] guilt based upon information they had received from the media, beyond the information provided to them by the court . . . .” The record does not support the assertion.
The jury questionnaires the prospective jurors were directed to fill out provided basic information about the facts of the case, then asked whether the prospective jurors had been exposed to publicity regarding the case.
Juror No. 151 stated on the questionnaire that he had “heard [of the case] on TV” but knew nothing about defendant and had no opinion about the case. During voir dire, he said that from “TV, the name was familiar,” but he could recall nothing specific, and had formed no opinion, about the case.
Juror No. 194 stated on the questionnaire that, a “long while” previously, she had viewed “television news, general facts of the case, an interview of the mother of Samantha Runnion.” But she recalled “nothing” about defendant and had formed no opinion regarding his guilt. During voir dire, she said she could recall nothing specific about the case beyond the information already provided and reiterated that she had formed no opinion about it.
Juror No. 201 stated on the questionnaire that she had heard of the case “briefly on the news” but knew nothing about defendant and had formed no opinion about the case. During voir dire, she said she had heard only “what was on the news” but had not heard enough to form an opinion.
Juror No. 210 stated on the questionnaire that the juror had “read local newspaper reports (e.g., LA Times) and saw reports on local TV news,” but knew about defendant “only that he was arrested.” The juror had formed no opinion about the case. During voir dire, the juror remarked about hearing of the crime “just early on when the event took place in the newspaper and TV,” but nothing had jogged the juror’s memory, and the juror had no opinion regarding the case.
Juror No. 211 stated on the questionnaire that the juror had viewed “basically what was mentioned above [in the questionnaire] from TV news coverage” and knew about defendant “just that he was charged w/ the crime.” The juror had formed no opinion about the case. During voir dire, the juror said, “I didn’t really recall any details [about the case] though. I have thought about it more since I’ve been here.” The juror had no opinion at all about the case.
Juror No. 225 stated on the questionnaire, “I recall reading of Samantha’s murder and not much more.” He knew nothing about defendant and had formed no opinion about the case. During voir dire, the juror described his advance knowledge of the case as “sketchy” and said he had not formed any opinion about it. On questioning by defense counsel, he said that Samantha Runnion’s death was “heart wrenching,” but added, “I have not made a judgment to anyone’s guilt.” He said his emotional reaction to the publicity would not make him more anxious to convict than in any other case. When asked whether he listened to the John and Ken Show on KFI, he responded that he carpools and “there are times I think they have it on.” But he added that would not be a problem because he would just ask them to change the channel.
In sum, this record shows these six jurors had no knowledge of the case beyond the information they received in the selection process, and none had a preexisting opinion about it. Although a preexisting opinion is not disqualifying if the juror can set the opinion aside and decide the case solely on the evidence presented in court (People v. Rountree, supra, 56 Cal.4th at p. 840), these jurors did not even present that issue. It is true that one of the jurors said he found the victim’s death “heart wrenching.” But that circumstance has nothing to do with the locale of the trial and everything to do with the facts of the case. Any person familiar with the facts, as all jurors anywhere would inevitably become, could find Samantha’s death “heart wrenching.” The question is whether that person could fairly judge guilt. Nothing suggests this juror, or any of the others, could not do so.
As defendant notes, one of the actual jurors said he had recently listened to the John and Ken Show. This juror was not one of those defendant had wished to excuse at trial. And for good reason. The juror also said he had no knowledge of the case, he listened to “a lot of different programs,” he had listened to the John and Ken Show for a while even though he disagreed “with 99 percent of it,” and he had never listened to anything about this case. He described John and Ken as “being loud and screaming” and made clear the show did not and would not influence him.
Defendant also notes that the jury convicted him of all charges and found true both of the charged special circumstances. We and the United States Supreme Court have sometimes cited a split verdict, with some portions favoring the defendant, as further indicating the jury was fair and impartial. (See Skilling, supra, 561 U.S. at p. __ [130 S.Ct. at p. 2923]; People v. Harris (2013) 57 Cal.4th 804, 831.) It is true that this additional indication of jury impartiality is lacking here. But defendant was charged with only four counts: kidnapping, two counts of a lewd and lascivious act, and murder. The evidence showed beyond question that the perpetrator of this crime did kidnap Samantha, did commit at least two lewd and lascivious acts on her (the vaginal sexual assault and the anal sexual assault), and did murder her under the two alleged special circumstances. Once the jury found that defendant was the perpetrator — a finding the evidence strongly supports — conviction on all counts and a true finding of both special circumstances was virtually inevitable. The verdict does not suggest bias.
The trial judge was satisfied the actual jury was fair. “When pretrial publicity is at issue, ‘primary reliance on the judgment of the trial court makes [especially] good sense’ because the judge ‘sits in the locale where the publicity is said to have had its effect’ and may base her evaluation on her ‘own perception of the depth and extent of news stories that might influence a juror’ [Citation.] . . . [¶] Reviewing courts are properly resistant to second-guessing the trial judge’s estimation of a juror’s impartiality, for that judge’s appraisal is ordinarily influenced by a host of factors impossible to capture fully in the record — among them, the prospective juror’s inflection, sincerity, demeanor, candor, body language, and apprehension of duty. [Citation.] In contrast to the cold transcript received by the appellate court, the in-the-moment voir dire affords the trial court a more intimate and immediate basis for assessing a venire member’s fitness for jury service.” (Skilling, supra, 561 U.S. at p. __ [130 S.Ct. at p. 2918].) Even the cold record here fully supports the trial judge’s estimation of the jury’s impartiality.
This record presents no reason to find a reasonable likelihood that defendant did not receive a fair trial before impartial jurors. “Stated slightly differently, we are confident the guilt and penalty verdicts were due to the evidence presented at trial and not to a biased jury or the failure to change venue.” (People v. Rountree, supra, 56 Cal.4th at p. 841.)