PEOPLE v. CLEOPHUS PRINCE, JR

Filed 4/30/07

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )

)

Plaintiff and Respondent, )

) S036105

v. )

)

CLEOPHUS PRINCE, JR., )

) San Diego County

Defendant and Appellant. ) Super. Ct. No. CR130018

__________________________________ )

Story continued from Part I .

Count 23  the burglary of Patricia Vans residence

Approximately one month after the attempted burglary of the Van residence (count 19), Patricia Vans home was burglarized. On January 21, 1991, Vans husband discovered that the sliding door to the patio had been damaged with a tool of some kind. On January 23, 1991, at approximately 9:20 a.m., Van returned from her usual class at the Miramar Road Family Fitness Center. Once inside her home, she discovered that the patio door was open; a window screen was propped up in the kitchen, and the kitchen window was broken. The residence had been ransacked. A butcher knife had been placed on the kitchen counter. Jewelry had been stolen, and that same afternoon defendant drove his acquaintance Mary Ann Knight to a pawnshop where she pawned an earring similar to one stolen from Van.

Count 24  the attempted burglary of Angela and Renata Yatess residence

On January 24, 1991, an African-American man driving a gray vehicle with a loud muffler followed Angela Yates, then 19 years of age, as she drove home from the Miramar Road Family Fitness Center. She became aware that she was being followed, and attempted to evade her pursuer. She arrived home, and while she showered, her mother, Renata, observed a shadow moving in the backyard. Upon inspecting, Renata discovered defendant, whom she later positively identified. When he moved toward a sliding door, Renata screamed to her daughter to call the police and to grab the gun. Their dog ran outside, and defendant ran away. Neighbors witnessed an African-American man jump over the Yatess fence and run to his vehicle. He appeared agitated as he attempted to enter the vehicle, and drove off rapidly. The muffler of the vehicle was noisy.

Count 25  the burglary of Louis Depamphilliss residence

Louis Depamphillis returned to his home on Nobel Drive close to midnight on February 1, 1991. He had left his screened front window ajar. When he returned, the screen had been removed. His camera bag and jewelry boxes had been moved. When he went to a friends apartment to telephone the police, he noticed an African-American man driving away in an older model bluish-gray vehicle with a loud muffler, possibly matching the photograph of defendants automobile. When the police responded to Depamphilliss call, they noticed an adjacent apartment had an open front window from which the screen had been removed. Police left a note for the occupant stating the apartment had been burglarized. When he eventually was arrested, defendant was wearing a ring that had been stolen from Depamphilliss residence during the burglary.

Count 26  the burglary of Judy Kinneys residence

On February 3, 1991, after a two-day absence, Judy Kinney returned to her apartment on Nobel Drive not far from the Miramar Road Family Fitness Center, where she was a member. The screen to a front window had been removed, and the apartment had been ransacked. Her jewelry and lingerie drawers were open, and lingerie was draped on the drawers. Her emerald ring and a gold chain had been stolen. Defendant gave Kinneys emerald ring to Brittan Lewis and the gold chain to Charla Lewis. Kinney believed she had been followed home from the Family Fitness Center on Miramar Road approximately one month prior to the burglary.

Count 27  the attempted burglary of Geralyn Peters Venvertlohs residence^[1]

On the morning of February 3, 1991, Geralyn Peters Venvertloh returned home to her Scripps Ranch apartment from her usual morning workout at the Family Fitness Center on Miramar Road. She undressed for a shower, then heard the knob on the front door rattling. She looked out and saw an African-American man leaning against the door with his hands in the area of the doorknob. She dressed and exited from her apartment through a sliding glass door and proceeded to the back of the apartment complex. She screamed for help. Her neighbor, Jeffrey Pich, responded. When Venvertloh and Pich walked to the front of her apartment, they observed the man still standing at the door, bent over and working at the door with some object. He wore gloves. When challenged, the man claimed he was looking for his fianc or a female friend whom he claimed to have seen entering Venvertlohs home. He walked away calling out a womans name. Pich walked down the street looking for the would-be intruder and soon observed the man in question driving away in a noisy vehicle at a high rate of speed. Geralyn Peters Venvertlohs then-fianc, Mark Venvertloh, arrived home and also witnessed an African-American man enter an older silver-colored vehicle and drive away noisily at a high rate of speed. Having examined the intruder closely on that occasion, Pich identified defendant as the man he had seen on the front step of his neighbors residence.

The next day, Geralyn Venvertloh, who was employed at the same location as Charla Lewis, witnessed a man drop off Lewis at work. The man resembled defendant and drove an older model vehicle that had a loud muffler. Pich identified defendant in a photo lineup that same day. One month later Pich identified a photograph of defendants automobile, and later confirmed that the vehicle sounded like the one he had witnessed when defendant fled from Venvertlohs apartment.

A police officer took statements from Geralyn Peters Venvertloh, Pich, and Mark Venvertloh, and proceeded to the Family Fitness Center on Miramar Road with a description of the vehicle and the suspect. The officer asked fitness center employees to inform the police in the event they witnessed either the man or the vehicle in the vicinity of the establishment. The next morning, February 4, 1991, the fitness centers front desk manager informed the police that she had observed a silver-colored automobile with a loud muffler driven by an African-American man proceed through the fitness centers parking lot, returning 15 minutes later. The employee observed the vehicle parked 30 feet from her office window and watched as the driver moved to the passenger side of the vehicle and slumped down. She was able to observe part of the vehicle license number, which she relayed to the police. Law enforcement officers arrived 15 minutes later and confronted defendant, the occupant of the vehicle.

Defendant informed the officers that he was waiting for his girlfriend, Cindy. A person named Cindy was present at the fitness center at the time, and although she was acquainted with defendant, she was not his girlfriend and had no plan to meet him that day. The officers placed defendant under arrest.

A search of defendants vehicle uncovered a pair of black leather gloves in the center console and a pair of wool gloves on the drivers seat. Under the drivers seat was a knife with an eight-inch blade and a five-inch handle. On the right front floorboard was a folding knife with a two-and-one-half-inch blade and a four-inch handle. Under the front seat were a steak knife and a small folding pocket knife.

Other employees of the fitness center had observed defendants vehicle in the centers parking lot on multiple occasions. They had seen a person who may have been defendant seated in the vehicle, slumped in the passenger seat.

Defendant was questioned and released after providing the police with a blood sample. Subsequently, on February 23, 1991, an undercover police officer witnessed defendant drive into the Miramar Road Family Fitness Center parking lot and, slowing as he observed a marked police vehicle parked in the lot, exit the centers parking lot and drive away at a high rate of speed. The muffler of his vehicle made a loud sound.

Defendant was arrested on March 1, 1991, in Birmingham, Alabama.

As discussed at greater length post, FBI Special Agent Larry Ankrom testified that the six murders bore common marks that led him to believe they all were committed by the same person.

2.The defense case

Two police officers testified that defendants automobile would not start without manual manipulation under the hood, and would function only if a metal object such as a screwdriver were placed under the hood to make an electrical connection. Officers observed defendant start the vehicle in this manner while they had him under surveillance. Defendant produced evidence indicating that jewelry traced to the burglaries of the DePamphilis and Kinney residences and the murder of Keller was not custom-made but was available commercially. Charla Lewis testified that during the time she resided with defendant, he never arrived home in an agitated state or stained by blood. Defendant introduced evidence establishing that many companies other than his employer distributed to their employees gloves with the distinctive honeycomb or cross-hatch pattern that may have been used during the murders.

Statements of various prosecution witnesses were impeached.

Marsha Nelson, who was a neighbor of murder victim Janene Weinhold and observed defendant seated on the steps leading to Weinholds apartment on the day of the murder, had told a police interviewer immediately after the crime was discovered that the man she saw on the steps had his head in his hands the entire time she looked at him and that she was unable to see his face. Nelson had circled defendants number at the live lineup, then crossed it out, explaining that too much time had elapsed since the crime. Karyl Oldenburg (count 22) told the police at the time of the attempted burglary of her home that she might not be able to identify the perpetrator in a lineup. Oldenburgs identification of defendant was made after she had seen his picture in the newspaper, and although she identified defendant in a video lineup and at trial, she testified that unlike defendant, the man she saw at her front door did not have facial hair. Dorothy Curtiss, the apartment manager of the complex where Schultz was murdered, failed to make an identification at the live lineup even though she identified defendant at trial. Rodney Dunn, a maintenance worker at the apartment complex, cast doubt on Curtisss testimony that it was defendant who approached her seeking assistance on the day of Schultzs murder. On the day Schultz was murdered, Dunn, who was familiar with defendants appearance, was approached before noon by an African-American man who was not defendant. The man asked for a screwdriver because he had locked himself out of his car. The witness assisted the man in unlocking a vehicle that was not defendants. Richard Williams, the maintenance worker who entered murder victim Tarrs apartment with witness Ho to render assistance, had observed the perpetrator running toward him, but described that individual as probably Hispanic and selected someone other than defendant at the lineup.

A witness, Carol Dhillon, testified she had observed an encounter at the Buena Vista Gardens apartment complex similar to the incidents attributed to defendant, but the perpetrator was not defendant. On a morning in mid-March 1990, her 22-year-old daughter was taking a shower when Dhillon observed an African-American man looking up at her apartment. Ten or 15 minutes later, when she retrieved the newspaper from her front step, the man pushed open the front door and said he was looking for his cousin. Dhillon closed the door. The visitor was not defendant. She saw the visitor again approximately two hours later, sitting on or standing by a parked older model automobile.

Shirley Beasley, who on direct examination had testified that he had burglarized homes with defendant and had attributed incriminating statements to defendant, was flown to San Diego, where the police department paid for his lodging while he underwent interrogation. Beasley thereafter was arrested for robbery. He was in custody but had not yet been sentenced when he testified for the prosecution at defendants preliminary examination. The prosecutions investigator testified on Beasleys behalf at his sentencing, explaining that Beasley had been of assistance in the present case. Beasley was sentenced to four years in prison, a relatively light sentence. He was given immunity from prosecution for the burglaries he committed with defendant and for any other crimes he admitted in the course of his interrogation in the present case. One of Beasleys comments indicated he was interested in receiving the reward offered for capture of the so-called Clairemont killer.

Christine Fagan testified defendant had lunch with her on May 2, 1990, until approximately 2:30 p.m. on the day Leslie Hughes-Webb was attacked. They met at a location that would have made it extremely difficult for defendant to arrive at the beach by the time of the attack. Fagan observed defendant wearing a gold nugget ring similar to the one the prosecution claimed had been stolen during the Keller murder, but Fagans meeting with defendant occurred prior to that murder. (Under cross-examination by the People, Fagan added that defendant had stared intently at her during their lunch and aggressively demanded that she go somewhere with him, frightening her.)

Raymond Huntley, the jailhouse informant, was impeached. He had been convicted of multiple burglaries, robberies, and rapes, had escaped from a Florida prison, was facing a sentence of at least 20 years, and was a prison escapee at large in San Diego when he was arrested. He shared a cell only briefly with defendant, later being returned to Florida to complete his prison term. Approximately four months after his conversation with defendant, Huntley contacted the prosecution from Florida to offer information. In exchange for his testimony against defendant, he received various benefits, including a transfer from a Florida prison to one in California and a potential early release date.

Defendant also presented the testimony of an expert in the phenomenon of eyewitness identification. She explained the many flaws in such identification and the factors undermining accuracy, including fear, the lapse of time, the reinforcement of opinion that occurs during multiple proceedings, and the effect of a threat with a weapon on the accuracy of observation. She explained that a persons confidence in his or her identification is not indicative of the reliability of the identification.

In rebuttal, the prosecution presented evidence establishing that the murders occurring at the Buena Vista Gardens apartment complex ceased after defendant moved out in the first week of May 1990.

The jury found defendant guilty of the charged offenses and found true the knife-use and special circumstance allegations.

B. Penalty Phase Evidence

1. The prosecutions case

The prosecution presented evidence indicating that on December 7, 1991, prior to the trial, a search of defendants jail cell produced a toothbrush with a razor attached  a makeshift weapon typically known as a shank. The object was hidden between the mattresses on defendants bed.

The prosecution presented evidence of an additional jailhouse incident involving defendant. Deputy Samuel Sheppard testified that on November 22, 1991, when he arrived to conduct inmates from a recreation area to their cells, defendant told the deputy that he would kick [his] sweet ass, directing threatening gestures at the deputy while uttering these words. Defendant continued to taunt or threaten the deputy, who grabbed defendant and pushed his face against the wall. Defendant struck Sheppard in the ribs with his elbow and tried to trip him. Sheppard forced defendant to the ground. Other deputy sheriffs assisted in subduing defendant.

The prosecution also presented the testimony of several family members of the murder victims. The parents of murder victims Schultz, Weinhold, and Tarr testified, as did Kellers daughter. They described the victims and the impact of the murders upon the families.

The prosecution played an approximately 25-minute videotape of a television interview with Tarr that had been prepared by a local television station in her hometown a few months prior to her murder. The program marked the accomplishments of certain successful local high school students. In the interview, Tarr described her interests and activities, as well as her plans for college and for a potential career as an actress.

2. The defense case

The defense presented the testimony of various members of defendants family and of one of his friends. These witnesses described defendants childhood, the circumstance that when he was two years of age his father was convicted of murder and subsequently served 11 years in prison, and defendants formative years spent in a rundown, crime-ridden housing project in Alabama. Defendant was extremely short in stature as a child. These witnesses offered evidence of defendants good character, including his close relationship with his paternal grandmother and faithful visits to her, his visits to his father in prison, his industriousness, his protective attitude toward relatives, his compassion, and his generosity. Various relatives and a former girlfriend expressed their love for defendant and asked the jury to spare his life.

A sociologist described the negative attributes of the housing project where defendant resided as a child, and offered the opinion that circumstances such as family violence, inadequate housing conditions, poor education, drug and alcohol abuse, and gang activity were harmful to a childs development. A high school counselor described defendants development into a responsible person, and a pastor testified concerning defendants church activities. A former employee of the Department of Corrections described the prison conditions experienced by persons sentenced to life imprisonment without the possibility of parole. The testimony of a fellow inmate suggested that defendant had not been the instigator of the conflict with Deputy Sheppard.

II. DISCUSSION

A. Claims Affecting the Guilt Phase of the Trial

1. Motion for change of venue

Defendant contends extensive pretrial publicity required a change of venue. He claims the trial courts failure to grant his motions for change of venue ( 1033, subd. (a)) constituted prejudicial error under state law and a violation of his right to due process of law and to a fair trial by an impartial jury as guaranteed by the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution. We disagree.

a. Factual background

The charged offenses occurred between January 1990 and February 1991. Defendant was apprehended in March 1991. The preliminary examination commenced on February 24, 1992. Defendant filed a motion for change of venue on September 14, 1992. In support of his motion for change of venue, the defense proffered evidence of the more than 270 newspaper articles that had appeared concerning the crimes, the criminal investigation, defendants eventual arrest in Alabama and extradition, and the preliminary examination. There was evidence suggesting that television coverage was similar in extent, as the parties stipulated. It also was stipulated that one television station used defendants image in quick cuts along with the images of Robert Alton Harris and Craig Peyer, persons who had been convicted of murder in San Diego County. Defendants image was on the screen for under a second and a half.

As might be expected when a series of six similar murders occurs in a community over a period of approximately one year without a culprit being quickly identified, the publicity in the present case was pervasive and occasionally potentially prejudicial  particularly during the period the crimes remained unsolved and the perpetrator remained at large. Newspaper articles recounted the growing fear among residents of the neighborhoods where the crimes occurred; articles noted the apparent connection among the crimes, and the eventual designation of the murders as serial killings; articles recounted the increasing police resources devoted to the investigation, which eventually was the most extensive in San Diego County history; articles recounted the disproportionate impact of the investigation upon African-American men in the affected neighborhoods, and assertedly prejudicial articles predicted another attack and compared the crimes to those committed by the notorious Jack the Ripper.

Defendant also proffered articles recounting his arrest in Alabama and the relief that ensued among residents of San Diego, especially in neighborhoods in which the murders had occurred; his efforts to resist extradition from Alabama; and providing negative information concerning his family, including his fathers conviction of murder. In addition, he presented articles in which persons surmised they had experienced close brushes with defendant and might have been his next victim. News articles noted that defendant was suspected of having committed two additional unsolved murders and mentioned his Navy court-martial for theft. An article described defendants eviction from the Top of the Hill apartment complex for participating in a fight. The crimes were featured on the television program Americas Most Wanted.

Defendant also presented evidence indicating that the news media had reported on damaging evidence that was uncovered during the investigation and also at the preliminary examination, including testimony by identification witnesses, statements to the press, and preliminary examination testimony attributing incriminating statements to defendant, lab results claiming a DNA match between samples taken from defendant and evidence found at the scene of the Weinhold murder, and the circumstance that defendants girlfriend possessed jewelry stolen from the victims.

The defense also presented the testimony of Paul Strand, an expert who conducted a public opinion survey in February 1992, prior to the preliminary examination. According to Strand, approximately 74 percent of the 300 persons surveyed were aware of the case despite the circumstance that only two related news items had appeared during the previous six months. Of those aware of the case, Strand reported that 25 percent were predisposed to find defendant guilty. Strand conducted another survey in September 1992. Seventy-seven percent of the respondents were aware of the case and, of that group, 24 percent were predisposed to find defendant guilty. There had been a burst of publicity around the time of the preliminary examination in February and March of 1992, but very few news items appeared between April and mid-September of 1992.

The trial court acknowledged that the crimes had been serious and the publicity intense. The court noted that neither the victims nor the defendant had been prominent or notorious other than in connection with the charged crimes. To the extent defendant was an outsider, the court observed that San Diego is a Navy town, where many individuals might be considered outsiders. The court observed that Tarr, one of the murder victims, also was an out-of-town visitor, and commented that other victims lacked long-standing ties to the community.

The court also commented that sensational news coverage concerning crime permeates our culture in general, and surmised that citizens become inured to such coverage or accord it the same weight as entertainment. The court distinguished the present case from another San Diego County prosecution, that of Robert Alton Harris (see People v. Harris (1981) 28 Cal.3d 935), concluding that the news coverage in the present case lacked the animosity and prejudgment that had been conveyed in press reports concerning Harris and, rather, left open the question of defendants guilt. Moreover, the investigation continued for a protracted period, during which two persons other than defendant were arrested, and residents appeared uncertain whether defendant actually was the culprit. Turning to the public opinion surveys, the court commented upon the size and diversity of the countys population and upon the circumstance that the surveys demonstrated that a low percentage of potential jurors had formed an opinion concerning defendants guilt. Under these circumstances, the court could not conclude it was reasonably likely that counsel and the court would be unable to empanel a fair jury.

The court anticipated that were going to see a lot of people on the panel who are familiar with the case, but also anticipated that even persons who casually stated a belief in a defendants guilt to a poll taker would find that, as jurors, the seriousness of the trial would cause them to set aside their assumptions and judge the case based upon the evidence presented in court.

Further, the court reminded counsel that its going to be one of our tasks in jury selection to talk to people whove seen the evidence and ask whether theyve come to a conclusion. And whatever they say, whether its yes or no, thats obviously not going to be conclusive . . . .

Defendant moved for reconsideration, supplying previously unavailable videotapes of television news coverage of the crimes. According to defendants pleadings, San Diegos channel 39 repeatedly combined defendants image with the images of three convicted murderers from San Diego and various other newsworthy images as part of the brief spots promoting one of its news programs. According to defendant, this advertisement appeared 950 times over a 13-month period ending approximately six months prior to the present trial.

Speaking in connection with his motion for reconsideration, defense counsel stated that he expected to renew the motion for change of venue once we commence jury selection and once the court really sees the nature of publicity, how it has affected people. Counsel did not renew the motion, however.

The case was reassigned to another judge for trial. That judge denied the motion for reconsideration, adopting the analysis and conclusion of the court that had heard the original motion.

b. Analysis

State law provides that a change of venue must be granted when the defendant demonstrates a reasonable likelihood that a fair trial cannot be held in the county. ( 1033; People v. Vieira (2005) 35 Cal.4th 264, 278-279.)   The factors to be considered are the nature and gravity of the offense, the nature and extent of the news coverage, the size of the community, the status of the defendant in the community, and the popularity and prominence of the victim.   (Id. at p. 279.)

On appeal, we conduct de novo review of the evidence presented to the superior court to determine whether the court should have granted a change of venue. (People v. Jenkins (2000) 22 Cal.4th 900, 943.) In addition, on appeal   the defendant must show both that the court erred in denying the change of venue motion, i.e., that at the time of the motion it was reasonably likely that a fair trial could not be had, and that the error was prejudicial, i.e. that it [is] reasonably likely that a fair trial was not in fact had.   (Ibid.)

We agree with the superior court that the nature of the crimes and the intensity of publicity in the present case might weigh in favor of a change of venue, but  the same could be said of most multiple or capital murders. This factor is not dispositive. [Citation.] (People v. Dennis (1998) 17 Cal.4th 468, 523.) San Diego Countys population at the time of the trial was estimated at two million persons, and  [t]he larger the local population, the more likely it is that preconceptions about the case have not become imbedded in the public consciousness. . . . The key is whether . . . the population is of such a size that it neutralizes or dilutes the impact of adverse publicity. [Citation.] (People v. Jennings (1991) 53 Cal.3d 334, 363; see also People v. Harris, supra, 28 Cal.3d at p. 949.) We have concluded that even a lower population of 1.4 million (Santa Clara County) suggests that any prejudicial publicitys effect would be diluted or neutralized over time. (People v. Dennis, supra, 17 Cal.4th at p. 523.)

Neither defendant nor the victims were prominent or notorious apart from their connection with the present proceedings. As in other cases, [a]ny uniquely heightened features of the case that gave the victims and defendant any prominence in the wake of the crimes, which a change of venue normally attempts to alleviate, would inevitably have become apparent no matter where defendant was tried. (People v. Dennis, supra, 17 Cal.4th at p. 523.) We acknowledge the prejudice that may have attended the circumstances that defendant is African-American and the victims all were White women, and that the crimes included one rape and other crimes having sexual undertones. (See People v. Williams (1989) 48 Cal.3d 1112, 1129.) This element of possible prejudice presumably would follow the case to any other venue, however. (See People v. Dennis, supra, 17 Cal.4th at p. 523; see also People v. Cooper (1991) 53 Cal.3d 771, 806.) The publicity did not emphasize defendants race or employ inflammatory terms to kindle racial hatred.

We also observe that the bulk of the publicity upon which defendant relies was disseminated between the time of the second murder in February 1990 and the time the preliminary examination took place in February 1992, and that approximately one additional year elapsed between that hearing and the commencement of jury selection in March 1993. The television promotional material of which defendant complained was withdrawn in July 1992. The passage of time ordinarily blunts the prejudicial impact of widespread publicity. (See People v. Jenkins, supra, 22 Cal.4th at p. 944; People v. Dennis, supra, 17 Cal.4th at p. 524; see also People v. Robinson (2005) 37 Cal.4th 592, 623.) We also may presume that potential and seated jurors did not read or watch news reports concerning the case against defendant that may have been disseminated during jury selection and the ensuing trial, because the jury questionnaire directed potential jurors not to expose themselves to news coverage for the duration of their service.

Defendant also fails to establish a reasonable likelihood that pretrial publicity in fact deprived him of a fair trial. Pervasive publicity alone does not establish prejudice. (People v. Panah (2005) 35 Cal.4th 395, 448.) Jurors who have been exposed to publicity still may serve.   It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.   (Ibid.; see also People v. Coffman and Marlow (2004) 34 Cal.4th 1, 45.)

The superior courts confidence that, despite the publicity, the venire would consist primarily of persons who had not formed an opinion as to defendants guilt was borne out by subsequent proceedings. Although a high percentage of the prospective jurors and 12 of the 13 jurors who actually served at trial (one juror was excused after the guilt phase and an alternate was substituted) had been exposed to the publicity, the jurors responses to the juror questionnaire and voir dire did not disclose any prejudgment or emotional bias. Rather, for the most part they displayed only a vague recollection of past news coverage, a circumstance suggesting the absence of prejudice. (People v. Jenkins, supra, 22 Cal.4th at p. 945.) Significantly, the jurors asserted that the publicity would not prevent them from serving as unbiased jurors. (See People v. Panah, supra, 35 Cal.4th at p. 448 [relying upon similar assertions]; People v. Coffman and Marlow, supra, 34 Cal.4th at p. 46 [same].) Defendant refers to voir dire answers of three of the seated jurors: Juror H.E., Juror J.G., and Juror A.W. None of these jurors made statements suggesting they had prejudged the case or were biased because of the pretrial publicity. (Juror H.E.  the juror remembered when defendant was arrested, but said it was not of great moment to him; Juror J.G.  he knew nothing specific, just that there were some killings in a certain neighborhood, and he had read nothing about the case since the time defendant was extradited to California; Juror A.W.  she read about the case and was frightened. When defendant was arrested, she asked herself is it him or not?)

Defendant insists we cannot believe jurors who are aware of publicity but profess not to have formed an opinion concerning guilt or otherwise to have been prejudiced by publicity. Although such assurances are not conclusive (People v. Jennings, supra, 53 Cal.3d at p. 361), neither do we presume that exposure to publicity, by itself, causes jurors to prejudge a defendants guilt or otherwise become biased. (People v. Jenkins, supra, 22 Cal.4th at p. 945.) [T]he Supreme Court has made clear that we cannot, as a general matter, simply disregard a jurors own assurances of his impartiality based on a cynical view of the human propensity for self-justification.  (DeLisle v. Rivers (6th Cir. 1998) 161 F.3d 370, 384.) It was the function of the voir dire examination to expose actual bias or prejudice, but the voir dire in this case did not demonstrate a biased or prejudiced jury. Courts must distinguish between mere familiarity with the defendant or the crime and an actual predisposition against the defendant. (Murphy v. Florida (1975) 421 U.S. 794, 800, fn. 4.) A court may discount a jurors claim to be untouched by publicity when most veniremen will admit to a disqualifying prejudice (id. at p. 803), but the venire in the present case was not pervaded by bias in this manner.

Moreover defense counsel did not renew the motion for change of venue at the conclusion of voir dire and, moreover, did not exhaust his peremptory challenges. Putting aside any question whether counsels inaction constituted a forfeiture of the issue on appeal, counsels conduct supports a reasonable inference that the defense did not believe that pretrial publicity had prejudiced the seated jurors or rendered them unable to afford defendant a fair trial. Indeed,  [t]he failure to exhaust peremptories is a strong indication that the jurors were fair and that the defense itself so concluded.   (People v. Dennis, supra, 17 Cal.4th at p. 524; see also People v. Robinson, supra, 37 Cal.4th at p. 623; People v. Coffman and Marlow, supra, 34 Cal.4th at p. 46.)

Defendant urges that no rational inference that counsel was satisfied with the jury can be drawn from counsels failure to exhaust peremptory challenges. He contends that the denial of the motion for change of venue had left defense counsel with a venire that was saturated with persons who had been exposed to the pretrial publicity and that included a substantial proportion of jurors who must have prejudged defendant. He adds that defense counsel were aware of which juror would be called should they exercise a peremptory challenge and may have found the next prospective juror even worse than the juror they might have excused.^[2]

In essence, defendant claims that the publicity was so pervasive and inflammatory that, under federal constitutional guarantees, prejudice must be presumed.

In exceptional cases,  adverse pretrial publicity can create such a presumption of prejudice in a community that the jurors claims that they can be impartial should not be believed, [citation] . . . . (Mumin v. Virginia (1991) 500 U.S. 415, 429, italics added.) The category of cases where prejudice has been presumed in the face of juror attestation to the contrary is extremely narrow. Indeed, the few cases in which the [high] Court has presumed prejudice can only be termed extraordinary, [citation], and it is well-settled that pretrial publicity itself  even pervasive, adverse publicity  does not inevitably lead to an unfair trial. [Citation.] (Delisle v. Rivers, supra, 161 F.3d at p. 382.) This prejudice is presumed only in extraordinary cases  not in every case in which pervasive publicity has reached most members of the venire. We do not believe the present case falls within the limited class of cases in which prejudice would be presumed under the United States Constitution.^[3]

We acknowledge that the high court has held that prejudice may be presumed in some limited instances. The court declared that although jurors who are familiar with some facts of the crime may be qualified to serve because they can put aside their views and reach a verdict based upon the facts in evidence, [a]t the same time, the jurors assurance that he is equal to this task cannot be dispositive of the accuseds rights, and it remains open to the defendant to demonstrate the actual existence of such an opinion in the mind of the juror as will raise the presumption of partiality. [Citation.] (Murphy v. Florida, supra, 421 U.S. at p. 800, italics added.)

Story continues as Part III .

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^[1] This witness had married and changed her surname from Peters to Venvertloh by the time of trial.

^[2] Defendant also claims that comments made by defense counsel, in seeking additional challenges after exhausting all they had for alternate jurors, demonstrated a dissatisfaction with the entire selected jury, not just the alternates. Defense counsel stated: We are in very bad  we didnt use hardly any, used any challenges on the major part. We are stuck with some very bad jurors. We are very upset with the jurors that we have.  The quoted comments, however, related to the alternates and suggest dissatisfaction with the venires attitude toward the death penalty, and do not connect counsels dissatisfaction with the pretrial publicity.

^[3] As in previous cases in which a defendant claimed error in denying a change-of-venue motion, [d]efendant argues he was denied a reliable determination of his penalty guaranteed by the Eighth Amendment, citing Caldwell v. Mississippi (1985) 472 U.S. 320, 328-329, which held that it is constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendants death lies elsewhere. He also cites Woodson v. North Carolina (1976) 428 U.S. 280, which invalidated a law that provided a mandatory penalty of death for all first degree murders. Defendant fails to explain how either of these [principles] has any relevance to the present case. (People v. Ramirez (2006) 39 Cal.4th 398, 436.)