If there is any lingering doubt as to the need for a venue change in a penalty trial, what is the test for venue change?

California, United States of America

The following excerpt is from Martinez v. Superior Court for Placer County, 108 Cal.App.3d 664, 166 Cal.Rptr. 756 (Cal. App. 1980):

If "any lingering doubt" remains as to the need for a venue change, it is provided by Penal Code section 190.1, which requires a two-phase proceeding to determine first the guilt, then the penalty, of a defendant accused of murder. While the jurors are cautioned to consider only the evidence properly before them in the guilt phase, there is no such caution at the penalty stage. The effect of this differentiation on the question of venue change, was articulated in People v. McKay (1951) 37 Cal.2d 792, 799, 236 P.2d 145, 150: "By law the determination of the penalty is left solely to the discretion of the jury (Pen.Code, 190), and accordingly, it was of vital importance that they should exercise that discretion free from bias, prejudice, or pressure from the community."

I would let the writ issue.

* Assigned by the Chief Justice.

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