When a case is set to go to trial, a defendant and his or her defense attorney can request a change of venue of the case if there is undue publicity surrounding the case and the defendant. This is done when it appears that a suitable jury pool may not be available in the area, due to influence by local media and concerned citizens.
California Penal Code Sections 1033-1038
The penal code covers the terms under which a change of venue can be made, such as a lack of suitable jurors and excessive publicity (1033.). There are a few ways to ensure that the defendant receives a fair trial of a jury of his peers, and one is to select a jury in another location and bring the group to where the trial will be held (1036.7), rather than moving the whole proceedings to another county.
However, a change of venue decision can also be reversed by the oversight of the appellate court against the original judgment (1033.1.). A hearing is called where the prosecution must show evidence that the original reason for the change of venue no longer exists, or if the defendant and the defense attorney consent to the change back to the original venue.
When a change of venue is made, all costs of transferring the case to the new venue, are paid by the transferring venue, including the defendant, if in jail.
Conviction and Sentencing
In a California criminal trial, the jury of 12 people decide by their vote to convict or not convict a defendant of the crime set forth during the trial. The judge handles setting the terms of the sentence put onto the defendant in a separate sentencing hearing.
The judge is also bound to the set range of penalties applied for the crime that was committed, and no more than that. For example, the judge may have an intense dislike for the defendant, but to add to a sentence beyond the scope of penalty boundaries would be to overstep his or her legal authority as a judge.
This also gives added protection to the defendant against a compromised case because of personal dislikes between competing attorneys and judges. When the sentence and penalty are set by the judge, the defendant and his or her defense attorney can file for an appeal.
Changing the Judge
Most defense attorneys and prosecutors, who have been around the court system for a while, have a pretty good read on the judges who are likely to oversee any cases they handle. They will know if a judge will sentence a defendant more harshly than another judge might.
If a change of judge is wanted by a defense attorney, a motion can be implemented, but only if there is suitable evidence that the defendant may not get a fair sentence. Other reasons for a change of judge are:
- If the judge has represented the defendant as a lawyer in an earlier case,
- The judge is a family member with one of the parties involved in the case,
- If the judge has a financial interest in the case’s outcome, such as a business arrangement.
In such situations, almost all judges will file a judicial recusal to avoid compromising the case and themselves.
If you have been charged with a criminal offense and need a defense team on your side, call us at once. (619) 234-2300
Kerry L. Armstrong
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