Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 04F7746
ROBIE, J.
A jury found defendant Patrick Michael Larmour guilty of the first degree murder of H. C. and the forcible rape of K. W. It found him not guilty of the attempted forcible rape of H. C. and the rape of L. C. while she was unconscious and found not true a special circumstance allegation that he had murdered H. C. during the commission or attempted commission of rape. The trial court sentenced him to 33 years to life in prison.
Defendant’s sole contention on appeal is that the trial court erred in denying his motion to change venue from Shasta County. Disagreeing with defendant, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
We provide the following background facts with no help from the People. Although the People’s respondent’s brief contains a “statement of facts,” those “facts” are taken from the probation report, which does not contain the facts at trial but, rather, the facts from a police officer’s report.
At the time of trial, defendant was 20 years old. At about age 13, during the transition from middle school to high school, defendant became sexually active. On two or three occasions, defendant covered the mouth of one of his high school girlfriends while they were having sex. He told the same girlfriend he could “kill someone and get away with it,” and he could hide a body “off road” “No. 4” and “no one would ever find it.” That same girlfriend also saw defendant looking on his computer at videos of a man strangling a woman while having sex and at photographs of dead, unclothed women. She knew that defendant had cut off the heads of “road kill” and kept the skulls.
Defendant made similar statements to another girlfriend.
A
Forcible Rape Of K. W.
K. W. was 17 years old at the time of trial. In August 2002, when she was 14 years old, she began her freshman year of high school in Redding. Within a few weeks, she met defendant on the school bus and developed a crush on him. Twice, early in the school year, he asked her to go to lunch with him and took her to McDonald’s. The third time, he took her to his parents’ house because he said he did not have any lunch money.
When they got to the house, K. W. sat on the couch, and defendant went into the bathroom. About five minutes later, defendant emerged from the bathroom and sat next to K. W. on the couch. He put his hand on her inner thigh and moved his hand toward her “crotch.” K. W. told defendant, “‘don’t,’” and tried to remove his hand. Defendant shoved her, and K. W. fell back onto the couch. He held her down by her neck and shoulders and removed her pants and underwear. K. W. was crying and telling him to stop. Defendant told her to be quiet and said if she did not, she “would end up like the bear on the wall.” Defendant took off his pants, revealing an erect penis covered with a condom. He penetrated her with his penis for a few minutes, but stopped when a car with two boys pulled into the driveway. K. W. went to the bathroom and discovered she was bleeding.
After the boys left, defendant drove K. W. back to school and told her that he would kill her if she told anyone.
About a year later, defendant, laughing, told an ex-girlfriend that he had taken a 14-year-old girl’s virginity on his parents’ couch.
K. W. reported the rape after defendant was arrested for H. C.’s murder.
B
Alleged Rape Of L. C. While She Was Unconscious
Although the jury acquitted defendant of this offense, as defendant points out, the allegation still could have been used as evidence of intent under Evidence Code section 1101 or as evidence of propensity under Evidence Code section 1108.
L. C. and her friend T. S. had known defendant “[o]ff and on” since they were teenagers. In May 2003, when L. C. was 17 years old and living in the same Redding apartment complex as T. S., defendant came over to T. S.’s apartment while the two girls were “[s]moking pot.” A half an hour later, the girls decided to “ditch” defendant and “do some drugs.”
L. C. and T. S. went to L. C.’s apartment, but defendant followed. They all drank brandy, and then defendant offered them a little bit of cocaine, which they all snorted. After they ran out of cocaine, T. S. got a phone call and walked outside of the apartment.
Defendant asked L. C. if she “wanted to do more” and offered her an off-white powdery substance that was packaged the same way as the cocaine. L. C. ingested some of the drug and “felt pretty numb.” She was unable to move, speak, or feel any part of her body, but could still see and hear. She saw defendant’s head above her and heard him say he “felt good.” L. C. could not see what defendant was doing and whether they were still wearing clothes.
According to T. S., she reentered L. C.’s apartment about 20 to 25 minutes after she had left and saw L. C. and defendant having sex on the couch. T. S. was mad because she “didn’t expect to see that,” and went to her parents’ house where she summoned her brother and his friends to kick defendant out of L. C.’s apartment.
Back at the apartment, L. C., scared and numb, wanted to tell defendant “‘no’” but was unable to speak. At some point, L. C. “came to” and was able to feel her body again. She was on the floor with her clothes on, and defendant was lying by the couch. She thought she had been vaginally penetrated because her vaginal area was wet, her thighs were bruised, and “[she] hurt.” L. C. “[f]reaked out” and started yelling.
When T. S.’s brother and friends arrived at L. C.’s apartment, they told defendant to leave. Defendant complied. L. C. “was kind of hysterical,” appeared intoxicated, and looked as though she had been crying. L. C. came out of her apartment, and T. S. heard her say that she had been raped.
L. C. reported to police what had happened after defendant was arrested for H. C.’s murder.
C
Murder Of H. C.
In the evening on August 3, 2003, defendant and H. C. were guests at a house party in Redding attended by about 25 people. Prior to the party, the two did not know each other. By about 1:00 or 2:00 a.m., approximately nine people remained, including defendant and H. C. They both were drinking, H. C. heavily, and they appeared happy. They danced together, but there was no “groping” or “inappropriate” touching. A few hours later, they were “hanging out” and “flirting.”
One of H. C.’s friends decided it was not safe for H. C. to drive, so he hid her car keys. H. C.’s friend left at 6:00 or 6:30 a.m. By that point, defendant and H. C. were the only remaining guests who were awake.
On August 4, 2003, H. C. did not show up at work for either her morning job or evening job, which was very unusual.
Around the time H. C. disappeared, defendant told police that he had driven a person named “Kathleen” to her apartment complex after the party and helped her to her door. She told defendant she had lost or misplaced her key and was going to find the maintenance man so she could get into her apartment. Defendant offered to help, but “Kathleen” declined, and he left.
Four months later, in December 2003, defendant confessed to his childhood friend C. M. that he had killed H. C. Defendant explained that he had taken H. C. home after the party, and when she could not find her key, he took her back to his parents’ house. H. C. wanted to have sex, but he did not. H. C. threatened to tell a coworker that defendant was a “faggot.” Defendant backhanded her, she started fighting and scratching him, he pushed her, and she tripped over the coffee table and fell onto the couch. Defendant jumped on top of her and started choking her. “[H]er eyes filled with blood vessels and . . . she lost all bowel functions.” He continued choking her for a couple more minutes “to make sure that she was dead.” Defendant got a tarp from the garage and tied up H. C.’s body in the tarp. He put her in the passenger seat of his truck. He heard her “‘groaning’” or “‘moaning.’” He drove four miles up “Trail 4” and buried H. C. in a shallow grave about 15 feet from the road. He took $150 from her purse and disposed of her purse and cellular phone. Defendant said H. C. “was a stupid bitch and she deserved it.” He said that “it” was “exhilarating,” “the power in his hands was such an adrenaline rush, there was nothing like it,” and he was thinking about doing it again, “‘probably in about a year or so.’”
Soon after defendant confessed, C. M. called “Secret Witness” and spoke to police. Police drove to the area where defendant had buried H. C.’s body and found bone fragments, teeth, and skeletal remains that belonged to H. C.
DISCUSSION
In November 2005, defendant filed a motion for change of venue, contending he could not receive a fair and impartial trial in Shasta County because of “[t]he widespread, pervasive and negative nature of the media reports surrounding this case.” In support of his motion, defendant submitted data from a public opinion survey of Shasta County residents conducted in September 2005.
In early December 2005, the court denied the motion without prejudice to its renewal for an evidentiary hearing.
In late December 2005, the court held an evidentiary hearing on the change of venue motion. The court again denied the motion without prejudice to its renewal following jury voir dire, commenting that “since the factors do not point to the need to change venue in the first instance, the better approach is going to be to try to impanel the jury.”
The seven-day voir dire took place in January 2006. In mid-January, defendant renewed his change of venue motion for a final time in the trial court. The court denied the motion, reasoning in part that although this “case may have had a high amount of media attention and is even a case that had been heard of by a large percentage of the jury pool,” that “does not . . . justify on its own a change of venue.”
On appeal, defendant renews his claim that a change of venue from Shasta County should have been granted.
In a criminal case, when the defendant moves for a change of venue, the trial court must grant the motion “when it appears that there is a reasonable likelihood that a fair and impartial trial cannot be had in the county.” (Pen. Code, § 1033, subd. (a).) “In reviewing the trial court’s decision [denying a change of venue], we independently examine the record to determine whether in light of the failure to change venue, it is reasonably likely that defendant in fact received a fair trial. [Citations.] The de novo standard of review applies to our consideration of the five relevant factors: (1) nature and gravity of the offense; (2) nature and extent of the media coverage; (3) size of the community; (4) community status of the defendant; and (5) prominence of the victim.” (People v. Sully (1991) 53 Cal.3d 1195, 1236-1237.) “On appeal the appellant must demonstrate that the ruling was error because it was reasonably likely that a fair trial could not be had and that the error was prejudicial because a fair trial was in fact denied.” (People v. Hayes (1999) 21 Cal.4th 1211, 1250.) A review of the foregoing five factors demonstrates that the court did not err in denying defendant’s change of venue motion.
A
Nature And Gravity Of The Offense
“The peculiar facts or aspects of a crime which make it sensational, or otherwise bring it to the consciousness of the community, define its ‘nature’; the term ‘gravity’ of a crime refers to its seriousness in the law and to the possible consequences to an accused in the event of a guilty verdict.” (Martinez v. Superior Court (1981) 29 Cal.3d 574, 582.)
Here, defendant was charged with murdering a young woman while raping or trying to rape her and burying her in a shallow grave off a dirt road and with raping two minors -- one who was a 14-year-old virgin and another whom he rendered unconscious before raping. Because he was a minor when the alleged crimes were committed, defendant was not subject to the death penalty but, rather, life in prison without the possibility of parole.
We believe the nature of charged crimes and their gravity “is a factor that would tend to support a change of venue, but not to the degree of a case involving serial murders, for example.” (People v. Proctor (1992) 4 Cal.4th 499, 524; see People v. Fauber (1992) 2 Cal.4th 792, 818.) We cannot say, therefore, this factor weighed “compellingly” in favor of a change of venue. (People v. Hamilton (1989) 48 Cal.3d 1142, 1159.)
B
Size Of The Community
“In a small town, in contrast to a large metropolitan area, a major crime is likely to be embedded in the public consciousness with greater effect and for a longer time. [Citation.] Thus, . . . when trial is scheduled in a small rural community, even though the publicity is not inflammatory and not hostile toward the defendant, the courts have granted” a change of venue. (Martinez v. Superior Court, supra, 29 Cal.3d at p. 581.)
Here, the estimated population of Shasta County in 2005 when defendant brought his change of venue motion was 178,197 residents, which made it number 29 in size out of the 58 counties in California. The charged crimes were alleged to have occurred in or around Redding, an arguably urban part of the county. This factor, therefore, weighs against a change of venue. (Compare People v. Proctor, supra, 4 Cal.4th at pp. 514, 525-526 [where the murder took place in “a small mountain community located 35 miles east of Redding in Shasta County” and the population of Shasta County at the time was approximately 122,100, these facts weighed “somewhat in favor of a change of venue.”])
C
Community Status Of The Defendant
The status of the defendant as a stranger or undesirable person in the community may weigh in favor of a change of venue. (See Martinez v. Superior Court, supra, 29 Cal.3d at pp. 584-585.) The trial court here noted that defendant was “not an outsider in the community” as he grew up in Shasta County and went to school there. He also was not a member of a minority group. (Compare Williams v. Superior Court (1983) 34 Cal.3d 584, 594 [where defendant was a nonresident and an African American in a county where only 402 of the 117,000 residents were African American, the status of defendant weighed in favor of a change of venue].)
Defendant contends, however, that media coverage of the case portrayed him unfavorably and therefore his community status favored a change of venue. We will address the nature and extent of the media coverage below. In the absence of that coverage, there was nothing about defendant’s status in the community that suggested a change of venue was necessary. Thus, this factor did not support a change of venue.
D
Prominence Of The Victim
The victim’s status in the community as “well known or well liked, or both,” may weigh in favor of a change of venue. (Martinez v. Superior Court, supra, 29 Cal.3d at p. 584.) Here, as defendant admits, H. C. “was not well known” in the community before her disappearance. To the extent the media coverage gave H. C. a certain amount of prominence after she disappeared, we consider that as part of the nature and extent of the media coverage. Otherwise, this factor did not support a change of venue.
E
Nature And Extent Of The Media Coverage
As defendant recognized, the most important factor here was the nature and extent of the media coverage. The possibility of an unfair trial may arise from news coverage that is inflammatory or productive of overt hostility or from widespread publicity that describes facts, statements, and circumstances which tend to create a belief in the guilt of someone charged with a crime. (Martinez v. Superior Court, supra, 29 Cal.3d at p. 580.) In evaluating the extent of coverage, we consider matters such as the length and frequency of the articles, as well as their placement and prominence. (People v. Hamilton, supra, 48 Cal.3d at pp. 1157-1158.) In evaluating the nature of the coverage, we look to the content of the reporting. If the coverage has been inflammatory or sensational, a venue change is more likely. (Corona v. Superior Court (1972) 24 Cal.App.3d 872, 877.) Coverage that includes editorials about the crime and its ramifications weighs in favor of a venue change, as does coverage that is inaccurate or reports facts that would be inadmissible at trial. (People v. Hamilton, supra, 48 Cal.3d at p. 1157; Corona, at pp. 877-878.) On the other hand, reporting that is on the whole not “inflammatory, sensational, or hostile,” does not warrant a venue change. (Odle v. Superior Court (1982) 32 Cal.3d 932, 939)
The evidence defendant produced to support his change of venue motion showed that from the time of H. C.’s disappearance in August 2003 until the time of the first change of venue motion in November 2005, the local newspaper -- Record Searchlight -- mentioned this case in its print and online newspaper at least 99 times in various forms, including in articles, columns, crime blurbs, and letters to the editor. The television (and radio) coverage largely paralleled the print and online media. While the sheer number of times the case was mentioned in the media seems to weigh in favor of a change of venue motion, a review of that reporting shows that it was relatively limited in scope and factual in nature. For example, the majority of reporting only mentioned the case briefly and many of the reports did not name defendant even after he was identified as a person of interest and later charged as a suspect. Of the articles and crime blurbs that detailed H. C.’s death and defendant’s involvement, they revealed mainly details of the crimes that were admitted at trial. Of the letters to the editor and columns mentioning the case, they included commentary that there had yet to be a “trial in a court of law with sworn testimony and cross-examination” and that defendant “is also a very fine young person” who comes from a good family with morals. Contrary to defendant’s claim that Record Searchlight printed “sensational details” about the crime, a review of the entire media history in this case shows even-handed coverage of the case that did not weigh in favor of a change of venue motion. In sum, although the media reporting of the accounts of the crime were frequent and steady beginning with H. C.’s disappearance and continuing through the time of the change of venue motion, the accounts were predominantly factual, contained little inflammatory matter, and lacked revelations of incriminating evidence that were not properly admitted at the trial.
Nevertheless, defendant emphasizes that in addition to this coverage, there was an entire Web site devoted to H. C., which, by our count, reportedly posted more than 2,200 messages to H. C.’s family from September 2003 to May 3, 2005, and a public opinion survey of Shasta County residents regarding this case showing that of 410 people interviewed in September 2005, 69 percent believed defendant was guilty of “murder.” As to the Web site, even defendant’s own expert witness testified that entries made by people visiting the Web site were not limited to residents in Shasta County and therefore “clearly not members of the jury pool, although local people could read some of that material.” As to the results of the public opinion survey that showed 69 percent of respondents believed defendant was guilty of “murder,” defendant admits that the question in this case was not whether defendant killed H. C., as he confessed that he had, but about his mental state when he killed her. While in the law the term “murder” connotes legal culpability for a killing, the study did not define the term murder, and we have no reason to believe the individuals responding to the survey interpreted the term “murder” in its legal sense.
Finally, the record of voir dire and the verdicts in this case demonstrate no reasonable likelihood that the trial was actually unfair. Although defendant points out that a majority of the potential jurors, as well as a majority of the actual jurors, admitted having been exposed to pretrial publicity about the case, “[i]t is not necessary that jurors be entirely ignorant of the facts and issues involved in the case; it is sufficient that they can lay aside their opinions and impressions and render a verdict based on the evidence presented at trial.” (People v. Sanders (1995) 11 Cal.4th 475, 506.) Here, although only one of the jurors and alternates whom defendant has identified as those selected to hear the trial had not heard about the case, virtually all of the remaining jurors and alternates said they had formed no opinion about the case (and the one who had formed an opinion said she did not believe that her opinion was so strongly held that she could not set it aside). Indeed, as the verdicts reflect, the jury was able to set aside negative opinions they may have formed about defendant, as they returned a mixed verdict acquitting defendant of the attempted forcible rape of H. C. and the rape of L. C. while she was unconscious and found not true the special circumstance allegation that he had murdered H. C. during the commission or attempted commission of rape.
Viewing all of the relevant factors together, “[w]e cannot discern a reasonable likelihood that the jurors chosen for defendant’s trial had formed such fixed opinions as a result of pretrial publicity that they could not make the determinations required of them with impartiality.” (People v. Sanders, supra, 11 Cal.4th at pp. 506-507.) Accordingly, we find no error, constitutional or otherwise, in the denial of a change of venue from Shasta County.
DISPOSITION
The judgment is affirmed.
We concur: NICHOLSON, Acting P.J., HULL, J.