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Name: People v. Staten
Case #: S025122
Court: CA Supreme Court
District CalSup
Opinion Date: 11/09/2000
Subsequent History: Petn. rehg. den. 1/24/01; Cert. den. 10/1/01

Appellant’s claim that the superior court erred in denying the change of venue motion and in failing to adequately probe prospective jurors concerning the effects of pretrial publicity was without merit. Appellant failed to show 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, that is, that it was reasonably likely that a fair trial was not in fact had. Of the 107 prospective jurors, only 13 had heard of the case, and of those only one juror was selected. That juror stated the information she had received was “non-conclusive” and that she would be unbiased. The screening of the jurors was conducted pursuant to a questionnaire jointly prepared by the prosecution and defense, and the defense did not seek additional questions or exhaust appellant’s peremptory challenges. The trial court did not err in failing to exclude for cause, sua sponte, three jurors who were death-qualified. Moreover, appellant failed to challenge any of the three for cause or peremptorily, and accepted the jury as constituted. Appellant failed to exhaust his peremptory challenges. The issue was therefore waived. Appellant’s counsel’s failure to challenge the jurors for cause or to utilize his peremptory challenges did not constitute ineffective assistance of counsel because there would have been no valid basis for the challenges. The superior court properly determined that the failure to preserve or collect evidence of a statement by Randy in which he speculated that two gang members might have committed the murder of appellant’s parents was not prejudicial, where Randy’s statement would have been inadmissible, would have confused the issues, and would have caused the jury to speculate. In light of that, trial counsel’s failure to renew his attempt to introduce the statement could not constitute ineffective assistance of counsel. Death penalty issues were not summarized.