Change-of-venue is rare for criminal trials in SLO County — here’s why
Lawyers for Paul and Ruben Flores filed a change-of-venue motion Wednesday — a request that has not been granted since the 2001 trial of Rex Krebs, the convicted serial killer currently at San Quentin State Prison.
And even then, it wasn’t a SLO County judge who made the decision. Krebs’ defense filed an appeal after the motion was denied, and a higher court granted the request. The case was ultimately tried in Monterey County.
Venue changes in criminal court proceedings are rare but difficult to quantify.
The Judicial Council of California, the rule-making arm of California courts, told the Tribune in an email that the department does not keep track of these motions or their outcomes — despite the branch being responsible for finding a new trial location when the motion is granted. The U.S. Department of Justice and the National Center of State Courts, an independent state court research center in Williamsburg, Virginia, doesn’t keep this data either.
The Tribune identified just three SLO County criminal cases that have been tried outside of the county in the past five decades, another three cases where the change-of-venue motion was denied, and one case that tentatively granted the motion while it awaited a decision from a higher court.
All of the cases reviewed by the Tribune cited pretrial publicity and jury pool bias as the reason behind the change-of-venue motion. The four cases that were denied or not definitively granted a change of venue motion took place between 1968 and 1993 and were found through the California Court of Appeals.
How a change of venue works
A change of venue is permitted in criminal court trials when a judge finds the defendant cannot receive a fair trial in the county where the crime occurred. This can be because of pretrial publicity, bias, political atmosphere, or any other circumstance parties believe would prevent a fair trial, according to a fact sheet by the Judicial Council of California.
In the cases reviewed by the Tribune, pretrial media coverage was the most common reason behind a change-of-venue motion in SLO County. Defense teams often claimed media coverage of a case infected the local jury pool, saying the only way to find unbiased jurors was to hold the trial in a different county.
Former SLO County Superior Court Judge John Trice, who was the lead prosecutor on the Krebs case, told the Tribune that one of the most important aspects of a change-of-venue motion is polling results.
Usually, he said, the defense team will hire a company that will call members of the public to ask whether they recognize the parties in the case, along with other questions that may be able to show whether an impartial jury is possible in the residing county.
“Just because there’s a recognition of the case doesn’t mean it’s necessarily going to be moved. The more important questions are the ones that follow that,” Trice said about the poll questions.
Trice remembers the poll in the Krebs case finding around 95 percent of people in the county recognizing the case.
But a change-of-venue motion in the trial of Dennis Webb, an Atascadero murder case also prosecuted by Trice, was denied even though the poll found around the same percentage of people recognized the case.
Usually, a decision as to whether a case moves locations is made before picking out the jury, but in some instances a motion is filed because the defense finds there are not enough fair potential jurors during jury selection.
Either party can appeal a decision made by a Superior Court judge to the Court of Appeals. The defense may appeal if the judge denies the request, as in the Krebs case, or the prosecution may appeal if the motion is granted within 14 days of the decision. An appellate judge then hears the argument for and against changing the venue and makes a decision. This decision is usually final.
If the trial is ruled to move to a new county, the Judicial Council of California reviews potential locations and must identify courts where holding the trial would not be an undue burden, usually within two weeks. The council then supplies the judge who granted the motion with the alternative sites, and a hearing is held that determines the new location of the trial.
This process can push back a trial’s start date for months — Trice told the Tribune he remembers Krebs’ case being pushed back nine months to a year after the change-of-venue motion was granted. The case began in February 2001, according to Tribune reporting at the time.
What a judge considers
There are five factors that must be evaluated when considering a change of venue: 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.
And changing the location of a trial isn’t a decision that’s taken lightly — that’s why it’s so rare.
“Every judge who hears every case that goes to trial has as their goal to try the case without committing reversible error,” Jeff Stein, a local criminal defense attorney for more than 40 years and past president of the SLO Bar Association, told the Tribune.
Committing a reversible error could result in a reversal of sentencing or conviction, Stein said.
So if a trial isn’t moved and the defendant is found guilty or receives a sentence the attorneys don’t agree with, they could try to appeal or overturn the decision on the basis of not having a fair trial, like the legal team for Boston Marathon Bomber Dzhokhar Tsarnaev did in 2018.
Tsarnaev’s legal team had filed several motions to move his trial outside Boston, and all were denied. He was found guilty and given the death penalty in 2015, but his legal team motioned to change his sentence in 2018 and revoke the death penalty on the basis that Tsarnaev could not receive a fair trial in the city that was “traumatized by the bombings.” A federal appeals judge agreed and threw out the death penalty sentence in 2020, but the U.S. Supreme Court reinstated the death penalty for Tsarnaev last week.
Social media has changed the way news travels, so it can be a lot more work to find jurors who may not have heard of a case — in some cases nearly impossible.
When the lawyers for Derek Chauvin, who was ultimately convicted of murdering George Floyd, filed a motion to move the trial outside of Hennepin County in Minnesota, the judge denied the motion saying there is not “any place in the state of Minnesota that has not been subjected to extreme amounts of publicity on this case.”
But the main question isn’t whether or not a juror has heard of a case, Stein said. It’s whether they can make a fair decision based on evidence presented at the trial without any preconceived opinions.
As well, logistically, it’s expensive to move a trial, Stein added.
The court where the case originated, in this case SLO County Superior Court, has to reimburse the new court for any expenses it incurred that they would not have if they didn’t take on the case, like juror costs and leased office space. Housing accommodations for the parties, witnesses and court staff can also be an expense if commuting is not an option.
The trial of Richard Benson, who was convicted of murdering a Nipomo family in 1986, ended up costing SLO County $250,000 after it was moved to Santa Barbara County, previous Tribune reporting found.
“Even though they’re state courts — these are the Superior Court of the State of California — they’re for the county where they’re situated,” Stein said. “So there’s a preference to have local matters tried in local courts. Part of that is philosophic, and part of that is pragmatic, economic, burden, time, all those considerations.”
Past SLO County trials held in other counties
The Tribune identified three cases in which a trial in San Luis Obispo County changed venues, and two of them were death penalty cases.
Krebs’ was charged with the 1998 murder of 21-year-old Cal Poly student Rachel Newhouse and 1999 murder of 20-year-old Cuesta College student Aundria Crawford. The killings shook the community, which at the time was — and still is — troubled by Kristin Smart’s disappearance just two years prior.
Krebs ultimately confessed to the crimes and led investigators to the victims’ bodies in April 1999. He was tried in Monterey County because of the publicity of the case, which was granted when Krebs’ legal team appealed Superior Court Judge Barry LaBarbera’s decision to deny the request. Krebs was given the death penalty in 2001. All death penalty sentences in California automatically got to appeal, but the California Supreme Court reaffirmed the sentence in 2020.
Gov. Gavin Newsom put a moratorium on death penalty sentences and halted awaiting death sentences in 2019, closing the execution chamber at San Quentin State Prison. Those who were waiting on death row are now effectively serving life sentences.
In 1987, Benson was sentenced to death after a Santa Barbara County jury convicted of murdering Laura Camargo and three of her four children, Sterling, 23 months, Shawna, 3, and Stephanie, 4, in Nipomo in 1986. He had a history of child molestation convictions.
His trial was moved to Santa Barbara County on his motion, according to appellate court documents. He died in his San Quentin State Prison cell in June 2021 after being on death row for nearly 34 years.
In the third case to change venue, all four people involved in the 1979 murder of 10-year-old Tami Carpenter were moved to Monterey County because of the pretrial publicity, according to previous Tribune reporting.
Carpenter was set to testify against her alleged molester, William Record. Record paid Randy Cook, BranDee Sisemore (formerly BranDee Tripp) and Hilton Tripp to prevent her from testifying. The three kidnapped and ultimately murdered the child near Avila Hot Springs.
Tripp and Cook were both convicted of first-degree murder. Record and Sisemore were convicted of second-degree murder. Two of Cook’s brothers, Rick and Jerry Cook, were convicted of intimidating witnesses in the case. Their trials were moved to Alameda County.
