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The vicinage right is not a personal one. A change of venue to ensure a fair trial, even over an accused's objections, does not threaten that respect for the individual which is the lifeblood of the law. Nor does the right exist solely to protect fair and impartial factfinding. Its waiver, pursuant to the provisions of Cal. Penal Code § 1033 (a), is a tactical matter within counsel's power to control.
At trial, the testimony of Gary Lee Guzman’s girlfriend implicated him in the victim's murder. The defense was that Guzman’s girlfriend was framing Guzman for the murder that she herself had committed. During the penalty phase, Guzman testified in a narrative form and asked the jury to impose the death penalty. Guzman also testified about his home life and his artistic ability. The jury found Guzman guilty of murder, burglary, robbery, kidnapping, and rape. The jury also found true the alleged felony-murder special circumstances and returned a death verdict.
Could the vicinage right be waived by defense counsel over Guzman’s objection?
As to the guilt phase, the court held that Guzman was not deprived of the right to be tried by a jury drawn from the area (vicinage) where the crime was committed, even though a motion for change of venue was sought by counsel and granted by the court over Guzman’s personal objection. The court also held it was not error to permit the district attorney of the county where the crime was committed to testify for the People that he offered Guzman’s girlfriend immunity from prosecution because he believed she was innocent of any crime. The court also held that Guzman was not denied effective assistance of counsel, even though he used the free narrative approach to testify on direct examination and defense counsel refused to assist in his presentation of testimony. Also, this did not deprive Guzman of a fair trial. Moreover, the prosecution did not commit misconduct by commenting that Guzman insisted on testifying. As to the penalty phase, the court held that the trial court properly excused two prospective jurors due to their views on capital punishment, even though the juror's responses were preceded by statements such as "I believe" and "I think." The court also held the jury properly understood it was to consider Guzman’s artistic evidence, as well as his childhood and general background, in determining penalty, and that the jury was not mislead about the nature of its weighing and decisonmaking responsibilities to determine whether death was the appropriate punishment. Also, defense counsel did not render ineffective assistance even though, acquiescing in Guzman’s wishes and acting contrary to their own considered judgment, they failed to put on any mitigating evidence although some apparently was available to them. Thus, the state's interest in a reliable penalty determination was no defeated. It further held that Guzman’s statement that he preferred the death penalty did not render the sentence unreliable and that his testimony was not inadmissible.