I dissent. The instant case was tried before our decision in Maine v. Superior Court, 68 Cal.2d 375 [66 Cal.Rptr. 724, 438 P.2d 372], became final, and we expressly stated in Maine that the new standards it established were to be applied prospectively only (68 Cal.2d at p. 384, fn. 9). Nevertheless, the majority compare Maine with the instant case and treat it as controlling herein. Although I fully concur with the principles stated in Maine, the case before us now should be decided under pre-Maine standards.
Maine adopted two new principles regarding motions for venue change. First, such motions must be granted whenever a defendant demonstrates a “reasonable likelihood” that otherwise a fair trial cannot be had. Second, appellate courts must conduct an “independent review” of the circumstances to determine whether denial of a venue change deprived defendant of a fair trial. The latter standard was derived from dictum in Sheppard v. Maxwell, 384 U.S. 333 [16 L.Ed.2d 600, 86 S.Ct. 1507]. Prior to Maine, this court had expressly held that Sheppard’s independent review standard would not apply in reviewing denials of motions for venue change. Thus, in People v. Modesto, 66 Cal.2d 695, 705-706, footnote 2 [59 Cal.Rptr. 124, 427 P.2d 788], we acknowledged that Sheppard did not change California law, and observed that “While the Sheppard court discussed pretrial publicity at length, it explicitly declined to hold that such publicity in itself worked a denial of due process. . . . Thus the governing rule still requires the accused, under circumstances such as these, to show prejudice in order to prevail; no such showing has been attempted here.”1 (Italics added.)
The majority rely upon People v. O’Brien, 71 Cal.2d 394, 400 [78 Cal. Rptr. 202, 455 P.2d 138, 456 P.2d 969], to support its thesis that Sheppard’s independent review test should be applied in a pre-Maine case. However, O'Brien did not disapprove Modesto’s express holding to the contrary, and in fact acknowledged that Sheppard’s pronouncements were mere *78dicta. Had Modesto been called to our attention in O’Brien, we might well have applied pre-Maine standards and required defendant to show actual prejudice and establish an abuse of discretion by the trial court. Our inadvertence in O’Brien was harmless, in any event, for we held that the denial of defendant’s motion for venue change was proper even under Sheppard’s standard.
In the instant case, the majority adopt the following test to be employed in pre-Maine, post-Sheppard cases: “If, on balance, we would have granted a change of venue were we in the judge’s place, we must reverse his denial of a venue change.” (Ante, p. 69.) Thus, this court is to decide the issue anew on the cold record, without regard to the trial judge’s discretion in such cases and notwithstanding his proximity to the trial, the publicity alleged to have tainted it, and the temper of the community allegedly aroused thereby. Again, although the majority disclaim that they are applying Maine’s standard of reasonable likelihood, they readily discard Modesto’s requirement of actual prejudice on the theory that it is somehow incompatible with our asserted duty in pre-Maine cases to exercise independent judgment.
The majority’s test, quoted above, is squarely contrary to Modesto (a pre-Maine, post-Sheppard case), and to many other decisions holding that our function is limited to determining whether the trial court abused its discretion in denying the motion (e.g. People v. Duncan, 53 Cal.2d 803, 812 [3 Cal.Rptr. 351, 350 P.2d 103]; People v. Jacobson, 63 Cal.2d 319, 325-326 [46 Cal.Rptr. 515, 405 P.2d 555]), and whether defendant has shown actual prejudice from pretrial publicity (e.g. People v. Modesto, supra, 66 Cal.2d 695, 705, fn. 2; People v. Jacobson, supra, 63 Cal.2d at pp. 325-326; People v. Carter, 56 Cal.2d 549, 572 [15 Cal.Rptr. 645, 364 P.2d 477]; People v. Gomez, 41 Cal.2d 150, 161-162 [258 P.2d 825]). As stated in Jacobson, supra, quoting with approval from a recent Vermont case, “ ‘newspaper articles, even though denunciatory in character, are not in themselves in the absence of some evidence of the actual existence of a prejudice against the accused, sufficient to require the judge, in the exercise of his discretion, to conclude that a fair and impartial trial cannot be had.’ ” (Italics added.) Again, in Carter, supra, where (as in the instant case) defendant had exhausted his peremptory challenges, this court held that “whether publications, accurate or inaccurate, warrant reversal depends on whether defendant has shown that they had a prejudicial effect.”
In my view, defendant has not established that the pretrial publicity actually prejudiced the jury or otherwise precluded a fair and impartial trial. Although defendant submitted affidavits which indicated that most *79persons interviewed shared an opinion of his guilt, the People submitted contrary evidence. The resolution of such conflicting evidence in a preMaine case was the responsibility of the trial judge, who observed the voir dire examination of the jurors and who stood in the best position to determine the extent to which pretrial publicity could affect the trial. (People v. Carter, supra, 56 Cal.2d 549, 571; People v. Brite, 9 Cal.2d 666, 689-690 [72 P.2d 122].) In any event, defendant’s affidavits regarding the opinions of various members of the general public were insufficient to establish an actual prejudicial effect upon the jurors who heard his case. (People v. Duncan, supra, 53 Cal.2d 803, 812.)
It is perhaps inevitable that some murders achieve a notoriety which familiarizes an entire community with the nature of the crime. And yet this court stated in Duncan, supra, that “Even if it be assumed that many persons formed opinions unfavorable to defendant as a result of what was published, it does not follow that persons without such views could not be found to act as jurors or that those who had adverse opinions would be unable to set them aside and try the case fairly on the basis of the evidence to be produced in court. (See Pen. Code, § 1076.) Defendant’s motion for a change of venue was addressed to the sound discretion of the trial judge, and we cannot say that he abused his discretion in denying it.” (53 Cal.2d at p. 812.)
In Duncan, supra, four jurors stated that as a result of pretrial publicity, they had formed the opinion that defendant was guilty of murder, and that it would require further evidence to overcome their opinion. In sustaining the trial court’s refusal to remove these jurors, we stated that “we have seen, however, the opinions were based on news reports and rumor, and, when questioned by the district attorney and the judge, the jurors stated that they would base their verdict solely on the evidence received in court and the instructions given them and that they would act impartially notwithstanding the opinions they had formed. Where jurors on voir dire have made conflicting statements similar to those involved here, it is a question of fact for the trial judge whether they can act impartially, and in such circumstances rulings denying challenges for bias have uniformly been upheld in this state as well as by the United States Supreme Court. [Citations.]” (53 Cal. 2d at p. 816.)
In the instant case, 11 jurors stated that they had formed no opinion regarding defendant’s guilt and that they would serve impartially and fairly. The twelfth juror, Mrs. Sanford, was not asked if she had formed an opinion regarding defendant’s guilt. However, she stated that she had not discussed the case with anyone, had heard no radio reports regarding it, had read only “slight” accounts of the crime, and would be a fair *80and impartial juror. Under the rule of the Duncan case, supra, we must uphold the trial court’s, discretion in permitting these jurors to serve.
Several jurors were acquainted with the victims or witnesses in this case. However, each such juror stated that his acquaintance would not influence his verdict or prevent him from serving fairly and impartially. Moreover, it has long been the rule in this state that “Mere acquaintance of the jurors with a litigant does not imply bias by them in his favor any more than it raises a presumption of prejudice against him.” (Perkins v. Sunset Tel. & Tel. Co., 155 Cal. 712, 715 [103 P. 190].) By a parity of reasoning, mere acquaintance of the jurors with the victims or witnesses cannot constitute implied bias. Thus, Penal Code section 1074 limits challenges for implied bias to “Consanguinity, or affinity within the fourth degree to the person alleged to be injured by the offense charged, or on whose complaint the prosecution was instituted, or to the defendant.” I conclude that defendant has failed to establish actual prejudice on the part of the jurors selected to hear his case.
Nor does the pretrial publicity on its face disclose that defendant could not have obtained a fair and impartial trial, for the news articles and releases were no different from the usual reporting of any homicide of this sort. (People v. Carter, supra, 56 Cal.2d 549, 572; People v. Mendes, 35 Cal.2d 537, 542 [219 P.2d 1].) In fact, the absence of hostility toward defendant in the pretrial publicity contrasts sharply with the publicity and public sentiment involved in such cases as People V. McKay, 37 Cal.2d 792 [236 P.2d 145], People v. Suesser, 132 Cal. 631 [64 P. 1095], and People v. Yoakum, 53 Cal. 566, which resulted in convictions being reversed and retrials ordered.2
Since defendant has shown neither actual prejudice on the part of *81the jurors, nor an abuse of discretion by the trial judge, and since both elements are prerequisites to reversal under numerous pre-Maine 3 decisions of this court, I would affirm the judgment.
McComb, J., concurred.
Respondent’s petition for a rehearing was denied September 24, 1970. McComb, J., and Burke, J., were of the opinion that the petition should be granted.
See also Note, The Supreme Court of California, 1967-1968, 56 Cal.L.Rev. 1612, 1705, wherein the authors state that “Maine’s most significant substantive change is its holding forbidding appellate courts merely to review the trial court’s discretion, but compelling them to satisfy themselves independently that the standards for impartial jurors have been met.” (Italics added.) And at footnote 13, the authors note that “The supreme court now finds binding the ‘duty’ imposed by Sheppard... to conduct an ‘independent evaluation’ of the motion for venue change, although in People v. Modesto . . . this ‘duty’ imposed by Sheppard was not binding.”
In McKay, supra, “the community was thoroughly aroused [and] there was talk of lynching.” (37 Cal.2d at p. 794.) In Suesser, supra, defendant was “denounced”’ in the public press, which expressed the “greatest indignation and sorrow” regarding the crime. (132 Cal. at p. 634.) In Yoakum, supra, the crime caused “widespread excitement” and a “feeling of extreme hostility against defendant.” (53 Cal. at p. 570.)
Even the Maine case, supra, was concerned primarily with “prejudicial newspaper publicity which either caused or reflected widespread hostility to a defendant in the community.” (Italics added; 68 Cal.2d at p. 382.) Maine suggested that in determining whether a reasonable probability of prejudice exists in a particular case the trial court must consider “the extent of the hostility engendered toward a defendant.” (Italics added; 68 Cal.2d at p. 388.)
In the instant case, the only publicity which could be characterized as “hostile” was a brief newspaper reference to “Jack or Jacqueline the Ripper” in describing the unknown assailant. After defendant and his brother were apprehended, there were no inflammatory or antagonistic news or radio reports whatsoever.
Defendant contends that the application of pre-Maine standards to the instant case is unjust, since there are several factual similarities between this case and Maine. However, as stated by the United States Supreme Court in Stovall v. Denno, 388 U.S. 293, 301 [18 L.Ed.2d 1199, 1206, 87 S.Ct. 1967], holding that the Wade-Gilbert lineup cases should not be given retroactive effect: “Inequity arguably results from according the benefit of a new rule to the parties in the case in which it is announced but not to other litigants similarly situated in the trial or appellate process who have raised the same issue. But we regard the fact that the parties involved are chance beneficiaries as an insignificant cost for adherence to sound principles of decision-making.” (Fn. omitted.)