I respectfully dissent.
I.
These are terrible crimes of which appellant stands convicted, exceptionally cold-blooded and senseless. The reaction of San Diego County to their commission is understandable and, perhaps, even natural. The question before this court, however, is whether, amidst the clamor which attended that county’s most notorious crime of the year, it is reasonably likely that appellant was not accorded a fair trial—“the most fundamental of all freedoms”1—on the issues of guilt or of punishment.
Press coverage2 of appellant and his crimes began with his capture for bank robbery on July 5, 1978. Two citizens observed appellant and his brother Daniel leave the bank after the robbery, and one of them followed the brothers as they drove back to their residence. This witness notified the police, and a combined “SWAT” and FBI team soon surrounded the house where appellant and Daniel were arrested. The police siege of the home was broadcast over local television, and the arrest of the robbers was the lead story in the San Diego Evening Tribune.3
*966While initially the incident appeared to the press and, apparently, to law enforcement authorities to be “simply” a bank robbery, the situation quickly changed. Daniel told about the murders, laying the blame on appellant. The officers were shown the murder site by Daniel and the local television stations broadcast the recovery of the victims’ bodies.
The story was front page news the following day (July 6th) in the San Diego Union (two front page stories), the Evening Tribune (four front page stories), and the Los Angeles Times (one story). The headlines described the crimes as “senseless murder” and observed that the community of Mira Mesa was “stunned.” The Union mentioned that appellant was on parole from prison, that at age 11 he had been arrested for cruelty to animals and burglary. Articles in the Evening Tribune related in both headline and text that appellant was on parole for a previous homicide and that his mother was herself on probation for bank robbery. An interview with appellant’s parole officer was reported. In it, the officer revealed further details of appellant’s manslaughter conviction and of his prior record for escape from a youth camp and for running away from home. Another official related that appellant had been on welfare at the time of the previous killing and “[i]t was hard to believe the filth” in his home.
That evening a local television station broadcast an interview it had conducted with appellant’s father. In an emotional statement, the father told the reporter of a conversation he had had with appellant following his arrest in which appellant had admitted the killings. The story was picked up and disseminated by United Press International (UPI). (Shortly thereafter, appellant’s father left the area.)
The stories by UPI for each of the following two days reported appellant’s status as an ex-felon. Similarly, on July 6th, 7th, and 8th, the Associated Press (AP) coverage included references to appellant’s prior record, including his juvenile record and his escape from the youth camp. AP also published its own interview with appellant’s parole officer and with the prosecutor in the prior manslaughter case. The prosecutor (now a judge) was quoted as stating that the prior homicide was a “stabbing death.”
*967By July 7th, Daniel’s confession to the police had been released to the press. It was reported that day in the Union, the Evening Tribune, the Times-Advocate, the Daily Californian, and the Vista Press, as well as by AP and three local television stations. The front page coverage in the Union included as headline “The Chilling Story of How 2 Boys Died.” The text of the article reported the police account of Daniel’s statements that appellant “thought up the whole thing” and that appellant shot one of the victims as he walked along carrying his hamburger. The Tribune’s front page story was headlined “2 Boys Were Shot Without Warning.” The text also noted the boys’ bullet-riddled bodies and partially eaten hamburgers. A deputy coroner was reported as indicating that one of the boys had been shot without warning in the back.
The July 7th Union ran a separate story, headlined “Killings Suspect On Parole For ’75 Slaying.” Included in this article was an extensive interview with a member of the Imperial County Sheriffs Department. This officer detailed the facts surrounding appellant’s prior conviction and opined, “I knew he [appellant] was going to pull something. He beat that guy to death [in 1975]. . .beat him so hard on the head, he died of hemorrhaging.”
The Union also published an editorial entitled, “Sorrow and Indignation,” which stated: “We must bespeak the sense of grief and outrage that San Diegans share over the[se] mindless murders.. . . [H] The circumstances of this tragedy are particularly appalling. .. ,[1i] Because the horrible crime that snuffed out the lives of these young men could have happened to anyone, public sorrow and indignation are also tinged with fear.” It further noted the “widespread belief that murderers may be paroled within a few years. This awful belief is well founded...” since the two victims’ “murderer was not kept behind bars where he belonged.” The editorial concluded: “If this crime, which could involve a confessed murderer paroled too early, can result in having punishment more nearly fit the crime in California, then [the victims] will not have died for nothing.”
Further coverage in the Union, the Times, and the Daily Californian notified their readers that appellant’s mother had been convicted for bank robbery. AP and UPI did the same. Appellant’s prior manslaughter conviction was the subject of coverage by the Times-Advocate, the Vista Press, the Daily Californian, and AP.
*968On July 8th, the Union published another article concerning Daniel’s confession and appellant’s prior conviction. Headlines noted that the prosecution was seeking the death penalty for appellant. The article reported that there was considerable community outrage at the decision of the Community Release Board (C.R.B.) to parole appellant for the manslaughter conviction. A high ranking prison official was quoted as stating, “it’s a reality that the Community Release Board made a mistake in this case.. .
That day’s edition of the Evening Tribune carried similar reports about the prosecution’s decision to seek the death penalty. Calling the offenses an “apparent willful execution of two innocent teen-agers,” the chief deputy district attorney stated that “[t]he death penalty is designed to deal with this kind of offense.” He also was quoted as stating that the evidence indicated that Daniel “did not personally participate” in the killings. The chief deputy further admitted that it might be difficult to empanel an impartial jury in the county after the published reports of Daniel’s confession which laid the blame for the shootings on appellant.
The Times of July 8th contained the story of Daniel’s confession, an interview with the judge who had been the prosecutor during appellant’s prior manslaughter proceedings, and an observation that the victims “appeared to have been shot down in cold blood.” It again noted that appellant’s mother had been convicted of bank robbery.
On Sunday, July 9th, the Union published a front page story and photograph of the funeral of one of the victims. The story quoted extensively from the minister who presided at the funeral and who described the perpetrators as “cruel, selfish, heartless people devoid of feeling and devoid of conscience.” The article referred to appellant’s status as a parolee for manslaughter, and it reiterated the prosecution’s decision to seek the death penalty. The article then observed that no execution had been carried out in California in 11 years.
Later that same day, a television station conducted a one-question public opinion poll on its “Telepulse” show: “Do you agree with the death penalty demand in murder of two Mira Mesa youths?” Viewers phoned in their responses: 690 yes, 70 no.
On July 10th, both the Union and the Evening Tribune carried stories on the funeral of the second victim. The latter’s article was on *969the front page. On July 11th, the Union published an article concerning the mother of one of the deceased boys and noted appellant was an “ex-convict on parole from a 1975 manslaughter conviction....”
The Evening Tribune of July 12th carried a front page article under the headline, “Slain boy’s mother finds words: It’s senseless.” The story stated that appellant was on parole for “a stabbing death.” Accompanying the article was a large photograph of one of the deceased boys performing stunts on his bicycle. An article in the Times again referred to appellant’s prior conviction and parole status. The Mira Mesa Sentinel carried one story about the victims’ funerals and a second story and an editorial concerning the citizens who had aided in appellant’s capture. The Sentinel reported that a sports scholarship had been set up by the local P.T.A. to honor the victims’ memory and that another fund was collecting contributions for their families. It also related appellant’s prior conviction, as did three local television stations. These stations also broadcast interviews with appellant’s parole officer. Another newspaper editorialized: “With a past history of violent crime, and a murder conviction, to boot, what was Robert Harris doing on the streets?”
Two days later, the entirety of the Union’s letters to the editor page was devoted to letters of outrage at the crimes and at the C.R.B.’s release of appellant. Appellant was called a “recidivist psychopath” and a “subhuman type.” In the days which followed, other letters were printed demanding the death penalty for appellant. The Union’s editorial cartoon on July 17 showed pollution from a pipe labeled “Paroled Murderers” being poured into a stream labeled “Society.”
In the next two days, the Union and the Tribune carried brief stories on the scholarship fund which had been created as a memorial to the two youths. And on July 19th, a television station broadcast an editorial, asking “whether this man, an exconvict, should have been out of prison in the first place. Harris was paroled last January after serving less than two and a half years for beating to death a 19-year-old friend after a drinking spree.. .. Parole authorities rejected the warnings by an Imperial County sheriffs officer, familiar with the case, that Harris was a potential danger to society.”
About this time, the publicity surrounding this case in San Diego County developed a new aspect, as the two major prosecutorial officers in the county became engaged in a sharp public dispute over which office would “get first crack” at prosecuting appellant. The local United *970States Attorney’s office was responsible for the prosecution of the bank robbery offense, and the county district attorney for the homicides. Each office issued statements indicating what sentence appellant would likely obtain if convicted in its respective court. The United States Attorney claimed that the federal charges were an “insurance policy.” against appellant’s early release by the parole board. After the district attorney’s office responded that it was seeking the death penalty—a punishment not available in the federal courts for bank robbery—the United States Attorney held a televised news conference at which he expressed the opinion that the California death penalty law was unconstitutional.
The district attorney’s office took the public position that if the federal charges were tried first, the state might lose the opportunity to try appellant and obtain a death sentence. The district attorney attempted to delay appellant’s arraignment in federal court, and members of the office accused the United States Attorney of “political grandstanding.” The United States Attorney responded that it was the county prosecutors who were “grandstanding.”
When the federal authorities obtained a trial date of October 3, the Tribune noted this “tightens the race between the two jurisdictions as to which will be the first to try the case.” An assistant district attorney described the “competition” between his office and the federal prosecutors as an “awkward situation.” On August 7, the district attorney was able to have the state trial set on a date earlier than October 3, and the press reported that the district attorney had “moved ahead” in his efforts to “beat federal authorities to the punch in prosecuting the Harris brothers.”
Attorneys in the district attorney’s office privately told the press that the motivation of the United States Attorney was “politics.” They claimed “he is politically ambitious and... he knows the case will receive a lot of publicity.. . . ” The United States Attorney responded that he was merely seeking “maximum protection of the community.” Members of the district attorney’s office were said to “scoff” at this justification.
On August 10, the Union published a lengthy article on the jurisdictional dispute, reporting that a senior federal parole officer “disputed” the United States Attorney’s computation of appellant’s federal sen*971tence. This official, who calculated a prison term “far under” the term mentioned by the United States Attorney, “cannot understand why [the United States Attorney] is insisting on prosecuting the two brothers from Visalia.” County prosecutors were again said to claim that federal involvement was “for the sake of publicity.” An assistant legal counsel for the C.R.B. computed for the Union that “the least” appellant would serve in state prison would be a term of years well beyond the term calculated by the federal parole officer.
These events were, duly reported by the Union, the Times, the Evening Tribune, and by the local television stations over a two and one-half week period from July 20th through August 10th, and beyond.
Coverage was not limited during this time period to the political dispute. Articles appearing in the Times of July 22d and 25th and August 8th and in the Union and the Tribune of July 22d and 25th and August 9th all reported further events in the case. On August 12th and 13th, the press reported th'at the confessions of both appellant and his brother had been introduced at their preliminary hearing. The Times story was headlined, “Harrises Bare Guilt to Them, Officers Testify.” Portions of Daniel’s confession were particularly publicized. According to police witnesses, appellant told Daniel that he wanted to kill everyone in the bank, and only after Daniel pleaded “there would be no more killings” did appellant relent. The Times carried Daniel’s assertions that appellant had eaten the victims’ hamburgers and had asked, “Wouldn’t it be fun to pose as police officers and inform the next of kin that their son had been murdered?” Daniel was reported to be so fearful of appellant that he requested—and was permitted—to be kept in a jail cell separate from appellant.
Meanwhile, community reaction to the crimes was being expressed in other ways. The P.T.A.’s of seven schools combined to set up the memorial athletic scholarship in Mira Mesa. A local stereo store advertised that a portion of its income would be donated to that fund. Another memorial fund was set up to collect contributions to the boys’ families. The bank which had been robbed gave rewards to three persons who had helped in the capture of appellant. It also took out large advertisements to laud the three, and the Tribune published an editorial commenting on these advertisements and again praising the three citizens. In its news broadcasts, a television station presented two of the citizens with its Good Citizen Award.
*972Numerous other details about the crimes, the court proceedings, appellant’s background, and the victims were reported and reiterated in the press. Appellant and Daniel were consistently referred to as the “brothers from Visalia” (Tulare County). The two victims were described as popular teenagers and best friends. The father of one of the boys was a police officer who participated in appellant’s arrest; a sister of one of the boys was inside the bank when Daniel and appellant robbed it. These facts and coincidences were widely disseminated by the press. Further coverage was given to statements by an officer in Imperial County that he had unsuccessfully tried to prevent appellant’s release on parole. A prison official was quoted as saying the C.R.B. had made a “mistake” by paroling appellant.
By mid-August members of the district attorney’s office admitted to the press that this case received “the most news coverage of any this year in San Diego.” Polls conducted that month by both the prosecution and defense more than substantiated this admission. Although differing considerably in their methodology, the pollsters for both sides found an extremely high public awareness of the crime. As one pollster stated, “this is the highest awareness factor in any of the polls that I have done regarding awareness of a particular alleged crime.” Indeed, so well known was this case that by September 1st—only five days prior to the hearing on the change of venue motion—the Union published an editorial addressing the contemplated release from prison of two persons convicted of murder. The editorial was entitled “From Worry to Outrage” and stated: “San Diegans cannot forget the case of a paroled killer now charged with the vicious slaying of two teenagers, unfortunate enough to cross his path.”
After the change of venue motion was denied, appellant filed a petition for a writ of mandate, seeking to overturn that ruling. The petition was summarily denied by the Court of Appeal and by a four-to-three vote in this court.
Although diminished somewhat in frequency, the publicity given to this case by the press continued well past the change of venue motion. The extent and nature of the coverage between that motion and jury selection, can be gleaned by the fact that one prospective juror, who was called to try this case, indicated that he had been in Alaska during the entire summer and “didn’t know a thing about [the case] until [he] returned in September,” but he “read in the paper quite a bit about it *973since then.” Although this juror recalled “not a great deal” of the details of the case, he had read enough to enable him to form the opinion that appellant was guilty. He was excused for cause.
Another indication of the extent of pretrial publicity comes from the voir dire in this case. Nearly 11 full court days were needed to obtain a jury of 12. Ninety-six prospective jurors were voir dired for those twelve positions. Of the 96, 90 percent had some prior information about the case, ranging from vague recollections to certainty of appellant’s guilt. Twenty of the ninety-six were excused for cause due to the publicity, and appellant exhausted his twenty-six peremptory challenges.
Of those who had prior knowledge, most obtained their knowledge from publicity or discussions prior to coming to court, but four prospective jurors with no prior knowledge of the offense received information from other prospective jurors in the jury lounge. Indeed, of 13 jurors who were asked or volunteered information about what was occurring in the jury lounge, 11 indicated they had heard such discussions. One prospective juror told the court that “[m]any people expressed opinions with reference to guilt or innocence”; another indicated that in the jury lounge conversations she overheard, “their opinion had already been formed”; a third indicated he heard discussions “throughout the jury lounge.”4
Of the twelve jurors empanelled to decide the case, nine had some exposure to the pretrial publicity, and one juror, who had no prior exposure, heard jury room discussions. Among the twelve who served, one had seen the television interview with appellant’s father, although this juror claimed to remember only that the father was “really broken up”; he did not mention that the father told the television reporter his son had admitted committing the killings. A second juror indicated that this case “was duly noted by I think everybody in our circle when the incident, you know, came to the news.” This juror stated that “I imagine I did” express or form an opinion regarding appellant’s guilt, but this was not a “definite judgment[],” and she indicated she had no opinion on guilt “at this time.” The remaining jurors admitted to having less knowledge than these two.
*974II.
The right to a “fair trial in a fair tribunal” is a basic component of due process.5 So basic is this principle that it has been termed “the most fundamental of all freedoms.”6 “It is a right essential to the preservation and enjoyment of all other rights, providing a necessary means of safeguarding personal liberties against government oppression. [Citations.]” (Nebraska Press Assn. v. Stuart (1976) 427 U.S. 539, 586 [49 L.Ed.2d 683, 713, 96 S.Ct. 2791] (conc. opn. of Brennan, J.).)
The Supreme Court has “insisted that no one be punished for a crime without ‘a charge fairly made and fairly tried in a public tribunal free of prejudice, passion, excitement, and tyrannical power.’” (Sheppard v. Maxwell (1966) 384 U.S. 333, 350 [16 L.Ed.2d 600, 613, 86 S.Ct. 1507], citation omitted.) Thus, whenever there appears a “reasonable likelihood” that the dissemination of potentially prejudicial news prior to the trial will prevent a fair trial, the trial must be postponed until the threat abates or the case is transferred to another county not so permeated with publicity. (Id., at p. 363; Maine v. Superior Court (1968) 68 Cal.2d 375, 383-384 [66 Cal.Rptr. 724, 438 P.2d 372]; Fain v. Superior Court (1970) 2 Cal.3d 46, 54 [84 Cal.Rptr. 135, 465 P.2d 23].)
The courts have identified several dangers to a fair trial which are relevant to the present case. Such a danger can exist if there is bias against the accused, as when the community harbors hostility toward the suspect and/or when pretrial publicity is inflammatory. Recognizing that the press both reflects7 and shapes8 the community’s pattern of thought, courts have looked to the nature and extent of press coverage as a means of ascertaining bias or hostility toward an accused. Courts have also looked to other factors from which community bias might be inferred, such as the status of the accused in the community, the status of the victim, the nature of the offense, the size of the community, and whether the case becomes involved in local politics.
A second and separate kind of danger to a fair trial may result if extensive pretrial publicity has tended to establish the accused’s guilt. As *975the Court of Appeal has stated, “[a] reasonable likelihood of unfairness may exist even though the news coverage was neither inflammatory nor productive of overt hostility. [Citation.] When a spectacular crime has aroused community attention and a suspect has been arrested, the possibility of an unfair trial may originate in widespread publicity describing facts, statements and circumstances which' tend to create a belief in his guilt.” (Corona v. Superior Court (1972) 24 Cal.App.3d 872, 877 [101 Cal.Rptr. 411].)
In determining the likelihood of this form of prejudice, the courts look again at the extent and content of press coverage. Especially significant in this regard is whether there has been widespread publicity concerning confessions or admissions by the accused, accusations by an alleged crime partner, prior similar criminal conduct by the accused, or statements by presumably knowledgeable officials indicating their belief in the accused’s guilt.
The record in the instant case contains virtually every factor which this court has heretofore considered relevant to the resolution of a change of venue question. The record is replete with indications of community bias. The press reported the “stunned” reaction of the community to the murders and consistently mentioned the “outrage,” “disgust,” “indignation,” and “fear” shared by San Diegans as a result.
Only a few days prior to the hearing on the change of venue motion, the county’s largest newspaper wrote that “San Diegans cannot forget” these “vicious” killings. Appellant was described by members of the community as “cruel, selfish, heartless” and “devoid of feeling, and devoid of conscience.” A police officer was widely quoted as stating appellant was dangerous, unstable, and violent. The press reported that even appellant’s brother Daniel was afraid of him and that Daniel “was happy to be [in confinement] away from his older brother.” Press coverage of even routine court appearances frequently mentioned that appellant was brought to court in chains. (Cf. People v. Duran (1976) 16 Cal.3d 282 [127 Cal.Rptr. 618, 545 P.2d 1322, 90 A.L.R.3d 1].)
Appellant was graphically portrayed in a cartoon as sewage polluting the community. In the letters to the editor, he was called a “subhuman type,” a “recidivist psychopath,” a “dreadful man,” and a “beast.” There were demands for his execution, and an announcement that citizens will “speak out and act if justice is not served.. . . ”
*976Appellant’s criminal history was a constant subject of public attention. The press frequently noted his arrest at age 11 for cruelty to animals. Other arrests and convictions for auto theft, runaway, escape from youth camp, burglary, and parole violation were brought out. His prior status as a welfare recipient and the “filth” of his house were deemed newsworthy. Even his mother’s conviction for bank robbery was prominently featured. Most damaging, however, was appellant’s prior manslaughter conviction, the details of which were repeated many times. The press carried interviews with a judge who had been the prosecutor for this offense, with police officers involved in its prosecution, and with his parole officer. Appellant was referred to by the leading newspaper as a “paroled killer.”
The community was incensed that the C.R.B. had paroled appellant. This anger was expressed in editorials, in letters to the press, in comments by local law enforcement officials. The press recounted the efforts of a police officer in another county to prevent appellant’s parole. Stories were carried attributing to prison officials the admission that it had been a “mistake” to release appellant. Editorials attacked the “feeble excuses” and “lame responses” of the C.R.B. for releasing appellant.
In prior decisions, this court has found the status of the accused and the victim to be significant. For example, in Fain v. Superior Court, supra, 2 Cal.3d at page 52—a case in which a change of venue was ordered—the court noted that the defendant “had been a resident of the. . . area [where the crime took place] for only a few months prior to the crimes, and had not been integrated into the community.” The same can be said of appellant; indeed, appellant and his brother Daniel were routinely referred to as “brothers from Visalia.” Appellant’s contacts with yet another county (Imperial) were amply emphasized in connection with the reportage of his prior manslaughter conviction there.9
In Fain, this court also considered the fact that “the victims were popular local teenagers, whose fate drew expressions of public sympathy and aroused hostility towards the defendant].” (2 Cal.3d at p. 51.) In *977the present case, too, the victims were also teenagers popular in their community, best friends on their way to go fishing when kidnaped; and one of them was the son of a police officer.10 Public sympathy and tribute came in many forms. The Union noted the “hundreds of people—strangers, mostly—who rushed to [the] comfort” of the victims’ families. Funeral arrangements were made for one family by a church of another faith.
A college scholarship fund was set up in memory of the boys by the P.T.A.’s of seven schools, and another fund collected donations for their families. The existence, of these funds was publicized countywide. A local retail establishment advertised that it would donate portions of its income to the scholarship fund. Rewards were given to citizens responsible for appellant’s capture. The bank took out advertisements lauding them, the county’s largest newspaper praised them, and a major television station gave them its Good Citizen Award.
This court has also observed that the nature and gravity of the crime, as reported in the press, “may reasonably be taken into consideration in determining the risk of prejudice.” (Fain v. Superior Court, supra, 2 Cal.3d at p. 54; see also Maine v. Superior Court, supra, 68 Cal.2d at p. 385.) Appellant’s was a capital crime of utmost gravity. Moreover, the shocking nature of the case was thoroughly explored in the press. A deputy coroner told the press that one boy had been shot without warning in the back and that the other boy was flushed out of hiding and killed. At a press conference, the prosecutor termed the slayings an “apparent willful execution of two innocent teenagers.” Gruesome details were frequently noted, from appellant’s eating the victims’ food to his desire to notify the boys’ families of the slayings.
In addition, this case took on political overtones as the two major prosecutorial offices in the county engaged in public maneuvering in order to be first to bring appellant to justice. (Cf., People v. Tidwell (1970) 3 Cal.3d 62, 71 [89 Cal.Rptr. 44, 473 P.2d 748]; see also Maine v. Superior Court, supra, 68 Cal.2d at pp. 386-387.) Each side in the dispute seemed to boast about the severity of the sentence appellant would receive in its jurisdiction. Each accused the other of “grandstanding.” The United States Attorney was said to be “playing politics.” The *978press perceived the situation as a “race” between two antagonistic competitors.
Much of the publicity discussed thus far not only revealed community bias toward appellant but also assumed his guilt: the prior conviction for homicide (see People v. Fries (1979) 24 Cal.3d 222, 230 [155 Cal.Rptr. 194, 594 P.2d 19]); the reported details of the crime; and the expressions by the prosecutor and other local officials as to appellant’s guilt. In addition, however, the press on numerous occasions carried the story of Daniel’s statements, which laid the full blame for the murders on appellant. Appellant’s own admission to the crimes was carried over television, via an emotional interview with appellant’s father. This broadcast was seen by at least one of the jurors who decided appellant’s guilt. His confession was disclosed when the preliminary hearing transcript was made public.
One relevant factor which this court has considered in the past but which is not present in the instant case is the small population of the community from which the jury is drawn. San Diego County is populous, in terms of both absolute numbers and voter registration. (Cf., ante, fn. 3.) However, “population size alone is not determinative.” (Fain v. Superior Court, supra, 2 Cal.3d at p. 52, fn. 1; see also Smith v. Superior Court (1969) 276 Cal.App.2d 145, 150 [80 Cal.Rptr. 693]; Lansdown v. Superior Court (1970) 10 Cal.App.3d 604, 609-610 [89 Cal.Rptr. 154].)
Contrary to Fain, Smith, and Lansdown, today’s majority opinion appears to find that the size of the community is controlling. (Maj. opn., ante, at p. 949.) The majority blithely ignore the cases in which changes of venue have been ordered from populous counties, including one county which is considerably larger than San Diego. (See Smith v. Superior Court, supra, 276 Cal.App.2d 145 [L.A. County, population 7 million];11 Lansdown v. Superior Court, supra, 10 Cal.App.3d 604 [Kern County, population 300,000].) The fallacy of the majority’s reasoning was fully set forth in Smith: “Carried to its logical conclusion, the [majority’s] argument, if valid, would require that all motions for a change of venue in [a populous county] must be denied because of its population, regardless of the amount of pretrial publicity which surrounds a notorious criminal case. This contention is disposed of by the court in Maine in the following language: ‘We do not intend to suggest, *979however, that a large city may not also become so hostile to a defendant as to make a fair trial unlikely.’” (276 Cal.App.2d at p. 150, quoting from Maine v. Superior Court, supra, 68 Cal.2d at p. 387, fn. 13.)
The majority’s apparent elevation of the population factor to preeminent status is all the more unfortunate in this case, because, unlike the Manson case12 upon which the majority partially rely, the pervading publicity surrounding the crimes was limited to two counties at most. Thus, alternative forums for appellant’s trial were readily available.
The majority also assert that the pretrial publicity in this case did not prejudice appellant at trial. They seek to prove this proposition by reference to the voir dire examination of the 12 jurors empanelled to try this case. This effort to establish a lack of prejudice is unpersuasive.
As this court has long recognized, the fact that “it was possible to select [jurors] who thought they could try the case fairly does not sustain the conclusion that a fair trial could be had.” (People v. McKay (1951) 37 Cal.2d 792, 798 [236 P.2d 145], italics added.) Primary among the reasons for this rule are the difficulties inherent in identifying, uncovering, and preventing juror prejudice flowing from pretrial publicity.13 Thus, jurors’ declarations of impartiality are not dispositive. (Sheppard v. Maxwell, supra, 384 U.S. at p. 351 [16 L.Ed.2d at p. 613]; People v. Tidwell, supra, 3 Cal.3d at p. 73.)
The United States Supreme Court recently articulated alternative tests for determining when due process requires a conviction to be set aside on appeal as the result of pretrial publicity. (Murphy v. Florida (1975) 421 U.S. 794 [44 L.Ed.2d 589, 95 S.Ct. 2031].) Under these tests, the refusal to grant a motion for a change of venue will require reversal if, but only if, prejudice at trial is presumed, is inherent, or is inferrable.
Under the first test in Murphy, prejudice is “presumed” and a judgment of conviction must be reversed when “the influence of the news *980media ... in the community at large .. . pervaded the proceedings.”14 (Id., at pp. 798-799 [44 L.Ed.2d at p. 594].) Murphy cited Rideau v. Louisiana (1963) 373 U.S. 723 [10 L.Ed.2d 663, 83 S.Ct. 1417] as a proper application of this “presumed prejudice” test. (See 421 U.S. at pp. 798-799 [44 L.Ed.2d at p. 593-594].) In Rideau, the defendant had confessed under police interrogation to the murder of which he stood convicted. A twenty-minute film of his confession was broadcast three times by one television station in the community where the crime and the trial took place. One of the broadcasts was viewed by an audience estimated to be about 50,000 persons in a community of 150,000.
Believing that the televised film “in a very real sense was Rideau’s trial” to those who viewed it, the Supreme Court reversed the conviction “without pausing to examine a particularized transcript of the voir dire examination of the members of the jury.... ” (Rideau v. Louisiana, supra, 373 U.S. at pp. 726, 727 [10 L.Ed.2d at pp. 665-666], initial italics in original, subsequent italics added.) The court held that “due process of law in this case required a trial before a jury drawn from a community of people who had not seen and heard Rideau’s televised ‘interview.’” (Id., at p. 727 [10 L.Ed.2d at p. 666].)
In situations where prejudice is not “presumed,” the Murphy court held that a “totality of circumstances” test should be applied. (421 U.S. at p. 799 [44 L.Ed.2d at p. 594].) Under this test, the appellate court determines whether either (1) “the jury-selection process . . . permits an inference of actual prejudice” or (2) “the setting of the trial was inherently prejudicial .. . .” (Id., at p. 803 [44 L.Ed.2d at p. 597].) The court explained that even where no actual prejudice on the part of the trial jurors can be shown or inferred from the voir dire transcript, this factor “might be disregarded in a case where the general atmosphere in the community ... is sufficiently inflammatory . .. .” (Id., at p. 802 [44 L.Ed.2d at p. 596].)
The instant appeal undeniably involves one factor similar to that which invoked the “presumed prejudice” test in Rideau: a local television station broadcast a dramatic interview with appellant’s father in *981which the father tearfully revealed appellant’s confession to him. While this interview was not broadcast three times as in Rideau, and did not portray appellant himself, nevertheless this publicity must at least be considered to have substantial impact under the “totality of circumstances” test. This impact would be especially relevant to the empanelled juror who admitted to viewing the broadcast.
In my view, appellant has more than met the “totality of circumstances” test. An examination of the jury-selection process as a whole—which Murphy requires, see 421 U.S. at page 803 [44 L.Ed.2d at page 596]—discloses that 90 percent of the prospective jurors had been exposed to pretrial publicity or discussions about the case.15 Many jurors admitted they had felt horror or shock when the crime was disclosed in the press. And as one juror frankly admitted, it would take some “mind-rendering to erase maybe what I have felt.” Indeed, one of the twelve jurors finally empanelled to try appellant’s case stated “I imagine I did” form or express an opinion as to his guilt as a result of pretrial publicity. She stated, however, that she had no opinion “at this time” concerning guilt or innocence. She did not indicate what, if anything, had occurred to cause her to retreat from her initial opinion.
An especially disturbing aspect of the jury-selection process in this case was the report during voir dire of discussions by potential jurors in the jury lounge. According to the record, many people expressed the opinion that appellant was guilty. True, the trial judge did at one point call the jurors back into the courtroom specifically to admonish them against such conversations. However, such an admonishment is a double-edged sword. While it may deter future jury room discussions, the stern admonishment also reduces the likelihood that jurors, subject to voir dire thereafter, will admit to having heard or participated in these discussions.
In the final analysis, however, it is the inherently prejudicial setting of this case that tips the scales in favor of reversal. When the accused is portrayed as “sewage” polluting society, when the public is treated to *982the sorry spectacle of prosecutorial offices publicly vying with each other to have “first crack” at convicting the accused, when the accused’s prior homicide conviction becomes a routine part of the continuing press coverage of the case, when the state prison system is assailed for its “mistake” in releasing the accused and a public official admits the same, when the prior record of the accused’s mother is deemed to be newsworthy, when a television station broadcasts the father’s tearful recitation of his son’s confession, then “the setting of the trial [is] inherently prejudicial.” (See Murphy v. Florida, supra, 421 U.S. at p. 803 [44 L.Ed.2d at p. 597].)
Under the totality of the circumstances, this case should be reversed so that a fair trial may be conducted.
III.
There are some particularly disturbing ramifications of the majority’s holding in this case on the penalty phase decision of a capital trial.
The pretrial publicity in this case is important for another reason. The underlying but unmistakable message of the pretrial publicity as a whole was that the only appropriate punishment for appellant was death.16 This leads to an important point.
At the penalty phase of a capital trial, the jury has the especially delicate task of deciding whether the accused should live or die. Jurors are called upon to “express the conscience of the community . . . . ” (Witherspoon v. Illinois (1968) 391 U.S. 510, 519 [20 L.Ed.2d 776, 783 88 S.Ct. 1770].) It is undeniable that jurors making the penalty decision are entitled to, and in fact must of necessity, exercise considerably more subjective discretion in performing this task than they do in reaching a decision on guilt or innocence. (See Adams v. Texas (1980) 448 U.S. 38, 46 [65 L.Ed.2d 581, 590, 100 S.Ct. 2521].)
The conscience of the community is expressed by assuring that the pool from which penalty phase jurors is drawn accurately reflects the *983community as a whole. In this way, the discretion exercised by those jurors will, in the long run, closely approximate that which would be exercised by the community as a whole. (Cf., generally, Hovey v. Superior Court (1980) 28 Cal.3d 1, 73-74 [168 Cal.Rptr. 128, 616 P.2d 1301].)
However, when a case produces a great deal of potentially prejudicial publicity, certain members of the community become ineligible to serve at the trial as a consequence of that publicity. They are removed from the pool of persons from which, inter alia, the penalty phase jury is drawn. Certain types of individuals tend to be removed from the pool as a result of pretrial publicity. It has been suggested that an “honest juror” will frequently find himself excluded. (See Corona v. Superior Court, supra, 24 Cal.App.3d at p. 879.) One might further speculate that the “self-aware” juror may also tend to be excluded. But one type of juror will, almost by definition, tend to be removed in disproportionate numbers from the jury pool: the jurors who are informed and knowledgeable about current affairs.
Whatever the impact of the removal of these jurors upon the guilt determination, the impact on the penalty phase is likely to be devastating. At that phase, where jurors are given the most discretion and where the jury verdicts are supposed to express that undefinable quality known as the conscience of the community, the law removes from the jury those who are most informed about the community. Since extensive publicity tends to occur in connection with important cases, this removes these individuals in the very cases which are most significant.
There is no failsafe “solution” to this irony. However, a frank recognition of its existence would lead us to consider ways of mitigating its effect where possible. Such mitigation is readily available in capital cases like the present one, since intensive pretrial publicity was confined to a few counties in the state.
A change of venue to another county would have substantially restored the jury pool in this case to that which is available in a case of less notoriety. A change of venue would have made it possible for this court to feel more secure that the verdict expressed in this case truly reflected the conscience of our California community.
*984IV.
Before the state can put to death one of its citizens, the accused must be found guilty after a fair trial by a jury selected from a cross-section of the community. In this case, appellant received neither. Under our case law, if a fair trial has been denied, the conviction must be reversed regardless of the evidence of the accused’s guilt. (Irvin v. Dowd, supra, 366 U.S. at p. 722 [6 L.Ed.2d at p. 755]; People v. Tidwell, supra, 3 Cal.3d at p. 76; Maine v. Superior Court, supra, 68 Cal.2d at p. 384; People v. McKay, supra, 37 Cal.2d at pp. 798, 800.)
As this court explained more than a century ago, “The prisoner, whether guilty or not, is unquestionably entitled by the law of the land to have a fair and impartial trial. Unless this result be attained, one of the most important purposes for which Government is organized and Courts of Justice established will have definitively failed. Cases sometimes occur, and this would appear to be one of them, in which the very enormity of the offense itself arouses the honest indignation of the community to such a degree as to make it apparent that a dispassionate investigation of the case cannot be had. Under such circumstances the law requires that the place of trial be changed.” (People v. Yoakum (1879) 53 Cal. 566, 571.)
Mosk, J., concurred.
Appellant’s petition for a rehearing was denied March 20, 1981. Bird, C. J., and Mosk, J., were of the opinion that the petition should be granted.
Estes v. Texas (1965) 381 U.S. 532, 540 [14 L.Ed.2d 543, 548, 85 S.Ct. 1628].
This opinion uses the terms “press” and “publication” to refer not only to written journalism but also to the television and radio broadcast media.
With a circulation of 131,000 newspapers daily (except Sunday), the Evening Tribune is the second ranking newspaper in San Diego County. The San Diego Union has the largest circulation (200,000 daily; 300,000 Sunday). Other newspapers with substantial circulation in the county include the Los Angeles Times (41,000 daily; 52,000 Sunday), the Escondido Times-Advocate (31,000), the El Cajon Daily Californian (14,000), and the six Sentinel Newspapers (total local circulation 85,000). San Diego County has a population of about 1.7 million persons of whom 800,000 are registered voters. (Cal. Sect. of State, Rep. of Registration (Oct. 1978) p. 4.)
It is appropriate at this point to note some of the more obvious difficulties that arise when one attempts to determine the impact of publicity upon a jury pool by comparing a newspaper’s circulation statistics with the gross population of the county. At the outset, it has been recognized that a newspaper’s circulation statistics—that is, the number of copies sold or given away—significantly understates the number of persons actually reached by that paper. For example, a family would generally purchase only one copy of a newspaper to be shared among all family members.
On the other hand, since at least some individuals or businesses subscribe to more than one newspaper, one cannot obtain the number of newspaper subscribers simply by adding up the circulation statistics of each paper in the county.
Finally, an assessment of the impact of adverse publicity upon a county’s potential jury pool cannot accurately be obtained by comparing the number of persons reached by the publicity with the total population of the county. San Diego’s gross population—1.7 million—includes numerous persons who are statutorily ineligible to serve as jurors, for example, aliens and persons under the age of 18 years. A more realistic esti*966mate of the jury pool’s size might be registered voters. (See Code Civ. Proc., § 204e.) (There were 800,000 registered voters in San Diego County at the time appellant’s jury was selected.)
Taking into account these various caveats, it seems reasonable to conclude that the several newspapers listed at the beginning of this footnote do have an extensive readership among persons constituting the jury pool of San Diego County.
At one stage in the voir dire proceedings, the trial judge called in the prospective jurors and admonished them to stop discussing the case in the jury lounge.
In re Murchison (1955) 349 U.S. 133, 136 [99 L.Ed. 942, 946, 75 S.Ct. 623].
Estes v. Texas, supra, 381 U.S. at page 540 [14 L.Ed.2d at page 548].
See Irvin v. Dowd (1961) 366 U.S. 717, 725 [6 L.Ed.2d 751, 757, 81 S.Ct. 1639].
See Irvin v. Dowd, supra, 366 U.S. at page 726 [6 L.Ed.2d at page 758]; see also Clifton v. Superior Court (1970) 7 Cal.App.3d 245, 251 [86 Cal.Rptr. 612].
The majority opinion asserts that appellant “lived in the same community as his victims and worked in San Diego." (Maj. opn., ante, at p. 949.) This assertion does not accurately reflect the way appellant was protrayed by the press. Usually, he was said to be “from Visalia." According to one newspaper in Mira Mesa, appellant was a “transient renter.” At the very least, appellant was no more integrated into the community than was the defendant in Fain, supra, whose minimal community ties were held to be a factor favoring a change of venue.
Prior to the deaths of the boys, neither they nor their families were known outside the community of Mira Mesa. Their virtues were, however, made known to the county at large following their deaths, and the community’s warm sympathy was displayed countywide. As the mother of one of the boys explained, “the whole of San Diego was just fabulous.”
Smith was cited with approval on this point in Fain v. Superior Court, supra, 2 Cal.3d at page 52, footnote 1.
People v. Manson (1976) 61 Cal.App.3d 102 [132 Cal.Rptr. 265].
See, inter alia, Irvin v. Dowd, supra, 366 U.S. at pages 727-728 [6 L.Ed.2d at pages 758-759]; Sheppard v. Maxwell, supra, 384 U.S. at page 362 [16 L.Ed.2d at page 620]; Murphy v. Florida (1975) 421 U.S. 794, 803 [44 L.Ed.2d 589, 596]; Nebraska Press Assn. v. Stuart, supra, 427 U.S. at pages 566-567 [427 U.S. at pages 701-702]; Maine v. Superior Court, supra, 68 Cal.2d at pages 380, 382-383; People v. Tidwell, supra, 3 Cal.3d at page 73; Lansdown v. Superior Court, supra, 10 Cal.App.3d at page 609; Corona v. Superior Court, supra, 24 Cal.App.3d at pages 878-879, 881.
According to the complete quotation from Murphy, prejudice is presumed in cases where “the influence of the news media, either in the community at large or in the courtroom itself, pervaded the proceedings.” (Italics added.) Since this language is framed in the alternative and since there is no claim in the present case of overbearing press influence “in the courtroom itself,” that portion of the quotation is deleted. (Cf., Estes v. Texas, supra, 381 U.S. 532; Sheppard v. Maxwell, supra, 384 U.S. 333.)
This figure of 90 percent probably understates the actual proportion of such jurors. Courts have noted that jurors may not admit they have knowledge of pretrial publicity. (See, e.g., Corona v. Superior Court, supra, 24 Cal.App.3d at pp. 878-879.)
There is a strong indication that the jurors in this case were not immune from this tendency. According to a newspaper account of the preliminary voir dire of the first 12 jurors, when asked if they had read or heard about this case, “All 12 jurors raised their hands, some of them reluctantly and only after looking around to see the response of the others.”
The message comes through in this fashion: appellant has killed before, yet he was released from prison into society by blundering or incompetent prison officials; he has killed again, thus proving he will forever be dangerous and is no more than refuse in our community; the only way to prevent a second mistaken release and yet another tragic killing is to take the matter away from the control of the prison officials; this can be done only by executing the appellant.