Does defendant waive his right to change venue?

As a preliminary matter, we reject the People's contention that defendant has waived this claim. Because the trial court initially denied the motion without prejudice, defendant needed to renew it at the close of voir dire in order to preserve the issue for appeal. (People v. Hoover (1986) 187 Cal.App.3d 1074, 1085, 231 Cal.Rptr. 203.) In fact, defendant did renew his motion on the final day of voir dire, a few hours before the jury was sworn. The People argue that defendant, in renewing the motion, emphasized his problems at the jail rather than the extent of pretrial publicity. (See p. 283 of 5 Cal.Rptr.2d, p. 1330 of 824 P.2d, ante.) However, the record does not conclusively demonstrate that the renewed motion was intended or understood as limited to that ground. Therefore, this issue cannot properly be resolved on a theory of procedural default. ¹³

Under section 1033, the trial court must grant a motion to change venue if "there is a reasonable likelihood that a fair and impartial trial cannot [1 Cal.4th 1167] be had in the county." In making this determination, a court considers "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." (People v. Harris (1981) 28 Cal.3d 935, 948, 171 Cal.Rptr. 679, 623 P.2d 240.)