THE PEOPLE, Plaintiff and Respondent, v. EUGENE BRADFORD, Defendant and Appellant.
Crim. No. 19058
Supreme Court of California
May 27, 1976.
Richard E. Erwin, Public Defender, Kenneth Cleaver, Assistant Public Defender, and Kenneth R. Yegan, Deputy Public Defender, for Defendant and Appellant.
Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant Attorney General, S. Clark Moore, Assistant Attorney General, Frederick R. Millar, Jr., Theodora Berger and Steven H. Kaufmann, Deputy Attorneys General, for Plaintiff and Respondent.
D. Lowell Jensen, District Attorney (Alameda), and Thomas W. Condit, Deputy District Attorney, as Amici Curiae on behalf of Plaintiff and Respondent.
CLARK, J.—Defendant appeals from judgment entered on jury verdicts convicting him of assault with a deadly weapon upon a peace officer (
Defendant and an accomplice robbed a bank in Ventura County. Minutes later, while still in Ventura County, they were stopped for speeding by Highway Patrol Officer Reynolds Patrick. Defendant, the driver, got out. As he and Patrick stepped to the side of the patrol car, defendant wrested the officer‘s revolver from him; Patrick tried to escape, but accidentally was struck by and pinned under a car driven by Alma Reinke. Defendant fired five shots at Patrick and Mrs. Reinke, then drove away. Patrick freed himself, radioed for assistance, and set off in pursuit.
The chase ended in Los Angeles County where defendant was involved in a traffic accident. During the chase, defendant‘s accomplice fired several shots at Officers Edward Douglas and Samuel Olmstead of the Los Angeles County Sheriff‘s Department when they attempted to intercept the robbers at a point on Pacific Coast Highway within Los Angeles County.
Defendant was prosecuted and convicted in federal court of bank robbery, in Los Angeles County of two counts of assault with a deadly weapon upon a peace officer (Officers Douglas and Olmstead), and in Ventura County of assault with a deadly weapon upon a peace officer (Officer Patrick) by using a firearm, exhibiting a firearm (Mrs. Reinke), and possession of a concealable firearm by an ex-felon. This appeal is from the Ventura County judgment.
Multiple Prosecution
Defendant contends that the separate proceedings in Los Angeles and Ventura Counties constituted multiple prosecutions in violation of
In Neal v. State of California (1960) 55 Cal.2d 11, 21 [9 Cal.Rptr. 607, 357 P.2d 839], this court pointed out that ”
The distinction drawn in Neal was sharpened in Kellett v. Superior Court, supra. “If needless harassment and the waste of public funds are to be avoided, some acts that are divisible for the purpose of punishment must be regarded as being too interrelated to permit their being prosecuted successively. When there is a course of conduct involving several physical acts, the actor‘s intent or objective and the number of victims involved, which are crucial in determining the permissible punishment, may be immaterial when successive prosecutions are attempted. When, as here, the prosecution is or should be aware of more than one offense in which the same act or course of conduct plays a significant part, all such offenses must be prosecuted in a single proceeding unless joinder is prohibited or severance permitted for good cause. Failure to unite all such offenses will result in a bar to subsequent prosecution of any offense omitted if the initial proceedings culminate in either acquittal or conviction and sentence.” (63 Cal.2d at p. 827, italics added.)
The People contend that joinder of the Los Angeles and Ventura County prosecutions was prohibited under
The question presented, therefore, is whether the offenses involved in this appeal can be said to have occurred “on a... motor vehicle” within the meaning of
Our venue statutes must be construed in light of the importance historically attached to vicinage. At common law, a defendant in a criminal action had a right to be tried by a jury drawn from the vicinage, i.e., the neighborhood, in which the alleged crime occurred. (People v. Powell (1891) 87 Cal. 348, 354-355 [25 P. 481].) The substance of this common law right is preserved in the federal Constitution, the Sixth and Fourteenth Amendments guaranteeing a defendant in a state criminal prosecution a right to be tried by a jury drawn from, and comprising a representative cross-section of, the residents of the judicial district in which the crime was committed. (People v. Jones (1973) 9 Cal.3d 546, 556 [108 Cal.Rptr. 345, 510 P.2d 705].) It is also reflected in
The right of a criminal defendant to be tried in the vicinage of the crime was interpreted so strictly at common law that, e.g., an offense committed partly in one county and partly in another was not prosecutable at all. (People v. Powell, supra, 87 Cal. at p. 358.)
Persuasive authority from other jurisdictions not only identifies the limited purpose of in-transit venue statutes, but also establishes that, because the purpose is limited, such statutes are inapplicable when the offense occurs outside the vehicle at an identifiable location.
In Commonwealth v. Stefanowicz (1938) 133 Pa.Super. 501 [3 A.2d 22], a defendant convicted of statutory rape contended that Pennsylvania‘s in-transit statute was inapplicable in the circumstances of his case. Rejecting his claim, the court identified the purpose of the statute: “In the instant case there was evidence that the crime was committed in the automobile which had been driven from the City of Pittsburgh, in Allegheny County, to a place within or without that county, where the crime was committed, and then the return journey made. The difficulty of proof of the exact locus of the crime is obvious. The very purpose of the act... was to obviate the difficulties of proof which confronted the Commonwealth in the present case.” (Id., at p. 505.)
Defendant seeks support for his position in Stefanowicz, noting that the in-transit statute was held applicable even though the crime occurred while the car was stopped. However, as the court pointed out: “It is too obvious for discussion that [the statute] does not require that offenses committed during journeys from place to place must be committed on the carriage or vehicle only when such is in motion. A journey is not always consummated by uninterrupted movement. If it were necessary to determine the exact place of temporary halts during journeys in the nighttime the difficulty of proof would not be obviated and the purpose contemplated by the act would be nullified.” (Id., at p. 504.)
By contrast, where, as here, the offense took place outside an automobile at an identifiable place, the Pennsylvania in-transit statute was held inapplicable. In Commonwealth v. Tarsnane (1952) 170 Pa.Super. 265 [85 A.2d 606], the defendant enticed a child into his car in Philadelphia County, drove to a vacant house the location of which was not proven, entered the house and assaulted the child, then returned to the same neighborhood. Reversing the Philadelphia County conviction because venue in that county was not proven, the court held the in-transit statute inapplicable. “The offense here was not committed in
In Watt v. People (1888) 126 Ill. 9 [18 N.E. 340], a murder was committed on a moving train under circumstances making it impossible to determine whether the offense occurred in Will County or in adjoining Grundy County. Jurisdiction in Grundy County was upheld under the Illinois in-transit statute. “Whenever the locus in quo of the offense can be precisely identified, under [the general venue statute], the trial should of course be had in the county where it was committed, but when such is not the case [the in-transit statute] must be applied or the offender cannot be tried at all. When it cannot be determined in which of two or more counties the criminal act was perpetrated, the offender must, ex necessitate, be tried in a county which cannot be proved beyond a reasonable doubt to be the actual visne of the crime. If he cannot be so tried the law is powerless to punish him.” (Id., at p. 17.)
In People v. Goodwin (1914) 263 Ill. 99 [104 N.E. 1018], recognizing the limited purpose of in-transit statutes, the court refused to apply the Illinois statute where, as here, the location of the offense was not only identifiable, but identified. The defendant, a brakeman, confessed to burglarizing a freight train as it passed through Cook County enroute to Peoria County. The Peoria County conviction was reversed on the ground that venue in that county was not proven. “Under the reasoning of this court in Watt v. People, supra, it must be held that when the place of the crime can be definitely ascertained the venue of the crime should be laid and the indictment brought in that county.” (Id., at pp. 103-104.)
Relying on state constitutional provisions requiring trial in the county where the offense occurred, some courts have invalidated in-transit statutes insofar as they authorize prosecution of an offense in a county other than the one in which the crime was actually committed. (See State v. Reese (1920) 112 Wash. 507 [192 P. 934, 11 A.L.R. 1018]; People v. Brock (1907) 149 Mich. 464 [112 N.W. 1116]; State v. Anderson (1905) 191 Mo. 134 [90 S.W. 95].) In light of the federal constitutional right to a trial by a jury drawn from the vicinage in which the crime occurred,
Defendant contends that the trial court erred in failing to instruct the jury sua sponte on when a peace officer is “engaged in the performance of his duties” within the meaning of
Preindictment Delay
Defendant contends that he was denied his right to a speedy trial because of preindictment delay.
In United States v. Marion (1971) 404 U.S. 307 [30 L.Ed.2d 468, 92 S.Ct. 455], the high court held that “the Sixth Amendment speedy trial provision has no application until the putative defendant in some way becomes an ‘accused,’ ” explaining that the accusation may be “a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge.” (Id., at pp. 313, 320 [30 L.Ed.2d at pp. 474, 479].) A delay prior to accusation is governed by due process principles. (Id., at p. 324 [30 L.Ed.2d at pp. 480-481].)
The “established rule” in California is that a person does not become an “accused” until charges are formally filed. (Jones v. Superior Court (1970) 3 Cal.3d 734, 739 [91 Cal.Rptr. 578, 478 P.2d 10]; see People v. Archerd (1970) 3 Cal.3d 615, 639 [91 Cal.Rptr. 397, 477 P.2d 421]; People v. Jordan (1955) 45 Cal.2d 697, 708 [290 P.2d 484].) However, in Jones v. Superior Court, supra, the question was raised whether “a person becomes an ‘accused’ at an earlier time, when, for example, law enforcement agencies either decide to charge him with an offense or have a reasonable basis for doing so.” This court found it unnecessary to resolve the question because the prearrest delay complained of occurred after the filing of a formal charge. (3 Cal.3d at p. 739.) Moreover, this court observed, the same approach would be taken whether the claim was characterized as a speedy trial or a due process issue, “namely, balancing the effect of the delay on the defendant against any justification for the delay.” (Id., at p. 741, fn. 1.)
Consecutive Sentencing
In the Los Angeles proceeding, defendant‘s sentences on the two counts of assault with a deadly weapon upon a peace officer were ordered to run consecutively to one another. Aggravated by a prior conviction, the sentence on each count was 5 years to life imprisonment, the aggregate sentence being 10 years to life imprisonment.
In this proceeding, defendant‘s sentences on the three counts were ordered to run concurrently with one another but consecutively to sentences imposed in previous proceedings. Being aggravated both by a prior conviction and by operation of
It is well established that a trial court has discretion to determine whether several sentences are to run concurrently or consecutively. (
Defendant‘s assault upon Officer Patrick was a particularly aggravated offense of its sort. Whereas merely pointing the loaded revolver at the officer would have constituted the offense (People v. Laya (1954) 123 Cal.App.2d 7, 16 [266 P.2d 157]; People v. Thompson (1949) 93 Cal.App.2d 780 [209 P.2d 819]), defendant fired five shots at him while he was pinned under a car. But for defendant‘s faulty marksmanship, we might be reviewing a first degree murder conviction. Accordingly, we cannot say that the trial court abused its sentencing discretion, nor can we say that the sentence constituted cruel or unusual punishment. (See People v. White (1976) 16 Cal.3d 791, 797 [129 Cal.Rptr. 769, 549 P.2d 537].)
Defendant further contends that he was denied equal protection of the law because, his offenses in Los Angeles and Ventura Counties having been tried in separate proceedings, he was deprived of the benefits of
The equal protection clauses of the United States and California Constitutions (
The purpose of
“A statutory classification which arbitrarily excludes some but not all of those similarly situated in relation to the legitimate purposes of the statute does not necessarily invalidate the entire statute. In light of the purposes and history of a particular statute or an overall statutory scheme a reviewing court may correct a discriminatory classification by invalidating the invidious exemption and thus extending statutory benefits to those whom the Legislature unconstitutionally excluded.” (Hayes v. Superior Court, supra, 6 Cal.3d at p. 224, citations omitted.)
Applying this standard, rather than invalidate
Contrary to defendant‘s contention, the additional punishment prescribed by
Defendant contends that imposition of sentence upon both the assault with a deadly weapon upon a peace officer count (count III) and the possession of a concealable firearm by an ex-felon count (count VI) violated
“The ‘act’ necessary to invoke
The standard for applying
Defendant‘s possession of Officer Patrick‘s revolver was not “antecedent and separate” from his use of the revolver in assaulting the officer. The punishment provided for violation of
The judgment is modified by adding the italicized language to the following two sentences: (1) “The court orders that as to Count VI, being a felon in possession of a firearm, violation of
As so modified the judgment is affirmed.
McComb, J., Mosk, J., Sullivan, J., and Richardson, J., concurred.
TOBRINER, J., Concurring and Dissenting.—I concur in the majority opinion except insofar as it holds that the provisions of
Wright, C. J., concurred.
Appellant‘s petition for a rehearing was denied June 24, 1976. Wright, C. J., and Tobriner, J., were of the opinion that the petition should be granted.