Lead Opinion
Opinion
We granted review in this case to resolve an issue concerning venue that we noted but did not resolve in People v. Simon (2001)
Penal Code section 777
Section 781—the provision involved in this case—states one of the many exceptions to the general rule for venue: “When a public offense is committed in part in one jurisdictional territory and in part in another, or the acts or effects thereof constituting or requisite to the consummation of the offense occur in two or more jurisdictional territories, the jurisdiction of such offense is in any competent court within either jurisdictional territory.” Thus, under section 781, when a crime is committed partly in one county and partly in another county, or when thе acts or effects constituting the crime or requisite to its commission occur in more than one county, venue is in the superior court in each of the counties in question, and a defendant may be tried in any
In Simon, we concluded that “pursuant to the general legal doctrine that a party may forfeit a right by failing to assert it in a timely fashion, a defendant.. . forfeits a claim of improper venue when he or she fails specifically to raise such an objection prior to the commencement of trial.” (People v. Simon, supra,
In Simon, we also noted, but did not resolve, the issue of the soundness and continuing vitality of the rule that venue presents a question of fact to be decided by the jury. Because in that case the defendant “failed at trial to provide an appropriate jury instruction or authority supporting the giving of such an instruction, we ha[d] no occasion to determine whether, in the absence of legislative action, it would be appropriate for this court to revisit the lengthy and uniform line of decisions” supporting that rule. (People v. Simon, supra,
In this case, by contrast, defendant timely raised the question of venue prior to trial and again at trial, and we conclude that it is appropriate for us to resolve the issue left open in Simon.
As we shall explain, we conclude that the rule that venue is a question of fact for the jury is unsound for a number of fundamental reasons. First, the rule impedes the purposes underlying the venue provisions, especially their “principal purpose . . . from a defendant’s perspective” of “protecting] a defendant from being required to stand trials in a distant and unduly burdensome locale” (People v. Simon, supra,
Finally, we conclude that because adherence to the prior rule that venue is a question of fact for the jury has been widespread and long-standing, and because the holding that venue is a question of law for the court announces a new rule, we should not apply that new rule to the present case or any other case not yet final on appeal.
The Court of Appeal in this matter, although noting the issue we left open in Simon respecting venue, rejected on other grounds all of defendant’s claims of error implicating venue and determined that, contrary to defendant’s argument, under section 781 Marin County—the county in which the case was tried—was an appropriate place for trial of the crimes with which defendant had been charged. As we shall explain, we conclude that the Court of Appeal correctly rejected all of defendant’s claims related to venue, and therefore affirm the judgment of the Court of Appeal.
I
The District Attorney of Marin County charged defendant Christopher Francisco Posey in the Marin Superior Court with two counts of sale of cocaine base in violation of Health and Safety Code section 11352, subdivision (a), and alleged, for purposes of establishing venue under section 781, that defendant committed the crimes, or engaged in the requisite acts or caused the requisite effects, in two counties, implicitly Marin and San Francisco. Defendant pleaded not guilty to the sale-оf-cocaine-base charges and denied the venue allegation.
Both prior to and during trial, defendant repeatedly but unsuccessfully objected to venue, claiming that Marin County was not an appropriate place for trial. At the trial itself, which was conducted before a jury, defendant presented his objection to venue as essentially his sole defense. Viewed in the light most favorable to the ensuing judgment, the evidence introduced at trial disclosed the following facts.
Detective Rudy Yamanoha of the Marin County Sheriff’s Department received information that a woman known as “ Mini,” who apparently was a resident of San Francisco County, was selling cocaine in the area of Marin or
Some days later, Detective Yamanoha, in Marin County, again paged Nini, who was in San Francisco County, and apparently left a telephone number with a 707 area code (which encompasses Sonoma County, including Santa Rosa) directed to a cellular telephone. Nini called back Yamanoha and had him speak to defendant. Yamanoha asked to buy two more ounces of cocaine base, and defendant agreed to sell that quantity for $1,150. Although he in fact was in Marin, Yamanoha told defendant that he was in Santa Rosa, and asked defendant to meet him halfway in Marin; defendant refused, and proposed the same location in San Francisco as previously; Yamanoha ended the conversation before resolving the matter, stating that he had an incoming call, and defendant said that he would call back. A minute or so later, defendant called Yamanoha, apparently at the 707 area code telephone number, and Yamanoha agreed to meet him at the previously identified San Francisco location. That evening, Yamanoha went to the location in question and purchased two ounces of cocaine base from defendant for $1,150. This transaction too was surreptitiously videotaped by law enforcement officers.
In its charge, the trial court instructed the jury on the crime of sale of cocaine base and also on venue, and directed it to determine the question of guilt or innocence prior to venue. After deliberations, the jury returned verdicts finding defendant guilty of two counts of sale of cocaine base. The jury, however, was unable to agree on venue. Thereupon, the trial court declared a mistrial on that issue alone, denying a motion by defendant for mistrial on the entire case.
After rejecting a suggestion by the People that it resolve the question of vеnue itself, the trial court empanelled a second jury and conducted a second trial solely on the issue of venue. Evidence similar to that presented at the first trial was introduced before the second jury. After the second jury was instructed on venue by the trial court, and after that jury presented questions to, and received answers from, the trial court in the course of deliberations, the jury made a finding that “Venue is in Marin County.” The trial court rendered a judgment of conviction, sentencing defendant to a term of imprisonment.
On appeal, the Court of Appeal affirmed the judgment (after modifying it in part on a point not pertinent here). Noting that we had left open the issue of the soundness and continuing vitality of the rule that venue is a question of fact for the jury, the Court of Appeal rejected each of defendant’s contentions relating to venue. First, the Court of Appeal concluded that the trial court had not erred by receiving from the first jury the verdicts finding defendant guilty of two counts of sale of cocaine base that were purportedly “incomplete” because that jury was unable to agree on venue, and that the trial court had not acted in excess of its jurisdiction by thereafter declaring a mistrial on venue alone, empanelling the second jury, receiving that jury’s finding that venue was in Marin County, and rendering the ensuing judgment. Second, the Court of Appeal rejected a claim that the trial court’s instructions to the second jury on venue were erroneous. Third, the Court of Appeal concludеd that the evidence was sufficient to support the second jury’s finding on venue. Fourth and finally, the Court of Appeal held that the trial court had not violated defendant’s right, under the Sixth Amendment to the United States Constitution or section 16 of article I of the California Constitution, to trial by jurors of the vicinage by drawing the first jury (which returned the guilty verdicts) from Marin County.
We granted defendant’s petition for review. We conclude that we should affirm the judgment rendered by the Court of Appeal.
The primary issue before us on review concerns the soundness and continuing vitality of the rule, set forth in a line of California judicial decisions, that declares venue to be a question of fact to be decided by the jury at the conclusion of trial rather than a question of law to be decided by the court prior to trial.
In People v. Simon, supra,
Near the end of our opinion in Simon, we referred to the issue that is before us in this case and that we shall discuss at length below. We stated in Simon: Notwithstanding “language” in “numerous California decisions . . . , the characterization of venue as presenting the type of factual question that properly is to be determined by a jury, rather than the type of procedural legal issue that is determined by the court, appears inconsistent with contemporary treatment of other, analogous procedural issues that do not relate to the guilt or innocence of the accused (such as whether the prosecution has complied with . . . speedy trial requirements)—issues that uniformly are treated as legal questions to be decided by the court rather than a jury. [Citations.] Indeed, treating venue as presenting a question to be resolved by a jury appears particularly problematic when one considers that the principal purpose underlying the venue statutes from a defendant’s perspective—to protect a defendant from being required to stand trial in a distant and unduly burdensome locale—can be meaningfully effectuated only if a defendant’s venue challenge is considered and resolved prior to trial, well before a jury is empanelled or any issue is submitted to it. In addition, unless the jury is instructed
In concluding the discussion of this point in Simon, we declared that “[b]ecause in this case defendant failed at trial to provide an appropriate jury instruction or authority supporting the giving of such an instruction, we have no occasion to determine whether, in the absence of legislative action, it would be appropriate for this court to revisit the lengthy and uniform line of decisions holding that the issue of venue presents a question of fact to be determined by a jury.” (People v. Simon, supra,
Turning now to the issue before us, we begin with the same acknowledgment that we made in Simon—that in California there is a lengthy and uniform line of decisions holding or stating, expressly or impliedly, that venue is a question of fact for the jury.
In analyzing the soundness and continuing vitality of the rule that venue is a question of fact for the jury, we believe it is helpful to consider at the outset two points implicated in the issue.
There are numerous procedural matters decided prior to trial, during trial, and after trial, that accordingly lie within the court’s province as questions of law, but that necessarily require the court to consider and determine underlying questions of fact—frequently even questions of fact relating in some way to the charged offense.
For example, prior to trial the court, in deciding whether a defendant charged with a capital crime must be denied bail (§ 1270.5), makes findings of fact, overlapping the facts of the crime itself, as to whether “proof of his or her guilt is evident” (ibid.). In deciding whether to dismiss a criminal action for lack of probable cause to believe the defendant has committed the crime charged, the court similarly determines whether there exists “such a state of facts as would lead a [person] of ordinary caution or prudence to believe and conscientiously entertain a strong suspicion of the [defendant’s] guilt” (People v. Uhlemann (1973)
During trial, the court decides whether to admit all types of evidence (see Evid. Code, §§ 310, subd. (a), 400-405), making findings of fact as to all preliminary matters (see id., §§ 400-405), some of which, again, overlap the facts of the crime charged, such as the existence of a conspiracy to commit the crime in question (see, e.g., People v. Herrera (2000)
After the trial has concluded, the court decides whether to order a new trial (§ 1179 et seq.), making findings of fact that overlap those of the crime of which the defendant was found guilty (as when relief is sought on the ground of insufficiency of the evidence [§ 1181, subd. 6] or newly discovered evidence [§ 1181, subd. 8]), as well as factual determinations distinct from the crime (as when relief is sought, on the ground of jury misconduct [§ 1181, subd. 3]), and yet others that may involve factual determinations in part related and in part unrelated to the crime (as when relief is sought оn the ground of ineffective assistance of counsel, [see, e.g., People v. Fosselman (1983)
Thus, although questions of fact relating to the substantive issue of guilt or innocence are within the province of the jury, questions of law concerning procedural issues that do not themselves determine guilt or innocence—including any underlying questions of fact—are within the province of the court. (See People v. Simon, supra, 25 Cal.4th at p. 1110, fn. 18.)
The second point implicated, in analyzing the soundness and continued vitality of the rule that venue is a question of fact for the jury, involves the notion of venue itself. In California in criminal actions, venue simply denotes the place or places appropriate for a defendant’s trial. (E.g., Price v. Superior
Lastly, venue is not a part or aspect of substantive criminal law. (See People v. Simon, supra, 25 Cal.4th at p. 1110, fn. 18.) Accordingly, vеnue does not constitute an element of any crime. (People v. Sering, supra,
The general venue provision, as indicated, is section 777, which declares that when a crime is committed in a particular county, venue lies in that county. Section 781 is but one of the many venue provisions that establish venue in additional counties, depending upon the circumstances of the specific case. As noted, section 781 states that when a crime is committed partly in one county and partly in another county, or when the acts or effects constituting the crime or requisite to its commission occur in more thаn one county, venue lies in each of the counties in question.
It follows from the foregoing that venue should be considered a question of law for determination by the court prior to trial rather than a question of fact for the jury at the conclusion of trial. We find persuasive the reasons noted in Simon. First, determination of venue by the court prior to trial rather than by the jury at the conclusion of trial furthers the purposes underlying venue provisions, especially their “principal purpose . . . from a defendant’s perspective,” namely “to protect a defendant from being required to stand trial in a distant and unduly burdensome locale.” (People v. Simon, supra,
Without stating a rationale, the decisions that gave rise to the rule that venue is a question of fact for thе jury appear to have premised their treatment of venue on the assumption that, just as the People must prove the facts underlying the charged offense to the satisfaction of the jury, they similarly should have to prove the facts underlying venue—facts that often overlap the facts of the crime, as suggested in the phrase “locus delicti” or place of the crime (People v. More, supra,
In implicitly equating proof of venue with proof of a defendant’s guilt of a crime, however, these past decisions overlooked the circumstance that although the People must prove both the facts underlying the crime (see § 1096) and also the facts underlying venue (e.g., People v. Simon, supra,
Further and more fundamentally, the past decisions failed to appreciate adequately what is suggested by the difference in the respective burdens
In People v. Megladdery, supra,
When we scrutinize Megladdery’s rationale for the rule that venue is a question of fact for the jury, we find it unpersuasive. Although it is true that
Having found no persuasive explanation in prior California decisions for the rule that venue is a question of fact for the jury, we have surveyed the other jurisdictions that apply this rule in search of an alternative persuasive rationale—but have discovered none that supports retention of the rule in California. “These jurisdictions,” as noted in a leading treatise, “offer a variety of explanations .... Venue is described as: ‘a jurisdictional fact put in issue by a plea of not guilty’; [a] ‘material allegation of the indictment’ which must be proven along with other indictment allegations; an ‘element of the crime’ to be treated no differently than the substantive elements of the offense; and an ‘issuable fact’ most appropriately addressed in the course of the proof of the offense and presented to the finder of fact.” (4 LaFave et al., Criminal Procedure, supra, § 16.1(g), p. 500, fns. omitted.) In jurisdictions in which it is treated either as a “jurisdictional fact” (State v. Donnelly (Iowa 1976)
In view of the foregoing, we conclude that on its own merits, the rule adopted in prior California decisions—that venue is a question of fact for the jury—is not well founded. Our conclusion in this respect, however, does not by itself resolve the question whether this court can, and should, reject the rule and adopt in its place a rule that venue is a question of law for determination by the court.
As for the first question, whether this court can reject the rule that venue is a question of fact for the jury in favor of a rule that venue is a
As for the second question, whether we should reject the rule that venue is a question оf fact for the jury in favor of a rule that venue is a question of law for the court, we here too reach an affirmative conclusion. To be sure, the rule that venue is a question of fact for the jury has “enjoyed widespread and long-standing following among the . . . courts in California” (People v. Barnum, supra, 29 Cal.4th at p. 1225 [prior rule of advisement of a self-represented defendant of privilege against compelled self-incrimination]), as well as in most other jurisdictions. But, as we suggested in Simon, there are strong reasons that counsel against retention of the rule. First, the rule impedes the purposes underlying venue provisions, especially their “principal purpose . . . from a defendant’s perspective,” that is “to protect a defendant from .being required to stand trial in a distant and unduly burdensome locale” (People v. Simon, supra,
Therefore, we conclude that the rule that venue is a question of fact for the jury should be rejected in favor of a rule that venue is a question of law for determination by the court. The California decisions cited above, and those to similar effect, are overruled or disapproved to the extent they are contrary to this conclusion.
Nevertheless, “[b]ecause adherence to the . . . rule [that venue is a question of fact for the jury] has been widespread among the . . . courts and long-standing, ... the question arises whether we should apply our holding to the present case and to any other case not yet final on appeal...” (People v. Barnum, supra, 29 Cal.4th at pp. 1225-1226.) We conclude that we should not do so. In Simon, we determined that the rule we “newly announced” in that decision—that a “defendant . . . who wishes to object to venue must make a specific objection to venue prior to the commencement of trial”— should apply “prospectively only.” (People v. Simon, supra,
Ill
A
We now turn to the claims of error specific to the case at bar.
To our knowledge, the claim raised by defendant is a novel one. Neither defendant nor the People have identified any prior decision that addresses or resolves the issue whether a trial court may receive a guilty verdict from a jury that is unable to agree on venue, declare a mistrial on venue alone, and empanel another jury to consider venue.
We conclude that the trial court did not err or act in excess of its jurisdiction. As stated, venue does not constitute an element of any crime, and hence is not a necessary component of any verdict of guilt for any crime. In somewhat analogous circumstances, prior decisions have held that a trial court may receive a guilty verdict from a jury that is unable to agree on a penalty provision, declare a mistrial on the penalty provision alone, and empanel another jury to consider the issue of penalty. (See People v. Bright (1996)
Defendant next contends that the trial court erred in its instructions to the second jury on the matter of venue.
The trial court gave the following instructions relating to venue: “Penal Code Section 781 provides as follows: ['][] When a public offense is committed in part in one county and in part in another, or the acts or effects thereof constituting or requisite to the consummation of the offense occur in two or more counties, the venue of such offense(s) is in either county, [f] For purposes of venue under Penal Code Section 781 the phrase ‘requisite to the commission of the offense’ means requisite to achieving the offender’s unlawful purpose, [f] A defendant may commit a crime in a particular county even though he/she was not personally present in the county. [][] A telephone call for the purpose of planning a crime which is received within the forum county may be adequate basis for venue, despite the fact the call originated from outside thе county. [CJ[] In this case the forum county is Marin County. H] The prosecution has the burden of establishing facts as to the issue of venue, [f] The prosecution must prove venue by a preponderance of the evidence.”
Shortly after commencing deliberations, the second jury asked the trial court by note: “The question is: are we deciding the more appropriate place for the trial OR is Marin an appropriate place? [j[] The first part of the question means to me, Where did the bulk of the crime happen. Is that a valid interpretation? [|] Also please clarify the following sentence: [j[] A telephone call for the purpose of planning a crime which is received w/i the foreign [sic: evidently for “forum”] county may be adequate basis for venue, despite the fact the call originated from outside the county.” After conferring with the prosecutor and defense counsel, the trial court responded by note: “As to (1), the question is not, based on the facts and the instructions I have previously given you, whether Marin County is ‘the more appropriate place’ for trial or ‘the more appropriate’ venue, but whether Marin County is ‘an appropriate place,’ or ‘an appropriate venue’ that is, whether, under the facts and the instructions I have previously given you, Marin County has venue, even though another county may also have venue. [][] As to (2), you have quoted . . . [a particular portion of the instructions given]. You should apply that law, as well as the other instructions I have given you, to the facts as you determine them, and in this way arrive at your verdiсt.” (Italics added in place of underscoring in original.)
The independent or de novo standard of review is applicable in assessing whether instructions correctly state the law (People v. Berryman (1993)
We conduct our analysis of defendant’s claim of error with the recognition that, under the prior rule, venue was a question of fact for the jury.
After independent review, we conclude that the trial court’s instructions on venue correctly stated the law on the issue.
To begin with, the trial court’s instructions correctly informed the jury as to the burden and standard of proof pertaining to venue. As stated, the People must prove, by a preponderance of the evidence, the facts underlying venue. The trial court expressly instructed the jury that “[t]he prosecution has the burden of establishing facts as to the issue of venue” and “must prove venue by a preponderance of the evidence.” Nothing that the trial court stated in its response to the jury’s questions during deliberations undermined that instruction.
In addition, as will appear, the trial court’s instructions correctly informed the jury as to the venue requirement that pertains to this case under sеction 781, and its response to the jury’s questions during deliberations simply clarified that the issue of venue turned on whether Marin County was an appropriate place for trial rather than the more appropriate place.
In determining the meaning of section 781, we construe the provision liberally in order to achieve its underlying purpose, which is to expand venue beyond the single county in which a crime may be said to have been committed (see, e.g., People v. Gutierrez (2002)
What is important for present purposes is the phrase in section 781 that speaks of “acts or effects . . . requisite to the consummation” of a crime which establish venue in any county in which they occur. The words “acts . . . requisite to the consummation” of a crime establishing venue in a county have been liberally construed to embrace preparatory acts (People v. Crew, supra,
Evidently in order to avoid this conclusion, defendant proposes a considerably narrower construction of section 781. First, he reads section 781 as though it spoke only of “acts . . . requisite to the consummation” of a crime establishing venue in a county, and not also of “effects,” a word that proves
After independent review, we also conclude that the trial court’s instructions on venue did not effectively direct a finding adverse to defendant by rеmoving the issue from the jury’s consideration. The trial court’s instructions, as already discussed, correctly informed the jury on the matter of venue and on the pertinent burden and standard of proof, and the aspects of the instructions challenged by defendant amounted merely to pinpoint instructions properly “relating particular facts to . . . [the] issue” of venue (People v. Sears (1970)
C
Defendant also contends that the evidence is insufficient to support the second jury’s finding on venue.
Applying, with appropriate modification, the standard employed in reviewing a claim of insufficient evidence to sustain a guilty verdict under California decisional law (see People v. Johnson (1980)
Defendant argues against our conclusion, but we find his position unpersuasive. To begin with, the circumstance that defendant may not have placed a telephone call to Marin deliberately, or even knowingly, would not defeat venue in that county. Under section 781, venue turns on the presence or absence, in a county, of acts or effects constituting the crime or requisite to the commission of the crime—not on the defendant’s state of mind or on the soundness of any beliefs that he or she might hold as to the location of those acts or effects. Further, contrary to defendant’s contention, it is immaterial that venue in a civil action on a sales contract is appropriate (pursuant to section 395 of the Code of Civil Procedure and Friedman Bag Co., Inc. v. Shrier (1961)
We recognize that defendant had a legitimate interest, served by section 781 among other venue provisions, in possessing a “safeguard against being required to stand trial in an unrelated and potentially burdensome distant location.” (People v. Simon, supra,
As noted, Detective Yamanoha lied to defendant, stating that he was in Santa Rosa in Sonoma County, the county immediately north of Marin, when he actually was in Marin. Yamanoha told the lie to defendant in order to further his attempt to buy cocaine base from him in Marin and apparently in order to arrest him there at an opportune time. The circumstance that Yamanoha lied to defendant seems unremarkable: evidently, Yamanoha’s object was to persuade defendant to come to Marin, which was both the county in which (or to whose residents) he believed defendant had made sales
D
Defendant finally contends that by drawing from Marin County the first jury (which returned the verdicts finding him guilty of two counts of sale of cocaine base), the trial court violated his right, under the Sixth Amendment to the United States Constitution and section 16 of article I of the California Constitution, to trial by jurors of the vicinage.
In Price v. Superior Court, supra, 25 Cal.4th 1046, we concluded that the vicinage right embodied in the Sixth Amendment, which is the right of an “accused . . . to a . . . trial ... by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law,” applies only against the United States and is not incorporated by the Fourteenth Amendment’s due process clause for operation against the states. (Price v. Superior Court, supra, 25 Cal.4th at pp. 1057-1069.) We also concluded that the vicinage right implied in article I, section 16 of the California Constitution (see Price v. Superior Court, supra, 25 Cal.4th at pp. 1071-1078), constitutes simply the right of an accused to a trial by an impartial jury drawn from a place bearing some reasonable relationship to the crime in question (id. at p. 1075).
IV
For the reasons stated above, the judgment of the Court of Appeal is affirmed.
Kennard, J., Baxter, J., Werdegar, J., Chin, J., and Moreno, J., concurred.
Notes
Subsequent unspecified section references are to the Penal Code.
The location in San Francisco County was more than 500 yards distant from the boundary with Marin County, and as such was beyond the reach of section 782, which provides that “[w]hen a public offense is committed on the boundary of two or more jurisdictional territories, or within 500 yards thereof, the jurisdiction of such offense is in any competent court within either jurisdictional territory.”
For similar reasons, we found no reason to resolve this issue in our recent decision in People v. Crew (2003)
Megladdeiy was disapproved on another point in People v. Simon, supra,
See, e.g., People v. McGregor (1891)
We note in passing that in Sullivan v. Louisiana (1993)
Venue provisions in addition to sections 777 and 781 include those listed in People v. Simon, supra,
In Simon, we added this note of caution: “Early cases frequently use the phrase ‘locus delicti’ ... to refer to the issue of venue. . . . [Although under section 777 venue generally is set in the county in which the crime occurred, there are numerous statutes that authorize trial in a county other than the county in which the crime occurred. [Citation.] In such circumstances, a determination of the location of the crime does not necessarily resolve the venue question, and thus it is potentially misleading to equate the phrase ‘locus delicti’ with the issue of venue.” (People v. Simon, supra,
Defendant has requested that we take judicial notice that (1) Santa Rosa is located within Sonoma County; (2) Sonoma County, including Santa Rosa, comes within the 707 telephone area code; and (3) both San Francisco Cоunty and Marin County come within the 415 telephone area code. The People have not opposed the request. As a reviewing court, we may grant such a request (see Evid. Code, § 459, subd. (a)), and hereby do so, inasmuch as its object comprises “[fjacts . . . that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy” (id., § 452, subd. (h)).
Defendant relies on People v. Avalos (1984)
In Avalos, we characterized as incomplete a jury’s verdict finding the defendant guilty of murder, because the jury failed to determine the degree of the murder, as it was required to do, as a result of its inability to agree on that issue. (People v. Avalos, supra, 37 Cal.3d at pp. 224-229.) Here, by contrast, the jury was able to, and did, agree completely on the issue of guilt. That the jury was unable to agree on the matter of venue had no effect on those guilt verdicts, and did not render them incomplete like the verdict in Avalos. The circumstance that, under the prior rule, venue was a question of fact for the jury does not affect this conclusion. Venue and the crime of sale of cocaine base are separate and independent determinations. Venue is not an element of the sale of cocaine base, but instead is merely a “procedural issue[] that do[es] not relate to . . . guilt or innocence” at all (People v. Simon, supra,
In Marks, we concluded thаt a trial court’s erroneous failure, under section 1368, to hold a hearing on the defendant’s mental competence prior to trial, after declaring a doubt concerning such mental competence, rendered the ensuing judgment of conviction and sentence of death a
People v. Price, supra,
Contrary to the assertion in the dissent, “[fjoram shopping” is not “what this case is about.” (Dis. opn. of Brown, J., post, at p. 224.) Forum shopping, of course, is “[t]he practice of choosing the most favorable jurisdiction ... in which a claim might be heard.” (Black’s Law Diet. (7th ed. 1999) p. 666.) It is plain that Detective Yamanoha did not engage in any such practice. As defendant himself admits, Yamanoha presented the case in the first instance to the San Francisco District Attorney for prosecution in San Francisco—which the dissent characterizes as the least favorable jurisdiction. It was only after the San Francisco District Attorney declined to prosecute, apparently for reasons of policy, that Yamanoha was cоmpelled to approach the Marin District Attorney.
Dissenting Opinion
I agree venue is a question of law for the court, to be decided prior to trial; I also agree we should not apply this new rule to the present case or to any other case not yet final on appeal.
However, I do not agree Marin County was a proper venue for this case.
My disagreement does not arise from any sympathy with defendant, who would likely have sold cocaine to the Man in the Moon, so long as he could deliver it within the friendly prosecutorial confines of San Francisco. However, I am concerned that by turning a blind eye to forum shopping by law enforcement authorities, the majority is inadvertently encouraging it.
“[V]enue provisions applicable to criminal proceedings serve a variety of purposes.” (People v. Simon (2001)
The balancing test proposed by the Attorney General, which I will discuss below, respects and serves the purposes of the venue provisions that we reiterated in Simon: that trial occur in a county with a reasonable relationship to the alleged criminal offense, thereby vindicating the community’s right to sit in judgment on crimes committed within its territory. Regrettably, the test adopted by the majority invokes the letter of the venue provisions while betraying their spirit.
Forum shopping is what this case is about. The Marin County Sheriff’s Department first sought to have this case prosecuted in San Francisco, the jurisdiction in which the Marin authorities obviously believed the crime to have occurred. It was only after the San Francisco District Attorney’s Office declined to prosecute that the Marin County Sheriff’s Department took the case to the Marin County District Attorney’s Office.
Detective Yamanoha of the Marin County Sheriff’s Department had information that defendant’s confederate was selling cocaine in Marin, or at least to Marin residents. Detective Yamanoha’s subsequent investigation revealed that defendant was willing to sell cocaine to someone who said he was calling from Sonoma County. Detective Yamanoha told defendant he was calling from Sonoma County because he did not want defendant to know he was actually calling from Marin County.
Thе frustration of the Marin County Sheriff’s Department at its inability to lure defendant out of San Francisco, where he apparently believed he could sell drugs with impunity to residents and nonresidents alike, is understandable. However, frustration can be a breeding ground for abuse, and by condoning the forum shopping engaged in here, the majority teeters on a slippery slope.
The following hypothetical illustrates just how slippery it is. Suppose that X sells drugs exclusively to San Francisco residents. X’s self-imposed territorial sales restriction does not manifest any concern over the welfare of citizens of other counties; he simply wishes to be able to claim sanctuary in San Francisco. Whatever his motivation, though, he is intentionally restricting his criminal activity to San Francisco. Suppose further that a San Francisco narcotics officer is frustrated by unwillingness on the part of the San
Suppose the San Francisco officer finds sympathetic deputy district attorneys in Imperial and Marin Counties, and that the officer, while physically present in each of those counties, places calls to X in which he arranges to buy drugs from X, with the transactions to be executed in San Francisco. Suppose the officer tells X he is a San Franciscan, calling from San Francisco, and that he ultimately, as arranged, picks up the drugs from X in San Francisco. Finally, suppose the officer uses a сell phone with a 415 area code that is consistent with his cover story.
In this hypothetical, because X would have no reason to believe he was departing from his self-imposed rule of selling drugs only to San Francisco residents, and because he would not in fact have sold drugs to anyone with a connection to Imperial County, Imperial County could not be said to have a “reasonable relationship” to his criminal activity. (Simon, supra,
X would presumably object to venue in Imperial County on the ground that standing' trial in El Centro would be unduly burdensome on him or his witnesses. However, even if he were successful in this objection, this would be but a minor setback for our hypothetical San Francisco officer, informed forum shopper that he is. The officer has a fallback—Marin County and the majority have already certified the appropriateness of venue there (maj. opn., ante, at pp. 221-222), even though Marin County would have no more at stake in the case than would Imperial.
Curiously, the majority is less sensitive to the abuse of forum shopping than is the Attorney General. There is no requirement, the majority states, that a defendant “рossess any mental state whatever with respect to a county, for purposes of venue.” (Maj. opn., ante, at p. 220.)
The Attorney General, on the other hand, proposed a balancing test for determining venue in which the defendant’s mental state would be one of the
If the balancing test proposed by the Attorney General is applied to the facts of the foregoing hypothetical, venue would clearly be improper in Marin County. X had no reason whatever to believe he was harming Marin County or using it to facilitate his criminal purposes. And it would be highly artificial to say that Marin County was harmed, nevertheless, by X just because the San Francisco officer placed a call from there, when the officer told X he was a San Franciscan calling from San Francisco. Because the San Francisco District Attorney’s Office would not prosecute X, the San Francisco officer clearly gained a tactical advantage by employing a stratagem in order to-create venue in Marin County. Nevertheless, despite the fact that all of the equities identified by the Attorney General would run against trying this hypothetical case in Marin County, the majority would uphold a finding of venue there.
Applying the Attorney General’s test to the facts of this case, I conclude venue was improper in Marin County, but would have been proper in Sonoma County. Detective Yamanoha told defendant and his confederate he was from Santa Rosa, which is in Sonoma County. Therefore, defendant had reason to believe he was harming Sonoma County and using it to facilitate his criminal purpose. On the other hand, defendant had no reason to believe he was harming Marin County or using it to facilitate his criminal purpose. The mere fact that Detective Yamanoha, while claiming to be in Sonoma County when he placed his calls to defendant, was actually in Marin County did not create a “reasonable relationship” between defendant and Marin. (Simon, supra,
Since Detective Yamanoha believed defendant and his confederate had a customer base in Marin County, it is baffling that he was so intent on their not knowing he was calling from Marin County.