*1 S100360. Jan. [No. 2004.] PEOPLE,
THE Plaintiff and Respondent, POSEY,
CHRISTOPHER FRANCISCO Defendant and Appellant.
Counsel Covin, Court, Randi under for Defendant and appointment by Supreme Appellant. General, Anderson,
Bill Robert Lockyer, Attorney R. Chief Assistant Attorney General, Bass, General, Ronald A. Assistant René A. Chacón and Attorney Friedlander, General, Jeremy for Plaintiff and Attorneys Deputy Respondent. Opinion
GEORGE, C. We grantedreview in this case to resolve an issue J. venue that we noted but did not resolve in People v. Simon concerning 1082, 1110, 598], footnote 18 25 P.3d Cal.Rptr.2d rule, to the relating soundness and line set forth in a continuing vitality decisions, of California judicial that declares the issue whether a criminal action has been in a brought for trial to be a of fact place appropriate question to be decided at the conclusion of trial rather than a law to be decided the court to trial.
Penal Code section 7771 states the rule for venue general in criminal actions: as otherwise law the “[E]xcept provided by jurisdiction every offense public is in any court within the competent jurisdictional territory of words, which it is committed.” In other under section 777 venue lies in the committed, court of the in superior county which crime was and a be tried may (See there. 4 Witkin & Cal. generally Epstein, (3d 2000) Venue, 139-141; Criminal Law ed. Jurisdiction and see pp. § id., 13-18, also 101-108 pp. §§ the effect of trial court unifica [discussing tion]; id. (2003 13, 14, 16, 18, [same].) supp.) 18-19 §§
Section 781—the involved in this case—states one of the provision many to the rule for committed exceptions general venue: “When a offense is public another, in one and in part jurisdictional territory or the acts or part effects thereof or to the constituting consummation оf the offense requisite territories, occur in two or more jurisdictional of such offense jurisdiction is in Thus, court any within either competent jurisdictional under territory.” section when a crime is committed in one partly partly another or when the crime county, acts or effects constituting requisite to its commission occur in more than one venue is in the county, superior court in each of the counties and a defendant be tried in question, may
1 Subsequent unspecified section references are to the Penal Code. *7 Law, supra, Cal. Criminal 4 Witkin & (See of them. generally Epstein, 52-53, 141-145; Venue, 51-53, (2003 id. supp.) §§ Jurisdiction and pp. §§ 23-24.) that a Simon, doctrine legal to the general In we concluded “pursuant fashion, a defend- it in a timely to assert right by failing forfeit may party fails venue when he or she specifically ant.. . forfeits a claim of improper (People of trial.” an to the commencement raise such objection prior of Simon, that “in 1086.) light at But we also concluded 25 Cal.4th supra, p. law, to the with holding regard California case our the confusion in the prior only to venue shall apply prospec- raising objection proper procedure at (Id. out above. a new rule as set our announced because tively,” opinion 1087.) p. resolve, Simon, noted, of the soundness did not the issue we also but
In to be of fact that venue question and of rule continuing vitality presents at trial to the defendant “failed Because in that case decided by jury. giving authority instruction or jury supporting an appropriate provide whether, instruction, occasion to determine we no such an ha[d] action, court to revisit be for this it would appropriate absence of legislative rule. and uniform line of decisions” supporting the lengthy Simon, 18.) fn. p. contrast, of venue case, raised the timely question
In this trial, for us to that it is appropriate and we conclude to trial and again left in Simon. resolve issue open rule that venue is question conclude that the we shall we
As explain, First, the reasons. number of fundamental unsound for a fact for the jury their the venue provisions, especially underlying rule purposes impedes defendant’s “protecting] . . . from a perspective” purpose “principal burden- unduly in a distant to stand defendant from being required trials 18), 25 Cal.4th at p. locale” (People some “the defendant required venue until been] off on any finding [has putting after trial in an assertedly improper of standing rigors hardship to undergo the time and locale,” expense “the state incurred] [has] after Second, “inconsistent 1087). the rule is (id. at a trial” there p. conducting issues,” other, inasmuch . . . analogous treatment of with contemporary for a of a place involving appropriateness question venue is procedural relating and not a substantive charge, a criminal defendant’s trial on 1110, fn. (Id. at innocence the crime charged. defendant’s guilt to the of an “unwarranted Third, the untoward consequence the rule threatens on solely not guilty a verdict of predicated returns when acquittal” (Ibid.) venue. lack proper
In addition to that rule that venue is a of fact concluding question unsound, for we also conclude that this rule jury properly may .be reconsidered and modified court without action awaiting this because the rule was established decision and has not Legislature, by judicial hold, been statute. we for the reasons stated any Accordingly, incorporated above, court, that venue is a of law for the to be decided question prior trial. we conclude that
Finally, because adherence to the rule that venue is prior of fact for the has been question widespread long-standing, because the that venue holding of law for the court announces a rule, new we should not that new rule to the case or other apply present case not final yet on appeal. matter,
The Court of in this the issue we left Appeal although noting open in Simon venue, rejected on other all of defendant’s respecting grounds that, claims error venue and determined to defendant’s implicating contrary under argument, section 781 Marin in which the County—the case was tried—was for trial of crimes with which appropriate place defendant had been As we shall conclude charged. we that the Court explain, venue, all Appeal correctly of defendant’s claims related to rejected therefore affirm the of the Court of judgment Appeal.
I The District of Marin Attorney County defendant charged Christopher Francisco in the Marin Posey Court with two counts sale Superior cocaine base in violation of Health and Code section Safety subdivi- (a), and sion for alleged, venue under purposes establishing section crimes, that defendant committed the in the acts or engaged requisite effeсts, counties, caused the in two requisite Marin and San implicitly Francisco. Defendant not pleaded to the sale-of-cocaine-base guilty charges and denied the venue allegation. trial,
Both to and defendant but prior during repeatedly unsuccessfully venue, objected to claiming Marin was not an County appropriate place itself, for trial. At the trial which was conducted before a jury, his to venue presented objection his sole defense. Viewed in the essentially light most favorable to the ensuing judgment, evidence introduced at trial disclosed the facts. following Detective Yamanoha Rudy Marin Sheriff’s County Department “ Mini,”
received information that a woman known as who was apparently resident of San Francisco was in the area of Marin or County, cocaine selling identified as (Nini later was that substance to Marin residents. was selling codefendant, Hall, but had fled defendant’s who had been originally Johnneka Nini, Marin, Yamanoha, call to trial.) telephone while in placed Francisco, number and left on a system telephone in San paging who was both Marin and San (which encompasses had a 415 area code apparently an ounce to sell him agreed Yamanoha and soon Francisco). Nini called back Marin, told Yamanoha $575. he in fact was Although of cocaine base *9 Rosa, her to meet and asked County, in Santa in Sonoma Nini that he was but Bridge, of the Golden Gate at Point on the Marin side him Vista halfway to make again Yamanoha Nini not Later that agree. day, paged she did a second leaving teleрhone time for this arrangements delivery, apparently and had him speak Nini called back Yamanoha number with a 415 area code. base defendant, two ounces of cocaine Yamanoha to buy who persuaded A minute or $1,150, Point in Marin. then Vista agreed delivery for and later, however, 415 area code called Yamanoha at the second defendant so number, Vista Point from delivery and changed point telephone Gate Bridge.2 not far from Golden Marin to a location in San Francisco and, after some to the location question That Yamanoha went evening, defendant for cocaine base from a little than two ounces of less delay, bought $1,150, for the to make up with defendant promising the full price was videotaped the next The transaction surreptitiously on shortage purchase. officers. law enforcement by Nini, Yamanoha, later, County, again in Marin paged Detective
Some days number left a telephone and County, apparently was in San Francisco who Santa (which County, including Sonoma area code encompasses with a 707 had Yamanoha and Nini called back to a cellular Rosa) telephone. directed of cocaine two more ounces buy Yamanoha asked him to defendant. speak $1,150. he in for base, Although that defendant sell agreed quantity and Rosa, Marin, in Santa defendant that he was Yamanoha told fact was in refused, Marin; defendant halfway defendant to meet him asked Yamanoha ended in San Francisco previously; the same location proposed matter, an incoming that he had stating resolving before the conversation later, so back. A minute or call, that he would call and defendant said Yamanoha, area code telephone the 707 apparently defendant called identified San him at the number, to meet previously and Yamanoha agreed the location in question went to That Yamanoha evening, Francisco location. $1,150. This defendant for base from ounces of cocaine two purchased officers. law enforcement videotaped transaction too was surreptitiously boundary yards from the County more than 500 distant was location in San Francisco provides which the reach of section beyond was County, and as with Marin such jurisdictional or more boundary of two on offense is committed public “[w]hen thereof, any competent territories, such offense is jurisdiction yards or within territory.” jurisdictional within either court later, more cocaine base
A few Detective Yamanoha days buy attempted defendant, make other delivery from but when defendant refused to gave up two, defendant was arrested than in San Francisco Within week or County. in San Francisco.
In its the trial court instructed the on the crime of sale of charge, jury venue, cocaine base and also on and directed it to determine the question deliberations, returned or innocence to venue. After guilt jury verdicts defendant of two sale of cocaine base. The finding counts of guilty however, was unable to on venue. the trial court jury, agree Thereupon, alone, declared a mistrial оn issue motion denying mistrial on the entire case.
After rejecting that it resolve the suggestion by itself, the trial court and conducted a second second empanelled jury on the issue of venue. Evidence similar to that at the solely presented first trial was introduced before the second After the second was jury. *10 court, instructed on venue the trial and after that jury presented questions to, from, deliberations, and received answers the trial court in the course of the made a jury that “Venue is in Marin The trial court finding County.” conviction, rendered a judgment of to a term of sentencing imprisonment. (after
On the Court of affirmed the it appeal, Appeal judgment modifying here). on a not that we had left the issue part point pertinent Noting open of the soundness and the rule that continuing vitality of venue is question fact for the the Court of each of defendant’s jury, rejected contentions Appeal First, to relating venue. the Court of concluded that the trial court had Appeal not erred from the first by receiving jury finding verdicts defendant guilty of two counts of sale of cocaine base that were purportedly “incomplete” venue, because that jury was unable to on and that the trial court had agree not acted in excess its thereafter a mistrial on jurisdiction by declaring alone, that the second empanelling jury, receiving jury’s finding Second, venue was in Marin and County, rendering ensuing judgment. Court of a claim that rejected the trial court’s instructions to Appeal Third, second on venue were the Court of concluded jury erroneous. Appeal that the evidence wаs sufficient to the second on venue. support jury’s finding Fourth and the Court of held that the trial court had not finally, Appeal violated defendant’s under the Sixth Amendment to the United States right, Constitution, Constitution or section article I 16 of of the California (which of the the first returned the by jurors vicinage by drawing guilty jury verdicts) from Marin County.
We granted defendant’s for review. We conclude that we should petition affirm the rendered the Court of judgment Appeal.
II and concerns the soundness before us on review issue primary rule, judicial in a line of California set forth continuing vitality decisions, to be decided by of fact that declares venue to be decided by of law to be trial rather than a question at the conclusion of the court to trial. prior we concluded People “pursuant
In to assert it a right by failing that a forfeit may doctrine general legal party fashion, venue when a claim of improper a defendant . . . forfeits in a timely the commence- to raise such an objection prior he or she fails specifically (Id. “the fundamental 1086.) purposes We noted ment of trial.” at p. stated, aim at broadly most criminal venue underlying provisions”—which, an conducted in trial on a criminal charge that a defendant’s ensuring to the account convenience both into taking appropriate place, defendant, defendant, on the and participation part fairness to mind, that “the we concluded those affected. With community purposes that any requirement of both the accused and state support interests raised . trial must be specifically location of a . . tо the objection proposed trial, the defendant is required to the commencement prior before assertedly trial in an standing improper rigors undergo hardship a trial locale, of conducting the time and expense the state incurs before “in (Id. concluded that 1086-1087.) light We further in that county.” law, to the regard our with holding in the California case the confusion shall only prospec- to venue raising objection apply proper procedure ____” (Id. tively *11 Simon, that is referred to the issue in we Near the end of our opinion in at below. We stated length that we shall discuss us in this case and before , . . . California decisions in “numerous Simon: “language” Notwithstanding factual that question as type the characterization of venue presenting legal than the a rather type procedural to be determined by jury, is properly court, inconsistent with contemporary by appears that is determined issue other, do not relate to the guilt issues that analogous treatment of procedural has complied whether the (such prosecution the accused as or innocence of legal are treated as uniformly that with . . . requirements)—issues speedy Indeed, rather than a jury. the court [Citations.] to be decided questions aby jury appears be resolved a venue as treating presenting question under- considers that the principal purpose when one problematic particularly a defend- protect defendant’s statutes from a perspective—to venue lying burdensome and unduly trial in a distant to stand ant from being required chal- venue if a defendant’s effectuated only be meaningfully locale—can trial, a is jury empan- well before considered and resolved is lenge addition, is instructed jury unless to it. In issue is submitted elled or any
205 before a . . . returning to return on issue of venue separate [finding] verdict, a that has been in an brought finding proceeding improper an can result in an unwarranted rather than in a new trial in acquittal, 1110, Simon, at fn. authorized venue.” v. 25 Cal.4th supra, p. Simon, declared that In the discussion of this in we concluding point an this case defendant failed trial to provide appropriate “[b]ecause instruction, instruction or we have of such authority supporting giving whether, action, no it occasion to determine in the absence of legislative would be for this court to revisit the and uniform line of lengthy appropriate decisions that the holding issue of venue of fact to be presents question Simon, 1110, determined aby v. 25 Cal.4th at fn. jury.” (People supra, p. Simon, 18.)3 (see In this we regard, acknowledged Simon v. People 1110, 25 18) Cal.4th fn. that the Court of Appeal’s opinion People 748, (1940) 84],4 Megladdery 766 P.2d had Cal.App.2d opined [106 view of the line of decisions venue as a of fact long [treating question “[i]n for the it is our belief that if the rule to be it be done jury], changed should legislature.” us, now to the
Turning issue before we with the same begin acknowledg- ment that we made in Simon—that in there California lengthy uniform line of decisions or holding stating, expressly impliedly, venue is a of fact question We also that decisions jury.5 acknowledge the federal and the system vast of the states” also majority generally “[i]n al., treat venue (4 of fact for the et question LaFave Criminal jury. (2d 1999) Procedure ed. omitted.) 16.1(g), p. § In the soundness and analyzing of the rule that venue is continuing vitality of fact for the we it jury, believe is to consider at the outset helpful two in the issue. points implicated reasons, For similar we found no reason to resolve this issue in our recent decision in
People (2003) 820], v. Crew Cal.Rptr.3d 74 P.3d [3 Megladdeiy was disapproved point People on another 25 Cal.4th at page 1108. 5 See, 97]; e.g., People (1886) McGregor Cal. P. v. More *12 500, Simon, 461], 68 Cal. point by People 504 P. overruled on another v. 25 Cal.4th [9 1106; 230, 233; (1880) (1991) at page People People Sering v. Alviso 55 Cal. v. 232 677, 1, 507]; (1983) Cal.App.3d Cal.Rptr. People v. Jackson 150 16 Cal.App.3dSupp. [283 689 135]; 154, 653]; (1975) Cal.Rptr. People Cal.App.3d Cal.Rptr. [198 v. Witt 53 167 [125 74, (1964) 302]; People (1952) Cal.App.2d People v. Jones 228 Cal.Rptr. 86-87 v. Garcia [39 962, 965-966; 764; 122 Cal.App.2dSupp. People Megladdery, supra, Cal.App.2d page v. 40 189, (1938) 155]; People (1937) Cal.App.2d People v. Smith 26 P.2d 21 190-191 v. Brock [79 601, 210]; 731, (1928) Cal.App.2d People P.2d v. P. Cal.App. 607 Morales 91 734 [70 [267 570]; 647, 730]; (1927) Application People In re Cal.App. O’Connor 80 653 P. [252 of 151, (1926) 542], Cal.App. Coker 78 P. 159 [248
206 of of venue as either a question involves the labeling
The first point Fundamentally, fact for the jury. the court or a of law for of law for the fact for the between of questions distinction questions 310, 1126; Code, 312) whether the issue turns on (see Evid. court §§ § innocence to be matter of guilt relates to the substantive presented or, instead, does not matter that concerns a procedural determined at trial (such as either the trial or innocence but guilt precedes itself determine (such whether to of the trial venue), affects the conduct change whether to a new to order evidence), (such or follows the trial as whether admit certain 1110, an fn. If issue (See 25 Cal.4th trial). matter, it lies within generally or innocence as substantive guilt implicates matter generally but an issue involving procedural of jury, province within the of court. lies province trial, trial, during matters decided prior
There are numerous procedural trial, as questions lie within the court’s accordingly province and after law, underly- consider and determine the court to necessarily but require way fact in some relating even ing fact—frequently questions questions offense. to the charged court, a defendant whether deciding to trial
For example, prior (§ 1270.5), makes findings be denied bail with a crime must charged capital itself, fact, of his or the crime as to whether “proof the facts of overlapping (ibid.). In a criminal action whether to dismiss deciding her is evident” guilt the crime committed to believe the defendant has lack of cause for probable exists “such a state of determines whether there the court similarly charged, to believe caution or ordinary prudence would lead a facts as [person] guilt” entertain conscientiously strong suspicion [defendant’s] 657, 662, 511 P.2d v. Uhlemann (1973) Cal.Rptr. Cal.3d 667 (People 9 [108 addition, an action decides whether to dismiss 609]). In the court 286, Court (1975) 15 Cal.3d (Murgia Municipal discriminatory prosecution 204, determination 293, 44]), a factual making 4 540 R2d Cal.Rptr. [124 invidious in intentional and purposeful engaged as to whether prosecution to dismiss decides whether (see id. at pp. 293-301); the court discrimination v. Zapien evidence (People has destroyed an action because prosecution 122, 704]), P.2d detеr 929, (1993) Cal.Rptr.2d 966-968 [17 (id. of the evidence prejudiced whether the destruction mining whether of welfare fraud decides in a case 967); and the court at p. must be charges and whether the seek restitution failed first to prosecution v. McGee (1977) Cal.3d 967-968 [140 as a result dismissed to dismiss also decides whether 382]). P.2d The court Cal.Rptr. (§ 1382), making right speedy of the defendant’s action for violation (see, any delay cause for good whether there was factual determination Court Cal.Rptr. Cal.3d Owens v. Superior e.g., decides, rule Likewise, the two-dismissal under 1098]). the court P.2d
207 Court (see Miller Superior right the defendant’s speedy-trial protects 728, 591]), whether (2002) 101 738-739 Cal.Rptr.2d Cal.App.4th [124 a third time charges dismiss an action of bringing upon prosecution’s (§ 1387), under certain circumstances finding two dismissals following Miller v. 1387.1, (§ (a); acted in bad faith subd. see whether prosecution Court, 743-745). The court also Superior Cal.App.4th (§ 1033), facts considering decides whether venue change overlapping offense, those of the such as “the and nature of the crime” gravity v. Navarette “the and the status of the victim accused” perhaps 458, 89, (2003) 1182]), P.3d and other Cal.Rptr.2d [133 crime, facts that do not relate to the such as “the extent and nature of (ibid.). and “the size of the community” publicity” trial, (see During court decides whether to admit all of evidence types Code, 310, Evid. (a), 400-405), subd. of fact as to all making findings §§ id., which, (see 400-405), matters some of preliminary again, overlap §§ facts of the crime such as the existence of a to commit charged, conspiracy 46, v. Herrera (see, the crime in e.g., People (2000) question Cal.App.4th 911]), 54-66 factual others involve determinations Cal.Rptr.2d [98 crimе, unrelated to the such of an called to the qualifications expert 932, v. Ashmus (see, witness stand e.g., People (1991) 54 Cal.3d 970-972 [2 112, 214]). 820 P.2d Cal.Rptr.2d concluded,
After the trial has the court decides whether to order a new trial (§ et of fact that those of the crime of seq.), making findings overlap which the defendant found (as was when relief is on the guilty sought ground 1181, of the evidence subd. or discovered insufficiency newly [§ 6] 1181, 8]), evidence subd. as well as factual distinct from determinations [§ (as the crime when relief is on the misconduct sought, ground [§ 3]), subd. others that involve factual yet may determinations part related and in (as unrelated to the crime when relief is on the part sought counsel, [see, v. Fosselman of ineffective e.g., People ground assistance 33 Cal.3d 1144]). 582-583 P.2d Cal.Rptr. Thus, although of fact to the substantive issue of questions relating or innocence are within the law guilt province jury, questions determine issues that do not themselves or concerning procedural guilt of fact—are within the innocence—including any underlying questions prov 25 Cal.4th at (See ince court.
The second and continued soundness point implicated, analyzing vitality of rule that venue is a of fact for the the notion jury, involves actions, of venue itself. In California in criminal denotes simply place Price v. Superior for a defendant’s trial. places appropriate (E.g., *14 208 409, 618]; 1046,
Court 25 P.3d 25 Cal.4th 1054 (2001) Cal.Rptr.2d [108 467, 915, 755 P.2d People (1988) Cal.Rptr. Guzman v. 45 Cal.3d 934 [248 Court, supra, Price v. Superior 25 917], overruled on another point 1069, the trial court’s 13.) fn. Venue does not implicate Cal.4th at p. personal is the which jurisdiction, fundamental in sense jurisdiction criminal a in a of the court to authority against рarticular proceed 457, 474, v. Mower e.g., People (2002) Cal.4th fn. 6 (see, 28 [122 action 326, Criminal 1067]). 4 Witkin & Cal. P.3d (Compare Epstein, 49 Cal.Rptr.2d Venue, 3, supra, Law, jurisdiction] [personal Jurisdiction 88-89 § id., 45, [venue].) the trial court’s 135 Neither does venue implicate with p. § matter subject which jurisdiction, fundamental in sense jurisdiction itself and decide the criminal action of the court to consider authority Mower, 474, Indeed, supra, v. e.g., People 6). at fn. (see, 28 Cal.4th p. Simon, decisions, of some confusión in earlier while the existence conceding of the terms “jurisdiction” from the arising general presence perhaps 781, 777 and such as sections venue “jurisdictional territory” provisions of venue that the issue beyond stated that “it is now established we Simon, (People does not involve matter v. matter jurisdiction.” subject 25 Cal.4th supra, 1096.) at p. (See law. of substantive criminal venue is not
Lastly,
part
aspect
Simon,
25 Cal.4th at
1110,
People
supra,
18.)
venue
Accordingly,
fn.
v.
p.
v.
(People
Sering, supra,
crime.
an element of any
does not constitute
423,
Remington
v.
677, 688;
(1990) 217
Cal.App.3d
see
Cal.App.3d
in Simon we characterized
Indeed,
venue as
183].)
merely
Cal.Rptr.
[266
all.
. .
or innocence” at
not relate to .
guilt
a “procedural
issue[]
do[es]
Simon,
25 Cal.4th at
1110,
in a
(People
supra,
18.) As recognized
fn.
p.
treatise,
for prosecution,”
is a “procedural prerequisite^
leading
simply
(4
charge.”
bindover” or a
hearing
“grand jury
like a “valid
much
preliminary
sum,
supra,
Procedure,
al.,
498-499.)
In
16.1(g), pp.
LaFave et
Criminal
§
of a
for
involving
place
venue is a
issue
appropriateness
procedural
and not
substantive
charge,
trial on a criminal
conduct of а defendant’s
of the crime charged.6
or innocence
guilt
to the defendant’s
relating
issue
(1993)
Louisiana
L.Ed.2d
that in Sullivan v.
508 U.S.
passing
[124
We note
(1995)
L.Ed.2d
States v. Gaudin
2078],
Further, California, statute” and not by “venue ... is governed by supra, 25 Cal.4th at the California Constitution. p. Court, Price v. Superior 10; accord, 1056.) This p. not constitutional that “venue . . . signifies implicates legislative policy, Court, (Price v. Thus, Superior Cal.4th imperative.” *15 to subject only define venue to Legislature may pursuant statutory provisions, such constraints as be the United States and California may imposed Constitutions, due law. with of regard vicinage process particularly Court, (Price v. Superior 25 Cal.4th at indicated, which declares venue as is section general provision, crime
that when a committed in a venue lies in that county, is particular Section 781 is but one of the venue that establish county. many provisions counties, venue in the the additional circumstances depending upon noted, crime As committed case. section 781 states when is specific in one in another or when the or effects county acts partly partly county, crime the or occur in than one constituting its commission more requisite .7 venue lies in each of the county, counties in question regard, argument, In this we add that we have been presented with no and have discovered basis, no upon which to conclude that the rule that venue is a of fact for the is compelled by any by any provision California statute or of the United States or California Constitutions, VI; Const., Const., (U.S. including guaranties by jury the of trial Amend. Cal. I, Const., XIV; Const., I, 16) (U.S. 15). process art. or due of law Amend. Cal. art. § §§ provisions Venue addition sections 777 and 781 include those listed in Simon, (venue page namely, parental 25 Cal.4th at footnote section 777a for provide failure to care county for minor child lies in the in which the child is cared for or in county (venue parent apprehended); the in which the perjury is section 777b for committed act, transaction, county outside of California lies in the in California “in which occurs the matter, action, proceeding, given or in relation to the [perjured which was or statement] made”); (venue section 778 for a crime commenced outside of California but consummated consummation); county within California a defendant outside of California lies in the on, of, (venue yards boundary section 782 for a crime committed or within the of two or (venue question); more counties lies in еach of the counties in a crime section 783.5 for any county any committed in a park county part situated in more than one lies in in which situated); (venue park the is section 784 or seizure for kidnapping, imprisonment, for false committed, slavery county county lies in the the in which crime is the out of which the victim taken, any county any instigating, procuring, is or in which the defendant “act ... does crime); (venue promoting, aiding abetting” or . . . . . . respect or with to the section 784.5 for county agency deprived child abduction lies in the in which the child or where the resides located, taken, detained, concealed, custody county the in which the child was or or the sexual, found); (venue county multiple in which the child for specified section 784.7 domestic, harm-to-child, stalking generally any county any crimes lies in in which of the committed); (venue county crimes is the crime is section 785 for incest lies in the which bigamy county apprehended; committed or in the in which the defendant is venue for lies in occurs, county marriage place, any county in which the took in which cohabitation or the treason, (venue county in when the overt apprehended); which defendant is section 788 California, (venue any receipt county); act is committed outside lies in section 789 for theft or to criminal In we that “venue applicable explained provisions First, in the where serve a variety place proceedings purposes. ‘[v]enue of both in obtaining crime was committed the convenience parties promotes Second, from evidence and of witnesses.’ securing presence [Citation.] defendant, for trial in a enactments that statutory provide perspective an criminal offense also alleged that bears a reasonable relationship to file charges on the discretion of prosecution restriction operate available, chooses, that, would that it if locale within state option that, to choose a setting with considerable power provide prosecution reason, views as favorable to its position for whatever prosecution . . ‘The justification or burdensome to the defendant’s. . principal hostile of trial in the of the crime is vicinity for the venue today requirement an accused is the unfairness and involved when “safeguard against hardship ’ also Finally, provisions in a remote place.” prosecuted [Citations.] a crime or related in which community serve to interests protect *16 occurs, to sit in on right judgment the activity ‘vindicating] community’s ” Simon, v. 25 Cal.4th (People supra, crimes committed within its territory.’ 1095.) at p. of the that venue should be considered foregoing question
It follows from than a the court to trial rather by question law for determination prior trial. find the reasons fact for the at the conclusion of We jury persuasive First, trial rather noted in Simon. of venue the court by determination prior of trial furthers the underlying than the at the conclusion by jury purposes . . . from a defendant’s their venue especially “principal purpose provisions, “to a defendant from being required namely protect perspective,” Simon, (People v. in a distant and burdensome locale.” unduly stand trial Indeed, 18.) such at supra, purposes p. the court venue to only” by entrusting “can be effectuated meaningfully of the trial. than to the at the conclusion jury to trial rather prior Second, the court to trial (Ibid.) the determination of venue by prior is consistent with the at the conclusion rather than by jury other, which . . . treatment of issues” analogous procedure, “contemporary noted, venue (Ibid.) As we have are from issues of substance. distinct of a place the involving appropriateness is a question procedural received in another state question has been stolen or property, property when the stolen California, through property the is any county or which brought into lies in into and then (venue manslaughter county in the in which the fatal murder or lies brought); section 790 dies, inflicted, county the victim’s victim or the in which county the in which the injury was any county found); (venue relating fighting lies in prize for crimes body section 795 is crime, passes any county the that the defendant any act done toward commission of which crime, into, of, county in which the defendant through, commit or the out or in order to (venue arrested); for unlawful restraint and Professions Code section 16754 and Business any part, committed in whole or in any county in which the crime is trade lies in resides, does any county any corporate in which which of the defendants business).
211 criminal and not a charge, for a defendant’s trial on a substantive question Third, to the defendant’s or innocence of the crime relating guilt charged. than at the jury determination of venue the court to trial rather “unwarranted conclusion of trial avoids the untoward of an consequence when the returns a verdict of not on jury guilty solely acquittal” predicated (Ibid.) lack of venue. proper rationale,
Without the decisions that rise to the rule that stating gave venue is a of fact for the to have their appear premised that, treatment of venue on as the must just assumption People prove facts offense to the underlying charged they satisfaction jury, should similarly have facts venue—facts often prove underlying crime, “locus delicti” or facts of in the overlap suggested phrase More, v. supra, 504).8 (See, of the crime 68 Cal. at place e.g., p. More, 144; v. People McGregar, supra, v. Cal. at People supra, 68 Cal. p. Alviso, Smith, 504; 233; v. at People supra, People supra, 55 Cal. at v. p. p. Brock, 190-191; People v. at supra, at Cal.App.2d Cal.App.2d Morales, 607; 734; In re People supra, Application p. 91 Cal.App. p. O’Connor, Coker, 653; supra, People Cal.App. Cal.App. at p.
In of venue with of a defendant’s of a implicitly equating proof proof guilt crime, however, these decisions overlooked circumstance that al- past though (see must both the People facts crime prove underlying 1096) and also the facts (e.g., underlying § *17 1105, 16; Cal.4th at fn. see 4 Witkin & Cal. p. generally Criminal Epstein, Law, Venue, 47, supra, and 137), Jurisdiction must the facts they p. prove § of the crime (§ a beyond 1096) reasonable doubt but the facts of venue only Simon, aby v. of the evidence People supra, preponderance (e.g., 16; Law, fn. 4 see Witkin & Cal. Criminal p. generally Epstein, Venue, supra, 137-138). Jurisdiction and As the of Court pp. Appeal § noted v. Carter somewhat almost People colorfully years 10 ago 294], P.2d the “state no assurance to its Cal.App.2d gives 389 [52 insubordinate citizens that the [criminally] venue of their crimes will be fixed doubt; a reasonable that doctrine the beyond issue of applies only guilt.” Further and more the decisions failed to fundamentally, past appreci ate what is the difference in the burdens adequately suggested by respective Simon, ‘locus In “Early frequently phrase we added this note of caution: use the cases delicti’ ... under section 777 [Although generally to refer to the issue venue. . . . is occurred, county set in the in which the crime there are numerous statutes that authorize trial in circumstances, county county a other than the in which the crime occurred. In such [Citation.] necessarily a determination of the the question, location of crime does not resolve the venue ‘locus delicti’ with the issue of potentially misleading and thus it equate phrase is the (People supra, 11.) v. venue.” p. 25 Cal.4th at notwithstanding any the crime and for that venue—namely proof venue, the crime and venue is of the facts both underlying
overlapping of a for a defendant’s issue the involving appropriateness place procedural the issue relating trial on a criminal and not substantive charge, in order to of the crime itself. For example, defendant’s or innocence guilt destruction of of a criminal action because of prosecutorial avoid dismissal facts, evidence, evidence, of the by the must prove preponderance People of the evidence did not prеjudice destruction establishing Also, 4 Cal.4th at 967.) in order to Zapien, supra, defendant. p. defendant’s to a right an action because of violation of the avoid dismissal of trial, facts, by must prove apparently preponderance speedy People evidence, Superior Owens (E.g., cause for establishing good any delay. Court, avoid dismissal of an Cal.3d at in order to Similarly, time under for a third bringing charges action because of facts, rule, the under certain circumstances must prove two-dismissal People evidence, acted bad without establishing they aby preponderance Court, (Miller 745-748.) In v. Superior faith. Cal.App.4th circumstances, that the it never has been suggested pertinent each of these by jury. made To factual determinations must or should be innocence. The facts are entrusted the facts or underlying guilt alone jury rule, trial, the two-dismissal on the defendant’s bearing right speedy innocence; or of evidence are distinct from guilt destruction prosecutorial in the first the defendant should be tried place to whether they go the commencement of are determined the court therefore properly Likewise, distinct from the facts on venue are themselves bearing trial. innocence, the court before a should be determined by guilt similarly undertaken in a possibly inappropriate place. 748, the Court of Appeal Megladdery, supra, In Cal.App.2d rationale that has been explicitly set forth what to be sole appears the rule that venue is a decision in articulated in a California support in this “While regard: court stated jury. of fact for appellate his case a constitutional to have right that a defendant does not have it is true it also true that determined any particular [citation] determined, that an accused with certain law has statutory exceptions, our *18 crime, the or some part in the where only jurisdiction is answerable person us, that, thereof, clear to or occurred. ... It seems quite effect was committed [i.e., . . . . . jurisdiction the of . local from the of logic, question standpoint fact, and that in a a necessarily fundamentally question ... is venue] case, the If this that fact rests on prosecution. the burden of proving criminal with the so, jury.” determination of this fact rests follow that the is it must supra, v. 40 (People Megladdery, Cal.App.2d p. a the rule that venue is rationale for Megladdery’s
When we scrutinize true that it is Although find for the we it jury, unpersuasive. of fact question
213 a venue underlying by preponderance must the facts People prove follow, evidence, the assertion in Megladdery not contrary it does 762), that the must 40 at p. v. Megladdery, supra, Cal.App.2d (People the jury. those facts to the prove satisfaction in California decisions found no explanation prior
Having persuasive we have surveyed a of fact for the jury, the rule that venue is question an alternative this rule in search of persuasive other jurisdictions apply in of the rule none that retention rationale—but have discovered supports treatise, a a “offer leading as noted in California. “These jurisdictions,” ‘a fact jurisdictional put .... Venue is described as: variety explanations the indictment’ in a of not ‘material by guilty’; allegation issue plea [a] indictment an ‘element of allegations; which must be with other proven along crime’ elements of the to be treated no than the substantive differently offense; and an fact’ most addressed in course ‘issuable appropriately al., et (4 fact.” LaFave of the offense and to the finder of proof presented Procedure, 500, omitted.) In 16.1(g), jurisdictions Criminal fns. supra, p. § (State (Iowa Donnelly which it is treated either fact” v. “jurisdictional 295, 297; al., Procedure, 1976) 242 N.W.2d see 4 LaFave et Criminal supra, 500, 237, authorities) or as an “issuable fn. additional 16.1(g), citing p. § 621, 761]; (1971) fact” 623 N.W.2d see Mich.App. [184 Plautz 500, 240, al., Procedure, fn. citing LaFave et Criminal supra, 16.1(g), p. § authorities), deemed to subject additional apparently implicate matter not the case in California. And in jurisdiction—which jurisdictions it of the indictment” allegation which is viewed either as “material 1395, (State (1968) N.W.2d 261 Iowa Wardenburg [158 147] al., other see 4 LaFave et Criminal [describing jurisdictions]; view of Procedure, 500, 238, authorities) or fn. additional 16.1(g), citing p. § Ill.2d as an “element of the crime” (People Digirolamo a view subse changed by N.E.2d 227 Ill.Dec. [describing 779] al., Procedure, law]; enacted et Criminal see LaFave quently statutory authorities), additional it is 16.1(g), citing regarded, § latter, in the former in the as an element implicitly jurisdictions explicitly of whatever crime to be also is not the case may charged—which happen California. merits, the rule
In view of the we conclude that on its own foregoing, is a of fact for California decisions—that venue adopted question however, does not not well founded. Our conclusion in this jury—is respect, can, should, whether this court reject itself resolve question of law for rule and in its a rule that venue is question adopt place determination the court. the rule that whether this court can reject
As for first question, a rule that venue is of fact for the in favor of venue is *19 214 court, reach an affirmative conclusion. prior law for the we of
question Barnum v. (People a . . . rule of procedure” rule “merely judge-made 499, 1210, P.3d [speaking Cal.4th Cal.Rptr.2d 788] [131 circumstances, certain a trial court is under rule that required, prior self- defendant of the against compelled a privilege advise self-represented nor constitutional law. We neither incrimination]), statutory by required had “enacted statutes Legislature the rule if the would hesitate to discard 252, 270 (1995) 12 Cal.4th Cal.Rptr.2d on it v. Cuevas (People [48 reliance” 135, of a . . . 1290]) had made it a “basic part comprehensive P.2d or (2000) 23 Cal.4th v. (People scheme” statutory Mendoza however, Here, has done 265]). the Legislature 4 P.3d Cal.Rptr.2d have the rule ignored instructions jury neither. Just as the drafters of pattern 1090-1091, Simon, 1109), so too has 25 Cal.4th at (see v. supra, enacted statutes any incorpo- has not Legislature Because Legislature. rule, action any without authority, awaiting this court has rating the rule. decisions to reconsider the judicial adopting that body, the rule that venue reject whether we should As for the second question, of a rule that venue is question fact for the in favor jury question sure, court, an affirmative conclusion. To be we here too reach law for fact has “enjoyed widespread that venue is a rule question (Peoрle the . . . courts in California” following among long-standing Barnum, rule of advisement of at 1225 [prior supra, p. self-incrimination]), defendant of against compelled self-represented privilege Simon, But, there we suggested other jurisdictions. as well as in most First, the rule retention of the rule. that counsel against are reasons strong their especially “principal underlying provisions, impedes purposes a defendant that is “to a defendant’s perspective,” protect . . . from purpose burdensome locale” unduly trial in a distant and to stand .being from required off any fn. 18)—by 25 Cal.4th at putting p. (People to undergo “the defendant required on venue until finding been] [has after locale,” and an assertedly trial in standing improper hardship rigors a trial” in of conducting the time expense “the state incurred] [has] after Second, “inconsistent with 1087). contempo- the rule is (id. p. other, issues,” inasmuch as venue is . .(cid:127) . analogous treatment of rary for a defendant’s of place involving appropriateness procedural to the relating and not a substantive question a criminal charge, trial on (Id. charged. innocence of the offense defendant’s or guilt the jury when Third, of an “unwarranted acquittal” the rule the risk poses venue. lack of on solely proper of not guilty predicated returns a verdict true, suggested, in Megladdery of Appeal it were as the Court (Ibid.) Even if rule” occurred under this has miscarriage justice that “no grave 766), we do not perceive at p. Cal.App.2d Megladdery, defeated revision that would be reliance interest upset substantial *20 (Katz this rule in the court-made “to servе ends of future. justice” 116, 123; accord, (1903) 141 In re Walkinshaw Cal. Marriage of Schiffinan (1980) 28 Cal.3d 620 P.2d Cal.Rptr. (plur. opn. 579] Newman, J.).)
Therefore, we that the venue is a of fact conclude rule that question for the that should be favor of a rule venue is a jury rejected question above, law for determination decisions and by court. California cited effect, those to similar are overruled or to the extent are they disapproved to this conclusion. contrary
Nevertheless, to the adherence . . . rule venue is question “[b]ecause [that of fact for the and jury] has been . . . courts widespread among ... arises should long-standing, whether we our to apply holding and case to other case not on present final yet appeal...” (People Barnum, 29 Cal.4th at We conclude we 1225-1226.) that should Simon, not do so. In we determined that the we rule announced” in “newly that decision—that a . . . “defendant who to venue must object wishes make a objection to venue to the commencement of trial”— specific should apply only.” 25 Cal.4th at “prospectively We make the same determination the rule that we concerning newly announce here. So as a defendant in a not long yet case final has preserved claim rule, of error based on violation of the now or she discarded he may (See that pursue 1108-1109.) claim. id. at pp.
Ill
A We now turn to the claims of error case at bar.9 Defendant specific contends that the initially trial court erred from by receiving the first jury verdicts him finding of two counts of of cocaine guilty sale base—verdicts that were purportedly becаuse was on agree unable “incomplete” venue—and that the trial court acted in its jurisdiction by excess of thereafter alone, a mistrial on the of venue declaring issue empanelling jury, second (1) requested judicial Defendant has that we take Santa notice that Rosa is located within Rosa, (2) County; Sonoma County, including Sonoma telephone Santa comes within the 707 code; County area and both County San Francisco come the 415 Marin within court, telephone opposed may area code. The not request. reviewing have As we Code, grant (see so, (a)), such a request hereby Evid. subd. do as its § inasmuch “[fjacts object comprises reasonably . . . that not subject dispute capable are and are reasonably indisputable immediate and accurate determination resort accu sources (id., (h)). racy” subd. § was in Marin County, second
receiving jury’s finding rendering ensuing judgment. Neither
To our the claim raised defendant is a novel one. knowledge, *21 that or defendant nor the have identified decision addresses any People prior a a from the issue whether trial court receive a verdict may guilty resolves alone, venue, a venue and that is unable to on declare mistrial on jury agree another to consider venue. empanel jury the not err of its
We conclude that trial court did or act excess crime, stated, of and any As venue does not constitute element jurisdiction. In any hence not a of of for crime. necessary is verdict component guilt circumstances, held a trial somewhat decisions have that analogous prior a from a that is unable to on agree court receive a verdict may guilty jury alone, and declare a on the mistrial penalty provision, penalty provision (See People Bright another to consider the issue of v. empanel jury penalty. 732, 652, (1996) 12 Cal.4th 661-662 P.2d [penalty 909 Cal.Rptr.2d [49 1354] willfulness, the for deliberation that increases and provision premeditation, the otherwise beyond pre for murder maximum punishment attempted 756, scribed]; 25 (1994) v. Guillen 760-763 People Cal.App.4th [31 25 for in excess of Cal.Rptr.2d weight pounds [penalty provision 653] sale]; for for v. People enhances the cocaine punishment possession Schulz 563, (1992) [penalty 568-570 Cal.App.4th Cal.Rptr.2d provision [7 269] the for for infliction of that enhances great bodily injury punishment personal to murder].) identify Defendant has been unable anything attempted constitutional, different or decisional law that would a statutory, compel the to to matter when the instead jury’s inability agree goes conclusion venue.10 (1984) People v. Cal.Rptr. P.2d Avalos relies Cal.3d 216 [207 Defendant on (Marks) 121], Superior Court Cal.Rptr.2d 820 P.2d 1 Cal.4th and 613], distinguishable. clearly but each of those decisions is Avalos, guilty of jury’s finding verdict the defendant incomplete In we characterized as do, murder, murder, degree required as it was jury failed to determine because Avalos, supra, (People at agree 37 Cal.3d inability as a of its on that issue. result did, Here, contrast, to, 224-229.) agree completely the issue of jury was able on guilt agree venue had no effect on those guilt. jury unable to on matter of That was that, verdicts, in Avalos. The circumstance them like the incomplete and did not render vеrdict rule, jury affect was a of fact does not this conclusion. prior under the independent are determinations. separate Venue the crime sale of cocaine base base, merely “procedural issue[] instead Venue not an element of the sale of cocaine but Simon, supra, guilt relate . . or innocence” all not to . do[es] jury 18). finding on venue Accordingly, contrary argument, to defendant’s finding counts of sale of cocaine necessary jury’s guilty him two was not verdicts base. failure, Marks, to hold that a court’s erroneous under section In we concluded trial, concerning declaring a
hearing after doubt competence the defendant’s mental on death ensuing judgment conviction and sentence of competence, rendered the such mental
B Defendant next that the contends trial court erred in its instructions to the second on the matter of venue.
The trial court gave following instructions to venue: relating “Penal Code Section 781 as follows: When a provides offense is commit public ['][] another, ted in in one part county and in or the part acts or effects thereof to the constituting consummation of the requisite offense occur in two or counties, more the venue offense(s) of such is in either For county, [f] of venue under Penal Code Section purposes 781 the to the phrase ‘requisite commission of the offense’ means requisite achieving offender’s unlawful A purpose, commit a may crime in a [f] particular county even he/she was not though in the personally A present county. telephone [][] *22 cаll for the purpose crime which received planning is within the forum venue, be county may basis for adequate the fact the call despite originated from outside In county. this case the forum is Marin [CJ[] County. The prosecution has the burden H] facts establishing as to the issue of venue, The prosecution must venue prove [f] preponderance of the evidence.” deliberations, after
Shortly commencing the second asked the jury trial court by note: “The is: are we question the more deciding appropriate place for the trial OR is Marin [j[] an The appropriate place? first of the part me, means to question Where did the bulk of the crime Is that a valid happen. [|] interpretation? Also please clarify [j[] following sentence: A telephone call for the purpose crime planning which is received w/i the foreign [sic: evidently venue, county may be basis for adequate “forum”] despite the fact the call originated from outside the After county.” with the conferring counsel, prosecutor defense the trial court note: responded by (1), “As to not, is question based on facts and the instructions I have previously given whether Marin County is ‘the more you, for trial appropriate place’ venue, ‘the more but whether Marin County is ‘an appropriate appropriate’ or ‘an is, place,’ whether, venue’ that appropriate under the facts and the instructions I have venue, Marin previously given you, has County even another also have venue. though county may (2), As to have you quoted [][] . . . particular law, portion [a instructions You given]. should apply as well as the other instructions I have to the given you, facts as you them, determine and in this arrive way (Italics verdict.” your added in place underscoring original.)
nullity, because its terms section suspended 1368 the criminal proceedings pending resolution of the issue of (People Superior (Marks), v. Court competence. mental Here, however, 63-71.) Cal.4th at proceedings by any criminal were suspended not provision analogous jury to section 1368 after the finding first returned its verdicts guilty base, of two counts of sale of cocaine agree but was unable to on venue. claim, substance, the trial court’s instructions on
Defendant’s law because stated the on the issue they incorrectly venue were erroneous from directed an adverse effectively finding by removing question find As shall we no error. explain, consideration. we jury’s or de novo standard of review applicable independent Berryman v. instructions state law assessing correctly whether 1048, 867, 40], P.2d overruled on (1993) 6 Cal.4th Cal.Rptr.2d 1089 [25 800, 823, Hill People (1998) 17 CalAth another point by 673]) effectively and also whether instructions 952 P.2d Cal.Rptr.2d the jury’s direct a adverse to a defendant issue from finding by removing (see People Figueroa (1986) 41 consideration Cal.3d 723-741 [224 Leonard 680]; People P.2d Cal.Rptr. Cal.App.4th 180]). Cal.Rptr.2d 794 [93 claim of error with the analysis recognition
We conduct our of defendant’s that, rule, was for the under the venue fact jury. review, we that the trial court’s instructions on
After conclude independent stated the law on issue. correctly with, as to court’s instructions informed the begin correctly To stated, the to venue. As the burden and stаndard of proof pertaining *23 evidence, of the facts venue. underlying must a the preponderance prove, the that has trial instructed the jury prosecution The court expressly “[t]he venue of as to the of venue” and “must establishing burden facts issue prove in that the trial court stated its Nothing a of the evidence.” preponderance instruc- deliberations undermined that to the jury’s questions during response tion. addition, informed correctly will the trial court’s instructions
In
as
appear,
case under section
that
to this
pertains
the
to the venue
requirement
781,
simply
the
deliberations
jury’s
during
and its
to
response
questions
was Marin
County
the issue
venue turned on whether
clarified that
rather than the more
for
place.
trial
appropriate
appropriate place
781, we construe the
meaning
provi
of section
determining
In
to
its
which is
underlying
expand
in order to achieve
liberally
purpose,
sion
crime
be said to have been
in
a
single county
may
venue
which
beyond
1083,
v.
(2002)
Cal.4th
1118
28
People Gutierrez
(see, e.g.,
[124
committed
Simon,
1109;
373,
219 criminal to achieve the liberally legislative purpose expanding jurisdic course, with a from tion”])—consistently, “protect[ing] being and v. to stand in a distant burdensome (People required unduly locale” Simon, 1110, 25 supra, 18). Cal.4th at p.
What is in important purposes is the section 781 present phrase . of “acts effects . . of a speaks requisite the consummation” crime which venue establish in any county which occur. words they “acts . . . to the consummation” of a crime requisite in a establishing have been preparatory (People v. county construed to embrace acts liberally Crew, 836; 31 Cal.4th at supra, v. People supra, 25 Cal.4th at p. 1109), as the p. such theft of firearms in a following: to a county leading 324, v. Price People (see (1991) murder 1 Cal.4th 384-386 Cal.Rptr.2d [3 106, 610]); 821 P.2d with an a victims in meetings county accomplice make film, to a arrangements scheme to a pursuant produce pornographic (see 468, Douglas (1990) v. in the victims’ murder People resulting Cal.3d P.2d 640]); 492-494 Cal.Rptr. county kidnapping leading [268 (see to a murder People Powell (1967) v. 67 Cal.2d 62-63 Cal.Rptr. [59 137]); P.2d striking in a from officer fleeing police county in an test, automobile in order avoid a field taking sobriety resulting Bismillah, assault with a deadly weapon (People Cal.App.3d token, 85-87). By the same words “effects . . . requisite of a consummation” crime establishing venue in should be county liberally effects, construed embrace preparatory such as the of a tele- placement call into a phone to a Price county leading crime. In Cal.App.3d 1189-1192 trial court which the Cal.Rptr. 282]—on relied in formulating its instructions—the Court of so construed Appeal words in on facts similar here question, holding, to those sale or involving cocaine, that a transportation “telephone call for purpose planning crime received within venue, is an basis for adequate despite [a] Price, fact the call was originated outside county” 1192).11 Cal.App.3d Although we that the holding recognize Price Cоurt the most Appeal represents liberal construction of words *24 “effects . . . to the requisite commission” of crime a a reflected in reported decision, we cannot find its holding unsound. conclusion,
Evidently order to avoid this defendant a proposes First, narrower construction of considerably section 781. he 781 as reads section . . only of “acts . it though spoke requisite to the of a crime consummation” venue in a and “effects,” establishing not also that county, a word proves 11 Price, 1183, People v. Cal.App.3d been by which had decided Division Three District, Appeal Appellate by the Court of for the Fourth subsequently the was overruled 1741, People v. (1995) point same division on another Cal.App.4th 1748 [45 Mem Cal.Rptr.2d 844]. Second, a to “acts” gloss crucial defendant on to to goes attempt apply here. deliberately county “acts targeting in order to transform the reference into its that without such section argues gloss, or residents.” Defendant the would to achieve the of venue from defendant’s object provisions fail for bears a trial in reasonable namely, county to perspective, “provide ... discretion thereby to the crime in and relationship” “restrict[] chooses, to the state that it of the file locale within charges any prosecution that, available, with the consider- if would option provide prosecution reason, that, the prosecution able to choose a for whatever power setting to the defendant’s” views to or hostile or burdensome as favorable its position 1095). gloss by 25 Cal.4th at (.People apрlied however, defendant, and into that is not something present inserts section 781 Indeed, absent that contracts venue rather than extends from section it. venue of section 777 from other general 781—as from provision ante, 209-210, 7)—is a (see, as requirement well provisions county, that the whatever with to a respect defendant mental state possess of “effects” in a county venue. The requirement “requisite purposes need for a reasonable relationship the consummation” of a crime satisfies the and, result, the crime and the as restricts People’s between Moreover, by the gloss discretion within tolerable bounds. charging applied of venue by People defendant would freedom from manipulation purchase defendant, who then could at the of allowing manipulation cost similar county, of a favorable choose a favorable residents only county, only for his activity. or her criminal review, instruc- we conclude that the court’s
After also independent finding did direct a adverse effectively tions on venue not instruc- The trial court’s the issue from the consideration. removing jury’s tions, discussed, on the matter of venue correctly informed already proof, aspects and on the burden standard pertinent instruc- defendant amounted merely pinpoint instructions challenged by . . . of venue (People tions facts to issue” “relating [the] properly particular 847]). 465 P.2d (1970) Sears 2 Cal.3d Cal.Rptr. C also evidence insufficient support
Defendant contends second on venue. finding jury’s modification, the standard employed with
Applying, appropriate under vеrdict guilty evidence sustain a claim insufficient reviewing Johnson Cal.3d (see decisional law California that a trier of 738]), we believe rational 606 P.2d Cal.Rptr. 575-579 [162 *25 had that the People proved, preponder fact could have found certainly evidence, place Marin was County ance appropriate under section There was evidence that defendant several tele- 781. placed calls—not one—to from San as phone merely Marin Francisco part to his two of cocaine base in San Francisco. negotiations leading sales up . Defendant’s calls to Marin constituted “effects . . to requisite telephone consummation” of crimes in question. conclusion, find
Defendant our but we his argues against position with, To the circumstance that defendant not have unpersuasive. begin may call to placed deliberately, Marin or even would not telephone knowingly, defeat venue in that Under on the county. section venue turns presence absence, or in county, of acts or effects constituting crime to requisite commission of crime—not on the defendant’s state of mind or on the soundness of beliefs he or she hold location of might those Further, contention, acts or effects. it to defendant’s is immaterial contrary that venue in a civil action on a contract sales (pursuant appropriate Co., section Code 395 of the of Civil Procedure and Bag Friedman Inc. v. 38]) Shrier in the Cal.App.2d 564-565 Cal.Rptr. county, locations, other in among which a seller We offer. here are accepts buyer’s concerned with a criminal sale action for the of cocaine with section base 781—not with a civil action on a sales contract under Code of Civil Co., Procedure section 395 or Friedman Bag which implicate distinctly different concerns. interest,
We recognize that defendant had a legitimate served section other venue among in provisions, “safeguard against possessing being required stand trial in an unrelated burdensome distant potentially location.” Cal.4th at But supra, 25 by being Francisco, to stand in required trial Marin rather than San defendant hardly Marin, course, found himself in that of location. not type distant from Francisco, San rather but borders it. The two counties share same 415 code, area and thus calls made to a that area telephone number with code could be one received in or the other of those counties. Neither was Marin crimes, unrelated to defendant’s defendant inasmuch as particularly placed several calls to the telephone negotiations leading to his two county up sales of cocaine base. noted, defendant,
As Detective Yamanoha lied to that he was in stating Marin, Santa Rosa in County, county Sonoma north when immediately he actually was in Marin. Yamanoha told the lie to defendant order to further his from buy cocaine base him in Marin and attempt apparently order to arrest there at an him time. The circumstance that opportune Yamanoha lied defendant evidently, seems unremarkable: Yamanoha’s Marin, was to defendant object to come to which was both the persuаde (or residents) which to whose he believed had made sales *26 his fullest cocaine and the in which he himself county possessed of base 830.1, (a)), means of (see as officer subd. his authority a peace § aas county to to Marin was to defendant come present persuading In any San and Santa Rosa. reasonable between Francisco halfway point event, lied defendant not establish Yamanoha does circumstance in On the because contrary, that it was unfair to defendant Marin. try at a one call to Yamanoha at least telephone himself placed code area code—the area encompassing number with telephone that he not have cannot claim could reasonably Sonoma County—defendant base to his two sales of cocaine leading up known the negotiations Francisco, claim that than can he reasonably involved other San nor Marin, than trial which is closer San Francisco him to stand requiring burdensome. Under unduly was in manner any oppressive Sonoma County, . circumstances, was that venue Marin clearly we conclude County these 871.12 under section proper
D the first from Marin by drawing County Defendant contends that finally two of sale of (which him counts finding guilty returned verdicts jury his under the Sixth Amendment base), right, the trial court violated cocaine I California section of article of the the United States Constitution and Constitution, vicinage. by jurors Court, we that the concluded
In Price v. Superior Amendment, an right which right embodied the Sixth vicinage of the state and district . . a . . . trial ... an by impartial jury “accused . to committed, bеen district shall have shall have been which wherein crime law,” and is the United States only against ascertained applies previously clause for due process the Fourteenth not incorporated Amendment’s Court, at Cal.4th supra, 25 (Price Superior the states. against operation in article right that the 1057-1069.) vicinage implied We also concluded pp. Court, I, (see Price v. Constitution Superior section 16 of California an 1071-1078), right simply at constitutes Cal.4th some bearing drawn from place accused to a trial by impartial (id. 1075). to the crime in question p. reasonable relationship dissent, “[fjoram is not “what case is this Contrary shopping” in the to the assertion course, Brown, J., 224.) post, practice (Dis. shopping, Forum p. “[t]he opn. about.” (Black’s might heard.” jurisdiction ... in which a claim be choosing the most favorable engage in (7th 1999) that Detective Yamanoha did not plain It is Law Diet. ed. admits, the case the first instance presented Yamanoha practice. defendant himself such As the dissent in San Francisco—which Attorney prosecution to the San Francisco District District only after the San Francisco the least favorable jurisdiction. It was characterizes compelled that Yamanoha was apparently policy, for reasons of Attorney prosecute, declined to Attorney. District approach the Marin Price,
Under defendant’s claim lacks merit. Defendant did clearly *27 not suffer violation of his Sixth Amendment because that any vicinage right, not does in state court In order to the provision apply proceedings. preserve review, for further dеfendant with point disagreement our conclu expresses sion in Price that the Sixth Amendment with vicinage right only operates to federal court but he respect fails to offer basis for us to proceedings, any revisit our Neither did defendant suffer violation holding. any of his vicinage I, Constitution, because, under article the right section 16 of California as is above, the conduct apparent of his trial Marin bore a reasonable County to the that he in two relationship charge engaged sales of cocaine base. On this point, does not raise than any arguments other those that we have above. rejected
IV above, For the reasons stated the judgment Court of Appeal affirmed.
Kennard, J., Baxter, J., J., Chin, J., J., Moreno, Werdegar, concurred. BROWN, J., court, venue Dissenting. I agree of law for the to trial; be decided I also we should not agree this new rule to the apply case or present other case not any final on yet appeal.
However, I do not Marin agree was a venue County for this case. proper My disagreement defendant, does not arise from with who sympathy Moon, would have likely sold cocaine to the Man in the so as he could long deliver it within the friendly confines of San prosecutorial Francisco. How- ever, I am concerned that by a blind turning to forum eye by law shopping authorities, enforcement the majority is inadvertently it. encouraging provisions to criminal applicable “[V]enue serve a proceedings variety purposes.” (People Simon (2001) Cal.Rptr.2d [108 385, 25 P.3d (Simon).) defendant, the of a perspective statutоry 598] “[F]rom enactments county bears reasonable provide to an relationship criminal alleged also restriction on the operate offense discretion of the to file prosecution charges any locale within the state that chooses, that, available, it if would option with the provide prosecution that, reason, considerable to choose a power for whatever setting prosecu tion views as favorable to its or hostile or burdensome position (Ibid., “[Vjenue added.) defendant’s.” italics also serve to provisions protect the interests of occurs, in which a community crime or criminal activity vindicat[ing] community’s to sit in right judgment on crimes committed its within 45 Cal.3d territory.’ Guzman (Ibid., 917].)” added.) 755 P.2d italics Cal.Rptr. General, test which I will discuss Attorney balancing proposed
below, that we and serves the purposes provisions respects in Simon: reiterated that trial occur in a with a reasonable relationship offense, right criminal alleged thereby vindicating community’s test on committed its judgment territory. Regrettably, sit crimes within while invokes the letter the venue adopted by majority provisions betraying their spirit. *28 is this case about. Sheriff’s County
Forum what is The Marin shopping Francisco, this San first to have case in sought prosecuted Department to which the Marin believed the crime obviously in authorities jurisdiction have occurred. It was after Francisco District Office only Attorney’s San declined to that the Marin Sheriff’s took County Department prosecute case to the Marin District Office. Attorney’s County Marin had infor-
Detective Yamanoha of the Sheriff’s County Department Marin, in at least selling mаtion that defendant’s confederate was cocaine Marin revealed investigation residents. Detective Yamanoha’s subsequent was was to sell cocaine to someone who said he willing calling from Sonoma Yamanoha told defendant he was Detective County. he Sonoma because he did not want defendant to know calling County from delivering was from Marin Defendant insisted actually calling County.1 upon the cocaine in San Francisco.
The of the inability frustration Marin Sheriff’s its County Department Francisco, he could out of San where he believed lure defendant apparently alike, is understand- and nonresidents drugs sell with residents impunity abuse, However, breeding ground able. frustration can be a here, in teeters on majority the forum condoning shopping engaged slippery slope. it is. how just Suppose illustrates following hypothetical slippery X’s sells to San Francisco residents. self-imposed
X drugs exclusively over not manifest concern the welfare territorial sales restriction does counties; claim sanctuary to be able to citizens of other he wishes simply motivation, restricting he though, intentionally Whatever his San Francisco. that a San Francisco to San Francisco. further activity Suppose his criminal San on the by unwillingness part narcotics is frustrated officer had a base defendant and his confederate customer Since Detective Yamanoha believed knowing calling he from baffling so on their was County, that he was intent not Marin it County. Marin Francisco X. The Attorney prosecute majority District Office’s to provides that officer roаd with a for forum map shopping. the San Francisco officer finds district attor-
Suppose sympathetic deputy Counties, officer, and Marin and that while neys Imperial physically counties, in each of those calls to X in he present arranges which places X, with the to be San buy drugs from transactions executed in Francisco. Franciscan, the officer tells X he is a San from Suppose calling San Francisco, he and that from X ultimately, arranged, drugs picks up San Francisco. Finally, officer uses cell with a 415 area suppose phone code that is consistent with his cover story.
In this because X have no would reason to believe he was hypothetical, from his rule departing selling to San Francisco self-imposed drugs only residents, he and because would not in fact have sold with a drugs anyone connection to could not said to have a County, County be Imperial Imperial (Simon, “reasonable to his criminal 25 Cal.4th at relationship” activity. Accordingly, citizens of would not have an Imperial County “ interest in ‘vindicating] community’s to sit in on right crimes judgment ” Nevertheless, committed within its (Ibid.) the rule an- territory.’ under Centro, nounced by majority venue would lie in El today, miles *29 Francisco, officer, world view from San apart because the to simply contrary X, what he in told was when he County one of the Imperial placed phone ante, calls. at (Maj. 28-30.) opn., pp.
X would in to venue the presumably object ground on that Imperial County trial in El standing' Centro would be on him unduly burdensome or his However, witnesses. even if he were successful in this this would objection, officer, be but a minor setback for оur San Francisco informed hypothetical forum he that is. The officer has a shopper fallback—Marin and the County majority already have certified the of venue there appropriateness (maj. opn., ante, 221-222), even though Marin would have no more at County stake in the case than would Imperial. the
Curiously, majority is less sensitive to the forum abuse of shopping states, than is the Attorney General. There is no the requirement, majority a defendant any mental state whatever with to a “possess county, respect ante, of venue.” purposes (Maj. opn., General, hand, on the other Attorney balancing test for proposed in venue which the defendant’s mental be one of the
determining state would one to “If the did occur in the forum needs key county, factors. crime not (1) to is the factors decide whether venue there: weigh following permissible (a) the the used the forum to county extent to which defendant either (2) (b) facilitate his or harmed the forum county; criminal otherwise purpose to which the defendant should have known he was (a) the using the extent (b) his or the harming forum to facilitate criminal otherwise county purpose (3) forum extent to the forum will the which in county; impose defendant; the extent to which the logistical on hardship prosecu- tion to create venue in gained advantage acting tactical by improperly (Italics added.) forum county.”
If General to balancing by Attorney applied test proposed Marin clearly facts of the venue would be foregoing hypothetical, improper no he was Marin County. harming County X had reason whatever believe his criminal And it would be artificial highly it facilitate using purposes. nevertheless, harmed, that Marin was X because say County just there, told was San officer call from when officer X he Francisco placed a San from San Francisco. Because the San Francisco calling Franciscan X, the District would not San Francisco officer Attorney’s Office prosecute to- in order clearly advantage by stratagem tactical gained employing Nevertheless, create the fact all of County. despite venue Marin this against trying identified General would run equities Attorney finding case Marin would County, majority hypothetical uphold venue there. case, General’s test the facts this I conclude Attorney
Applying Marin but would have been in Sonoma County, proper was improper his he from Detective Yamanoha told defendant and confederate was County. Therefore, Rosa, had which in Sonoma reason County. Santa it to criminal believe was Sonoma facilitate his harming County using he hand, to believe he was On the other defendant had no reason purpose. *30 mere it to facilitate his criminal using purpose. Marin harming County Yamanoha, be in when County Detective Sonoma claiming fact that while defendant, did in Marin not create County he his calls to was actually placed (Simon, defendant and Marin. “reasonable between relationship” clearly the Marin Sheriff’s 1095.) Finally, County Department Cal.4th at p. District this case to the Marin by taking County gained advantage District Office County Attorney’s Office after San Francisco Attorney’s declined to it. prosecute
I would reverse of the Court of judgment which affirmed the Appeal, judgment of conviction.