Lead Opinion
Opinion
Penal Code section 784.7
The Sixth Amendment to the United States Constitution guarantees criminal defendants the right to be tried “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.” Article I, section 16 of the California Constitution (hereafter article I, section 16) has been construed as implicitly reserving a similar, but not necessarily coextensive, vicinage right.
The Court of Appeal rejected petitioner’s argument that section 784.7 is invalid because it denies defendants the right to trial by a jury drawn from residents of the area in which the charged offense allegedly was committed. We granted review to consider whether trial in a venue authorized by section 784.7 violates either the vicinage clause of the Sixth Amendment or article I, section 16. We conclude it does not, reject other claims made by petitioner, and affirm the judgment of the Court of Appeal.
I
Background
Petitioner Shawn Garfield Price is charged in a fourth amended felony complaint filed on July 20, 1999, in the Riverside County Superior Court
The Santa Clara County offense (count 5 above) was originally charged in a felony complaint filed on April 15, 1998, in the Municipal Court of the Santa Clara County Judicial District. Thereafter, a felony complaint filed in the Riverside County Superior Court on March 1, 1999, charged petitioner with the four Riverside County offenses. On March 5, 1999, the Riverside County prosecutor moved to consolidate the Santa Clara County case with the Riverside County prosecution pursuant to section 784.7. Petitioner opposed the consolidation on the ground that it violated his right to trial in the vicinage as guaranteed by the Sixth Amendment and corresponding implied right under article I, section. 16. On March 23, 1999, the court ordered the transfer and consolidation of the Santa Clara County case with the Riverside County case. A third amended felony complaint was filed on the same day charging petitioner with the Santa Clara County offense as well as the original Riverside County charges. Petitioner then sought relief by petition for writ of mandate/prohibition, the Court of Appeal issued an order to show cause, and, after briefing and argument,
The Court of Appeal first rejected petitioner’s claims that the consolidation procedure violated section 954, which permits joinder of offenses in specified circumstances; that the procedure would deprive petitioner of a fair trial; that venue was not proper in Riverside County; and that application of
The Court of Appeal reasoned that the contemporary right to trial by jury no longer contemplates jurors who are familiar with the parties and the locality and therefore are able to supply their own personal knowledge in evaluating the evidence. That common law concept has been replaced with a right to trial by jurors who do not have independent knowledge of those factors. In People v. Richardson (1934)
The Court of Appeal here recognized that, unlike the cases in which venue is proper in any county in which an act related to the charged offense occurs, section 784.7 requires only that the victim and defendant in a spousal or child abuse charge arising in a different county be the same as those named in a charge pending in the county where trial is to be held. Nonetheless, this relationship was sufficient to satisfy the venue requirement of article I, section 16.
Petitioner now repeats his contentions that section 784.7 violates state and federal vicinage rights; violates venue requirements by permitting a case with no factual nexus to Riverside County to be tried there; and does not permit consolidation of the Santa Clara County offenses with offenses committed in Riverside County against a separate victim (Sterling).
II
Discussion
Section 784.7, enacted in 1998 (Stats. 1998, ch. 302, § 1), provides: “When more than one violation of Section 261 [rape], 262 [spousal rape], 264.1 [rape or genital penetration in concert], 273a [child endangerment], 273.5 [infliction of corporal injury], 286 [sodomy], 288 [lewd or lascivious conduct with child under 14], 288a [oral copulation], 288.5 [continual sexual abuse of child], 289 [forcible sexual penetration], or 646.9 [stalking] occurs in more than one jurisdictional territory, and the defendant and the victim are the same for all of the offenses, the jurisdiction of any of those offenses is in any jurisdiction where at least one of the offenses occurred.”
A. Consolidation with Nonenumerated Offenses.
We first address petitioner’s claim that section 784.7 permits consolidation of an out-of-county offense only with offenses enumerated in section 784.7. If so, consolidation for trial of the Santa Clara County child endangerment charge (count 5) with the Riverside County murder (count 1) and torture (count 3) charges is not permitted even though a second child endangerment charge involving the same defendant and victim as that charged in Santa Clara County is included in the Riverside County complaint.
Nothing in the language of section 784.7 limits the grant of jurisdiction to try enumerated offenses together in any county in which one offense occurred to those cases in which only enumerated offenses are charged in the county in which the trial is to take place. The consolidation of the Santa Clara County charge with the Riverside County charges is authorized under the plain language of section 784.7.
Moreover, when enacting section 784.7 the Legislature is presumed to have been aware that joinder and consolidation of related offenses in a single complaint or information is expressly authorized by section 954. That section provides in pertinent part: “An accusatory pleading may charge two or more different offenses connected together in their commission, or different statements of the same offense or two or more different offenses of the same сlass of crimes or offenses, under separate counts, and if two or more accusatory pleadings are filed in such cases in the same court, the court may order them to be consolidated. . . .” Were we to accept petitioner’s restricted view of section 784.7, we would have to conclude that the Legislature intended a pro tanto repeal of section 954, a conclusion a court will not reach with regard to any statute unless a newly enacted statute is irreconcilable with an earlier statute applicable to the same subject matter. (Stop Youth Addiction, Inc. v. Lucky Stores, Inc. (1998)
We agree with the Court of Appeal, therefore, that the consolidation of the Santa Clara County charge with those pending in Riverside County is authorized by section 784.7.
B. Venue.
As People v. Guzman (1988)
The concepts of venue and vicinage are closely related, as a jury pool ordinarily is selected from the area in which the trial is to be held. The concepts have different origins and purposes, however. Venue is historically significant from a national perspective because, as discussed below, the pre-Revolutionary practice of transporting colonists who were charged with crimes in the colonies to either England or other English colonies for trial
Relying on People v. Sering (1991)
When the Legislature creates an exception to the rule of section 777, the venue statute is remedial and for that reason is construed liberally to achieve the legislative purpose of expanding criminal jurisdiction. (People v. Bismillah (1989)
Section 784.7 was enacted to protect repeat victims of child abuse or molestation and victims of domestic violence, offenses that are оften inflicted on the same victim by the same perpetrator, from the need to make multiple court appearances to testify against the perpetrator and to reduce costs of separate trials. A Senate floor analysis by the Senate Rules Committee regarding the measure, which originated as Assembly Bill 2734, offered the author’s statement of the purpose of the bill:
“[Assembly Bill] 2734 seeks to provide for the ability to combine trials when the victim and the defendant are the same for all the offenses. In crimes of domestic violence and child abuse or molestation, there is a high degree of mobility. The first offense may happen in one county, and then the victim moves to another county. The defendant follows them and commits
“[Assembly Bill] 2734 would allow the trials to be combined when the defendant, victim and crime are the same. This will save the victim from testifying in the multiple trials over several years. Additionally, this will provide a cost savings to the trial court system by reducing the number of trials.” (Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Assem. Bill 2734, as amended June 15, 1998.)
Notwithstanding the general preference for local venue recognized by the court in Sering, supra,
C. Vicinage.
Petitioner argues that the vicinage provision of the Sixth Amendment is applicable to the states through the Fourteenth Amendment. He contends that the vicinage clause of the Sixth Amendment right to jury trial entitles him to trial on count 5 by jurors drawn from the district in which the offense was committed, i.e., Santa Clara County, and that, in any event, the district from which jurors are drawn must have been determined before commission of the charged offense, making application of section 784.7 to him constitutionally impermissible. He also claims the vicinage right implied in article I, section 16 gives him a right to be tried on count 5 in and before a jury selected from residents of Santa Clara County, the location in which the offense now charged in count 5 allegedly was committed.
Petitioner’s vicinage claim recognizes that, with a single exception,
1. Venue and vicinage under the Sixth Amendment.
The Pеople argue that the vicinage clause of the Sixth Amendment was not incorporated and made applicable to the states through the Fourteenth Amendment and that, in any case, section 784.7 does not violate the Sixth Amendment. Because the Sixth Amendment requirement that the district from which a jury is selected for trial of a criminal charge must have been “previously determined by law” would seem to be dispositive in this case, we address the Sixth Amendment questions first.
At the time of its adoption, the Bill of Rights, of which the Sixth Amendment is a part, applied only to the federal government (Barron v. Baltimore (1833)
While the courts of other jurisdictions are divided on the incorporation question (see 1 LaFave et al., Criminal Procedure (2d ed. 1999) § 2.6(b), p. 568, and cases cited), since our decision in Jones, several courts have recognized that the United States Supreme Court has not held that the
Because the parties in their briefs assumed, based on Hernandez and Jones, that the Sixth Amendment right to trial before a jury of the vicinage has been incorporated into and thus applies to the states by virtue of the Fourteenth Amendment, we asked the parties to submit supplemental briefs on whether Hernandez and Jones should be reconsidered in light of the contrary views of other jurisdictions and legal commentators. petitioner argues that the court should adhere to Hernandez and Jones, because they are well reasoned.
Petitioner’s reliance on Hernandez and Jones for his argument that the Santa Clara County charge may not be tried in Riverside County affords us the opportunity to reexamine the assumption that the vicinage provision is among those provisions of the Sixth Amendment that were incorporated and made binding on the states through the due process clause of the Fourteenth Amendment. In doing so we have considered the history of both the Sixth and the Fourteenth Amendments, the concept of vicinage as it existed in this country and England when each amendment was adopted, the views of other courts, and the arguments of the parties. We conclude that (1) the vicinage clause of the Sixth Amendment does not guarantee a right to trial before a jury drawn from the county in which the crime is committed, (2) regardless of the construction and application of the clause in federal courts, the history of the Fourteenth Amendment does not reflect a clear intent to make the vicinage clause applicable to the states, and (3) because the vicinage requirement of the Sixth Amendment is not a fundamental and essential feature of the right to jury trial, it was not made applicable to the states by incorporation through the Fourteenth Amendment. We therefore reject petitioner’s claim that section 784.7 is invalid because it offends the vicinage provision of the Sixth Amendment.
We note first that contrary to our assumption in Jones and Hernandez, Williams, supra,
The court mentioned the vicinage provision of the Sixth Amendment in dicta amplifying its conclusion that not all features of the common law right to jury trial were preserved in the Sixth Amendment.
“ ‘The trial of all crimes . . . shall be by an impartial jury of freeholders of the vicinage, with the requisite of unanimity for conviction, of the right of challenge, and other accustomed requisites . . . .’
“The Amendment passed the House in substantially this form, but after more than a week of debate in the Senate it returned to the House considerably altered. While records of the actual debates that occurred in the Senate are not available, a letter from [James] Madison to Edmund Pendleton on September 14, 1789, indicates that one of the Senate’s major objections was to the ‘vicinage’ requirement in the House version. A conference committee was appointed. As reported in a second letter by Madison on September 23, 1789, the Senate remained opposed to the vicinage requirement, partly because in its view the then-pending judiciary bill—which was debated at the same time as the Amendments—adequately preserved the common-law vicinage feature, making it unnecessary to freeze that requirement into the Constitution. ‘The Senate,’ wrote Madison: flO ‘are . . . inflexible in opposing a definition of the locality of Juries.’ The vicinage they contend is either
“The version that finally emerged from the Committee was the version that ultimately became the Sixth Amendment . . . .” (Williams, supra, 399 U.S. at pp. 92-96 [90 S.Ct. at pp. 1902-1903], fns. omitted; see also 4 LaFave et al., supra, § 16.1(b), pp. 467-470; Cogan, The Complete Bill of Rights (1997) Amendment VI, p. 385 et seq.; Berger, Government by Judiciary: The Transformation of the Fourteenth Amendment (2d ed. 1997) pp. 452-453.)
The vicinage clause of the Sixth Amendment resulting from this compromise expressly confers a right to trial by a “jury of the state and district where the crime shall have been committed, which district shall have been previously ascertained by law.”
However, the Constitution left the definition of the vicinage or district from which a jury was to be drawn for criminal trials in the federal court to Congress. The proposal to limit vicinage to the county was rejected. It is apparent, therefore, that designation of a specific area within a state from which a jury was to be drawn was not considered so fundamental to the right to jury trial that it was intended to be protected by the vicinage clause.
A further indication that it was not the intent to limit vicinage to the location of a charged crime is found in the recognition that when the Sixth Amendment was being debated, the Federal Judiciary Act of 1789 to which the court referred in Williams was pending before Congress. That bill, enacted the day before Congress voted to send the Bill of Rights (including the Sixth Amendment) to the states for ratification, established judicial districts for each federal trial court. Those districts coincided with the boundaries of the individual states except those of Massachusetts and Virginia, each of which was divided into two districts. The additional districts were to become thе states of Maine and Kentucky. At that time the vicinage from which juries were drawn in the states also encompassed the entire state. This was consistent with English practice which, at the time, no longer required that jurors come from the location of the alleged crime. Professor Blume explains: “From a period in which jurors were required, or at least presumed, to know the facts of their own knowledge, we move step by step
The failure of Congress to specify that all criminal trials must be held at the loсation of the crime in the Judiciary Act of 1789 ((Sept. 24, 1789) 1 Stat. 73) is particularly persuasive. The provisions of that act presumably reflect the best contemporaneous understanding of what the constitutional vicinage clause demanded (see Ruthenberg v. United States (1918)
That section included the following footnote: “The Circuit Courts of the United States are bound to try all crimes committed within the district,
Contemporary understanding of the Sixth Amendment vicinage provision thus does not support a conclusion that the jury summoned in a federal court to try a criminal case must be made up of residents of the location of the crime or that the area from which jurors are summoned must include that location.
Even were we to assume that the vicinage clause contemplated trial in the neighborhood of the crime, however, the question would remain as to whether the vicinage clause was incorporated and made applicable to the states through the Fourteenth Amendment incorporation of the Sixth Amendment right to trial by jury. To resolve the incorporation question, we look to whether Congress and the states that ratified the Fourteenth Amendment expressed an intent that the vicinage clause, then applicable only in federal criminal trials, apply to the states or, if not, whether the right must be deemed so fundamental and necessary to the purpose of jury trial that such intent must be presumed.
The first inquiry is readily answered. Nothing in the history of the Fourteenth Amendment identified by the parties or discovered in our own research suggests to us that in making the right to jury trial applicable to the states, there was an intent to include the vicinage clause of the Sixth Amendment.
Absent an express intent on the part of Congress and the ratifying states to make the vicinage clause applicable to the states, Duncan and Williams counsel that we look to whether this feature of the right to jury trial is so essential to the purpose of preserving the right to jury trial in the Sixth Amendment as to support an inference that this intent existed. Duncan, supra, 391 U.S. at pages 148-149 [88 S.Ct. at pages 1446-1448], teaches that a Sixth Amendment right is protected against state infringement by the Fourteenth Amendment if the right is fundamental to the American system of justice or essential to a fair trial. Duncan reasoned that the right to trial by jury was considered essential to give a criminal defendant “an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge.” (Id. at p. 156 [
We reach the same conclusion as to the right of trial by a jury of the vicinage, regardless of whether the jury is drawn from the county in which the offense was committed or from the neighborhood in which it was committed. Vicinage is not a right that is fundamental and essential to the purpose of the constitutional right to jury trial, the test for incorporation
Because a vicinage guarantee does not serve the purpose of protecting a criminal defendant from government oppression and is not necessary to ensure a fair trial, it is not an essential feature of the right to jury trial. For that reason we conclude that the vicinage clause of the Sixth Amendment is not applicable to the states through the Fourteenth Amendment.
Other jurisdictions also have concluded that the vicinage requirement does not apply to the states. In State v. Bowman (Me. 1999)
In Commonwealth v. Duteau (1981)
In Bath v. State (Tex.App. 1997)
Two panels of the Fifth Circuit Court of Appeals have addressed the incorporation question and held that the vicinage provision of the Sixth Amendment does not apply to the states. In the first of those cases, Martin v. Beto (5th Cir. 1968)
The Third Circuit Court of Appeals undertook a more extensive examination of the history of the Sixth Amendment vicinage requirement in Zicarelli v. Gray (3d Cir. 1976)
A panel of the Third Circuit revisited another Sixth Amendment incorporation question in Zicarelli v. Dietz (3d Cir. 1980)
“The determination whether a right covered by the Fifth and Sixth Amendments with respect to federal criminal proceedings is also protected against state action by the Fourteenth Amendment has been said to depend on whether the right is among those ‘fundamental principles of liberty and justice which lie at the base of all our civil and political institutions,’ [citations]; whether it is ‘basic in our system of jurisprudence,’ [citation]; and whether it is ‘a fundamental right, essential to a fair trial.’ [Citations.]
“The right to jury trial in the Sixth Amendment was incorporated within the concept of due process and hence applicable to the states in serious
Applying those tests, the court attempted to ascertain the purpose of the “previously ascertained by law” requirement, concluding that it was intended as a check on the ability of Congress to alter judicial districts in order to affect a criminal offense after its commission. (Zicarelli v. Dietz, supra,
In Caudill v. Scott (6th Cir. 1988)
In Mareska v. State (Ind.Ct.App. 1989)
Petitioner also relies on decisions recognizing the interest of the community in which the charged crime was committed as a basis for requiring trial in that location. (See U.S. v. Dubon-Otero (D.P.R. 1999)
We thus find nothing in the decisions construing the vicinage provision of the Sixth Amendment that mandates invalidation of section 784.7 on the ground urged by petitioner. Because the history of the Fourteenth Amendment does not indicate an intent to incorporate the vicinage clause of the Sixth Amendment, and vicinage today is not a fundamental aspect of the right to jury trial necessary to ensure a fair trial, we conclude that the vicinage clause is not applicable in a state criminal trial.
Article I, section 30, subdivision (a) of the California Constitution (article I, section 30(a)) provides: “This Constitution shall not be construed by the courts to prohibit the joining of criminal cases as prescribed by the Legislature or by the people through the initiative process.”
Because section 784.7 may result in joinder or consolidation for trial certain sexual or child abuse offenses committed in different counties, we invited the parties to submit briefs on the impact, if any, of article I, section 30(a) on the court’s authority to consider petitioner’s claim that trial of the Santa Clara County charge in Riverside County denies him the vicinage right implied in article I, section 16.
Article I, section 30(a) was adopted by initiative in 1990 as part of Proposition 115, along with section 954.1. Petitioner suggests that article I, section 30(a) may have been intended only to limit the holding of Williams v. Superior Court (1984)
The People argue that article I, section 30(a) prevents the court from construing article I, section 16 in a manner that prevents joining of cases prescribed by the Legislature. The People contend that an interpretation of article I, section 16 that would prohibit the Legislature from redefining the applicable judicial district for the offenses enumerated in section 784.7 to include more than one county for both venue and vicinage purposes is barred by article I, section 30(a).
We conclude that we need not resolve these conflicting views of article I, section 30(a), in this proceeding. As we shall explain, we have concluded
3. Vicinage rights under article I, section 16.
Article I, section 16, a successor to article I, section 7 of the Constitution of 1849, a provision of the Declaration of Rights, now provides in pertinent part: “Trial by jury is an inviolate right and shall be secured to all, but in a civil case three-fourths of the jury may render a verdict. ... HQ ... HD In criminal actions in which a felony is charged, the jury shall consist of 12 persons. In сriminal actions in which a misdemeanor is charged, the jury shall consist of 12 persons or a lesser number agreed on by the parties in open court.” The jury trial right thereby preserved is the right that existed at common law when the California Constitution was adopted in 1849. (Dorsey v. Barba (1952)
However, “[t]he constitutional guarantee does not require adherence to the letter of common law practice, and new procedures better suited to the efficient administration of justice may be substituted if there is no impairment of the substantial features of a jury trial. (People v. Hickman,
We reject at the outset petitioner’s claim that there is not a sufficient nexus between the Santa Clara County offense and Riverside County to support trial in the latter county. Petitioner assumes that some element of the crime or preparation must occur in the county of trial, but that is not the rule. Section 784.7 creates a multicounty venue for trial of offenses involving sexual or child abuse by the same defendant against the same victim. It is sufficient that the crime with which petitioner is charged in Riverside County is an offense related in that way to the Santa Clara County offense. The continuing pattern of abuse of the same victim constitutes a sufficient nexus to justify the legislative decision to permit trial of all offenses in a single county.
Subsequently, in People v. Martin (1922)
Shortly thereafter the Court of Appeal upheld former section 787 against a vicinage claim. (Richardson, supra,
The Richardson court also reasoned that People v. Prather, supra,
The power of the Legislature to fix the place of trial of a criminal offense in a county other than the county of commission is reflected in several statutes, some of which (or their predecessors) were already in place at the time the Constitution of 1879 was adopted. (See, e.g., § 777a [charge of failure to provide triable in county in which child cared for or where parent apprehended]; § 777b [perjury outside state triable in county where matter regarding which it relates occurred]; § 778 [enacted 1872—offense consummated in state triable where consummated]; § 781 [enacted 1872—offense committed or consummated in more than one county triable in either]; § 782 [enacted 1872—offense on or within 500 yards of county boundary triable in either]; § 783 [enacted 1872—in-state offenses on vehicles, vessels, trains, etc. triable in any county through which carrier passes or trip terminates]; § 783.5 [offense in multicounty park triable in any county in which park lies]; § 784 [enacted 1872—kidnapping triable in county where committed, out of which person taken, or wherе preparatory acts occurred]; § 784.5 [child abduction triable in county where victim resides or agency with custody located or to which child taken, or where child found]; § 785 [enacted 1872—incest and bigamy triable in county where offense occurs or defendant apprehended]; § 786 [enacted 1872—burglary, robbery, theft, embezzlement, receipt of stolen property triable in county where property taken or in county to which taken]; § 788 [enacted 1872—treason where overt act committed out of state triable in any county]; § 789 [enacted 1872—out-of-state theft or receipt of stolen goods triable in any county to which property brought]; and § 790 [murder/manslaughter triable in county where injury inflicted or where victim dies, or where body found].)
Nothing in the history of the California Constitution suggests that the drafters or the electorate intended to restrict the power of the Legislature reflected in those vicinage statutes already in effect in 1879, to designate the vicinage or place of trial of criminal offenses. That legislative power has been recognized repeatedly. (Jackson v. Superior Court (1970)
The venue authorized by section 784.7 is not arbitrary. It is reasonable for the Legislature to conclude that this pattern of conduct is akin to a continuing offense and to conclude that the victim and other witnesses should not be burdened with having to testify in multiple trials in different counties.
We conclude that, insofar as article I, section 16, applies, Penal Code section 784.7 is constitutionally valid and does not violate petitioner’s right to trial by a jury of the vicinage. Trial in Riverside County will be a trial before a jury drawn from the vicinage as that right was understood and intended when article I, section 16 was adopted.
That does not end our inquiry, however. Although this is a facial challenge to section 784.7, we must determine if the vicinage right implied in article I, section 16, like the Sixth Amendment, restricts trial of criminal offenses to venues that have been “previously ascertained by law” and, if so, whether that restriction requires that the vicinage be determined before commission of the offense or is satisfied by a venue statute that becomes operative before trial. We must do so because the petitioner’s offenses were committed before section 784.7 became law, a fact of which we have taken judicial notice. The parties have briefed the question at our request and there is no need to take evidence or hold further hearings to determine whether this prosecution may proceed in Riverside County.
Petitioner argues that since the vicinage right implied in article I, section 16 is at least as broad as that guaranteed by the Sixth Amendment, it necessarily includes the “previously ascertained by law” requirement. Relying on Zicarelli v. Dietz, supra,
We .need not resolve these conflicting views, however, as we agree with the People that the vicinage right implied in article I, section 16, is not the Sixth Amendment right. It is the common law right that existed in 1850. The common law did not include a requirement comparable to the “previously ascertained by law” requirement of the Sixth Amendment vicinage clause.
Although the Sixth Amendment, ratified in 1791, was in force when the right to trial by jury was placed in the Declaration of Rights of the California Constitution of 1849, nothing in our examination of the history of article I, section 16, and survey of the vicinage provisions of the constitutions of other states suggests that the delegates to the California Constitutional Conventions in 1849 or 1879 intended to replicate the Sixth Amendment jury trial provision.
Article I, section 16, was added to the Constitution on November 4, 1974, but is derived from former section 7 of article I, which derived in turn from article I, section 3 of the Constitution of 1849. The 1849 provision provided: “The right of trial by jury shall be secured to all, аnd remain inviolate forever, but a jury trial may be waived by the parties, in all civil cases, in the manner prescribed by law.” That language does not track the wording of the jury trial provision of the Sixth Amendment, which provides only that in criminal prosecutions the accused has the “right to . . . 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 . . . .”
In Koppikus v. State Capitol Commissioners (1860)
The same is true of the court’s opinion in Powell, supra, 87 Cal.348, in which vicinage was in issue. There we looked to Blackstone, not the Sixth Amendment, for a description of the common law right incorporated into the jury trial provision of the 1879 Constitution. Quoting Koppikus, the court repeated the observation that the language used in the Constitution had a well-defined meaning and was used with reference to the common law right to jury trial. (Powell, at p. 356.) Some of the cases on which the court relied do mention the Sixth Amendment as a model for the state vicinage provision, but most of those state constitutions had not adopted the “previously ascertained by law” requirement. (See Kirk v. State (1860)
Wheeler v. State (1869)
There is no pattern in state constitutional vicinage clauses adopted before or at the time either the 1849 or 1879 Constitution was adopted to suggest that the delegates intended to replicate the Sixth Amendment or its requirement that the vicinage be previously ascertained by law. The Wisconsin and Minnesota Constitutions include that requirement (Wis. Const., art. I, § 7; Minn. Const., art. I, § 6), and the more recent Hawaii Constitution has the
That being so, there is no state constitutional impediment to application of section 784.7 to petitioner.
Ill
Disposition
The judgment of the Court of Appeal is affirmed.
George, C. J., Kennard, J., and Chin, J., concurred.
I agree with my colleagues in the majority that Penal Code section 784.7 authorizes consolidation of the Santa Clara County charge against petitioner with the Riverside County charges against him. (Maj. opn., ante, at p. 1054.) I also agree that the vicinage clause of the Sixth Amendment to the United States Constitution is not applicable to the states through the Fourteenth Amendment (id. at p. 1066) and that, “under the relevant California precedent, the right to a trial by a jury of the vicinage, as guaranteed by the California Constitution, is not violated by trial in a county having a reasonable relationship to the offense or to other crimes committed by the defendant against the same victim” (id. at p. 1075).
I do not necessarily agree, however, with certain aspects of the majority’s lengthy discussion that are unnecessary to the resolution of this matter. The majority opinion expounds at length, for example, on the Sixth Amendment’s “definition of the vicinage or district” (maj. opn., ante, at p. 1061; see also id. at pp. 1061-1063), only to conclude that, whatever the vicinage clause means, it simply “is not applicable to the states” (id. at p. 1065). The majority opinion also engages in unnecessary discourse on the merits and current utility of a vicinage requirement, gratuitously implying that vicinage concerns have become obsolete.
For the foregoing reasons, I concur in the judgment.
Notes
All statutory references are to the Penal Code unless otherwise stated.
Real party in interest, the People, elected to have the “Response to Petition for Writ of Prohibition/Mandate,” filed May 28, 1999, together with a July 22, 1999, addendum and supplemental points and authorities, treated as the return to the order to show cause.
Both petitioner and the People ask that the court take judicial notice of the records and files of the Riverside County and Santa Clara County files now consolidated as Riverside County case No. RIF080161, and a May 6, 1998 opinion of the Legislative Counsel related to Assembly Bill No. 2734 (1997-1998 Reg. Sess.). The request is granted.
The fourth amended complaint under which petitioner is now charged was filed to remove Julia Ellen Price as a named defendant in count 5 to which her name had been erroneously added and to correct an erroneous allegation that count 5 occurred in Riverside County. All proceedings in the superior court, including the preliminary hearing, have been stayed.
The reasoning of the Court of Appeal closely .tracks, that of an opinion on the constitutionality of Assembly Bill No. 2734 (1997-1998 Reg. Sess.), provided to its author, Assemblyman Pacheco, by the Legislative Counsel’s Office (Assembly Bill 2734) on May 6, 1998.
The Court of Appeal did not, as petitioner asserts, hold that the Sixth Amendment vicinage right is only a right to trial within North America. It simply noted that “it has been commented that for the colonists, the only crucial function of a vicinage requirement was that it secure the right to trial in North America. (See Blume, The Place of Trial in Criminal Cases: Constitutional Vicinage and Venue (1944) 43 Mich. L.Rev. 59, 64.)”
Section 1036.7 permits selection of a jury in a county to which trial might have been moved on a change of venue, and moving that jury to the county in which the criminal charges are pending.
Professor LaFave questions the assumption that the vicinage clause of the Sixth Amendment applies to the states. “While Duncan v. Louisiana is frequently described as having incorporated the Sixth Amendment’s jury clause, what it actually incorporated was the right to jury trial recognized in the Sixth Amendment .... [10 Neither Duncan nor subsequent Supreme Court cases applying the jury trial right to the states have spoken to the incorporation of the Sixth Amendment’s vicinage provision. In reviewing the history of the Sixth Amendment’s jury clause in Williams v. Florida the Court did note that, in contrast to other features of the common law jury that were included in the first draft of the Sixth Amendment but were deleted from the final version, the subject of vicinage remained in the Amendment as adоpted (although the final version effected a ‘compromise’ by giving Congress ‘the power to determine the actual size of the vicinage.)’ Williams thereby suggested that the vicinage requirement had greater significance than those other features (e.g., jury unanimity), which the Court held not to be a part of the Sixth Amendment right to jury trial. It does not necessarily follow, however, that the Sixth Amendment’s vicinage requirements are so essential to the purpose of the jury trial as to meet the ordered liberty standard as interpreted in Duncan. Certainly the historical record does not point in that direction.” (1 LaFave et al, Criminal Procedure, supra, § 2.6(b), pp. 565-566, fns. omitted (LaFave).)
Petitioner also invokes stare decisis principles in support of his argument that we should not reconsider the assumption in Hernandez and Jones that the vicinage clause of the Sixth Amendment applies to the states. The doctrine of stare decisis is flexible, however. It does not preclude correction of court-created error. (People v. Latimer (1993)
The colonial practice of transporting colonists to England for trial was one of the explicit grievances referred to in the Declaration of Independence. In a bill of particulars against the King of England, the Declaration accuses the King of “transporting us beyond seas to be tried for pretended offenses . . . .” Even earlier, the First Continental Congress declared, in the October 14, 1774, Declaration of Rights N.C.D 5: “That the respective colonies are entitled to the common law of England, and more especially to the great and inestimable privilege of being tried by their peers of the vicinage, according to the course of that law.” (See 1 Schwartz, The Bill of Rights: A Documentary History (1971) p. 217; Perry, Sources of Our Liberties (1959) 270.) (See also Duncan, supra,
One constitutional scholar suggests that an oral report to Congress by Senator Howard introducing the proposed Fourteenth Amendment reflects an intent to incorporate and make applicable to the states the right to trial by a jury of the vicinage. Professor Chester Antieau states: “Clearly, the Congressional proponents of the Fourteenth Amendment intended that it would make the Sixth Amendment jury trial in criminal cases binding upon the States. Senator Jacob M. Howard of Michigan, who introduced the Amendment in the Senate, informed his colleagues and the people that among the rights made binding upon the States, would be the ‘right of an accused person ... to be tried by an impartial jury of the vicinage.’ ” (Antieaú, The Intended Significance of the Fourteenth Amendment (1997) pp. 141-142.)
As Raoul Berger, also a constitutional scholar, points out however, Senator Howard’s introduction of the Fourteenth Amendment was occasioned hurriedly because of the sudden illness of the chairman of the drafting committee, and subsequent speakers did not have the same understanding of the purpose of the Fourteenth Amendment as that expressed by Senator Howard. Berger concludes, based on the circumstances in which Senator Howard’s remarks were made and the strongly expressed views of other members of Congress, that Cоngress did not intend to interfere with state autonomy in this manner. (Berger, Government by Judiciary, The Transformation of the Fourteenth Amendment, supra, at pp. 151-174, 182-186.)
In a concurring and dissenting opinion, the third member of the panel expressed the view that excluding all residents of the area in which the offense occurred violated the fair cross-section requirements of the Sixth and Fourteenth Amendments because there were substantial differences between residents of different geographic areas, with the result that the venire was not reasonably representative of the community. (Zicarelli v. Gray, supra, 543 F.2d at pp. 488-489 (conc. & dis. opn. of Hunter, J.).)
See, however, Engel, The Public’s Vicinage Right in a Constitutional Argument (2000) 75 N.Y.U. L.Rev. 1658, in which the author argues that a constitutional basis for recognizing such a right is implicit in the vicinage requirement which presumes that a jury from the community in which a crime is committed will try the defendant. Even while arguing that the community has a constitutional right to try persons charged with crimes allegedly committed there, however, Engel concedes that the vicinage right guaranteed by the Sixth Amendment is simply a right to trial in a district defined in advance by the state legislature. (Engel, at p. 1709.)
To the extent that this court’s prior decisions in People v. Jones, supra, 9 Cal.3d 546, Hernandez v. Municipal Court, supra,
See, e.g., majority opinion, ante, at page 1065 (opining that “trial in the locality in which a crime was committed,” although once important, is no longer so and stating the “geographic location from which the jury is selected has no bearing on how the jury selection is
Concurrence Opinion
I concur with the holding that Penal Code section 784.7 (section 784.7) comports with state and federal constitutional requirements. I agree that the Sixth Amendment’s vicinage provision does not apply to the states through the Fourteenth Amendment, and that the statute does not violate the state Constitution, specifically California Constitution, article I, section 16.1 write to explain further why I believe section 784.7 is valid under the state Constitution.
Although the California Constitution contains no specific reference to a right of vicinage, case law has interpreted article I, section 16, which gives defendants the right to a jury trial, as including by implication the right to trial by a jury selected from the vicinage or county. (E.g., People v. Hill (1992)
Section 784.7 provides that when a defendant is charged with more than one of certain crimes, generally sexual assault, child abuse, and domestic violence, committed against the same victim in more than one county, all of the charges may be tried together in any one of those counties. Thus, in this case, the charges that defendant committed numerous crimes against his two young children may be tried together in Riverside County, rather than some in Riverside County and one, involving his daughter, in Santa Clara County. Section 784.7 does not dispense with vicinage requirements; trial must still be held in a county where at least one of the charged crimes occurred. Thus, the issue before us is narrow: whether all of the crimes involving the same victim and defendant may be tried together where at least one of those
Circumstances have changed in California dramatically since 1849 as they relate to the question where a trial may and should be held. Much has happened in the century and a half since our Constitution was adopted. Improvements in transportation and communication have made the joint trial of related crimes that cross county lines much easier than formerly. The railroad has been developed, the automobile and airplane have been invented and are widely used, and roads are vastly improved. The telephone has been invented and has come into common use; we are now in the age of the Internet. Our Constitution is flexible enough to adapt to these changes. It does not force us, at the dawn of the 21st century, to remain in the 19th century. The Legislature may enact reasonable reforms to take advantage of the fact that a joint trial is now more practical, while still preserving the substance of a jury trial.
The Legislature has responded to modern times by reducing the unavoidable burden of multiple trials on the judicial system, the public, the parties, and, above all, on victims like the six-year-old daughter here. Victims of crime, including children, and victims of domestic violence, must appear in court to confront the defendant and be subjected to cross-examination, even though that experience is often difficult and traumatic. (See, e.g., Alvarado v. Superior Court (2000)
The legal climate has also changed as it relates to the right of vicinage. As the Court of Appeal below noted, “the original purpose of the vicinage requirement was to ensure that a case was heard by jurors who were familiar with the parties and the locality, and could apply their own personal knowledge in evaluating the testimony or other evidence. Nowadays, of course, the goal is to avoid a jury with such knowledge in favor of a set of 12 tabulae rasae in the jury box, applying only their common sense and intuition.” (See Hernandez v. Municipal Court (1989)
As the majority points out, a single crime involving multiple counties has long been triable in any county in which part of that crime occurred. For example, a murder charge may be tried in the county where the fatal injury was inflicted, or the victim died, or the body was found. (Pen. Code, § 790.) Obviously, if a homicide case is tried where the body was found but not where the victim was killed, the trial would not be in the vicinage of all the criminal events. It is but a small step, and a logical one, to go from allowing a single crime that crosses county lines to be tried in any of those counties to allowing a series of related crimes committed in multiple counties—such as those involving the same defendant and victim—also to be tried in one of those counties.
Accordingly, I conclude that section 784.7 is constitutional. Because this case involves only the validity of that single statute, I express no view on the outer limits of the Legislature’s authority to permit crimes committed in separate counties to be tried together. Section 784.7 comes within those limits whatever they may be.
Brown, J., concurred.