People v. Bismillah

• Decision Date: 28 February 1989
• Docket Number: No. A042895,A042895
• Citation: 208 Cal.App.3d 80,256 Cal.Rptr. 25
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Appellant, v. Uakbar Sharrieff BISMILLAH, Defendant and Respondent.

Page 25

256 Cal.Rptr. 25

208 Cal.App.3d 80

The PEOPLE, Plaintiff and Appellant, v. Uakbar Sharrieff BISMILLAH, Defendant and Respondent.

No. A042895.

Court of Appeal, First District, Division 4, California.

Feb. 28, 1989.

Review Denied May 18, 1989.

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., John H. Sugiyama, Sr. Asst. Atty. Gen., Aileen Bunney, David D. Salmon, Supervising Deputy Attys. Gen., San Francisco, for plaintiff and appellant.

Harvey E. Goldfine, San Francisco, for defendant and respondent.

ANDERSON, Presiding Justice.

On December 18, 1987, the San Francisco District Attorney charged defendant and respondent Uakbar Sharrieff Bismillah with (1) four counts of assault with a deadly weapon (a vehicle) upon a peace officer (PEN.CODE, § 245¹, subd. (b)); (2) one count of driving under the influence of an alcoholic beverage and causing bodily injury (Veh.Code, § 23153, subd. (a)), with special allegations pursuant to Vehicle Code sections 23182 and 23185, respectively, of injuring more than one victim and having three prior convictions for driving while under the influence; (3) one count of causing injury by fleeing from a peace officer while operating a vehicle (former Veh.Code, § 2800.2); ² and (4) one count of battery on a peace officer ( § 243, subd. (b)). The information stated defendant committed all offenses within the City and County of San Francisco, and further alleged prior service of a prison term for attempted arson ( § 667.5, subd. (b)).

Pursuant to section 995, defendant moved to dismiss the four aggravated assault counts on the ground that the magistrate committed him illegally because the San Francisco Superior Court lacked territorial jurisdiction over the charges. He further claimed that San Francisco venue would deprive defendant of his Sixth Amendment right to trial by jury drawn from the vicinage wherein the offenses purportedly occurred. The trial court granted the motion and the People appeal from the dismissal which followed. We reverse.

I. FACTS

On the evening of July 9, 1987, San Francisco Police Officer McCann was on motorcycle patrol near Broadway and Columbus in San Francisco. He observed defendant make an illegal left-hand turn while driving a brown Chrysler. McCann pulled defendant over at Columbus and Grant, and requested his driver's license. Defendant said he had misplaced his license and produced, instead, a versatel card and the car registration. McCann smelled a strong odor of an alcoholic beverage on defendant's breath and observed his eyes were bloodshot.

Upon radioing headquarters of the stop, McCann learned that defendant's license was suspended and revoked. McCann then informed defendant he intended to administer a field coordination test, whereupon defendant ran to the rear of his car, reentered, and tried to start up, ignoring the officer's demands to halt. McCann then attempted to seize the key, but defendant hit him in the arm several times and forced him out of the car.

Defendant then made a U-turn, proceeded through a red light and made another illegal left-hand turn in front of four lanes of oncoming traffic, ultimately fleeing eastbound on Broadway. McCann broadcast an emergency situation and indicated defendant might be heading across the San Francisco-Oakland Bay Bridge.

Based on his training and experience, and taking into account defendant's bloodshot eyes, his breath and his driving, McCann believed defendant was "possibly under the influence."

San Francisco Police Officer Cima, also on motorcycle patrol, heard the broadcast and headed for the bridge. He spotted the brown Chrysler on the Oakland side of the bridge and began tailing it. Defendant sped up some 10 [208 Cal.App.3d 84] to 15 miles per hour and began changing lanes when Cima activated his lights and siren.

Meanwhile, San Francisco Police Officers Pardini and Smith also heard the radio report and proceeded to the bridge. When they first observed the defendant, he was travelling with the flow of traffic, and Cima was directly behind the Chrysler. Pardini positioned his patrol car behind the Chrysler and activated his light and siren. Defendant accelerated to around 75 miles per hour and began weaving in and out of lanes without signalling, narrowly avoiding collisions with numerous vehicles over five lanes of traffic.

Pardini and Smith pursued defendant to the Powell Street offramp in Emeryville. While on the offramp, Pardini passed defendant on the left and maneuvered the patrol car in front of the Chrysler in order to prevent defendant from going through the intersections beyond the ramp and potentially striking another vehicle. Defendant moved toward the left of the patrol car; Pardini accelerated and recentered so that defendant could not pass, and then slowed down. At that point defendant sped up and rear-ended the patrol car, moving it forward with enough force to rock the officers back and forth in their seats. After creating a second gap between the cars, Pardini began slowing again to force defendant to stop. Instead, defendant again sped up and rear-ended the patrol car a second time. After that, both cars came to a stop.

The officers approached the Chrysler and ordered defendant to exit. He refused, and they forcefully removed him, placed him under arrest and drove him back to San Francisco.

Pardini testified he also smelled a strong odor of an alcoholic beverage on defendant's breath and noticed his eyes were red and watery. He commented that defendant jumped from topic to topic and "was very incoherent in his statements." Pardini concluded defendant was under the influence.

As a result of the collisions, Smith suffered a whiplash and missed 10-12 days of work; Pardini was out of work for 8 days, suffering from lower back strain. Both received hospital treatment for their injuries.

II. DISCUSSION

The People challenge the trial court's dismissal of the aggravated assault counts, arguing that San Francisco Superior Court has territorial jurisdiction over all counts pursuant to sections 781 and 783. ³ They further propose that defendant's right to a trial before a jury from the "vicinage" would be protected by drawing a venire from both San Francisco and Alameda Counties.

A. Territorial Jurisdiction

Section 777 states the basic rule of local jurisdiction: "except as otherwise provided by law the jurisdiction of every public offense is in any competent court within the jurisdictional territory of which it is committed." With respect to felonies triable in superior court, the "jurisdictional territory" is the county. ( § 691; Adams v. Superior Court (1972) 27 Cal.App.3d 719, 722, fn. 2, 104 Cal.Rptr. 144.)

Section 781 constitutes an exception to the rule when acts or effects of an offense occur in multiple counties. ⁴ Section 781 is remedial and, thus, we construe the statute liberally to achieve its purpose of expanding criminal jurisdiction beyond rigid common law limits. (People v. Powell (1967) 67 Cal.2d 32, 63, 59 Cal.Rptr. 817, 429 P.2d 137; People v. Williams (1973) 36 Cal.App.3d 262, 268, 111 Cal.Rptr. 378.) We therefore interpret section 781 in a common sense manner with proper regard for the facts and circumstances of the case rather than technical niceties. (Ibid.)

Courts have construed the phrase "requisite to the consummation of the offense" to mean requisite to achieving the offender's unlawful purpose. (See People v. Hernandez (1976) 63 Cal.App.3d 393, 403, 133 Cal.Rptr. 745.) Pursuant to this interpretation, venue is proper in a county where only preliminary arrangements or acts leading to commission of the crime occur, even though such acts are not essential elements of the charged offense. (Ibid.; People v. Tolbert (1986) 176 Cal.App.3d 685, 691, 222 Cal.Rptr. 313.)

As an example, in Hernandez, the court of appeal concluded Fresno County was vested with territorial jurisdiction to try defendant on a robbery charge where defendant and his companions kidnapped the victim in Fresno County and raped and robbed her in Madera County. As the young men started to drive off, someone observed the victim take a piece of paper from her purse and write down the license number of defendant's car. On the mistaken belief that she put the paper back in her purse, the men chased after the victim and seized her purse. In holding that Fresno County had jurisdiction over the robbery, the court reasoned that the purpose of the robbery was to thwart discovery of defendant's involvement in the earlier crimes of kidnapping and rape. As such, the robbery was necessary to successful completion of those offenses without detection by law enforcement officials. (Hernandez, supra, 63 Cal.App.3d at p. 403, 133 Cal.Rptr. 745.) All three crimes occurred consecutively over a comparatively brief time frame, and were aimed at successful consummation of a common purpose. (Ibid.)

Likewise, in the case of People v. Chapman, the court determined that venue was appropriate in a Santa Barbara County court for prosecution of the crime of taking an automobile without consent with intent to deprive the owner of its title or possession; the preliminary act of taking the automobile occurred in Santa Barbara where defendant rented the car in question, even though the intent may have arisen in another county. (People v. Chapman (1977) 72 Cal.App.3d 6, 11, 139 Cal.Rptr. 808.) And in People v. Powell, the Supreme Court confronted a jurisdictional challenge to a kidnapping-murder case occurring in Los Angeles and Kern Counties. Defendant Powell was fleeing the scene of an armed robbery when two police officers stopped him in Los Angeles County. Powell and his companion kidnapped the officers, then transported them to Kern County. While en route they learned the officers had stopped the car for lack of license plate illumination. Apparently, defendant originally intended to release the officers, but ended up murdering one in a remote area of Kern County; the...