People v. Posey

• Decision Date: 22 January 2004
• Docket Number: No. S100360.,S100360.
• Citation: 32 Cal.4th 193,82 P.3d 755,8 Cal.Rptr.3d 551
• Court: California Supreme Court
• Parties: The PEOPLE, Plaintiff and Respondent, v. Christopher Francisco POSEY, Defendant and Appellant.

8 Cal.Rptr.3d 551

82 P.3d 755

32 Cal.4th 193

The PEOPLE, Plaintiff and Respondent, v. Christopher Francisco POSEY, Defendant and Appellant.

No. S100360.

Supreme Court of California.

January 22, 2004.

Certiorari Denied June 14, 2004.

Randi Covin, under appointment by the Supreme Court, Rohnert Park, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Ronald A. Bass, Assistant Attorney General, Rene A. Chacon and Jeremy Friedlander, Deputy Attorneys General, for Plaintiff and Respondent.

Certiorari Denied June 14, 2004. See 124 S.Ct. 2848.

GEORGE, C.J.

We granted review in this case to resolve an issue concerning venue that we noted but did not resolve in People v. Simon (2001) 25 Cal.4th 1082, 1110, footnote 18, 108 Cal.Rptr.2d 385, 25 P.3d 598, relating to the soundness and continuing vitality of the rule, set forth in a line of California judicial decisions, that declares the issue whether a criminal action has been brought in a place appropriate for trial to be a question of fact to be decided by the jury at the conclusion of trial rather than a question of law to be decided by the court prior to trial.

Penal Code section 777¹ states the general rule for venue in criminal actions: "[E]xcept 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." In other words, under section 777 venue lies in the superior court of the county in which the crime was committed, and a defendant may be tried there. (See generally 4 Witkin & Epstein, Cal.Criminal Law (3d ed. 2000) Jurisdiction and Venue, § 50, pp. 139-141; see also id., §§ 13-18, pp. 101-108 [discussing the effect of trial court unification]; id. (2003 supp.) §§ 13, 14, 16, 18, pp. 18-19 [same].)

Section 781 — the provision involved in this case — states one of the many exceptions to the general rule for venue: "When a public offense is committed in part in one jurisdictional territory and in part in another, or the acts or effects thereof constituting or requisite to the consummation of the offense occur in two or more jurisdictional territories, the jurisdiction of such offense is in any competent court within either jurisdictional territory." Thus, under section 781, when a crime is committed partly in one county and partly in another county, or when the acts or effects constituting the crime or requisite to its commission occur in more than one county, venue is in the superior court in each of the counties in question, and a defendant may be tried in any of them. (See generally 4 Witkin & Epstein, Cal.Criminal Law, supra, Jurisdiction and Venue, §§ 51-53, pp. 141-145; id. (2003 supp.) §§ 52-53, pp. 23-24.)

In Simon, we concluded that "pursuant to the general legal doctrine that a party may forfeit a right by failing to assert it in a timely fashion, a defendant ... forfeits a claim of improper venue when he or she fails specifically to raise such an objection prior to the commencement of trial." (People v. Simon, supra, 25 Cal.4th at p. 1086, 108 Cal.Rptr.2d 385, 25 P.3d 598.) But we also concluded that "in light of the confusion in the prior California case law, our holding with regard to the proper procedure for raising an objection to venue shall apply only prospectively," because our opinion announced a new rule as set out above. (Id. at p. 1087, 108 Cal.Rptr.2d 385, 25 P.3d 598.)

In Simon, we also noted, but did not resolve, the issue of the soundness and continuing vitality of the rule that venue presents a question of fact to be decided by the jury. Because in that case the defendant "failed at trial to provide an appropriate jury instruction or authority supporting the giving of such an instruction, we ha[d] no occasion to determine whether, in the absence of legislative action, it would be appropriate for this court to revisit the lengthy and uniform line of decisions" supporting that rule. (People v. Simon, supra, 25 Cal.4th at p. 1110, fn. 18, 108 Cal.Rptr.2d 385, 25 P.3d 598.)

In this case, by contrast, defendant timely raised the question of venue prior to trial and again at trial, and we conclude that it is appropriate for us to resolve the issue left open in Simon.

As we shall explain, we conclude that the rule that venue is a question of fact for the jury is unsound for a number of fundamental reasons. First, the rule impedes the purposes underlying the venue provisions, especially their "principal purpose ... from a defendant's perspective" of "protect[ing] a defendant from being required to stand trial in a distant and unduly burdensome locale" (People v. Simon, supra, 25 Cal.4th at p. 1110, fn. 18, 108 Cal.Rptr.2d 385, 25 P.3d 598), by putting off any finding on venue until after "the defendant [has been] required to undergo the rigors and hardship of standing trial in an assertedly improper locale," and after "the state [has] incur[red] the time and expense of conducting a trial" there (id. at p. 1087, 108 Cal.Rptr.2d 385, 25 P.3d 598). Second, the rule is "inconsistent with contemporary treatment of other, analogous ... issues," inasmuch as venue is a procedural question involving the appropriateness of a place for a defendant's trial on a criminal charge, and not a substantive question relating to the defendant's guilt or innocence of the crime charged. (Id. at p. 1110, fn. 18, 108 Cal.Rptr.2d 385, 25 P.3d 598.) Third, the rule threatens the untoward consequence of an "unwarranted acquittal" when the jury returns a verdict of not guilty predicated solely on lack of proper venue. (Ibid.)

In addition to concluding that the rule that venue is a question of fact for the jury is unsound, we also conclude that this rule properly may be reconsidered and modified by this court without awaiting action by the Legislature, because the rule was established by judicial decision and has not been incorporated in any statute. Accordingly, we hold, for the reasons stated above, that venue is a question of law for the court, to be decided prior to trial.

Finally, we conclude that because adherence to the prior rule that venue is a question of fact for the jury has been widespread and long standing, and because the proposed holding that venue is a question of law for the court announces a new rule, we should not apply that new rule to the present case or any other case not yet final on appeal.

The Court of Appeal in this matter, although noting the issue we left open in Simon respecting venue, rejected on other grounds all of defendant's claims of error implicating venue and determined that, contrary to defendant's argument, under section 781 Marin County — the county in which the case was tried — was an appropriate place for trial of the crimes with which defendant had been charged. As we shall explain, we conclude that the Court of Appeal correctly rejected all of defendant's claims related to venue, and therefore affirm the judgment of the Court of Appeal.

I

The District Attorney of Marin County charged defendant Christopher Francisco Posey in the Marin Superior Court with two counts of sale of cocaine base in violation of Health and Safety Code section 11352, subdivision (a), and alleged, for purposes of establishing venue under section 781, that defendant committed the crimes, or engaged in the requisite acts or caused the requisite effects, in two counties, implicitly Marin and San Francisco. Defendant pleaded not guilty to the sale-of-cocaine-base charges and denied the venue allegation.

Both prior to and during trial, defendant repeatedly but unsuccessfully objected to venue, claiming that Marin County was not an appropriate place for trial. At the trial itself, which was conducted before a jury, defendant presented his objection to venue as essentially his sole defense. Viewed in the light most favorable to the ensuing judgment, the evidence introduced at trial disclosed the following facts.

Detective Rudy Yamanoha of the Marin County Sheriff's Department received information that a woman known as "Nini," who apparently was a resident of San Francisco County, was selling cocaine in the area of Marin or was selling that substance to Marin residents. (Nini later was identified as Johnneka Hall, who originally had been defendant's codefendant, but had fled prior to trial.) Yamanoha, while in Marin, placed a telephone call to Nini, who was in San Francisco, and left on a paging system a telephone number that apparently had a 415 area code (which encompasses both Marin and San Francisco). Nini called back Yamanoha and soon agreed to sell him an ounce of cocaine base for $575. Although he in fact was in Marin, Yamanoha told Nini that he was in Santa Rosa, in Sonoma County, and asked her to meet him halfway at Vista Point on the Marin side of the Golden Gate Bridge, but she did not agree. Later that day, Yamanoha paged Nini again to make arrangements for delivery, this time apparently leaving a second telephone number with a 415 area code. Nini called back Yamanoha and had him speak to defendant, who persuaded Yamanoha to buy two ounces of cocaine base for $1,150, and then agreed to delivery at Vista Point in Marin. A minute or so later, however, defendant called Yamanoha at the second 415 area code telephone number, and changed the point of delivery from Vista Point in Marin to a location in San Francisco not far from the Golden Gate Bridge.² That evening, Yamanoha went to the location in question and, after some delay, bought a little less than two ounces of cocaine base from defendant for the full price of $1,150, with defendant promising to make up for the shortage on the next purchase. The transaction was surreptitiously videotaped by law enforcement officers.

Some days later, Detective Yamanoha, in Marin County, again paged Nini, who was in San Francisco County, and apparently left a telephone number with a 707 area code (which encompasses Sonoma County,...