People v. Sering

• Decision Date: 19 July 1991
• Docket Number: No. D012059,D012059
• Citation: 283 Cal.Rptr. 507,232 Cal.App.3d 677
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Richard Robert SERING, Defendant and Appellant.

Page 507

283 Cal.Rptr. 507

232 Cal.App.3d 677

The PEOPLE, Plaintiff and Respondent, v. Richard Robert SERING, Defendant and Appellant.

No. D012059.

Court of Appeal, Fourth District, Division 1, California.

July 19, 1991.

[232 Cal.App.3d 681] Jeffrey J. Stuetz, San Diego, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Harley D. Mayfield, Sr., Asst. Atty. Gen., Robert M. Foster, Supervising Deputy Atty. Gen. and Nancy L. Palmieri, Deputy Atty. Gen., for plaintiff and respondent.

FROEHLICH, Associate Justice.

A jury convicted Richard Robert Sering on two counts of robbery (PEN.CODE, § 211)¹ and one weapon use enhancement (§ 12022, subd. (a)). ² He received a total sentence of five years, less custody and time-served credits. Sering appeals, contending (1) the San Diego County Superior Court lacked territorial jurisdiction over the May 25 robbery because there was insufficient evidence to establish locus delicti in San Diego County, and (2) the trial court committed reversible error by not instructing the jury sua sponte on the general principles of locus delicti regarding the May 25 robbery.

FACTUAL AND PROCEDURAL BACKGROUND

During April and May 1989, a series of robberies occurred involving delivery-type pizza establishments (pizza robberies) in Northern San Diego County and Southern Orange County. Sering was charged with two of those robberies: a May 25, 1989 robbery in San Clemente (the Orange County robbery) and a May 31, 1989 robbery in Vista (the San Diego County robbery). Each of the counts carried a special allegation charging Sering with a weapons use enhancement under section 12022, subdivision (a). The prosecutor introduced eye-witness testimony positively identifying Sering as one of two men who committed both the Orange County and the San Diego County robberies. Sering was also linked to the entire series of pizza robberies through evidence of a common modus operandi.

Illustrative of the series of crimes was an attempted robbery of a Domino's Pizza in Oceanside, San Diego County, on April 14, 1989. The robbers, a black man and a caucasian man, were armed with handguns and wore red bandannas. Shots were fired during the robbery. Police recovered two .25 caliber rounds of ammunition: one spent casing and one live round. A few days later, Sering (who was detained and searched pursuant to an unrelated complaint) was found in possession of a loaded .25 caliber handgun. This gun was shown to have fired the bullet the spent casing for which was found at the scene of the April 14 attempted robbery. Moreover, the gun matched the description of a gun used in other pizza robberies.

The modus operandi of the Orange County robbery, with which Sering was charged, matched that of the other robberies in many respects. It involved two armed men, the leader being a black male and the accomplice a caucasian male. The robbers wore red bandannas. The robbery was committed against a Domino's Pizza establishment during the time frame associated with the other robberies (i.e., at about 11:20 p.m.). Also in common with the other robberies, the employees were directed toward the rear of the store into a cooler; the money was placed in a grocery bag; and the accomplice (identified as Sering) had removed his mask and served as a lookout by posing as a customer holding a pizza box.

On May 31 between 10 and 11 p.m., a Domino's Pizza was robbed in San Marcos, using a similar modus operandi. A white or tan Ford Escort was seen carrying the robbers. The description of the Ford Escort matched the description of Sering's car. Sering was not charged with this robbery.

However, approximately one hour later another Domino's Pizza, located in the adjacent city of Vista, was robbed using a similar modus operandi (i.e., one black and one caucasian man, both wearing red bandanna masks, and one armed with a revolver, placed employees into cooler, etc.). Sering was identified as one of the two robbers and charged with and found guilty of this offense.

Because Sering's car was linked to one of the pizza robberies and Sering had been identified from a photo lineup as one of the robbers involved in the May 31 Vista crime, the task force conducted a surveillance of Sering's car and the apartment building in Oceanside where he lived. Sering was observed associating in the Oceanside area with Anthony Wilson, a person identified as the black male who had participated in some of the pizza robberies. An officer who watched the pair for two weeks and followed them while they drove described their actions as "counter surveillance"--behaving as if they suspected they were being followed. Sering and Wilson stopped at two different Domino's Pizza stores during the surveillance period; however, there were no reported pizza robberies during that period.

A warrant to search Sering's apartment was subsequently issued and executed on June 30, 1989. Sering was not present, but Wilson was there. Two red bandannas, similar to those described as being worn by the perpetrator of the pizza robberies, were found inside a stereo cabinet in Sering's apartment.

After presentation of the evidence, Sering moved to dismiss all counts relating to the Orange County robbery, claiming there was insufficient evidence to establish locus delicti in San Diego County, and therefore the Superior Court of San Diego County lacked territorial jurisdiction. The motion was denied without comment. The appeal (except as pertains to the disguise count, referenced in footnote 2 ante ) challenges only the conviction of the Orange County robbery.

I. There Was Sufficient Evidence to Establish Locus Delicti in San Diego County

Locus delicti is the statutory (not constitutional) concept of a right to be tried in the county in which the crime was committed. (§ 777.) Establishment of locus delicti is a question of fact for the jury and requires proof only by a preponderance of the evidence. (People v. Jones (1964) 228 Cal.App.2d 74, 85-87, 39 Cal.Rptr. 302.) ³ Sering raised the question of adequacy of proof of locus delicti at the completion of the prosecution's case. The denial of his motion at this time inferentially constituted a finding by the judge that sufficient evidence had been introduced to permit submission of the issue to the jury.

Sering thereafter, however, did not renew his contention of insufficiency of the evidence, neither tendering jury instructions nor addressing argument on the point to the jury. The contention on appeal is not directed to the denial of the midtrial motion, but instead rests upon the premise that the jury could not have found locus delicti in San Diego County because there was insufficient evidence as a matter of law to permit such finding.

We conclude, below, that venue, even when phrased as locus delicti of a crime, is a matter which can be waived; and we conclude it was waived in this case. However, were we not to rest our decision on waiver, we would nonetheless uphold the judgment. Our review of the total record reveals considerable evidence from which a jury, if properly instructed and logically deliberative, could have found locus delicti in San Diego County.

The general provision of section 777, providing for trial in the county in which the crime occurred, is subject to several exceptions. Section 786, for instance, permits trial in the county to which the "fruits of a robbery" are brought. Section 781 provides for trial in any county in which "acts ... constituting or requisite to the consummation of the offense occur," and this has been construed as including a county in which preliminary arrangements for the crime were made. (People v. Abbott (1956) 47 Cal.2d 362, 370, 303 P.2d 730.)

Sering contends there is no evidence bringing the case within either of these exceptions. We disagree. The evidence, not only of the two charged robberies but of the several uncharged robberies, shows a course of conduct in San Diego County permitting an inference that all of the robberies were staged from the perpetrators' residence in North San Diego County: Wilson was a habitue of Sering's Oceanside apartment; Sering's car was used in one of the robberies and to "case" other Dominos Pizza sites; and implements similar to those used in the string of robberies were cached by Sering. ⁴ The circumstantial evidence surrounding all the robberies is sufficient for the jury to have concluded that the Orange County robbery was staged, planned and the events leading to it initiated in San Diego County.

II. Venue Based on Locus Delicti Is Waivable, Not Jurisdictional; Hence No Sua Sponte Instruction on Locus Delicti is Required

A. Venue is a Waivable Right

Under section 777, the proper venue for trial is the county in which the crime was committed, subject to the various exceptions provided by statute. (See Pen.Code, §§ 777a-795.) While these statutes refer to the court having "jurisdiction" over the offense, it is now well settled that a superior court has fundamental (i.e., subject matter) jurisdiction over felonies committed anywhere within the state of California. The territorial prescriptions of section 777 refer only to the proper venue of the trial. (People v. Remington, supra, 217 Cal.App.3d 423, 428-429, 266 Cal.Rptr. 183.)

If a defendant waives his venue protections, an otherwise improper venue does not deprive the court of the power to try the defendant, since it still has subject matter jurisdiction over the trial. "[A]lthough subject matter jurisdiction cannot be conferred on a court by consent of the parties, [venue] can be so conferred." (People v. Tabucchi (1976) 64 Cal.App.3d 133, 141, 134 Cal.Rptr. 245.) A corollary to this rule is the recognition that venue is a "... waivable aspect of jurisdiction." (People v. Jackson (1983) 150 Cal.App.3d Supp. 1, 8, 198 Cal.Rptr. 135, emphasis added.) Thus, for example, one court has held that a claim of improper venue was deemed waived...