People v. Simon

• Decision Date: 25 June 2001
• Docket Number: No. S077866.,S077866.
• Citation: 25 Cal.4th 1082,108 Cal.Rptr.2d 385,25 P.3d 598
• Court: California Supreme Court
• Parties: The PEOPLE, Plaintiff and Respondent, v. Travis SIMON, Jr., Defendant and Appellant.

108 Cal.Rptr.2d 385

25 Cal.4th 1082

25 P.3d 598

The PEOPLE, Plaintiff and Respondent, v. Travis SIMON, Jr., Defendant and Appellant.

No. S077866.

Supreme Court of California.

June 25, 2001.

L. Richard Braucher, Richmond, under appointment by the Supreme Court, for Defendant and Appellant.

Daniel E. Lungren and Bill Lockyer, Attorneys General, George Williamson and David P. Druliner, Chief Assistant Attorneys General, Ronald A. Bass, Assistant Attorney General, Ronald E. Niver, Joan Killeen and Ross C. Moody, Deputy Attorneys General, for Plaintiff and Respondent.

GEORGE, C.J.

Defendant Travis Simon, Jr., was convicted of two counts of assault with a deadly weapon upon a peace officer (Pen.Code, § 245, subd. (c)) after a trial in Contra Costa County. In the Court of Appeal, defendant challenged his convictions on the ground (among others) that the trial court erred in failing either to direct a verdict in his favor or to instruct the jury on the question of venue—i.e., the propriety of the location of the trial. The Court of Appeal rejected the claim, concluding that defendant had waived any objection to venue in Contra Costa County by failing to raise such an objection at the preliminary hearing. In discussing the venue issue, however, the Court of Appeal recognized that past California appellate decisions have been inconsistent regarding the proper procedure for raising, preserving, and resolving a claim of improper venue in a felony prosecution, and the Court of Appeal urged this court to provide guidance on the matter both for this case and for future proceedings. We granted review in order to provide such guidance, limiting briefing and argument to the procedural and substantive issues relating to the question of venue.

For the reasons discussed below, we conclude 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 in a felony proceeding forfeits a claim of improper venue when he or she fails specifically to raise such an objection prior to the commencement of trial. As we shall explain, in light of the fundamental purposes underlying criminal venue provisions, the interests of both the accused and the state support a requirement that any objection to the proposed location of a felony trial must be specifically raised prior to the commencement of trial, before the defendant is required to undergo the rigors and hardship of standing trial in an assertedly improper locale, and before the state incurs the time and expense of conducting a trial in that county. Although we further conclude 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, we nonetheless determine that the Court of Appeal correctly rejected defendant's venue claims.

Accordingly, we shall affirm the judgment of the Court of Appeal.

I

Neither party takes issue with the statement of facts set forth in the Court of Appeal's opinion in this matter, and because that narrative clearly and accurately summarizes the pertinent facts as disclosed by the record, we adopt, with minor stylistic changes, that portion of the Court of Appeal's opinion:

A. The Events of January 19, 1997.

At approximately 1:00 a.m. on January 19, 1997, El Cerrito Police Officer Michael Felmann was dispatched to the Eagles Hall located on the corner of Carlson Boulevard and Central Avenue in El Cerrito, which is in Contra Costa County. A large party being held at the hall was ending, and hall security had requested "police presence" to prevent any problems. Officer Felmann parked his patrol vehicle in the Union 76 gas station across the intersection from the hall. Another El Cerrito police officer, Jeff Doty, also answered the dispatch, and arrived in a separate vehicle. When the party broke up, more than 100 persons left the hall and began to congregate in the parking lot of the hall and in the parking lot of the Nation's Hamburgers outlet located on the corner of San Pablo and Central Avenues.

Officer Felmann had been watching the situation for approximately 20 minutes when he noticed a light-colored Suburban stopped in front of Nation's Hamburgers. He believed some sort of disturbance was going on and heard people speaking loudly. Officer Felmann then heard three or four gunshots, and saw an African American man shooting a handgun into the crowd outside Nation's. The shooter was approximately 18 to 20 years of age, and was "sitting on the window sill" of the Suburban and holding onto the roof of the vehicle while firing. As these first shots were fired, the Suburban began accelerating rapidly and made a left turn onto Central Avenue. As the Suburban turned, the shooter fired three or four more shots at Officer Felmann and at another patrol car parked nearby. At trial, Officer Felmann identified the shooter as defendant's codefendant, Erick Jones.

After the shots were fired at him, Officer Felmann began to follow the Suburban, which proceeded down Central Avenue, toward Interstate 80 (1-80). Officer Doty followed behind Felmann's patrol vehicle. Officer Felmann activated his emergency lights, and the Suburban "slowly pulled to the right-hand curb lane" after a block or so. The Suburban stopped for a brief moment, then moved forward another 15 or 20 feet and stopped again. Officer Felmann brought his patrol vehicle to a stop and, using his public address system, ordered the occupants of the Suburban to exit from the vehicle one at a time. Officer Felmann could not determine how many persons were in the Suburban, because the rear window was tinted and no one complied with his command to exit from the vehicle. Officer Doty also stopped his vehicle, exited, and took cover behind the passenger door of Officer Felmann's vehicle. After 20 or 30 seconds, the Suburban sped off with its tires squealing. Officer Doty entered the passenger side of Officer Felmann's vehicle, and they resumed their pursuit of the Suburban.

The Suburban proceeded onto I-80 westbound, in moderate traffic, traveling in excess of 100 miles per hour and weaving in and out of lanes. Officer Felmann estimated that after a "[m]inute maybe," just before the Suburban reached the Ashby exit, which is in Berkeley in Alameda County, the rear window was rolled down. Officer Felmann dropped back to a distance of approximately 300 feet and, because he thought someone in the Suburban might be preparing to shoot at him, turned on his spotlight in an attempt to "blind" the person in the back of the vehicle. At that point, he could see "numerous people" in the Suburban, including one in the very back of the vehicle, and four or five in the passenger seats. About 30 seconds after the window was rolled down, Officer Felmann "very clearly" saw defendant lift up a floor jack and drop it out of the Suburban and into the path of his patrol vehicle. Although he was traveling at a speed in excess of 100 miles per hour, Officer Felmann was able to take evasive action to avoid being hit by the jack.

The window rolled up, the chase continued, and the Suburban proceeded onto Interstate 580 (1-580) heading eastbound "toward Oakland/Hayward." Just before the Suburban reached the Grand Avenue exit, the window of the Suburban again rolled down, and Officer Felmann saw defendant take a large tire and balance it in the open rear window of the Suburban for 15 to 20 seconds. The officer veered to the left, but was forced back behind the Suburban by other traffic. As soon as the officer pulled in behind the Suburban again, defendant released the tire. Officer Felmann still was travelling at speeds in excess of 100 miles per hour. The tire bounced, but Officer Felmann was able to avoid it by driving "to the right shoulder." At the Park Boulevard exit, the Suburban left 1-580 and the chase continued on city streets in Oakland. The Suburban eventually crashed, and Officer Felmann saw several young African American men run away, including one with braids whom he identified as defendant.¹ One of the occupants was found hiding under a tarp near the crash scene. None of the other occupants of the vehicle were apprehended that night. However, a pair of pants found in the "far back" of the Suburban contained a check payable to defendant.²

A jack and a tire were recovered from, respectively, 1-80 and 1-580. A woman who lived two blocks from Nation's Hamburgers on Central Avenue in El Cerrito found a handgun on the walkway in front of her house the morning after the incident. The gun, a .38 special Colt Trooper, contained six expended shell casings.

B. Defendant's Motion for Acquittal.

Initially, the information alleged that the offenses involving defendant— counts five and six—were committed in Alameda County.³ On the second day of the three-day trial, the prosecution moved to amend the information to inelude the following jurisdictional clause: "It is further alleged, pursuant to Penal Code Section 781, that the offenses of Assault With A Deadly Weapon Against A Peace Officer, as alleged in Counts 5 and 6 of the Information, and the lesser offenses there involved, were committed in part in Contra Costa County and in part in Alameda County, and the acts and effects thereof and requisite to the consummation of the offenses occurred in Contra Costa County and Alameda County."

After the close of evidence, defendant moved under Penal Code section 1118.1 for a judgment of acquittal on the ground that Contra Costa County was an improper venue in which to prosecute him. After allowing the parties time to research the venue issue overnight, the trial court denied defendant's motion for acquittal and granted the prosecution's motion to amend the information.

C. Defendant's Request for a Jury Instruction on the Issue of Venue.

After thus disposing of the parties' motions, the court turned to the issue of jury instructions. Before...