Chavonne Marie MALONE et al., Petitioners, v. The SUPERIOR COURT of Kern County, Respondent;
The People, Real Party in Interest. Tracee Beatrice Ward, Petitioner, v. The Superior Court of Kern County, Respondent; The People, Real Party in Interest.
On February 16, 1998, a second amended complaint was filed in Kern County Municipal Court against Charles Henry Jones, Tracee Beatrice Ward, and Chavonne Marie Malone (Jones, Ward, and Malone, respectively; collectively, petitioners). The complaint charged that petitioners committed various offenses in Kern, Sacramento, and Merced Counties. Petitioners demurred, claiming lack of territorial jurisdiction; the demurrers were overruled; and petitioners were held to answer.
On April 10, 1998, an information was filed against petitioners in Kern County Superior Court. Counts 1 through 4 were alleged to have been committed in Kern and Sacramento Counties against Terry Slover. These counts (the Sacramento or Slover counts) charged petitioners with attempted premeditated murder (Pen.Code,1 §§ 187, subd. (a), 664; count 1); carjacking (§ 215, subd. (a); count 2); robbery (§ 212.5, subd. (c); count 3); and kidnapping during the commission of a carjacking (§ 209.5; count 4). As to counts 1, 3, and 4, it was alleged that Jones used a deadly weapon in commission of the offense (§ 12022, subd. (b)(1)). As to all four counts, it was further alleged that Jones intentionally inflicted great bodily injury (§ 12022.7), that Jones and Malone personally used a firearm in commission of the offense (§ 12022.5, subd. (a) as to counts 1, 3, & 4; § 12022.5, subd. (a)(2) as to count 2), and that Jones had served two prior prison terms (§ 667.5, subd. (b)).
Counts 5 through 8 were alleged to have been committed in Kern County against Walter Howard Poole. These counts (the Kern or Poole counts) charged petitioners with premeditated murder (§ 187, subd. (a)) involving robbery-murder (§ 190.2, subd. (a)(17)(A)), kidnap-murder (§ 190.2, subd. (a)(17)(B)), and multiple murder (§ 190.2, subd. (a)(3)) special circumstances (count 5); vehicle theft (Veh.Code, § 10851, subd. (a); count 6); robbery (§ 212.5, subd. (c); count 7); and kidnapping (§ 207, subd. (a); count 8). As to all four counts, it was alleged that Jones and Ward personally used a firearm in commission of the offense (§ 12022.5, subd. (a)), and that Jones had served two prior prison terms (§ 667.5, subd. (b)).
Counts 9 through 13 were alleged to have been committed in Kern and Merced Counties against Glenn Nikirk. These counts (the Merced or Nikirk counts) charged petitioners with premeditated murder (§ 187, subd. (a)) involving robbery-murder (§ 190.2, subd. (a)(17)(A)), burglary-murder (§ 190.2, subd. (a)(17)(G)), carjack-murder (§ 190.2, subd. (a)(17)(L)), and multiple murder (§ 190.2, subd. (a)(3)) special circumstances (count 9); robbery (§ 212.5, subd. (a); count 10); burglary (§ 460, subd. (a); count 11); carjacking (§ 215, subd. (a); count 12); and vehicle theft (Veh.Code, § 10851, subd. (a); count 13). As to counts 9 through 12, it was alleged that Malone personally used a firearm in commission of the offense (§ 12022.5, subd. (a) as to counts 9, 10, & 11; § 12022.5, subd. (a)(2) as to count 12). As to all five counts, it was also alleged that Jones had served two prior prison terms (§ 667.5, subd. (b)).
Petitioners-against whom the death penalty is being sought-were arraigned, pled not guilty, and denied all special allegations. Ward unsuccessfully demurred to the information. Malone did not join in the demurrer. The record before us does not show whether Jones joined.
Malone subsequently filed a motion to set aside the information (§ 995) and a nonstatutory motion to dismiss, with regard to counts 1 through 4 and 9 through 13 of the information, contending that she was not legally committed by the magistrate due to lack of jurisdiction, and also asserting violation of her constitutional vicinage rights. Ward filed a section 995 motion to dismiss the same counts on the same grounds. Jones moved to set aside counts 1 and 9 through 13 on the same grounds. Malone and Ward each joined in the other two defendants' motions. Following opposition and response, the motions were heard and denied.
Ward filed a petition for writ of mandate and/or prohibition and request for stay with this court (Ward v. Superior Court, F031170 (Aug. 7, 1998) [nonpub. opn.] ),2 as did Malone (case No. F031234). Jones joined in both petitions, which were denied. Malone then filed a petition for review with the California Supreme Court.3 The petition was granted on September 30, 1998, and the matter was transferred to this court with directions to vacate the order denying mandate and to issue an alternative writ.
On October 29, 1998, Ward filed with this court a petition for writ of mandate and/or prohibition and request for stay or, alternatively, to join writ number F031234 (case No. F031970). On December 16, 1998, we ordered case number F031970 consolidated with case number F031234, issued an order to show cause, and stayed the trial date of February 16, 1999. We afforded the parties an opportunity to file additional briefing, and Jones an opportunity to join, which he did. We now deny the petitions.
Early on the morning of December 7, 1997, Terry Slover (who was confined to a wheelchair) was driving his 1992 blue Plymouth Voyager down Stockton Boulevard in Sacramento when he saw a female waving at him. Since it was raining, he pulled over to see if she needed a ride. She was getting into his vehicle when he heard a male voice. As he turned to look, his driver's door opened and a man was standing there, pointing a gun at him. The man told him to get in the back. The man also told the woman to get in the back; both she and Slover did so. At that point, a third person, who had been outside on the passenger side of the vehicle, got into the front seat and the man handed this person the gun.
After everyone got into the car, the man talked briefly to Slover, then drove around for about 15 minutes. At some point, the man took Slover's watch. Eventually, the man pulled over into a parking lot, took out the wheelchair, and ordered Slover into it. After Slover complied, the man got a scarf from the vehicle and began to choke Slover. Before he lost consciousness, Slover saw one of the others he believed it was the female who had been sitting in back going through his briefcase. When Slover awakened, it was raining and he was covered in blood. His van and personal property, including several credit cards, were gone. The van was later found at a car wash in Bakersfield.
On December 9, 1997, Walter Poole, who worked at a car wash in Kern County, was found dead in a drainage ditch in a rural area approximately 15 miles south of Bakersfield. He had been shot in the arm and chest. His vehicle was found broken down on the side of Interstate 5 in Fresno County, approximately 30 miles south of Santa Nella.
On December 11, 1997, Glenn D. Nikirk was found dead in room 134 of the Motel 6 in Santa Nella, Merced County. At least 17 lacerations, consistent with being hit with the butt of a gun, were found on his head. The cause of death was asphyxia by smothering. His vehicle was later found in Sacramento. It had been destroyed by fire.
Petitioners were arrested on December 20, 1997. All three subsequently waived their rights and gave statements to Sacramento Police Detective Thorgorimson.
In his statement, Jones related that Ward was his girlfriend and that they were living together, while Malone was Ward's friend. Jones said that Malone had come to him and Ward and said she had a friend in California City whom she wanted to visit. They discussed how they would get to California City; they talked about going out to Stockton Boulevard and having the two women act as prostitutes so they could get a car. Jones indicated that all three of them discussed this plan and agreed to it.
The night before the Slover incident, the three walked from Ward's house to Stockton Boulevard. Ward got one “date,” but this person was scared off when he saw Jones in an alley. The three were returning home when Slover's van pulled into a parking lot, and Ward went up to it and got in. Jones and Malone approached the vehicle, and Jones walked up to the driver's door. Ward signaled to him that it was unlocked, so Jones opened the door, pointed the gun at Slover, and told him to get in the back. During this time, Malone had a knife, which she had taken for protection in case something went wrong.
Jones said that he and the two women had planned to act as if Jones was also robbing Ward, so he had her get in the back of the van. Jones and Malone got into the front and Jones handed Malone the gun. Jones then began to drive. Eventually, he got out and had Slover get into the wheelchair while Malone pointed the gun at Slover. Jones then took a scarf Ward was wearing and began to choke Slover. Malone urged Jones to shoot, but Jones declined because of the noise. He choked Slover until the latter stopped struggling. Then, unsure whether Slover was dead, Jones took the knife that Malone had had earlier and stabbed Slover in the neck. As Ward shouted at him to hurry up, he also struck Slover over the head a couple of times with a helium tank. Petitioners then drove off in the van, leaving Slover there.
Petitioners drove the van to an apartment complex, where they disposed of the wheelchair. They then took some bags out of the van and walked across the street to Ward's and Jones's residence. Around 1 p.m. on December 7, they headed to California City in the van. During the trip, they used Slover's credit cards to purchase gas and alcohol.
Petitioners stayed with Malone's friend in California City and spent some time in Bakersfield, then headed home on December 9. They decided that they did not want to drive the van back to Sacramento, so they needed a new car. They saw a brown Pontiac in a car wash parking lot and decided to try to get that vehicle.
Malone went up to a man who was working at the car wash (Walter Poole), said they were having car trouble, and asked for directions. While Poole was outside the van talking to them, Jones pointed the gun at him and told him to get into the back of the van. Poole complied; Jones took his car keys and asked if the brown car belonged to him. When Poole said yes, Jones handed the gun to Ward and went to see whether the keys actually fit the car. While Jones was doing this, he saw a commotion in the van and discovered that Poole had gotten hold of the barrel of the gun and was struggling with Ward and Malone. Jones began striking Poole in the head with his fists and yelling at him to let go of the gun. Eventually, Poole did so. Jones then got into the van and drove to a field somewhere in Bakersfield. During the drive, he took over $100 from Poole and put a bungee cord around Poole's feet. Jones had him get out, still tied, in a farm area. He then shot Poole, who rolled into a ditch. Before Jones got back into the van, he saw Poole laying on the ground, shaking and clutching himself. Jones and the two women then drove back to the car wash, transferred their possessions from the van to the brown Pontiac, and headed for Sacramento in Poole's car.
During the trip, the car kept overheating and smoking. The trio, who had to pull over several times, eventually decided to abandon the vehicle. They hitchhiked to a Motel 6 in Santa Nella (which is located in Merced County), where they rented a room using cash obtained from Poole.5 They were unable to find a way to get home by making telephone calls or getting a bus ride, so Jones indicated that they needed to get a vehicle.
Petitioners discussed how they would find someone else who had a car, and they talked about taking a vehicle from someone who was checking into the motel. Nikirk was driving a white car; Jones saw him check in, and he learned the number of Nikirk's room when Nikirk asked him to point out the room's location. Jones discussed the incident with Ward and Malone, then the three of them walked over to Nikirk's room. Jones had the gun, while Malone was wearing a scarf. When they reached the room, the door was open. Jones walked inside; as he did so, Nikirk turned around and began yelling at him. Jones threw down the gun, pushed Nikirk down on the bed, and started struggling with him while trying to hold him down. Jones told Malone to hit Nikirk over the head with the gun, and he had the women place a plastic bag over Nikirk's head. While Malone was hitting Nikirk over the head, Ward covered Nikirk's mouth with the scarf.6 Because Nikirk was making so much noise, Jones directed Malone to turn on the television to cover the sound. Jones recalled blood squirting onto Ward's clothing or face. When Nikirk continued to struggle even after the bag was placed over his head, they placed a pillow over his head. Malone held the pillow over his face for quite some time. Eventually Nikirk stopped struggling. Jones picked up his arm and, when it fell limply to the bed, knew he was dead. The three then returned to Sacramento in Nikirk's vehicle.
Malone's account of petitioners' gaining access to Slover's vehicle was very similar to that of Jones. She recalled Jones saying that if the women posed as prostitutes, they would “jack somebody for a car.” Malone agreed to this plan, although she said she did not know why they needed a car. During the carjacking, Jones handed Malone the gun and told her to point it at Slover, which she did. She held the gun the entire time they were driving. She said she went along with Jones and Ward so she could “be down” for them.
Malone said that after Jones got the wheelchair out of the van and got the man in the wheelchair, Jones asked Slover if he had any money and went through Slover's pockets. She did not see Jones take anything. Malone said that Jones obtained a scarf from Ward and started choking Slover. During the struggle that ensued, she believed Jones was trying to kill Slover, but she did not ask or tell him to stop. Jones then got the knife which Malone had been carrying that evening and stabbed Slover. He subsequently handed the knife back to her and, when they got back into the van, he took the knife and wrapped it up in the scarf. They then returned to the apartment complex, and Malone went to church with her mother.
After church, Jones and Ward picked up Malone and they left for California City in Slover's vehicle. During the trip, they used Slover's credit card in Fresno and Kern Counties. Malone visited her friend in California City, then they drove to Bakersfield. She fell asleep in the van; when she awakened, they were at the car wash. Jones said they were going to use a bungee cord in the back of the van to tie up the man (Poole) at the car wash, and that they were going to take him somewhere. Malone then approached Poole and asked him for directions. When Poole walked back over to the van and began talking to Jones, Jones pushed him inside the van. Malone got into the driver's seat; Ward had the gun; and Jones took Poole's keys and money.
While Jones was over at Poole's vehicle, Poole grabbed the gun from Ward and they all began struggling for it. Jones came back and started hitting Poole in the head. Eventually, Poole let go of the gun. Malone then drove them in Slover's van to a remote area, where she stopped and Jones got out and had Poole (whose feet were tied) get out. Malone assumed Poole got on his knees because she had seen him standing at a certain level and later could not see him. Jones talked to him for about five minutes, and she heard Jones say that he was not going to shoot Poole. Later, she heard Poole say he thought Jones was not going to shoot him, then she heard the gun go off. Malone did not tell Jones not to shoot. She saw Poole lying on the ground, shaking. Petitioners then returned to the car wash in the van and transferred their belongings to, and took, Poole's car.
Malone said they headed toward Sacramento, but the car kept overheating. Eventually, they had to abandon it. After they hitchhiked to the Motel 6, Jones initiated a discussion about doing another carjacking so they could get back to Sacramento. Malone was involved in that discussion. Jones left the room, then returned a short time later to tell the other two about a man (Nikirk) who had just checked in and who had a nice white car. Jones knew the location of his room. Jones then suggested they bring a scarf, which they had gotten from the trunk of Poole's car, as well as some rope they had taken from the same vehicle.
Ward took some rope and the scarf, then she and Jones pretended to get ice while they waited for Nikirk to leave the motel office. When he came out, they watched him get into his car and drive to the back of the motel, then petitioners went over to his room. Jones reached the room first; when Malone came around the corner, she heard Nikirk yelling for help. When Malone and Ward entered the room, Jones was already inside. When Malone went inside, Jones told her to turn up the television so it would cover some of the noise Nikirk was making. As he struggled with Nikirk, Jones told Malone to take the scarf Ward had and to cover Nikirk's mouth with it to quiet him. Malone did so. At the time, she thought Jones was going to kill Nikirk. Jones then handed her the gun, and Ward went outside to make sure nobody was coming. Ward returned a few minutes later and held her hand over Nikirk's mouth. At some point, Jones directed Malone to strike Nikirk in the head with the gun, and she did this three or four times. Jones then asked her for a plastic bag, which she took from a garbage can. Jones put the bag over Nikirk's head and Ward placed a pillow over Nikirk's face, but he did not stop struggling and making noise. Malone then came over and held the pillow over Nikirk's head for about five minutes, until she knew he was dead. Ward and Malone then left the room. Sometime during these events, Malone personally took Nikirk's watch.
Ward came to Malone a little later and told her that Jones had moved Nikirk's car to the Taco Bell. They then packed up their things and put them in the car. Malone took some bloody towels and a bloody sheet from Nikirk's room. Petitioners subsequently drove to Sacramento. In that county, Malone and Jones took the vehicle and burned it in order to conceal any fingerprints.
In her statement, Ward related that she and Malone had known each other about four years. She said it was Jones's and Malone's idea to get a car; the three of them discussed this two or three days before the Slover incident. The final plans were made at Ward's residence. According to Ward, she and Malone both knew that Jones had a gun on the night of the Slover incident.
Ward said that once Slover was forced from the van, Jones and Malone also got out. Although Ward stayed inside the van, she saw Jones choke Slover with a scarf. She also saw Jones take a pocket watch off of Slover's belt. Slover's black briefcase, which was in the van, was taken to Ward's house. Ward accompanied Jones and Malone in the van to visit Malone's friend in California City. Credit card purchases were made during the trip.
In Bakersfield, petitioners discussed not wanting to drive Slover's van back to Sacramento because it was stolen. When they saw Poole at the car wash, everyone said, “ ‘Let's go get him.’ ” When they approached Poole, Ward was supposed to tie him up while Malone held the gun, but Malone handed the gun to Ward. Ward told Malone that she could not shoot anybody and, when she did not pay attention to Poole, he tried to take the gun from her. A struggle ensued. Jones came back over to the van and began hitting Poole on the head, then Poole let go of the gun barrel. After they took Poole away from the car wash, Ward remained in the van. She heard one shot, but did not see what happened. When Jones got back in the van, the three returned to the car wash and transferred their things to Poole's car.
After Poole's vehicle was abandoned and petitioners hitchhiked to Motel 6 in Santa Nella, Ward and Jones got into a fight and Ward rented a separate room. She and Jones made up about two hours later. Jones indicated that there was a man (Nikirk) checking into the motel and that they could get his car to take back to Sacramento. They then waited until Nikirk came out of the office, followed him around to his room at the back of the motel, and entered his room. When Ward went in, she saw Jones struggling with Nikirk. At Jones's direction, she shut the door and put her hand over Nikirk's mouth. She got blood on her while Malone was hitting Nikirk with the gun. After Malone struck Nikirk, Ward saw he was not moving. She then returned to her room and washed off the blood. Ultimately, she got into the car with Jones and Malone and they drove back to Sacramento. Nikirk's checkbook and four credit cards were subsequently found in Jones's and Ward's residence.
Petitioners raise issues concerning territorial jurisdiction (venue) and vicinage. As a preliminary matter, we must decide whether both subjects, which are separate but related concepts (People v. Martin (1995) 38 Cal.App.4th 883, 886-887, 45 Cal.Rptr.2d 502), are properly before us.
Petitioners raised both issues in superior court by way of statutory (§ 995) and nonstatutory motions to dismiss the information. A motion pursuant to section 995 “attacks procedural steps preceding the information or lack of probable cause for the commitment.” (People v. Brooks (1985) 166 Cal.App.3d 24, 29, fn. 3, 210 Cal.Rptr. 90.) Thus, section 995, subdivision (a)(2)(A) permits setting aside the information if, before the filing of the information, the defendant was not legally committed by a magistrate.
Lack of territorial jurisdiction is a basis for demurrer to the accusatory pleading. (§ 1004, subd. 1; see Casey v. Superior Court (1989) 207 Cal.App.3d 837, 845, 255 Cal.Rptr. 81.) When the objection “appears on the face of the accusatory pleading, it can be taken only by demurrer, and failure so to take it shall be deemed a waiver thereof, except that the objection to the jurisdiction of the court … may be taken by motion in arrest of judgment.” (§ 1012.) Thus, regardless of section 995, “[i]n order to attack the pleading itself, …, the demurrer is the appropriate vehicle.” (People v. Brooks, supra, 166 Cal.App.3d at p. 29, fn. 3, 210 Cal.Rptr. 90; italics omitted.)
Petitioners all demurred to the complaint; however, only Ward demurred to the information. Lack of jurisdiction in superior court does not constitute grounds for setting aside the information under section 995; however, the magistrate's lack of jurisdiction can be asserted under that statute. (People v. Miles & Sons Trucking Service, Inc. (1968) 257 Cal.App.2d 697, 707, 65 Cal.Rptr. 465; see People v. Tamble (1992) 5 Cal.App.4th 815, 817-818, 7 Cal.Rptr.2d 446.) This is so because a defendant has not been legally committed if the magistrate had no jurisdiction to hold the preliminary hearing. (People v. Dal Porto (1936) 17 Cal.App.2d 755, 765-766, 62 P.2d 1061.) Where the defendant was not legally committed, he or she is entitled to dismissal of the information upon timely motion. (People v. Pompa-Ortiz (1980) 27 Cal.3d 519, 523, 165 Cal.Rptr. 851, 612 P.2d 941.) In light of the foregoing, the territorial jurisdiction of the magistrate is properly before us on a writ proceeding following denial of petitioners' section 995 motions.
As for vicinage, the issue arguably is premature since, as petitioners at least implicitly recognize, vicinage rights do not affect the jurisdiction of the magistrate or legality of commitment. Instead, they concern the selection and formation of the jury, a process which has yet to occur in this case.7 Nevertheless, given that our Supreme Court directed us to hear this case without limiting the issues to be addressed, and that violation of a criminal defendant's vicinage rights constitutes error under the federal and state Constitutions (see People v. Hill (1992) 3 Cal.4th 959, 984-985, 13 Cal.Rptr.2d 475, 839 P.2d 984), we will address the issue at this time.
Kern County has territorial jurisdiction over all charges.
In municipal court, the magistrate rejected petitioners' jurisdictional and vicinage challenges based on section 786. In reviewing this ruling, the trial court found the vicinage argument to be premature. With regard to the issue of territorial jurisdiction, the trial court determined that although section 786 could not be stretched to the limits suggested by the People, section 781 conferred jurisdiction on Kern County. The court found there was “a grand conspiracy, if you will, to do any and all criminal acts necessary or convenient to permit thee [sic ] defendants to make the trip from Sacramento to California City, and then to return to Sacramento, including, but not limited to, doing whatever was necessary, wherever and to whomever, in order to accomplish this result.” We now examine this ruling.
The terms “venue” and “territorial jurisdiction” merge under section 777, which is the basic rule of territorial jurisdiction in California.8 (People v. Gbadebo-Soda, supra, 38 Cal.App.4th at p. 170, 45 Cal.Rptr.2d 40; People v. Tamble, supra, 5 Cal.App.4th at p. 819, 7 Cal.Rptr.2d 446.) This statute states in pertinent part: “[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.” (§ 777) “The words ‘jurisdictional territory’ when used with reference to … a superior court mean the county in which the court sits.” (§ 691, subd. (b) [formerly subd. (c) ].) However, territorial jurisdiction is not limited only to one county (Gbadebo-Soda, supra, at p. 170, 45 Cal.Rptr.2d 40); the Penal Code contains various exceptions which are remedial and, hence, liberally construed to achieve their purpose “of ‘expanding criminal jurisdiction beyond rigid common law limits.’ [Citation.]” (People v. Tamble, supra, 5 Cal.App.4th at p. 819, 7 Cal.Rptr.2d 446.)
Section 786 is one such exception. In part, it provides: “When property taken in one jurisdictional territory by burglary, carjacking, robbery, theft, or embezzlement has been brought into another, …, the jurisdiction of the offense is in any competent court within either jurisdictional territory .…”
Petitioners concede that Slover's van was taken from Sacramento County into Kern County. According to Jones's statement to Detective Thorgorimson, cash taken from Poole in Kern County was used to rent the motel room in Santa Nella, Merced County. According to Malone's statement to Thorgorimson, a scarf taken from the trunk of Poole's car was used in the Nikirk killing. Although we recognize that there was some dispute over whether the scarf belonged to Poole, the foregoing evidence is sufficient to place jurisdiction for what might loosely be termed the theft offenses, involving Slover and Poole, in Kern County.9
In our view, the evidence is also sufficient to confer jurisdiction over the remaining counts, because those counts appear to be joinable with the theft-related charges pursuant to section 954.10 That statute provides in 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 class of crimes or offenses, under separate counts .…” Here, the crimes are all connected together in their commission and/or of the same class of crimes. (See, e.g., People v. Arias (1996) 13 Cal.4th 92, 127, 51 Cal.Rptr.2d 770, 913 P.2d 980 [offenses involving assaultive behavior are of same class and thus properly joinable]; People v. Walker (1988) 47 Cal.3d 605, 622, 253 Cal.Rptr. 863, 765 P.2d 70 [§ 954 permits joinder of all assaultive crimes against the person]; People v. Chessman (1959) 52 Cal.2d 467, 492, 341 P.2d 679 [offenses are connected together in their commission where they share common element of substantial importance; requirement is met where automobile stolen in one charged offense is used in perpetration of other charged offenses].) 11 It would seem illogical to permit the theft offenses to be tried in Kern County, regardless of where the actual theft took place, but require that the related but non-theft offenses be tried elsewhere. Instead, it would appear that where, as here, an offense falls within the purview of section 786 and other offenses properly are joined with that offense, all may be tried within the territorial jurisdiction or jurisdictions specified in section 786.
Whether what appears logical is also true need not be determined in the present case, however, since an incontrovertible basis for jurisdiction exists: conspiracy. In this regard, section 182 provides in part: “ All cases of conspiracy may be prosecuted and tried in the superior court of any county in which any overt act tending to effect such conspiracy shall be done.” Additionally, section 184 states: “No agreement amounts to a conspiracy, unless some act, beside such agreement, be done within this state to effect the object thereof, by one or more of the parties to such agreement and the trial of cases of conspiracy may be had in any county in which any such act be done.”
In the present case, the evidence adduced at the preliminary hearing sufficiently establishes, for jurisdictional purposes,12 that petitioners entered into an agreement to obtain transportation and travel from Sacramento to Kern County and back, by whatever means lawful or unlawful that were available. Thus, the object of the conspiracy was not simply to steal a single vehicle, but to obtain transportation and to go to and return from Kern County. All of the charged acts were part and parcel of this agreement.
Petitioners would have us conclude that the sole object of the conspiracy was to steal a car; hence, the conspiracy was complete once the Slover carjacking was accomplished. Under petitioners' argument, none of the acts which followed can be considered to have been in furtherance of the conspiracy because “acts committed by conspirators subsequent to the completion of the crime which is the primary object of a conspiracy cannot be deemed to be overt acts in furtherance of that conspiracy.” (People v. Zamora (1976) 18 Cal.3d 538, 560, 134 Cal.Rptr. 784, 557 P.2d 75.) Petitioners view the evidence too narrowly: it is clear that the agreement expressly encompassed traveling to Kern County and, by implication, returning to Sacramento.13
Petitioners say that, even assuming travel was included in their plans, traveling is not illegal and hence cannot be the object of a criminal conspiracy. However, the fact that the agreement encompassed lawful acts does not make it less a conspiracy where, as here, it also encompassed unlawful objectives and unlawful means to achieve its objectives. (See, e.g., People v. Horn (1974) 12 Cal.3d 290, 296, 115 Cal.Rptr. 516, 524 P.2d 1300 [“ ‘[T]he accused must have had a specific intent to do an unlawful act or to do a lawful act by unlawful means.’ ”]; 14 Hutchins v. Municipal Court (1976) 61 Cal.App.3d 77, 81, 132 Cal.Rptr. 158 [“where two or more persons agree that they will commit an unlawful act or achieve a lawful object by unlawful means, and in furtherance of the agreement commit an overt act towards achievement of their object, they are guilty of conspiracy”].) Here, it is apparent that petitioners' agreement had, as part of its objectives, unlawful acts, and that petitioners intended to achieve their objectives through unlawful means.
Alternatively, petitioners argue that a separate conspiracy was formed in each county. Once again their claim is based on too narrow a view of the evidence.
The entire conduct of the parties-their relationship, acts, and conduct, during and after the crime-are taken into consideration in determining the nature of the conspiracy. (People v. Lewis (1963) 222 Cal.App.2d 136, 144, 35 Cal.Rptr. 1.) One agreement gives rise to a single offense, despite any multiplicity of objects. (People v. Lopez (1994) 21 Cal.App.4th 1551, 1557, 26 Cal.Rptr.2d 741.) “ ‘The test is whether there was one overall agreement among the various parties to perform various functions in order to carry out the objectives of the conspiracy. If so, there is but a single conspiracy.’ [Citation.]” (Id. at p. 1558, 26 Cal.Rptr.2d 741, fn. omitted.) 15 Stated another way, “ ‘the test of whether a single conspiracy has been formed is whether the acts “were tied together as stages in the formation of a larger all-inclusive combination, all directed to achieving a single unlawful end or result.” ’ ” (People v. McLead (1990) 225 Cal.App.3d 906, 920, 276 Cal.Rptr. 187, citations omitted.)
Here, although there were three separate victims, we cannot say that petitioners entered into three separate agreements, each with its own distinct, illegal end. (Contrast People v. McLead, supra, 225 Cal.App.3d at p. 920, 276 Cal.Rptr. 187.) Instead, the evidence supports a finding that there was a single overall, comprehensive plan. (Contrast People v. Elliott (1978) 77 Cal.App.3d 673, 684-685, 144 Cal.Rptr. 137.)
People v. Jones (1986) 180 Cal.App.3d 509, 225 Cal.Rptr. 697 is instructive, although the issue in that case did not involve territorial jurisdiction, but whether the evidence was sufficient to support a conviction of conspiracy to commit robbery, as opposed to grand theft of an automobile. There, the defendant argued that the agreement simply was to drive to Compton to steal an automobile, and that there was no indication violence would be involved until after the agreement was reached. In rejecting this argument, the appellate court stated:
“To sustain a conspiracy conviction, there must be proof of specific intent to commit the offense which is the subject of the conspiracy. [Citations.] The existence of the conspiracy ‘may be shown by direct or circumstantial evidence that the parties positively or tacitly came to a mutual understanding so as to accomplish the act and unlawful design.’ [Citation.] Thus, ‘ “[d]irect proof of a formal understanding between parties to the conspiracy is not required as the basis of an indictment or information. It was not necessary for the State to prove that the parties actually came together, mutually discussed their common design and after reaching a formal agreement, set out upon their previously agreed course of conduct. The extent of the assent of minds which are involved in a conspiracy may be, and from the secrecy of the crime, usually must be, inferred … from the proofs of the facts and circumstances which, when taken together, apparently indicate that they are parts of the same complete whole.” ’ [Citation.]
“A conspiracy is not necessarily a single event which unalterably takes place at a particular point in time when the participants reach a formal agreement; it may be flexible, occurring over a period of time and changing in response to changed circumstances. Thus, in People v. Mares (1975) 51 Cal.App.3d 1013 [124 Cal.Rptr. 718], where the question was whether the conspiracy was one to commit robbery in the first or second degree, the court noted: ‘Whatever the original discussions may have encompassed, the conspiracy did not become frozen in its character, but remained alive until it was frustrated; its final character, so far as the degree of the intended robbery was concerned, depended upon all the circumstances manifesting themselves during the life of the conspiracy and could only be determined in retrospect.’ [Citation.]
“In the instant case, there was initially, defendant admits, a positively stated agreement to go to Compton to steal an automobile. When Clayton placed the handgun under the dashboard of his Monte Carlo without objection from the other conspirators, there may have been a tacit agreement violence might be used in the commission of the crime. As the four drove past Williamson's house, they saw Williamson getting into his automobile in the driveway, and Clayton said, ‘Let's get him.’ None of the other conspirators objected, and they subsequently followed through on Clayton's suggestion to ‘get’ Williamson.
“These facts show the nature of the conspiracy changed from a positive agreement to steal an automobile to a tacit agreement to rob Williamson. The conspiracy did not become frozen in its character at the time the four entered into their original agreement, but remained alive and changing until the conspirators' goal was accomplished. [Citation.]” (People v. Jones, supra, 180 Cal.App.3d at pp. 517-518, 225 Cal.Rptr. 697.)
Here, the evidence shows an overall agreement to steal transportation forcibly and to go to, and return to Sacramento from, Kern County by any means necessary.16 An overt act is defined as “ ‘an outward act done in pursuance of the crime and in manifestation of an intent or design, looking toward the accomplishment of the crime.’ [Citation.]” (People v. Zamora, supra, 18 Cal.3d at p. 549, fn. 8, 134 Cal.Rptr. 784, 557 P.2d 75.) The charged offenses constituted overt acts in furtherance of the overall conspiracy. As each was “ ‘within the reasonable and probable consequences of the common unlawful design’ ” (People v. Durham (1969) 70 Cal.2d 171, 182, 74 Cal.Rptr. 262, 449 P.2d 198), that petitioners may not have agreed upon or intended each specific act from the outset is immaterial (People v. Superior Court (Quinteros) (1993) 13 Cal.App.4th 12, 21, 16 Cal.Rptr.2d 462). “ ‘[W]here several parties conspire or combine together to commit any unlawful act, each is criminally responsible for the acts of his associates or confederates committed in furtherance of any prosecution of the common design for which they combine. In contemplation of law the act of one is the act of all.’ [Citations.]” (People v. Superior Court (Shamis) (1997) 58 Cal.App.4th 833, 843, 68 Cal.Rptr.2d 388.)
“[S]o far as jurisdiction is concerned, any place where any part of a crime is committed becomes the locale of the crime as much as the place where it culminated[.]” (People v. Waid (1954) 127 Cal.App.2d 614, 619, 274 P.2d 217.) Conspiracy is said to be a continuing crime (People v. Von Villas (1992) 11 Cal.App.4th 175, 244, 15 Cal.Rptr.2d 112); the California rule is that venue lies in any county in which an overt act is committed by any of the conspirators (People v. Jones (1964) 228 Cal.App.2d 74, 86, 39 Cal.Rptr. 302). Here, the conspiracy was not frozen, but remained fluid and evolving and continued until petitioners returned to Sacramento.
Cases construing section 781 are instructive, if not dispositive. That section provides:
“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.”
Under section 781, the county in which preliminary arrangements for commission of the crime are made constitutes a proper county in which to prosecute the completed offense, even though the acts performed there were not an essential element of the crime. (People v. Abbott (1956) 47 Cal.2d 362, 370, 303 P.2d 730.) In Abbott, charges of kidnapping and murder involved and arose out of acts occurring in more than one county. The California Supreme Court held that the courts of the county out of which the victim was taken had jurisdiction over the murder. (Ibid.)
In People v. Powell (1967) 67 Cal.2d 32, 59 Cal.Rptr. 817, 429 P.2d 137, two police officers were kidnapped in Los Angeles County and taken to Kern County, where one was killed. On appeal, the defendants argued that Los Angeles County had no territorial jurisdiction to try the murder. In rejecting this argument, the California Supreme Court followed Abbott, noting that section 781 “was intended to broaden criminal jurisdiction beyond the rigid limits fixed by the common law in cases of crimes committed in more than one jurisdiction.” (Powell, supra, at p. 63, 59 Cal.Rptr. 817, 429 P.2d 137.) The court held that although the kidnapping may not have constituted an essential element of the murder, “there took place in Los Angeles County sufficient acts preliminary to the murder to allow jurisdiction to attach in that county under section 781.” (Powell, supra, at p. 63, 59 Cal.Rptr. 817, 429 P.2d 137.)
In People v. Campbell (1991) 230 Cal.App.3d 1432, 281 Cal.Rptr. 870, the defendants robbed two restaurants, one in San Diego County and one in Riverside County. They were tried in San Diego County. They initially demurred to the complaint for lack of territorial jurisdiction; the demurrer was overruled based on section 786. The question was raised again in limine; their renewed demurrer was overruled. On appeal, they claimed section 786 was unconstitutional and that false imprisonment charges involving the employees of one restaurant were separate crimes not covered by the statute. The Court of Appeal rejected both arguments, but asked for supplemental briefing on section 781, with special attention to whether preliminary acts or an uncharged conspiracy was involved in San Diego County which would support jurisdiction. (Campbell, supra, at pp. 1437-1443, 281 Cal.Rptr. 870.) In finding jurisdiction proper, the court stated:
“In this case, ... even though the defendants were not charged with conspiracy, there is sufficient evidence of preliminary arrangements in one county which led to the commission of offenses in another county to confer territorial jurisdiction here. From this evidence it can also be inferred the preliminary arrangements made in San Diego were overt acts in furtherance of a conspiracy to rob fast-food restaurants, both in this county and in Riverside County. (See §§ 182, 184.)
“Specifically, the record contains evidence from which it can be inferred Campbell and Werner masterminded and made preliminary arrangements in San Diego County for the crimes....
“ ... It is ... also reasonable to infer the false imprisonments were additional overt acts in the uncharged conspiracy to rob fast-food restaurants and to make a getaway. Because a criminal conspiracy may be prosecuted and tried in any county in which an overt act in furtherance of the conspiracy is done (§ 182), the totality of the preliminary or overt acts committed in San Diego County was sufficient under section 781 to confer territorial jurisdiction in this county for all the crimes which occurred in Riverside County.
“That the municipal and superior court judges in ruling on Campbell and Werner's motions used the more specific section 786, which refers to theft-related cases, for this decision jurisdiction lies in San Diego County, makes no difference. Since section 786 is not exclusive in cases of theft, section 781 may also properly be applied here to establish territorial jurisdiction. [Citations.]” (People v. Campbell, supra, 230 Cal.App.3d at pp. 1444-1445, 281 Cal.Rptr. 870.)
In People v. Bismillah (1989) 208 Cal.App.3d 80, 256 Cal.Rptr. 25, the defendant was stopped in San Francisco for a traffic violation. When he assaulted the officer, he was pursued to and caught in Emeryville. At the time he was apprehended, the defendant assaulted officers with his car. He was charged in San Francisco. In upholding San Francisco's jurisdiction, the Court of Appeal explained that section 781 is to be interpreted
“in a commonsense manner with proper regard for the facts and circumstances of the case rather than technical niceties. [Citation.]
“Courts have construed the phrase ‘requisite to the consummation of the offense’ to mean requisite to achieving the offender's unlawful purpose. [Citation.] 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. [Citation.]
“In the present case it is undisputed that the assaults occurred entirely in Alameda County. The question then becomes whether defendant's conduct in San Francisco County was requisite to accomplishing his overall criminal purpose. Viewing the chain of events in its entirety, it is evident defendant's overriding purpose was to escape apprehension by the San Francisco police. He struck and then fled from Officer McCann in San Francisco to avoid taking the field sobriety test, and then continued to evade Officers Smith, Pardini and Cima as he crossed the bridge. When Pardini tried to block his passage on the Powell Street offramp, he struck the patrol car twice before Pardini finally succeeded in bringing the Chrysler to a halt. Construing section 781 in a commonsense manner, we find ample acts in San Francisco to justify prosecution there for the assault charges. The various events occurred sequentially, without a gap in the flow, over a short period of time. They were linked together with the common purpose of escape. We therefore hold San Francisco is a proper county for holding defendant to answer on the assault charges.” (People v. Bismillah, supra, 208 Cal.App.3d at pp. 85-87, 256 Cal.Rptr. 25.)
In People v. Hernandez (1976) 63 Cal.App.3d 393, 133 Cal.Rptr. 745, the victim and her boyfriend came from Stanislaus County to Fresno County. Eventually, the defendant gave the victim a ride from Fresno County to Madera County, where the victim was raped and robbed. The defendant was tried in Fresno County; on appeal, he challenged that county's territorial jurisdiction over the robbery count. This court held that the phase, “or requisite to the consummation of the offense,” as used in section 781, “ ‘means requisite to the completion of the offense-to the achievement of the unlawful purpose-to the ends of the unlawful enterprise. By the use of the word ‘consummation’ the Legislature drew a distinction between an act or an effect thereof which is essential to the commission of an offense, and an act or effect thereof which, although unessential to the commission of the offense, is requisite to the completion of the offense that is, to the achievement of the unlawful purpose of the person committing the offense.' [Citation.]” (Hernandez, supra, at p. 403, 133 Cal.Rptr. 745.)
This court reviewed various cases, including People v. Powell, supra, 67 Cal.2d 32, 59 Cal.Rptr. 817, 429 P.2d 137, and noted that in the case before us, the defendant, when planning the kidnapping and rape, had no intention of committing the robbery because the circumstances giving rise to that offense had not yet arisen. The decision to commit robbery arose only when the defendant learned that the victim had written down his license number on a piece of paper he believed she put in her purse. “The robbery of [the victim], as did the murder in the Powell case, served only to sever the trail that would inevitably lead to the discovery that the defendant had been involved in the earlier crimes. It was, therefore, necessary to the successful completion of those offenses without detection by the law enforcement authorities.” (People v. Hernandez, supra, 63 Cal.App.3d at pp. 402-403, 133 Cal.Rptr. 745.) We concluded: “The same individuals were implicated in the commission of the three crimes of kidnapping, rape and robbery; they occurred consecutively in a relatively brief period of time; and all of them had as their objectives the successful consummation of a common purpose. We, therefore, hold that Fresno County was a proper county for the trial of defendant on the charge of robbery.” (Id. at p. 403, 133 Cal.Rptr. 745.)
In the present case, the charged acts took place over a matter of days. Although the time frame is somewhat longer than that involved in Hernandez, the acts constituted a chain of events, all of which were interconnected and all of which had as their objective the successful consummation of a common purpose. (See People v. Hernandez, supra, 63 Cal.App.3d at pp. 402-403, 133 Cal.Rptr. 745.)
In People v. Buono (1961) 191 Cal.App.2d 203, 12 Cal.Rptr. 604, the appellate court read sections 182, 184, and 781 together to hold that a single overt act committed in one county was sufficient to confer jurisdiction on that county regardless of where the conspiracy was formed. (Buono, supra, at pp. 222-223, 12 Cal.Rptr. 604.) Further, “where an act requisite to the ends of an unlawful purpose is continuous, such as driving from one county to another, either county has jurisdiction for trial of the conspiracy.” (People v. Lewis, supra, 222 Cal.App.2d at p. 147, 35 Cal.Rptr. 1; Buono, supra, at p. 223, 12 Cal.Rptr. 604.) 17
Reading the applicable statutes (§§ 182, 184, 781) together, we hold that territorial jurisdiction lies (i.e., venue is proper) in Kern County for all of the charged offenses. That petitioners were not charged with conspiracy does not make this any less so. As the California Supreme Court has made clear, “[T]erritorial jurisdiction in criminal cases should depend upon the acts committed rather than upon the form of the accusatory pleading.” (People v. Powell, supra, 67 Cal.2d at p. 62, 59 Cal.Rptr. 817, 429 P.2d 137; see also People v. Douglas (1990) 50 Cal.3d 468, 494, 268 Cal.Rptr. 126, 788 P.2d 640; People v. Campbell, supra, 230 Cal.App.3d at pp. 1444-1445, 281 Cal.Rptr. 870; People v. Witt (1975) 53 Cal.App.3d 154, 167, 125 Cal.Rptr. 653.)
Petitioners say that application of section 182 (and, by analogy section 781) is precluded by the existence of section 790, a more specific statute governing homicides. At the time the instant offenses were committed, section 790 provided:
“The jurisdiction of a criminal action for murder or manslaughter is in the county where the fatal injury was inflicted or in the county in which the party injured died or in the county in which his body was found; provided, that if the defendant is indicted in the county in which the fatal injury was inflicted, at any time before his trial in another county, the sheriff of such other county must, if the defendant be in custody, deliver him upon demand to the sheriff of the county in which the fatal injury was inflicted. When the fatal injury is inflicted and the injured person died or his body was found within five hundred yards of the boundary of two or more counties, jurisdiction is in either county.” 18
Petitioners rely on the principle that “[p]rosecution under a general statute is precluded when the facts of the alleged offense parallel the acts proscribed by a special statute. [Citations.]” (People v. DeLaCruz (1993) 20 Cal.App.4th 955, 958, 25 Cal.Rptr.2d 202.) Under this rule, “ ‘ “where [a] general statute standing alone would include the same matter as [a] special act, and thus conflict with it, the special act will be considered as an exception to the general statute .…” ’ [Citation.]” (Id. at p. 960, 25 Cal.Rptr.2d 202.) However, “[t]he principle that a specific statute prevails over a general one applies only when the two sections cannot be reconciled. [Citations.]” (People v. Wheeler (1992) 4 Cal.4th 284, 293, 14 Cal.Rptr.2d 418, 841 P.2d 938.)
The California Supreme Court has long held that section 790 is not exclusive in cases of murder; hence, other venue statutes, such as section 781, also may properly be applied. (E.g., People v. Price (1991) 1 Cal.4th 324, 385, 3 Cal.Rptr.2d 106, 821 P.2d 610; People v. Douglas, supra, 50 Cal.3d at p. 494, 268 Cal.Rptr. 126, 788 P.2d 640; People v. Powell, supra, 67 Cal.2d at p. 63, 59 Cal.Rptr. 817, 429 P.2d 137.) In Price, the high court rejected the argument “that section 790, as a special statute providing for trial of the offense of murder, should take precedence over a statute of general application like section 781.” (Price, supra, at p. 385, 3 Cal.Rptr.2d 106, 821 P.2d 610.) The court noted that two statutes dealing with the same subject will be given concurrent effect if they can be harmonized, and found that the statutes could indeed be harmonized. Accordingly, the court reaffirmed decisions holding that both sections were proper sources of territorial jurisdiction as to murder. (Ibid.) Similarly, in People v. Abbott, supra, 47 Cal.2d at page 370, 303 P.2d 730, the Supreme Court determined that section 781 complements section 790.
In our view, the same reasoning applies with regard to section 182. As its venue provisions are not inconsistent, and can be harmonized, with the provisions of section 790, both sections are proper sources of territorial jurisdiction in the present case. (See People v. Buono, supra, 191 Cal.App.2d at pp. 225-226, 12 Cal.Rptr. 604 [rejecting, based on Abbott, argument that § 790 is exclusive where conspiracy is involved].)
Trial of all charges in Kern County will not violate petitioners' vicinage rights.
As the Court of Appeal summarized in People v. Martin, supra, 38 Cal.App.4th at pages 887-888, 45 Cal.Rptr.2d 502,
“The constitutional right of vicinage is a geographic requirement. ‘It is the right of a criminal defendant to be tried by a jury drawn from the area in which the crime occurred.’ This right originated from the expectation in English judicial practice that jurors would pass judgment based upon their personal knowledge of the crime. Although jurors now render a verdict based upon evidence at trial, they are still drawn from the vicinage of the crime.
“The vicinage requirement also protects the right of the offended community to pass judgment in criminal matters. ‘ “Trials in the community of local criminal matters, particularly shocking crimes, provide a substitute for the natural human reactions of outrage, protest and some form of vengeful self-help.” ’
“Vicinage is guaranteed by both the federal and state Constitutions. The Sixth Amendment to the United States Constitution provides in part: ‘ “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public 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 .…” ’ The Fourteenth Amendment of the federal Constitution guarantees this right in state prosecutions. Article I, section 16 of the California Constitution (formerly art. I, § 7, repealed in 1974) also has been interpreted to contain an implied right to a jury selected from the vicinage.
“Our Supreme Court has broadly interpreted the geographical area of vicinage due to changes in our government and society since colonial times. Jurors are no longer required or permitted to have personal knowledge of a crime and England does not threaten our citizenry with treason trials held there. In California state prosecutions, the boundaries of the vicinage are coterminous with the boundaries of the county in which the crime was committed.” (Citations omitted.)
“Normally, the choice of venue determines vicinage. [Citation.]” (People v. Guzman (1988) 45 Cal.3d 915, 934, 248 Cal.Rptr. 467, 755 P.2d 917; People v. Bismillah, supra, 208 Cal.App.3d at p. 87, 256 Cal.Rptr. 25.) However, a venue statute may not abridge a defendant's right to a jury of the vicinage. (People v. Martin, supra, 38 Cal.App.4th at p. 887, 45 Cal.Rptr.2d 502.) “The constitutional specification is geographic; and the geography prescribed is the district or districts within which the offense is committed.” (United States v. Anderson (1946) 328 U.S. 699, 704-705, 66 S.Ct. 1213, 90 L.Ed. 1529, italics added, fn. omitted.)
People v. Martin, supra, 38 Cal.App.4th 883, 45 Cal.Rptr.2d 502, is instructive. In that case, the defendant kidnapped and killed the victim in Ventura County, then disposed of her body in Santa Barbara County. He was tried and convicted in Santa Barbara County. On appeal, he acknowledged that venue was proper under section 790, but argued that his vicinage rights were violated. (Martin, supra, at pp. 885-887, 45 Cal.Rptr.2d 502.) The Court of Appeal held that the constitutional right of vicinage is satisfied if trial is held in any of the three counties specified in section 790. (Martin, supra, at p. 884, 45 Cal.Rptr.2d 502.) In reaching this conclusion, the court reasoned:
“People v. Campbell (1991) 230 Cal.App.3d 1432 [281 Cal.Rptr. 870], People v. Bismillah (1989) 208 Cal.App.3d 80, 256 Cal.Rptr. 25[ ], and People v. Powell [ (1974) ] 40 Cal.App.3d 107, 115 Cal.Rptr. 109, govern the vicinage question presented here. These decisions concern the commission of acts preliminary to a crime in one county and the commission of the crime in a second county. Campbell, Bismillah, and Powell held that constitutional rights of vicinage were satisfied by trial in the first county. Venue was proper in the first county, pursuant to Penal Code section 781. Those counties where venue lay under the venue statutes constituted a ‘district’ for vicinage requirements. (People v. Campbell, supra, 230 Cal.App.3d 1432, 1446-1447, 281 Cal.Rptr. 870; People v. Bismillah, supra, 208 Cal.App.3d 80, 88-89, 256 Cal.Rptr. 25; People v. Powell, supra, 40 Cal.App.3d 107, 123, 115 Cal.Rptr. 109.)
“Thus, People v. Powell, supra, 40 Cal.App.3d 107 [115 Cal.Rptr. 109], the seminal case concerning vicinage and Penal Code section 781, concerned the kidnapping of two police officers in Los Angeles County and the murder of one in Kern County. Powell held that trial in Los Angeles County satisfied defendants' rights of vicinage. (40 Cal.App.3d at pp. 120-123 [115 Cal.Rptr. 109].) The court concluded that pursuant to section 781, the Legislature had divided the state into ‘districts,’ permitting trials to occur in any county forming a part of such district. Moreover, jurors must be drawn from the county of trial, even if only preliminary acts occurred there. ‘If that means that for Sixth Amendment purposes California interprets the word “crime” as including preliminary acts which satisfy the venue requirement of section 781 of the Penal Code, so be it.’ (40 Cal.App.3d at p. 123 [115 Cal.Rptr. 109].)
“Martin argues that Powell, Bismillah, and Campbell are ‘intellectually dishonest’ because those decisions diminish the constitutional right of vicinage and impermissibly relate it to the venue statutes. (See venue statutes found at Pen.Code, §§ 777-795.) These decisions may more broadly interpret vicinage than Martin prefers, but our Supreme Court has denied review to each decision. Moreover, our Supreme Court has broadened the geographical area of vicinage, noting that ‘[t]ransformations in our government as well as in our society make clear that narrowly interpreting the vicinage requirement is no longer warranted.’ (Hernandez v. Municipal Court [ (1989) ] 49 Cal.3d 713, 722, 263 Cal.Rptr. 513, 781 P.2d 547.)
“Here Penal Code section 790 provides for venue in murder prosecutions in the county in which [the victim's] body was found .…' Applying the reasoning of People v. Powell, supra, 40 Cal.App.3d 107, 123 [115 Cal.Rptr. 109], Penal Code section 790 creates a ‘district’ of counties for vicinage purposes.” (People v. Martin, supra, 38 Cal.App.4th at pp. 888-889, 45 Cal.Rptr.2d 502.)
In People v. Mitten (1974) 37 Cal.App.3d 879, 885, 112 Cal.Rptr. 713, the appellate court observed that “Penal Code section 781, permitting trial in any of the several counties in which a single crime is perpetrated is an expression of the state's policy. We find the statute to be a reasonable accommodation of the state's problem of crimes with multiple jurisdictional territories and defendants, to the Sixth and Fourteenth Amendments' requirement of trial ‘by an impartial jury of the State and district.’ ” The same reasoning applies to sections 182 and 184.
In People v. Campbell, supra, 230 Cal.App.3d at page 1447, 281 Cal.Rptr. 870, the court stated:
“Here, both sections 781 and 786 are legislative determinations that trial is appropriate in more than one county when certain facts apply; i.e., section 781 allows jurisdiction in any county where acts preliminary or requisite to the consummation of the offense occur and section 786 permits jurisdiction either in the county where property is taken in a theft-related offense or in the county where the property is brought after the offense. Neither section 781 nor section 786 violates the Sixth Amendment concept of vicinage .… Both sections require at least some act within a county preliminary to or requisite to the offense charged before jurisdiction will attach.
“Campbell and Werner's limited interpretation of the Sixth Amendment [asserting that vicinage mandates jurisdiction only where the crime was committed] simply does not conform to the modern realities of American society. In this highly mobile society, we do not think criminals seriously consider what county they are in before committing crimes and how such would affect their trial if they should get caught. As Bismillah points out, the jurisdictional statutes are ‘remedial and, thus, we construe the statute[s] liberally to achieve [their purposes] of expanding criminal jurisdiction beyond rigid common law limits. [Citations.]’ [Citation.]”
Here, as we have explained, for purposes of sections 182, 184, and 781, we have an offense which was committed in more than one “district,” i.e., county. Under these circumstances, and applying the reasoning of Martin, supra, 38 Cal.App.4th 883, 45 Cal.Rptr.2d 502, and the cases cited therein, trying all charges in Kern County will not violate petitioners' vicinage rights. To find a violation of vicinage where, as here, a conspiracy is involved, would mean multiple trials where overt acts, which are also substantive offenses, are committed in different counties. Such a result is neither logical nor compelled by the federal and state Constitutions.
The petitions for writ of mandate and/or prohibition are denied and the order to show cause discharged. Stay of trial previously ordered is vacated upon finality of this court's decision herein.
FN1. All statutory references are to the Penal Code unless otherwise stated.. FN1. All statutory references are to the Penal Code unless otherwise stated.
2. Pursuant to Evidence Code sections 452, subdivision (d) and 459 and at Ward's request, we take judicial notice of our records in case number F031170 (Ward v. Superior Court ).
3. Insofar as we can tell, although both Ward and Jones sought to join in the petition, they were not permitted to do so.
4. The statement of facts is taken from evidence adduced at the preliminary hearing.
5. According to Jones, they were hitchhiking on the freeway in an attempt to return to Sacramento when a Highway Patrol officer told them to get off the freeway. They then went to the Motel 6.
6. Joe Lara, a close friend of Walter Poole, positively identified this scarf as belonging to Poole. Two of Poole's other acquaintances said the scarf looked similar to a scarf they had seen Poole wear. However, Terri Dowell, Poole's live-in girlfriend of several years, told police that she had seen Poole on the morning he was killed and did not recall him wearing scarves. She was unable to identify the scarf in question as belonging to Poole.
7. “ ‘[V]enue refers to the location where the trial is held, whereas vicinage refers to the area from which the jury pool is drawn.’ [Citation.]” (5 Witkin & Epstein, Cal.Criminal Law (2d ed. 1989) Trial, § 2643, p. 3173.)
8. “ ‘The jurisdictional power of a court to act is conceptually divided into subject matter and territorial jurisdiction.’ [Citation.] Every California superior court has subject matter jurisdiction to conduct felony trials and to impose sentences for felonies defined by California statutes committed within the state, even though some or all of the crimes may be committed outside the county in which that court sits. [Citation.]” (People v. Gbadebo-Soda (1995) 38 Cal.App.4th 160, 169-170, 45 Cal.Rptr.2d 40.) Petitioners do not claim that Kern County lacks subject matter jurisdiction over any of the counts.
9. Obviously, Kern County has territorial jurisdiction over all counts involving offenses against Poole.
10. Insofar as the record before us shows, petitioners have not contended otherwise.
11. Chessman was disapproved on other grounds in People v. Morse (1964) 60 Cal.2d 631, 637-639 and footnote 2, 36 Cal.Rptr. 201, 388 P.2d 33.
12. We express no opinion concerning issues which may arise at trial, such as admission of coconspirator statements pursuant to Evidence Code section 1223.
13. A “visit” implies a return.
14. Horn was disapproved on other grounds in People v. Cortez (1998) 18 Cal.4th 1223, 1238, 77 Cal.Rptr.2d 733, 960 P.2d 537.
15. When there is but a single conspiracy, the government cannot split that conspiracy into different indictments and prosecute them all. (People v. Lopez, supra, 21 Cal.App.4th at p. 1557, 26 Cal.Rptr.2d 741.)
16. That petitioners may have attempted to hitchhike back to Sacramento after the Poole vehicle was abandoned does not mean they were not prepared to use unlawful means to accomplish their goals. Their tacit agreement is shown by the lack of dissent or disagreement at each step of the way, and is also demonstrated by Malone's awakening at the car wash and immediately going along with the crimes against Poole, without any indication she was surprised to find herself participating in another carjacking. Even though the crimes against Poole and Nikirk may not have been specifically planned at the outset, it is apparent that during the course of the conspiracy, petitioners contemplated the possibility of having to abandon a stolen vehicle and using forcible means to obtain a replacement.
17. In the present case, driving from one county to another was certainly requisite to petitioners' purpose. However, we express no opinion on whether territorial jurisdiction would lie in any county through which petitioners passed since that issue is not before us.
18. In light of our conclusion that venue was proper in Kern County under the statutes as they existed at the time the offenses were committed, we need not reach issues concerning the application or constitutionality of section 790, subdivision (b), which became effective on January 1, 1999. It states:“(b) In any case in which a defendant is charged with a special circumstance pursuant to paragraph (3) of subdivision (a) of Section 190.2 [defendant convicted of multiple murders in this proceeding], the jurisdiction for any charged murder, and for any crimes properly joinable with that murder, shall be in any county that has jurisdiction pursuant to subdivision (a) [former section 790] for one or more of the murders charged in a single complaint or indictment as long as the charged murders are ‘connected together in their commission,’ as that phrase is used in Section 954, and subject to a hearing in the jurisdiction where the prosecution is attempting to consolidate the charged murders. If the charged murders are not joined or consolidated, the murder that was charged outside of the county that has jurisdiction pursuant to subdivision (a), shall be returned to that county.”We also need not reach respondent's argument concerning the “offense” of “capital murder.”
BUCKLEY, J., and LEVY, J., concur.