PEOPLE v. SIMON

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Court of Appeal, First District, Division 3, California.

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

No. A079252.

Decided: March 09, 1999

L. Richard Braucher, under appointment by the Court of Appeal, San Francisco, for appellant. Daniel E. Lungren and Bill Lockyer, Attorneys General;  George Williamson and David Druliner, Chief Assistant Attorneys General;  Ronald A. Bass, Senior Assistant Attorney General;  Ronald E. Niver and Joan Killeen, Supervising Deputy Attorneys General;  Ross C. Moody, Deputy Attorney General, for respondent.

Travis Simon, Jr., timely appeals from a judgment of conviction, after a jury trial, of two counts of assault with a deadly weapon upon a peace officer (Pen.Code, § 245, subd. (c)).1  The trial court suspended imposition of sentence and granted appellant probation with conditions.

Simon contends the trial court erred by:  (1) denying his motion for acquittal and his request for a jury instruction on the issue whether Contra Costa County was a proper venue for this prosecution;  (2) denying his motion for a mistrial based on a single statement made by one of the investigating police officers referring to an item of inadmissible evidence;  and (3) instructing the jury with CALJIC No. 9.00, and refusing to give a special instruction regarding the intent element of assault.

As to Simon's venue claim, we conclude he waived his objections to a Contra Costa County venue by failing to raise the issue at the preliminary hearing, where it is properly entrusted to the magistrate as a question of fact.   So long as there is some evidence to support the magistrate's express or implied finding on the issue, we may not inquire further into its sufficiency.   In the unpublished portion of this opinion, we find no reversible error on either of the other points appellant has raised.   Accordingly, we affirm.

i. Factual And Procedural Background

A. The Events of January 19, 1997.

At approximately 1 a.m. on January 19, 1997, El Cerrito Police Officer Michael Felmann was dispatched to the Eagles Hall 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, over 100 people 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 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 thought some sort of disturbance was going on and heard people talking 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 old, 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 another patrol car parked nearby.   At trial, Officer Felmann identified the shooter as appellant'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 (I-80).   Officer Doty followed behind Felmann's patrol vehicle.   Officer Felmann turned on 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 get out of the vehicle one at a time.   Officer Felmann could not tell how many people were in the Suburban because the rear window was tinted, and no one complied with his command to exit the vehicle.   Officer Doty also stopped his vehicle, got out, 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 got into the passenger seat 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 appellant 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 (I-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 appellant 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 he pulled in behind the Suburban again, appellant released the tire.   Officer Felmann was still traveling at speeds above 100 miles per hour.   The tire bounced, but Officer Felmann was able to avoid it by driving “to the right shoulder.”

At the Park Avenue exit, the Suburban left I-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 appellant.2  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 appellant.3

A jack and tire were recovered from, respectively, I-80 and I-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. Appellant's Motion for Acquittal.

Initially, the information alleged that the offenses involving appellant-counts five and six-were committed in Alameda County.   On the second day of the three-day trial, the prosecution moved to amend the information to include 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, appellant moved under section 1118.1 for a judgment of acquittal on the grounds 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 appellant's motion for acquittal and granted the prosecution's motion to amend the information.

C. Appellant'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 proceeding, however, defense counsel Howard Jameson raised the issue of venue again, suggesting that his client should be allowed to enter a new plea to the amended information.   The court confirmed that appellant was pleading not guilty to the amended information, and deemed the amendment filed.   Mr. Jameson continued, arguing that the prosecution was now required to prove venue by a preponderance of the evidence, and that an instruction would have to be given to the jury allowing them to make the decision.   The court asked defense counsel to wait, saying:  “I'll hear from you with the proposed instruction at the appropriate time.”

Toward the end of the jury instruction conference, defense counsel requested an instruction on the issue of venue as follows:

“THE COURT:  All right.   Now, with regard to an instruction with regard to this venue -

“MR. JAMESON:  I have no instruction, and I don't find any in CALJIC that would cover the issue.   So I have no instruction to submit.

“THE COURT:  All right.   You think venue is a jury question?

“MR. JAMESON:  I believe it is.   I believe that the District Attorney's burden is by a preponderance of the evidence, also.

“MR. BUTTS:  I'm, frankly, not sure whether it is.   Seeing no jury instruction, I'm inclined to believe that it is not.   And seeing how it's dealt with pretrial, and that's all I know about the issue.

“MR. JAMESON:  It's a material allegation of the complaint in the information must be proven by the District Attorney.

“THE COURT:  Okay. Any authority you wish to submit?

“MR. JAMESON:  I don't have-no, I don't have any authority.   No. I mean, I have it, but I don't have it in my head.   I just know that's the rule of law that venue is an appropriate allegation in the complaint and in the Information, it must be proven by the District Attorney.

“THE COURT:  All right.   Noted.”

Upon completion of the jury instruction conference, the jury returned to hear closing arguments.   No instruction on the issue of venue was given.

iI. Discussion

A. Because Evidence Presented at the Preliminary Hearing Supports an Implied Finding on the Issue, Appellant's Claim of Improper Venue is Not Subject to Review on Appeal.

As he did in his motion for acquittal, appellant contends there is no evidence to support a finding of territorial jurisdiction or venue in Contra Costa County Superior Court as to the offenses with which he was charged in this case.   The trial court rejected this argument and so do we.   As we will discuss, the issue of proper venue should have been raised for consideration at the preliminary hearing as a question of fact for the magistrate, and appellant has waived his objection by failing to raise it at that time.   Moreover, so long as there is some evidence in the record of the preliminary hearing to support an implied finding of proper venue, we may not inquire further into its sufficiency.

Section 777 is the basic rule of venue for criminal proceedings in California.  (People v. Martin (1995) 38 Cal.App.4th 883, 886, 45 Cal.Rptr.2d 502.)   Section 777 provides, in full:  “Every person is liable to punishment by the laws of this State, for a public offense committed by him therein, except where it is by law cognizable exclusively in the courts of the United States;  and except as otherwise provided by law the jurisdiction of every public offense is in any competent court within the jurisdictional territory of which it is committed.”  (Italics added.)   The county is designated as the “jurisdictional territory” with respect to felonies triable in superior court.  (§ 691, subd. (b).) 4

 An exception to section 777 is found in section 781, which 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.”  (Italics added.)   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.”  (People v. Powell (1967) 67 Cal.2d 32, 63, 59 Cal.Rptr. 817, 429 P.2d 137.)   The section is liberally construed to vest jurisdictional venue in the court of the county where only preliminary acts leading to the commission of the crime in another territorial jurisdiction of California occur.  (Ibid.;  People v. Chapman (1977) 72 Cal.App.3d 6, 11, 139 Cal.Rptr. 808.)   Under section 781, venue lies in a county where the defendant “made preparations for the crime, even though the preparatory acts did not constitute an essential element of the crime.”  (People v. Price (1991) 1 Cal.4th 324, 385, 3 Cal.Rptr.2d 106, 821 P.2d 610;  People v. Douglas (1990) 50 Cal.3d 468, 493, 268 Cal.Rptr. 126, 788 P.2d 640.)  “Courts have construed the phrase ‘requisite to the consummation of the offense’ to mean requisite to achieving the offender's unlawful purpose.”  (People v. Bismillah (1989) 208 Cal.App.3d 80, 85, 256 Cal.Rptr. 25.)

 It is well settled that proper venue is not an element of a charged offense.  (People v. Sering (1991) 232 Cal.App.3d 677, 688-689, 283 Cal.Rptr. 507.)   It is, however, a matter as to which the prosecution has the burden of proof, albeit under a “preponderance of the evidence” standard.  (Id. at p. 688, 283 Cal.Rptr. 507;  see also People v. Tabucchi (1976) 64 Cal.App.3d 133, 141, 134 Cal.Rptr. 245;  People v. Sanford (1968) 265 Cal.App.2d 960, 967, 71 Cal.Rptr. 790.)   To the extent a venue claim is couched in terms of a lack of “territorial jurisdiction,” moreover, it is a nonfundamental, waivable aspect of jurisdiction, and a defendant who fails to make a timely and appropriate objection to venue in the trial court waives his right to raise the issue on appeal.  (People v. Anderson (1991) 1 Cal.App.4th 1084, 1089, 3 Cal.Rptr.2d 247;  People v. Sering, supra, 232 Cal.App.3d at pp. 685-686, 283 Cal.Rptr. 507;  People v. Remington, supra, 217 Cal.App.3d at p. 430, 266 Cal.Rptr. 183.)   Whether couched in terms of territorial jurisdiction or venue, the fact that a prosecution is proceeding in a proper forum may be established by circumstantial evidence.  (People v. Cavanaugh (1955) 44 Cal.2d 252, 262, 282 P.2d 53;  see also People v. Tabucchi, supra, 64 Cal.App.3d at p. 141, 134 Cal.Rptr. 245 [venue may be proved circumstantially and the trier of fact can draw inferences on the issue];  People v. Sanford, supra, 265 Cal.App.2d at p. 967, 71 Cal.Rptr. 790 [same].)

 The central question in this case, as we see it, is whether appellant properly raised, and preserved for review, his claim of improper venue or lack of territorial jurisdiction.   Such a claim is properly raised in the first instance either by demurrer (if the defect appears on the face of the accusatory pleading), or as a question of fact for the magistrate at the preliminary hearing.  (See People v. Tabucchi, supra, 64 Cal.App.3d at p. 141, 134 Cal.Rptr. 245;  People v. Mitten (1974) 37 Cal.App.3d 879, 881-882, 112 Cal.Rptr. 713;  and see 3 Erwin et al., California Criminal Defense Practice (1998 ed.)   § 61.03, p. 61-12.)   If the defendant is held to answer at the preliminary hearing, the magistrate will be deemed to have concluded from the evidence presented that the county in which he or she sits is the proper venue for the prosecution, and the magistrate's express or implied finding of proper venue cannot be disturbed on appeal if there is at least some evidence to support the magistrate's decision.  (People v. Mitten, supra, 37 Cal.App.3d at pp. 881-882, 885, 112 Cal.Rptr. 713.)

 Where the defendant claims there is no evidence to support a finding of proper venue in the county in which he or she has been held to answer at the preliminary hearing, the proper remedy is a section 995 motion (see People v. Bismillah, supra, 208 Cal.App.3d at p. 83, 256 Cal.Rptr. 25;  People v. Remington, supra, 217 Cal.App.3d at pp. 429-431, 266 Cal.Rptr. 183) or, perhaps, a petition for writ of habeas corpus (In re Huber (1930) 103 Cal.App. 315, 316-317, 284 P. 509).5  In addition, where the defendant submits the matter on the preliminary hearing transcript, a claim that there is no evidence to support a finding of proper venue may be raised on appeal.  (People v. Sanford, supra, 265 Cal.App.2d at p. 967, fn. 4, 71 Cal.Rptr. 790.) In a felony case, a claim of improper venue must be renewed in superior court in order to preserve the issue for appeal.  (People v. Remington, supra, 217 Cal.App.3d at pp. 429-431, 266 Cal.Rptr. 183.)

 Appellant correctly notes there is no evidence suggesting that the assaultive acts with which he was charged actually occurred in Contra Costa County.   Thus, he claims, section 777 would preclude a finding of jurisdiction, unless section 781 applies.   Appellant also correctly observes that a court which conducts a trial for an offense committed outside of the county in which it sits, in violation of section 777 and over objection by the defendant, acts in excess of its territorial jurisdiction, and any conviction obtained thereby is subject to reversal on appeal.  (People v. Remington, supra, 217 Cal.App.3d at p. 429, 266 Cal.Rptr. 183.)   Appellant's claim of improper venue nevertheless fails because there is, in this record, some evidence to support a finding that he “made preparations for the crime” in Contra Costa County so as to bring the offenses within the purview of section 781.  (People v. Price, supra, 1 Cal.4th at p. 385, 3 Cal.Rptr.2d 106, 821 P.2d 610;  People v. Douglas, supra, 50 Cal.3d at p. 493, 268 Cal.Rptr. 126, 788 P.2d 640.)

 The evidence presented in this case, both at the preliminary hearing and at trial, is capable of showing directly or by inference that:  appellant was present in the Suburban, in El Cerrito, when shots were fired into the crowd and at Officer Felmann;  appellant was present in the vehicle when it stopped twice on Central Avenue, still in Contra Costa County;  the stops were for the purpose of ditching the gun and making a plan for escape;  a couple of minutes later,6 during the high-speed chase on I-80 near the Ashby exit, appellant threw the car jack out the rear window of the Suburban, directly in the path of Officer Felmann's patrol car.   On this record, a magistrate or a jury could find by a preponderance of the evidence that appellant took action in Contra Costa County in preparation for the assaults on Officer Felmann, for example, to position himself in the rear of the Suburban to open the window and throw objects in the path of the patrol vehicle, and otherwise to do what he could to repel the pursuing police officers.   A magistrate or a jury could also reasonably find that these were acts “requisite to achieving the offender's unlawful purpose.”  (People v. Bismillah, supra, 208 Cal.App.3d at p. 85, 256 Cal.Rptr. 25.)   The fact that he did not actually throw any objects in the path of the officers until the Suburban was in Alameda County does not change the fact that the chain of events began in Contra Costa County.  (Id. at p. 87, 256 Cal.Rptr. 25.)

It is instructive to examine the facts of People v. Bismillah, supra, 208 Cal.App.3d 80, 256 Cal.Rptr. 25, which cannot, contrary to appellant's argument, be meaningfully distinguished from the instant case.   In Bismillah, the defendant was stopped in San Francisco for making an illegal left turn and the detaining police officer suspected he was driving under the influence.  (Id. at p. 83, 256 Cal.Rptr. 25.)   When the officer said he intended to administer field sobriety tests, the defendant fled and headed across the Bay Bridge.  (Ibid.) After the defendant exited the freeway in Emeryville, the defendant rear-ended a patrol car, injuring the police officers in the vehicle.  (Id. at p. 84, 256 Cal.Rptr. 25.)   He was arrested and returned to San Francisco, where he was prosecuted for aggravated assault upon the injured police officers in Emeryville, but the San Francisco Superior Court dismissed the charges.  (Ibid.) On appeal by the People, Division Four of this court reversed, finding venue to be proper in San Francisco despite the fact the assaults occurred entirely in Alameda County.   (Id. at pp. 86-87, 256 Cal.Rptr. 25.)   Section 781, the Bismillah court explained, is to be interpreted “in a commonsense manner with proper regard for the facts and circumstances of the case rather than technical niceties.”  (Id. at p. 85, 256 Cal.Rptr. 25.)   Under this standard, and in light of the fact the “various events occurred sequentially, without a gap in the flow, over a short period of time,” the evidence was sufficient to support a finding of proper venue in San Francisco under section 781.  (People v. Bismillah, supra, at p. 87, 256 Cal.Rptr. 25.)

The same is true here.   As the trial court explained in denying appellant's motion for acquittal, “Here, the preliminary arrangements for the crime were made in Contra Costa County by the defendants entering the Chevy Suburban, placing [himself] in the rear portion of the Suburban, making himself ready to discard the jack and tire and assault [ ] a police officer, which subsequent acts took place in Alameda County.”   The events occurred in rapid sequence, without any meaningful break in the action from the time the Suburban left the Nation's Hamburger outlet.   Under Bismillah, it is possible, on these facts, to find that appellant was properly held to answer the assault charges in Contra Costa County Superior Court.

 As we have noted, where-as here-an implied finding of proper venue is supported by evidence presented at the preliminary hearing, it is not subject to further review on appeal.  (People v. Mitten, supra, 37 Cal.App.3d at pp. 881, 885, 112 Cal.Rptr. 713.)   Moreover, to the extent appellant had a colorable venue objection, it was apparent at the time of the preliminary hearing in February 1997 or, at the latest, when the information was filed in superior court in March of that year.   Having failed to make an appropriate objection at that time, appellant has waived his right to raise the issue on appeal.  (See People v. Anderson, supra, 1 Cal.App.4th at pp. 1088-1089, 3 Cal.Rptr.2d 247;  People v. Remington, supra, 217 Cal.App.3d at pp. 429-430, 266 Cal.Rptr. 183.)

B. The Trial Court Justifiably Refused Appellant's Request for a Jury Instruction on the Issue of Venue.

Appellant nevertheless contends that his conviction should be reversed because, when he finally raised his venue objection after the close of evidence at trial, the court erred by refusing his request for a jury instruction on the issue.   In support of this argument, appellant cites cases holding that the locus delicti of an offense is a question of fact for the jury (People v. Jones (1964) 228 Cal.App.2d 74, 86-87, 39 Cal.Rptr. 302;  People v. Megladdery (1940) 40 Cal.App.2d 748, 762, 766, 106 P.2d 84), and that the prosecution is required to introduce at trial evidence on that issue and on the related issue of proper venue (People v. Megladdery, supra, at pp. 764-766, 106 P.2d 84, and cases cited therein;  People v. Pollock (1938) 26 Cal.App.2d 602, 603-604, 80 P.2d 106).7  Appellant acknowledges that the trial court is not obliged sua sponte to instruct on the issue of venue but, citing People v. Sering, supra, 232 Cal.App.3d at page 689, 283 Cal.Rptr. 507, he contends that if a defendant makes a proper and timely request, refusal to instruct on a question of venue and to submit the issue to the jury for decision, requires reversal and an order for a new trial.  (Id. at pp. 689-691, 283 Cal.Rptr. 507.)   We reject this argument because, even if Sering is correct on this point,8 reversal is not warranted in this case.

 In this case defense counsel did, indeed, ask the court to instruct the jury on the issue of proper venue.   Mr. Jameson also argued that venue is a material allegation of the complaint, that the district attorney is required to prove venue is proper by a preponderance of the evidence, and that the propriety of venue is a jury question.   However, he did not have a proposed instruction ready for the conference on jury instructions and, despite the fact the court had given the parties an opportunity to research the issue, had no authority prepared to support his request.   In these circumstances, the trial court justifiably refused appellant's request.  (People v. Ramos (1997) 15 Cal.4th 1133, 1180-1181, 64 Cal.Rptr.2d 892, 938 P.2d 950.)

 “[T]he duty of counsel to a criminal defendant includes careful preparation of and request for all instructions which in his judgment are necessary to explain all of the legal theories upon which his defense rests.”   (People v. Sedeno (1974) 10 Cal.3d 703, 717, fn. 7, 112 Cal.Rptr. 1, 518 P.2d 913.) Indeed, this duty is codified in our criminal statutes, as our Supreme Court explained in People v. Ramos, supra:  “Section 1093.5 expressly requires that except for issues arising during argument, ‘all requests for instructions on points of law must be made to the court and all proposed instructions must be delivered to the court before commencement of argument.   Before the commencement of argument, the court, on request of counsel, must:  (1) decide whether to give, refuse, or modify the proposed instructions;  (2) decide which instructions shall be given in addition to those proposed, if any;  and (3) advise counsel of all instructions to be given․’   Delivery presupposes a written presentation to afford an intelligible basis and orderly manner for making these determinations.  [Citation.]”  (15 Cal.4th at pp. 1180-1181, 64 Cal.Rptr.2d 892, 938 P.2d 950, citing People v. Terry (1969) 70 Cal.2d 410, 420, fn. 4, 77 Cal.Rptr. 460, 454 P.2d 36 [pursuant to section 1127, a proposed instruction “must be prepared in writing and delivered to the court before commencement of argument”];  5 Witkin & Epstein, Cal.Criminal Law (2d ed., 1998 pocket supp.)  Trial, § 2928.)

As in People v. Ramos, supra, the parties had ample opportunity to prepare and submit both standard CALJIC instructions and written “ ‘specials' ” for the court's consideration at the instruction conference.  (15 Cal.4th at p. 1181, 64 Cal.Rptr.2d 892, 938 P.2d 950.)   Defense counsel simply failed to provide a proposed instruction on the venue issue, and failed to direct the court to any authority in support of his request.  “Being untimely and not in proper form, it was justifiably refused.” 9  (Ibid.)

C.-D.***

iII. Conclusion

For the foregoing reasons the judgment of conviction is affirmed.

FOOTNOTES

FOOTNOTE.  

1.   All statutory references are to the Penal Code unless otherwise indicated.

2.   Officer Felmann said that at least two of the five or six African-Americans he saw emerge from the vehicle had braids in their hair, and agreed that the braids appellant wore at trial were different than those worn by the assailant he had seen in the back of the Suburban.

3.   Officer Felmann testified at the preliminary hearing that he had seen a check cashing card, with a photograph of appellant, in a wallet found by Officer Doty in the Suburban on the night of the incident.   However, Officer Doty was unavailable to lay a foundation for this item at trial.   Accordingly, the trial court ruled the photo identification to be inadmissible.

4.   In California, the terms “territorial jurisdiction” and “venue” merge because the basic venue statute-section 777-places venue in the “jurisdictional territory” where the offense was committed.  (People v. Remington (1990) 217 Cal.App.3d 423, 429, fn. 9, 266 Cal.Rptr. 183, citing People v. Jackson (1983) 198 Cal.Rptr. 135, 150 Cal.App.3d Supp. 1, 8.)

5.   Where the prosecution proceeds with a grand jury and indictment, relief on a claim of improper venue may be obtained by writ of prohibition.  (See Bogart v. Superior Court (1964) 230 Cal.App.2d 874, 875-876, 41 Cal.Rptr. 480.)

6.   Appellant asks us to take judicial notice of the distance between Central Avenue in El Cerrito and Ashby Avenue in Berkeley.   We have done so.   The distance is approximately 3.75 miles.   At a rate of 100 miles per hour, or 1.67 miles per minute, Officer Felmann and the Suburban would have traversed that distance in approximately 2.25 minutes.

7.   This case is clearly distinguishable from those on which the Megladdery court relied (40 Cal.App.2d at pp. 764-766, 106 P.2d 84) because there was ample evidence presented at trial to show where (i.e., in which county) the assaults and the related events occurred.  (Cf. People v. Roach (1874) 48 Cal. 382 [judgment of conviction reversed because no evidence was presented at trial to show where crime occurred];  People v. Parks (1872) 44 Cal. 105 [conviction of grand larceny reversed because there was no evidence that saloon where robbery occurred was located in county in which trial occurred].)

8.   We recognize the court in People v. Megladdery, supra, expressly rejected the argument that venue or territorial jurisdiction is an issue for the court to decide in pretrial proceedings.  (40 Cal.App.2d at pp. 764-766, 106 P.2d 84;  see also People v. Sering, supra, 232 Cal.App.3d at p. 684, fn. 3, 283 Cal.Rptr. 507.) In view of the long line of decisions holding that “locus delicti” is a question of fact for the jury which must be proven by the prosecution at trial, the Megladdery court reasoned, “if the rule is to be changed it should be done by the Legislature and not by this court.”  (People v. Megladdery, supra, at p. 766, 106 P.2d 84;  see also People v. Sering, supra, 232 Cal.App.3d at p. 684, fn. 3, 283 Cal.Rptr. 507.) We note, however, that Megladdery conflicts with (and Sering does not discuss) more recent authority which appears to hold that questions about venue should be resolved at the time of the preliminary hearing, and the issue is ordinarily not subject to review on appeal unless there is no evidence to support a finding of proper venue.  (People v. Mitten, supra, 37 Cal.App.3d at pp. 881, 885, 112 Cal.Rptr. 713;  see also People v. Tabucchi, supra, 64 Cal.App.3d at p. 141, 134 Cal.Rptr. 245.)   Moreover, as the Sering court recognizes, the Megladdery holding that proof of venue at trial is essential to a valid conviction flows from the faulty premise “that locus delicti venue is equivalent to subject matter jurisdiction.”  (People v. Sering, supra, at p. 691, 283 Cal.Rptr. 507, fn. omitted.)   Thus, although the notion that the right to trial in a particular venue can be waived by “affirmative action or by failure of timely assertion” was essentially unthinkable when Megladdery was decided (40 Cal.App.2d at p. 762, 106 P.2d 84), it has emerged as the analytical tool of choice for disposing of claims of improper venue (see People v. Sering, supra, at pp. 685-692, 283 Cal.Rptr. 507, and cases cited therein.)   To the extent there is conflict in the case law on the proper procedure for raising, preserving and reviewing claims of improper venue in felony prosecutions, we choose to follow the rule of People v. Mitten, supra, 37 Cal.App.3d 879, 112 Cal.Rptr. 713, and People v. Tabucchi, supra, 64 Cal.App.3d 133, 134 Cal.Rptr. 245, and would urge our Supreme Court to provide guidance on the issue if we are mistaken.

9.   In a supplemental brief filed on November 30, 1998, and again during oral argument on December 3, appellant argued that the trial court refused his request for a venue instruction on the merits and that it would have been a futile exercise for defense counsel to prepare a written instruction on the issue.   In the alternative, appellant contended that defense counsel's failure to prepare and present in writing a proposed jury instruction on the venue issue constituted ineffective assistance of counsel.   The record in this case does not shed any light on why Mr. Jameson acted, or failed to act, as he did.   As our Supreme Court has repeatedly stressed, such a claim of ineffective assistance of counsel is more appropriately decided in a habeas corpus proceeding.  (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267, 62 Cal.Rptr.2d 437, 933 P.2d 1134;  People v. Wilson (1992) 3 Cal.4th 926, 936, 13 Cal.Rptr.2d 259, 838 P.2d 1212.)

FOOTNOTE.   See footnote *, ante.

PHELAN, J.** FN** Retired Presiding Justice of the First District Court of Appeal assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

CORRIGAN, Acting P.J., and WALKER, J., concur.