PRICE v. The People, Real Party in Interest.

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Court of Appeal, Fourth District, Division 2, California.

Shawn Garfield PRICE, Petitioner, v. The SUPERIOR COURT of Riverside County, Respondent, The People, Real Party in Interest.

No. E024710.

Decided: January 18, 2000

David Joseph Macher, Riverside, for Petitioner. No appearance for Respondent. Grover Trask, District Attorney and Elaina Gambera Bentley, Deputy District Attorney for Real Party in Interest.

OPINION

In this matter petitioner Shawn Garfield Price, defendant in the criminal proceedings below, presents various challenges to Penal Code section 784.7,1 which, in specified circumstances, allows the consolidation for trial of cases arising in different counties.2  We reject his contentions and uphold the validity of the statute.   Accordingly, we will deny the petition.

STATEMENT OF FACTS

In 1995, petitioner's infant daughter suffered severe injuries while she and her father were living in Santa Clara County.   The injuries reduced the child to an essentially vegetative state, but no charges were filed against any person.   The family subsequently moved to Riverside County, where in 1998 petitioner's toddler son died, allegedly due to having been smothered.   At the time of the boy's death, the daughter, then about three years old, was found to be severely emaciated and weighed only about 13 pounds.   Petitioner reportedly admitted that in 1995 he had violently shaken her, apparently causing her injuries.

Petitioner was charged in Riverside County with the felony child abuse (§ 273a) and murder (§ 187) of his son, as well as with abuse and torture (§ 206) of his daughter.   When Santa Clara County authorities learned that he had admitted shaking the baby girl in 1995, child abuse charges were filed against him in that county as well.

Acting pursuant to the authority of section 784.7, the prosecutor in Riverside County moved for an order consolidating the two proceedings.   The trial court granted the motion and this petition followed.   Subsequently, the People filed a fourth amended complaint which essentially combines the two pleadings.

DISCUSSION

 Section 784.7, enacted in 1998 and therefore effective January 1, 1999, provides that “[w]hen more than one violation of Section 261, 262, 264.1, 273a, 273.5, 286, 288, 288a, 288.5, 289, or 646.9 occurs in more than one jurisdictional territory, and the defendant and the victim are the same for all of the offenses, the jurisdiction of any of those offenses is in any jurisdiction where at least one of the offenses occurred.” 3  The People's position is that the statute applies because child abuse charges under section 273a involving the daughter were brought in both Santa Clara and Riverside Counties, based on acts allegedly occurring in the respective jurisdictions.   Petitioner, however, argues both that the statute has been wrongly applied in the circumstances of this case, and that it is constitutionally defective.   We will address his arguments roughly in ascending order of difficulty and significance.  

I.

The Procedure Does Not Violate Section 954

Petitioner argues that the Santa Clara charge could not be joined with the Riverside charges because they are not “connected together in their commission” within the meaning of section 954.4  He asserts that the offenses were not part of a “common plan” (see People v. Matson (1974) 13 Cal.3d 35, 39, 117 Cal.Rptr. 664, 528 P.2d 752) and did not share a common motive (see Ghent v. Superior Court (1979) 90 Cal.App.3d 944, 958, 153 Cal.Rptr. 720.)

 We think petitioner's view of the scope of “connected together in their commission” may well be too narrow.   As used in the statute, “connected together in their commission” means simply that the offenses share a common element of substantial importance.  (People v. Chessman (1959) 52 Cal.2d 467, 492, 341 P.2d 679.)   If this is so, the statute may be satisfied even though the offenses do not relate to the same transaction and may have been committed at different times and places against different victims.  (See Aydelott v. Superior Court (1970) 7 Cal.App.3d 718, 722-724, 86 Cal.Rptr. 713, upholding joinder of multiple charges of lewd conduct against several minors.)

 However, there is a simpler answer to petitioner's argument.   Joinder is also authorized if the offenses are of the same class.   Offenses are of the same class if they have common attributes, such as fraudulent conduct.  (People v. Thorn (1934) 138 Cal.App. 714, 734-735, 33 P.2d 5:  forgery, keeping false accounts, and false insurance claims all of same class.)   Similarly, multiple counts involving lewd conduct with children may be joined.  (People v. Moore (1986) 185 Cal.App.3d 1005, 1012-1013, 230 Cal.Rptr. 237, involving charges of molestation, endangerment, and annoying a child.)

This criterion is clearly satisfied here.   All of the charges involve physical abuse and injury to children, either through willful neglect or actual assaultive behavior.   Nothing in the trial court's action offended section 954.

II.

The Procedure Will Not Necessarily Deprive Petitioner of a Fair Trial

 Petitioner also insists that it will violate his right to a fair trial should the charges be consolidated in Riverside County.   He notes that even if joinder is proper under section 954, the trial court retains the power to refuse to consolidate, or to sever, if joinder creates a risk of unfair prejudice.  (People v. Musselwhite (1998) 17 Cal.4th 1216, 1243-1244, 74 Cal.Rptr.2d 212, 954 P.2d 475.)   Factors to be considered include the relative strength of the cases, whether one involves particularly inflammatory facts, whether there is a “spillover” risk, and cross-admissibility of evidence.   (Ibid.)

 Petitioner claims that because evidence of the several offenses would not be cross-admissible, joinder is improper;  further, he asserts that the facts of the Santa Clara case are prejudicially inflammatory.   On the issue of cross-admissibility, petitioner has not established his premise;  it is not at all clear on the record before us that no evidence would be cross-admissible on issues of motive or intent, for example, under Evidence Code section 1101, subdivision (b).   In any event, cross-admissibility is no longer a sine qua non of joinder.  (Frank v. Superior Court (1989) 48 Cal.3d 632, 641, 257 Cal.Rptr. 550, 770 P.2d 1119;  Belton v. Superior Court (1993) 19 Cal.App.4th 1279, 1286, 24 Cal.Rptr.2d 34.)   We fail to see how a case involving allegations that a baby was violently shaken into a vegetative state is more likely to inflame a jury than one involving allegations that a toddler was smothered to death.  (See Belton v. Superior Court, upholding joinder of two cases involving drive-by gang shootings.)   And in general, the record has simply not yet been adequately developed to permit an intelligent evaluation of any claim of prejudice.   Petitioner may move to sever once the facts of the cases appear in more detail, but the trial court did not err in permitting joinder at this stage.

Petitioner also argues that he would not be harassed by separate trials (or at least that, in the circumstances, he is willing to undergo sequential prosecutions) and that there would be no judicial savings from a joint trial.   The former contention is not dispositive.   The latter contention is purely speculative and flies in the face of the legislative determination that in the circumstances described in section 784.7, cases from different counties may, or even should, be tried together.   In fact, it is far more logical to presume that there will be savings from a joint trial of the offenses, although, as we have noted above, the trial court may still sever charges if a persuasive showing of prejudice is made.  

III.

Venue is Proper in Riverside County as to All Charges

 Petitioner contends that venue is not proper in Riverside County for the Santa Clara offense.5  Venue is not a constitutional issue (see People v. Sering (1991) 232 Cal.App.3d 677, 684-686, 283 Cal.Rptr. 507) and every superior court has subject matter jurisdiction over all felonies committed in the state.  (People v. Remington (1990) 217 Cal.App.3d 423, 428-429, 266 Cal.Rptr. 183.)   The Legislature has the power to fix venue, or “territorial jurisdiction.”  (Jackson v. Superior Court (1970) 13 Cal.App.3d 440, 443, 91 Cal.Rptr. 565.)   It is true, as petitioner argues, that the general principle that venue for trial of an offense lies in the county where the offense occurred serves the purposes of convenience in the collection of evidence and obtaining the presence of trial witnesses, and therefore promotes a fair trial.  (People v. Sering, supra, at p. 687, 283 Cal.Rptr. 507.)   However, given the modern developments in both travel and transportation, as well as the statewide scope of the subpoena power (§ 1330),6 these considerations do not seriously restrict the power of the Legislature to fix venue as it sees fit.7  We find no grounds to invalidate the statute in this argument.

IV.

As Applied to Petitioner, Section 784.7 Does Not Implicate the Ex Post Facto Prohibition

 Petitioner's next contention is that if section 784.7, which became effective after the date of his offenses, is applied to him, it will violate the ex post facto prohibition found in both the California and federal Constitutions.  (U.S. Const., art.   I, § 10;  Cal. Const., art. I, § 9.) He argues that the statute deprives him of a defense to the motion to consolidate which would have existed at the time of the offenses.

 However, “[e]ven though applied to the prosecution of a crime committed before the law's effective date, a law addressing the conduct of trials still addresses conduct in the future.”  (Tapia v. Superior Court (1991) 53 Cal.3d 282, 288, 279 Cal.Rptr. 592, 807 P.2d 434.)   Therefore, “a law governing the conduct of trials is being applied ‘prospectively’ when it is applied to a trial occurring after the law's effective date, regardless of when the underlying crime was committed․”  (Id. at p. 289, 279 Cal.Rptr. 592, 807 P.2d 434.)   Although ex post facto applies to laws which abrogate a defense to a criminal charge, the Legislature may remove even a “substantial protection” formerly available to a defendant, or alter the rules to his disadvantage in other ways, without offending the Constitution.  (See Collins v. Youngblood (1990) 497 U.S. 37, 46-51.)   Here, the only “defense” of which petitioner has been deprived is a procedural protection relating solely to the conduct of trial.   Section 784.7 does not violate the ban on ex post facto laws.

V.

All Offenses Were Properly Joined

 As we have seen, section 784.7 authorizes the joinder of certain charges if “the defendant and the victim are the same for all of the offenses ․” Petitioner points out that the legislative history of the statute suggests that it was intended to cover situations of domestic violence or intrafamily child molestation-the type of offense that may occur repeatedly and in more than one jurisdiction if the family travels or moves about.   He argues that because the complaint joins offenses against both his son and his daughter, “the defendant and the victim are” not “the same for all of the offenses.”

Nothing in section 784.7 suggests that it was intended to cancel out existing rules of joinder in the circumstance in which it applies.   That statute clearly permits the joinder of the two alleged offenses against petitioner's daughter;  as to these, the “defendant and the victim are the same.”   As our earlier discussion indicates (see Part I), section 954 permits Riverside County, the situs of the 1998 offenses, to join the charges relating both to petitioner's son and his daughter.   No reason in law or logic forbids the People from joining the offenses against the daughter under section 784.7, and the offenses against the son under section 954.

Accepting petitioner's contention concerning the primary aim of section 784.7, the joinder of all charges in this case obviously serves the apparent purpose of that enactment.   Empirically we suppose that a person who is violent against one family member may be violent against another.   Thus, a husband may physically abuse his wife and also his child.   Under petitioner's contention, if the abuses were committed in two counties, the People could join all offenses against the wife in a single county, but could not join charges involving the child-even though the charges relating to both victims could have been joined in each county.   This would make no sense.

 We agree that for section 784.7 to operate, there must be offenses in two jurisdictions which have the same petitioner and the same victim.   But if charges are also pending in the transferee county which have been properly joined with the section 784.7 offense, they may remain joined.

VI.

Section 784.7 Does Not Violate the Constitutional Right of Vicinage

Finally, we arrive at the meatiest of petitioner's arguments.   All parties agree, as does this court, that the Legislature can pass no law which destroys the constitutional right to trial by a jury drawn from the vicinage.   The question is, what are the permissible expansive boundaries of the term?   In other words, how big can a neighborhood be?  

A.

First, we consider the validity of section 784.7 under federal law.

 As we have noted above (fn.7), the United States Constitution only confers a right to be tried in the state where the offense occurred.  (Art. III, § 2.) Vicinage is more expressly covered in the Sixth Amendment, which grants the right to trial by a jury drawn from the “State and district.”   The vicinage requirement is an essential feature of the right to trial by jury, and is binding upon the states under the Fourteenth Amendment.  (People v. Jones (1973) 9 Cal.3d 546, 551, 108 Cal.Rptr. 345, 510 P.2d 705 (overruled on other grounds in Hernandez v. Municipal Court (1989) 49 Cal.3d 713, 729, 263 Cal.Rptr. 513, 781 P.2d 547);  People v. Bismillah (1989) 208 Cal.App.3d 80, 87, 256 Cal.Rptr. 25.)

 It is evident that drawing a jury even from an entire state would not offend the federal Constitutional right, and in fact several federal judicial districts are entire states.  (E.g., Maryland, Kansas, and Colorado.)   As the California Supreme Court pointed out in Hernandez v. Municipal Court, supra, 49 Cal.3d at pp. 725-726, 263 Cal.Rptr. 513, 781 P.2d 547, federal courts have not held states to any more rigid standards, but have approved arrangements which result in trial by a jury drawn from a different county than that in which the offense was committed.  (See Zicarelli v. Gray (3d Cir.1976) 543 F.2d 466, 482.)   Furthermore, in State of Maryland v. Brown (D.Md.1969) 295 F.Supp. 63, 83, the court observed that “there would appear to be nothing in the federal Constitution to prevent a state from trying any criminal case anywhere within the state, with a state-wide jury․”

Indeed, it has been commented that for the colonists, the only crucial function of a vicinage requirement was that it secure the right to trial in North America.  (See Blume, The Place of Trial in Criminal Cases:  Constitutional Vicinage and Venue (1944) 43 Mich.L.Rev. 59, 64.) As the court noted in Hernandez, the concept had a strong political appeal to the colonists due to the enactment by the British Parliament of laws allowing charges of treason committed in the colonies to be tried in England.  (49 Cal.3d at p. 720, 263 Cal.Rptr. 513, 781 P.2d 547, citing Kershen, Vicinage (1976) 29 Okla.L.Rev. 803, 806-807.)

Finally, our Supreme Court has held that the “outer limits of the ‘district’ as used in the Sixth Amendment are flexible, encompassing greater or smaller areas as the Legislature deems wise․”  (People v. Jones, supra, 9 Cal.3d 546 at p. 554, 108 Cal.Rptr. 345, 510 P.2d 705.)

 In the case of section 784.7, the Legislature has, in essence, created a flexible, multi-county “district” for trial of any of the enumerated offenses by expanding venue to include a county in which a related offense was committed.  (See People v. Martin (1995) 38 Cal.App.4th 883, 888, 45 Cal.Rptr.2d 502:  “Those counties where venue lay under the venue statutes constituted a ‘district’ for vicinage requirements.”  [Emphasis added.].) “Transformations in our government as well as in our society make clear that narrowly interpreting the [Sixth Amendment] vicinage requirement is no longer warranted.”  (Hernandez v. Municipal Court, supra, 49 Cal.3d at p. 722, 263 Cal.Rptr. 513, 781 P.2d 547.)   Consolidation of the offenses, and trial of the Santa Clara charge in Riverside County, will not offend the federal Constitution.

B.

Next, we turn to the requirements of the California Constitution.

 The California Constitution does not contain an express provision relating to vicinage, a term meaning “neighborhood” or “vicinity” and used to describe the custom or right of drawing a jury from the locality in which a crime was committed.  (Black's Law Dictionary (5th ed. 1979), p. 1405;  People v. Guzman (1988) 45 Cal.3d 915, 935, 248 Cal.Rptr. 467, 755 P.2d 917.)   However, in tracing the evolution of the concept, the court in Hernandez v. Municipal Court, supra, 49 Cal.3d at page 721, 263 Cal.Rptr. 513, 781 P.2d 547 explained that the right to trial by jury selected from the vicinage was implied in our state constitution's basic guarantee of the right to trial by jury (now art. I, § 16), as well as being guaranteed by the Sixth Amendment to the United States Constitution.

It is generally assumed that the original purpose of the vicinage requirement was to ensure that a case was heard by jurors who were familiar with the parties and the locality, and could apply their own personal knowledge in evaluating the testimony or other evidence.   Nowadays, of course, the goal is to avoid a jury with such knowledge in favor of a set of 12 tabulae rasae in the jury box, applying only their common sense and intuition.  (See Hernandez at p. 720, 263 Cal.Rptr. 513, 781 P.2d 547;  also People v. Sering, supra, 232 Cal.App.3d at p. 687, 283 Cal.Rptr. 507.)   As it is no longer considered desirable that Juror Eldric be familiar with the crossroads by the oak grove where the robbery occurred, or with the morals of the allegedly outraged Dame Ethelreda, it might be thought that the sanctity of the concept of a jury drawn from the vicinage would be in danger of slippage.   So, indeed, it is.

Petitioner relies heavily on People v. Powell (1891) 87 Cal. 348, 354-360, 25 P. 481, which interpreted “vicinage” as the county in which an offense occurred and invalidated a statute which attempted to establish alternative sites for trial.   He further points out that Powell, in which the court addressed the fact that the California Constitution does not actually mention “vicinage,” held that the express right to a jury trial included the vicinage right as it existed under English common law.   Petitioner then argues that because the English common law right focussed on the county where the crime was committed, the Legislature has no power to expand it geographically.

The argument has some appeal, but Powell has not received particularly respectful treatment in the past century-plus.   As early as 1934, the court in People v. Richardson (1934) 138 Cal.App. 404, 32 P.2d 433 essentially treated Powell as old-fashioned, if not mistaken.   That case involved a statute which allowed trial in any county of the state for the offense of escape from prison.  (Former § 784;  see now § 4701.)   The court in Richardson asserted that by the time the California Constitution was adopted, the English common law itself had evolved beyond a strict adherence to any rule of trial in the county where the offense was committed, and Richardson interpreted the right to a jury of the vicinage to mean simply a jury drawn from the county where trial was had.  (138 Cal.App. at p. 407, 32 P.2d 433.) 8  (See also United States v. Katz (D.Pa.1948) 78 F.Supp. 21, 23-24, cited in People v. Crenshaw (1984) 161 Cal.App.3d 702, 706, 207 Cal.Rptr. 779.)   The court in Richardson also indicated that the Supreme Court itself had cast doubt on the continuing viability of the Powell principle in People v. Prather (1901) 134 Cal. 386, 66 P. 483.   In the latter case, the court upheld the constitutionality of section 786, which allowed various theft-related offenses to be prosecuted either in the county in which property was taken (which the court held to be the situs of the offense) or a county to which the property was taken.   Significantly, a concurring opinion in Prather complained that the court was implicitly overruling Powell without formally reconsidering the earlier case.

Furthermore, in People v. Guzman (1988) 45 Cal.3d 915, 938, 248 Cal.Rptr. 467, 755 P.2d 917, the court noted that Powell's pronouncement that the right of vicinage at common law could not be modified had been either contradicted (by out of state courts) or called into question (by lower California courts).   Although the context is neutral, the Guzman court does turn away from Powell when it comments that “the vicinage feature does not appear to have been an absolute one at common law.” 9

It is true that Powell was cited without apparent disagreement on the “vicinage equals county” point in Hernandez v. Municipal Court, supra, 49 Cal.3d at page 721, 263 Cal.Rptr. 513, 781 P.2d 547.   Indeed, Hernandez is the modern focus of petitioner's argument although that case involved the Sixth Amendment right 10 rather than the California protection.   Defendant finds support for his position in the terminal statement in Hernandez that “in California the boundaries of the vicinage are coterminous with the boundaries of the county.”  (Id. at p. 729, 263 Cal.Rptr. 513, 781 P.2d 547.)

Taken strictly at face value, this statement would dispose of our case in petitioner's favor.   However, the overall tenor of the Hernandez decision is, if anything, antagonistic to petitioner's position, and, for reasons which we will explain and which derive from that opinion, we find that Hernandez should not be applied blindly to invalidate section 784.7.

To begin with, it must be remembered that the court in Hernandez was rejecting an attempt by the defendant to secure a jury from a “vicinage” drawn narrowly to encompass the precise locality of the offense.   The court was only being asked whether juries drawn from some portion of the county (the established “district”) of the offense satisfied the Sixth Amendment;  it was not deciding how far the Legislature could go in expanding the vicinage under the California Constitution.   It must also be remembered that Hernandez overruled People v. Jones, supra, 9 Cal.3d 546, 108 Cal.Rptr. 345, 510 P.2d 705, which had previously established that a defendant did have a right to a jury drawn from the judicial district, or locality, of the offense.   Hence, the actual effect of Hernandez was to expand the acceptable definition of “vicinage;” it is therefore somewhat ironic that petitioner relies on the case to support his claim of “vicinage” as a concept which must be strictly limited geographically.   Cases subsequent to Hernandez support a further loosening of the formerly-strict limitations on the definition of the term.

In rejecting the narrower concept employed in Jones, the court in Hernandez pointed out, as we have done above, that jurors are now screened to ensure that they have no unique personal familiarity with the parties or the scene of the crime, and that this, coupled with changes in government and society mean that “narrowly interpreting the vicinage requirement is no longer warranted.”  (49 Cal.3d at p. 722, 263 Cal.Rptr. 513, 781 P.2d 547.)   This comment has been repeatedly followed in decisions upholding statutes which expand venue and thus arguably affect the right of vicinage.

 For example, section 781 provides that “[w]hen 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 an offense is in any competent court within either jurisdictional territory.”   Similarly, section 782 permits trial in either county if an offense “is committed on the boundary of two or more jurisdictional territories, or within 500 yards thereof.”   The purpose of such statutes is to “assure that venue will lie somewhere when the exact site of an offense cannot be ascertained” (People v. Bradford (1976) 17 Cal.3d 8, 15-16, 130 Cal.Rptr. 129, 549 P.2d 1225) and, presumably, to forestall challenges to venue in such cases.   It has been held that the Sixth Amendment is not violated by such statutes, at least as long as “some act ․ preliminary to or requisite to the offense charged” is committed within each county which by the statutes is granted territorial jurisdiction.11  (People v. Campbell (1991) 230 Cal.App.3d 1432, 1446-1447, 281 Cal.Rptr. 870;  see also People v. Bismillah, supra, 208 Cal.App.3d at pp. 88-89, 256 Cal.Rptr. 25.)

This case differs in that arguably section 784.7 does not require that any act related to the Santa Clara offense involving petitioner's daughter have been committed in Riverside County.   Decisions such as the above-cited cases have also been criticized, at least by defendants, as “intellectually dishonest” for accepting an assertedly de facto diminishing of the right of vicinage.  (See People v. Martin, supra, 38 Cal.App.4th at p. 888, 45 Cal.Rptr.2d 502, in which the court rejected such criticism and followed Campbell and Bismillah.)

Courts upholding the above statutes have also been compelled to confront the argument that the vicinage right protects the community's right to sit in judgment as well as the defendant's right to trial by a local jury.  (People v. Guzman (1988) 45 Cal.3d 915, 936-937, 248 Cal.Rptr. 467, 755 P.2d 917.)   In some cases, such an argument has presented real difficulties which the appellate courts have overcome only with the help of sympathetic fact situations and persuasive rhetoric.   Thus, in People v. Martin, the defendant kidnapped and murdered his victim in Ventura County, and then dumped her body in Santa Barbara County, where trial was had under section 790.12  In responding to a “community's right” argument, the court held that the statute protected the right of Santa Barbara citizens to sit in judgment on the “callous act” of dumping a naked body “expose[d] to the elements and to the animals.”   One wonders what the Martin court would have said about the “community's right to judge” if the victim's body had been found neatly clothed on the steps of a church or police station, or what “community right” it would have found if defendant had been tried in the county to which the injured victim had fortuitously been taken for unsuccessful medical attention.

In other words, in our view several of the multiple-venue statutes do affect the right of vicinage both as to the defendant and the community, and this should be acknowledged.  People v. Martin, supra, is one example.   Another is People v. Price (1991) 1 Cal.4th 324, 384-386, 3 Cal.Rptr.2d 106, 821 P.2d 610, which involved an agreement to murder formed in San Bernardino County and the actual killing in Los Angeles County.  Price nevertheless upheld venue in Humboldt County under section 781 because defendant had performed the “preparatory act” of journeying to that county and there acquiring the gun with which he committed the murder in Los Angeles County.   As a result, the Humboldt jury wound up deliberating over a savage gang-retaliation killing committed several hundred miles away.   However, the defendant in Price was also charged with a second murder and other crimes committed in Humboldt County.   Thus, trial in that county of all of the offenses served important purposes in light of modern realities, and these realities should infuse our interpretation of the vicinage requirement.

 As noted above, several of the multiple-jurisdiction statutes were enacted to solve potentially knotty problems of venue.13  Another clear factor is the desirability of permitting joinder of counts which are transactionally related, although committed in different counties.   Given the potentially astronomical costs associated with some criminal trials, there is a substantial public interest in joint trials of multiple offenses where feasible.  (See People v. Arias (1996) 13 Cal.4th 92, 126, 51 Cal.Rptr.2d 770, 913 P.2d 980.)   At least theoretically, this interest could also be that of the defendant who would otherwise face the stress and expense of multiple trials.

In contrast to this significant interest is the rapidly-diminishing importance of a trial by members of the community in which an offense was committed.

As the court remarked in People v. Campbell, supra, “we do not think criminals seriously consider the county they are in before committing crimes and how such would affect their trials if they should get caught.”  (230 Cal.App.3d at p. 1447, 281 Cal.Rptr. 870.)   Given the multiple-venue statutes which have already been upheld, some of which we have discussed above, criminals who did try to plan their crimes to obtain a “favorable” venue and jury would often be unpleasantly disappointed.

Furthermore, the holding of Hernandez, on which petitioner so heavily relies, actually results in a tacit evisceration of any effective right of vicinage, at least insofar as it may be considered valuable either to a defendant or the community.   If a defendant who commits a crime in Boyle Heights can be tried in Santa Monica, or a defendant charged with a crime in Pasadena can be tried in Compton or Lancaster,14 what has become of the right to a jury familiar with the local personae and mores?   Of course, as we have noted above, it is no longer considered desirable that the jury be familiar with the parties or the site of the crime.   The role of “ community standards” is also limited;  in the vast majority of cases, the jury's only duty is to apply a fixed law to the facts that it finds.  (See this court's discussion in People v. Ochoa (1991) 231 Cal.App.3d 1413, 1422, 282 Cal.Rptr. 805.)

It has repeatedly been observed that one of the strengths and glories of the United States Constitution is its flexibility and power to evolve with society, never more eloquently than by Justice Benjamin Cardozo:  “The great generalities of the Constitution have a content and a significance that vary from age to age.”  (Cardozo, The Nature of the Judicial Process (1921) p. 17.)   Surely our state constitution cannot be construed to have fixed in stone views and customs current in England over a century ago.

When the original California Constitution was adopted in 1849, the nation would not be connected by rail from coast to coast for twenty more years.   Within the state, virtually all journeys offered a choice between the old gray mare and shanks' mare;  the day in which the automobile made possible a transient society was a century away.   Literacy levels did not approach those of modern times, limiting the connections of culture;  and the time when an entire nation could sit in front of television and share the experience of “The Seinfeld Show,” the O.J. Simpson trial, or the Monica Lewinsky scandal was far in the future.   Conversely, an era in which qualified jurors might include a blind man,15 a woman surgeon, and an immigrant from Vietnam could hardly have been contemplated by the framers of our state constitution;  nor could a society which embraces hip-hop, salsa (the music and the condiment) and “fusion cuisine” as well as ketchup and the “Star-Spangled Banner.”   In an era when a prospective juror in Riverside is as likely to chat on the Internet with a friend in West Virginia as to gossip over the fence with his neighbor, the concept of a jury from the community begins rapidly to lose its meaning.

We have neither the power nor the desire to demolish the right of trial by members of the vicinage;  we only recognize that the term is not static, any more than is society.   Section 784.7 allows a Riverside jury to consider not only charges that petitioner abused or killed his son, and abused his daughter, in that county, but also that he previously abused the daughter in Santa Clara County.   Whatever connection the vicinage principle requires is present.   Surely Riverside jurors have as much interest in an out-of-county case involving abuse of a child who later lived in Riverside as a Santa Barbara County jury had in the out-of-county killing of a woman whose body was fortuitously dumped there.  (People v. Martin, supra.)   Petitioner is as likely to find an impartial jury in Riverside as in Santa Clara,16 as well as one reflective of his own experiences and outlook.

Section 784.7 is valid and was properly applied to transfer Santa Clara matter to Riverside County.   The order to show cause is discharged and the petition for writ of mandate or prohibition is denied.   The stay of proceedings ordered by this court is dissolved.

FOOTNOTES

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

2.   For civil cases, joinder of cases filed in different counties is accomplished through the procedure of coordination under Code of Civil Procedure section 403 et seq.

3.   In context, “jurisdiction” means “territorial jurisdiction” or venue, rather than subject matter jurisdiction.

4.   That statute permits the joinder of offenses which are “connected together in their commission, or ․ two or more different offenses of the same class of crimes or offenses.”

5.   Although as a practical matter venue usually follows vicinage, the two concepts are distinct.  (People v. Tamble (1992) 5 Cal.App.4th 815, 819-820, 7 Cal.Rptr.2d 446.)   Venue simply refers to the (proper) place of trial, while vicinage incorporates the principle that trial should be by a jury from the locality.

6.   A witness may not be compelled to attend trial more than 150 miles from the place of his residence unless the subpoena has been endorsed by a judge.   However, endorsement is virtually mandatory if the attorney or other officer seeking the subpoena files an affidavit stating that the witness's testimony will be material.  (See Lucas v. Superior Court (1988) 203 Cal.App.3d 733, 741, 250 Cal.Rptr. 76.)

7.   We will later discuss the federal concept of proper vicinage.   At this point, note that under article III, section 2 of the United States Constitution, venue is statewide-“in the State where the said Crimes shall have been committed.”   Thus, it is apparent that there is no federal constitutional right to venue which is truly “local” or “in the neighborhood.”

8.   The Richardson court also correctly notes that the holding of Powell described above was joined with an alternative holding, in which the court affirmed the result even if the venue statute under consideration was valid.

9.   Guzman involved the issue of whether the right to a jury of the vicinage could be waived by counsel, in moving for change of venue, over a defendant's objection.   The court held that it could, finding that the right was not personal to the defendant.

10.   “Hernandez, however, does not invoke the provisions of the California Constitution.   Rather, he relies on the rights secured by the Sixth and Fourteenth Amendments of the federal Constitution.”  (49 Cal.3d at p. 721, 263 Cal.Rptr. 513, 781 P.2d 547.)   In Hernandez, defendant's case was transferred from one municipal court district to another, both within Los Angeles County.   Defendant asserted a right to have jurors drawn from the judicial district in which the offense occurred, not merely from the entire county or from another district within the county.   Thus, Powell was not directly significant because any requirement of that case that jurors be drawn from the county of the offense was clearly going to be satisfied notwithstanding the transfer of the case from one judicial district to another.

11.   A very broad example is section 184, which confers territorial jurisdiction for a conspiracy charge on any county in which an overt act is committed.

12.   That statute permits trial of a homicide charge either in the county in which the injury was inflicted, the county in which the victim died, or the county in which the body was found.

13.   At common law, for example, an offense committed partially in one county and partially in another could not be prosecuted in either county.  (See People v. Powell, supra, 87 Cal. at p. 358, 25 P. 481.)   Hence, multiple-jurisdiction statutes are often called “remedial,” as their intent is to remedy undesirable effects of the strict original concept of trial by a jury drawn from the vicinage.  (E.g., People v. Campbell, supra, 230 Cal.App.3d at p. 1447, 281 Cal.Rptr. 870.)

14.   Superior Court branches in Los Angeles County are found in Santa Monica, Pasadena, and Lancaster.

15.   Code of Civil Procedure section 203, which sets forth the qualifications of jurors, no longer includes any requirement that the prospective jurors possess their “faculties.”  (See People v. Fauber (1992) 2 Cal.4th 792, 817, 9 Cal.Rptr.2d 24, 831 P.2d 249, recognizing that persons with hearing impairments, for example, are qualified to serve as jurors.)

16.   “Impartiality may, in fact, be better served by juries drawn from areas not in close proximity to the crime.”  (United States v. Grisham (11th Cir.1995) 63 F.3d 1074, 1080, italics omitted.)

GAUT, J.

HOLLENHORST, Acting P.J., and McKINSTER, J., concur.