Opinion
NOT TO BE PUBLISHED
Super. Ct. No. SF097851A
SCOTLAND, P. J.
Defendant James Bates was convicted of two counts of forcible oral copulation, two counts of forcible rape, and one count of sexual battery by restraint. He was sentenced to an aggregate term of 100 years to life in state prison.
On appeal, defendant claims there is insufficient evidence of “territorial jurisdiction” to support the jury’s finding that the forcible oral copulation offenses were committed in San Joaquin County. We shall affirm the judgment.
FACTS AND PROCEDURAL BACKGROUND
Defendant began sexually molesting the victim when she was 14 years old. Eleven years earlier, he had molested the victim’s then 7-year-old sister.
After defendant was released from custody for the earlier offense, the victim began visiting him at his residence in Stockton, where he lived in a shed in the backyard of a home. In September and October 2003, she lived with him in the shed, along with her cats.
Defendant had threatened the victim that if she did not come and stay the night with him, he would kill one of her cats. Indeed, he choked a kitten to death and brought the dead kitten to the victim at her mother’s house in Stockton. He told the victim it was her fault because she had not wanted to come to his place of residence.
In September and October 2003, defendant started having sexual intercourse with the victim at his shed and at her mother’s house. Defendant pressured the victim to have sex; sometimes he hit her with a back scratcher, and other times he hit her on the face and legs. She felt that she could not get away because defendant would hit her and she was afraid of the dog that lived on the property. Defendant had intercourse with the victim over 20 times, and she became pregnant while staying at the shed. Defendant also made the victim masturbate him and orally copulate him.
At the end of 2003 or beginning of 2004, the victim and her mother moved to an apartment in Sacramento. Defendant would visit the victim there.
At trial, the victim testified she orally copulated defendant only twice, both times in Sacramento, against her will. On one of those occasions, defendant called her a bitch and hit her hard in the stomach, even though she was pregnant at the time. She denied that the oral copulation occurred in Stockton. However, when she had been interviewed by a social worker, the victim said defendant had made her orally copulate him more than 10 times. And she had told a detective that “everything” happened in Stockton.
The victim, who had given birth to their child, testified that she loved defendant and she did not want him to get into trouble. An expert testified about child sexual abuse accommodation syndrome.
After the victim had testified, and during the detective’s testimony, defense counsel objected to any evidence about incidents that might have occurred in Sacramento. Counsel ultimately made a motion for judgment of acquittal of the two counts of forcible oral copulation, on the ground that the only evidence offered in support of the charges is that the acts occurred in Sacramento County, not in San Joaquin County as alleged in the charging document. (Pen. Code, § 1118.1; further section references are to the Penal Code.) The motion was denied.
The court also denied defendant’s subsequent motion for new trial on the ground that there was insufficient evidence “any act of oral copulation was ever accomplished in San Joaquin County.”
At defendant’s request, the jury was instructed that the jury could convict defendant only of crimes that occurred in San Joaquin County.
DISCUSSION
Defendant’s sole claim on appeal is his forcible oral copulation convictions must be reversed because “the evidence is insufficient to prove that those crimes occurred in San Joaquin County and[,] therefore, the trial court lacked territorial jurisdiction.”
What defendant has entitled as “territorial jurisdiction” is more properly referred to as venue. Territorial jurisdiction relates to the court’s ability to address criminal activity which occurs in multiple states; it is akin to the notion of personal jurisdiction in a civil action. (Hageseth v. Superior Court (2007) 150 Cal.App.4th 1399, 1405-1409.) A challenge to the territorial jurisdiction of the court implicates its fundamental jurisdiction, i.e., its ability to even hear the case.
Even calling the substance of defendant’s claim a challenge to venue is not correct. Venue does not implicate the court’s ability to hear the matter. Venue “simply denotes the place or places appropriate for a defendant’s trial.” (People v. Posey (2004) 32 Cal.4th 193, 207.) Venue is a question of law, not of fact. (Id. at p. 211.) The facts underlying a venue determination must be proved by a preponderance of the evidence. (Id. at p. 218.) The issue of venue is forfeited if not raised prior to trial (People v. Simon (2001) 25 Cal.4th 1082, 1103-1104, 1107) -- it was not in this case; and if the information had alleged the acts of forcible copulation occurred in Sacramento, there are statutory provisions by which those counts could have been tried in San Joaquin County rather than Sacramento County.
Generally, an offense is triable in the county in which the crime was committed. (§ 777.) However, there are a number of statutory provisions establishing venue in additional counties. (See People v. Posey, supra, 32 Cal.4th at p. 209, fn. 7.) Thus, for example, if a crime was committed in part in one county and in part in another county, venue is proper in either. (§ 781.) “Under section 781, a public offense may be tried in a jurisdiction in which 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.) Section 784.7 “expands venue for specified offenses [including forcible oral copulation] to permit crimes involving the same defendant and the same victim that occurred in different counties to be tried in the same county”; its purpose “is to permit offenses occurring in different counties to be consolidated so that a victim may be spared having to testify in multiple trials in different counties.” (People v. Betts (2005) 34 Cal.4th 1039, 1059.)
The matter presented at trial actually was an evidentiary issue, i.e., was there sufficient evidence that forcible oral copulation occurred in San Joaquin County as was alleged in the information? The jurors were asked to determine this as a factual matter beyond a reasonable doubt. They were specifically instructed on this point.
Thus, the claim on appeal is really a claim of insufficient evidence to support the conviction, which is how we will address it.
In assessing a claim of insufficient evidence, we view all the evidence in the light most favorable to the judgment and presume in support thereof the existence of every fact the jurors reasonably could deduce from the evidence; “we must accord due deference to the trier of fact and not substitute our evaluation of a witness's credibility for that of the fact finder.” (People v. Jones (1990) 51 Cal.3d 294, 314.)
Applying this standard of review, we find substantial evidence supports the jury’s determination that acts of forcible copulation took place in San Joaquin County.
The victim initially told the detective that “everything” happened in Stockton. At trial, the victim testified that, while she did not tell the social worker about all that happened between the victim and defendant, everything she told the social worker was true. This necessarily included that she orally copulated defendant more than 10 times. A videotape of her interview by the social worker was shown to the jurors. In light of evidence of the victim’s remaining feelings for defendant, and the expert testimony on a child abuse victim’s tendency towards secrecy, accommodation, and statement retraction, the jurors reasonably could have believed the victim’s statements to the detective and the social worker over the victim’s inconsistent testimony at trial.
Throughout her testimony and interviews, the victim made it clear that she did not want to orally copulate defendant. In her interview with the social worker, the victim was asked if defendant ever made her do anything she did not want to do. She replied that he made her orally copulate and masturbate him. Asked by the social worker why she could not get away from defendant when he was asking her to do things she did not want to do, the victim talked about the dog and also about defendant hitting her. The dog was a reference to the dog on the property in Stockton where defendant’s backyard shed was located. This evidence supports a finding that acts of forced oral copulation occurred in San Joaquin County.
At trial, she testified she wanted to have sexual intercourse with him.
After talking about a specific act of oral copulation that “I don’t like,” the victim was asked whether there was a place other than the shed where anything happened. She replied: “At my mom’s house,” where her “mom wouldn’t let him stay the night.” The victim’s mother testified that she had not allowed defendant to stay overnight at her house in Stockton, but he would spend up to four to five nights at her Sacramento apartment when he visited there. It also appears the victim, the prosecutor, and defense counsel generally referred to the mother’s house in Stockton as “mom’s house” and to the apartment in Sacramento by using the name of the street it was on. This, too, supports the finding that acts of forcible oral copulation occurred in Stockton.
In sum, there was substantial evidence from which the jury could find that the charged offenses of forcible oral copulation occurred at the house of the victim’s mother in Stockton and at the shed in Stockton where the victim stayed with defendant in September and October 2003.
DISPOSITION
The judgment is affirmed.
We concur: BLEASE, J. NICHOLSON, J.