Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06F4730
Retired Associate Justice of the Court of Appeal, Third Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Defendant Dennis Wayne Mize pleaded no contest to threatening to commit a crime that would result in death or great bodily injury. (Pen. Code, § 422.) He admitted three prior serious felony allegations (§ 667, subd. (a)) and a strike allegation (§§ 667, subds. (b)-(i), 1170.12). In exchange, counts of assault by force likely to produce great bodily injury (§ 245, subd. (a)(1)) and obstructing a peace officer (§ 148, subd. (a)(1)) were dismissed, along with several enhancing allegations. Defendant was sentenced to state prison for 19 years. The trial court issued a certificate of probable cause.
Hereafter, undesignated section references are to the Penal Code.
On appeal, defendant contends his motion to dismiss for lack of venue in Shasta County was erroneously denied. We shall affirm the judgment.
Because the matter was resolved by plea, our statement of facts is taken from the hearing on the motion to dismiss for lack of venue.
Suzanne Rodriguez testified for the prosecution that she had an argument with defendant, her boyfriend, on an afternoon in June 2006. She “thought it would be better that we took off and went somewhere.” They purchased gasoline, packed a blanket, a 12-pack of beer, and some tomato juice and left their residence in Redding, which is in Shasta County, and drove toward Weaverville, which is in Trinity County. Defendant was the driver. No one else was in the car.
Shortly after leaving Redding, defendant and Rodriguez found themselves on a winding two-lane road that ascended a mountain where there were no houses, lots of trees, and very little traffic. Rodriguez and possibly defendant were drinking during the trip. Defendant got upset at Rodriguez because she had taken too long to return to the car from the gas station. He started hitting her on the left side of her body while he drove and she sat in the passenger seat. Her lip was injured, her nose started bleeding, and her entire left side was bruised. Blood spilled from her face onto the paneling of the passenger door. She asked defendant to stop the car so she could get out.
Both defendant and Rodriguez had to use the restroom, so defendant pulled off the road onto a little dirt roadway. Rodriguez got out of the car, used the restroom, and then started to walk back to the road. Defendant stopped her, put his hands around her neck, and started to choke her. She fell to the ground; he kicked her and told her to get back into the car or he would kill her. She returned to the car because she was afraid.
Defendant discontinued the trip to Weaverville. He turned the car around and they descended back down the winding road toward Redding. It was still light outside. Rodriguez, who was scared, put her arms up in the air and tried to get the attention of an oncoming motorist. A couple in an oncoming car looked right at them. Defendant immediately pulled over into a turnabout. Rodriguez got out of the car and flagged down a truck. The truck driver assisted Rodriguez by calling an ambulance and the police. She recalled that it was dusk when she flagged down the passerby.
Around 8:35 p.m., Deputy Nelson responded to a call on Highway 299 westbound. He arrived on the scene a few minutes later. At the venue hearing, it was stipulated that the scene is in Shasta County, 19.4 miles from the Trinity County line, and 4.4 miles from the Shasta County courthouse.
Contrary to Rodriguez’s testimony that she and defendant were alone, Kelly Bohannan testified for the defense that he and his sister, Candi Kenyon, were passengers during the trip. Bohannan was seated behind defendant, and Kenyon was seated behind Rodriguez.
Bohannan estimated that after they left the house, they drove for 35 to 40 minutes, passed Whiskeytown Lake, and then drove another 30 to 40 miles. He was uncertain where they were or how long they had driven because “most of the time [he] was passed out.” However, he claimed that it was “good and dark” before they turned the car around. He claimed that Rodriguez had been drinking before the trip began and continued drinking as they drove. She was antagonistic and belligerent, and she continually bickered at defendant. Defendant, who was driving, never struck her.
At some point during the drive, defendant stopped the car for a bathroom break. Bohannan remembered crossing a bridge and seeing a sign that said Weaverville was six, seven, or eight miles away. At the stop, Rodriguez got out of the car and walked out of sight. Bohannan heard Rodriguez screaming and yelling, believed he heard her fall down a hill, and then saw her tangled up in her clothes and the surrounding bushes. Defendant helped her back up the hill.
Bohannan saw Rodriguez stagger to the roadway and saw a truck coming in their direction. Defendant ran over to Rodriguez and tackled her to get her out of the truck’s way. Bohannan noticed that Rodriguez was bleeding from her nose and was complaining of pain in her ribs and shoulder. Believing Rodriguez may need medical attention, the group headed back toward Redding.
Rodriguez continued to complain that she was hurt; she asked for another beer and drank it. Bohannan fell asleep again and did not recall anything until they got to his mother’s house. Bohannan entered the house, got something to eat, and went to sleep.
Bohannan testified that in November 2006 he was arrested and placed in the Shasta County jail. At one point during his jail term, he and defendant were in the same pod and spent most of their days together. Bohannan claimed that defendant did not talk about his case.
Bohannan added that he and defendant were in jail at the same time again in July 2007. Bohannan slept most of the time and did not talk to defendant.
Bohannan’s sister, Candi Kenyon, testified for the defense that she was in the car when the group took the trip to Weaverville. She recalled that they left a little before dark, around 7:00 p.m., drove down Swasey Drive, and then went west about 30 miles on Highway 299. During the trip, Rodriguez was argumentative, was hitting defendant, and wanted out of the car; Kenyon tried to persuade Rodriguez to desist. Kenyon never saw defendant hit or threaten Rodriguez.
When the car stopped, Rodriguez got out of the car and ran up and down the road. Defendant tried to get her back inside the car. When she reentered the car, Kenyon noticed that Rodriguez’s face and nose were bleeding because she had been falling down. The group turned around and headed back toward Redding.
Rodriguez continued to hit defendant, but Kenyon did not see defendant retaliate. After passing Whiskeytown Lake, defendant stopped and let Rodriguez out of the car and the group continued back to Redding and Kenyon’s mother’s house. Kenyon left the house for a while; when she returned, law enforcement was there.
Some time thereafter, Kenyon and a defense investigator traveled westbound on Highway 299 in an attempt to locate the area in which defendant had turned the car around. Kenyon identified an area past a bridge where a sign indicated that Weaverville was seven miles away. The investigator testified that the sign is located in Trinity County, over 20 miles from the Shasta County line.
During the venue hearing, the trial court examined letters defendant had written to Rodriguez’s cat, Gracie, following a court order that he have no contact with Rodriguez. In one letter, defendant wrote that the group had pulled over “at the Weaverville ten mile sign.” In another letter, he referred to an area just past the Weaverville ten mile sign. In yet another letter, he stated, “[a]t Swazey [sic] Drive I pulled over, took off my shirt and poured beer on her and waved [sic] her face which hurt her nose.” Defendant wrote that it was his “hope to get this domestic case dropped in Shasta County because [he] doubt[ed] that Trinity County will even pick it up.” In a final letter, defendant wrote, “[a]s long as Suzie [Rodriguez] recalls that we passed the ‘Weaverville ten miles’ sign, Shasta County will have to ‘dismiss with prejudice,’ which means the DA cannot refile it.”
The trial court found by a preponderance of the evidence that at least a portion of the assaultive behavior occurred inside the car. The finding was based upon Rodriguez’s testimony and the physical evidence of blood inside the car. The court found that the testimony of Bohannan and Kenyon was “less than fully credible.” The motion to dismiss for lack of venue was denied.
Discussion
Defendant contends that section 783, regarding the venue of offenses committed in a motor vehicle, does not apply and venue was not proper because the offense was committed outside of the car while it was stopped in Trinity County. We conclude that under either of two applicable statutes, the case was properly adjudicated in Shasta County.
“Whether jurisdiction was proper was a question of fact, which the prosecution had the burden of proving by a preponderance of the evidence. [Citation.] On review, a trial court's determination of territorial jurisdiction will be upheld as long as there is ‘some evidence’ to support its holding. [Citations.]” (People v. Gutierrez (2002) 28 Cal.4th 1083, 1117 (Gutierrez).)
Section 777 states the general rule for venue in criminal actions: “‘[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.’ In other words, under section 777 venue lies in the superior court of the county in which the crime was committed, and a defendant may be tried there. [Citations.]” (People v. Posey (2004) 32 Cal.4th 193, 199 (Posey).)
Section 781 provides one of the many exceptions to the general rule for venue. (Posey, supra, 32 Cal.4th at p. 199.) Section 781 states: “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.”
“Thus, under section 781, when a crime is committed partly in one county and partly in another county, or when the acts or effects constituting the crime or requisite to its commission occur in more than one county, venue is in the superior court in each of the counties in question, and a defendant may be tried in any of them. [Citations.]” (Posey, supra, 32 Cal.4th at pp. 199-200.)
“Section 781 is construed ‘liberally in order to achieve its underlying purpose, which is to expand venue beyond the single county in which a crime may be said to have been committed.’ [Citation.] The phrase ‘acts or effects... requisite to the consummation’ [citation] of a crime does not require that those acts amount to an element of the crime. [Citation.] These words encompass preparatory acts. ([]Posey, supra, 32 Cal.4th at p. 219 [telephone call made to county of venue for purpose of planning crime was sufficient preparatory act]; [People v. ]Price[ (1991)] 1 Cal.4th [324,] 384–386 [(Price)] [theft of firearms in county of venue, leading to murder in another, was sufficient preparatory act].)” (People v. Betts (2005) 34 Cal.4th 1039, 1057.)
In addition, “Section 781 should be interpreted in a commonsense manner with due regard to the factual circumstances of the case rather than technical niceties. [Citation.]” (People v. Williams (1973) 36 Cal.App.3d 262, 268 (Williams); accord, People v. Bismillah (1989) 208 Cal.App.3d 80, 85 (Bismillah).)
In this case, the overarching “factual circumstance[]” is the ongoing argument between a boyfriend and girlfriend. (Williams, supra, 36 Cal.App.3d at p. 268.) The argument originated in Shasta County prior to the commencement of the car trip and, in fact, supplied the impetus for the trip. The argument became physical following a stop at a Shasta County gas station and resulted in a bloody nose and bruising. The bleeding and bruising, in turn, prompted the request to stop the car to use a bathroom. That stop, in Shasta County or Trinity County, culminated in the dismissed count of choking the victim and the admitted count of threatening to kill her. Defendant’s claim that “[t]here is no logical cross-connection between” the assault and threat offenses has no merit.
The evidence showed that acts requisite to the commission of the death threat occurred in two jurisdictional territories, Shasta County and Trinity County. (Posey, supra, 32 Cal.4th at pp. 199-200.) No evidence suggested that defendant would have threatened to kill Rodriguez even if their original argument, their stop at the Shasta County gas station, and the ensuing fisticuffs inside the car had not occurred. Just as theft of firearms in one county, leading to murder in another county, is sufficient for venue in the first county (Price, supra, 1 Cal.4th at pp. 384–386), so too an argument and fisticuffs in one county, leading to choking and a threat to murder in another county, is sufficient to establish venue in the first county. “[V]enue is proper in a county where only... acts leading to commission of the crime occur.” (Bismillah, supra, 208 Cal.App.3d at p. 85; accord, Gutierrez, supra, 28 Cal.4th at p. 1118.)
The trial court’s ruling appears to have been based on section 783, which, like section 781, is also an exception to the general rule of section 777. Section 783 provides in relevant part: “When a public offense is committed in this State,... on a... motor vehicle,... the jurisdiction is in any competent court, through, on, or over the jurisdictional territory of which the... motor vehicle... passes in the course of its... trip, or in the jurisdictional territory of which the... trip terminates.”
Section 783 has been held inapplicable where “the vehicle was stopped and the offenses were committed outside the vehicle at an identifiable spot along the highway.” (People v. Bradford (1976) 17 Cal.3d 8, 15, italics added; see id. at pp. 15-17 (Bradford).) Defendant presented the testimony of Bohannan and Kenyon that the group stopped near a sign stating that Weaverville was seven miles away. If believed, this testimony locates the stop in Trinity County. However, Rodriguez contradicted the defense witnesses by stating that she and defendant were alone in the car. She was not sure where they stopped to use the restroom. The trial court found Bohannan’s and Kenyon’s testimony to be “less than fully credible” and chose to believe Rodriguez. Thus, the location of the stop was not “identifiable” within the meaning of Bradford. Defendant’s argument that there was “no question” but that the location of the criminal threat was “well inside Trinity County” has no merit.
Bradford recognized that the “purpose” of “‘in-transit’ statutes such as section 783” is “to assure that venue will lie somewhere when the exact site of an offense cannot be ascertained because it was committed in a moving vehicle.” (Bradford, supra, 17 Cal.3d at p. 16.) Where, as here, the “exact site” of the crime “cannot be ascertained” because the “vehicle” was “moving” both before and after a brief pause during which the occupants emerged and a death threat was uttered, the need “to assure that venue will lie somewhere” arises and application of section 783 is proper. (Ibid.)
As noted, section 783 provides venue “in the jurisdictional territory of which the... trip terminates.” In this case, the “trip” ended when Rodriguez flagged down the truck driver, who called an ambulance and the police. It was stipulated that this location is 19.4 miles from the Trinity County line and 4.4 miles from the Shasta County courthouse. For this reason too, venue in Shasta County was proper. Defendant’s dismissal motion was properly denied.
Disposition
The judgment is affirmed.
I concur: HULL , J.
I concur in the majority opinion.
I question whether defendant’s contention of improper venue is cognizable at all following a plea of no contest, even with a certificate of probable cause. (See People v. Krotter (1984) 162 Cal.App.3d 643 [issue of failure to change venue not cognizable following plea of nolo contendere, even with certificate of probable cause].) However, since the People make no claim that the issue is not cognizable, and since the judgment is affirmed in any event, I do not see the value of pressing the issue in this case. However, I reserve the right in a future case to conclude the issue is not cognizable following a plea of guilty or no contest.
SIMS, Acting P. J.