Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 62-049044
BUTZ, J.A jury convicted defendant Charles Ray Smith of 14 out of 15 counts involving sexual offenses (and one count of burglary) against four different victims between June and November of 2004, one of whom was 13 years old. Five of the convictions involved an attack on a coworker at a park in Sacramento County; the remaining crimes took place in Placer County. The trial court sentenced him to state prison on all counts except the burglary, on which it stayed sentence. (Pen. Code, § 654.)
Undesignated statutory references are to the Penal Code.
On appeal, defendant contends that he was deprived of the right to counsel at the hearing on his competence to stand trial. He also argues that trying him on the Sacramento County offenses in Placer County violated the provisions of state law, constituted an arbitrary deprivation of the protections of state law in violation of due process, and violated his vicinage right under the federal Constitution. We shall affirm.
Additional facts underlying defendant’s convictions are not germane to the issues on appeal, so we omit them. We will incorporate the pertinent facts in the Discussion.
DISCUSSION
I. Sixth Amendment Right to Counsel
A. Background
Defendant retained the services of a firm known as Criminal Defense Associates, which apparently consisted of lawyers from cities throughout California. At various times, different attorneys from the firm appeared for defendant, based in offices in Woodland Hills, Santa Cruz, and Sebastopol. Before the scheduled hearing for trial assignment on May 18, 2007, Attorney Marie Alex filed a motion to suspend the proceedings to assess defendant’s competence to stand trial, and expressed her doubts to Judge Gaddis when she appeared in court. Judge Gaddis suspended the proceedings and referred defendant to a psychologist for evaluation, and set the matter for hearing on June 29.
After meeting with defendant, the psychologist filed his evaluation with the court on June 22. He found that, though significantly depressed, defendant was competent to stand trial.
On the day before the June 29 hearing, Attorney Alex filed a notice that her law firm had gone bankrupt a week earlier and she could not continue to represent defendant on her own because she had accepted employment with a public defender’s office. She requested the court either to appoint the Placer County public defender or contact the Sebastopol attorney, Kristine Burk, who had represented defendant at the preliminary hearing. Attorney Burk had expressed the willingness to take responsibility for defendant’s case.
When the court (Judge Couzens presiding, according to the minutes) called the case on June 29, a “Ms. Davidson” (who is not further identified in the reporter’s or clerk’s transcript) stated, “I will make a special appearance. I overheard a conversation earlier.” The court discussed the information in the notice from Attorney Alex, and determined that defendant had not yet heard from any attorney from the now-defunct firm; it told defendant, “The most important thing is that you are represented by counsel. The attorney that appeared here earlier this morning appeared on behalf of a member of the firm which is known as the Criminal Defense Associates.” (There is nothing in the clerk’s or reporter’s transcript regarding this earlier appearance.) The court expressed its understanding that the parties were prepared to submit the matter of defendant’s competence on the psychologist’s report. Ms. Davidson replied, “That was my understanding during the conferencing.” The court found defendant to be competent and reinstated proceedings. The court told defendant that there would be a hearing in two weeks to set a trial date and make sure that he had counsel.
At the next hearing on July 13, defendant confirmed that Attorney Burk would be resuming her representation of him. The court’s clerk confirmed this in a phone call to counsel’s office and determined that she could be present on July 26, when defendant could decide whether to proceed with her or with the public defender. She thereafter represented defendant pro bono.
B. Analysis
Based on the skeletal nature of the record, defendant asserts that it does not affirmatively demonstrate that Ms. Davidson was even an attorney, let alone one familiar enough with the facts of the case to make the decision to submit the matter of his competence to stand trial on the psychological evaluation. He contends that this establishes the deprivation of his right to counsel at the competency hearing. The problem with his argument is that it stands basic appellate principles on their heads.
A judgment is presumed correct, and therefore where the record is silent we assume matters were done properly absent affirmative evidence to the contrary, which is an appellant’s burden to provide. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296; Denham v. Superior Court (1970) 2 Cal.3d 557, 564; Mountain Lion Coalition v. Fish & Game Com. (1989) 214 Cal.App.3d 1043, 1051, fn. 9; Evid. Code, § 664.) Among the things we presume is the competent performance of counsel’s duties off-record. (Conservatorship of Mary K. (1991) 234 Cal.App.3d 265, 272.)
There is no indication that appellate counsel ever sought to settle the record about the events of June 29 to support her suppositions. Rather, she has attempted to piece together the implausible (that a court would allow a lay person to make an appearance on behalf of defendant), the unlikely (that an attorney would presume to appear on behalf of a criminal defendant and make a tactical decision with respect to a ruling on his competence without being aware that this was the intent of the attorney actually representing him), and the dubious (that the Sebastopol attorney, who was familiar with defendant from the preliminary hearing, would let the matter proceed to trial without revisiting the issue of competency if she had any doubts on the subject), all to the end of creating a shroud of reversible error per se. The suppositions fail; we will not reverse a judgment based on mere conjecture. (People v. Ayala (2000) 24 Cal.4th 243, 267 [will not reverse because of mere possibility that record is incomplete].) We therefore reject the argument.
II. Jurisdiction Over the Sacramento County Offenses
A. Background
The complaint alleged that jurisdiction over the Sacramento County offenses was proper pursuant to section 784.7. At the November 2005 preliminary hearing, the prosecutor submitted as an exhibit a letter from the Sacramento County District Attorney “regarding [the] special allegation regarding [section 784.7].” When asked if she had any objection, Attorney Burk said, “No objection for purposes of [the] preliminary hearing.” The magistrate received the letter into evidence. (Defense counsel did not raise the issue of venue in her argument. The magistrate held defendant to answer on the Sacramento County counts (counts eleven through fifteen).
In pertinent part, section 784.7 provides, “When more than one violation of... [various sexual crimes] occurs in more than one jurisdictional territory, the jurisdiction of any of those offenses... is in any jurisdiction where at least one of the offenses occurred, subject to a hearing, pursuant to Section 954, within the jurisdiction of the proposed trial. At the Section 954 hearing, the prosecution shall present evidence in writing that all district attorneys... agree to the venue.” (§ 784.7, subd. (a).) (Emphasis added.) While phrased in terms of “jurisdiction,” this is not jurisdiction in the fundamental sense (i.e., subject matter), but is instead simply venue. (People v. Sering (1991) 232 Cal.App.3d 677, 685, overruled in part on a different ground in People v. Posey (2004) 32 Cal.4th 193, 205, fn. 5, 210.)
The court arraigned defendant on all counts in the information (which again included the allegation invoking section 784.7) without any objection. In September 2006, defendant moved to sever the allegations of the Sacramento County victim into a separate trial, invoking section 954 in claiming that weaker cases were joined with stronger cases. He also asserted in a single sentence that “trying counts involving incidents in various counties will be time[ ]consuming, costly[,] and would undoubtedly confuse the issues for the jury.” His motion to set aside the information, filed at the same time, did not raise the issue of jurisdiction over the Sacramento County offenses. At the September 12, 2006 hearing on the motion, defendant did not make any further reference to the issue other than in an aside, questioning why Sacramento County did not prosecute the offenses against that victim if it was a strong case. The court denied the motions. Defendant renewed the severance motion before trial without elaboration, and the court summarily denied it.
At the conclusion of trial, the parties were discussing the exhibits. Attorney Burk wanted the Sacramento County assent letter to be marked as part of the record without its submission to the jury. The prosecutor noted there had not been any testimony about the letter: “[Defense counsel] and I actually discussed this I think even before the trial began. And the jurisdictional issue is not a point of contention. There is no disagreement. I don’t believe there has been any argument that we can’t try [these] violation[s] because [they] happened in Sacramento County.” Defense counsel responded, “I don’t think the jurors need it. I think [the prosecutor] just wanted to make sure that it was part of the Court record to demonstrate that he had it and they presented it at [the] preliminary examination. The issue was raised at that stage of [the] proceedings.” The court retained the letter in its files without admitting it into evidence.
Flying in the face of these facts, defendant argues that the prosecution failed to satisfy the requirements of section 784.7. He claims he has not forfeited the issue because it was the prosecution’s burden to establish jurisdiction, and the prosecution never moved to consolidate the Sacramento County counts with the remainder. He thereby distinguishes People v. Simon (2001) 25 Cal.4th 1082, a case decided before the 2002 amendment of section 784.7 that added this obligation on the part of the People to make a section 954 motion. Simon had held that a defendant’s failure to raise an objection to venue prior to the commencement of trial forfeits the issue on appeal, because his plea of not guilty does not by itself impose any obligation on the prosecution to address venue. (Simon, at pp. 1107-1108.)
This is the proverbial distinction without a difference. The principle in Simon is not dependent upon the particular default on the part of the People; rather, it is the need to give timely indication to the People that there is a flaw with the proof of proper venue with which defendant actually takes issue (rather than simply consenting to the venue). In the present case, defense counsel satisfied herself that the prosecutor had the proper assent from Sacramento County, and also invoked her right to seek severance of the Sacramento County counts on the ground that they occurred in another county. Having received in fact all the protections that section 784.7 provides, defense counsel then consented to trial without further objection to venue (as she acknowledged expressly at trial’s close). Appellate counsel cannot now resurrect this dead issue.
Since we reject defendant’s claim that he was deprived of a statutory right arbitrarily, we reject his claim that his trial violated his right to due process.
C. Vicinage
Price v. Superior Court (2001) 25 Cal.4th 1046 held that the vicinage provision of the federal Constitution did not mandate a trial in the county where a crime took place, but in any event this was not among the provisions of the federal charter that are applicable to the states; therefore, section 784.7 does not violate the federal Constitution. (Price, at pp. 1059, 1063, 1065, 1069; see also id. at p. 1075 [§ 784.7 does not violate vicinage provision of Cal. Const.].)
“Vicinage” is the area from which a court draws its jury pool. (People v. Guzman (1988) 45 Cal.3d 915, 934, overruled in part on a different ground in Price v. Superior Court, supra, 25 Cal.4th at p. 1069, fn. 13.)
Defendant argues that Price is not the last word on the reach of the vicinage provision of the federal Constitution. He then attempts to assert that section 784.7 violates his rights in this regard.
The California Supreme Court’s “independent constitutional obligation to interpret” federal law (In re Tyrell J. (1994) 8 Cal.4th 68, 79, overruled on different grounds in In re Jaime P. (2006) 40 Cal.4th 128, 130) is restricted only by a decision of the federal high court that directly decides the issue or “a premise from which it necessarily follows” (People v. Whitfield (1996) 46 Cal.App.4th 947, 957); in the absence of any such paramount authority the subordinate federal courts having only “persuasive” power we must follow the rulings of the California Supreme Court (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455; see also In re Tyrell J., at p. 79 [no controlling high court case]; Whitfield, at pp. 956-957 [must follow a controlling “premise” contrary to state law]; People v. Dunn (1995) 40 Cal.App.4th 1039, 1050 [no controlling high court case]; People v. Rooney (1985) 175 Cal.App.3d 634, 644 [same]). We therefore reject defendant’s argument on the basis of Price.
DISPOSITION
The judgment is affirmed.
We concur: RAYE , Acting P. J., HULL , J.