JURISDICTION and VENUE
RC Phillips, DDA (Ret.)
October, 2021
This P&A explains the distinction between jurisdiction and venue; discusses statutory venue requirements; and reviews the procedures for a defense objection to venue and the People’s burden in responding.
I. JURISDICTION
A. “Jurisdiction” Generally
1. As the California Supreme Court has noted, the term “jurisdiction” is “notoriously subject to confusion,” and has been continuously used in a variety of situations. (People v. Simon (2001) 25 Cal.4th 1082, 1096, fn. 7.) It is often mistakenly used interchangeably with venue.
2. A court has “fundamental jurisdiction” when it has the authority to hear the matter. Fundamental jurisdiction requires “subject matter jurisdiction” and “personal jurisdiction”
3. If a court lacks fundamental jurisdiction, its ruling is null and void, and a claim may be raised for the first time on appeal. (People v. Ford (2015) 61 Cal.4th 282, 286.)
B. Subject Matter Jurisdiction
1. Subject matter jurisdiction, in the context of criminal matters, means the court has authority to adjudicate the criminal offense.
2. A “competent court” is the court with subject matter jurisdiction over the named offense. In California, a superior court has subject matter jurisdiction with regard to any felony offense committed within the state, no matter where the offense was committed. (People v. Simon, supra, 25 Cal.4th 1082, 1097, fn. 8.)
3. The power of a state is restricted to prosecution of crimes committed in whole or in part within its boundaries.
4. However, states may exercise jurisdiction over criminal acts that take place outside of the state if the results of that crime are intended to, and do, cause harm within the state. (People v. Betts (2005) 34 Cal.4th 1039, 1046.)
5. California has adopted statutes that provide it with broad jurisdiction over interstate crimes. (People v. Betts, supra, 34 Cal.4th at p. 1047.)
a. Penal Code section 27 generally permits the punishment of a person under California law for any crime “committed in whole or in part” in the state. (Pen. Code, § 27, subd. (a)(1).)
b. In addition, section 27 and Penal Code sections 777b and 778b establish territorial jurisdiction for specific types of interstate situations or particular crimes. For example,
(1) A person who, acting outside the state, aids, advises or encourages a person in the state to commit a crime in California can be punished in California in the same manner as if he had acted within the state. (Pen. Code, § 27, subd. (a)(3).)
(2) A person who kidnaps someone in California and takes that victim to another state or country may be punished in California for any crime of violence or theft committed against the kidnap victim in the other state or country. (Pen. Code, §778a, subd. (b).)
(3) Anyone who commits larceny, carjacking, or embezzlement may be punished in California if the property taken is brought into the state. (Pen. Code, § 27, subd. (a)(2).)
c. Under Penal Code section 778a, California has territorial jurisdiction over an offense if the defendant, with the requisite intent, does a preparatory act in California that is more than a de minimus act toward the completion of the offense, whether the offense occurs in California or another state.
6. A person may be not be punished in California for an offense committed in California that is within the exclusive jurisdiction of the federal courts.
a. However, when the state and federal courts have concurrent jurisdiction of the subject matter, the first court that takes control has exclusive jurisdiction until the proceedings are concluded.
b. Courts have recognized the power of federal and state authorities to waive their prior rights and consent to proceedings in another jurisdiction. (Ponzi v. Fessenden (1922) 258 U.S. 254.)
C. Jurisdiction of Person
1. Jurisdiction over the person is a fundamental requisite in criminal proceedings, and thus is part of the court’s “fundamental jurisdiction.”
2. However, personal jurisdiction in a criminal case rarely gives rise to litigation. Unlike civil cases, which can be tried in the absence of a defendant who has been properly served with process, trials for felonies may proceed in the absence of the defendant only under limited, prescribed circumstances. (4 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Jurisdiction and Venue, § 2, p. 112.)
3. A defendant’s illegal production before the court does not affect personal jurisdiction. Thus a defendant who is charged with a felony and is personally present cannot object to lack of personal jurisdiction. The defendant must pursue other remedies, such as tort or criminal proceedings against the person accused of illegal seizure and detention, or, an attack on the extradition in the case irregular extradition. (Ibid., §§ 26-27, pp. 140-141)
D. “Excess of Jurisdiction”
1. When a court has fundamental jurisdiction but fails to act in the manner prescribed by the Constitution, a statute, or relevant case law, the court is said to have acted “in excess of jurisdiction.” (People v. Ford (2015) 61 Cal.th 282, 286.)
2. Because an ordinary act in excess of jurisdiction does not negate the court’s fundamental jurisdiction to hear the matter altogether, such a ruling is treated as valid until set aside. (Id. at pp. 286-287.)
II. Venue
A. Definition and Function
1. While fundamental jurisdiction concerns the court’s authority to adjudicate a case, venue concerns where the matter will be tried.
2. Venue only establishes the proper place for trial and is not an aspect of the fundamental subject matter jurisdiction of the court. Thus, a change of venue from the superior court of one county to a superior court in another county does not affect the power of the court to try a case.
3. Purpose of venue. Venue promotes the convenience of both parties in obtaining evidence and securing the presence of witness; it provides for trial in a county that bears a reasonable relationship to the offenses; it protects the interest of the community in which a crime or related activity occurs. (People v. Simon, supra, 25 Cal.4th at p. 1095.)
4. Venue is a question of law governed by statute. (People v. Posey (2004) 32 Cal.4th 193, 201, 209.)
5. The defendant must object to venue, or he has forfeited any claim on appeal. (People v. Simon, supra, 25 Cal.4th at p. 1103.)
B. General Venue Statute
1. Penal Code section 777 states the basic rule of venue: “[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.”
2. “Jurisdictional territory” here means “county.” (Pen. Code, § 691(b).) So the county where the crime was committed is the proper venue, except when some other statute provides an alternative venue.
3. A number of statutes modify the general rule under particular circumstances and regarding particular crimes. Some of these statutes are described below.
C. Penal Code section 781
1. Terms and Purpose
a. At common law, if acts took place in different counties, venue was proper only in the county in which acts occurred that were sufficient to constitute a complete offense. If neither county met this standard, there could be no prosecution in either county.
b. Penal Code section 781 provides that when a crime is committed “in part” in more than one county, or when “the acts or effects” constituting the crime or requisite to its commission occur in more than one county, the offense may be prosecuted in the superior court of any of those counties. (People v. Thomas, supra, 53 Cal. 4th at p. 1279.)
c. “Section 781 closed this loophole in the common law that had often made it difficult to prosecute a crime begun in one county but completed in another.” (People v. Thomas (2012) 53 Cal.4th 1276, 1287.)
d. “Section 781 is remedial and, thus, we construe the statute liberally to achieve its purpose of expanding criminal jurisdiction beyond rigid common law limits. We therefore interpret section 781 in a commonsense manner with proper regard for the facts and circumstances of the case rather than technical niceties.” (People v. Gutierrez (2002) 28 Cal.4th 1083, 1118.)
e. Courts have construed the phrase “requisite to the consummation of the offense” to mean requisite to achieving the offender's unlawful purpose. (See People v. Hernandez (1976) 63 Cal.App.3d 393, 403.)
2. As to “acts,” under section 781, venue is proper “where ‘only preparatory acts have occurred’ and where the preparatory acts themselves are not elements of the offense. (People v. Thomas, supra, 53 Cal.4th at p. 1284.)
Examples:
a. In People v. Price (1991) 1 Cal.4th 324, 386, the California Supreme Court held that Humboldt County was a proper venue in which to prosecute the defendant for a murder that occurred in Los Angeles County because the defendant had stolen firearms and committed other acts in Humboldt County to prepare to murder the victim in Los Angeles County. The high court in Price stated: “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.” (Id. at p. 385.)
b. In People v. Thomas, supra, 53 Cal.4th 1276, the defendant was prosecuted in Madera County and convicted of possession of cocaine for sale and possession of a firearm by a felon. The defendant lived and sold drugs in Madera County but kept a storage locker in neighboring Fresno County. The storage locker contained the drugs and a firearm that were the subject of the prosecution. Defendant was a member of a Madera gang that engaged in narcotics trafficking. He lived in Madera and kept his money in Madera. The Court of Appeal reversed on the ground that the possessory crimes for which the defendant was convicted occurred in Fresno, and thus Fresno was the appropriate venue. The Supreme Court reversed the Court of Appeal. It found the defendant’s possession of drugs for sale and the firearm in the Fresno storage locker were part of a larger plan to sell drugs in Madera County. Defendant’s preparatory acts in Madera County included obtaining an apartment which the defendant did not disclose to his parole agent and in which cash was found hidden in a clothes dryer, and securing two cell phones and a pager. (Id. at p. 1287.) (The Supreme Court also found that “effects” of his possession offenses felt in Madera County. See discussion of “effects” below.)
c. In People v. Anderson(1935) 3 Cal.App.2d 521, the defendant got in a taxi in Sacramento County and directed the driver to Yolo County, where the defendant robbed the driver. The Court of Appeal held the robbery was properly prosecuted in Sacramento County because the defendant’s procuring of the cab in Sacramento County for the purpose of taking the driver to Yolo County was an act of preparation for the robbery, even though it was not an essential element of proving the robbery. (Id. at p. 523.)
3. As to “effects,” venue is proper under section 781 where a defendant commits a crime in one county with effects in another county that are “requisite to . . . the achievement of the defendant’s unlawful purpose and may be tried in the latter county, even though the effects were not elements of the offense.” (People v. Thomas, supra, 53 Cal.4th at p. 1276.).
Examples:
a. In People v. Graves (1934) 137 Cal.App. 1, the defendant, a member of the Los Angeles County Board Supervisors, was charged in Los Angeles County for receiving a bribe to vote a certain way on a proposal pending before that Board. The bribe was paid to him in San Francisco. But even though the crime took place in San Francisco, the eventual vote occurred in Los Angeles, and this evidence was enough to give Los Angeles County venue. As stated by the Court of Appeal in People v. Megladerry (1940) 40 Cal.App.2d 748, 775, which commented on the Graves case: “The dishonest vote was not an essential part of the crime, and the crime was complete before the vote was ever given.” Nevertheless, “the vote was the legal effect of the bribe, and that gave Los Angeles County jurisdiction.”
b. In People v. Thomas, supra, 53 Cal.4th 1276, discussed above, the Supreme Court found that in addition to preparatory acts, the “effects” of the defendant’s possession for sale of the cocaine and possession of the firearm in Fresno County would be felt in Madera County. Madera County was the base of the defendant’s drug operations, he participated in gang activities there, and sold drugs there. The implication was that the defendant would use the firearm to facilitate those drug sales. “There was ample evidence to support the trial court’s finding that the defendant lived in and sold drugs in Madera County.” The only thing absent was his inventory, which was just across the line in Fresno County. (Id. at p. 1287.)
D. Penal Code section 782
When an offense is committed on a boundary of two or more jurisdictional territories, or within 500 yards of the boundary, either county may take jurisdiction.
E. Penal Code section 784.7(a)
When multiple violations of specified sex offenses (section 220, except with assault to commit mayhem, 261, 262, 264.1, 269, 286, 288, 288a, 288.5 or 289) occur in more than one jurisdictional territory, the jurisdiction of any of the offenses, and for offenses properly joinable with the offense, is a jurisdiction where at least one of the offenses occurred, subject to a hearing under Penal Code section 954.
At the hearing, the prosecution must present written evidence that prosecutors in all counties having jurisdiction agree to the venue. Charged offenses for which there is no written agreement must be returned to that jurisdiction.
F. Penal Code section 784.7(b)
If more than one violation of section 273a, 273.5, or 646.9 occurs in more than one county, and the defendant and the victim are the same for all of the offenses, the jurisdiction of any of those offenses and for any offenses properly joinable with that offense, is in any county where at least one of the offenses occurred.
G. Penal Code section 784.7(c)
This venue provision applies to sections 236.1, 266h or 266i that occurs in more than one jurisdictional territory. Its requirements are identical to those in Penal Code section 784.7(b), but the provision additionally states that in determining whether all counts in the complaint should be joined for prosecution, “the court shall consider the location and complexity of the likely evidence, where the majority of the offenses occurred, the rights of the defendant and the people, and the convenience and hardship to the victim or victims and witnesses.”
H. Penal Code section 786
1. Subdivision (a)
When property taken in one county by burglary, carjacking, robbery, theft or embezzlement has been brought into another county, or when property is received in one county with the knowledge that it was stolen or embezzled in another jurisdictional territory, venue is in either county.
2. Subdivision (b)
a. Prosecution for the unauthorized use , retention or transfer of personal identifying information, as defined by Penal Code section 530.55(b), may be in the county where (a) the theft of the personal identifying information occurred, (b) the victim resided at the time of the offense, or (c) the information was used for illegal purposes.
b. In cases of unauthorized use occurring in multiple jurisdictions where all the offenses involve either (a) the same defendant and the same personal identifying information belonging to one person, or (b) the same defendant and the same scheme or substantially similar activity, prosecution may be in any of those jurisdictions for all the offenses. Jurisdiction extends to all associated offenses connected together in their commission to the underlying identity theft offense.
c. When charges alleging multiple offenses occurring in multiple jurisdictions are filed in one county, the court must hold a hearing on the propriety of the filing and whether counts should be severed. The filing prosecutor must present evidence that the prosecutors from all counties where charges might have been filed agree that the matter may proceed where filed.
3. Subdivision (c) New in 2016
a. Penal Code section 786 (c) has been added to the statute expand the jurisdiction for prosecuting violations of Penal Code section 647(j)(4), the misdemeanor crime of distributing the image of an intimate body part of another, commonly referred to as “revenge porn.”
b. The new subsection provides that the jurisdiction for prosecution may include “the county in which the offense occurred, the county in which the victim resided at the time the offense was committed, or the county in which the intimate image was used for an illegal purpose.”
c. “[i]f multiple offenses of unauthorized distribution of an intimate image, either all involving the same defendant or defendants and the same intimate image belonging to the one person, or all involving the same defendant or defendants and the same scheme or substantially similar activity, occur in multiple jurisdictions, then any of those jurisdictions is a proper jurisdiction for all of the offenses. Jurisdiction also extends to all associated offenses connected together in their commission to the underlying unauthorized distribution of an intimate image.” (Pen. Code, § 786(c)(1).)
d. The statute also provides procedures for determining the particular county for prosecution when different jurisdictions are involved. (Pen. Code, § 786(c)(2).)
I. Penal Code section 790 (Homicide)
1. A prosecution for murder or manslaughter may be instituted in one of three counties: (a) where the fatal injury was inflicted; (b) where the victim died; or (c) where the body was found.
2. If the fatal injury, death or finding the body occurred within 500 yards of the boundary of two or more counties, jurisdiction is in any of them.
3. Special Circumstances
a. Where a defendant is charged with a special circumstance under Penal Code section 190.2(a)(3), the jurisdiction for any charged murder, together with any crimes joinable with the murder, is in a county with jurisdiction under Penal Code section 790(a) for one or more of the murders charged in a single complaint or indictment.
b. However, the above provision applies only if the charged murders are “connected together in their commission” as that phrase is used in Penal Code section 954, and subject to a hearing in the jurisdiction where the prosecution is attempting to consolidate them.
c. If the charged murders are not joined or consolidated, the murder that was charged under Penal Code section 790(a) must be returned to that county.
III. Mechanics of Charging Venue
A. Crimes Occurring in Single County
1. Proper venue is important to keep in mind while charging a crime, because it may be necessary for the charging D.A. to make specific allegations about venue on the face of the complaint or information.
2. Venue is always proper in the county where the crime was actually committed. When the crime occurs in the county where the complaint is filed, the charging deputy need only allege that the crime occurred in that county.
3. For example, the defendant commits a burglary in Alameda County, is arrested in Alameda County, and is charged in Alameda County. The charging document would only need to say that the crime occurred in the County of Alameda, State of California:
The District Attorney of the County of Alameda by this Information hereby accuses HAMILTON BURGLAR of a Felony, to wit: FIRST-DEGREE RESIDENTIAL BURGLARY, a violation of section 459 of the PENAL CODE of California, in that on or about February 8, 2016, in the County of Alameda, State of California, said defendant did unlawfully enter an inhabited dwelling house occupied by PATRICIA MURRAY, with the intent to commit larceny and any felony.
B. Crimes Occurring in Multiple Counties
1. Change the example so that the burglary occurred in Santa Clara County, after which the defendant took the victim’s property into Alameda County, and was then arrested and prosecuted in Alameda County. Now the charging document would need to allege that the crime occurred in the County of Santa Clara, since in fact that is where the crime occurred. But if the charging document says nothing more, then on the face of that complaint, venue would not be proper in Alameda County.
2. To bring the complaint into compliance with venue requirements, the prosecutor must add a venue allegation. In this case, venue is proper under Penal Code section 786 subdivision (a), which provides that when property is stolen in one county and then brought into another county, venue is proper in either county. So in our example, the charging deputy must add a clause under section 786 setting forth the facts that make venue proper:
The District Attorney of the County of Alameda by this Information hereby accuses HAMILTON BURGLAR of a Felony, to wit: FIRST-DEGREE RESIDENTIAL BURGLARY, a violation of section 459 of the PENAL CODE of California, in that on or about February 8, 2016, in the County of Santa Clara, State of California, said defendant did unlawfully enter an inhabited dwelling house occupied by PATRICIA MURRAY, with the intent to commit larceny and any felony.
PENAL CODE SECTION 786: THEFT IN TWO JURISDICTIONAL TERRITORIES
It is further alleged that territorial jurisdiction of the above offense is in the courts of Alameda County as provided under Penal Code section 786 in that the property was taken in the above offense in the County of Santa Clara and thereafter brought into the County of Alameda.
IV. Defendant’s Objection to Venue
A. Timing
1. The defendant must object to venue before trial or he will have forfeited any right to object to trial in that venue. (People v. Simon, supra, 25 Cal.4th at p. 1103.)
B. Mechanics
1. If the defendant does make a timely objection, the question of whether a particular county is the appropriate place for trial is a question of law for the court to decide, not a question of fact for the jury. (People v Posey (2004) 32 Cal.4th 193.)
2. The prosecution has the burden of proof regarding the proper venue. (People v. Posey, supra, 32 Cal.4th at p.213.)
a. The accusatory pleading must allege the necessary facts.
b. The prosecution must produce evidence regarding the place where the crime was committed sufficient to support the allegation or at least permit the inference of proper venue.
c. Venue need only be proven by a preponderance of the evidence, and the proof may be either direct of circumstantial. . (4 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Jurisdiction and Venue, §§ 66-67, pp. 181-182.)
d. Because venue is not part of the corpus delicti of the crime, it may be established by the defendant’s own admission as to the locus of the offense. (People v. Garcia (1970) 4 Cal.App.3d 904, 911.
