Filed 5/3/12

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,
S185305
v.
Ct.App. 5 F056337
RAYSHON DERRICK THOMAS,
Madera County
Defendant and Appellant.
Super. Ct. No. MCR 10473
____________________________________)

In general, the proper venue in which to prosecute a criminal offense is the
superior court of the county in which the crime was committed. (Pen. Code,
? 777.) 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. Posey (2004)
32 Cal.4th 193, 199.)
In the present case, defendant Rayshon Derrick Thomas lived and sold
drugs in Madera County. He possessed a key and a receipt for a storage locker
that was located in neighboring Fresno County. The storage locker contained
drugs and a firearm. The Court of Appeal ruled that the drugs and firearm located
in Fresno County did not provide a basis for prosecuting defendant in Madera
County for possession for sale of a controlled substance and possession of a
firearm by a convicted felon. We disagree with the Court of Appeal and conclude
that Madera County was a proper venue in which to prosecute defendant.
1



FACTS
A felony complaint was filed in the Madera County Superior Court on
November 7, 2001, charging defendant Rayshon Thomas with possession of
cocaine for sale (Health & Saf. Code, ? 11351) and possession of a firearm by a
convicted felon (Pen. Code, ? 12021 subd. (a)(1)).
On June 17, 2002, prior to the preliminary hearing, defendant filed a
?Motion to Dismiss Based on Improper Jurisdictional Territory,? claiming that the
case should be prosecuted in Fresno County, ?where the contraband items were
located.? Defendant conceded that the Madera County Superior Court had subject
matter jurisdiction over the charges, but disputed whether Madera County was a
proper venue. Following an evidentiary hearing, the court denied the motion to
dismiss.
A preliminary hearing was held in January 2003, at which defendant?s
parole agent, Raquel Merigian, testified that on November 2, 2001, she was riding
in a patrol vehicle driven by Madera Police Officer Morrill when they saw
defendant driving a red Honda Civic on Clinton Street in Madera County.
(Merigian later testified at trial that this was suspicious because, the week before,
defendant had declined to provide the registration for this vehicle, as required of
all parolees, saying the vehicle was inoperable.) They stopped the vehicle, and a
search of defendant?s backpack revealed $12,500 in cash and a receipt from
Derrel?s Mini Storage. Defendant, who had told his parole agent he was
unemployed, also had two cell phones and a pager as well as several receipts for
rental cars. Madera Police Officer Robert Blehm testified that it is common for
drug dealers to transport narcotics in rented vehicles and that cell phones and
pagers are often used by narcotics traffickers. Madera Police Officer Jason
Dilbeck, a gang liaison officer, testified that defendant was a member of the 916
Sac Town Bloods, a Madera County gang that engages in narcotics trafficking.
2



Although defendant had told his parole agent that he lived at 524 Adelaide
Street, No. 103, in Madera County, his backpack contained several papers that
bore his name and an address of 522 Adelaide Street, No. C. Merigian and Officer
Morrill went to 522 Adelaide Street, No. C and discovered that a key they had
seized from defendant opened the front door. The landlord confirmed that
defendant resided there, and numerous bills and other mail bore defendant?s name
and that address. In the clothes dryer, Merigian found $741 in cash and two more
receipts from Derrel?s Mini Storage.
Officer Blehm went to Derrel?s Mini Storage, which was located on
Herndon Avenue in Fresno County, and opened the padlock on the storage locker
specified in the receipts using a key seized from defendant. Inside the locker,
Officer Blehm found a loaded Smith and Wesson stainless steel revolver wrapped
in a handkerchief monogrammed with the initials ?RT,? as well as $13,000 in
cash, a backpack containing 2.4 pounds of cocaine, and Rayshon Thomas?s high
school diploma. Officer Blehm believed defendant possessed the cocaine ?for the
purpose of sale,? adding that the fact that there was a firearm in the storage locker
supported that conclusion.
Defendant was held to answer and an information was filed on October 14,
2003 charging defendant with possession of cocaine for sale (Health & Saf. Code,
? 11351) and possession of a firearm by a convicted felon (Pen. Code, ? 12021,
subd. (a)(1)), among other offenses. The information alleged as a sentence
enhancement that in possessing the cocaine for sale defendant was personally
armed with a firearm under Penal Code section 12022, subdivision (c).
Defendant filed a motion to dismiss pursuant to Penal Code section 995,
arguing that ?[t]he proper and only jurisdictional territory for prosecution of the
?possession? charges in the present matter is Fresno County.? In denying the
motion, the court relied on the evidence introduced at the preliminary hearing and
3



found venue to be proper in Madera County, reasoning that defendant was
operating ?a criminal enterprise trafficking in illegal narcotics whose home base or
home office is in the City of Madera.? The court observed: ?We have Mr.
Thomas living in the City of Madera . . . . His money is here. . . . His financing is
here. He lives here. He is gang related to here. . . . The only thing absent is his
inventory. And his inventory . . . is just across the county line on Herndon. . . .
[A] jury could conclude beyond a reasonable doubt that he is in constructive
possession in Madera of the drugs and the gun.?
Following a jury trial, defendant was convicted of all charged crimes and
sentenced to prison for a term of 33 years to life. The Court of Appeal reversed
the judgment on the ground that ?the possessory crimes in this case occurred in
Fresno and, thus, the appropriate venue was Fresno County.? We granted the
People?s petition for review.
DISCUSSION
In general, the proper venue for the prosecution of a criminal offense is in
the superior court of the county where the crime was committed. (Pen. Code,
? 777 [?[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.?].) Penal Code section 691, subdivision (b) defines the ?jurisdictional
territory? of a superior court as ?the county in which the court sits.? The terms
?venue? and ?territorial jurisdiction? are synonymous, and a criminal offense
generally should be prosecuted in the county in which the crime was committed.
(People v. Simon (2001) 25 Cal.4th 1082, 1095-1096.) (Further undesignated
statutory references are to the Penal Code.)
Venue is a question of law that is governed by statute. (People v. Posey,
supra, 32 Cal.4th at pp. 201, 209.) ?Venue does not implicate the trial court?s
4



fundamental jurisdiction in the sense of personal jurisdiction, which is the
authority of the court to proceed against a particular defendant in a criminal action
[citations]. Neither does venue implicate the trial court?s fundamental jurisdiction
in the sense of subject matter jurisdiction, which is the authority of the court to
consider and decide the criminal action itself [citation].? (Id. at p. 208.) ? ?If the
crime is one over which California can and does exercise its legislative jurisdiction
because it was committed in whole or in part within the state?s territorial borders,
California courts have jurisdiction to try the defendant. [Citation.] Moreover, if
the charge is brought in a competent court . . . , that court, no matter where
located in the state, may have subject matter jurisdiction of the offense.
[Citation.]? ? (People v. Simon, supra, 25 Cal.4th at p. 1096.) ?Venue or
territorial jurisdiction establishes the proper place for trial, but . . . does not affect
the power of a court to try a case. [Citations.]? (Price v. Superior Court (2001) 25
Cal.4th 1046, 1055.)
?As past decisions recognize, venue provisions applicable to criminal
proceedings serve a variety of purposes. First, ?[v]enue in the place where the
crime was committed promotes the convenience of both parties in obtaining
evidence and securing the presence of witnesses.? [Citation.] Second, from the
perspective of a defendant, statutory enactments that provide for trial in a county
that bears a reasonable relationship to an alleged criminal offense also operate as a
restriction on the discretion of the prosecution to file charges in any locale within
the state that it chooses, an option that, if available, would provide the prosecution
with the considerable power to choose a setting that, for whatever reason, the
prosecution views as favorable to its position or hostile or burdensome to the
defendant?s. As one leading criminal treatise explains: ?The principal justification
today for the venue requirement of trial in the vicinity of the crime is to ?safeguard
against the unfairness and hardship involved when an accused is prosecuted in a
5



remote place.? ? [Citations.] Finally, venue provisions also serve to protect the
interests of the community in which a crime or related activity occurs,
?vindicat[ing] the community?s right to sit in judgment on crimes committed
within its territory.? [Citation.]? (People v. Simon, supra, 25 Cal.4th at p. 1095.)
There are statutory exceptions to the general rule that a crime should be
prosecuted in the county where it is committed. (People v. Simon, supra, 25
Cal.4th at p. 1094, fn. 6.) One exception is section 781, which 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.?
Enacted in 1872, section 781 closed a loophole in the common law that had often
made it difficult to prosecute a crime begun in one county but completed in
another: ?Time was when, if a crime consisted of a series of acts, a number of
which were done in one county and one or more done in another, prosecution for
the offense would fail unless such a number of the series of acts occurred in one of
the counties as would constitute a complete offense. Section 781, supra, was
conceived for the purpose of extending the lines of jurisdiction beyond the limits
fixed by the common law and thus forestall the technical rule relating to venue in
multiple element offenses. [Citation.] Under the current rule where only a part of
a crime has been committed in one county and the other part or parts have been
committed in another, venue lies where only a part of the crime was done.?
(People v. Waid (1954) 127 Cal.App.2d 614, 617; Annot., Construction and Effect
of Statutes Providing for Venue of Criminal Case in Either County, Where Crime
is Committed Partly in One County and Partly in Another (1953) 30 A.L.R.2d
1265, 1268 [?The controlling purpose of the statute is the abrogation of the rule of
the common law that when an offense was constituted by a series of acts, a part of
6



which were done in one county and a part in another, there could be no
prosecution in either, unless so much was done in the one as would constitute a
complete offense. [Citations.]?].)
? ?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.) The prosecution has the
burden of proving the facts supporting venue by a preponderance of the evidence,
and ?on review, a trial court?s determination of territorial jurisdiction will be
upheld as long as there is ?some evidence? to support its holding.? (Id. at p. 1117.)
The Attorney General argues that defendant committed the crimes of
possessing cocaine for sale and possessing a firearm by a convicted felon ?in part?
in Madera County and ?in part? in Fresno County because his possession of the
receipts and key for the storage locker gave defendant constructive possession in
Madera County of the cocaine and firearm located in the Fresno County storage
locker. The Court of Appeal rejected this argument, acknowledging that
defendant constructively possessed the drugs and firearm but stating: ?It does not
follow, however, that defendant constructively possessed the cocaine and firearm
in Madera. Rather, . . . the law could fairly treat defendant as if he were in actual
possession of the contraband, which was physically located and thus
constructively possessed in Fresno.?
?It is well established that one may become criminally liable for possession
for sale . . . of a controlled substance, based upon either actual or constructive
possession of the substance. [Citation.] Constructive possession exists where a
defendant maintains some control or right to control contraband that is in the
actual possession of another. [Citation.]? (People v. Morante (1999) 20 Cal.4th
7



403, 417; see U.S. v. Manzella (7th Cir. 1986) 791 F.2d 1263, 1266 [?the owner of
a safe deposit box has legal possession of the contents even though the bank has
actual custody?].) Although these authorities make clear that defendant
constructively possessed the drugs and firearm that were found in Fresno County,
the parties cite no California authority, and we are aware of none, that discusses
whether the location of a defendant or the location of contraband in his or her
constructive possession (or both) may establish a proper venue for prosecution.
(Cf. State v. Perez (1993) 311 S.C. 542, 546, 430 S.E.2d 503 [venue was proper
where the defendant had constructive possession of drugs located in a neighboring
county].)
We need not decide whether constructive possession of contraband may be
deemed to occur not only where the contraband is located but also wherever the
defendant is located. Under section 781, Madera County was a proper venue if
?the acts or effects thereof constituting or requisite to the consummation of?
defendant?s unlawful possession occurred in Madera County. That statutory
language is sufficient to support venue in Madera County, as we explain below.
Several decisions interpreting section 781 have found proper venue in a
county where ?only preparatory acts have occurred? and where those preparatory
acts were not themselves elements of the offense. (People v. Simon, supra, 25
Cal.4th at p. 1109.) One example is People v. Price (1991) 1 Cal.4th 324, 386, in
which we 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. The murder victim had testified
against members of the Aryan Brotherhood prison gang. The defendant was a
member of that gang who had just been released from prison. The prosecution
introduced evidence that the defendant burglarized two residences in Humboldt
8



County, killing one of the occupants and stealing firearms, then robbed a theater
before traveling to Los Angeles to shoot and kill the victim. We noted that
?[u]nder 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. [Citation.]? (Id. at p. 385.) The
courts of Humboldt County had territorial jurisdiction to try the defendant for the
Los Angeles murder because it could be reasonably inferred ?that defendant
committed acts in Humboldt County that were preparatory to the murder.? (Id. at
p. 386; see also People v. Douglas (1990) 50 Cal.3d 468, 493-494, overruled on
other grounds in People v. Marshall (1990) 50 Cal.3d 907, 933, fn. 4 [defendant
could be prosecuted in Orange County where defendant made arrangements and
met the victims before driving to San Diego County where he murdered them];
People v. Powell (1967) 67 Cal.2d 32, 62-63 [venue proper in Los Angeles County
because defendant kidnapped the victims there before taking them to Kern County
where he murdered one of them].)
In addition to preparatory acts, we have also held that venue can be based
on the effects of preparatory acts (what we have called ?preparatory effects?). In
People v. Posey, supra, 32 Cal.4th 193, a Marin County Sheriff?s detective paged
the defendant in San Francisco to arrange a drug purchase. The defendant
telephoned the detective, who falsely said he was in Sonoma County when he
actually was in Marin County. The defendant agreed to sell the detective cocaine
base and later completed the sale in San Francisco. Some days later, the detective
again paged the defendant, who telephoned the detective in Marin and agreed to
another drug transaction in San Francisco. We held that the defendant could be
prosecuted in Marin County for the drug sales that took place in San Francisco,
reasoning that just as committing ?preparatory acts? in the charging county is
sufficient to establish venue under section 781, ?[b]y the same token, the words
9



?effects . . . requisite to the consummation? of a crime establishing venue in a
county should be liberally construed to embrace preparatory effects, such as the
placement of a telephone call into a county leading to a crime? in another county.
(People v. Posey, supra, at p. 219.)
Other cases have held that a defendant who commits a crime in one county
with effects in another county that are ?requisite to . . . the achievement of the
[defendant?s] unlawful purpose? may be tried in the latter county under section
781, even though the effects were not elements of the offense. (People v.
Megladdery (1940) 40 Cal.App.2d 748, 775 (Megladdery), disapproved on other
grounds in People v. Simon, supra, 25 Cal.4th 1082.) The defendant in
Megladdery was convicted in Alameda County of soliciting an individual to bribe
the Governor, even though the solicitation occurred in San Francisco. Referring to
section 781?s phrase ?or the acts or effects thereof constituting or requisite to the
consummation of the offense,? the court said: ?By the use of the word
?consummation? the legislature drew a distinction between an act or an effect
thereof which is essential to the commission of an offense, and an act or effect
thereof which, although unessential to the commission of the offense, is requisite
to the completion of the offense ? that is, to the achievement of the unlawful
purpose of the person committing the offense.? (Megladdery, 40 Cal.App.2d at
p. 775.) In Megladdery, an attorney acting as an agent of the defendant repeated
the solicitation of the bribe in Alameda County. This fact, the court held, was
sufficient to support the conclusion that ?acts requisite to the achievement or end
of the unlawful purpose occurred in Alameda County,? thereby establishing venue
in Alameda County under section 781. (Megladdery, at p. 780.)
The court in Megladdery relied upon People v. Graves (1934) 137
Cal.App.1, in which the court held that the defendant, a member of the Los
Angeles County Board of Supervisors, could be prosecuted in Los Angeles for
10



receiving a bribe in San Francisco to influence his vote on a flood control issue.
The Megladdery court observed that ?the dishonest vote was not an essential part
of the crimes charged, and the crime was complete before the vote was given, but,
nevertheless, it was held, and properly so, that Los Angeles had jurisdiction ? the
vote was a legal effect of the corrupt agreement, and that gave Los Angeles
jurisdiction.? (Megladdery, supra, 40 Cal.App.2d at p. 775.)
The court in Megladdery also relied upon People v. Boggess (1924) 194
Cal. 212, in which the defendant was convicted in Sacramento for filing a false
statement in an application to sell shares of stock that was filed in the San
Francisco office of the Commissioner of Corporations. The Boggess court held
that the defendant could be prosecuted in Sacramento County under section 781 of
the Penal Code because the application containing the false statement ?was
subsequently and in due course forwarded by the deputy in charge of the branch
office in San Francisco to the principal office in Sacramento and finally filed
there.? (Boggess, supra, 194 Cal. at p. 218.) Although no essential element of the
crime was committed in Sacramento, Sacramento was a proper venue because one
of the effects of the crime was to transmit the application to Sacramento. (Id. at
p. 220.)
The Megladdery court similarly relied upon People v. Anderson (1935) 3
Cal.App.2d 521, where the defendant was tried in Sacramento County for robbing
a taxicab driver in Yolo County. The driver had picked up the defendant in
Sacramento and taken him to Yolo County, where the defendant robbed the driver,
stole the cab, and drove it back to Sacramento. The court in Megladdery noted
that ?the return of the defendant to Sacramento? constituted ?an effect of the
crime? within the meaning of section 781. (Megladdery, supra, 40 Cal.App.2d at
p. 776.)
11



In the present case, we have no difficulty concluding that venue was proper
in Madera County because defendant committed preparatory acts in Madera
County and because the effects of defendant?s unlawful possession of the drugs
and firearm found in the Fresno storage locker would be felt in Madera County.
The trial court reasonably concluded that defendant?s possession for sale of the
cocaine and possession of the firearm in the Fresno County storage locker was part
of a larger plan to sell drugs in Madera County. Defendant?s preparatory acts in
Madera County included obtaining an apartment in addition to the residence he
disclosed to his parole agent, in which cash was found hidden in a clothes dryer,
and securing two cell phones and a pager.
In addition to preparatory acts, the effects of defendant?s possession for sale
of the cocaine and possession of the firearm would be felt in Madera County. The
trial court found that Madera was defendant?s ?base of operations? and that he
participated in gang activities there and sold drugs there. These findings implied
that the court also concluded that defendant would use the firearm there. The
information alleged, and the jury found, that in possessing the cocaine for sale,
defendant was personally armed with the firearm discovered in the storage locker.
Defendant lived in Madera and was a member of a Madera County gang that
engaged in drug sales. When he was searched, defendant possessed a large
amount of cash in addition to a key and the receipt for the storage locker
containing the firearm and drugs. As noted above, defendant rented a second
apartment that he had not disclosed to his parole agent where more cash was
hidden. There was ample evidence to support the trial court?s finding that
defendant lived and sold drugs in Madera County: ?The only thing absent is his
inventory. And his inventory . . . is just across the county line on Herndon.?
Permitting this case to be tried in Madera County satisfies the purposes of
the venue requirement. It ? ?promotes the convenience of both parties in obtaining
12



evidence and securing the presence of witnesses.? [Citation.]? (People v. Simon,
supra, 25 Cal.4th 1082, 1095.) Defendant lives in Madera County, and all of the
witnesses lived either in Madera County or neighboring Fresno County. It
?provide[s] for trial in a county that bears a reasonable relationship? to the
offenses. (Ibid.) There was evidence that the drugs constructively possessed by
defendant would be sold in Madera and the firearm would be used there. There
was no danger that defendant would be ? ? ?prosecuted in a remote place.? ?
[Citations.]? (Ibid.) And trial in Madera protected ?the interests of the
community in which a crime or related activity occurs.? (Ibid.) The interests of
the citizens in Madera County in punishing defendant for possessing cocaine to be
sold in their community and for possessing a firearm to facilitate those drug sales
are at least as strong as the interests of the citizens in Fresno County in punishing
defendant for storing drugs and a firearm in their midst.
Defendant?s contrary arguments are unavailing. Defendant argues that
?California venue statutes must be construed narrowly,? despite our
pronouncements to the contrary that section 781 is remedial and is thus construed
liberally. (People v. Posey, supra, 32 Cal.4th at p. 218; People v. Gutierrez,
supra, 28 Cal.4th at p. 1118.) Defendant attempts to avoid the effect of these
recent decisions by relying upon a statement in People v. Bradford (1976) 17
Cal.3d 8, 15 that ?[o]ur venue statutes must be construed in light of the importance
historically attached to vicinage.? As support for this statement, Bradford relied in
part on the assertion that the Sixth and Fourteenth Amendments to the federal
Constitution ?guarantee[] a defendant in a state criminal prosecution the right to be
tried by a jury drawn from, and comprising a representative cross-section of, the
residents of the judicial district in which the crime was committed.? (Ibid.) But
the continued validity of Bradford?s statement was called into question by our
later holding in Price v. Superior Court, that ?the vicinage clause of the Sixth
13



Amendment is not applicable to the states through the Fourteenth Amendment.?
(Price v. Superior Court, supra, 25 Cal.4th at p. 1065.) Although defendant
counters that the language in Bradford upon which he relies was ?reiterated? in
People v. Betts (2005) 34 Cal.4th 1039, defendant is mistaken. In Betts, we said in
a footnote that the Attorney General had argued that we should reconsider our
decision in Bradford in light of our later holding in Price, but we concluded that
?we need not resolve those issues.? (Id. at p. 1059, fn. 16.) Similarly, we have no
occasion in this case to reconsider our decision in Bradford. At the same time,
defendant provides no persuasive reason to depart from our more recent holdings
that section 781 is construed liberally and that the Sixth Amendment vicinage
requirement does not apply to the states.
Relying upon material that is outside the record on appeal, defendant argues
that he was denied his right to a jury drawn from a fair cross section of the
community because African Americans comprise a smaller percentage of the
population in Madera County than in Fresno County. Defendant did not raise this
issue in the Court of Appeal, nor did defendant seek review of the issue in this
court. Accordingly, we decline to address it.
CONCLUSION
For the foregoing reasons, we reverse the judgment of the Court of Appeal.
LIU, J.

WE CONCUR: CANTIL-SAKAUYE, C. J.

KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
CORRIGAN, J.
14



See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Thomas
__________________________________________________________________________________

Unpublished Opinion

NP opn. filed 7/2/10 ? 5th Dist.
Original Appeal
Original Proceeding
Review Granted

Rehearing Granted

__________________________________________________________________________________

Opinion No.

S185305
Date Filed: May 3, 2012
__________________________________________________________________________________

Court:

Superior
County: Madera
Judge: John W. DeGroot

__________________________________________________________________________________

Counsel:

Carlo Andreani, under appointment by the Supreme Court, for Defendant and Appellant.

Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant
Attorney General, Michael P. Farrell, Assistant Attorney General, Janet E. Neeley and Stephen G.
Herndon, Deputy Attorneys General, for Plaintiff and Respondent.


Counsel who argued in Supreme Court (not intended for publication with opinion):

Carlo Andreani
582 Market Street, Suite 811
San Francisco, CA 94104
(415) 398-9870

Stephen G. Herndon
Deputy Attorney General
1300 I Street, Suite 125
Sacramento, CA 94244-2550
(916) 327-0350