Metropolitan News-Enterprise


Friday, January 23, 2004


Page 1


Supreme Court Rules:

Judge, Not Jury, Must Determine if Criminal Venue Is Proper


By KENNETH OFGANG, Staff Writer/Appellate Courts


Whether a criminal case has been brought in a correct venue is a question of law that must be resolved by a judge prior to trial, the California Supreme Court ruled yesterday.

Overturning more than 120 years of case law, the justices unanimously held that the traditional rule lacks “soundness and continuing vitality.” The traditional rule lacks a sound basis, Chief Justice Ronald M. George wrote for the court, because venue is not a substantive question, does not implicate “fundamental jurisdiction” over the person of the defendant or over the subject matter, and has nothing to do with guilt or innocence.

The chief justice rejected the contention that any change in the rule should come from the Legislature.

“In addition to concluding that the rule that venue is a question of fact for the jury is unsound, we also conclude that this rule properly may be reconsidered and modified by this court without awaiting action by the Legislature, because the rule was established by judicial decision and has not been incorporated in any statute,” George wrote.

The court did hold, however, that the old rule was sufficiently well-established and relied upon that the new rule should be applied prospectively only.

No Help for Defendant

Application of the old rule did not assist the defendant whose case was heard yesterday, Christopher Posey. The justices, who were unanimous in junking the old rule, ruled 6-1 that there was sufficient evidence to support a Marin Superior Court jury’s finding that the case was properly brought in Marin County.

Posey was convicted of two counts of sale of cocaine base. The leading witness against him was a Marin sheriff’s detective, who testified that Posey had twice sold him crack—charging $1,150 for two ounces of the drug on each occasion.

The actual sales took place in San Francisco, at the defendant’s insistence, Detective Rudy Yamanaoha explained. The detective said he became involved in the case after he learned that a San Francisco woman known as “Nini” might be selling drugs to Marin residents.

The detective said he arranged to purchase crack from the woman, who was later identified as Johnneka Hall and whom he spoke to on the phone. Although he placed the call from Marin County, he told Hall that he was calling from Santa Rosa, in Sonoma County, and wanted to meet halfway, at Vista Point on the Marin side of the Golden Gate Bridge.

San Francisco Transaction

Hall put the detective in touch with Posey, who initially agreed to the drop-off point but then called back to insist that the transaction take place in San Francisco, more than 500 feet from the county line. (California law allows a case to be brought in either county if the crime occurs within 500 feet of the boundary separating them.)

The detective agreed and made the buy. Several days later, a second buy occurred, also in San Francisco, after the defendant refused to make the deal in Marin.

A third buy was attempted, but the detective gave up after Posey said he would only deliver in San Francisco. Posey was arrested days later, Hall was also charged but fled.

Justice Janice Rogers Brown argued in her dissent that the case should have been brought in San Francisco or Sonoma County.

“My disagreement does not arise from any sympathy with defendant, who would likely have sold cocaine to the Man in the Moon, so long as he could deliver it within the friendly prosecutorial confines of San Francisco,” the dissenting jurist wrote. “However, I am concerned that by turning a blind eye to forum shopping by law enforcement authorities, the majority is inadvertently encouraging it.”

The case is People v. Posey, 04 S.O.S. 267.


Copyright 2004, Metropolitan News Company