Opinion
NOT TO BE PUBLISHED
PETITION for writ of prohibition from the Superior Court of San Diego County, Super. Ct. No. SCD216133, Theodore M. Weathers, Judge.
AARON, J.
I.
INTRODUCTION
Brandon Duncan filed a petition for writ of prohibition seeking dismissal of pending criminal charges on the ground that the trial court lacks territorial jurisdiction over him. Duncan contends that the trial court lacks territorial jurisdiction because the alleged acts that form the basis of the criminal prosecution against him occurred entirely outside the State of California and involved conduct that could have occurred only outside of California, and there is no evidence that he intended to cause, or in fact, did cause any crime to be committed within California. We agree with Duncan's contentions and grant the petition.
II.
FACTUAL AND PROCEDURAL BACKGROUND
In September 2008, the People filed a two-count complaint charging Duncan, Donny Love, and James Calloway with one count of pimping and one count of pandering. As to both counts, the People alleged that the defendants committed the crimes for the benefit of a criminal street gang (Pen. Code, § 186.22, subd. (b)(1)).
The original complaint is not contained in the record. However, the People have described the charges contained in the complaint in their briefing in this court. Duncan does not dispute the People's description of the charges.
Unless otherwise specified, all subsequent statutory references are to the Penal Code.
In March 2009, the trial court held a preliminary hearing. At that hearing, San Diego Police Detective Terence Charlot testified regarding wiretap recordings of Love's telephone conversations during the months of May and June, 2008. The wiretap recorded approximately 315 calls between Love and Keandra Standard. During many of the telephone calls, Love directed Standard to solicit and engage in illegal sex acts for money. The wiretap also recorded approximately 200 calls between Love and codefendant Calloway. During several of these telephone calls, Love and Calloway discussed various issues concerning their mutual ongoing pimping activities.
In a telephone call recorded on May 19, 2008, Love and Calloway discussed taking a trip to Arizona for the purpose of having women who worked for them engage in prostitution in Arizona. The following day at approximately 10:00 p.m., Love called Duncan. During the call, Love referred to Duncan as "TD," which is alleged to be Duncan's Lincoln Park gang moniker. Love asked Duncan where he was located. Duncan responded that he was in Arizona. Love told Duncan that he was driving to Arizona from Temecula, California.
Approximately 40 minutes later, Love called Duncan again. During this second call, Love and Duncan discussed an escort service located in Arizona. Duncan told Love that the service had been having problems with women from San Diego. Duncan said that the escort service did not check for "cases," and that he would get the telephone number of the escort service for Love. Approximately 15 minutes later, Love called Duncan. Duncan told Love that the escort service did not hire Black "bitches." Duncan gave Love the telephone number of the escort service. Love then called Standard and gave her the telephone number that Duncan had provided. Love told Standard not to reveal that she was from San Diego and to say that she was of mixed racial background. A few minutes later, Love called Duncan, verified the telephone number for the escort service, and told Duncan, "[M]y bitch is on it right now." Approximately an hour later, Love called Duncan again. During this conversation, Duncan told Love that he was going to be working on a rap music tape with the musical group "Cherry Chuck." Detective Charlot testified that Cherry Chuck is a subset of the Lincoln Park gang. Love told Duncan that he would be in Arizona at about 4:00 a.m. that morning.
Detective Charlot testified that by, using the term "cases," Duncan was referring to "police arrests."
Detective Charlot testified that "'bitch' or 'bitches' is a common term pimps use for girls."
Later that day, after Love had arrived in Arizona, Duncan called Love and told him that he was getting a room at the hotel where Love was staying. Love told Duncan that all of his "calls" were coming from Phoenix. Duncan replied that he did not go to Phoenix, but that "the bitch" would "go to her calls down there." Duncan also told Love that the women who worked for him would do "out-calls," not "in-calls." Love asked Duncan about "going to 17th Street." Duncan replied, "Yeah like Glendale. You can probably tear their ass up. You just have to watch where you stack it at." Detective Charlot testified that, in using the phrase "where you stack it," Duncan was referring to where Love would place his prostitutes. Love also asked Duncan whether he was going to get a "room for [his] other bitch," and Duncan replied in the affirmative.
Two days later, on May 23, Love and Standard were stopped for speeding by a police officer outside of Yuma, Arizona as they were driving back to California from Arizona. The officer conducted a search of the car and found a gym bag that contained "a lot" of lingerie, high heels, and a wig. The officer also found a wallet that contained approximately $4,000. Love told the officer that the money was a gift from his father for his upcoming birthday. The following day, San Diego police observed Love and Standard being picked up from a bus station in San Diego by a Lincoln Park gang member.
Detective Charlot testified that he believed that Love, Standard, Calloway, and Kaycee Kimber, a prostitute who worked for Calloway, had traveled to Arizona. The group traveled in at least two different vehicles.
Six days later, on May 27, Duncan called Love and wished him a happy birthday. Love told Duncan that he had recently purchased a new Jaguar and that he would be back in Arizona over the weekend. Duncan told Love that he would be coming to San Diego soon.
San Diego Police Detective Duane Malinowski also testified at the preliminary hearing. Detective Malinowski said that on June 24, 2008, San Diego police searched Love and found $4,000, all in $100 bills. Love initially told police that he had received the money from his father as a birthday present, but later stated that he had gotten the money from a casino. The People also presented evidence that Love, Calloway, and Duncan are members of the Lincoln Park gang. In addition, the People presented evidence that Love and Calloway continued their pimping activities in California upon their return from Arizona. At the conclusion of the preliminary hearing, the trial court determined that there was sufficient evidence to hold all of the defendants to answer on all counts.
The People filed an information charging Duncan, Love, and Calloway with one count of pimping (§ 266h, subd. (a)), and one count of pandering (§ 266i, subd. (a)(1)). As to both counts, the People alleged that the defendants committed the crimes for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)).
In August 2009, Duncan moved to dismiss the case for lack of jurisdiction. Duncan argued that in order for a California court to have jurisdiction over a defendant based on acts of the defendant that occurred outside of California, the defendant's acts must have assisted the commission of a crime in California. Duncan contended that he was outside the state of California during all relevant time periods, and that he did not assist the commission of a crime in California. Duncan specifically argued that the trial court lacked jurisdiction to prosecute him based on his telephone conversations with Love:
"In the instant matter, the only evidence was that Mr. Duncan was residing in Arizona at the time of the phone calls with Mr. Love, who was physically driving to Arizona while placing the call. Therefore [Duncan] was outside of California at the time of providing the information regarding the escort service. Similarly the escort service itself, AZ Outcall, was inside the State of Arizona. Thus any information Mr. Duncan provided was provided in Arizona to Mr. Love who was also outside of California, and the information referred solely to activity that would occur within the state of Arizona."
Duncan also maintained that he could not be prosecuted for Love and Calloway's pimping and pandering activities that occurred prior to Love's initial conversation with Duncan. Finally, Duncan noted that the statements that formed the basis of his criminal prosecution in California – i.e. his statements concerning an Arizona escort service and a street in Glendale, Arizona where prostitution activities could be performed – pertained solely to conduct to be undertaken in Arizona. Duncan argued that there was no evidence that he intended to provide Love or Calloway with information to be used in committing a crime in California, nor was there any evidence that Love or Calloway used such information in committing a crime California. Accordingly, Duncan claimed, there was no evidence that he aided and abetted a crime in California.
In their response to Duncan's motion, the People argued that California had jurisdiction over Duncan because he aided and abetted crimes committed in this state. The People reasoned that the crimes of pimping and pandering are continuous crimes, and that Duncan had assisted a crime in California when Love and Calloway brought the proceeds of their crimes that were committed in Arizona, back to California:
"The criminal conduct proscribed by sections 266h and 266i is not a series of isolated acts charged discretely and singularly, but one single act. Love and Calloway committed the crimes alleged in Counts 1 and 2 in California before they left for Arizona, while they were in Arizona, and after they returned to California. They brought the profit from their Arizona criminality back into the state of California. Love and Calloway derived support from prostitution and Duncan aided, encouraged, or facilitated this derivation. Where the lewd acts occurred is essentially immaterial in the analysis.
"[Duncan] argues that because the acts of prostitution aided and abetted by him occurred in Arizona, he falls outside the jurisdiction of our state. However Duncan is not charged with aiding and abetting acts of prostitution. He is charged as an aider and abettor of pimping and pandering, the derivation of support from lewd acts. Love and Calloway derived support from those acts here in the county of San Diego when they traveled back to this county pockets bulging with the proceeds from the prostitution of Standard and Kimber." (Italics omitted.)
In August 2009, the trial court held a hearing on Duncan's motion to dismiss. At the outset of the hearing, the prosecutor agreed to use the preliminary hearing transcript as the factual basis for determining whether the trial court had jurisdiction over Duncan. The court heard argument from counsel regarding the evidence that had been presented at the preliminary hearing, as it pertained to the issue of the court's jurisdiction over Duncan. At the conclusion of the hearing, the trial court denied the motion, stating:
The prosecutor stated, "I think, in this case, since we do have a record of the facts, we can use the transcript of the preliminary hearing." At another point in the hearing, after counsel and the court had discussed the evidence presented at the preliminary hearing as it pertained to the jurisdictional issue, the prosecutor stated, "Does the court feel like it needs any sort of factual evidence or any other sort of evidence that we can get out, other than argument from the case law?" The court responded, "No. I don't think, really, that the facts are really that much in dispute." The prosecutor did not present any additional evidence at the hearing on the motion to dismiss.
"I'm going to deny the motion to dismiss for lack of jurisdiction. I think that the court does consider this to be a continuous course of conduct, that is a series of pimping and pandering that started in California, went to Arizona, and certainly Mr. Love and Mr. Calloway came back to California.
"The evidence before the court at the preliminary hearing was they did have a lot of money. They apparently made a lot of money in Arizona with some advice and assistance, encouragement from Mr. Duncan, and so therefore I think that the court has jurisdiction over Mr. Duncan.
"I think that Mr. Duncan has some ties to San Diego. He's a holder of a (619) telephone [number]. I think that shows continued ties. He certainly knew that Mr. Love and Mr. Calloway were San Diegans. The evidence before the court was that they were all members of Lincoln Park, that this activity benefited the Lincoln Park gang here in San Diego. And I think based upon those factors, the court does have jurisdiction. [¶] So the motion is denied."
During the hearing on the motion to dismiss, the court asked whether there was any evidence as to the telephone number at which Mr. Duncan was being contacted in Arizona. The prosecutor responded that Duncan was being contacted on his cellular telephone which had a "619" area code prefix. Defense counsel responded, "It's neither here nor there because it's about his location. Of course everybody keeps their cell numbers. You get locked into a contract." At the preliminary hearing, the People presented evidence that Duncan spoke with Love on the recorded calls from a telephone number that had an "858" area code prefix ─ a prefix that is assigned to a portion of San Diego County.
On September 30, Duncan filed a petition for writ of prohibition, together with an accompanying verification and a memorandum of points and authorities. Duncan lodged the information, preliminary hearing transcript, and documents pertaining to his motion to dismiss, as exhibits to his petition. In his petition, Duncan requested that this court stay all further proceedings in the trial court and direct the trial court to dismiss the action for lack of jurisdiction.
On October 1, Duncan filed a motion for reconsideration in the trial court. In his motion, Duncan argued that the trial court erred in concluding that it had jurisdiction over him based on the fact that pimping is a crime subject to the continuous course of conduct doctrine. Duncan contended that he could not be prosecuted for criminal activity that took place before he spoke with Love, and that "no acts of pimping or pandering occurred in California after Mr. Duncan rendered any aid or encouragement."
Duncan also contended that allowing the People to prosecute him in California based on his out-of-state statements that related solely to out-of-state conduct would be an improper extension of the law of aiding and abetting. Duncan argued, "[T]he act of aiding and abetting must terminate at a reasonable point in regard to the aider and abettor's actions and specific intent." Duncan reasoned, "[I]f the elements of aiding and abetting were to be extended.... [in such a fashion,] Mr. Duncan would be subject to jurisdiction in any of the fifty states for any crimes of pimping or procuring that the princi[pals] might commit in the future." Duncan also argued that subjecting him to prosecution in California constituted a violation of his right to due process under the United States Constitution because he did not cause any crime to be committed in California or assist in the commission of any crime in California.
On October 5, the People filed an opposition to Duncan's motion for reconsideration in the trial court. On October 13, the People filed an informal response to Duncan's petition for writ of prohibition in this court. On October 22, the trial court denied the motion for reconsideration.
This court stayed the pending trial in Duncan's case in the trial court pending further order of this court. We also issued an order directing the respondent to show cause as to why this court should not grant Duncan's petition. The People filed a return to the order to show cause, and Duncan filed a reply.
The People attached the relevant documents from Duncan's motion for reconsideration as exhibits to their return to the order to show cause.
III.
DISCUSSION
A. Duncan's petition is not procedurally barred
The People contend that Duncan's petition should be denied because it is not properly verified. In addition, the People claim that Duncan has failed to adequately exhaust his remedies in the trial court, and that he has an adequate remedy for his claim by way of an appeal.
1. Any deficiency in the verification of the petition does not require that it be denied
The People claim that Duncan's petition is not properly verified. (See Code Civ. Proc., § 1103, Cal. Rules of Court, rule 8.486(a)(4) [providing that petition for writ of prohibition must be verified].) The People acknowledge that the petition contains a verification declaration that lists the name of Duncan's counsel, but note that the verification was apparently signed on counsel's behalf by an unknown person. We need not determine whether this was a proper manner in which to verify the petition, because any such deficiency is not fatal under the circumstances of this case. (See Fall River Joint Unified School Dist. v. Superior Court (1988) 206 Cal.App.3d 431, 436 [failure to verify petition did not require denial of petition where petitioner supplied sufficient record of underlying facts and trial court proceedings for appellate review].) Duncan has supplied a sufficient factual record, and the People have not identified any disputed material facts. Thus, "we need not rely on factual allegations in the petition to determine the merits of the case and may proceed despite the arguably defective verification." (Ibid.)
The name of Duncan's counsel appears on a signature block on the verification page. A signature appears above the name. The signature is illegible, but appears to contain a name and the word "for," indicating that a person signed the verification on behalf of Duncan's counsel. Duncan's counsel personally signed a reply to the People's return to our order to show cause.
2. Duncan has adequately exhausted his remedies in the trial court
The People argue that Duncan has not adequately exhausted his remedies in the trial court because that court indicated a willingness to reconsider Duncan's jurisdictional claim at trial. The People acknowledge that the trial court ruled on Duncan's jurisdictional claim by denying his motion to dismiss, and they have not identified any reason as to how or why a subsequent ruling at trial might differ. In addition, the People have not cited any authority indicating that a defendant must relitigate his claim that the trial court lacks jurisdiction at trial in order to exhaust his remedies.
Requiring a defendant to relitigate whether the trial court has jurisdiction over the defendant at trial would mean that the defendant would have to subject himself to a trial in order to obtain a determination that the trial court lacked jurisdiction to conduct the trial in the first place. (See pt. III.A.3., post.) Under these circumstances, we conclude that Duncan adequately exhausted his remedies in the trial court by filing his motion to dismiss and obtaining a ruling on that motion.
3. Duncan may raise his claim that the trial court lacks territorial jurisdiction in this writ proceeding
The People claim that this court should deny Duncan's petition because he has an adequate remedy in the ordinary course of law. (See Code Civ. Proc., §1103.) The People note that Duncan could raise his claim that the trial court lacks jurisdiction in an appeal in the event that he is convicted at trial. The availability of appellate review by way of a direct appeal does not preclude this court from granting Duncan relief in this writ proceeding. (See People v. Betts (2005) 34 Cal.4th 1039, 1052 (Betts).)
In Betts, in the course of explaining the procedural benefits of treating jurisdiction in a criminal case as a threshold matter to be decided by the court, the Supreme Court emphasized that writ review is an appropriate method for a defendant to use to raise a jurisdictional challenge:
"'Treating jurisdiction as a threshold matter that should be challenged prior to trial affords substantial procedural safeguards for the defendant and serves the interests of judicial efficiency and economy. If only a jury could determine subject matter jurisdiction, a defendant would always be put through the expense, anxiety, and uncertainty of a trial and the only mechanism to challenge jurisdiction would be an appeal after the conclusion of trial.' By contrast, if the issue can be resolved by the court before trial, the defendant will have the opportunity to seek immediate review through a writ proceeding." (Betts, supra, 34 Cal.4th at p. 1052.)
We conclude that considering Duncan's jurisdictional claim in this writ proceeding serves the interests that the Betts court outlined.
B. The trial court lacks territorial jurisdiction over Duncan
1. Governing law
a. Statutory law governing territorial jurisdiction in criminal cases
Section 27 provides in relevant part:
"(a) The following persons are liable to punishment under the laws of this state:
[¶]... [¶]
"(3) All who, being without this state, cause or aid, advise or encourage, another person to commit a crime within this state, and are afterwards found therein."
Section 778 provides:
"When the commission of a public offense, commenced without the State, is consummated within its boundaries by a defendant, himself outside the State, through the intervention of an innocent or guilty agent or any other means proceeding directly from said defendant, he is liable to punishment therefor in this State in any competent court within the jurisdictional territory of which the offense is consummated."
Section 778b provides:
"Every person who, being out of this state, causes, aids, advises, or encourages any person to commit a crime within this state, and is afterwards found within this state, is punishable in the same manner as if he had been within this state when he caused, aided, advised, or encouraged the commission of such crime."
b. The law governing the determination whether the trial court has territorial jurisdiction
The trial court, rather than the jury, decides the issue of territorial jurisdiction. (Betts, supra, 34 Cal.4th at pp. 1052-1054.) "The prosecution has the burden of proving the facts necessary to establish territorial jurisdiction by a preponderance of the evidence. [Citation.]" (Id. at p. 1055.) Although the Supreme Court has not definitively stated the standard of review to be applied to a trial court's territorial jurisdiction ruling (ibid.), where the issue may be decided on undisputed facts, as in this case, the reviewing court applies a de novo standard of review. (See Hageseth v. Superior Court (2007) 150 Cal.App.4th 1399, 1408 (Hageseth).)
c. Case law regarding territorial jurisdiction
In Betts, supra, 34 Cal.4th at pages 1046-1047, the Supreme Court outlined the evolution of the law of territorial jurisdiction in criminal cases:
"It long has been established that a state will entertain a criminal proceeding only to enforce its own criminal laws, and will not assume authority to enforce the penal laws of other states or the federal government through criminal prosecutions in its state courts. [Citation.] At common law, courts applied a narrow principle of territorial jurisdiction in criminal cases and, with some exceptions, a particular crime was viewed as occurring for purposes of jurisdiction in only one location, conferring jurisdiction over the offense upon only a single state. [Citations.] But conduct relating to criminal activity frequently is not confined to the borders of a single state, and strict application of territorial principles often can render problematic the prosecution of crimes involving more than one state. Although the constitutional limits of state courts' extraterritorial jurisdiction in criminal matters have not been precisely delineated, it is clear that states may extend their jurisdiction beyond the narrow limits imposed by the common law. For example, a state may exercise jurisdiction over criminal acts that take place outside of the state if the results of the crime are intended to, and do, cause harm within the state. [Citations.]"
The Betts court noted that a series of provisions in the Penal Code "establish territorial jurisdiction for specific types of interstate situations or particular crimes." (Betts, supra, 34 Cal.4th at p. 1047, citing §§ 27, 777b-778b.) "Like most other states, California has addressed the problem of criminal activity that spans more than one state by adopting statutes that provide our state with broader jurisdiction over interstate crimes than existed at common law. Such laws generally 'are premised on the belief that a state should have jurisdiction over those whose conduct affects persons in the state or an interest of the state, provided that it is not unjust under the circumstances to subject the defendant to the laws of the state.' [Citation.]" (Betts, supra, 34 Cal.4th at p. 1047; see also People v. Renteria (2008) 165 Cal.App.4th 1108, 1118 (Renteria) ["Territorial jurisdiction as discussed in Betts... is... ultimately a question of whether a state has a legitimate interest in a criminal act such that it is reasonable to convict a defendant of its commission in this state"].)
In Hageseth, supra, 150 Cal.App.4th 1399, the court applied sections 27 and 778, in concluding that a physician who was never physically present in California could be subject to criminal prosecution in this state for practicing medicine without a California medical license. In that case, a California resident (McKay), initiated an online purchase of a generic version of the drug Prozac from a Web site that was outside the United States. (Hageseth, supra, 150 Cal.App.4th at p. 1404.) McKay initiated the purchase by submitting, over the internet, a questionnaire in which he identified himself as a California resident and requested that the drug be sent to him at a California address. (Ibid.) The Web site operator forwarded McKay's completed questionnaire to a company (JRB), which had its headquarters in Florida and operated a computer server in Texas. (Ibid.) JRB forwarded McKay's purchase request and questionnaire to defendant Hageseth, who was physically located in Colorado and licensed to practice medicine in that state. Hageseth issued an online prescription to JRB's server in Texas, which forwarded the prescription to a pharmacy in Mississippi. (Ibid.) The pharmacy filled the prescription and mailed the drug to McKay at his California address. (Ibid.) In summarizing these facts, the Hageseth court stated, "A preponderance of the evidence shows [Hageseth] prescribed medication for a resident of this state, aware of the virtual certainty his conduct would cause the prescribed medication to be sent that person at his residence in California." (Id. at p. 1418.)
In considering whether these facts supported the conclusion that the trial court had jurisdiction over Hageseth, the Hageseth court relied on the "detrimental effect" theory of territorial (or extraterritorial) jurisdiction. (Hageseth, supra, 150 Cal.App.4th at p. 1419.) The Hageseth described that theory as follows:
In explaining the basis for its reliance on the detrimental effect theory, the Hageseth court reasoned "Section 778 essentially codifies this theory of extraterritorial criminal jurisdiction," and noted that the detrimental effect theory "has been accepted by our Supreme Court as a valid basis upon which territorial jurisdiction may be posited. ([Betts, supra, 34 Cal.4th at pp. 1046-1047].)" (Hageseth, supra, 150 Cal.App.4th at p. 1414.)
"The detrimental effect theory of extraterritorial jurisdiction has been described as a 'doctrine of constructive presence,' a legal fiction considered 'necessary to the practical administration of criminal justice.' [Citations.] Under this common law rule, 'if a man in the state of South Carolina criminally fires a ball into the state of Georgia, the law regards him as accompanying the ball, and as being represented by it, up to the point where it strikes.' [Citations.]" (Id. at p. 1413.)
In applying this law to the facts of the case, the Hageseth court concluded, "because a preponderance of the evidence... shows that [defendant's] acts outside this state were intended to produce and produced detrimental effects within it, we believe the objective territorial principle codified by section 778 provides a basis upon which jurisdiction might be found to lie in this case." (Hageseth, supra, 150 Cal.App.4th at p. 1419.)
d. The charged offenses
Section 266h, subdivision (a) provides in relevant part:
"[A]ny person who, knowing another person is a prostitute, lives or derives support or maintenance in whole or in part from the earnings or proceeds of the person's prostitution, or from money loaned or advanced to or charged against that person by any keeper or manager or inmate of a house or other place where prostitution is practiced or allowed, or who solicits or receives compensation for soliciting for the person, is guilty of pimping...."
Section 266i, subdivision (a)(1) provides in relevant part:
"[A]ny person who does any of the following is guilty of pandering, a felony, and shall be punishable by imprisonment in the state prison for three, four, or six years:
"(1) Procures another person for the purpose of prostitution."
"A continuous course of conduct crime is one in which the actus reus is defined as a series of acts over a period of time. [Citations.]" (People v. Culuko (2000) 78 Cal.App.4th 307, 325.) The People note that courts have held that both pimping and pandering are continuous course of conduct crimes. (See People v. Lewis (1978) 77 Cal.App.3d 455 [pimping]; People v. Dell (1991) 232 Cal.App.3d 248, 265-266 [pandering], citing People v. White (1979) 89 Cal.App.3d 143 (White)].)
In White, the court stated that pandering by procuring a person in a place of prostitution (§ 266i, subd. (c)) is "a one-act offense," that is "completed by a defendant's act of procuring, for a female, a place as an inmate in a house of prostitution." (White, supra, 89 Cal.App.3d at p. 151.) However, the White court stated, "[O]nce the female is procured for a house of prostitution, the one offense becomes ongoing as long as the female plies her trade in such house." (Ibid.) As a "one-act offense" (ibid.), pandering would not seem to qualify as a crime with an actus reus, "defined as a series of acts over a period of time" (People v. Culuko, supra, 78 Cal.App.4th at p. 325); we question whether a crime may be properly categorized as a continuous course of conduct crime based on the continuous acts of a person other than the defendant. However, in light of our rejection of the People's argument that the continuous nature of pimping and pandering provided the trial court with jurisdiction over Duncan (see pt. III.B.2., post), we assume for the sake of this opinion that pandering is a continuous course of conduct crime.
e. Aiding and abetting
"A person aids and abets the commission of a crime when he or she, (i) with knowledge of the unlawful purpose of the perpetrator, (ii) and with the intent or purpose of committing, facilitating or encouraging commission of the crime, (iii) by act or advice, aids, promotes, encourages or instigates the commission of the crime. [Citation.]" (People v. Cooper (1991) 53 Cal.3d 1158, 1164.) "It is settled that if a defendant's liability for an offense is predicated upon the theory that he or she aided and abetted the perpetrator, the defendant's intent to encourage or facilitate the actions of the perpetrator 'must be formed prior to or during "commission" of that offense.' [Citations.]" (People v. Montoya (1994) 7 Cal.4th 1027, 1039, italics omitted.)
2. Application
The People presented no evidence that Duncan committed any act in California. Therefore, the trial court could properly assert territorial jurisdiction over Duncan only if the People established either that Duncan assisted another "person to commit a crime within this state" (§§ 27, subd. (a)(3), 778b, italics added), or that a crime was "consummated within" California through "means proceeding directly" from Duncan. (§ 778, italics added.) Duncan's statements, made outside of California, concerning prospective conduct that was to take place outside of California, constitute the only evidence that the People presented concerning Duncan's alleged criminal conduct. Specifically, Duncan's statements regarding an Arizona escort service and a street in Arizona where prostitution activities could be performed pertained solely to conduct to be undertaken outside of California. The People thus did not establish that Duncan assisted or caused a crime to occur "within" California such that the trial court could properly assert territorial jurisdiction over Duncan. (§§ 27, subd. (a)(3), 778b, 778.)
The People offer several arguments in support of their claim that the trial court had territorial jurisdiction over Duncan. None is persuasive. First, the People argue, "[Duncan] fits squarely within section 27, subdivision (a)(3), being outside the State he aided and abetted Love and Calloway in the course of criminal conduct charged within this state." (Italics added.) We disagree. Section 27, subdivision (a)(3) does not provide jurisdiction over defendants who are alleged to have assisted in the commission of a crime that is charged in this state. Rather, section 27, subdivision (a)(3) requires that the defendant assist "another person to commit a crime within this state...." (Italics added.) The People could properly prosecute Love and Calloway in California for their commission of criminal conduct in Arizona, because the People presented evidence that Love and Calloway committed acts within California in partial execution of their criminal intent. (See § 778a, subd. (a) ["Whenever a person, with intent to commit a crime, does any act within this state in execution or part execution of that intent, which culminates in the commission of a crime, either within or without this state, the person is punishable for that crime in this state in the same manner as if the crime had been committed entirely within this state," italics added]). However, in order for the trial court to exercise jurisdiction over Duncan, who acted entirely out-of-state, he must have assisted a person to "commit a crime within this state." (§ 27, subd. (a)(3), italics added.) Even assuming that Duncan aided and abetted a crime that was charged within this state, he is not subject to jurisdiction pursuant to section 27, subdivision (a)(3), unless the crime was committed in California.
In a related argument, the People maintain that the fact that the information charged crimes that fall under the continuous course of conduct doctrine demonstrates that the trial court has territorial jurisdiction over Duncan. Specifically, the People contend, "[I]t is a single course of criminal conduct occurring in California and Arizona that is alleged on the information, not separate and discr[ete] acts occurring in separate locations." The People cite no authority for this novel application of the continuous course of conduct doctrine, and we are aware of none. Nor is the People's theory consistent with sections 27, subdivision (a)(3), 778, or 778b. As noted above, sections 27, subdivision (a)(3), and 778b provide for territorial jurisdiction in California over a defendant who acts out-of-state if, and only if, the defendant assists another person in "commit[ting] a crime within this state." (Italics added.) Similarly, section 778 provides jurisdiction over a defendant who acts out-of-state if the crime is "consummated within [the state]," through "means proceeding directly from said defendant." (Italics added.) A defendant such as Duncan, who, while out-of-state, is alleged to have assisted a person in perpetrating criminal conduct out-of-state, cannot be said to have assisted in the commission of a crime within the state (§§ 27, subd. (a)(3), 778b) or to have directly caused a crime to be committed within the state (§ 778), solely because the assisted person acted pursuant to a larger course of criminal activity that was conducted partially in California, and which the out-of-state defendant has neither intended to assist nor, in fact, assisted.
Whether a crime is of a continuous nature is frequently considered in determining whether a unanimity instruction is required (see, e.g., People v. Zavala (2005) 130 Cal.App.4th 758, 769), or whether a defendant may be subjected to multiple convictions (see, e.g., People v. Lewis, supra, 77 Cal.App.3d at pp. 461-462).
Under certain circumstances, "one who joins a conspiracy after it is formed, and actively participates in it, thereby adopts the previous acts and declarations of his fellow conspirators. [Citations.]" (People v. Aday (1964) 226 Cal.App.2d 520, 534.) Duncan has not been charged with conspiracy, and thus we have no occasion to consider the law of conspiracy as it relates to a trial court's territorial jurisdiction.
The People also argue that California courts may exercise jurisdiction over Duncan because Love and Calloway are alleged to have returned to California with the proceeds of their out-of-state pimping activities. If this theory were accepted, Duncan could be prosecuted in any state to which Love and Calloway happened to travel with the proceeds of their alleged pimping activities. The happenstance that Love and Calloway may have "traveled back to this County with the proceeds from the prostitution" that was conducted out-of-state, cannot serve as a basis for California's exercise of jurisdiction over Duncan because this circumstance does not demonstrate that Duncan intended to produce a detrimental effect in California. (Compare with Hageseth, supra, 150 Cal.App.4th at pp. 1418-1419 [concluding trial court had jurisdiction over defendant who caused drug to be sent to California].) The Hageseth court emphasized that its holding did not reach the conduct of an out-of-state physician who merely gives a person a prescription, even if the physician knows that the person intends to return to California: "[I]t is appropriate to distinguish the facts of this case from the common situation in which, while in another state, a California citizen receives medical treatment from a physician, licensed there but not in California, who writes her a prescription knowing she is a California resident intending to return to this state. Nothing in this opinion is intended to address that situation." (Hageseth, supra, 150 Cal.App.4th at p. 1422, fn. 25.)
Duncan's statements were made entirely outside the state of California and concerned conduct that was to occur entirely out-of-state, and the People presented no evidence that would establish that Duncan intended to assist Love and Calloway in deriving support from prostitution in this state. Under these circumstances, there is no evidence that Duncan intended to assist Love or Calloway in deriving support from prostitution in California or that Duncan's acts in fact assisted Love or Calloway in deriving support from prostitution in California. Thus, there is no evidence that Duncan "intended to produce and produced detrimental effects within [California]" (Hageseth, supra, 150 Cal.App.4th at p. 1419, italics added), that he assisted a person to "commit a crime within this state." (§§ 27, subd. (a)(3), 778b), or that a crime was committed in California through "means proceeding directly from [Duncan]." (§ 778.)
Finally, we reject the People's claim that section 778a, subdivision (a), as construed by the courts in Betts, supra, 34 Cal.4th at pages 1055-1056,and Renteria, supra, 165 Cal.App.4th at pages 1117-1118, provides territorial jurisdiction over Duncan in this case. Although the People contend that "Duncan... fits squarely within section 778a," that statute, by its express terms, requires that the defendant, with an intent to commit a crime, commit an "act within this state" in execution or part execution of that intent. (Italics added.) The defendants in both Betts and Renteria committed acts in California. (Betts, supra, 34 Cal.4th at p. 1056 [defendant's acts in driving young girls across California for purpose of molesting them sufficient to support jurisdiction pursuant to section 778a, subdivision (a)]; Renteria, supra, 165 Cal.App.4th at p. 1118 [defendant's act of driving a stolen car in California immediately before attempting to flee from a California Highway Patrol officer sufficient to support jurisdiction pursuant to section 778a, subdivision (a)].) In contrast, in this case, the People acknowledge that Duncan "was outside the State of California" at all times, and do not point to any evidence that Duncan committed any act in California.
Instead, the People assert that "Love and Calloway, were within the State of California... during the first [telephone] calls in which Duncan provided advice and assistance." (Italics added.) However, as noted above, section 778a, subdivision (a) requires that the defendant (i.e. Duncan) have committed an "act within this state." Thus, even assuming that Love and Calloway were in California during Love's initial telephone calls with Duncan, the trial court clearly would not have had jurisdiction over Duncan pursuant to section 778a, subdivision (a).
In any event, the People provide no citation to the record to support their assertion that Love and Calloway were in California during Love's initial calls with Duncan, and we find no evidence in the record that supports this contention. In fact, during the hearing on Duncan's motion to dismiss for lack of jurisdiction, the prosecutor conceded that the People had not presented evidence on this issue, but argued that whether Love and Duncan were in California during Love's initial telephone calls with Duncan was not legally relevant to the People's theory of jurisdiction.
In responding to the trial court's observation that it was not clear whether Love and Calloway were in California during Love's initial telephone calls with Duncan, the prosecutor stated, "We actually do know. It was just not evidence that was put forward at the time of [the preliminary hearing]. And it's the People's position that it doesn't matter where [Love and Calloway] were when that advice was given."
Accordingly, we conclude that it is clear that the trial court does not have territorial jurisdiction over Duncan pursuant to 778a, subdivision (a).
In his reply to the People's return to show cause, Duncan contended that subjecting him to the jurisdiction of a California court under the circumstances of this case would be unconstitutional. We need not consider this contention in light of the fact that Duncan failed to raise the issue until his reply, and in light of our conclusion that the People have failed to establish a statutory basis for the trial court's exercise of territorial jurisdiction over Duncan.
IV.
DISPOSITION
Let a writ of prohibition issue preventing the trial court from taking any further action in the case with respect to Duncan, except to (1) vacate the orders denying the motion to dismiss and denying the motion for reconsideration, and (2) enter an order dismissing the charges. The opinion will be final as to this court 10 days after the date of filing. The stay that this court issued on October 26, 2009 is vacated.
WE CONCUR: McCONNELL, P. J., HALLER, J.