PEOPLE v. THOMASRespondent's Reply Brief on the MeritsCal.March 25, 2011 ST Tey eA nye Ss - an y aa Os oad & ¥ Ss y sid ve et x% hy i Sg “a Tog Es heyoF Jn the Supreme Court of the State of California THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, Case No. 8185305 Vv. . RAYSHON DERRICK THOMAS, Defendant and Appellant. Fifth Appellate District Court of Appeal, Case No. F056337 REPLY BRIEF ON THE MERITS KAMALAD. HARRIS Attorney General of California DANER. GILLETTE Chief Assistant Attorney General MICHAEL P. FARRELL Senior Assistant Attorney General JANET E. NEELEY , Deputy Attorney General STEPHEN G. HERNDON Supervising Deputy Attorney General State Bar No. 130642 1300 I Street, Suite 125 P.O. Box 944255 Sacramento, CA 94244-2550 Telephone: (916) 327-0350 Fax: (916) 324-2960 Email: Stephen.Herndon@doj.ca.gov Attorneysfor Plaintiffand Respondent TABLEOF CONTENTS Page Introduction..ccccecsssssssssessssscsesssssesescssee senenecensceeceeecouaseesuenenancedenaaseessaneeesenanes ] Argument secssssuesessusesnesesesseseeaneannreaneesLeveesensaceeeedeceeeceeceseeaeeeeeteseuenssssnaasaeeeees 1 I, Trial in Madera County did not infringe upon appellant’s state or federal constitutional rights..............00 1 Il. Appellant’s convictions should be reinstated because any error was nonprejUdicial.....0.....eeeccseeseeceeesssecesssevenes 15 CONCLUSION .... eee eeseestccssesesteeeseesecaecsscseeaeessssesaeessseceesesssssssceusessessccssennerates 17 TABLE OF AUTHORITIES Page CASES Batson v. Kentucky (1986) 476 U.S, 79 oo .eeecescceceeseesseeeseeecerecevsecneessaeeaeeeesseeeseceaeseesseeeseeasenees 8 Bouie v. City ofColumbia (1964) 378 U.S. 347 i cecicccecescccseeecececeeceaeesesaeeseecsaeesseceaeceescasesseeeeenreesans 15 Burns v. Municipal Court (1961) 195 Cal.App.2d 596 .o.ciceecccccccsectescesseecceeseceecsreaessecesneeeteeserseesees 3 Chapman vy. California (1967) 386 U.S. 18 cocceccccccsseecesescessseseseecntessessesseesteenees ccssuscesseessecessieeenees 16 Clemons v. Mississippi (1990) 494 US. 738 voce ceeseneeceeeeeeteseeeeeeeeereeensSe evaeeenecacecseeeneensereeeeseeseeaes 9 Duncan v. Louisiana (1968) 391 U.S. 145 oieeseeeceesneceseceeerecseeeeeeecarcseecersesnesaeseeseeeesseentes 3,7 Duren v. Missouri (1979) 439 U.S. 357 veceseceeeneseeeeresneeneeseescuceneeeatesaeesseeeaeeacerseetsteeeeeseeases 7,8 Inre MS. (1995) 10 Cal4th 698 oo... eeccesecsscetecsseeeseseeeeaesaeesnevateseeateesseevsetaveneeatenes 9 People v. Alvarado (2006) 144 Cal.App.4th 1146.00. eeeeesessesneseseneeecestecserreeneseseetenetaeeatens 3 People v. Barnes (1997) 57 CalApp.4th 552 oo. cesccsccsessecessetseqereesecseceeceseteessscarerateneerenees 13 People v. Betts (2005) 34 Cal4th 1039 oo... ccescecesecssecseeecesseceaesecesseeseaeeseseeeeneeses 6, 14, 15 People v. Bradford (1976) 17 Cal.3d 8 oo. eeececcsescsnneeesenseecseecceeesuessneesnensscaeessareseseeeaeesaes passim People v. Britt a (2004) 32 Cal.4th 944ooseccsseeseenerseseecsesaseaeseesecatsesseeassaseeeeacenteeseeees 2 il People v. Carrington (2009) 47 Cal. 4th 145 ooo ccceccceeceeeececseeeseeeeeseseeeecsaeeeseeessaeestaeesetseeeeers 14 People v. Crise (1990) 224 Cal.App.3d Supp. Lociececeseeeseeneeeenecneeseeaesaeseeesseeneeeeaes 16 People v. Flores — (2005) 129 CalApp.4th 174occcececseneeeceeescssenenessetensssessesscesaseeenens 6 People v. Garcia (2008) 167 Cal.App.4th 1550ceccsceeseceseceeeneeneetecnaecneeeseseeeesetaeseseees 6 People v. Guerra (1984) 37 Cal.3d 385 ooo. ceccecscesseecenceeeceeceeevseceetseesesaecneeecseesseceeeevseeseeeeaes 15 People v. Horton (1995) 11 Cal.4th 1068 ooo.ssecesecscresesssressessssssatecssecsees 2s 8 People v. Jones (1973) 9 Cal.3d 546 oicececcccescneescercececseecnaeeeesaeeesassesecntesseseeenaeeeseeesatenes 5,6 People v. Jones (2002) 103 Cal.App.4th 1139occececessecsseeceeceeecsteceecsseeeseeeeseseseseeeeesas 6 People v. Martin (1995) 38 CalApp.4th 883cc esecesecseseeeeseeneseeteseeneessessereneetererssesetenes 3,11 People v. Miles (2008) 43 Cal.4th 1074 0... cieccccssceseecseeececeeenessenesseeeaevsaeceseesaesesaesaesveneeeees 6 People v. Posey (2004) 32 Cal.4th 193...escent rereneseneecneessensesnecerentssenseeetsasans passim People v. Ramirez (2003) 109 Cal.App.4th 992ccccceseescsssessseseeessseseerecsesesesseeseeseeeeneceees 8 People v. Simon (2001) 25 Cal.4th 1082.0...ec cecccscccssssseeceesseeeersssseesseeeesssusesesaeeeseeeenenees 15 People v. Vang . (2010) 184 Calapp.4th 912 oo.eccceesseceneeeeeeecsecsesereeseeceseeedeeseseeteeeeeeess 6 People v. Watson (1956) 46 Cal.2d 818 oo... cccecceceeseeceeseeeseeeeeeseeienaeeeseresseeeees peesaeevseeeeaeeaees 15 People v. Welch (1993) 5 Cal.4th 228 ooo. cccssecseseeretenecteeeneneeeees beseeseeaeescesseeseesereeneavensenee 15 ili People v. Wynn (2010) 184 Cal.App.4th 1210 oo... ccc ceeeecsessccsneeseecesececeeeseevcessecusssressaeecsees 6 Price v. Superior Court (2001) 25 Cal.4th 1046 0... cee ecceeencsceececneeeenreseseeseeeceecteeeneesearesaetees passim Taylor v. Louisiana _ (1975) 419 U.S. 522 iecccccssccentccnseeteeestaeeeeseecsaeeesaeeeceaneceaeseaseseeeeaeseseaeted 3 United States v. Cabrales (1998) 524 U.S. 1 ccc cccsececcesseceeseceeeeteeseaeessnetenteeeeeeees vecceeaeeeaecetenseeaeeeeaees 11 Williams v. Florida (1970) 399 U.S. 78 eccccesccsceceteesecseseeseenecceseressceeeerccarsessesseeeseersenssitesssersee 7 STATUTES Penal Code § O54 oie eccecccnsecsscnecsesneceseeeeeesceeeeaeesecsecaaessaeecaeeeesereseaceseacesaeeauersevaeeeaeeess 5,6 § 691, SUB. (D)ooccceseecceneeseeeeeeteneeceaeecicecesueseeneeceesectetteaeennesenaseeenes 2 TTT ceccccecccescsssesscsseeseescseseesseeeseceaeceaeeaecacecaeeaaessaecsaeesueeeseeeneseeesneeateas 2,9, 10 S78eee ceceeeececeseeeeeeeeseeeceseaecesneceseceseesuaeecsaeeseeeeeeeesseaeesneeeeneseaeesees passim § 783 ooeececcecccssessecseeseeseceneecceeceneeaeesecereeaeesenecsaessaessaetsneessaesaesaneseesneessetens 5,6 CONSTITUTIONAL PROVISIONS California Constitution ATL. 1, § LO.cee eecsssesscesseeccssseecesecsseestecceseeceacseseceesseesseasecseseseesesesnseeesenes 16 Art. VI § 13cc cccecccscsssesscsssccsscssesscescsscseecscssecsecssceeccssecsasssecaecsecasesesetessees 16 United States Constitution Oth Amendment..0......ccceccessceceseeeeeeeececeecececseeeseesseeesaeeesaeseseseseneseees passim 14th Amendment..........ccecccceccsseceeceseneeneeescseecsaersaeeecieeesesseereneseanseeeees passim CouRT RULES Federal Rules of Criminal Procedure Ue 18 oieceicceceesceccenensssesccsecesecesecececcsessesenausaucavavsesssceceueseceeececcerereeaanrs 1] iv INTRODUCTION In its Opening Brief, respondent explained why appellant was properly prosecuted in Madera County under Penal Code section 781’s multiple venue provisions. (RBM 6-14.)! ? Respondentalso showed why any error as to venue should have beenassessed for harmlessness. (RBM 14-15.) In response, appellant raises several federal andstate constitutional concerns. Herelies principally on outdated law and unsupported racial allegations. This reply addresses appellant’s arguments in the order appellant presents them. ARGUMENT I. TRIAL IN MADERA COUNTYDID NOTINFRINGE UPON APPELLANT’S STATE OR FEDERAL CONSTITUTIONAL RIGHTS Appellant contendsthat several of his state and federal constitutional rights were violated -when he wastried in Madera County instead of Fresno County. (ABM 3-36.) Though not mentioned previously, appellant asserts that, because heis black, the prosecutor tried him in Madera County because that county had disproportionately fewer blacks than Fresno | County. His accusations of racial discrimination and forum shopping border on the frivolous. Appellant wastried in Madera County because that is where he lived and conductedhis illegal drug business. He was stopped by his Madera County parole officer and investigated by Madera County law enforcement. The matter was turned overto the local Madera ' RBMsignifies Respondent’s Opening Brief on the Merits. * Subsequentsection references are to the Penal Codeunless indicated otherwise. > ABMsignifies Appellant’s Answer Brief on the Merits. county prosecutor who prosecuted him in Madera County Superior Court. Only appellant’s inventory -- his cocaine -- was located just over the border in adjacent Fresno County. But he used a Madera County apartmentto convert cocaine to cocaine base, which he then sold on Maderastreets. Consequently, appellant was properly prosecuted in Madera Countyfor _ possessing cocaine with intent to sell.! Appellant specifically argues that his rights to proper vicinage and venuein state court are guaranteed by both the California Constitution and the Sixth and Fourteenth Amendments to the federal constitution. (ABM 4- 21.) Heis incorrect; these rights are protected primarily by state law, not the federal constitution. | It is helpful again to define terms. Venuerefers to the location or place wheretrialis held; it is governed by statute in California, not the California Constitution. (People v. Posey (2004) 32 Cal.4th 193, 209 _ (Posey); Price v. Superior Court (2001) 25 Cal.4th 1046, 1054 (Price); § 777 et seq.) “[B]ecause venue for trial implicates legislative policy, not constitutional imperative, the Legislature may determine the venue for trial exceptto the extentthe vicinage or due process provisions of the state or federal Constitutions circumscribe that authority.” (Price, p. 1056, ‘citations omitted.) Venueis also referred to asterritorial jurisdiction. (§§ 691, subd. (b), 777; People v. Britt (2004) 32 Cal.4th 944, 955; Posey, supra, 32 Cal.4th at p. 199.) Jurisdiction refers to the inherent powerof a court to decide acase and is composedofpersonal and subject matter * Appellant asserts that he “exhausted all 20 of his peremptory challenges.” (ABM 4.) It does not appear that he used his final challenge. (2 ART 458.) Appellant mentions the denial of his mistrial motion. (ABM 4.) That motion, based on a prospective juror’s response to appellant representing himself, is unrelated to the matters under review. (2 ART 432.) Jurisdiction. (Burns v. Municipal Court (1961) 195 Cal.App.2d 596, 599.) Importantly, venue doesnot implicate a-trial court’s fundamental Jurisdiction, either personal (authority to proceed against a defendant) or subject matter (authority to decide a criminal action). (Posey, supra, 32 . Cal.4th at p. 208.) Vicinage refers to the geographical area from whichthe jury poolis | drawn, generally the area where the crime occurred. (Price, supra, 25 Cal.4th at p. 1054.) Vicinage generally refers to the county. (People v. Martin (1995) 38 Cal.App.4th 883, 887.) The boundaries ofthe vicinage are ordinarily coterminous with the boundaries of the county within which at least someact preliminary to or requisite to the offense charge occurred. (People v. Alvarado (2006) 144 Cal.App.4th 1146, 1152.) The Sixth Amendmentto the federal constitution protects a _defendant’s rightto a trial “by an impartial jury of the state and district wherein the crimeshall have been committed, which district shall have been previously ascertained by law....” The right to an impartial juryhas been incorporated by the Fourteenth Amendment’s due process clause to apply to state criminaltrials. (Duncan v. Louisiana (1968) 391 U.S. 145.) The Sixth Amendmentimpartial jury clause also protects the right of criminal defendantsto a jury drawn from a representative cross-section of the community; this has also been incorporated by the Fourteenth Amendment. (7aylor v. Louisiana (1975) 419 U.S. 522.) Thefinal right stemming from the quoted portion of the Sixth Amendmentis the vicinage right; that has not been incorporated by the Fourteenth Amendment. Ten years ago, this Court held that the Sixth Amendment’s vicinage clause does not guaranteea right to trial in state courts before a jury drawn from the county where the crime was committed. (Price, supra, 25 Cal.4th at pp. 1056, 1065.) Earlier precedent, which had only assumed butnot held otherwise, was expressly disapproved. (/d. at p. 1069,n. 13.) Price established that the state constitutional vicinage right is not coextensive with the Sixth Amendmentright. (/d. at p. 1071.) As explained by this Court seven years ago: In Price v. Superior Court, supra, 25 Cal.4th 1046, we concludedthat the vicinage right embodied in the Sixth Amendment, whichis the right of an “accused... to a ... trial ... by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertainedby law,” applies only against the United States and is not incorporated by the Fourteenth Amendment’s due process clause for operation against the states. (Pricev. Superior Court, supra, 25 Cal.4th at pp. 1057-1069.) We also concluded that the vicinage right impliedin article I, section 16 of the California (see Price v. Superior Court, supra, 25 Cal.4th at pp. 1071-1078), constitutes simply the right of an accused to a trial by an impartial jury drawn from a place bearing some reasonable rélationship to the crime in question (id. at p. 1075). (Posey, supra, 32 Cal.4th at p. 222.) That appellant’s Madera County jury had a reasonable relationship to appellant’s crimes is beyond any dispute. Appellant argues that, under People v. Bradford (1976) 17 Cal.3d 8 (Bradford), his “rights through the Sixth and Fourteenth Amendments” were protected. (ABM 5.) Since appellant relies so heavily on Bradford (ABM 4-6, 20-21, 45-46), this case bears close scrutiny. There, a defendantrobbed a bank in Ventura County and was soon stopped for speeding by an officer. On the roadside, the defendant grabbed the officer’s gun. The officer was struck by another motorist. The defendant fired several shots at the officer and motorist before fleeing. The officer chased him to the adjacent Los Angeles County, where the defendant was apprehendedafter a traffic accident. The defendant was prosecuted in federal court for the bank robbery, in Los Angeles County for the assaults that occurred there, and in Ventura County for offenses arising out of the original stop. (Bradford, at p. 13.) On appeal from his Ventury County convictions, the defendant argued that the separate proceedings in Los Angeles and Ventura Counties violated section 654’s proscription against multiple prosecutions. (Bradford, supra, 17 Cal.3d at pp. 13-14.) He claimed that section 783 provided an alternative venue in Los Angeles County for the Ventura County offenses that were otherwise triable in Ventura County. (/d. at p. 15.) Section 783 provides in part that when a public offense is committed in California on a car “prosecutingits trip,” jurisdiction will lie in the jurisdictional territory the vehicle passes through or wherethe trip ends. (/bid.) The question before the Court was whether the Ventura County offenses could “be said to have occurred ‘on a ... motor vehicle’ within the meaning of section 783.” (Ubid.) The Court said no; section 783 did not apply because “the vehicle was stopped and the offenses were committed outside the vehicle at an identifiable spot along the highway.” (/bid.) To support its interpretation of section 783, this Court noted that the substance of the common law vicinageright “is preserved in the federal Constitution, the Sixth and Fourteenth Amendments guaranteeing a defendantin a state criminal proceeding a rightto 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. (/bid, citing People v. Jones (1973) 9 Cal.3d 546, 556 (Jones).) At commonlaw,this right was so strictly interpreted that offenses committed partly in one county andpartly | _in another were not prosecutable at all. (/bid.) This Court noted that section 781, the section at issue in the instant case, was intended to broaden criminaljurisdiction beyondtherigid limits of the commonlaw. (/bid.) The Court pointed out that this same purpose underlay section 783 -- “to assure that venue will lie somewhere whenthe exactsite of an offense cannotbe ascertained because it was committed in a moving vehicle.” (/d. at p. 16.) The Court concludedthat, “[i]n light of the federal constitutional right to a trial by a jury drawn from the vicinage in which the crime occurred, section 783 must be held inapplicable where, as here, the location of the crimeis readily identifiable.” (/d. at p. 17.) In other words, defendant’s section 654 multiple prosecution claim was deniedin part because the defendant could not be prosecuted in Los Angeles County undersection 783 for the offenses that occurred by the side of the road in Ventura.County. Section 783 did not support defendant’s section 654 claim because the location of the crime wasascertainable and because ofthe constitutional concernsfor vicinage. Bradford is of no help to appellant. This is a section 781 case, not a section 654 case. More importantly, Bradford's discussion ofthe vicinage ‘right relies on Jones, which this Court disapproved in Price. (Price, supra, 25 Cal.4th at p. 1069, fn. 13.) This explains why Bradford has mainly been relied on since Price for section 654 principles. (See, e.g., People v. Wynn (2010) 184 Cal.App.4th 1210, 1217; People v. Vang (2010) 184 Cal.app.4th 912, 916; People v. Garcia (2008) 167 Cal.App.4th 1550, 1565; People v. Flores (2005) 129 Cal.App.4th 174, 186; People v. Jones (2002) 103 Cal.App.4th 1139, 1144.) Succinctly stated, Price impliedly overruled that portion ofBradford’s analysis that relied on Jones. (Cf., People v. Miles (2008) 43 Cal.4th 1074, 1094, fn. 14.) And it did so beforeappellant was arrested. Appellant cites People v. Betts (2005) 34 Cal.4th 1039, 1059, fn. 16 (Betts), to support his claim that Bradford's discussionofthe federal vicinageright remains viable. (ABM 5-6.) But the point of the cited footnote is that the court did not have to decide whether venue was proper undersection 783 since it had already determined it was proper under _section 781. Having expressly reversed Jones, the basis for Bradford’s discussion of this issue, California law wasclear on June 25, 2001, when Price was decided: the Sixth Amendmentvicinageright is not an attribute of Fourteenth Amendmentdue process. (Price, supra, 25 Cal.4th 1046.) Next, appellant makes three subarguments. First, he claims his Sixth Amendmentvicinageright in state court is protected by United States Supreme Court precedent. Then, he argues that this same precedent established that the Sixth Amendment’sright to a jury included the right that the jury be drawn from a representative cross-section; this right, appellant claims, wasalso violated by his Madera Countytrial. Finally, he asserts that Bradford further relied on the Fourteenth Amendment’s due process and equalprotection clauses as guaranteeing a state defendant’s rights to proper venue and vicinage. (ABM 6-21.) All these arguments fail. The Sixth Amendment guarantee of a fundamentalrightto trial by jury in criminalcasesis protected in state courts by the Fourteenth | Amendment’s due process clause. (Price, supra, 25 Cal.4th at p. 1057, citing Williams v. Florida (1970) 399 US. 78, 86 (Williams), and Duncan v. Louisiana, supra, 391 U.S. at p. 149.) But as Price explained, Williams did not holdthat the vicinage provision of the Sixth Amendment’sjury trial right was applicable to the state by incorporation through the Fourteenth Amendment. (/d. at pp. 1059-1061.) Neither Congress nor the states that ratifiedthe Fourteenth Amendmentexpressedan intent that the vicinage clause applyto the states, nor is that right “so fundamental and necessary to the purpose ofjury trial that such intent must be presumed.” (dd.at pp. 1063-1065, 1069.) In short, appellant’s argument based on Supreme Court precedentraises no question not dealt with in Price. | His representative cross-section argumentfares no better. The Sixth Amendment’s impartial jury right is protected by a jury panel that includes a representative cross-section of the community. (Duren v. Missouri (1979) 439 U.S. 357, 481; People v. Horton (1995) 11 Cal.4th 1068, 1087.) The Fourteenth Amendment, besides incorporating this Sixth Amendmentright, | also contains a separate equal protection right to an impartial jury selection process. (Batson v. Kentucky (1986) 476 U.S. 79.) Appellant voiced no objection based on Duren or Batson below. Rather, he raised a venue and vicinage claim predicated on Bradford, supra, 17 Cal.3d 8, and otherstate venue provisions. (1 CT 205, ALB 16.) Bradford’s discussion of vicinage, however, was not the law even whenappellant made his motionsin the trial court -- Price was. In any event, he has not, and cannot now, show the systematic exclusion of a distinctive group from his jury selection process. (Peoplev. Horton, supra, 11 Cal.4th at p. 1087; People v. Ramirez (2003) 109 Cal.App.4th 992, 997-998,fn. 3.) Undeterred, appellant broadly asserts that he was denied a representative jury because the prosecutor “selected and chose its most advantageous jury poolthat contained almost 50% fewer of appellant’s African-American peers.” (ABM 13.) Hepoints to a single statistic: in 2006, the African-American population in Madera County was 2.53% while in Fresno County it was 4.89%. (ABM 3.) Appellant’s argument reducesto a logical absurdity: when a criminal case involving an African- American defendantcan befiled in either Madera or Fresno County, it must be filed in Fresno to avoid violating the defendant’s right to a fair cross- _ section of the community. Appellant’s aspersions against the prosecutor alleging forum- shopping should be quickly dispatched. (ABM 13.) Forum shoppingis “the practice of choosing the mostfavorable jurisdiction ... in which a claim might be heard.’” (Posey, supra, 32 Cal.4th at p. 222, n. 12.) There is nothing, absolutely nothing, in this record or in logic to suggest the a prosecutorfiled the charges in Madera County rather than Fresno County so as to manipulate the jury pool and reduce appellant’s African-American peers. Appellant’s crimes werediscovered by Madera County law enforcement which investigated the crimes and turned the case overto the Madera County District Attorney’s office. That office prosecuted the charges in Madera County. That the general venue statute (§ 777), or the joint venuestatute (§ 781), may have allowed the prosecutorto turn the ‘matter over to Fresno County prosecutors did not obligate him to do so. The logical place to prosecute this case was in Madera, where appellant | both lived and conducted his illegal drug business. Next, appellant claims that the Fourteenth Amendment’s due process and equal protection provisions protected him from the systematic exclusion of African-Americans from his jury pool. (ABM 13-19.) As shown, no evidence of systematic exclusion exists. Moreover, appellant has neverarticulated an equal protection argument. (nm re M.S. (1995) 10 Cal.4th 698, 727 [although Supreme Court rejected contention becauseit was not raised before the Court of Appeal, it added that “[w]ere we to reach it” it would be rejected on the merits].) Relatedly, appellant claims that this Court in Bradford created a state liberty interest that is protected against arbitrary state action by the due process clause of the Fourteenth Amendment. (ABM 20-21.) His theory is | that Bradfordprotects his federal constitutional rights to proper venue and vicinage, and that the state acted arbitrarily here by allowingtrial to occur in Madera County. (/bid.) This claim has no foundation; as Price and Posey teach, Bradford ’s analysis of the federal vicinage right is non-viable. Thetrialcourt did not act arbitrarily in denying appellant’s dismissal motions because there was a reasonable relationship between Madera County and appellant’s crimes whichsatisfied the state constitutionaltest. Respondent’s Opening Brief demonstrated that the standards of the applicable venuestatute, section 781, were met as well. There being no error ofstate law, there can be no violation of a liberty interest. (Clemons — v. Mississippi (1990) 494 U.S. 738, 747 [no liberty interest where state law did not create an entitlement].) Next, appellant expands his forum shopping argumentby claiming California’s venue statutes must be narrowly construed to respect the “constitutional concern fortrial in the vicinage” and to prevent the prosecution from choosing a more favorable tribunal. (ABM 21-23.) He forgets that the statute at issue here is section 781, which provides: Whena 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 ofthe offense occur in two or more jurisdictional territories, the jurisdiction of such offense is in anycompetent court within either jurisdictionalterritory. This statute is one of the many exceptionsto the general rule (§ 777) that venuelies in the county where the crime is committed. Asthis Court explained in Posey: In determining the meaning of section 781, we construe the provision liberally in order to achieve its underlying purpose, _ which is to expand venue beyondthe single county in which a crime maybesaid to have been committed (see, e.g., People v. Gutierrez (2002) 28 Cal.4th 1083, 1118; People v. Simon, supra, 25 Cal.4th at p. 1109; People v. Bismillah (1989) 208 Cal.App.3d 80, 85; cf. Price v. Superior Court, supra, 25 Cal.4th at p. 1055 [concluding that provisions like § 781 are “remedial and-for that reason [are] construed liberally to achieve the legislative purpose of expanding criminal jurisdiction”] -- consistently, of course, with “protect[ing] a defendant from being required to standtrial in a distant and unduly burdensome locale” (People v. Simon supra, 25 Cal.4th at p. 1110, fn. 18). Here, appellant was prosecuted wherehe lived; he wasnot “required to standtrial in a distant and unduly burdensomelocale.” (/bid.) Again, there is simply nothing to support appellant’s forum shopping assertion. Given the fact that ‘the great bulk of the evidence came from Madera County,it ' seemsthat it is appellant who is forum shopping to makeprosecution in 10 another county moredifficult and expensive. And appellant fails to recognize that vicinage “also protects the right of the offended community to pass judgmentin criminal prosecutions.” (People v. Martin, supra, 38 Cal.App.4th at p. 889, citations omitted.) Appellant, a Madera resident whosold his drugs in Madera, was properly prosecuted there. Finally, in subsection c, appellant addresses the heart of the matter. Hefleshes out the gist of the appellate court ruling, arguing that he was charged with only “possessory offenses” and “possessory acts.” (ABM 23- 27.) He does not engagethecritical point: he was not charged with merely possessing cocaine; he was charged with possessingitfor sale, and the evidence showed he intendedto sell it in Madera County. And though dismissed post-trial, both counts included a gang enhancement, which connected appellant’s crimes to his gang activity in Madera. As the prosecution’s expert declared, appellant possessed the cocainelocated in Fresno with the intent to convert it to cocaine base in Madera andthensell it on the streets in Madera. (1 CT 43; 6 RT 1539.) In short, appellant’s offenses were not just “possessory.” Appellant repeatedly invokes United States v. Cabrales (1998) 524 US. 1 (Cabrales). (ABM 25-27.) Cabrales does not advance appellant’s case becauseit involved federal constitutional and statutory provisions and the federal crime of money laundering. (Cabrales, supra, 524 U.S. 1-10.) Specifically, Cabrales dealt with Rule 18 of the Federal Rules of Criminal Procedure which echoed the constitutional requirement that prosecutions should occurin districts where the crimes occurred. (Cabrales, supra, 524 U.S. at p. 6.) This unremarkable point in no way undermines Price and Posey. The appellate court recognized that appellant’s right to control the contraband “could be inferred from the evidence found in Madera, - including the key andreceipts[,]” but believed this did not mean appellant 11 constructively possessed the contraband in Madera. (Opn., at p. 5.) The court did not explain how it could seemingly recognize yet deny that appellant constructively possessed the contraband. Appellant now argues that the “prosecution failed to prove constructive possession by a preponderance ofthe evidence because [he] had no right to control and no immediate and exclusive access to the storage facility locker and contents.” (ABM 28.) But the locker receipts and locker key appellant possessed whenhe wasapprehended gave him immediate access to and control over the contraband. All he had to do wasdrive over the county line and open the storage locker. Appellant points out that the storage locker was not rented to him. (ABM 28.) True, but it was rented by his ex-wife, Tarica Howard, the mother ofhis three children. Personal items in the locker also connected the contrabandto appellant. Inside the unit was a backpack containing plastic baggies virtually identical to the baggies found in the — Madera apartmentappellant used to convert the cocaine into cocaine base. (35 RT 10281-10297.) Appellant’s high school diploma was underneath the cocainein the locker. (35 RT 10304-10306.) Throughoutthe locker were reams of paperwork addressed to appellant at various addresses. (35 RT 10306-10314.) There were a few pieces of paperwork for Tarica Howardand Frederick Thomas, appellant’s brother. (35 RT103 14.) A revolver with the letter “R”stitched into the side and ammunition were found as well (35 RT 10318-10320); appellant’s first name starts with “R.” The address onatleast one ofthe storage locker receipts was appellant’s secret apartment which he used to convert cocaine to cocaine base. In short, the contrabandin the Fresno locker, the money,keys, and receipts appellant had whenstopped, and items in the two Madera apartments were all part of his illegal drug business, a business which he operated in Madera County. As result, he was properly prosecuted for possessing cocaine with the intent to sell it in Madera County. 12 Contrary to appellant’s assertion (ABM 27-29), a preponderance of the evidence showedhe constructively possessed the contrabandin the Fresno locker while in Madera County. It was immediately accessible to him in a place under his control. (People v. Barnes (1997) 57 Cal.App.4th 552, 556.) Indeed, he could not have possessedit -- either actually or constructively -- without the key (which gave him access) and the receipts (whichentitled him to access), and appellant had these itemsin his possession when he wasarrested in Madera. Indeed, the locker key was on the sameringas his residence key. Appellant claims there wasno evidence he knew the locker password. (ABM 28.) Since appellant had the key and receipts, and the valuable contraband wasclosely linked to him personally, it may reasonably be inferred that he knew the password as well. It is also reasonable to infer that cocaine from the Fresno locker stash had been brought to Madera, converted into cocaine base, and sold there. Respondent’s Opening Brief demonstrated that appellant was properly tried in Madera County because he constructively possessed the cocaine for sale there, or he engagedin acts requisite to that offense there, or he caused the requisite effects there. (RBM 6-14.) Appellant protests that the preparatory acts did not occur, but if they did, the preparatory-acts doctrine is unconstitutional. (ARB 30-33.) Respondentdisagrees. Appellant posits that the preparatory acts are really just oneact: possessing cocaine, andsince that was the only criminal act, it was not preparatory to anything. (ARB 30.) Actually, appellant’s ongoing drug sale business, which involved two apartments and the rental car he was stopped in, as well as items in his possession like the phones, money, and locker key, were preparatory acts to possessing the cocaine in the Fresno lockerfor sale. Again, appellant’s crime was not merely possesssory. Nor is this doctrine unconstitutional because it “emanates from liberal constructive of the venuestatute....” (ARB 30.) Appellant again engages 13 in a discussion ofirrelevant federal law (ARB 30-33). (See Betts, supra, 34 Cal.4th at p. 1057.) Appellant committed his crime in part in Madera County by constructively possessing the cocaine and operating his drug businessthere. Similarly, appellant claims he did not cause requisite effects in Madera County because he was charged with possessing cocaine, not selling cocaine. (ABM 33-35.) Actually, he was charged with possessing cocaine with the intentto sell it, and the evidenceall pointed to Madera as the place where that cocaine would be converted into cocaine base andsold. Asrespondenthas explained, appellant’s mental state, an element of the offense, is relevant to the venue issue. (See RBM 12-14.) . Furthermore, even if appellant possessed the cocaine only in Fresno County, as he and the appellate court maintain, he committed enough acts in Madera County to allow prosecution there under section 781. As this Court recently noted in People v. Carrington (2009) 47 Cal. 4th 145, 185: Pursuant to section 781, an offense may betried in a county “in which the defendant made preparations for the crime, even though the preparatory acts did not constitute an essential element of the crime.” (People v. Price, supra, | Cal.4th at p. 385 [Humboldt County had jurisdiction over a murder committed in Los Angeles County because the defendant went to Humboldt County to obtain weaponsfor the purpose of killing the victim in Los Angeles County].). Here, appellant set up his businessofselling cocaine in Madera County, and all of his acts in connection with this business were preparatory acts to the charged offense. . Lastly, appellant appears to argue-that, even if venue in Madera was proper underthe California Constitution’s “reasonable relationship”test, it is still improper under the Sixth and Fourteenth Amendments. (ABM 35- 36.) As respondenthas already shown,the applicable rights under the Sixth Amendment(impartial jury, representative cross-section) and Fourteenth 14 Amendment (due process, equal protection), were either not raised below or werenot violated. Consequently, respondent submits that appellant was properly prosecuted in Madera County. Ii. APPELLANT’S CONVICTIONS SHOULD BE REINSTATED BECAUSE ANY ERROR WAS NONPREJUDICIAL Appellant asserts that the venueerror here requires reversalofhis convictions because it was structural error under the California Constitution and the Sixth Amendment. (ABM 37-45.) There was noerror here, as shown above. Noris this a new rule, as appellant claims. (ABM 45-46.) If a decision does not establish a new rule of law, no question of retroactivity arises. (Betts, supra, 34 Cal.4th at p. 1056; People v. Guerra (1984) 37 | Cal.3d385, 399.) Here Price, not Bradford, hasalways been the controlling legal precedentas to appellant’s vicinage right underthestate and federal constitutions. People v. Simon (2001) 25 Cal.4th 1082 and People v. Welch (1993) 5 Cal.4th 228 do not assist appellant because the overwhelming weight of authority (Price, Posey) had already rejected appellant’s argument. (ABM 46.) And contraryto appellant’s claims (ABM 46), this case involves no retroactive expansion of criminalliability so as to violate due process. (Bouie v. City ofColumbia (1964) 378 U.S. 347.) oe Furthermore, Price ’s holding that the Sixth Amendment’s vicinage rightis not an attribute of Fourteenth Amendment dueprocessaffected the appellate test for determining whether a vicinageerroris prejudicial. Since it is at most a state law error,it is reviewable under the standard in People v. Watson (1956) 46 Cal.2d 818, 836, not the standardfor federal ‘15 constitutional error in Chapman v. California (1967) 386 U.S. 18, 24.° As respondent has explained, venue does not implicate a trial court’s fundamental jurisdiction, anderrors which are not jurisdictional in the fundamental senseare reviewedfor prejudicial error. (RBM 14-15.) Here, that standard is Watsons reasonable probability test. It cannot be seriously disputed that appellant would not have received a more favorable result had he been tried in Fresno County because the evidence of his crimes was overwhelming. To summarize, appellant’s vicinage right under the California Constitution was not violated. Any conceivable infringement did notresult in a miscarriage ofjustice. (Cal. Const., art. I, § 16 & art. VI, § 13.) Appellant’s federal constitutional arguments fail outright because they are based on irrelevantlaw. Thestate and federal constitutional issues under discussion rely on existing case law, especially Price, which was decided in 2001 before appellant was apprehended. The application of the prejudice test flows from Price aswell. Consequently, appellant’s meritless arguments should be rejected. > Appellant’s argumentthat improper venue simply requires reversal is not well-taken. (ABM 45-46.) His California authorities are outdated; for example, People v. Crise (1990) 224 Cal.App.3d Supp.1, 4-5, relies on Bradford. Nor do appellant’s authorities hold reversal was required. His federal cases are inapplicable because this case turns ona state law issue. 16 CONCLUSION For all these reasons, the decision of the court of appeal should be reversed. Dated: March 24, 2011 $A2010303748 31215770.doc Respectfully submitted, KAMALA D.HARRIS Attorney General of California DANE R. GILLETTE Chief Assistant Attorney General MICHAEL P. FARRELL Senior Assistant Attorney General JANET E. NEELEY Deputy Attorney General STEPHEN G. HERNDON Supervising Deputy Attorney General Attorneysfor Plaintiffand Respondent 17 CERTIFICATE OF COMPLIANCE I certify that the attached REPLY BRIEF ON THE MERITSuses a 13 point Times New Romanfont and contains 4786 words. Dated: March 24, 2011 . KAMALA D. HARRIS Attorney General of California 4-) 7 SpfMae f. /an,it~ STEPHEN G. HERNDON Supervising Deputy Attorney General Attorneys for Plaintiffand Respondent DECLARATION OF SERVICE BY U.S. MAIL Case Name: People v. Thomas No.: $185305 I declare: I am employedin the Office of the Attorney General, whichis the office of a memberofthe California State Bar, at which member's direction this service is made. I am 18 years of age or older and not a party to this matter. [ am familiar with the business practice at the Office of the Attorney General for collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondenceplaced in the internal mail collection system at.the Office of the Attorney General is deposited with the United States Postal Service that same day in the ordinary course of business. On March, 2011, I served the attached REPLY BRIEF ON THE MERITSbyplacing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid, in the internal mail collection system at the Office of the Attorney General at 1300 I Street, Suite 125, P.O. Box 944255, Sacramento, CA 94244-2550, addressed as follows: Carlo Andreani Attorney at Law 582 MarketStreet, Suite 811 San Francisco, CA 94101 (2 copies) Court of Appeal, Fifth Appellate District 2424 Ventura Street Fresno, CA 93721 CCAP 2407 J Street, Suite 301 Sacramento, CA 95816 The Honorable Michael R. Keitz Madera County District Attorney 209 West Yosemite Avenue Madera, CA 93637 Madera County Superior Court 209 West Yosemite Avenue Madera, CA 93637 I declare under penalty of perjury underthe lawsof the State of California the foregoingis true and correct and that this declaration was executed on March ‘>+) __, 2011, at Sacramento, California. Declarant - $A2010303748 31226851 .doc