People v. Thomas

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.

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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.

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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

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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

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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

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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

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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

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‗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.)

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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.

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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