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Rejecting 124 years of case law, the California Supreme Court on Thursday held 6-1 that judges, not jurors, should decide the proper venue for criminal trials. “Although questions of fact relating to the substantive issue of guilt or innocence are within the province of the jury,” Chief Justice Ronald George wrote, “questions of law concerning procedural issues that do not themselves determine guilt or innocence — including any underlying questions of fact — are within the province of the court.” While agreeing with the overall holding, Justice Janice Rogers Brown wrote a dissent in which she argued that Marin County was not the proper venue for the trial at issue, and accused the majority of encouraging forum shopping by law enforcement officers. “The frustration of the Marin County Sheriff’s Department at its inability to lure defendant out of San Francisco, where he apparently believed he could sell drugs with impunity to residents and non-residents alike, is understandable,” she said. “However, frustration can be a breeding ground for abuse, and by condoning the forum shopping engaged in here, the majority teeters on a slippery slope.” Marin County Sheriff’s Detective Rudy Yamanoha initiated the case by telephoning San Francisco resident Christopher Posey to arrange a drug deal. After failing to get Posey to meet him on the Marin County side of the Golden Gate Bridge, Yamanoha met him twice on the San Francisco side. Posey was charged and convicted on two counts of selling cocaine base but argued that venue in Marin County wasn’t appropriate because he was arrested in San Francisco. The Supreme Court disagreed but went much further by scrapping case law dating back to 1880 that said jurors determine venue for criminal trials. Prior courts, the justices said, erred by equating proof of venue with proof of criminal guilt. “Venue is a procedural issue involving the appropriateness of a place for a defendant’s trial on a criminal charge,” George wrote, “and not a substantive issue relating to the defendant’s guilt or innocence of the crime itself.” In her dissent, Brown accused the majority of invoking “the letter of the venue provisions while betraying their spirit.” She also said proper venue should have been in Sonoma County because Detective Yamanoha told Posey he was calling from Santa Rosa. “[Posey] had reason to believe he was harming Sonoma County and using it to facilitate his criminal purpose,” she wrote. “On the other hand, defendant had no reason to believe he was harming Marin County or using it to facilitate his criminal purpose.” The case was initially presented to former District Attorney Terence Hallinan, who declined to prosecute. George responded to Brown’s charge of forum shopping in a footnote, stating that the case was tried in Marin County after San Francisco refused to get involved. “It was only after the San Francisco district attorney declined to prosecute, apparently for reasons of policy, that Yamanoha was compelled to approach the Marin district attorney,” George wrote. Jeremy Friedlander, the San Francisco-based deputy attorney general who represented the state, said the ruling is most significant for the holdings that venue is a matter of law for the court to decide and that a telephone call from another county is sufficient to establish proper venue. “But as a practical matter,” he said, “in most cases venue is not an issue. It’s not going to arise much.” Posey’s attorney, Willits solo practitioner Randi Covin, couldn’t be reached for comment. The ruling is People v. Posey, 04 C.D.O.S. 542.

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