People v. Dawkins

striking only three of the four prior convictions that were the subject of his motion under People v. Superior Court (Romero ) (1996) 13 Cal.4th 497 , 53 Cal.Rptr.2d 789 , 917 P.2d 628 ( Romero ). In the published part of this opinion, we hold that venue was proper under the plain terms of Penal Code section 783, which pertains to offenses committed on various modes of transportation. We also reject Dawkins's remaining contentions and affirm.

one-year-old daughter. They boarded a BART train traveling toward Pittsburg-Bay Point at the Walnut Creek station, which is in Contra Costa County. The train car was "pretty empty," and a man whom A. identified as Dawkins was seated near her. Dawkins switched seats but then moved back to his original seat, reclining so that his feet were facing toward A. After the train left the Pleasant Hill station, A. noticed Dawkins was making "a vertical motion" near his stomach, and she realized that "he had his entire penis out of the fly of ... [his] jeans" and was staring at her while he masturbated.

A. felt "stunned" and "immobilized," but after about a minute, she stood up and called out to other passengers, " 'He has his penis out. He's masturbating. He's looking at me and my baby.' " She then asked Dawkins what he was doing, and he got up and moved into another car.

A different passenger called the station agent through the onboard call box. When the train stopped at the Concord station, which is also in Contra Costa County, a BART police officer boarded and spoke to A. She described the man who had been masturbating. The officer then located Dawkins, whose fly was unbuttoned, and pulled him off the train.

C. The Trial Court Proceedings.

The San Mateo District Attorney charged Dawkins with multiple crimes as a result of these incidents. Based on the incident involving E., Dawkins was charged with a felony count of stalking, a felony count of making criminal threats, two felony counts of lewd or lascivious acts upon a child, and one

offense involving A. because it clearly occurred in Contra Costa County. We are not persuaded.

1. Additional facts.

Dawkins brought a motion to dismiss the indecent-exposure count on the basis that venue was not proper in San Mateo County. At the preliminary hearing, the magistrate "reluctantly" denied the motion, stating that she did not "understand San Mateo County's interest in reaching into Contra Costa

Dawkins seizes on this broadly worded holding, contending that under Bradford section 783 does not apply because it is clear he committed indecent exposure somewhere in Contra Costa County. But in Bradford the offenses occurred outside the car, and thus section 783 did not apply by its terms. ( Bradford, supra , 17 Cal.3d at p. 15, 130 Cal.Rptr. 129 , 549 P.2d 1225 .) In contrast, the offense here took place on a train that passed through San Mateo County on its trip. Although in Bradford the fact that the offenses occurred in a "readily identifiable" location also supported the result, the holding was consistent with section 783 's language. ( Bradford , at pp. 15, 17, 130 Cal.Rptr. 129 , 549 P.2d 1225 .) In other words, the Supreme Court did not have to interpret section 783 in a manner that contradicted its plain meaning, as Dawkins would have us do here.

We also disagree with Dawkins that interpreting section 783 to provide for venue in San Mateo County would violate his constitutional right to vicinage. As he acknowledges, subsequent cases cast doubt on Bradford 's reliance on the Sixth Amendment right to vicinage, which does not apply to the states through the Fourteenth Amendment. (See Thomas, supra , 53 Cal.4th at p. 1288, 140 Cal.Rptr.3d 184 , 274 P.3d 1170 ; Price v. Superior Court , supra , 25 Cal.4th at p. 1065, 108 Cal.Rptr.2d 409 , 25 P.3d 618 .) And while there is an implied right to vicinage under the state Constitution, it " 'constitutes simply the right of an accused to a trial by an impartial jury drawn from a place bearing some reasonable relationship to the crime in question.' " ( People v. Clark (2016) 63 Cal.4th 522 , 555, 203 Cal.Rptr.3d 407 , 372 P.3d 811 .) Dawkins contends that the BART train's supposed departure from San Mateo County "sometime prior to the offense which was complete in Contra Costa" does not establish such a reasonable relationship, but he provides no authority for the contention. In light of section 783 's express provision for venue in any county through which a train passes on its trip, there was a sufficient relationship between San Mateo County and the indecent-exposure offense such that Dawkins's right to vicinage was not violated. (See People v. Chavarria (2013) 213 Cal.App.4th 1364 , 1369, 153 Cal.Rptr.3d 378 [state constitutional right to vicinage "is effectively vindicated upon a showing of proper venue"].)

lack of interest in prosecuting the offense does not weigh against allowing San Mateo County to prosecute it.

Finally, venue in the place where the crime happened limits the prosecution's ability "to choose a setting that, for whatever reason, the prosecution views as favorable to its position or hostile or burdensome to the defendant's." ( Simon, supra , 25 Cal.4th at p. 1095, 108 Cal.Rptr.2d 385 , 25 P.3d 598 .) Again, Dawkins does not show how this factor supports his position. It may be that the San Mateo County District Attorney had an interest in prosecuting the indecent-exposure offense, for which Dawkins was immediately apprehended, in the same proceeding with the other offenses, as to which his identity as the perpetrator was at issue. But the policy reason for restricting the prosecution's ability to forum shop involves the venue's favorability or hostility (see ibid. ), and Dawkins does not identify anything about San Mateo County itself (such as the characteristics of its jury pool) that could or did negatively impact his defense. Moreover, though he opposed the People's motion to consolidate the indecent-exposure charge with the charges involving E., claiming that "the People [were] trying to bolster their weaker ... case ... with a stronger ... case," on appeal he does not challenge the trial court's ruling that joinder was proper.

In short, neither the text of section 783, the right to vicinage, nor the policy reasons for limiting venue lead us to conclude that San Mateo County was an improper venue for bringing the indecent-exposure charge. As a result, Dawkins's claim fails.

A jury convicted defendant Jerome Dion Dawkins of stalking, false imprisonment, criminal threats, lewd acts upon a child, and indecent exposure based on two incidents during which he harassed passengers on Bay Area Rapid Transit (BART) trains. After finding true various prior-conviction allegations, the trial court sentenced Dawkins to 25 years in prison.

On appeal, Dawkins claims that (1) venue for the indecent-exposure offense was not proper in San Mateo County because he committed the offense while the train was in Contra Costa County; (2) his constitutional rights were violated when the jury was inadvertently provided with a printout of his criminal history (rap sheet); and (3) the trial court abused its discretion by

FACTUAL AND PROCEDURAL BACKGROUND

A. The May 5, 2015 Incident.

Around 6:00 a.m. on May 5, 2015, a 15-year-old girl, whom we shall refer to as E., boarded a BART train at the San Bruno station to go to school. She intended to disembark at the Civic Center station in San Francisco, but got on the wrong train and ended up going in the opposite direction, toward San Francisco International Airport (SFO).

At the SFO station, E. stayed on the BART train as it reversed and began traveling toward San Francisco. She noticed a man in his 40's or 50's, whom she perceived to be homeless, lying on the seats across the aisle from her. They were the only people in the train car. The man, whom E. identified at trial as Dawkins, told her to look at him, but she did not comply. Then, reflected in the window, she saw Dawkins's hand moving up and down inside his pants. He repeatedly called at her, trying to get her attention, and she began crying.

Eventually, Dawkins tried to sit next to E., but her legs were blocking the area. He pushed her knee aside, sat down next to her, and said, " 'Look over here and stop crying.' " After he continued to move his hand inside his pants, E. switched seats, and Dawkins followed her and sat down in front of her. He then stuck out his leg to block her from moving again and said to her, " 'Shut up and stop crying like a little bitch.' "

As they approached the Daly City station, E. got up to exit the train, and Dawkins followed her. As she was standing near the doors, waiting for the train to pull into the station, he gripped her shoulder and said "to come with him" because "he was going to make [her] pregnant." E. then got off and boarded a more crowded train car, but Dawkins followed her. Raising his voice, he continued to tell her to "stop crying" and "acting like a little bitch."

Dawkins got off the train at the Glen Park station. As he exited, he told E. "he was going to mess [her] up and make [her] pregnant." She left the train at the 24th Street station, went to a relative's home, and reported the incident to the police.

A few days later, the police showed E. an array of six photographs, including one of Dawkins. She was not certain if the photograph of Dawkins was of the same person who had harassed her on the train, but she said that the man in the photograph had "sleepy" eyes similar to those of her harasser.

She also said that a man in a different photograph had similar skin color and facial hair to that of her harasser, but she could not make a definitive identification.

At trial, however, E. testified that Dawkins, not the other man whose photograph she had also noticed in the array, was the man who had harassed her on the BART train. She indicated she now knew that Dawkins was the perpetrator because of his teeth. On the train, she had observed that the man's top row of teeth "was more likely missing" and his bottom teeth were yellow and rotten.

B. The May 6, 2015 Incident.

Around 6:30 a.m. on May 6, 2015, the day after E. was victimized, a woman, whom we shall refer to as A., was with her

County and taking an offense that occurred entirely within their jurisdictional territory and prosecuting it here." She concluded, however, that venue was proper in San Mateo County under section 783 because the BART train had passed through the county on its route.

Dawkins later filed a motion under section 995 to dismiss the indecent-exposure count on the same ground, that venue was lacking, and the trial court denied it. He petitioned this court for a writ of prohibition, which we denied. Our state Supreme Court then denied his petition for review.

2. Discussion.

Generally, under section 777, "the proper venue for the prosecution of a criminal offense is in the superior court of the county where the crime was committed." ( People v. Thomas (2012) 53 Cal.4th 1276 , 1281, 140 Cal.Rptr.3d 184 , 274 P.3d 1170 ( Thomas ).) Venue " 'establishes the proper place for trial,' " but it does not affect a trial court's personal or subject matter jurisdiction over a criminal action. ( Id. at p. 1282, 140 Cal.Rptr.3d 184 , 274 P.3d 1170 .)

"There are statutory exceptions to the general rule that a crime should be prosecuted in the county where it is committed" ( Thomas, supra , 53 Cal.4th at p. 1283, 140 Cal.Rptr.3d 184 , 274 P.3d 1170 ), including section 783, which is at issue here. Under that statute, when a crime is committed "on board ... a railroad train or car ... [or] common carrier transporting passengers," venue lies "in any competent court, through, on, or over the jurisdictional territory of which the ... train ... [or] common carrier ... passes in the course of its voyage or trip, or in the jurisdictional territory of which the voyage or trip terminates." ( § 783 ; see also Thomas , at pp. 1281-1282, 140 Cal.Rptr.3d 184 , 274 P.3d 1170 .) "The words 'jurisdictional territory' ... in [the] case of a superior court mean the county in which the court sits." (§ 691, subd. (b).)

In reviewing a ruling on a section 995 motion, we " ' "in effect disregard[ ] the ruling of the superior court and directly review[ ] the determination of the magistrate holding the defendant to answer." ' " ( People v. Superior Court (Bell ) (2002) 99 Cal.App.4th 1334 , 1339, 121 Cal.Rptr.2d 836 .) "Venue is a question of law that is governed by statute." ( Thomas, supra , 53 Cal.4th at p. 1282, 140 Cal.Rptr.3d 184 , 274 P.3d 1170 .) " ' "As in any case involving statutory interpretation, our fundamental task here is to determine the Legislature's intent so as to effectuate the law's purpose." ' " ( People v. Scott (2014) 58 Cal.4th 1415 , 1421, 171 Cal.Rptr.3d 638 , 324 P.3d 827 .) We first consider the statutory language, " ' "giving [it] a plain and commonsense meaning." ' " ( Ibid. ) " ' " 'When [that] language ... is clear, we need go no further.' [Citation.] But where a statute's terms are unclear or ambiguous, we may 'look to a variety of extrinsic aids, including the ostensible objects to be

achieved, the evils to be remedied, the legislative history, public policy, contemporaneous administrative construction, and the statutory scheme of which the statute is a part.' " ' " ( Ibid. ) To the extent that Dawkins challenges the factual findings underlying the venue ruling, we uphold the

Dawkins claims that his position also finds support in the policy reasons for limiting venue that were articulated in People v. Simon (2001) 25 Cal.4th 1082 , 108 Cal.Rptr.2d 385 , 25 P.3d 598 ( Simon ). Even if we could otherwise rely on policy justifications to interpret section 783 in a manner inconsistent with its text, those justifications do not support his claim.

"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.' " ( Simon, supra , 25 Cal.4th at p. 1095, 108 Cal.Rptr.2d 385 , 25 P.3d 598 .) But Dawkins does not suggest how his ability to prepare his defense against the indecent-exposure charge was negatively affected by his being prosecuted in San Mateo County.

Second, venue in the place where the crime occurred " 'vindicate[s] the community's right to sit in judgment on crimes committed within its territory.' " ( Simon, supra , 25 Cal.4th at p. 1095, 108 Cal.Rptr.2d 385 , 25 P.3d 598 .) But Dawkins's only explanation for why this factor favors him is that "Contra Costa County declined to prosecute [the indecent-exposure] charge." There is no indication this is true except for Dawkins's counsel's assertion to that effect in the section 995 motion. And even if it is true, Contra Costa County's