Trial Court: Contra Costa Superior Court Trial Judge: Hon. Theresa Canepa (Contra Costa County Super. Ct. No. 5-071367-7)
The opinion of the court was delivered by: Richman, J.
CERTIFIED FOR PUBLICATION
Penal Code section 790, subdivision (b) (section 790(b)), allows for two or more counts of murder committed in different counties to be tried together so long as the charged murders are " "connected together in their commission.‟ " Here, a Contra Costa County grand jury returned an indictment charging defendant Lavida Marie Davis with two counts of murder in connection with the 2004 and 2006 deaths of her infant sons, the first of whom died in Alameda County, the other in Contra Costa County. Defendant moved to set aside the special venue allegation-justifying a single trial in Contra Costa County-arguing that Alcala v. Superior Court (2008) 43 Cal.4th 1205 (Alcala) held that section 790(b) is intended to allow a single trial only of serial killers. The trial court agreed, and granted the motion. We disagree, and reverse.
The Grand Jury of Contra Costa County returned an indictment by which defendant was charged with the murder of her 46-day-old son Darion Lee Johnson in September 2006 in Contra Costa County, and with the murder of her 22-day-old son Emmanuel Lee Beals, Jr., in February 2004 in Alameda County. The indictment included a multiple murder special circumstance allegation pursuant to Penal Code section 190.2, subdivision (a)(3).*fn1 And it also included a special venue allegation based upon section 790, subdivision (b), which provides in pertinent part: "If a defendant is charged with a special circumstance pursuant to paragraph (3) of subdivision (a) of Section 190.2, the jurisdiction for any charged murder . . . shall be in any county that has jurisdiction pursuant to subdivision (a) for one or more of the murders charged in a single complaint or indictment as long as the charged murders are "connected together in their commission,‟ as that phrase is used in Section 954, and subject to a hearing in the jurisdiction where the prosecution is attempting to consolidate the charged murders. If the charged murders are not joined or consolidated, the murder that was charged outside of the county that has jurisdiction pursuant to subdivision (a) shall be returned to that county."*fn2
Defendant moved to set aside the special venue allegation pursuant to section 995, fundamentally arguing that section 790(b) is directed at trial of serial killers, and that defendant was not one. The trial court agreed with the limited construction of section 790(b) defendant urged was required by Alcala, and concluded that defendant did not qualify as a serial killer: "I think in reading and rereading Alcala I keep coming back to footnote number 7 which discloses the real basis for 790(b) which is . . . a focus on serial killers who go on, quote, brutal killing rampages across county lines. And the need to consolidate those cases into a single trial to alleviate unfairness to the victims‟ families, to the witnesses who would testify, to the court in terms of costs and things like that. [¶] I don‟t see that here.
"[¶] . . .[¶] [F]rom my reading of Alcala and its interpretation of 790(b), I don‟t find that this case falls within the ambit as discussed in Alcala. [¶] It seems to be a very fact-based issue. And here I guess the fact-based issue is whether or not Ms. Davis qualifies as what has been denoted a serial killer for purposes of Alcala such as 790(b) would apply to her and that the Alameda County case would be tried here in Contra Costa. It does not appear to me that she fits within that ambit. [¶] . . . I am going to reverse the ruling of the Grand Jury and find that there is a lack of 790(b) jurisdiction."
The trial court ordered that charges relating to the death of Emmanuel Lee Beals, Jr. "be returned to Alameda County." The People filed a timely appeal.
"[B]ecause consolidation or joinder of charged offenses ordinarily promotes efficiency, that is the course of action preferred by the law." (Alcala, supra, 43 Cal.4th 1205, 1220.) It is true that footnote 7 in Alcala did quote an Assembly committee report to show that a purpose of section 790(b) was to make it easier to have a single trial for " " "Serial killers who go on brutal killing rampages . . . without consideration of county lines . . . ." ‟ "(Id., at p. 1215, fn. 7.)*fn3 But there is no basis for concluding that the statute‟s "ambit"-to employ the term employed by the trial court-is so limited, as demonstrated by these other parts of the Alcala opinion:
"The People read section 790(b) as allowing a single joint trial of intercounty murder charges accompanied by a multiple-murder special-circumstance allegation so long as one substantive condition is met: "the charged murders are "connected together in their commission," as that phrase is used in Section 954.‟ Petitioner, however, divines in section 790(b) another, and preliminary, substantive condition. Focusing on the phrase "and for any crimes properly joinable with that murder,‟ (italics added) he asserts the statute should be read to require not only that joined murder charges be " "connected together in their commission," as that phrase is used in Section 954,‟ but also that the murders each be "part of a common plan or scheme.‟ (Italics added.)
". . . [W]e agree with the People‟s construction of the statute. By its terms, section 790(b) specifies that jurisdiction for the trial of any charged murder shall lie in any county that has jurisdiction "pursuant to subdivision (a) [of section 790] for one or more of the murders charged in a single complaint or indictment as long as the charged murders are "connected together in their commission," as that phrase is used in Section 954.‟ . . . [W]e reject petitioner‟s competing interpretation, because we find it more reasonable to construe the statute‟s "properly joinable‟ language as merely providing that, with respect to the charged murders, any other crimes (such as rape, kidnapping, etc.) that are "properly joinable‟ with a given murder charge also may be charged and tried along with that murder. We do not read the statute as imposing any substantive requirement other than that the charged murders be " "connected together in their commission,‟ "as that phrase is used in Section 954.
"Although petitioner cites no decision supporting his view that the statute also requires that the joined murders be "part of a common plan or scheme,‟ he asserts the statute‟s legislative history supports his interpretation . . . . [W]e disagree and find instead that these materials both (1) confirm the People‟s construction and (2) clarify that the Legislature intended a very broad test for joinder in employing the language " "connected together in their commission," as that phrase is used in Section 954.‟ " (Alcala, supra, 43 Cal.4th 1205, 1216-1217.)
After examining the legislative history of section 790(b), the court held that it "provides no support for petitioner‟s argument that we should read section 790(b) as requiring . . . that the charged murders be "properly joinable‟ with each other in some manner beyond the requirement that they be connected together in their commission. Nor do we discern in the language or history of the statute any legislative intent to require that that joined murders be part of a common plan or scheme." (Alcala, supra, 43 Cal.4th 1205, 1218-1219.) All that is required is that there exist ...