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The People v. Faustino Nieto Romero

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Yolo)


March 27, 2012

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
FAUSTINO NIETO ROMERO, DEFENDANT AND APPELLANT.

(Super. Ct. No. 01-1577) APPEAL from a judgment of the Superior Court of Yolo County, Thomas Edward Warriner, Judge. Affirmed.

The opinion of the court was delivered by: Nicholson , J.

CERTIFIED FOR PARTIAL PUBLICATION*fn1

Defendant Faustino Nieto Romero murdered Javier Aguilar and Charles Smythe and committed several other crimes. Convicted by jury of those crimes and sentenced to two terms of life without possibility of parole and various other terms, the defendant appeals.

On appeal, the defendant contends (1) the trial court erred by denying his motion to quash the grand jury indictment; (2) the trial court erred by denying his motion to suppress statements he made to detectives concerning the Smythe murder; (3) the trial court erred by denying his request to have the jury instructed with a modified version of CALCRIM No. 358; (4) the trial court erred by admitting evidence of statements the defendant made to his wife concerning the two murders; (5) there was insufficient evidence of territorial jurisdiction over crimes he committed in Mexico; and (6) he was denied his constitutional right to a jury trial on territorial jurisdiction.

Finding no prejudicial error, we affirm.

FACTS

The facts of this case can be divided into three sets: (1) the Aguilar murder and related crimes, (2) the Smythe murder and related crimes, and (3) crimes committed against Liliana Romero, the defendant's wife at the time.

Aguilar Murder and Related Crimes

Norteno gang member Ernesto Zaragoza was shot in the head on March 10, 2001, presumably by a Sureno gang member. As a result, several Nortenos decided to shoot a Sureno, particularly targeting Heriberto (Eddie) Gomez.

On March 11, 2001, Mike Perez and the defendant, who associated with the Nortenos, drove to the area of Sixth Street in Woodland, a known Sureno hangout. Both were armed with .38 revolvers. They parked and walked toward a group of men, including Gomez, Ricardo Aguilar, Javier Aguilar, and Leandro Escarsega, and opened fire. Gomez was shot in the face by Perez. The defendant walked up to Gomez, who was on the ground, and shot him point-blank in the head. Gomez survived, as did Ricardo Aguilera, who was shot in the shoulder. Javier Aguilar, however, was shot in the arm and chest and died as a result.

Soon after the Aguilar murder, the defendant traveled to Florida with his girlfriend Ana Barragan. During their trip, the defendant told Barragan that he was involved in the Sixth Street shootings.

Smythe Murder and Related Crimes

After the defendant returned to Woodland from Florida, Raul Ramos (a local Norteno shot-caller) and Michael Raquel (Ramos's methamphetamine supplier) hired the defendant to kill Charles Smythe, who was selling methamphetamine in competition with Raquel. The defendant agreed to kill Smythe for $15,000, plus whatever money and drugs Smythe had. Ramos and Raquel showed the defendant where Smythe lived in Gridley, and Ramos gave the defendant guns to use.

On April 18, 2001, Smythe and his fiancee Raquel Addison, were arguing at their residence, and Addison went outside. The defendant approached her, grabbed her, put a gun to her head, and threatened her. He took Addison inside to where Smythe was. He had Smythe lie on the floor and ordered Addison to tie him up.

In response to the defendant's demands for money and drugs, Smythe said he did not have drugs but money was in the car. Addison retrieved the money from the car, and the defendant put it in his jacket pocket.

The defendant tied up Addison and drove Smythe away from the residence. The defendant told Addison not to call the cops or he would kill Smythe.

The defendant drove Smythe to a rural road near Woodland. He got Smythe out of the car and had him lie down in the road. The defendant shot Smythe in the back, but Smythe jumped up and tried to run away. The defendant's gun jammed, so he chased down Smythe and cut his throat.

The defendant went to Ramos's home, where he told Ramos what he had done. Ramos paid the defendant, and the defendant said he was leaving for Mexico.

Crimes Against Liliana

The defendant appeared at the home of his estranged wife, Liliana, late at night and announced that they were going to Mexico. Liliana and the defendant had discussed moving to Mexico, and she had prepared, but she did not want to go that night. The defendant grabbed their child, put her in the car, and threatened to take her away from Liliana if Liliana did not accompany him. Liliana decided to go because she did not want to be separated from her daughter. The defendant grabbed Liliana by the arm and put her in the car.

The family eventually arrived in Mexico. While there, the defendant told Liliana about the Aguilar and Smythe murders.

Liliana had opportunities to obtain help from others, but she did not know where she was in Mexico and she was afraid of what the defendant would do if she tried to flee. The defendant beat Liliana at times and forced her to have sex with him against her will.

Around June 2001, the defendant took Liliana to her grandmother's home in Mexico and allowed her to return to California.

Before his arrest the defendant told Ramos and Casimir Vargas about how he had committed the Sixth Street shootings. He also told Vargas about how he had committed the Smythe murder and related crimes. He described the crimes to his longtime friend, Xavier Cardona, and Cardona's wife, Gloria Anaya-Corona.

PROCEDURE

A grand jury issued an indictment charging the defendant with following crimes:

* Count 1: murder of Javier Aguilar (Pen. Code, § 187, subd. (a)), with special circumstances: financial gain (Pen. Code, § 190.2, subd. (a)(1)), multiple murders (Pen. Code, § 190.2, subd. (a)(3)), and furthering the activities of a criminal street gang (Pen. Code, § 190.2, subd. (a)(22));

* Count 2: attempted murder of Heriberto Gomez (Pen. Code, §§ 187, subd. (a); 664, subd. (a));

* Count 3: attempted murder of Ricardo Aguilar (Pen. Code, §§ 187, subd. (a); 664, subd. (a));

* Count 4: attempted murder of Leandro Escarsega (Pen. Code, §§ 187, subd. (a); 664, subd. (a));

* Count 5: omitted from the indictment;

* Count 6: murder of Charles Smythe (Pen. Code, § 187, subd. (a)), with special circumstances: kidnapping for robbery (Pen. Code, § 190.2, subd. (a)(17)), robbery (Pen. Code, § 190.2, subd. (a)(17)), kidnapping (Pen. Code, § 190.2, subd. (a)(17)), burglary (Pen. Code, § 190.2, subd. (a)(17)), multiple murders (Pen. Code, § 190.2, subd. (a)(3)), and furthering the activities of a criminal street gang (Pen. Code, § 190.2, subd. (a)(22));

* Count 7: kidnapping for robbery (Pen. Code, § 209, subd. (b)(1));

* Count 8: first degree robbery of Charles Smythe (Pen. Code, §§ 211, 212.5, subd. (b));

* Count 9: kidnapping of Charles Smythe (Pen. Code, § 207, subd. (a));

* Count 10: first degree burglary (Pen. Code, § 459);

* Count 11: assault with a firearm on Raquel Addison (Pen. Code, § 245, subd. (a)(2));

* Count 12: kidnapping of Liliana Romero (Pen. Code, § 207, subd. (a));

* Count 13: false imprisonment with force or violence (Pen. Code, §§ 236, 237, subd. (a));

* Count 14: infliction of corporal injury on the parent of the defendant's child (Pen. Code, § 273.5, subd. (a));

* Count 15: infliction of corporal injury on the parent of the defendant's child (Pen. Code, § 273.5, subd. (a));

* Count 16: infliction of corporal injury on the parent of the defendant's child (Pen. Code, § 273.5, subd. (a));

* Count 17: spousal rape (Pen. Code, § 262, subd. (a)(1));

* Count 18: spousal rape (Pen. Code, § 262, subd. (a)(1));

* Count 19: dissuading a witness (Pen. Code, § 136.1, subd. (c)(1)).

The indictment also charged enhancements in connection with the various crimes, including commission of the offenses for the benefit of a criminal street gang (Pen. Code, § 186.22, subd. (b)(1)) and use and discharge of a firearm (Pen. Code, § 12022.53).

After the presentation of evidence to the jury in the guilt phase of the trial, the trial court granted the defendant's motion to dismiss one of the spousal rape counts (count 17).

The jury hung on counts charging kidnapping of Liliana (count 12), spousal rape (count 18), and dissuading a witness (count 19).

The jury found the defendant not guilty of one of the counts alleging infliction of corporal injury (count 15) and that the gang special circumstances and enhancements were untrue as to the Smythe crimes. The jury found the defendant guilty on the remaining counts and found true the remaining special circumstances and enhancements.

After a penalty phase, the jury chose life without possibility of parole for the murders.

As the defendant does not raise sentencing contentions on appeal, we need not set forth the sentence in detail. The trial court sentenced the defendant to (1) a determinate term of six years eight months, (2) an indeterminate term of 40 years to life, and (3) two indeterminate terms of life without possibility of parole.

DISCUSSION

I

Minority Representation on Grand Juries

The defendant contends that the process for selecting the grand jury that indicted him violated his Sixth Amendment right to have a jury drawn from a representative cross-section of the community and his Fourteenth Amendment right to equal protection. Based on these contentions, he asserts the trial court should have granted his motion to quash the indictment handed down by the grand jury. We conclude that the grand jury selection process violated neither his Sixth Amendment nor his Fourteenth Amendment rights.

After (A) a brief description of grand jury eligibility and how statistics are used to measure disparities in minority group representation on grand juries, (B) a summary of the law concerning minority representation on grand juries, and (C) a summary of the proceedings on the defendant's motion to quash the indictment, we (D) consider, and find no merit in, the defendant's assertions that (1) based on our earlier issuance of an alternative writ in this case, the law of the case doctrine governs whether the defendant made a prima facie showing of violations of the Sixth Amendment (jury drawn from representative cross-section of community) and Fourteenth Amendment (equal protection); (2) the defendant made a prima facie showing of violations of the Sixth and Fourteenth Amendments by introducing evidence of systematic exclusion of Hispanics and Asian-Americans from grand juries, and (3) the prosecution's rebuttal evidence was flawed and did not sufficiently rebut the prima facie showing.

A. Statistical Measures and Eligibility to Serve on a Grand Jury

Disparities between the percentage of a minority group in the community and the percentage of that minority group on grand juries often lead to the claim that the grand jury selection process is constitutionally flawed. Before reviewing the law concerning these claims and the facts of this case, we briefly discuss some of the statistical measures of disparity.

The initial measure of disparity, and one often favored by courts, is absolute disparity. (United States v. Torres-Hernandez (9th Cir. 2006) 447 F.3d 699, 703.) This measures the difference between the proportion of the cognizable minority group in the community and the proportion of that group on grand juries. For example, if Minority A makes up 20 percent of the population in the relevant community but only 15 percent of grand jurors, the absolute disparity is 5 percent (20 minus 15 equals 5).

The results of this analysis of minority group representation can be affected by whether the analyst uses raw population numbers or considers eligibility to serve on a grand jury.

To serve on a grand jury, a person must (1) be a citizen of the United States, (2) be 18 years or older, (3) have been a resident of the county for one year immediately before serving, (4) have natural faculties, ordinary intelligence, sound judgment, and fair character, and (5) have sufficient knowledge of the English language. (Pen. Code, § 893, subd. (a).) Several characteristics disqualify a person, otherwise qualified, from grand jury service: (1) current service as a trial juror, (2) discharge as a grand juror within one year prior to current service, (3) conviction of any felony or malfeasance in office, and (4) current service as an elected public officer. (Pen. Code, § 893, subd. (b).)

Some of these qualifications tend to reduce the number of minorities eligible for grand jury service, such as citizenship and English language proficiency. Therefore, even though Minority A may constitute 20 percent of the total population in our hypothetical, jury-eligible members of Minority A may constitute only 18 percent of the jury-eligible population. Therefore, again assuming that Minority A makes up 15 percent of grand juries, the absolute disparity is only 3 percent (18 minus 15 equals 3), which is less than the absolute disparity when raw population figures are used.

Another measure of disparity is relative (or comparative) disparity. This measure relates the size of the absolute disparity to the percentage of minority group members in the population. For example, in our hypothetical using jury-eligible members of Minority A, the relative disparity is approximately 17 percent, which is determined by dividing the absolute disparity (3 percent) by the percentage of jury-eligible members of Minority A in the community (18 percent).

The relative disparity can vary widely from the absolute disparity. For example, if Minority B comprises 45 percent of the community and has an absolute disparity of 3 percent on grand juries, the relative disparity is only about 7 percent (3 percent divided by 45 percent equals about 7 percent). On the other hand, if Minority C comprises 3 percent of the community and has an absolute disparity of 3 percent on grand juries, the relative disparity is 100 percent (3 percent divided by 3 percent equals 100 percent). In the Minority C hypothetical, the small minority is unrepresented on grand juries; thus, the 100 percent under-representation.

The smaller the minority group is, the less reliable the measure of under-representation. That is because there may not be enough members of the small minority group to make the test statistically significant. Larger minority groups provide more reliable measures of under-representation. In addition to the size of the minority group, there are other matters, beyond the scope of this summary, that affect statistical significance.

Finally, impact calculates the difference between (1) how many members of a specific minority group would serve on the grand jury if it perfectly reflected the proportion of that minority group in the community and (2) how many members of the minority group actually served. Therefore, if Minority D comprises 20 percent of the community, the impact analysis would predict that 3.8 out of 19 grand jurors would be from Minority D. On a grand jury with two jurors from Minority D, the impact would be an under-representation of 1.8 jurors.*fn2

B. Law Concerning Minority Representation on Grand Juries

1. Sixth Amendment Fair Representation Claim

In People v. Horton (1995) 11 Cal.4th 1068, 1087-1088 (Horton), the Supreme Court summarized the relevant legal inquiry when a defendant claims a jury is not drawn from a representative cross-section of the community. "Although that decision concerned petit juries, the same standard applies in evaluating the composition of grand juries. (Vasquez v. Hillery (1986) 474 U.S. 254, 261-262 [88 L.Ed.2d 598].)" (People v. Burney (2009) 47 Cal.4th 203, 225 (Burney).)

The Horton court stated (also quoted more recently in Burney):

"Under the federal and state Constitutions, an accused is entitled to a jury drawn from a representative cross-section of the community. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 16; Duren v. Missouri (1979) 439 U.S. 357, 358-367 [58 L.Ed.2d 579, 583-588] [(Duren)]; People v. Howard (1992) 1 Cal.4th 1132, 1159.) That guarantee mandates that the pools from which juries are drawn must not systematically exclude distinctive groups in the community. (People v. Mattson (1990) 50 Cal.3d 826, 842.) 'In order to establish a prima facie violation of the fair-cross-section requirement, the defendant must show (1) that the group alleged to be excluded is a "distinctive" group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this under-representation is due to systematic exclusion of the group in the jury-selection process.' [(Duren,] supra, 439 U.S. at p. 364 . . . ; [citation].) The relevant 'community' for cross-section purposes is the judicial district in which the case is tried [here, the county]. (People v. Mattson, supra, 50 Cal.3d at p. 844; Williams v. Superior Court (1989) 49 Cal.3d 736, 744-745.) If a defendant establishes a prima facie case of systematic under-representation, the burden shifts to the prosecution to provide either a more precise statistical showing that no constitutionally significant disparity exists or a compelling justification for the procedure that has resulted in the disparity in the jury venire. (People v. Sanders (1990) 51 Cal.3d 471, 491.)" (Horton, supra, 11 Cal.4th at pp. 1087-1088.)

Statistical evidence of a disparity does not meet the burden of demonstrating that the under-representation was due to systematic exclusion. A defendant must also establish that the disparity is the result of an improper feature of the jury selection process. (People v. Howard, supra, 1 Cal.4th at p. 1160.) "When a county's jury selection criteria are neutral with respect to race, ethnicity, sex, and religion, the defendant must identify some aspect of the manner in which those criteria are applied (the probable cause of the disparity) that is constitutionally impermissible. (People v. Sanders, supra, 51 Cal.3d at p. 492; People v. Bell[ (1989)] 49 Cal.3d [502,] 524.)" (Horton, supra, 11 Cal.4th at p. 1088, italics omitted.)

2. Fourteenth Amendment Equal Protection Claim

To make a prima facie showing that under-representation of a minority group on the grand jury violates a defendant's Fourteenth Amendment right to equal protection, he must: "(1) show that the excluded group is a cognizable class; (2) demonstrate a degree of under-representation given the proportion of the excluded group in the total population compared to the proportion called to serve as grand jurors over a significant period of time; and (3) show that the selection procedure is susceptible of abuse or is not racially neutral to bolster the presumption of discrimination raised by the statistical disparity. (Castaneda v. Partida[ (1977)] 430 U.S. [482,] 494-495.)" (People v. Brown (1999) 75 Cal.App.4th 916, 924; see also People v. Garcia (2011) 52 Cal.4th 706, 738-739.)

C. Proceedings on Motion to Quash Indictment

The defendant joined co-defendant Michael Raquel's motion to quash the indictment. They claimed that the indictment, which was handed down by the grand jury in the 2001-2002 term, should be quashed. The parties argued concerning the proper period of time that should be considered for the purpose of the motion, the defendant arguing that the court should use the 20-year period from 1985 to 2004 and the prosecution arguing that the court should use the seven-year period from 1995 to 2001. The trial court selected the seven-year period from 1995 to 2001 because substantial changes were made in the manner of selecting a grand jury in 1995 and the indictment was handed down by the grand jury chosen in 2001. Although the trial court settled on the seven-year period as the most relevant, it stated that it would allow evidence encompassing a longer time frame.

The defendant argued that, in addition to the minority group of Hispanics, the court should consider the under-representation of Asians/Pacific Islanders on the grand juries. The trial court denied the defense's motion to consider under-representation of Asians/Pacific Islanders because it concluded that Asians/Pacific Islanders are not a cognizable group for purposes of the representative cross-section analysis.

Co-defendant Raquel petitioned for a writ of mandate from this court on the cognizable group issue, and this court, by way of a Palma*fn3 notice, encouraged the trial court to hear evidence concerning whether Asian-Americans are a cognizable group. (C056036.) Thereafter, the court heard testimony from Dr. Stanley Sue, a psychology and Asian-American studies expert, on that issue -- that is, whether Asian-Americans, grouped with or without Pacific Islanders, are a cognizable group. After hearing Dr. Sue's testimony, the trial court ruled that Asian-Americans are not a cognizable group for the purpose of the motion to quash the indictment. The hearing on the motion was therefore limited to whether Hispanics were underrepresented on grand juries from 1995 to 2001.

Dr. Jerome Braun testified as an expert on statistics for the defense during the hearing on the motion to quash the indictment. He prepared analyses of the composition of the Yolo County grand juries for two time periods: (1) seven years (terms), from 1995 to 2001, and (2) 20 years (terms), from 1985 to 2004. To prepare the analyses, he relied on (1) population estimates from the California Department of Finance showing age, sex, and ethnicity only, (2) data from the Yolo County Jury Commissioner, and (3) public information concerning the grand juries. He analyzed the participation of Hispanics serving on the grand jury as compared to the Department of Finance's estimates of Hispanics in Yolo County who are 18 years and older.

Using these numbers, Dr. Braun calculated that in the 20-year period (20 grand jury terms), from 1985 to 2004, the mean absolute disparity of Hispanic grand jurors was 11.2 percent, with a relative disparity of 56.5 percent. The impact was that there would have been an average of 2.2 more Hispanics each term if their proportion in the population were reflected on the grand jury. (The average number of grand jurors per year during this period was 19.75.) Dr. Braun concluded that the odds of this Hispanic under-representation occurring by a random draw are nearly nonexistent, as much as 5,000,000-to-1.*fn4

Using the same sources but limiting the period to seven years (terms) from 1995 to 2001, Dr. Braun calculated that the average absolute disparity of Hispanic grand jurors was 9.5 percent, with a relative disparity of 43.5 percent. The impact was that Hispanics were underrepresented by an average of 2.0 jurors. (The average number of grand jurors per year during this period was 21.) Dr. Braun concluded that the odds of this Hispanic under-representation occurring by a random draw are between 50-to-1 and 544.5-to-1.

On cross-examination, Dr. Braun admitted that, in determining which Hispanics in Yolo County are eligible for grand jury service, he considered age and Hispanic surname only. He did not have the data to also consider citizenship, residence in the county for at least one year, prior felony convictions, and sufficient knowledge of English.

The testimony of Robyn Weaver, the Yolo County Jury Commissioner, from another case concerning how grand juries are selected, was admitted as an exhibit in this case. Under the supervision of the judges, she manages the process of selecting grand jurors.

The current system for recruiting potential grand jurors was adopted in 1995. Before then, Weaver used the system for selecting petit juries, which entailed sending notices to a random draw of individuals on voter registration and Department of Motor Vehicle lists. That system was abandoned in favor of a system that could more easily obtain ethnic and geographical diversity on the grand jury.

Since 1995, potential grand jurors are recruited in several ways: (1) inquiries to the superior court judges and court commissioners for suggestions; (2) letters to the members of the county board of supervisors; (3) press releases to several local newspapers within Yolo County; (4) inquiries to community service organizations, including Hispanic and Asian organizations; (5) lists of individuals who served on petit juries; (6) publication in local newspapers of each year's grand jury final report along with information on how to apply to be a grand juror; (7) posting of a pamphlet on grand jury service in the petit jury assembly room; and (8) approaching current grand jurors to determine whether they are willing to serve another term.

Weaver tries each term to obtain a diverse pool of potential grand jurors by reaching out to those with ethnic-sounding names (such as Hispanic, Asian, Indian, and Russian names) and to all geographic areas of the county.

When she gets a response concerning a potential grand juror, regardless of the source, Weaver sends an application to the person, along with a pamphlet concerning grand jury service. She reviews returned applications for legal eligibility to serve on the grand jury and whether the application is properly filled out. After this review, she contacts each eligible applicant and sets up an interview with a superior court judge.

There have been times when, in response to Weaver's call to set up an interview and even after that point in the process, an applicant has stated that, because of a hardship involving the time commitment, the applicant is not able to serve. In those circumstances, Weaver makes a notation on the application and removes that applicant from the list of interviewees or from the draw of grand jurors. The applicant is not asked to sign a statement supporting the hardship.

The superior court judges and, occasionally, the court commissioners, conduct the interviews of the eligible applicants -- eligibility being determined by the applicant's responses on the application. The judge or commissioner makes a determination about whether an interviewee should be placed in the grand jury draw. For example, one interviewee was rejected by a judge because the interviewee had "his own political agenda." However, most interviewees are approved for inclusion in the grand jury draw.

The names of the remaining potential grand jurors (nominees) are put into a box and 19 names are drawn randomly to constitute the grand jury, as required by Penal Code sections 906 and 908. After the grand jury is chosen, alternates are chosen in the same manner.

After further argument and briefing, the trial court denied the motion to quash the indictment without comment. However, this court, responding to a new writ petition, issued an alternative writ of mandate directing the trial court to show cause why it should not be required to reverse its determination concerning the cognizability of Asian-Americans as a minority group and to hear rebuttal evidence on the issue of Hispanic under-representation. (C059666/C059385.) The trial court therefore held a hearing to receive evidence concerning Asian-American under-representation and also to receive rebuttal evidence from the prosecution concerning Hispanic under-representation.

Concerning Asian-American representation on grand juries in Yolo County, Dr. Braun testified that he based his study on the same sources he used in evaluating Hispanic representation on grand juries.

In 14 of the 20 years from 1985 to 2004, Dr. Braun identified no Asian-Americans as having served on the grand juries. The mean absolute disparity for Asian-American representation on grand juries was 5.9 percent with a mean relative disparity of 66.8 percent. The impact was that Asian-Americans were underrepresented by an average of 1.2 jurors.

Dr. Braun's seven-year analysis (1995-2001) concluded that the mean absolute disparity for Asian-Americans on grand juries was 7.7 percent, with a relative disparity of 76.7 percent. The impact of the disparity was that Asian-Americans were underrepresented on grand juries by an average of 1.6 grand jurors each term.

The trial court again denied the motion to quash the indictment. It found that the disparities in Hispanic and Asian-American participation on grand juries was "constitutionally insignificant."

D. The Defendant's Contentions on Appeal

1. Law of the Case

The defendant contends that the issue of whether he made a prima facie showing of Hispanic under-representation on grand juries was decided in a prior writ proceeding in this court and is therefore law of the case now. He is mistaken. The law of the case doctrine does not apply when there is no opportunity for oral argument and no written decision.

On August 14, 2008, the defendant filed a petition for writ of mandate, seeking an order requiring the trial court (1) to set aside its determination that Asian-Americans are not a cognizable class and to conduct further proceedings on that issue and (2) to hear rebuttal evidence from the prosecution concerning the claim of Hispanic under-representation on grand juries. We issued an alternative writ of mandate, directing the trial court to grant the requested relief or show cause why it has not done so. The trial court granted the relief requested in the petition; therefore, the alternative writ was discharged and the petition dismissed as moot, without an opportunity for oral argument and without a written opinion.

"The law of the case doctrine states that when, in deciding an appeal, an appellate court 'states in its opinion a principle or rule of law necessary to the decision, that principle or rule becomes the law of the case and must be adhered to throughout its subsequent progress, both in the lower court and upon subsequent appeal . . . , and this although in its subsequent consideration this court may be clearly of the opinion that the former decision is erroneous in that particular.' [Citations.]" (Kowis v. Howard (1992) 3 Cal.4th 888, 892-893.) The law of the case doctrine applies to matters decided in a pretrial writ proceeding in an appellate court if (1) the matter was fully briefed, (2) there was an opportunity for oral argument, and (3) the cause was decided by written opinion. (Id. at p. 894.)

In the pretrial writ proceeding at issue here, there was no opportunity for oral argument and we did not issue a written opinion. Acknowledging the absence of these elements, the defendant nonetheless claims that we should treat the order issuing the alternative writ as law of the case. For this claim, he offers neither argument nor authority. We therefore reject the assertion that the law of the case doctrine applies here.

2. Prima Facie Showing

Having concluded that the law of the case doctrine does not govern whether the defendant made a prima facie showing of under-representation on grand juries, we move to the question of whether the defendant made a prima facie showing that Hispanics and Asian-Americans are underrepresented on Yolo County grand juries. We conclude that, with respect to the Sixth Amendment claim, the defendant failed to make a prima facie showing of systematic exclusion of Hispanics and Asian-Americans in the jury selection process, which is the third prong of the Duren test. Because we conclude the defendant failed to make a prima facie showing on the third prong of the Duren test, we need not resolve contentions concerning the first (cognizable group) and second (statistical under-representation) prongs of the test.

The defendant failed to identify any aspect of the jury selection process that resulted in systematic exclusion of Hispanics and Asian-Americans from grand juries. To the contrary, jury commissioner Weaver testified that she makes efforts to reach out to organizations representing minority groups and that she reaches out to those with ethnic-sounding names. In this regard, this case is similar to Burney, supra, 47 Cal.4th at page 227, in which the Supreme Court found that the defendants failed to establish systematic exclusion. The court relied on evidence of the county's efforts to reach out to minorities to apply for grand jury service.

Analyzing facts similar to those presented here, the court in Burney stated: "As detailed above, [the] Jury Commissioner['s] declaration and testimony detailed the exhaustive efforts undertaken by the Orange County Superior Court Clerk's Office to invite Asian-Americans to apply for grand jury service. The defendants bringing the motion to quash offered no evidence to rebut the showing of substantial efforts undertaken by the county to include Asian-Americans in the venire, and offered no proof of any improper feature of the jury selection process. The defendants therefore failed to establish a prima facie case that the statistical discrepancies identified were caused by any systematic exclusion of Asian-Americans. Defendant's briefing in this court focuses upon the status of Asians as a cognizable group and upon the statistical comparisons that should be applied to claims of discrimination against prospective grand jurors, but points to no evidence in the record that would establish systematic exclusion. Accordingly, there is no merit in defendant's claim that Asian-Americans unconstitutionally were excluded from the grand jury that indicted him, and the trial court properly denied the motion to quash his indictment on that basis." (Burney, supra, 47 Cal.4th at p. 227.)

As in this case, the superior court in Burney used nonrandom processes to solicit applications for grand jury service. It solicited applications through private organizations, attempting to be inclusive of all ethnic groups. The court also used mass media and other outreach efforts. The Supreme Court found no constitutional problem with this nonrandom method. (Burney, supra, 47 Cal.4th at pp. 223-225.)

Our conclusion here is the same. The defendant "points to no evidence in the record that would establish systematic exclusion." (Burney, supra, 47 Cal.4th at p. 227.)

The defendant attempts to overcome this deficiency in showing systematic exclusion by pointing out a flaw in the jury selection process. The flaw is that when potential jurors who have already applied state, especially over the phone, that they are unable to serve because of the time commitment, Weaver makes a notation of the hardship on the application and does not process the application. The applicant is not asked to sign a statement concerning the hardship.

The jury commissioner has the authority to make hardship determinations; however, the statement of hardship must be in writing and signed by the potential juror. (Pen. Code, § 894; Code of Civ. Proc., §§ 204, 218.) Even though the hardship statements were not signed by the potential jurors here, however, there is no evidence that this flawed process resulted in systematic exclusion of Hispanics and Asian-Americans from grand juries.

The defendant also claims that superior court judges reject statutorily qualified individuals for unauthorized reasons. Again, the defendant does not make the connection between this asserted flaw in the jury selection process and the alleged systematic exclusion of Hispanics and Asian-Americans. Therefore, the claim is unpersuasive.

The defendant therefore failed to establish the third prong of the Duren test.*fn5 Because he failed to make a prima facie showing, the defendant did not establish that his Sixth Amendment right has been violated.

Similarly, the Fourteenth Amendment claim is a non-starter because, as in a recent California Supreme Court case, "nothing in [the] rules or procedures authorized, encouraged, or established that the judges nominated grand jurors in a manner that discriminated against [Hispanics and Asian-Americans]." (People v. Garcia, supra, 52 Cal.4th at p. 738.) There is ample evidence in the record of nondiscriminatory motivations and methods of the superior court and its officers. (Id. at p. 739.)

The trial court properly denied the defendant's motion to quash the indictment.

3. Other Grand Jury Contentions

The defendant makes several other contentions with respect to the motion to quash the indictment; however, we need not consider these contentions because they concern evidence presented by the prosecution and the sufficiency of the prosecution's rebuttal. Because the defendant failed to make a prima facie showing, any evidence or showing on the part of the prosecution is irrelevant to this appeal. Thus, we do not consider whether the trial court properly (1) took judicial notice of the letter and table from Mary Heim, of the Department of Finance;*fn6 (2) considered hearsay contained with the table; (3) violated the defendant's confrontation rights by admitting the letter and table; and (4) found that the prosecution rebutted a prima facie showing of systematic exclusion of Hispanics and Asian-Americans.

II

Motion to Suppress Confession

The defendant contends that the trial court erred by denying his motion to suppress statements he made to detectives concerning the Smythe murder because the statements were involuntary as a result of the detectives' coercive interrogation. He further contends that the error was not harmless beyond a reasonable doubt. The Attorney General responds that the statements were not involuntary and, even if the statements should have been suppressed, admission of the statements was harmless beyond a reasonable doubt. We conclude that, even assuming without deciding that the statements were involuntary and should have been excluded, admission of the statements was harmless beyond a reasonable doubt.

On July 31, 2001, the defendant was interviewed about the Smythe murder by Detectives Carter Vaughn and Rich Williams of the Yolo County Sheriff's Department. He was already in custody for the Aguilar murder.

The detectives made numerous references to the death penalty. For example, they said: "[T]his is the death penalty case, I'm telling you." And: "[D]o you want to take . . . [a] shot in the arm . . . a lethal injection on this case, or, . . . do you want to spend the rest of your life in prison? Those are your options." And further: "You've got to decide how you want to live for the next . . . twenty years? Or thirty, or life, or death? And who you're going to take a fall for?"

The detectives also stated several times that the defendant would never see his children again. For example, the detectives said: "If you want to see your kid start to walk. It's up to you. Because if not, that [mental] picture you've got today? Will be the last one you ever get! The way you remember them now, will be the last time you'll ever see them." And: "Well, I can tell you that . . . if we walk out the door right now, you won't ever see your kids! Cause you'll get the death penalty, and they'll grow up without a dad! That's the decision you have to make."

Despite these statements by the detectives, the defendant continued to deny involvement: "You guys can't get nothing from me, cause I wasn't even there! I've got nothing to do with it!"

When the defendant complained that he would be incarcerated, the detectives promised him protection. The detectives also offered to try to work something out so that the defendant could see his family in court.

The defendant asked what he would get back if he "g[a]ve something up." The detectives told him that if he cooperated and told the truth, they would tell the District Attorney that he had done that. They continued: "And that can make a big decision or a big impact on what they want us to do. That I know for sure." They also told the defendant: "We need to go [to the District Attorney] with something in hand. Because he's not going to make a deal on what he doesn't know what he's going to get. And we don't have the authority to make a deal, we have to go through the D.A. So if you want to help yourself out, you need to give us something to take to the D.A. to pull for you and for your family."

The detectives left the defendant sitting in the dark for a few minutes. When they returned, the defendant gave a statement concerning the Smythe robbery and murder. He said that he had been present and participated in the robbery, but not in the murder. Two Hispanic males, whom he could not identify, were responsible for the murder, which the defendant witnessed.

"A defendant's admission or confession challenged as involuntary may not be introduced into evidence at trial unless the prosecution proves by a preponderance of the evidence that it was voluntary. [Citations.] A confession or admission is involuntary, and thus subject to exclusion at trial, only if it is the product of coercive police activity. [Citations.] On appeal, we review independently the trial court's determination on the ultimate legal issue of voluntariness. [Citation.] But any factual findings by the trial court as to the circumstances surrounding an admission or confession, including '"the characteristics of the accused and the details of the interrogation" [citation]' are subject to review under the deferential substantial evidence standard. [Citation.]

"In deciding the question of voluntariness, the United States Supreme Court has directed courts to consider 'the totality of circumstances.' [Citations.] Relevant are 'the crucial element of police coercion [citation]; the length of the interrogation [citation]; its location [citation]; its continuity' as well as 'the defendant's maturity [citation]; education [citation]; physical condition [citation]; and mental health.' [Citation.]" (People v. Williams (1997) 16 Cal.4th 635, 659-660.)

"In assessing allegedly coercive police tactics, '[t]he courts have prohibited only those psychological ploys which, under all the circumstances, are so coercive that they tend to produce a statement that is both involuntary and unreliable.' [Citation.]" (People v. Smith (2007) 40 Cal.4th 483, 501.)

"Reference to the death penalty does not necessarily render a statement involuntary. '[A] confession will not be invalidated simply because the possibility of a death sentence was discussed beforehand. [Citations.] We have found a constitutional violation in this context only where officers threaten a vulnerable or frightened suspect with the death penalty, promise leniency in exchange for the suspect's cooperation, and extract incriminating information as a direct result of such express or implied threats and promises.' [Citations.]

"Similarly, the use of deceptive comments does not necessarily render a statement involuntary. Deception does not undermine the voluntariness of a defendant's statements to the authorities unless the deception is '"'of a type reasonably likely to procure an untrue statement.'"' [Citations.]" (People v. Williams (2010) 49 Cal.4th 405, 443.)

"If a confession admitted in a California trial was 'obtained by means that render the confession inadmissible under the federal Constitution, the prejudicial effect of the confession must be determined under the [harmless-beyond-a-reasonable-doubt] standard.' [Citations.]" (In re Shawn D. (1993) 20 Cal.App.4th 200, 217.)

The defendant raises questions of whether the detectives made implied or express threats about the death penalty and not seeing his family if he did not talk. He also claims that the implied and express threats caused him to make the incriminating statements. We need not resolve these questions because, even if the detectives' questioning were improper and caused the defendant to incriminate himself, the statement that he gave did not appreciably add to the overwhelming evidence of the defendant's guilt supplied from other sources. In other words, even if the statements were involuntary and should have been excluded, admission of the statements was harmless beyond a reasonable doubt.

Addison, Smythe's fiancee, testified concerning the defendant's crimes at the residence. He acted alone. After the defendant left, taking Smythe with him, Addison never saw Smythe again.

Ramos testified that, after killing Smythe, the defendant went to Ramos's home and described what he had done. Ramos's testimony was consistent with the evidence found at the scene of Smythe's murder.

Liliana testified that, while they were in Mexico, the defendant told her that he had robbed and killed a drug dealer. The victim did not die when the defendant shot him, so the defendant stabbed him.

Vargas testified that the defendant told him about how he had committed the contract murder of the drug dealer, again describing shooting Smythe and then cutting his throat.

Cardona and Anaya-Corona testified that the defendant told them about the Smythe murder, describing how he shot Smythe and then, when the gun jammed, he slit his throat.

Despite this overwhelming evidence against him, the defendant asserts that it was insufficient to establish that any error in admitting his statements was harmless beyond a reasonable doubt because "[e]veryone who testified that [the defendant] told him or her that he committed the Smythe murder had a motivation to lie about it." Ramos and Vargas had been charged in connection with the Smythe murder but were given immunity for their testimony. Cardona was threatened with being charged as an accessory for harboring the defendant after the Smythe murder, and Anaya-Corona wanted to keep her husband out of jail. And Addison was motivated to deflect suspicion from Smythe's family members who had reasons to want to eliminate Smythe's competition in the drug trade. The defendant concludes: "Obviously, without the admission of the [defendant's] confession, the defense strategy of discrediting the witnesses would have been capable of raising a reasonable doubt."

Considering the totality of the evidence, it was not substantially weakened by the witnesses' individual motivations to lie or any other bias. No reasonable jury could have discounted the strength of the prosecution's evidence concerning the Smythe crimes, given the varied and consistent sources of evidence concerning the defendant's guilt, mostly based on statements the defendant, himself, made to those witnesses. Furthermore, the defendant's statement to police was that he participated in the robbery but not in the murder, which was committed by two Hispanic males he could not identify. Therefore, we conclude that, even assuming the trial court erred by admitting the evidence of the defendant's statements, the error was harmless beyond a reasonable doubt. (In re Shawn D., supra, 20 Cal.App.4th at p. 217.)

III

Refusal to Give the Defendant's Instruction

The defendant requested the trial court to give a modified version of CALCRIM No. 358, which in its unmodified form directs the jury to determine whether a statement by the defendant was the product of coercion. The requested modification would have directed the jury to determine whether the statements of all witnesses were the products of coercion. The trial court refused to give the modified version.

On appeal, the defendant contends that the court's refusal to give the modified version of CALCRIM No. 358 violated his federal constitutional right to adequate instructions on the theory of the defense. We conclude the trial court did not err.

The defendant requested the following version of CALCRIM No. 358, with the modified portion in italics:

"If you find from the evidence that a statement was made by the defendant/any witness[] or accomplices, you must then determine if it was produced by means of coercion. Although coercive methods do not necessarily produce false confessions or admissions, or statements, they certainly may have that effect. Therefore, if you determine that coercion did occur, consider this fact in determining the weight, if any, the defendant's/witness's alleged statement should be given."

The defendant requested the modification because he claimed that officers coerced Liliana and engaged in "other coercive acts." On appeal, he claims that the evidence showed coercive tactics, threats mostly, used by officers against witnesses.

"'"[T]he trial court normally must, even in the absence of a request, instruct on general principles of law that are closely and openly connected to the facts and that are necessary for the jury's understanding of the case." [Citation.] In addition, "a defendant has a right to an instruction that pinpoints the theory of the defense . . . ."' [Citation.] The court, however, 'may properly refuse an instruction offered by the defendant if it incorrectly states the law, is argumentative, duplicative, or potentially confusing [citation], or if it is not supported by substantial evidence [citation].' [Citation.]" (People v. Bivert (2011) 52 Cal.4th 96, 120.)

Here, other instructions directed the jury to decide how much of the witnesses' testimony to believe. They were instructed: "[Y]ou may consider anything that reasonably tends to prove or disprove the truth or accuracy of that testimony." The court also directed the jury to consider whether "the witness's testimony [was] influenced by a factor such as bias or prejudice, a personal relationship with someone involved in the case, or a personal interest in how the case is decided." Thus, the instructions generally directed the jury to consider anything that would have a bearing on credibility. The jury, therefore, would have considered coercion.

The defendant cites cases requiring an instruction such as CALCRIM No. 358, but those cases all relate to coerced confessions and admissions of defendants, not of other witnesses. (See, e.g., Crane v. Kentucky (1986) 476 U.S. 683, 689 [90 L.Ed.2d 636, 644]; Lego v. Twomey (1972) 404 U.S. 477, 486-487 [30 L.Ed.2d 618, 626]; People v. Wright (1988) 45 Cal.3d 1126, 1136-1137.)

We conclude the more general instructions concerning witness credibility were adequate. "In a proper instruction, '[what] is pinpointed is not specific evidence as such, but the theory of the defendant's case.' [Citation.]" (People v. Wright, supra, 45 Cal.3d at p. 1137, original italics.) The theory of the defendant's case -- or, at least, one theory -- was that the witnesses' statements were unreliable, whether because of coercion or other circumstances bearing on credibility. The instructions, as given, allowed the defense to argue that the jury should not believe statements that witnesses made to law enforcement because those statements were coerced. Accordingly, the trial court did not err by refusing to modify CALCRIM No. 358.

IV

Admission of Statements to Spouse

The defendant contends that the trial court erred by admitting evidence of statements the defendant made to his wife concerning the two murders. He claims that admission of the statements violated the marital communication privilege. To the contrary, the defendant waived the marital communication privilege by disclosing the substance of those communications to others.

At trial, the defendant attempted to assert the marital communication privilege as to statements he made to Liliana concerning the two murders. He had told her, on separate occasions, that he killed Aguilar and Smythe. The defendant also told others, on several occasions, about the murders. After an evidentiary hearing, the trial court denied the defendant's motion to exclude statements he made to Liliana.

The confidential marital communication privilege allows one spouse to preclude the other spouse from disclosing a confidential communication made during their marriage (Evid. Code, § 980) and is based on the public policy consideration of preserving the confidence and tranquility of the marital relationship. (People v. Carter (1973) 34 Cal.App.3d 748, 752.) Marital communications are presumed to be confidential and the burden is on the opponent of the privilege to prove otherwise. (Evid. Code, § 917, subd. (a).) The marital communication privilege is waived if one of the spouses discloses, without coercion, any significant part of the communication or has consented to the disclosure. (Evid. Code, § 912, subd. (a).) We review the trial court's ruling to admit evidence of a marital communication for abuse of discretion and its underlying factual determinations for substantial evidence. (People v. Mickey (1991) 54 Cal.3d 612, 654.)

The defendant admitted his involvement in the murders to several people other than Liliana. Therefore, there is substantial evidence that he did not intend to keep the communication with Liliana confidential. "While a communication between a husband and wife is presumed to be confidential, if the facts show that the communication was not intended to be kept in confidence, the communication is not privileged. [Citation.]" (People v. Gomez (1982) 134 Cal.App.3d 874, 879.)

The defendant identifies no part of the statement he made concerning the murders to Liliana that he did not also make to others. In other words, the defendant revealed to others the substance of his communications with Liliana concerning the murders.

The trial court did not abuse its discretion by admitting the defendant's statements to Liliana.

V

Territorial Jurisdiction

Penal Code section 778a, subdivision (b) gives California courts territorial jurisdiction over a charged violent crime committed in another state or country if the defendant kidnapped the victim in California and then transported the victim to that state or country before committing the violent crime.*fn7 Here, the jury hung on the count alleging that the defendant kidnapped Liliana, but convicted him of falsely imprisoning and inflicting corporal injury on Liliana in Mexico.

On appeal, the defendant contends that there was insufficient evidence to sustain a finding of territorial jurisdiction because (1) he was not convicted of kidnapping and (2) the prosecution did not prove a kidnapping by a preponderance of the evidence. We conclude that the defendant forfeited the contention concerning the sufficiency of evidence of kidnapping, as it relates to the territorial jurisdiction issue, because he did not make that contention in the trial court. In any event, the contention is without merit because whether there is territorial jurisdiction is a matter for the trial court, not the jury, to decide and there was substantial evidence of a kidnapping.

Before trial, the defendant moved to dismiss the counts, including counts 13 (false imprisonment) and 14 (infliction of corporal injury), charging crimes that occurred in Mexico. He based the motion on lack of territorial jurisdiction, and he argued Penal Code section 778a, subdivision (a) did not support territorial jurisdiction because the defendant's action within California did not amount to an attempt to commit those crimes. The prosecution responded that territorial jurisdiction was based on subdivision (b), not subdivision (a), of Penal Code section 778a, which gives California territorial jurisdiction when a defendant kidnaps the victim in California and carries the victim outside the state. The defendant replied that, "even assuming that a kidnapping took place," Penal Code section 778a, subdivision (b) did not apply because his actions in Mexico did not amount to crimes of violence.

At the hearing on the motion to dismiss for lack of territorial jurisdiction, the defendant again assumed the existence of a kidnapping. Defense counsel instead argued that the crimes alleged to have taken place in Mexico did not naturally result from the kidnapping. He stated: "And the reality is although the kidnap occurred in California, it doesn't follow that kidnap will result -- particularly of your own wife and children will result in spousal abuse and/or in rape."

In summary, the defendant never argued to the trial court that Penal Code section 778a, subdivision (b) fails to confer territorial jurisdiction in this case because of the absence of a kidnapping. This resulted in forfeiture of that argument on appeal.

Territorial jurisdiction is not an element of the crime charged and may be waived by the defendant. Therefore, a defendant forfeits objections based on territorial jurisdiction if the objections are not made first in the trial court. (People v. Remington (1990) 217 Cal.App.3d 423, 430-431; see also People v. Betts (2005) 34 Cal.4th 1039, 1053 (Betts) [territorial jurisdiction not an element of crime].)

In the trial court, the defendant raised the issue of territorial jurisdiction, but he did not argue that, because there was no kidnapping, the trial court lacked territorial jurisdiction. On appeal, he changes his argument, asserting that the trial court never had territorial jurisdiction based on Penal Code section 778a, subdivision (b) because there was insufficient evidence of a kidnapping in California.*fn8 That argument was forfeited when the defendant failed to make it in the trial court.

The defendant's characterization of his territorial jurisdiction argument as one challenging the sufficiency of the evidence does not resurrect the forfeited claim. Although questions of sufficiency of the evidence relating to elements of the crime generally are not forfeited on appeal for failure to raise them in the trial court, territorial jurisdiction is not an element of the crime and therefore, because the entire question of territorial jurisdiction may be waived, the sufficiency of the evidence supporting territorial jurisdiction is not preserved on appeal without a trial court challenge.

In any event, the defendant's appellate challenge to the trial court's territorial jurisdiction is without merit.

Whether a California court has territorial jurisdiction over a crime committed outside California is a matter to be decided by the trial court. (Betts, supra, 34 Cal.4th at p. 1053.) "The prosecution has the burden of providing the facts necessary to establish territorial jurisdiction by a preponderance of the evidence. [Citation.]" (Id. at p. 1055.) The appellate court upholds a trial court's determination on factual issues regarding territorial jurisdiction if it is supported by substantial evidence; it reviews the trial court's legal determination independently. (Ibid.)

In Betts, the defendant was convicted of molesting young girls who he took on long-haul trucking runs that began in California. He committed the crimes outside California. (Betts, supra, 34 Cal.4th at pp. 1044-1045.) After the preliminary hearing, the defendant filed a motion under Penal Code section 995, challenging the trial court's territorial jurisdiction, which the trial court denied. After the prosecution's case, the defendant again moved to dismiss for lack of territorial jurisdiction. The court again denied the motion, finding that the defendant intended to molest the girls when he took them from California. (Id. at p. 1045.)

On appeal, the Betts court concluded that the issue of territorial jurisdiction is one for the court, not the jury, because it is a procedural issue that does not involve the guilt or innocence of the defendant. (Betts, supra, 34 Cal.4th at pp. 1049-1053.) The prosecution bears the burden of proving facts necessary for territorial jurisdiction by a preponderance of the evidence. We review the factual underpinnings of the trial court's ruling on territorial jurisdiction for substantial evidence, and we review the court's legal determinations independently. Concerning what standard we use to review the trial court's application of the law to the facts, the Supreme Court has not given guidance. (Id. at p. 1055.)

The defendant's assertion that the trial court did not have territorial jurisdiction because the jury, on an evenly divided vote, hung on the kidnapping count is without merit because the court, not the jury, decides whether it has territorial jurisdiction. (See Betts, supra, 34 Cal.4th at p. 1053.) The jury's inability to reach a verdict on the kidnapping count, by itself, does not trump the trial court's territorial jurisdiction ruling.

Furthermore, contrary to the defendant's argument, there was evidence to support a kidnapping count. The defendant cherry-picks from the record the evidence most favorable to his argument (see Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881 [recitation only of evidence favorable to appellant does not demonstrate error]), pointing out evidence that tends to show that Liliana did not accompany the defendant to Mexico out of force or fear. He fails to recognize that there was evidence that Liliana went with the defendant because of force or fear: the defendant showed up late at night at the home where Liliana was staying; he appeared worried and nervous and said that they needed to leave for Mexico right that moment; she protested that she did not want to go; the defendant grabbed their young daughter and threatened to take her even if Liliana did not go; he prevented Liliana from taking their daughter out of the car; he grabbed Liliana by the arm and put her in the car; and she got into the car because she was afraid and did not want the defendant to take their daughter away from her. The evidence was therefore sufficient to support the force or fear element of kidnapping and the trial court's finding of territorial jurisdiction.

VI

Jury Trial Rights Concerning Territorial Jurisdiction

The defendant contends that the false imprisonment and infliction of corporal injury counts (counts 13 and 14) must be reversed because he was denied his constitutional right to have territorial jurisdiction decided by the jury, applying the beyond-a-reasonable-doubt standard. He concedes, however, that we must reject this contention because the California Supreme Court held in Betts, supra, 34 Cal.4th at page 1054 that territorial jurisdiction is decided by the trial court and at page 1053 that territorial jurisdiction is not an element of the crimes charged. He raises the issue solely to preserve it for future review.

The contention has no merit. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450.)

DISPOSITION

The judgment is affirmed.

We concur: RAYE , P. J. DUARTE , J.


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