BILL ANALYSIS
AB 1432
Page 1
Date of Hearing: May 6, 2003
Counsel: Kathleen Ragan
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Mark Leno, Chair
AB 1432 (Firebaugh) - As Amended: April 23, 2003
As Proposed to be Amended in Committee
PENDING 61(a) AND FOUR-DAY FILE NOTICE WAIVERS
SUMMARY : Removes the statutory defense that an accused person
has been acquitted or convicted for the same act in another
country. Specifically, this bill :
1)Provides that whenever an accused person has been convicted or
acquitted upon a criminal prosecution under the laws of the
United States, or any state or territory of the United States,
based on the act or omission for which he or she is on trial
in California, it is a sufficient defense.
2)Provides that any person convicted of a crime based upon an
act or omission for which he or she has been acquitted or
convicted in another country shall be entitled to credit for
any actual time served in custody in a penal institution in
that country for the crime.
3)States that when an act is charged as a public offense within
the jurisdiction of the United States, or another state or
territory of the United States, a conviction or acquittal on
that charge is a bar to the prosecution or indictment in
California.
4)Removes as a sufficient defense to a criminal prosecution the
fact that the accused person has been acquitted or convicted
under the laws of another country based upon the act or
omission with respect to which he or she is on trial in
California.
EXISTING LAW :
1)Provides that an act or omission declared punishable in
AB 1432
Page 2
California is not less so because it is also punishable under
the laws of another state, government, or country unless the
contrary is expressly declared. (Penal Code Section 655.)
2)States that, whenever on the trial of an accused person it
appears that upon a criminal prosecution under the laws of
another state, government, or country, founded upon the act or
omission in respect to which he or she is on trial, has been
acquitted or convicted, it is sufficient defense. (Penal Code
Section 656.)
3)Provides that when an act charged as a public offense is
within the jurisdiction of another state or country, as well
as of California, a conviction or acquittal thereof in the
former is a bar to the prosecution or indictment therefore in
California. (Penal Code Section 793.)
4)States that where an offense is within the jurisdiction of two
or more courts, a conviction or acquittal in one court is a
bar to a prosecution in another. (Penal Code Section 794.)
5)Provides that persons may not be twice put in jeopardy for the
same offense. [California Constitution, Article 1, Section
15, cl. 5.]
6)States that no person shall be subject, for the same offense,
to be twice put in jeopardy of life or limb. [United States
Constitution, Fifth Amendment.]
7)Provides that the President of the United States shall have
power, by and with the advice and consent of the Senate, to
make treaties. [United States Constitution, Article II,
Section 2, clause 2.]
FISCAL EFFECT : Unknown
COMMENTS :
1)Sponsor's Statement : According to material provided by the
sponsor of this bill, "Penal Code Sections 656 and 793 were
both enacted in 1872 and have remained unchanged for 130
years. Although the statutes have remained static, with no
attempts in the past to amend them from the time of enactment
to the present, the scope and number of bilateral treaties
have drastically increased. [These code sections] were
AB 1432
Page 3
enacted in a time that is currently and historically
irrelevant to the present multi-national environment.
"The two existing constitutional provisions are sufficiently
flexible because they are broadly drafted, while the statutes
in their current form are overly limiting and have resulted in
the abuses and inequities discussed. In addition to those
defendants who escape justice completely by inadequate or
'sham' proceedings, prosecutions in multiple defendant cases
where only one of the suspects flees the country and another
remains have resulted in disparate treatment. To enact one
set of standards for those who flee the jurisdiction to a
foreign country and another set of standards for those who
remain runs afoul of the equal protection clause of the United
States and California constitutions."
2)Sponsor's Description of the Problem : "In California, this
problem is most acute as it relates to fugitives who flee to
Mexico because:
a) "The proximity of Mexico to California and our open
borders make escape possible within minutes to hours after
the commission of the crime. In Los Angeles County alone,
it is estimated that more than 60 fugitives facing murder
charges have fled to Mexico.
b) "Although by treaty, Mexico may refuse to extradite a
'national' and may refuse to extradite without a death
penalty waiver, the Mexican Supreme Court has recently
ruled that any life sentence, with or without the
possibility of parole, constitutes cruel and unusual
punishment in violation of their Constitution [citing
Judicial Decision No. 125/2001 (2001)]. Mexican courts
have also begun to require 'judicial assurances' and in
some cases have refused to expel, deport, or extradite
United States citizens. In California, there are
approximately 40 'life-top' crimes for which extradition is
no longer available because of this decision.
c) "When extradition is denied based on 'nationality', a
term very loosely defined by the Mexican Government, the
matter is converted to an Article IV prosecution by
operation of Mexican law (citing the Extradition Treaty,
Article 9, 31 U.S.T. 5061.0). In the enactment of these
laws which arguably violate the Extradition treaty, Mexico
AB 1432
Page 4
has set up a situation where they have usurped California's
sovereign right to prosecute and punish for crimes
committed on our soil according to our laws and in complete
derogation of victim's rights."
3)Extradition Treaty between the United States and Mexico : In
1978, the Government of the United States and the Government
of the United Mexican States entered into a treaty to further
the desire to cooperate more closely in the fight against
crime and to mutually render better assistance in matters of
extradition. [31 U.S.T. 5059.] The treaty contains the
following pertinent provisions:
a) Extradition shall not be granted when the person has
been prosecuted or tried and convicted or acquitted by the
requested party for the offense for which extradition is
requested. [31 U.S.T. 5059, Article 6.]
b) Extradition may be refused when the offense for which
extradition is requested is punishable by death under the
laws of the requesting party and the laws of the requested
party do not permit such punishment for that offense unless
the requesting party furnishes assurances that the death
penalty shall not be imposed or executed. [31 U.S.T. 5059,
Article 8.]
c) Neither contracting party shall be bound to deliver its
own nationals, but the executive authority of the requested
party shall, if not prevented by applicable laws, have the
power to deliver them if, in its discretion, it is deemed
proper to do so. [31 U.S.T. 5059, Article 9.]
d) The request for extradition shall be made through the
diplomatic channel. [31 U.S.T. 5059, Article 10.]
4)Article IV of the Mexican Penal Code : According to materials
submitted by the sponsor, Article IV allows Mexico to try a
fugitive for crimes committed in a foreign territory by or
against a Mexican citizen. The trial is conducted in
accordance with Mexican Federal Law. Such provisions apply if
the accused is located in Mexico, has not been tried in the
country where he or she committed the offense, and the charged
offense is a crime in both the foreign country and Mexico.
According to the sponsor's background statement, "Mexican
AB 1432
Page 5
Federal law is based on the Napoleonic Code. There is no
presumption of innocence, no jury trial, and traditional
common law and statutory rules of evidence do not apply. All
trials are conducted by affidavit or declaration and witnesses
rarely, if ever, testify. Victims and their families have no
practical ability to witness the trial or be heard at
sentencing. . . . Often warrants remain in their system,
unserved, for years. Prosecutions are commenced and then
dismissed or sentences substantially reduced in the appellate
courts. No verifiable system exists to track actual sentences
served or to create a criminal database?"
According to the sponsor, Article IV provides for direct filing
by the Mexican Government, upon request from the investigating
law enforcement agency in California.
5)Double Jeopardy : Both the federal and state constitutions
prohibit double jeopardy, or twice putting a person in
jeopardy for the same offense. The United States Supreme
Court has stated that subsequent prosecutions based on the
same underlying conduct do not violate the double jeopardy
clause if the prosecutions are brought by separate sovereigns
and the crimes include the same elements. Blockburger v.
U.S. , 284 U.S. 299 (1932.)
There are a number of court cases that hold that the federal
constitution does not preclude both the federal and state
governments from prosecuting and convicting a defendant for
the same act. Prosecution and conviction for the same act by
both state and federal governments are not barred by the
constitutional protection against double jeopardy [ Belcher ,
supra, at p. 97, citing Abbate v. United States , 359 U.S. 187
(1959)].
In United States v. Wheeler , 435 U.S. 313 (1978), the United
States Supreme Court "reaffirmed the well-established
principle that a federal prosecution does not bar a subsequent
state prosecution of the same person for the same acts, and a
state prosecution does not bar a federal one. The basis for
this doctrine is that prosecutions under the laws of separate
sovereigns do not, in the language of the Fifth Amendment,
subject [the defendant to double jeopardy.]"
The Wheeler Court continued to explain that a person may owe
allegiance to two sovereigns and may be liable to punishment
AB 1432
Page 6
for violating the laws of either. The same act may be an
offense or transgression of the laws of both . . . . "That
either or both may (if they see fit) punish such an offender,
cannot be doubted. Yet it cannot be truly averred that the
offender has been twice punished for the same offense; but
only that, by one act, he has comitted two offenses, for each
of which he is justly punishable." Wheeler , supra, at p. 317.
"Prosecution for the same act by different sovereigns is not
barred by the Fifth Amendment guarantees against double
jeopardy, although a state is not precluded from providing
greater double jeopardy protection than that afforded by the
federal constitution. [ People v. Lazarevich , 95 Cal. App. 4th
416 (2001), rehearing denied 2002; Review denied (by the
California Supreme Court, without opinion, 2002 Cal. Lexis
1853).] In the Lazarevich case, the defendant had been
convicted in Serbia of kidnapping his children from their
mother, who had sole custody. The mother and the children
were residents of California. Although the constitutional
protection of double jeopardy did not bar his prosecution in
California, the statutes in question in this bill did bar
California from prosecuting him for that portion of the
kidnapping for which he was convicted in Serbia.
It is clear that there is nothing to preclude a state from
providing greater protection against double jeopardy than that
afforded by the Federal Constitution [ People v. Belcher , 11
Cal. 3d 91 (1974) (citations omitted)]. Accordingly, a number
of states, including California, have adopted statutes that
provide some protection against successive prosecutions in
different jurisdictions for offenses arising out of the same
act. These statutes provide defendants with greater
protections than required by the double jeopardy clause of the
United States Constitution.
This bill removes one of such statutorily granted protections
not mandated by the Constitution by removing from the statutes
the bar to prosecution or indictment in California of persons
acquitted or convicted of a public offense in another country.
6)Argument in Support : According to the sponsor, "Normally,
when a person flees the country after committing a serious
crime, we seek to extradite that individual back to the United
States for trial. However, a problem has come to our
AB 1432
Page 7
attention due to a decision by the Supreme Court of Mexico to
deny extradition in any case which is punishable by life
imprisonment or the death penalty. Since all murder is
punishable by at least a life term in California, we can no
longer extradite accused murderers who flee to Mexico. When
these cases are punished in Mexico, murderers have received as
little as eight years in prison for first-degree murder.
Under California's double jeopardy statute, these individuals
cannot be retried when they return to California.
"One such fugitive whose extradition is of great importance to
law enforcement is Armando Garcia, who is wanted for the
murder of one of our own, a 33-year-old Los Angeles County
Deputy Sheriff, David March. On April 29, 2002, Deputy March
was shot and killed, execution style , during a traffic stop in
Irwindale, California. Suspect Garcia fled to Mexico.
Mexico will not extradite Garcia back to Los Angeles for trial
unless the District Attorney agrees not to seek the death
penalty or a life sentence in this case. Such assurances are
contrary to California law which requires such sentences for
those convicted of murdering a peace officer.
"Mexico's position leaves the district attorney with limited
options. The only way to bargain for Garcia's extradition
would be to decrease the charges of murder to a lesser offense
such as manslaughter or assault with a deadly weapon. Such an
agreement would only perpetuate the injustice being carried
out against Deputy March's family and the entire law
enforcement community.
"There are approximately 60 cases which would be affected by the
above bill . . . .
"Under this bill, a defendant who flees California would have
the same rights as any other person who commits a crime in
California. If that person voluntarily returns to California
after being punished for the crime in another country, he or
she would be subject to the penalty provided under California
law with full credit for time served in the other
jurisdiction. Thus, that individual would be subject to the
same punishment as a defendant who did not flee California."
7)Argument in Opposition: According to the California Attorneys
for Criminal Justice (CACJ), "This bill violates the principle
that a defendant should not be placed twice in jeopardy for
AB 1432
Page 8
the same offense . . . ." CACJ also points out that this bill
may be in conflict with treaties entered into by the federal
government. It is also possible that this bill is in
violation of the Supremacy clause of the United States
Constitution, which would certainly be grounds for appeal in
any prosecution in which a defendant who is a foreign national
already tried abroad is prosecuted under its provisions in
this state.
8)California's statute, which bars prosecution of defendants
acquitted or convicted under the laws of another country was
enacted in 1872 and has not been amended since that date :
Should this long-standing, statutorily granted protection be
changed or is it of sufficient policy importance to allow the
statutes to remain as they are, notwithstanding the
unfortunate results that the statutes sometimes produce? Does
California have an interest in providing additional,
statutory, double jeopardy protections (over and above what is
required by the Constitution) to criminals convicted in
foreign countries, with different legal and evidentiary
procedures than those in the United States?
9)Prior Legislation :
a) AJR 63 (Richman and Chavez), Resolution Chapter 197,
Statutes of 2002, resolved that the California Legislature
should take all prudent and necessary steps to ensure that
the Federal Government addresses Mexico's refusal to
extradite to the United States criminals facing life
sentences. AJR 63 noted that the attorney generals from
each of the 50 states had asked the United States Attorney
General and the United States Secretary of State to address
the extradition issue with their counterparts in Mexico.
AJR 63 noted that California and the other states must rely
upon the Federal Government to resolve this issue of
national importance.
b) AB 2606 (Miller), of the 1997-98 Legislative Session,
would have provided for the repeal of the statutes proposed
to be amended by this bill. AB 2606 failed passage in the
Committee on Public Safety.
REGISTERED SUPPORT / OPPOSITION :
AB 1432
Page 9
Support
California Narcotic Officers' Association
Government Relations Oversight Committee
Los Angeles County District Attorney's Office (Sponsor)
Association for Los Angeles Deputy Sheriffs, Inc.
Los Angeles County Probation Officers Union
Los Angeles Police Protective League
Riverside Sheriff's Association
Opposition
California Attorneys for Criminal Justice
Analysis Prepared by : Kathleen Ragan / PUB. S. / (916)
319-3744