BILL ANALYSIS
SENATE COMMITTEE ON Public Safety
Senator Bruce McPherson, Chair A
2003-2004 Regular Session B
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AB 1432 (Firebaugh) 2
As Amended May 14, 2003
Hearing date: June 8, 2004
Penal Code
MK:mc
FORMER JEOPARDY
HISTORY
Source: Los Angeles County District Attorneys Office;
California District Attorneys Association; Association
for Los Angeles Deputy Sheriffs, Inc.
Prior Legislation: AJR 63 (Richman and Chavez) - Resolution Ch.
197, Stats. 2002
AB 2606 (Miller) - failed Assembly Public Safety
Support: Southern California Alliance of Law Enforcement; The
Los Angeles Police Protective League; California
Probation, Parole and Correctional Association;
California State Sheriffs' Association; California
Police Chiefs Association, Inc.; Los Angeles County
Board of Supervisors; Senator Dianne Feinstein; Crime
Victims United of California
Opposition:California Attorneys for Criminal Justice
Assembly Floor Vote: Ayes 72 - Noes 2
KEY ISSUE
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AB 1432 (Firebaugh)
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SHOULD A PERSON WHO COMMITS A CRIME IN CALIFORNIA, FLEES TO A
FOREIGN COUNTRY AND IS TRIED THERE, BE SUBJECT TO TRIAL IN
CALIFORNIA IF HE OR SHE VOLUNTARILY RETURNS?
PURPOSE
The purpose of this bill is to allow a person who has been tried
in another country for a crime in California to be tried in
California if he or she returns to the state.
Existing law provides that persons may not be twice put in
jeopardy for the same offense. (California Constitution,
Article 1, Section 15, cl. 5.)
Existing law 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.)
Existing law 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.)
Existing law provides that an act or omission declared
punishable in 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
655.)
Existing law 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 656.)
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This bill provides instead that whenever on the trial of an
accused person it appears that upon a criminal prosecution under
the laws of the United States, or of another state or territory
of the United States based upon the act or omission in respect
to which he or she is on trial, he or she has been acquitted or
convicted, it is a sufficient defense.
This bill 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.
Existing law 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
794.)
Existing law 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 793.)
This bill provides instead that when an act is charged as a
public offense is within the jurisdiction of the United States,
or of another state or territory of the United States, as well
as of this state, a conviction or acquittal thereof in that
other jurisdiction is a bar to the prosecution in this state.
This bill 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.
COMMENTS
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1. Need for This Bill
According to the author:
Under current law, a fugitive who flees to a foreign
country after committing a serious crime cannot be
prosecuted in California if that person successfully
fights extradition and then is prosecuted in the other
country. This law is referred to as the statutory
double jeopardy law. California is one of only six
states that applies statutory double jeopardy to persons
prosecuted in foreign countries for crimes committed
here.
Assembly Bill 1432 would repeal statutory double
jeopardy for California crimes prosecuted in foreign
countries. However, it would guarantee full credit for
any time served in the foreign country.
2. Double Jeopardy
Both the federal and state constitutions prohibit double
jeopardy, or twice putting a person in jeopardy for the same
offense.
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. (People v.
Belcher, 11 Cal. 3d 91, 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
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sovereigns do not, in the language of the Fifth Amendment,
subject (the defendant to double jeopardy.)" (Wheeler, at
316-317.)
The Wheeler Court continued to explain that a person may owe
allegiance to two sovereigns and may be liable to punishment 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 committed two offenses, for
each of which he is justly punishable." (Wheeler, at 317.)
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"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, 421 (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.
3. Inability to Extradite
According to the sponsor, the Los Angeles District Attorneys
Office:
Normally, when a person flees the country after
committing a serious crime, we seek to extradite that
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individual back to the United States for trial.
However, a problem has arisen due to a decision by the
Supreme Court of Mexico to deny extradition in any case
which is punishable by life imprisonment or by the death
penalty. Since all murder is punishable by at least a
life term in California, we can no longer extradite
accused murders who flee to Mexico. When these cases
are punished in Mexico, murders have received as little
as eight years in prison for first degree murder. Under
California's statutory jeopardy law, these individuals
cannot be retried when they return to California.
Los Angeles has had a number of cases where the only way to
extradite an individual who has committed a murder would be if
the District Attorney would agree to not seek the death penalty
or life in prison.
4. Punished Only if Returns to California, With Credit for Time
Served
This bill would allow a person who had committed a murder or
other crime in California, who was then tried for that crime in
a foreign country, to be tried for the offense if he or she
returns to California. If convicted in California, the person
would receive full credit for any time served in the other
jurisdiction.
SHOULD A PERSON WHO COMMITS A CRIME IN CALIFORNIA, FLEES TO A
FOREIGN COUNTRY AND IS TRIED THERE, BE SUBJECT TO TRIAL IN
CALIFORNIA IF HE OR SHE VOLUNTARILY RETURNS?
5. 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 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
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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.
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