1. Problem or Deficiency in Existing Law
Current law provides:
Penal Code Section 656 -Offenses also punishable by foreign law; double jeopardy
FOREIGN CONVICTION OR ACQUITTAL. 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 is on trial, he has been acquitted or convicted, it is a sufficient defense.
Penal Code Section 793. Jeopardy in another state or country
CONVICTION OR ACQUITTAL IN ANOTHER STATE A BAR WHERE THE JURISDICTION IS CONCURRENT. When an act charged as a public offense is within the jurisdiction of another State or country, as well as of this State, a conviction or acquittal thereof in the former is a bar to the prosecution or indictment therefor in this State.
Read together, these sections provide a complete defense and prohibit subsequent prosecution for any offense based on the same acts when a defendant has been previously convicted or acquitted of an offense in any jurisdiction: local, state, federal or foreign. These statutes bar local prosecution in cases where the most basic victims’ rights are ignored, sham prosecutions are conducted, and public safety compromised.
In addition to the statutory provisions, such rights are further guaranteed by the double jeopardy clause of both the California and the United States Constitution[1] (which will remain unaffected by this legislation). The constitutional and statutory provisions differ in two areas:
1) Constitutional provisions and subsequent case law do not prohibit subsequent prosecution for the same offense. [2] California is one of eleven states who apply a “same act or omission” standard;[3] and,
2) Constitutional provisions and subsequent case law do not expressly prohibit prosecution after a foreign conviction or acquittal. California is one of six states who afford such protection.[4]
Although the integrity of a conviction or acquittal is adequately safeguarded by the United States Constitution and the Constitutions of each of the fifty states, such protections do not exist in many foreign jurisdictions. Foreign jurisdictions are free to disregard such fundamental rights as the defendant’s right to a speedy trial, right to a public trial, right to a jury trial, and right to confront and cross-examine witnesses.
Additionally, foreign prosecution is often conducted in complete derogation of the Victim’s Bill of Rights;[5] the victim’s right to attend all proceedings;[6] the victim’s right to be present at sentencing and to address the court;[7] the victim’s right to be notified when the defendant escapes or is released;[8] and a myriad of rights which victims and their advocacy groups have fought hard to attain. [9]
Although the victim or their next of kin may be “allowed” to travel to another state or foreign jurisdiction to witness or testify at trial, in reality, most cannot. There is no “guarantee[s] of sufficient punishment”. “[P]ublic safety is [not] protected and encouraged as a goal of highest importance”. In a foreign jurisdiction, there is no guarantee that “relevant evidence shall not be excluded” and no guarantee that prior convictions will be used to impeach or enhance sentence.
When a foreign country or other jurisdiction fails or refuses to prosecute or sentence in a manner consistent with California law or the Anglo-American system of jurisprudence, these statutes sanction sham prosecutions, allow suspects to escape justice, continue to jeopardize the public safety, and ignore the rights of victims. One can only imagine the consequences if one of the 911 terrorist suspects were apprehended and prosecuted in an anti-American jurisdiction.
In California, this problem is most acute as it relates to fugitives who flee to Mexico, because:
1) 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 sixty fugitives facing murder charges have fled to Mexico.
2) 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.[10] Mexican courts have also begun to require “judicial assurances” and in some cases have refused to expel, deport or extradite U.S. citizens. In California there are approximately 40 “life-top” crimes for which extradition is no longer available because of this decision.[11]
3) 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.[12] In the enactment of these laws which arguably violate the Extradition Treaty, Mexico 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 victims’ rights.2. Describe your proposal in detail.
Amend Sections 656 and 793 of the Penal Code as follows:
Penal Code Section 656 -Offenses also punishable by foreign law; [D]double jeopardy
FOREIGN CONVICTION OR ACQUITTAL. Whenever on the trial of an accused person it appears that upon a criminal prosecution under the laws of another State or the Government of the United States, or country, founded upon the act or omission in respect to which he is on trial, he has been acquitted or convicted, it is a sufficient defense.
Penal Code Section 793. Jeopardy in another state or country United States Federal Court
CONVICTION OR ACQUITTAL IN ANOTHER STATE A BAR WHERE THE JURISDICTION IS CONCURRENT. When an act charged as a public offense is within the jurisdiction of another State or country United States Federal Court, as well as of this State, a conviction or acquittal thereof in the former is a bar to the prosecution or indictment therefor in this State.
3 Estimate the number of cases in our office which would be affected by your proposal.
It is difficult to predict the number of cases that would be impacted by this proposal. Prosecutions would be commenced only upon the voluntary return of a fugitive to the United States after a foreign conviction or acquittal. In most cases, depending on extradition treaties, the fugitive’s return would be sought through formal or informal extradition procedures before jeopardy has attached.
4. Facts/Case Law/Statistics/Reports/Studies in support of your proposal.
Anecdotal information gathered includes the following case studies:
A) On April 7, 1988, 19 counts of child molestation in violation of Penal Code section 288 were filed against Nicholas Aguilar Rivera, a Catholic priest. These charges involved twelve separate child victims. On the day that the crimes were reported to the parish priest, Father Aguilar fled to Mexico. In 1988, the case was submitted directly to Mexico for an Article IV prosecution[13]. In 1989 and again in 1993, representatives of the Mexican government requested copies of birth certificates of the victims. Although the birth certificates had been previously provided at the time of the filing of the case in Mexico, and were not a necessary jurisdictional element, such birth certificates were immediately provided. In 1993, representatives from the Los Angeles Police Department personally hand carried the documents to Mexico City. The case continued to be delayed for unknown reasons and was ultimately called for trial in Mexico City in 1995. At that time, the Mexican judge ruled that the statute of limitations had run, entered an acquittal, and dismissed the case. A representative of the Procuradoria General de Mexico (PGR) advised the Los Angeles County District Attorney’s office, that “we were never going to prosecute a priest”. Because of this acquittal, Father Rivera can no longer be prosecuted in California for these crimes under Penal Code section 656 and 793. If the defendant were to return to the United States and commit any new felony, if would be charged as a first offense, not a third strike case.
B. On November 8, 1989, defendant Mario Abendano Chaidez shot 17 year old Francisco Barajas Lopez. Chaidez lured victim Lopez out of his house to confront him about Lopez’ telephone calls to defendant’s daughter. After a brief conversation, victim Lopez walked away from defendant. Defendant opened fire, shooting Lopez in the back of the head.
Defendant Chaidez was charged with one court of murder in violation of Penal Code section 187(a) with a Penal Code section 12022.5 allegation. The maximum penalty for the crime as charged in California would have been 35 years to life.
On January 26, 1990, an Article IV case was presented for prosecution. Defendant Chaidez was taken into custody in Mexico on March 14, 1991, ultimately convicted of manslaughter, and sentenced to eight years in prison. The Unitary Court of the 15th Federal Circuit (Appellate Court) affirmed the conviction but granted a “preliberation status” and ordered defendant to serve his time on weekends after having served just two years in custody.
On an unknown date, defendant re-entered California. In October, 2002, he was apprehended on the outstanding warrant. Pursuant to Penal Code sections 656 and 793, the warrant had to be recalled and quashed and the case dismissed. If the defendant is subsequently arrested and convicted of any felony, it would be charged as a first offense, not a second strike case and there would be no five year enhancement for having suffered a prior serious felony conviction.
C. On September 10, 1994 defendant Miriam Rivera-Mendoza beat her three year old son, Arturo, to death. The cause of death was head trauma and at the time of his murder, victim Arturo was found to be malnourished and badly bruised with two healing fractures, and a scar on his head. On various occasions witnesses observed the victim to be hit, slapped, burned, locked in a closet, made to stand in a trash car, have his head held under water and his penis burned. The Department of Child Services was called on four separate occasions. Defendant Miriam Rivera-Mendoza was determined to the primary aggressor on most occasions, including the fatal assault. Defendant Arturo Isaias Perez-Rodriguez also was known to assault and injure the victim. On the evening of the murder, defendants abandoned their three surviving children and fled to Mexico.
One count of murder in violation of Penal Code section 187(a) and one count of Child Abuse in violation of Penal Code section 273a(a)(1) was charged. The maximum penalty as charged would have been 29 to life for each defendant.
On January 25, 1997 each of the defendants was found “criminally responsible for the crime of murder” and sentenced to 20 years in state prison. The Unitary Court of the Sixth Circuit reduced the sentence to 10 years in state prison.
D. On February 8, 1995, defendants Duenas, Garcia, and Davalos were observed drinking alcohol outside the Maravilla Housing Projects. A witness observed one of the men break into a vehicle and steal a tool box. The owner of the tool box and three others heard the noise, went outside and recovered the tool box. Five minutes later, defendants broke down the door to the residence where the victim was staying. Several residents, including two small children, attempted to flee the location but were prevented from leaving by defendants Garcia and Davalos. Defendant Duenas followed the victim into a bedroom, demanded money and shot the victim three times - twice in the back of the head and once in the shoulder. All three defendants were identified as active gang members. Defendants Garcia and Davalos were apprehended and prosecuted in Los Angeles. Each was convicted of one count of murder in violation of Penal Code section 187(a), attempted second degree robbery in violation of Penal Code section 664/211, first degree residential burglary in violation of Penal Code section 459, and second degree burglary of a vehicle in violation of Penal Code section 459. Several allegations were found true including the a special circumstance allegation that the murder was committed while the defendants were engaged in the commission of the crimes of robbery and burglary. Defendants Garcia and Davalos were sentenced to life imprisonment without the possibility of parole plus one year.
Defendant Duenas, the actual shooter, fled to Mexico. In January, 1997, the case was submitted to Mexico for prosecution under Article IV of the Mexican Federal Penal Code. On May 19, 1999, defendant Duenas was convicted of murder and sentenced to 20 years in prison by the Federal District Court in Uruapan Michocan. On October 19, 2000, the Federal District Court in Morella Michoacan reduced the sentence to 8 years in prison.
This case graphically illustrates the disparate treatment of defendants. Under California law, the accomplices to the murder were sentenced to life imprisonment without the possibility of parole. Under Mexican law, the actual shooter who would have been subject to the death penalty or life without the possibility of parole, was sentenced to eight years in prison.
E. Despite formal requests to the General Director of international Legal Affairs, Mexican Attorney Generals office on June 19, 2002 and July 22, 2002, Mexico has failed and refused to provide information regarding the results of 97 specific Article IV cases. Of those 97 cases, I have been able to develop information through law enforcement sources regarding 22 of those cases. That leaves 76 cases completely unaccounted for. The vast majority of those cases involve murders.
2. Are there alternatives to your proposal, either legislative or non-legislative, which might accomplish the same object? If so, why is your proposal a better alternative?
There are no alternatives that we are aware of that would effectively protect the rights of the defendants, the rights of victims, and insure the safety of the community consistent with the ends of justice.
3. Are you aware of any constitutional issues raised by your proposal? If so, briefly discuss.
No constitutional issues are raised by the proposed legislation. As discussed above, this legislation would have no affect on existing double jeopardy provisions of the United States or California constitution.
4. How much will your proposal cost? Will your proposal result in any cost savings to our office, to other entities, or to the state?
No additional costs or cost savings would result from subsequent prosecution pursuant to this proposal other than those normally associated with the prosecution of any criminal matter. The anticipated additional caseload would be negligible and easily absorbed by existing courts.
5. Support: Please list individuals and organizations likely to support your proposal.
Likely supporters would be the California District Attorneys Association, national, local and state victim advocacy groups such as “Justice for Homicide Victims”, “Crime Victims United”, “Families and Friends of Murdered Victims”, “Doris Tate Crime Victims Bureau/Foundation”, “National Center for Missing and Exploited Children”, Memory of Victims Everywhere”; all law enforcement agencies, associations, and organizations, League of California Cities, National League of Cities, Contract Cities Association.
9. Opposition: Please list individuals and organizations likely to oppose your proposal.
It is unknown the extent to which the defense bar and organizations such as the ACLU would oppose such legislation. Currently, defendants do not currently enjoy even the most basis rights and liberties guaranteed by the State of California and the United States of America when prosecuted in many foreign jurisdictions.
It is unlikely that Mexican Advocacy Groups would oppose such legislation since in the vast majority of cases, the crimes committed by citizens who flee to Mexico, are committed against victims of Hispanic descent.
6. Urgency: Is there a need for speed? How fast must this matter move?
There is no urgency for the passage of these amendments. However, failure to present this matter to the Legislature in a timely manner will result in additional victimization and will indirectly encourage suspects who commit crimes to flee the jurisdiction.
7. Prior legislation: Has there been any prior legislation in this area? If so, please provide bill author, the year the legislation was introduced, and whether the legislation was enacted?
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. Penal Code sections 656 and 793 were 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 over-limiting and have resulted in the abuses and inequities discussed above. In addition to those defendants who escape justice completely by inadequate or sham proceedings, prosecution in multiple defendant cases where 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.[14]
11. Will you be available for consultation and, if necessary, to travel to Sacramento to testify regarding this legislation between February 1, and September 1 of next year?
Yes
[1] U.S. Consti., 5th Amend.; Cal. Const., art. I, Sections 15, 24. See also In re Saul S. (1985) 167 Cal. App.3d 1061, 1064 which states in pertinent part: “Both the United States and California Constitutions provide that a person may not be twice placed in jeopardy for the same offense . . . The double jeopardy clause of the Fifth Amendment applied to the states through the due process clause of the Fourteenth Amendment. . . The protection against double jeopardy in the California Constitution is the same as that in the federal Constitution”.
[2] T he United States Supreme Court has determined 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 meet the “same elements test. (Blockbuster vs. U.S. (1932) 284 U.S. 299;U.S. v. Dixon (1993) 113 S.Ct. 2849).
[3] See also: A.C.A. Section 5-1-114 (2002) (Arkansas); C.R.S. 18-1-303 (2002)(Colorado); Idaho Code, Section 19-315 (2002); MCLS Section 333.7409 (2002) (Michigan); Montana Code Annotated, Section 46-11-504 (2002); NRS Section 171.070 (2002) (Nevada); N.J. Stat. Section 2C:1-11 (2002) (New Jersey); N.D. Cent. Code, Section 29-03-13 (2002) (North Dakota); 22 Okl. St. Section 130 (2002) (Oklahoma); W.Va. Code, Section 60S-4-405 (2002)
[4] See also: Idaho Code section 19-315; Miss. Code Ann., Section 99-11-27 (2001)(Mississippi); NRS, Section 171.070 (2002)(Nevada); N.D. Cent. Code, Section 29-03-13 (2002)(North Dakota); 22 Okl. St. Section 11130 (2002)(Oklahoma).
[5] Cal. Constitution, Article I, Section 28
[6] Penal Code section 1102.6(A)
[7] Penal Code Section 1191.1
[8] Penal Code Section 679.03
[9] Such rights include, but are not limited to: Aids Testing (Penal Code section 1524.1); civil recovery rights (Penal Code section1191.2); Compensation and salaries (Penal Code section 13835); Death penalty, family members, witnesses (Penal Code section 679.03, 3605); Protection against disclosure of information (Penal Code section 841, 1054.2); Relocation expenses (Penal Code section 1202.4); In custody informant notice (Penal Code section1191.25); Access to probation reports (Penal Code section 1203d); Notice of release (Penal Code sections 679.02, 679.03, 3058.8 , 4024.4); Protective Orders, (Penal Code section 136.2)
[10] Judicial Decision No 125/2001 (2001)
[11] Penal Code sections 37(a); 128; 136.1, 186.22(b)(4); 182(a),;182.5, 182(a); 187(a), 189, 190(a) (murder 1st with or without special circumstances); 187(a); 189, 190.03; 187(a),189, 190.25, 187(a), 189, 190.5(b), 187(a), 190(a), (b), (c), or (d); 187,190.05; 187(a), 190.26, 191.5(d); 205; 206, 206.1; 209(a); 209(b); 209.5(a); 211, 213(a)(1)(A), or 215 with 186.22(b)(4); 217.1(b); 218; 219; 246,186.22(b)(4); 269; 273ab; 451.5; 519, 186.22(b)(4); 664(a), 187, 189; 667(e)(2)(A); 667.51(d); 667.61(a); 667.61(b); 667.7(a)(1); 667.7(a)(2); 667.71(a)(b); 667.75; 1170.12(c)(2)(A); 4500; 11418(b)(1); 12022.53(d); 12022.55, 186.22(b)(4); 12308; 12310(a); 12310(b); Military and Veterans Code 1670, 1672(a); 1671, 1672(b)
[12] Extradition Treaty Between the United States of America and the United Mexican States, Article 9, 2. (hereinafter “the Extradition Treaty”, see 31 U.S.T. 5061) “If extradition is not granted pursuant to paragraph 1 of this Article, the requested Party shall submit the case to its competent authorities for the purpose of prosecution . . .” See also Agenda Penal Federal (Mexican Federal Penal Code, Book I, Preliminary Title, Article IV. “Crimes committed in foreign territory by a Mexican against a Mexican or against a foreigner, or by a foreigner against a Mexican, will be punished in the Republic of Mexico, in accordance with federal law, if the following requirements are met: 1. That the accused by in the Republic of Mexico; II. That the prisoner has not been definitively tried in the country where is committed the crime; and III. That the infraction with which he is charged be a crime both in the country where it was committed and in the Republic of Mexico”. (Unofficial translation by Texas Attorney General)
[13] See note 12
[14] U. S. Constit., 14th Amend., states in pertinent part: “. . . No state shall make or enforce any law which . . . shall . . . deny any person within its jurisdiction the equal protection of the laws”; Cal. Const., art. I, section 24 states in pertinent part: “In criminal cases, te rights of a defendant to equal protection of the laws. . . shall be construed by the courts of this state in a manner consistent with the Constitution of the United States . . .This Constitution shall not be construed by the courts to afford greater rights to criminal defendants than those afforded by the Constitution of the United States. . .”
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