Hageseth v. Superior Court

• Decision Date: 21 May 2007
• Docket Number: No. A115390.,A115390.
• Citation: 150 Cal.App.4th 1399,59 Cal.Rptr.3d 385
• Court: California Court of Appeals Court of Appeals
• Parties: Christian Ellis HAGESETH, Petitioner, v. The SUPERIOR COURT of San Mateo County, Respondent; The People, Real Party in Interest.

59 Cal.Rptr.3d 385

150 Cal.App.4th 1399

Christian Ellis HAGESETH, Petitioner, v. The SUPERIOR COURT of San Mateo County, Respondent;

The People, Real Party in Interest.

No. A115390.

Court of Appeal, First District, Division 2.

May 21, 2007.

Certified for Partial Publication.^*

Carleton L. Briggs, for Petitioner.

James P. Fox, San Mateo County District Atty., Jennifer M. Ow, Deputy District Atty., for Real Party in Interest.

Edmund G. Brown Jr., Attorney General, Dane R. Gilette, Chief Asst. Atty. General, Gerald A. Engler, Sr. Asst. Atty. General, Laurence K. Sullivan, Supervising Dep. A.G., Catherine A. Rivlin, Supervising Dep. A.G., Attorney General Specially Appearing on His Own Behalf in Opposition to Petition.

Edmund G. Brown Jr., Attorney General, Carlos Ramirez, Sr. Asst. Atty. Gen., Jose Guerrero, Supervising Dep. A.G., Kerry Weisel, Dep. Atty. Gen., Attorneys for Executive Director Of Medical Board of California As Amicus Curiae in Opposition To Petition.

KLINE, P.J.

This writ petition presents the question whether a defendant who was never himself physically present in this state at any time during the commission of the criminal offense with which he is charged, and did not act through an agent ever present in this state, is subject to the criminal jurisdiction of respondent court even though no jurisdictional statute specifically extends the extraterritorial jurisdiction of California courts for the particular crime with which he is charged. After determining that this writ proceeding is not premature, we shall conclude that territorial jurisdiction to prosecute lies under the traditionally applicable legal principles, and it makes no difference that the charged conduct took place in cyberspace rather than real space.

FACTS AND PROCEEDINGS BELOW

On May 24, 2006, the San Mateo County District Attorney filed a criminal complaint charging petitioner with the felony offense of practicing medicine in California without a license in violation of section 2052 of the Business and Professions Code. Section 2052 provides that any person who "practices or attempts to practice, or who advertises or holds himself or herself out as practicing, any system or mode of treating the sick or afflicted in this state, or who diagnoses, treats, operates for, or prescribes for any ... physical or mental condition of any person, without having at the time of so doing a valid, unrevoked, or unsuspended certificate as provided in this chapter or without being authorized to perform the act pursuant to a certificate obtained in accordance with some other provision of law is guilty of a public offense, punishable by a fine not exceeding ten thousand dollars ($10,000), by imprisonment in the state prison, by imprisonment in a county jail not' exceeding one year, or by both the fine and either imprisonment." Petitioner, whose allegedly unlawful conduct consisted entirely of Internet-mediated communications, claims the trial court lacks jurisdiction because no part of that conduct took place within the State of California.

The complaint is predicated on an investigative report of the Medical Board of California (Board) dated April 20, 2006, which the Board forwarded to the San Mateo County District Attorney as part of its referral of the case for criminal prosecution. The report states that, on or about June 11, 2005, John McKay, a resident of San Mateo County, initiated an online purchase of fluoxetine (generic Prozac) on "www.usanetrx.com," an interactive Web site located outside of the United States. The questionnaire McKay received and returned online, which identified him as a resident of this state, was forwarded by operators of the Web site to JRB Health Solutions (JRB) for processing. JRB, which has its headquarters in Florida and operates a server in Texas, forwarded McKay's purchase request and questionnaire to petitioner, its "physician subcontractor," who resided in Fort Collins, Colorado, and was then licensed to practice medicine in that state.¹ After reviewing McKay's answers to the questionnaire,² petitioner issued an online prescription of the requested medication and returned it to JRB's server in Texas. JRB then forwarded the prescription to the Gruich Pharmacy Shoppe in Biloxi, Mississippi, which filled the prescription and mailed the requested amount of fluoxetine to McKay at his California address. Several weeks later, intoxicated on alcohol and with a detectable amount of fluoxetine in his blood, McKay committed suicide by means of carbon monoxide poisoning. The Board's report indicates, and it is undisputed, that petitioner was at all material times located in Colorado and never directly communicated with anyone in California regarding the prescription. His communications were only with JRB, from whom he received McKay's online request for fluoxetine and questionnaire, and to whom he sent the prescription he issued.

On May 24, 2006, the district attorney filed a criminal complaint charging that, "in the County of San Mateo," petitioner willfully and unlawfully practiced medicine in this state without a valid license authorizing him to do so, in violation of Business and Professions Code section 2052, a felony. On the same date, the trial court issued a warrant for petitioner's arrest and admitting him to bail in the amount of $500,000. Petitioner quickly demurred to the complaint and moved to quash the warrant and to dismiss the complaint. All such relief was sought on the ground that, because all the alleged criminal acts occurred outside the state, the court lacked jurisdiction. At a hearing conducted on August 2, 2006, the trial court concluded that the complaint was "sufficient" to survive demurrer. In overruling the demurrer and denying the motion to dismiss, the court stated that "it's a very interesting matter and you may win at the preliminary hearing," but denied the relief sought because "I'm not convinced yet that there isn't jurisdiction within the state of California." The motions to dismiss and to quash the arrest warrant were both denied.

The instant writ petition was filed on October 3, 2006. We issued an order staying all proceedings in the superior court and thereafter an order to show cause.

DISCUSSION

I.^**

II. Under Traditionally Applicable Principles, Jurisdiction Lies

The issue of personal or territorial jurisdiction based on Internet or "network-mediated" contacts has drawn far more judicial and academic attention in civil than in criminal proceedings. Under the "minimum contacts" analysis adopted in Internal Shoe Co. v. Washington (1945) 326 U.S. 310, 319, 66 S.Ct. 154, 90 L.Ed. 95, a forum state cannot assert personal jurisdiction over an out-of-state resident in a civil proceeding unless he has purposefully availed himself of the privileges and benefits of conducting activities within the forum. (World-Wide Volkswagen Corp. v. Woodson (1980) 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490; Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 446, 58 Cal.Rptr.2d 899, 926 P.2d 1085; see also Hanson v. Denckla (1958) 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283.) "The fact that many companies have established virtual beachheads on the Internet and the fact that the Internet is now accessible from almost any point on the globe have created complex, new considerations in counting minimum contacts for purposes of determining personal jurisdiction." (Butler v. Beer Across America (N.D.Ala.2000) 83 F.Supp.2d 1261, 1267-1268.) The purposeful availment requirement has been applied in a civil case involving the practice of medicine in this state by out-of-state physicians who did not employ the Internet (Cubbage v. Merchent (9th Cir.1984) 744 F.2d 665),⁷ and in other types of civil cases involving Internet contacts. The application of traditional jurisdictional principles to civil proceedings involving Internet-mediated contacts is now a matter of considerable controversy.⁸

Unlike civil actions, criminal proceedings cannot take place in the absence of the defendant, because the confrontation clause of the Sixth Amendment bars criminal default judgments. Because criminal cases are therefore "not subject to the same flexibility enjoyed by the more elastic rules governing extraterritorial jurisdiction in civil cases" (State v. McCormick (Minn.1978) 273 N.W.2d 624, 628), "[t]he rule is well-settled that civil `minimum contacts' analysis has no place in determining whether a state may assert criminal personal jurisdiction over a foreign defendant."⁹ (State v. Amoroso (Utah Ct.pp. 1999) 975 P.2d 505, 508; accord, In re Vasquez (1999) 428 Mass. 842, 705 N.E.2d 606; Boyd v. Meachum (2d Cir.1996) 77 F.3d 60, 66; State v. Taylor (Tex.Ct.App. 1992) 838 S.W.2d 895, 897; Rios v. State (Wyo.1987) 733 P.2d 242, 244; State v. Luv Pharmacy, Inc. (1978) 118 N.H. 398, 403-404, 388 A.2d 190,193-194.)

"Like most other states, California has addressed the problem of criminal activity that spans more than one state by adopting statutes that provide our state with broader jurisdiction over interstate crimes than existed at common law. Such laws generally `are premised on the belief that a state should have jurisdiction over those whose conduct affects persons in the state or an interest of the state, provided that it is not unjust under the circumstances to subject the defendant to the laws of the state.' (Model Pen.Code & Commentaries, com. 1 to § 1.03, p. 35.) Penal Code section 27 generally permits the punishment of a defendant under California law for any crime committed `in whole or in part' in the state. (§ 27, subd. (a)(1).) In addition, sections 27 and 777b through 778b establish territorial jurisdiction for specific types of interstate situations or particular crimes. For example, a person who, acting outside the state, aids, advises or encourages a person in the state to commit a crime in California can be punished in California in the same manner as if he or she had...