Klock, In re

• Decision Date: 12 July 1982
• Docket Number: Cr. 23747
• Citation: 184 Cal.Rptr. 234,133 Cal.App.3d 726
• Court: California Court of Appeals Court of Appeals
• Parties: In re Phyllis KLOCK on Habeas Corpus.

Page 234

184 Cal.Rptr. 234

133 Cal.App.3d 726

In re Phyllis KLOCK on Habeas Corpus.

Cr. 23747.

Court of Appeal, First District, Division 3, California.

July 12, 1982.

Jeff Brown, Public Defender, City and County of San Francisco, Peter G. Keane, Chief Asst. Public Defender, Donna Teshima, Deputy Public Defender, San Francisco, for petitioner.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Crim. Div., William D. Stein, Asst. Atty. Gen., Herbert F. Wilkinson, Dane R. Gillette, Deputy Attys. Gen., San Francisco, for respondent.

SCOTT, Acting Presiding Justice.

This petition seeks to set aside an extradition order by which petitioner is to be returned to New York for parole violation proceedings.

The question presented is whether a fugitive from a sister state who has signed a waiver of extradition as a condition of parole can be extradited from California without formal extradition proceedings. We conclude that under the compulsion of the holding in In re Patterson (1966) 64 Cal.2d 357, 49 Cal.Rptr. 801, 411 P.2d 897 advance waivers of extradition are ineffective in California, thus requiring that California authorities obtain a Governor's warrant issued pursuant to Penal Code section 1548 et seq. (Uniform Criminal Extradition Act) in order to return a fugitive parolee.

On May 20, 1981, a complaint was filed in municipal court seeking to extradite petitioner to New York for violating her parole when she fled from that state on December 28, 1978. Petitioner opposed extradition. At the hearing set on June 18, 1981, instead of presenting a Governor's warrant issued pursuant to the Uniform Criminal Extradition Act, the court was presented with a written "waiver" of extradition allegedly signed by the petitioner in 1978 at the Bedford Hills Correctional Facility in New York. Petitioner denied having signed the waiver and made other contentions as to the invalidity of the proceedings to extradite her to New York. The court apparently accepted the validity of the waiver of extradition and therefore remanded petitioner into the custody of the sheriff for delivery to the New York officials. Subsequently the California Supreme Court, in response to a petition for a writ of habeas corpus, issued an order to show cause returnable in the superior court ordering the sheriff to show "why the purported waiver of extradition should not be deemed ineffective and petitioner entitled to demand formal extradition in light of Penal Code section 1555.1, In re Patterson, [supra,] 64 Cal.2d 357, 363 [49 Cal.Rptr. 801, 411 P.2d 897], and In re Satterfield [1966], 64 Cal.2d 419, 421-422 [50 Cal.Rptr. 284, 412 P.2d 540]." The Supreme Court stayed extradition pending final disposition of the petition for habeas corpus.

A hearing was held wherein evidence was taken as to the validity of petitioner's signature on the waiver of extradition. The petition for habeas corpus was denied. In her petition for a writ of habeas corpus to this court, petitioner again challenges the validity of her extradition based upon her waiver. We conclude that the purported waiver of extradition signed in New York is ineffective in light of the requirements of Penal Code section 1555.1 and the holding in In re Patterson, supra, 64 Cal.2d 357, 49 Cal.Rptr. 801, 411 P.2d 897.

Penal Code sections 1548 through 1558, the Uniform Criminal Extradition Act (hereafter the "extradition act") provide the legal framework for extraditing fugitives from justice. Section 1555.1 specifies the manner in which an arrested person may waive extradition: "Any person arrested in this State charged with having committed any crime in another State or alleged to have escaped from confinement, or broken the terms of his bail, probation or parole may waive the issuance and service of the Governor's warrant provided for in this chapter and all other procedure incidental to extradition proceedings, by subscribing in the presence of a magistrate within this State a writing which states that he consents to return to the demanding State; provided, however, that before such waiver shall be subscribed by such person, the magistrate shall inform him of his rights to require the issuance and service of a warrant of extradition as provided in this chapter.

"If such waiver is executed, it shall forthwith be forwarded to the office of the Governor of this State and filed therein. The magistrate shall direct the officer having such person in custody to deliver such person forthwith to the duly authorized agent of the demanding State, and shall deliver to such agent a copy of such waiver.

"Nothing in this section shall be deemed to limit the rights of the accused person to return voluntarily and without formality to the demanding State, nor shall this procedure of waiver be deemed to be an exclusive procedure or to limit the powers, rights or duties of the officers of the demanding State or of this State. (Added by Stats.1937, [ch.] 554, p. 1589, § 28.)" (Emphasis added.)

Case law has reiterated the requirements that such a waiver be signed before a magistrate with proper admonitions (In re Schoengarth (1967) 66 Cal.2d 295, 303, 57 Cal.Rptr. 600, 425 P.2d 200) and that the waiver must be signed in the asylum state (In re Patterson, supra, 64 Cal.2d at p. 363, 49 Cal.Rptr. 801, 411 P.2d 897; In re Satterfield, supra, 64 Cal.2d 419, 421, 50 Cal.Rptr. 284, 412 P.2d 540).

No contention is made that the purported waiver here was signed in California before a magistrate. Instead, the Attorney General argues that this waiver satisfies the third paragraph of Penal Code section 1555.1. He argues persuasively that since the code states that the specified procedure shall not be deemed exclusive, it permits removal based upon a waiver signed in another state as a condition of release on parole. He cites several cases from other jurisdictions which support that reading.

A Texas decision catalogues and discusses the various extradition waiver cases (Ex Parte Johnson (Tex.Cr.App.1980) 610 S.W.2d 757). Discussing the extradition act, where language similar to the third paragraph of Penal Code section 1555.1 relied upon by the Attorney General is cited, the Johnson court reviews various "advance waiver of extradition" cases and observes "[t]he following state cases also support the proposition that prior waivers of extradition as a condition of parole are enforceable and provide an alternative to extradition or waiver under the UCEA: [Citations.] These cases have dealt with waivers as a condition of parole. We hold that formal extradition proceedings are not necessary to the return of absconding parolees or probationers who have signed a prior waiver of extradition as a condition to their release."

It is clear that our sister state courts have construed the provisions of the Uniform Criminal Extradition Act to permit the return of parolees without formal extradition proceedings where an advance waiver of extradition has been signed as a condition of parole.

However, In re Patterson, supra, holds otherwise. In Patterson, a Texas parolee came to California, apparently in violation of his parole, and committed burglaries in Los Angeles. Because the subsequently imposed California terms were to run concurrently with his Texas sentence, the Patterson court concluded he was entitled to a transfer to Texas. However, the Attorney General proposed that his transfer be conditioned upon an advance waiver of the right to demand extradition proceedings at the time of his possible return to California. The Patterson court rejected that suggestion, stating: "The procedure for obtaining a waiver of extradition is prescribed in section 25-A of the Uniform Criminal Extradition Act, which states that any person may waive extradition 'by executing or subscribing in the presence of a judge of any court of record within this state a writing which states that he consents to return to the demanding state....' (Italics added.) This section has been enacted in substance by both California and Texas. (Cal.Pen.Code, § 1555.1; Tex.Code Crim.Proc., art. 1008a, § 25-A.) Thus it appears that the waiver must be executed before a judge in the asylum state and that a waiver executed prior to petitioner's transfer to Texas would be of no effect under the law of either state. The last sentence of the section provides that the procedures therein described are not to be deemed exclusive. Therefore, if some other statute provided an alternative procedure permitting an advance waiver, it would be controlling. However, we have found no other statute applicable to the facts of this case,1 and thus the procedure is governed by the provisions of section 1555.1." (Second emphasis added.) The court's footnote 1 provides: "Penal Code section 11177 provides that persons released on parole may be returned to this state at any time and may be required to execute a waiver of extradition. However, petitioner is not claiming the right to be released on parole; hence this section is inapplicable to the present case." (In re Patterson, supra, 64 Cal.2d at pp. 363-364, 49 Cal.Rptr. 801, 411 P.2d 897; see In re Albright (1982) 129 Cal.App.3d 504, 181 Cal.Rptr. 84.)

The Patterson court's statement that an advance waiver in California would be given no effect under the law of Texas has been held incorrect in Ex Parte Williams (Tex.Cr.App.1971) 472 S.W.2d 779, and Ex Parte Johnson, supra, 610 S.W.2d 757. However, as a statement of California's requirements for a valid waiver, it has not been overruled. It does not appear to be a dictum because it is the justification given for rejecting the Attorney General's suggestion that an advance waiver be extracted.

We completely agree with our colleague Feinberg's analysis except his attempt to distinguish Patterson. Surely the facts of Patterson are distinguishable but its holding is clear, i.e., that advance extradition waivers executed outside of the asylum state are invalid. T...