People v. Lazarevich

• Decision Date: 20 December 2001
• Docket Number: No. H021290.,H021290.
• Citation: People v. Lazarevich, 115 Cal.Rptr.2d 419, 95 Cal.App.4th 416 (Cal. App. 2001)
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Appellant, v. Dragisa LAZAREVICH, Defendant and Respondent.

115 Cal.Rptr.2d 419

95 Cal.App.4th 416

The PEOPLE, Plaintiff and Appellant, v. Dragisa LAZAREVICH, Defendant and Respondent.

No. H021290.

Court of Appeal, Sixth District.

December 20, 2001.

Rehearing Denied January 15, 2002.

Review Denied March 13, 2002.

Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Ronald A. Bass, Senior Assistant Attorney General, René A. Chacón, Supervising Deputy Attorney General, Bridget Billeter, Nancy Tung, Deputy Attorneys General, for Plaintiff and Appellant, The People.

Jonathan Grossman, under appointment by the Court of Appeal, Stockton, for Defendant and Respondent, Dragisa Lazarevich.

O'FARRELL, J.^*

On September 15, 1999, defendant Dragisa Lazarevich was charged by information with two counts of retaining and concealing a minor child (Pen.Code, § 278.5).¹ The information alleged that the violations took place between "October 1, 1989, and June 8, 1995." On February 7, 2000, the trial court concluded that our state did not "maintain jurisdiction" over any of the charged events and therefore granted defendant's motion to dismiss the information "for once in jeopardy." Pursuant to section 1238, subdivision (a)(1), the People appeal from the order setting aside the information based upon lack of jurisdiction and once in jeopardy concerns. They contend the trial court erred by dismissing the information because the trial court properly had jurisdiction over the case and because defendant failed to prove that he was placed once in jeopardy for the same charges for the entire time period in question. For the reasons stated below, we shall reverse the order setting aside the information.

FACTS²

Defendant and Shayna Lazarevich married in 1982. They were divorced in May 1989 in Los Angeles County. In the judgment of dissolution, Shayna was given physical custody of their two children and defendant was given visitation rights. In September 1989, Shayna moved from Los Angeles to Santa Cruz.

On September 29, 1989, defendant telephoned Shayna and told her that he was driving from Los Angeles to visit with the children from September 30 through October 1, 1989. He picked up both children the morning of September 30 and was expected to return them to Shayna's home on the evening of October 1, 1989. Defendant never returned with the children.

When Shayna called defendant's neighbor in Southern California, she was told defendant's home had been sold; when she called defendant's employer, she was told defendant had not worked there for several months.

Shayna called the police on the morning of October 2, 1989. Their investigation revealed that defendant, using fraudulently obtained passports, had left the United States with the children and had returned to his home Country of Yugoslavia. The Santa Cruz County District Attorney filed a criminal complaint against defendant and obtained a warrant for his arrest, and the United States Attorney for the Northern District of California instituted proceedings against defendant for Unlawful Flight to Avoid Prosecution.

In 1991, Serbian officials began a criminal proceeding against defendant for taking and detaining the children from the lawful custody of their mother in violation of article 116, paragraph 1, of the Criminal Code of the Republic of Serbia. On October 22, 1991, defendant was found guilty and was sentenced to pay a fine or spend seven days in custody if the fine was not paid.

The children were concealed in Serbia³ until June 7, 1995, when Serbian authorities, acting under the direction of President Milosevic, recovered the children in Yugoslavia. The children were turned over to diplomatic representatives of the United States when American citizens were evacuated before the Kosovo war, and they were reunited with their mother on June 8,1995.

Defendant eventually was extradited to the United States, and in 1997, he was convicted in federal court of passport fraud. Upon his release from federal custody, he left the United States pursuant to a voluntary deportation. In December 1997, he returned to Santa Cruz and soon thereafter was arrested near Shayna's home. He was prosecuted and convicted of illegal re-entry into the United States; while serving his federal sentence on that charge, he made a demand in the instant case pursuant to section 1381. He was arraigned in Santa Cruz County on September 15, 1999.

Thereafter, the superior court granted defendant's motion to dismiss the information "for once in jeopardy" on the ground that "California does not maintain jurisdiction over those events."

DISCUSSION

In his motion to dismiss, defendant claimed his 1992 conviction in Serbia for kidnapping his children serves as a bar to the Santa Cruz County prosecution under the principle of double jeopardy because his conviction in Serbia was based upon the same act as the Santa Cruz County prosecution.

In their opening brief on appeal, the People contended the trial court erred because defendant "failed to sustain his burden of proving a violation of double jeopardy principles."

Our state double jeopardy clause, like that of the federal Constitution, provides that a person may not be subjected to a second prosecution for the same offense for which he or she has once been prosecuted and convicted or acquitted. (U.S. Const., 5th Amend.; Cal. Const., art. I, § 15.)

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. Walker (1981) 123 Cal.App.3d 981, 984, 177 Cal. Rptr. 147.)

Section 793 of our state Penal Code states that "[w]hen 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." Similarly, section 656 provides that "[w]henever 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." The difference between sections 793 and 656 "is of no legal significance; neither statute provides greater protection than the other." (People v. Walker, supra, 123 Cal.App.3d at p. 984-985, fn. 1, 177 Cal.Rptr. 147.)

To determine whether a defendant has been placed once in jeopardy in another jurisdiction, the trial court must look at the physical elements of each crime. "[A] defendant may not be convicted after a prior acquittal or conviction in another jurisdiction if all the acts constituting the offense in this state were necessary to prove the offense in the prior prosecution [citation]; however, a conviction in this state is not barred where the offense committed is not the same act but involves an element not present in the prior prosecution. [Citation]." (People v. Belcher (1974) 11 Cal.3d 91, 99, 113 Cal. Rptr. 1, 520 P.2d 385.) The burden is on the defendant to prove that he or she has been placed in double jeopardy by reason of a prior conviction or acquittal. (People v. Burkhart (1936) 5 Cal.2d 641, 643, 55 P.2d 846; People v. Ferguson (1982) 129 Cal.App.3d 1014, 1023, 181 Cal.Rptr. 593; People v. Mason (1962) 200 Cal.App.2d 282, 284-285, 19 Cal.Rptr. 240; People v. Vigghiany (1960) 181 Cal.App.2d 621, 630-631, 5 Cal.Rptr. 501.)

In this case, we have taken judicial notice of article 116, paragraph 1, of the Criminal Code of the Republic of Serbia and its English translation. We also have reviewed the English language translation of the judgment of conviction of defendant from the First Municipal Court of Belgrade, dated January 15, 1992.

The judgment indicated that defendant had been convicted of a violation of article 116, paragraph 1 of the Criminal Law of the Republic of Serbia, kidnapping of a minor person. The conviction was based upon the fact that on September 30, 1989, defendant took his children to Yugoslavia during a visitation period and did not return them to their mother.

In English, article 116, paragraph 1, of the Criminal Code of Serbia states that "[o]ne who illegally detains an underaged (minor) person, or takes it away from parents, adopter, guardian, institution, or person the child was given in custody of, or prevents the execution of the decision on custody of the minor child, [¶] shall be punished by an one-year sentence."

By supplemental letter brief, the People now concede that, in light of the language found in article 116, paragraph 1 of the Criminal Code of the Republic of Serbia and of section 656 of our state Penal Code, defendant cannot be prosecuted in California for the kidnapping and detention of his children between October 1, 1989, and January 15, 1992, the date of the judgment of defendant's conviction in Serbia "[b]ecause Serbia's kidnapping statute punishes both the taking and retention of [defendant's] children, ..."

However, the People argue that California has jurisdiction to prosecute defendant for "the concealment and detainment of his children between January 15, 1992, and June 7, 1995," and that such prosecution is not subject to any double jeopardy prohibitions because defendant "continued to conceal his children until 1995 when Serbian officials returned the children to their mother."

A similar argument was made in superior court when the prosecutor stated that, assuming the superior court agreed there was a double jeopardy problem, then the People "would then argue that any acts which occurred after his conviction in Yugoslavia, the People should be allowed to proceed with the prosecution." The court immediately asked defendant's trial counsel for a response for "the contact that took place between 1992 until '95." In reply, defense counsel cited...