Russell, In re

• Decision Date: 01 August 1974
• Docket Number: Cr. 17007
• Citation: 115 Cal.Rptr. 511,12 Cal.3d 229,524 P.2d 1295
• Court: California Supreme Court
• Parties: , 524 P.2d 1295 In re James Ray RUSSELL on Habeas Corpus. In Bank

Page 511

115 Cal.Rptr. 511

12 Cal.3d 229, 524 P.2d 1295

In re James Ray RUSSELL on Habeas Corpus.

Cr. 17007.

Supreme Court of California,

In Bank.

Aug. 1, 1974.

Richard S. Buckley, Public Defender, Harold E. Shabo, James L. McCormick, Paul James, Steve Hough and Leighton A. Nugent, Deputy Public Defenders, and Roger Agajanian, Santa Ana, for petitioner.

Joseph P. Busch, Dist. Atty., Harry B. Sondheim, Harry Wood and Eugene D. Tavris, Deputy Dist. Attys., for respondent.

CLARK, Justice.

The legality of custody under an extradition warrant may be challenged in a habeas corpus proceeding on the ground the petitioner was not in the demanding state when the alleged crime was committed. (In re McBride (1953) 115 Cal.App.2d 538, 541, 254 P.2d 117;, in re Brewer (1943) 61 Cal.App.2d 388, 393, 143 P.2d 33; In re Shoemaker (1914) 25 Cal.App. 551, 556--557, 144 P. 985; Cal. Criminal Law Practice II (Cont.Ed.Bar) pp. 723-- 724; see Pen.Code, § 1548.2.) ¹ The question presented here is whether a writ of habeas corpus discharging the petitioner on this ground bars a second extradition proceeding for the same offense. We conclude it does not.

Arrested in Orange County on a fugitive warrant charging him with having committed murder in Oklahoma, petitioner sought habeas corpus on the ground he was not in that state when the alleged offense was commited. At the evidentiary hearing held by the Superior Court of Orange County, the affidavits of a motel manager and petitioner's former mother-in-law placed him in Oklahoma both the day before and the day of the offense, whereas the declarations of petitioner's wife and three friends indicated he was with them in California the day of the offense. The results of a polygraph examination given petitioner by the Orange County District Attorney's office were admitted into evidence by stipulation, and the polygraph examiner testified he was absolutely satisfied petitioner was neither in Okahoma at the time in question nor involved in the offense. Noting its decision was influenced by the polygraph examiner's testimony, the Orange County Superior Court found petitioner was not in Oklahoma at the time the offense was committed and ordered him discharged from custody. The People appealed, but the appeal was dismissed on the ground it was a sham and frivolous.

When petitioner was rearrested in Los Angeles County following his release from custody in Orange County, he petitioned the Los Angeles County Superior Court for habeas corpus relief on the ground that a second attempt to extradite him was barred under the doctrine of res judicata by the writ of habeas corpus issued by the Orange County Superior Court. ² The Los Angeles County Superior Court denied the writ, apparently without either issuing an order to show cause or conducting an evidentiary hearing.

In civil cases, the doctrine of res judicata bars parties or persons in privity with them from relitigating a cause of action finally determined by a court of competent jurisdiction. The collateral estoppel aspect of res judicata bars parties or their privies from relitigating in a new proceeding on a different cause of action issues actually determined in a prior proceeding. (In re Crow (1971) 4 Cal.3d 613, 622, 94 Cal.Rptr. 254, 483 P.2d 1206; Martin v. Martin (1970) 2 Cal.3d 752, 758, 87 Cal.Rptr. 526, 470 P.2d 662; Bernhard v. Bank of America (1942) 19 Cal.2d 807, 810, 122 P.2d 892.)

In criminal cases, the doctrine of res judicata rests upon the double jeopardy clause of the Fifth Amendment. (Ashe v. Swenson (1970) 397 U.S. 436, 445, 90 S.Ct. 1189, 25 L.Ed.2d 469; In re Crow, Supra, 4 Cal.3d at p. 623, 94 Cal.Rptr. 254, 483 P.2d 1206.) Since jeopardy does not attach at a preliminary hearing, dismissal of a complaint by a magistrate does not bar the People from either refiling the same charges before another magistrate or seeking an indictment based on those charges. (People v. Uhlemann (1973) 9 Cal.3d 662, 666, 668 at fn. 4, 108 Cal.Rptr. 657, 511 P.2d 609.) Even a dismissal in the superior court following an order setting aside an information or an indictment is no bar to a future prosecution for the same offenses. (People v. Uhlemann, Supra, 9 Cal.3d at p. 666, 108 Cal.Rptr. 657, 511 P.2d 609; People v. Van Eyk (1961) 56 Cal.2d 471, 477, 15 Cal.Rptr. 150, 364 P.2d 326.)

Extradition is an even more preliminary step in a criminal proceeding than the filing of an indictment, as the United States Supreme Court emphasized in holding that an indictment is not a prerequisite to extradition. '(E) xtradition is simply one step in securing the arrest and detention of the defendant. And these preliminary proceedings are not completed until the party is brought before the court in which the trial may be had. Why should the state be put to the expense of a grand jury and an indictment before securing possession of the party to be tried? . . . care must be taken that the process of extradition be not so burdened as to make it practically valueless. It is but one step in securing the presence of the defendant in the court in which he may be tried, and in no manner determines the question of guilt.' (Matter of Strauss (1905) 197 U.S. 324, 332--333, 25 S.Ct. 535, 537, 49 L.Ed. 774, quoted with approval in In re Kimler (1951) 37 Cal.2d 568, 571, 233 P.2d 902.)

Moreover, extradition is not a matter of mere comity, but an absolute right of the demanding state and duty of the asylum state under the federal Constitution. ³ (In re Morgan (1966) 244 Cal.App.2d 903, 910, 53 Cal.Rptr. 642.) 'Such is the command of the supreme law of the land, which may not be disregarded by any state. The constitutional provision relating to fugitives from justice, as the history of its adoption will show, is in the nature of a treaty stipulation entered into for the purpose of securing a prompt and efficient administration of the criminal laws of the several States,--an object of the first concern to the people of the entire country, and which each state is bound, in fidelity to the Constitution, to recognize. A faithful, vigorous enforcement of that stipulation is vital to the harmony and welfare of the states. And while a state should take care, within the limits of the law, that the rights of its people are protected against illegal action, the judicial authorities of the Union should equally take care that the provisions of the Constitution be not so narrowly interpreted as to enable offenders against the laws of a state to find a permanent asylum in the territory of another state.' (Appleyard v. Massachusetts (1906) 203 U.S. 222, 227--228, 27 S.Ct. 122, 125, 51 L.Ed. 161; see South Carolina v. Bailey (1933) 289 U.S. 412, 421, 53 S.Ct. 667, 77 L.Ed. 1292; McNichols v. Pease (1907) 207 U.S. 100, 112, 28 S.Ct. 58, 52 L.Ed. 121.)

Therefore, issuance of a writ of habeas corpus in a previous extradition proceeding no more bars a second such proceeding than dismissal of a complaint by one magistrate bars refiling the complaint before another magistrate or seeking an indictment. 'Under state law it has uniformly been held that the discharge of an accused person upon a preliminary examination for want of probable cause constitutes no bar to a subsequent preliminary examination before another magistrate. Such an examination is not a trial in any sense and does not operate to put the defendant in jeopardy. * * * The same rule applies in extradition proceedings.' (United States v. Levy (1925) 268 U.S. 390, 393, 45 S.Ct. 516, 517, 69 L.Ed. 1010, citations omitted.)

This case is distinguishable from In re Crow (1971) 4 Cal.3d 613, 94 Cal.Rptr. 254, 483 P.2d 1206 and In re Bailleaux (1956) 47 Cal.2d 258, 302 P.2d 801, on the ground that invocation of the doctrine of res judicata by California courts in those cases did not defeat another state's constitutional right to extradition. ⁴ To the extent that In re Bailleaux is inconsistent with the views expressed in this opinion it is overruled.

Petitioner also contends the extradition demand is technically defective. 'There is no sufficient showing by affidavit or otherwise that there was probable cause for the issuance of the warrant for petitioner's arrest.' Section 1548.2 of the Penal Code requires that an extradition demand be accompanied by 'a copy of an indictment found or by information or by a copy of an affidavit made before a magistrate in the demanding State together with a copy of any warrant which was issued thereon.' The extradition demand here is accompanied by a copy of the information and the warrant of arrest. It must be presumed that sufficient evidence was presented to support issuance of the information. (In re Cooper (1960) 53 Cal.2d 772, 778, 3 Cal.Rptr. 140, 349 P.2d 956.)

However, by alleging that he was not in the demanding state when the alleged crime was committed, petitioner did state a prima facie case for habeas corpus...