(San Mateo County Super. Ct. No. SC067422A) Trial court: San Mateo County Superior Court Trial judge: Hon. Mark R. Forcum.
The opinion of the court was delivered by: Needham, J.
CERTIFIED FOR PUBLICATION
An appellate court possesses the inherent power to dismiss the appeal of a criminal defendant who is a fugitive from justice. In this case, the People ask us to extend the appellate disentitlement doctrine to a defendant who has been deported from this country by the United States Immigration and Customs Enforcement (ICE). We conclude that absent additional circumstances not presented here, a defendant who has been deported does not stand in the same shoes as one who has voluntarily placed himself beyond the court's control. We therefore deny the motion to dismiss the appeal.
I. FACTS AND PROCEDURAL HISTORY
Defendant Elver Bernardino Puluc-Sique pled no contest to possession of cocaine. (Health & Saf. Code, § 11350, subdivision (a).) He was granted probation with drug treatment conditions under Proposition 36. (Pen. Code, § 1210.1; see generally Gardner v. Schwarzenegger (2009) 178 Cal.App.4th 1366, 1369-1371.) Defendant filed a timely appeal from the judgment granting him probation and has submitted an opening brief in which he argues that the minute order from the sentencing hearing must be amended because it contains probation conditions not orally imposed by the court.
The People have filed a motion to dismiss the appeal on the ground that defendant is a fugitive from justice. In support of their claim that defendant is a fugitive, they rely on a post-judgment order summarily revoking his probation due to his failure to report to his probation officer and his failure to keep the probation department advised of his whereabouts. Defendant's appellate counsel opposed the motion and filed a declaration stating that defendant had been released to ICE and deported after his sentencing. Counsel argues that the appellate disentitlement doctrine does not apply to a defendant who has not left the country of his own volition.
The People do not dispute that defendant was deported, but they maintain in their reply papers that the appeal should be dismissed because he is now beyond the territorial jurisdiction of this court. We set the motion on calendar for oral argument. (Cal. Rules of Ct., rule 8.54(b)(2).)
A reviewing court possesses the inherent power to dismiss an appeal by a party who has refused to comply with the orders of the trial court. (People v. Kubby (2002) 97 Cal.App.4th 619, 622 (Kubby).) In keeping with this principle, it has long been the rule in California that a court may dismiss the appeal of a fugitive from justice. (Id. at pp. 622-623; People v. Clark (1927) 201 Cal. 474, 477; People v. Redinger (1880) 55 Cal. 290, 298 (Redinger).) Federal decisions have also recognized that an appellate court may refuse to hear the appeal of a defendant who has escaped from custody or otherwise absconded. (Molinaro v. New Jersey (1970) 396 U.S. 365, 366 (Molinaro).)
Appellate disentitlement based on fugitive status is not a jurisdictional doctrine, but a discretionary tool that may be applied when the balance of the equitable concerns make it a proper sanction for a party's flight. (See U.S. v. Van Cauwenberghe (9th Cir. 1991) 934 F.2d 1048, 1054.) Various justifications have been advanced for its application: (1) assuring the enforceability of any decision that may be rendered on or following the appeal (Degen v. United States (1996) 517 U.S. 820, 824; Redinger, supra, 55 Cal. at p. 298); (2) imposing a penalty for flouting the judicial process (Kubby, supra, 97 Cal.App.4th at p. 623); (3) discouraging flights from justice and promoting the efficient operation of the courts (Kubby, at p. 626; Ortega-Rodriguez v. United States (1993) 507 U.S. 234, 242); and (4) avoiding prejudice to the other side caused by the defendant's escape (People v. Kang (2003) 107 Cal.App.4th 43, 51 (Kang)). (See U.S. v. Zedner (2d Cir. 2008) 555 F.3d 68, 77.)*fn1
The People's reliance on appellate disentitlement is misplaced. Defendant is not a fugitive from justice, but was deported from the country by ICE. Though deportation might interfere with one's ability to comply with the conditions of probation, a defendant who has been involuntarily deported has not willfully flouted the court's orders in the same sense as one who has escaped custody or fled from the authorities. Consideration of an appeal by such a defendant does not threaten the integrity of the judicial system. Appellate disentitlement is, fundamentally, a doctrine based on forfeiture: a defendant who escapes or otherwise flees the authorities gives up the right to challenge a conviction or sentence while refusing to abide by its consequences. (See Kubby, supra, 97 Cal.App.4th at p. 624.) Absent some additional wrongful conduct by the defendant amounting to forfeiture of the right to challenge a judgment, deportation does not, in and of itself, warrant the dismissal of a pending appeal.
The People suggest that fugitive status is not required for appellate disentitlement when the defendant is residing outside the country. They rely on People v. Brych (1988) 203 Cal.App.3d 1068, 1077 (Brych), in which the court dismissed the appeal of a defendant who did not escape custody, but voluntarily emigrated from the United States after serving his prison sentence. Although the defendant in Brych was not a fugitive from justice, he had severed all contact with his attorneys and would not disclose his current location. (Id. at pp. 1074-1075.) The appellate court concluded that the equities favored a dismissal of the appeal because the defendant had placed himself "in the enviable position of being able to decide unilaterally whether to return to the United States in the event [the appellate court] reverses his conviction. . . ." (Id. at p. 1077.) Here, defendant did not leave the country voluntarily, and the information before this court does not establish that he has purposefully hidden his whereabouts, refused to cooperate with his appellate counsel or otherwise used his absence from the country for any particular advantage. The equities are considerably different than they were in Brych.
The facts of the current case are closer to those in United States v. Campos-Serrano (1971) 404 U.S. 293, 295, fn. 2 (Campos-Serrano), in which the United States Supreme Court considered the merits of a certiorari petition by a criminal defendant who was deported after being placed on probation for three years on the condition that he leave the country and not return illegally. The court distinguished the circumstances of a defendant who has been deported from one who has voluntarily fled the country. In the latter situation, " `[w]hile such an escape does not strip the case of its character as an adjudicable case or controversy, we believe it disentitles (the party) to call upon the resources of the Court for determination of his claims.' " (Ibid., citing Molinaro, supra, 396 U.S. at p. 366.) The same considerations did not apply to a deported defendant who had not fled from the restraints imposed by the court. (Campos-Serrano, at p. 295, fn. 2.)
Taking a slightly different approach in their reply papers, the People argue that the appeal must be dismissed not because defendant is a fugitive, but because deportation has placed him beyond the jurisdiction of the courts of this state. They note that in Redinger, the first California case to recognize appellate disentitlement based on fugitive status, the court observed that "courts have no jurisdiction over persons charged with crime, unless in custody actual or constructive." (Redinger, supra, 55 Cal. at p. 298.) The People take this statement out of context. While it is true that a defendant must be personally present during various stages of a criminal prosecution, he may appear through counsel on appeal, whether in custody or not. (Ibid; see Pen. Code, § 1255.) The Redinger court recognized as much, but concluded that a defendant who had escaped custody after the court denied his motion for new trial was not entitled to proceed by counsel ...