Petition for Writ of Certiorari — Luster v. California

Supreme Court, U.S.

FILED

yoO8 854 DEC 9 2003

* In the

Supreme Court of the Anited States

ANDREW STUART LUSTER,

Petitioner,

V.

STATE OF CALIFORNIA,

Respondent.

On Petition for a Writ of Certiorari

to Court of Appeal of the State of California

Second Appellate District

PETITION FOR WRIT OF CERTIORARI

ROGER JoN DIAMOND, EsQg. _KIANA SLOAN-HILLIER, Esq.

Counsel of Record 1901 AVENUE OF THE STARS

2115 MAIN STREET SuITE 615

SANTA Monica, CA 90405 Los ANGELES, CA 90067

(310) 399-3259 (310) 556-1911

Of Counsel

ALAN DERSHOWITZ, Esq.

VICTORIA EIGER, Esq.

(212) 889-4009

Counsel for Petitioner

Andrew Stuart Luster

Becker Gallagher Legal Publishing, Inc.

800.890.5001

QUESTION PRESENTED FOR REVIEW

Whether it is a denial of due process for a state court to

refuse to reinstate the direct appeal of a former fugitive who

fled during the trial (not during the pendency of the appellate

process), who has returned to custody prior to the dismissal

order becoming final, whose flight did not prejudice the

appellate process, and whose appeal would raise substantial

federal constitutional issues, as well as substantial state issues,

including sufficiency of the evidence and actual innocence.

ll

PARTIES TO THE PROCEEDINGS

Petitioner

Defendant, Andrew Stuart Luster.

Respondent

The People of the State of California.

iil

TABLE OF CONTENTS

Page

QUESTION PRESENTED FOR REVIEW .......... i

PARTIES TO THE PROCEEDINGS ............ il

pp A Bw Sy +. Ga ar ill

py Ee bey 8 sy | >. Vv

PETITION FOR WRIT OF CERTIORARI ......... l

CE gg se Sh hes eke ee ee ees 1

JURISDICTIONAL STATEMENT .............. 1

CONSTITUTIONAL AND STATUTORY

Pemae YS SPOOL VED oc ec ee eee 2

STATEMENT OF THE CASE AND FACTS ....... ys

REASON FOR GRANTING THE WRIT .......... 14

I. Certiorari Is Necessary to Determine Whether the

Constitution Imposes Limits on a State’s Refusal

to Hear a Criminal Appeal on the Basis of the

Fugitive Disentitlement Doctrine, And, If So,

Wee SONG LAME APE. 2... eee 14

CONCLUSION.......... stg a fap ie an eater 30

iV

INDEX TO APPENDICES

P\ | & earn Saar ar ee A-1

The California Court of Appeal, Second Appellate

District, Division Six Order granting Respondent

People of the State of California’s motion dismissing

petitioner’s appeal

RP OF ig no 6b 6 ae eee eee ae B-1

The California Court of Appeal, Second Appellate

District, Division Six, Opinion on Denial of

Rehearing and Order

PP So a EE oe Oe ee C-1

Order of California Supreme Court Denying Review

of the California Court of Appeal decision dismissing

petitioner’s appeal.

Vv

TABLE OF AUTHORITIES

FEDERAL CASES Page

Allen v. Georgia, 166 U.S. 138 ........... 16, 17

Bonahan v. Nebraska, 125 U.S. 692 ........... 16

Bray y. Marviend 373 U.S. S35 2... cc ee eee 6

Broach vy. Turmer, 37 P.O oth we ee ee 19, 22

Rev’sed at 514 U.S. 115

Daniels v. Williams, 474 U.S. 327 ............ 21

DeShaney v. Winnebago Cnty. Dept. Soc. Serv., 489

Ue WOR ox les eee ee eee 21

Degen v. United States, 517 U.S. 820.......... 18

Estelle v. Dorrough, 420 U.S. 534............. 19

Evitts v. Lucey, 469 U.S. 387 ......... 21, 22, a0

Goeke v. Branch, 544 U.S. 115... we ee ee 19

Griffin v. California, 380 U.S.609 ........... 10

Cita y Tide S51 U0. EE we ec eee es 28

Jones vy. Barnes, 463 U.S. 745 2.1... eee 28, 29

Juarez v. County of Ventura, CV 01-01569 ...... 2

McKane v. Dustin, 153 U.S. 684 ............. 29

Molinaro v. New Jersey, 396 U.S. 365 (1970) . 16, 18

Ortega-Rodriguez v. United States, 507 U.S. 234

, cx a A ee ee 17, 18, 19

Rochin v. California, 342 U.S. 165 ........... 21

Sewver y. Sat, 497 41.5. 227 2. 2 cae kee 29

Smith v. United States, 94 U.S.97...... 15, 16, 18

vl

United States v. Salerno, 481 U.S. 739 ......... 21

STATE CASES

Mascarenas v. State, 94 N.M.506............ 20

People v. Buffalo, 49 Cal.App.3d 838 ......... 24

People v. Clark, 201 Cal. 474 ............ 25, 26

People v. Elkins, 122 Cal. 654 ............-.. 24

People v. Kang, 107 Cal.App.4th 43 ....... passim

People v. Kubby, 97 Cal.App.4th 619 ......... 24

People v. Redinger, 55 Cal. PM + 2nicwed Rae 24

People v. Sitz, 21 Cal.App. 54 .........----- 24

State v. Troupe, 891 oe | | ener are 20

Seue y Tuttle 713 P.20 705 onc ee ewe 20

FEDERAL STATUTES

© LOR ae | Ye ee ae a l

STATE STATUTES

Penal Code section 1320.5 .............. 26, 28

MISCELLANEOUS

Fugitive Status of, State Criminal Defendant on

Availability of Appeal or Other Post-Verdict or

Post-Conviction Relief - State Cases,” 105 A.L.R.5th

. a rarer) ee 14

Vil

SUPREME COURT RULES

es UN gone sk es ee nee ee l

Se OO tb ee Ae ee eee a ]

CALIFORNIA RULES OF COURT

ee 8 Oe eRe ee ee 12

I io 6a eee ew eee eee ee eee 23

PETITION FOR WRIT OF CERTIORARI

Petitioner, Andrew Stuart Luster, respectfully prays that

a Writ of Certiorari issue to review the decision of the Court

of Appeal of the State of California, Second Appellate

District, Division Six, dismissing his direct appeal without

review or a hearing. .

OPINIONS BELOW

The California Court of Appeal; Second Appellate

District, Division Six Order granting respondent People of the

State of California’s motion dismissing petitioner’s appeal

appears as Appendix A to this petition. The California Court

of Appeal, Second Appellate District, Division Six, Opinion

on Denial of Rehearing and Order, appears as Appendix B to

this opinion. The California Supreme Court Order denying

a Petition for Review appears as Appendix C to this opinion.

JURISDICTIONAL STATEMENT

The judgment of the California Court of Appeal, Second

Appellate District, was entered on July 2, 2003. A timely

Petition for Review was denied on September 10, 2003. The

jurisdiction of this Court is invoked pursuant to 28 U.S.C.

section 1257(a) wherein a judgment of the Court of Appeal

may be reviewed in this Court on Certiorari pursuant to

Supreme Court Rules 13. The grounds for invoking this

Court’s jurisdiction are set forth in Supreme Court Rules

10(b) and 10(c). This petition is timely filed within 90 days

Of the date the California Supreme Court denied petitioner’s

Petition for Review.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Due Process and Equal Protection Clauses and the

Sixth, Eighth and Fourteenth Amendments to the United

States Constitution.

STATEMENT OF THE CASE AND FACTS

Petitioner was arrested in this case on July 18, 2000 and

his bail was eventually set at $10,000,000.” On December 15,

2000, the California Court of Appeal, Division Six, found the

$10,000,000 to be excessive and thus unconstitutional and

petitioner’s bail was reduced to $1,000,000.“ An 87-count

information filed by the Ventura County District Attorney

1/ Although petitioner should have been brought to court for

arraignment within 48 hours of his arrest, as required by law, law

enforcement in- Ventura County deliberately kept petitioner in

custody for almost a week, until Monday, July 24, 2000. Asa

result of this action against petitioner (and hundreds of other

inmates in Ventura County), a federal class action lawsuit was filed

against Ventura County. See Juarez v. County of Ventura, CV

01-1569. Ventura County agreed to settle the lawsuit and

petitioner received $300, which represented his share of the

settlement. (See appellant’s Opposition to Motion to Dismiss

Appeal, Declaration of Roger Jon Diamond; Exhibits 3 & 4, all of

which are part of the appellate record.) While this constitutional

issue was ultimately redressed, it is an example of the widespread

goverlmental misconduct occurring in Ventura County.

2/ As an example of the State’s lack of prejudice caused by

petitioner’s flight, after his return to custody over $100,000 of the

cash bail was awarded to Ventura County by the Ventura County

Superior Court as compensation for the cost of apprehending the

petitioner.

charged petitioner with multiple counts of sexual assault, drug

and weapons possession, and poisoning involving three

victims.

From the very start there were allegations by the defense

of misconduct on the part of the Ventura County Sheriff’s

Deputies, in the legality of the search, in the handling of

evidence, as well as in the physical and emotional abuse of

petitioner while in custody.”

3/ Several weeks after his arrest, petitioner was taken out of his

cell in the Ventura County Jail in the middle of the night by a group

of deputies and taken to an interview room. Petitioner was ordered

to disrobe. When he hesitated, he was told that if he did not want

to do it himself, the “goon” squad would come in and do it for him.

Petitioner complied. Petitioner was photographed from numerous

angles, with the emphasis on his genital area. He was then ordered

to pluck his own pubic and head hairs and provide them to the

deputies. He was eventually allowed to dress himself and was

returned to his cell. White it is permissible in some cases, for

instance where rape is alleged and the identification of the rapist is

at issue, for these kinds of photographs and samples to be taken,

identification was not an issue in this case. Moreover, there are

particular ways in which DNA hair samples are obtained in order

to avoid issues of cross-contamination. Gloves are worn by

technicians who obtain the samples with gloved hands and by the

use of sterile equipment. Because this dehumanizing of petitioner

appeared to be yet another example of misconduct on the part of the

Ventura County Sheriff’s deputies, petitioner sought discovery of

the photographs and the identity of the offending deputies. The

prosecution was repeatedly asked to turn over the photographs and

identify the deputies; the prosecution repeatedly asserted that it had

nothing to turn over. Over a year after the photographs were

taken, they were finally turned over to the defense. When the

defense filed a subpoena duces tecum asking for the county jail log

in an effort to identify the deputies involved, the motion was

denied.

4

The prosecution’s entire case depended on two of the

video tapes that the prosecution argued depicted petitioner

raping two unconscious women, Tonja and Shauna. It was

these two women which were the source of almost all of the

87 counts with which petitioner was charged at trial.

In addition, two other video tapes were allegedly seized

that depicted Tonja and petitioner in clearly consensual sexual

situations. In one of the tapes, Tonja agreed to take GHB

with petitioner prior to engaging in consensual sexual acts

with him in front of the video camera.” Prior to and during

the sexual encounter with petitioner, Tonja acknowledged the

camera at least twice, at one point asking petitioner if the

camera is on. In another tape, petitioner appeared to be

directing Tonja in certain sexual “scenes.”

From the outset, petitioner maintained his innocence,

claiming that he did not drug Tonja and Shauna and that the

women were not only his lovers, but that they were willing

participants in the sexual videotapes. He sought to introduce

evidence that in 1996 and 1997 he was producing commercial

pornography, .pointing to his commercial soft-porn

videotapes, Waves and Babes I and II, as proof. More

importantly, he claimed the prosecution was hiding and/or had

destroyed exculpatory evidence contained on the original

videotapes.

The defense alleged that the Ventura County District

Attorney’s Office had not only failed to provide the defense

with exculpatory discovery, in spite of numerous requests for

4/ This videotape was made in 1996 when it was not a criminal

offense to take GHB, a substance easily obtained over the counter

in many health food stores.

5

Same, but also that the videotapes and the audiotapes which

were the crux of the prosecution’s case had been altered

and/or tampered with prior to being turned over to the

defense.

These allegations were based on sworn affidavits prepared

by a.defense expert retained to examine the audio and video

tapes. It was his professional opinion that the tapes had been

altered. Based on his declaration, the defense moved the

court for an order allowing the expert to examine the original

audio and video tapes to determine whether they had been

altered, and so that a comparison could be made between the

Original tapes and the videotape and audiotape copies that had

been provided to the defense.

The defense also asked the court to allow its expert to

examine the tape recorders used to record the initial

interviews with the complaining witnesses, since many of the

tape recorders had “malfunctioned” during crucial points in

the interviews, erasing, garbling and in one case splicing

together two crucial interviews with Tonja together onto one

tape. Based on materials provided to the defense in

discovery, the defense alleged that the witnesses had been

improperly coached and that portions of statements had been

deleted from the audio tapes.

The prosecution filed a written response refuting the

allegations of misconduct, indicating, however, that all of

_ the recorders used to interview witnesses in petitioner’s case

had been discarded at some unknown time without

documentation.

The prosecution agreed to allow the defense expert to

examine the original tapes only if the defense would stipulate

that copies of those tapes, lodged with the court, would be

ee

6

deemed originals if the originals were damaged or destroyed.

Given that the expert had already determined that the original

tapes were likely altered, the defense refused to stipulate.

This issue became the topic of several oral and written pretrial

motions urging the trial court to conduct an evidentiary

hearing regarding the allegations of tape tampering and

prosecutorial misconduct, as well as to address the issues of

misconduct on the part of Ventura County Sheriff’s deputies.

The defense also moved the court to conduct an

evidentiary hearing regarding the chain of custody of the

videotapes, amid evidence that, in addition to the tape

tampering discovered by the expert, it appeared that the

videotapes seized from petitioner’s home had never been

properly booked into evidence, and may have passed through

numerous hands after being seized from his home. There

was a period of approximately one year during which the

location of the video tapes was apparently unknown. The

court ruled, again without an evidentiary hearing, that there

had been no intentional misconduct on the part of law

enforcement, ignored the chain of custody issue, and

prohibited the defense from bringing the issues of police

misconduct and the mishandling of the tapes before the jury.

Trial began on December 3, 2002, over the objection of

defense counsel, who by noticed motion and argument advised

the trial court that they were not prepared to proceed to trial

without viewing the original videotapes. The defense also

sought resolution of unresolved pre-trial discovery issues

centering around the prosecution’s failure to turn over

discovery in violation of Brady. The defense motion for a

continuance was denied and the defense was ordered to go

forward with the trial under protest. (See Brady v. Maryland,

373 U.S. 83 (1963).)

Cn

7

The prosecution sought to prevent the introduction of the ,

two videotapes depicting Tonja and petitioner taking drugs

and having sex in front of the camera. The defense objected,

arguing that Tonja’s propensity to take drugs and make

pornographic movies with petitioner was relevant to his

defense. While the court initially ruled to exclude the tapes

and any mention of them, on December 13, 2002, the court

indicated by minute order that the defense would be permitted

to inquire about the sexual nature of Tonja’s relationship with

petitioner.

On December 20, 2002, the last day of trial before the

holiday break*’ Tonja was asked by defense counsel:

“Did you and Andrew ever have sex in front of that video

camera. ”®

Over the prosecution’s objection, the witness. was

permitted to answer, and thereafter gave the false answer of

174 ”

no.” Because defense counsel knew the answer to be false,

3/ On December 18, 2002, one of the juror’s could be heard

snoring during the defense cross-examination of a witness. The

defense alerted the trial court. The court failed to make an inquiry,

instead indicating to the defense that the juror had a breathing

disorder, and denied the subsequent defense motion for mistrial.

The following day, December 19, the juror wore tinted glasses. To

petitioner, this was just more evidence that he could not get a fair

trial. This snoring was to continue throughout the trial until, during

closing arguments, the juror sitting next to the snoring juror

requested that the court move her seat because she had a headache

from the snoring.

6/ The original transcript of the December 20, 2002 proceeding

was filed with the California Court of Appeal.

ee

8

he commented, “Beg your pardon,” to which the witness

persisted in answering “no.” (Transcript, p. 78, line 20.)

At sidebar and in open court the prosecution conceded that

Tonja had answered untruthfully, contending that it had

misunderstood the court’s December 13, 2002, minute order

and that in reliance on the original order prohibiting the

defense from impeaching Tonja with the consensual video

tapes, had “prepped [the] witness” telling her with regard to

the “consensual videotapes that you have seen and are aware

of with Mr. Luster are not coming in. .. Nobody will talk

about them, don’t go there.” The district attorney stated, “If

I thought she was gonna be asked questions about those

videotapes, I would have gone there on direct.” (Transcript,

pp. 84-91.) In other words, the prosecution apparently

coached the witness not to answer truthfully were certain

questions asked.

After a lengthy sidebar and argument outside the presence

of the jury, the trial court prohibited defense counsel from

impeaching Tonja with the video tapes and ordered defense

counsel to stop its cross-examination in that regard.

This violation of petitioner’s constitutional rights under

the Sixth and Fourteenth Amendments to the United States

Constitution to confront and cross-examine his accusers - - to

“strike while the iron is hot” was the last action by the court

petitioner saw before the holiday break.

On December 27, 2002, while the court was still on

holiday break, the court issued a minute order in an effort to

correct the situation. In the order, the court ruled that Tonja

would be brought back to the witness stand and the

prosecution would be allowed to question her on direct to

rehabilitate her, and only then would the defense be permitted

9

~

to resume cross-examination. (Exhibit 7, Appellant’s

Opposition to Motion to Dismiss Appeal, filed with California

Court of Appeal.)

In the prosecution’s response to the minute order, it

recognized the error in the court’s ruling:

The People believe that further tailoring of the Court’s

order is necessary to circumvent potential appellate

issues. The People . . . are concerned that the Court

has created an impossible resolution to which neither

side can abide. Either the defense should be allowed

to cross-examine the witness on the issue of the

videotapes (and also thereby necessarily the ability to

impeach her with same) or the court should exclude

the videotapes (and any cross-examination related

thereto ) .

(Exhbit 8, Appellant’s Opposition to Motion to Dismiss

Appeal, filed with California Court of Appeal.)

In petitioner’s response to the court’s December 13 minute

order, filed Friday, January 3, 2003, the defense disagreed

with the prosecution’s remedy, describing it as an effort to “-

- strike the question and answer, un-ring the bell, and move

on.” (Exhbit 9, Appellant’s Opposition to Motion to Dismiss

Appeal, filed with California Court of Appeal.)

It was then, and is now, petitioner’s contention that

neither the solution chosen by the court in its December 27

minute order, nor the prosecution’s proposal that the court

strike the question and answer and thereafter preclude the

defense from further inquiry on the videotapes, are curative

10

of the court’s unprecedented error in interrupting the

cross-examination of the complaining witness.

On Monday, January 6, 2003, petitioner did not appear in

court. The trial court denied defense counsel Diamond’s

motion to be relieved as attorney of record when Diamond

contended he could-not fulfill his obligation under the Sixth

Amendment to provide petitioner with effective assistance.

The trial court found petitioner to be fugitive. Over defense

objection, the trial continued the same day, uninterrupted in

petitioner’s absence.

The defense again sought and the court again denied a

motion for mistrial stemming from the denial of petitioner’s

right to cross examine and impeach Tonja, and the

prosecution was thereafter permitted to rehabilitate Tonja on

direct prior to Mr. Diamond’s cross-examination. Only a

brief segment of one of the homemade video tapes was ever

shown to the jury.

During closing argument, the prosecution committed

Griffin error when it argued that it was petitioner’s fault that

the only reason there had been a trial was because petitioner

refused to plead guilty. The defense moved for a mistrial,

which the trial court denied, refusing to admonish the jury

that such argument was improper. On January 21, 2003, the

jury found petitioner guilty in absentia of multiple rape counts

and other violations of the law. (See Griffin v. California,

380 U.S. 609, (1965).

Over defense counsel’s objection, the trial court set

sentencing for February 18, 2003. On January 24, 2003, the

prosecution filed points and authorities requesting that

petitioner be sentenced in his absence, notwithstanding its

acknowledgment that the court had erred in disrupting the

11

defense cross examination of Tonja. Defense counsel filed a

motion requesting that sentencing be deferred, pointing out

that the prosecution was requesting the immediate sentencing

in order to start the appellate clock running and to foreclose

appellate review of the trial.

On February 18, 2003, defense counsel requested a

postponement of the sentencing, arguing that sentencing

should be deferred, including in its argument a non-exhaustive

list of potential appellate issues, several of which identified

constitutional claims. (Exhibit 11, Opposition to Motion to

Dismiss Appeal, filed with the California Appellate Court.)

Over defense counsel’s objection, petitioner was sentenced

in absentia and a sentence of 124 years in prison was

imposed. The trial court advised defense counsel of

petitioner’s right to file a Notice of Appeal.

After the sentencing in this matter but before the time for

appeal had expired, on March 17, 2003, the California Court

of Appeal handed down its decision in People v. Kang, 107

Cal. App.4th 43 (2003). On April 17, 2003, defense counsel

filed a timely Notice of Appeal. On May 9, 2003, the

Attorney General filed a motion with the Court of Appeal to

dismiss petitioner’s appeal on the sole ground that he was a

fugitive.

In petitioner’s opposition to dismiss his appeal, defense

counsel argued that. it was fundamentally unfair to dismiss

petitioner’s appeal without an evidentiary hearing in order to

determine what precipitated his flight. In particular, it was

argued that since petitioner’s first contact with Ventura

County law enforcement had showed him that law

enforcement was capable of violating his constitutional rights,

it was possible that petitioner may have had concerns of

12

additional misconduct by law enforcement should he be

returned to their custody.” (Appeliant’s Opposition to Motion

to Dismiss Appeal, p. 18-19, filed with the California Court

of Appeal.)

On June 10, 2003, without benefit of oral argument or a

review of the record, the Court of Appeal dismissed

petitioner’s appeal without explanation. (Appendix A.) The

next day, the California Supreme Court denied the attorney

general’s motion to depublish Kang, supra. By virtue of

California Court Rule 24(b), the dismissal was not final for 30

days.

Eight days later, on June 18, 2003, petitioner was

apprehended in PuertoVallarta, Mexico, by an unlicensed

bounty hunter, who kidnaped and beat him. Petitioner was

rescued by Mexican law enforcement, who turned him over

to agents from the Federal Bureau of Investigation pursuant to

a federal warrant. The agents delivered him to the custody

of the Department of Corrections on June 19, 2003, before

the judgment became final pursuant to Rule 24(b).

Accordingly, petitioner filed a timely Petition for

Rehearing relying heavily upon People _v. Kang, supra,

requesting that petitioner be allowed to go forward with his

appeal, arguing that there were numerous meritorious

constitutional issues to be reviewed.

7/ See for example United States v. Bailey, 444 U.S. 395,

People v. Lovecamp, 43 Cal.App.3d 823, for the premise that

under certain situations a defendant may claim a defense of

necessity for escape and/or failure to appear.

13

On July 1, 2003, the California Attorney General filed his

Answer to the Petition for Rehearing wherein he conceded

petitioner was in custody in California as of June 19, 2003.

On July 2, 2003, petitioner’s petition for rehearing was denied

by opinion and order explaining why petitioner should not be

permitted to appeal. (Appendix B.)

A timely Petition for Review was filed in the California

Supreme Court, and was denied on September 10, 2003.

(Appendix C.)

14

REASON FOR GRANTING THE WRIT

I. Certiorari Is Necessary to Determine Whether

the Constitution Imposes Limits on a State’s

Refusal to Hear a Criminal Appeal on the Basis

of the Fugitive Disentitlement Doctrine, And, If

So, What Those Limits Are.

Petitioner asks this Court to consider whether the

Constitution imposes limits on a State’s refusal to hear a

criminal appeal on the basis of the fugitive disentitlement

doctrine, and, if so, what those limits are. Specifically, this

case presents the question whether due process is violated

when a state court whose dismissal order has not become final

refuses to reinstate the direct appeal of a former fugitive who

fled before, not during, the appellate process, who was

returned to custody prior to the dismissal order becoming

final, whose appeal would, raise substantial federal

constitutional issues, including police and prosecutorial

misconduct, the Sixth Amendment right to cross examine and

confront one’s accusers, the right to due process and a fair

trial, and whose right to direct federal review of those

questions may be completely blocked by the state court’s

ruling.

Criminal appeals involving fugitives and former fugitives

present recurring problems. State cases on the subject are

legion, and in substantial disarray. See generally James L.

Buchwalter, Annotation, Effect of Escape by, or Fugitive

Status of, State Criminal Defendant on Availability of Appeal

or Other Post-Verdict or Post-Conviction Relief - State Cases,

105 A.L.R.5th 529 (2003). This Court has never addressed

whether the due process clause of the Fourteenth Amendment

permits the foreclosure of an appeal of a person whose flight

occurred during the trial and who has been returned to

° 15

custody. However, the Court’s decisions, considered

together, suggest that barring a meritorious appeal because the

defendant was formerly a fugitive would be constitutionally

permissible only where refusal to entertain the appeal is

justified by reference to important governmental interests,

none of which was implicated here. The Court has never

addressed whether the defendant’s intention to raise federal

constitutional issues on his appeal affects the analysis.

To be sure, no court is compelled to decide the appeal of

a defendant while he remains a fugitive. Courts, including

this one, have, in the exercise of their discretion, declined to

hear the appeal of a defendant who calls upon the court to

adjudicate his appeal while he continues his fugitive. status.

The primary rationale is a simple one: concern with the

enforceability of any judgment the court might render.

Even so, implicitly recognizing the importance of

appellate review, this Court has exercised its undoubted -

power to refuse to-hear a fugitive’s appeal with restraint.

Thus, in Smith v. United States, 94 U.S. 97 (1876), this

Court continued on its docket for six years the appeal by writ

of error of a defendant who had escaped from custody. After

six years, the Court dismissed the case on motion of the

government, then granted the motion of the defendant’s

counsel to reinstate the appeal, denying only counsel’s motion

to set the case down for oral argument, and ordering that the

case be left off the docket unless the defendant submit to

custody before the commencement of the Court’s next term.

The Court explained:

If we affirm the judgment, he is not likely to appear to

submit to his sentence. If we reverse it and order a

new trial, he will appear or not, as he may consider

most for his interest. Under such circumstances we

A SEE SEE MOEA TRE SEERA REE

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16

are not inclined to hear and decide what may prove to

be only a moot case.

94 U.S. at 97.

Similarly, in Bonahan v. Nebraska, 125 U.S. 692 (1887),

on writ of error, this Court ordered that the submission of the

case be set aside unless the defendant who was still a fugitive

“is brought or comes within the jurisdiction and under the

control of the court below on or before the last day” of the

Court’s term, the cause to be “thereafter left off the docket

until directions to the contrary.” More recently, in Molinaro

y. New Jersey, 396 U.S. 365 (1970)(per curiam), citing Smith

and Bonahan, this Court declined to adjudicate an appeal of a

defendant convicted for abortion where the State advised that

the defendant, who had been free on bail, had refused to

surrender and was ccnsidered a fugitive.

In Allen v. Georgia, 166 U.S. 138 (1897), this Court held

that the defendant was not denied due process of law where

the Supreme Court of Georgia ordered that an appeal be

dismissed unless the defendant surrendered himself or was

recaptured within 60 days, and where the state court

dismissed the appeal after 60 days had elapsed without the

defendant having been returned to custody. The Court found

no constitutional impropriety in the state court’s dismissal at

a time when the defendant remained a fugitive, writing that,

It is much more becoming to its dignity that the court

should prescribe the conditions upon which an escaped

convict should be perrnitted to appear and prosecute

his writ [of error] than that the latter should dictate the

terms upon which he will consent to surrender himself

to its custody. |

17

166 U.S. at 141.

Noting that Georgia’s constitutional and statutory law

required its Supreme Court to dispose of every case at the

first term, this Court stated:

Whether the court should give the plaintiff 60 days, or

until the last day of the term, to appear and surrender

himself to custody, was a matter for the court to

determine; and, even if there were error in that

particular, it would not constitute a denial of due

process. -

Id. at 142.

The protection of the dignity of the court - an interest

alluded to in Allen v. Georgia — as well as other interests that

might justify the dismissal of appeals based on the defendant

being ~ or having been - a fugitive, were discussed at length

in Ortega-Rodriguez v. United States, 507 U.S. 254 (1993),

a case decided under this Court’s supervisory powers over the

lower federal courts.

In Ortega-Rodriguez, this Court considered the propriety

of a federal court’s dismissal of the appeal of a defendant who

fled after conviction, but before sentencing, and who had been

recaptured prior to the commencement of his appeal. The

Court identified the rationales that support the dismissal of an

appeal of a defendant who has fled, concluding that each of

them provided “some connection between a defendant's

fugitive status and the appellate process, sufficient to make an

appellate sanction a reasonable response.” 507 U.S. at

1205-06.

18

First, there are the enforceability concerns animating

Smith and the cases that followed. Id. at 1206. Second, there

are concerns about the “efficient operation of the appellate

process” that may be implicated where a defendant has been

a fugitive. Id. Finally, as Molinaro indicated, there exists

concerns for the protection of the dignity of an appellate

court. Id. In this regard, it is often said that when a fugitive

“flouts” the authority of the court by escaping, dismissal is an

appropriate sanction. The premise of Molinaro’s

disentitlement theory is that the fugitive from justice has

demonstrated such disrespect for the legal processes that he

has no right to call upon the resources of the court to

adjudicate his claim.

However, under Ortega-Rodriguez, sanctioning a

defendant for offending a court’s dignity is not Without limits:

dismissal of an appeal on the basis of judicial defiance is

appropriate only where the defendant’s defiance was directed

at the court which he then asked to adjudicate his case. Where

the defendant’s flight occurred when the case was still in the

trial court, the defiance was directed at that court, not the

court subsequently asked to adjudicate the appeal. Under

those circumstances, the Court ruled that the appellate court

could dismiss the appeal of a fugitive returned to custody only

where it was shown that the defendant’s prior fugitive status

had had an effect on the appeal. See also Degen v. United

States, 517 U.S. 820 (1996)(applying analysis of

Ortega-Rodriguez and holding that the fugitive disentitlement

doctrine did not permit the federal district court to enter

summary judgment in favor of government in civil forfeiture

case, on grounds claimant was outside the United States and

could not be extradited to face federal drug charges).

19

The Ortega-Rodriguez Court did not purport to be

addressing any constitutional issues, but its constitutional

implications are manifest.

Following_Ortega-Rodriguez, in Branch v. Turner, 37

F.3d 371 (8th Cir. 1994), the Court of Appeals for the Eighth

Circuit granted habeas relief to a recaptured fugitive whose

state appeal had been dismissed, squarely ruling that dismissal

of an appeal where pre-appeal flight had no adverse effect on

the appellate process violated the defendant’s due process

rights.

This Court, in Goeke v. Branch, 514 U.S. 115 (1995)

reversed, on Teague non-retroactivity grounds, recognizing

that it had never determined whether the limits on the fugitive

dismissal doctrine outlined in Ortega-Rodriguez were

constitutionally compelled, and noting that, to the extent the

Eighth Circuit’s ruling rested upon Ortega-Rodriguez, that

case was decided almost two years after Branch’s conviction

had become final. 514 U.S. at 115-119.

The constitutional issue thus remains unanswered.” The

Supreme Court of Missouri has held that due process was not

8/ In Estelle v. Dorrough, 420 U.S. 534 (1975), a divided

Court ruled that the equal protection rights of a defendant, who

escaped from confinement after his appeal had been filed and was

recaptured two days later, were not violated when his appeal was

dismissed pursuant to a Texas statute and indicated that his due

process rights were not violated either. (420 U.S. at 538, n.7). The

challenged statute provided for automatic dismissal of a pending

appeal by an escaped felon upon escape, but for reinstatement of

the appeal if he should voluntarily surrender within ten days. The

case at bar does not involve a legislative enactment, but an ad hoc

determination by the state court.

20

violated by application of the escape rule to bar the direct

appeal of a defendant who escaped before sentencing and was

recaptured prior to initiating his appeal, where the defendant’s

escape had delayed the proceedings for more than eight

months while he was at large. See State v. Troupe, 891

S.W.2d 808 (1995). On the other hand, in Mascarenas V.

State, 94 N.M. 506, 612 P.2d 1317 (1980), the Supreme

Court of New Mexico held, on state constitutional grounds,

that a prisoner who escapes from custody does not forfeit the

right to pursue an appeal that was pending at the time of the

escape, regardless of when any recapture occurs. In State v.

Tuttle, 713 P.2d 703 (1985), the Utah Supreme Court

concluded “that a criminal appeal dismissed after escape may

be reinstated [once the defendant is apprehended] unless the

State can show that it has been prejudiced by the defendant's

absence and the consequent lapse of time.” 713 P.2d at p.

705. In reaching this conclusion, the Tuttle court reasoned:

_ . . [the premise] that an escape is an intentional

abandonment of an appeal [is] founded upon a

questionable presumption, i.e., that one who escapes

has actually made a decision to abandon his appeal.

A far more reasonable assumption is that the escapee

has not even considered how his escape will affect his

appeal rights.

Id. at p. 704.

Tuttle also concluded that “denying reinstatement really

amounts to imposition . . . of a punishment for escape.” Id.

at pp. 704-705. The court found * [nJeither law nor logic

justifies . . . such a sanction. . . a puxishment related not to

the offense - the escape - but to the crime of which the

escapee was originally convicted.” Id. at p. 705.

ue

SS Se SO ee aa eee

21

The court continued:

For example, if one escapee had been erroneously

convicted of first degree murder and sentenced to life

imprisonment and another had been wrongfully

convicted of theft and sentenced to one year, a refusal

to reinstate either appeal would have the effect of

imposing dramatically different punishments for the

same offense - escape.

It is understood that the due process clause contains a

component that protects individuals from government action

that is arbitrary, Daniels _v. Williams, 474 U.S. 327,

331(1986), conscience-shocking, Rochin v. California, 342

U.S. 165 (1952), oppressive in a constitutional sense,

DeShaney v. Winnebago County Dep’t of Social Servs., 489

U.S. 189 (1989), or interferes with fundamental rights,

United States v. Salerno, 481 U.S. 739, 746(1987). It

follows that a state appellate court should not be permitted to

deny a defendant the right to appeal through the arbitrary

application of an appellate rule. Evitts v. Lucey, 469 U.S.

387 (1985), 404-405. State appellate courts must apply their

rules governing appellate review in a way that provides “a fair

opportunity to obtain an adjudication on the merits of [an]

appeal.” Evitts, 469 U.S. at 405.

As previously noted, the justifications consistently

provided by this Court for allowing the dismissal of fugitive

appeals all assume some connection between a defendant’s

fugitive status and the appellate process. However, if a

defendant’s pre-appeal flight does not adversely affect the

appellate process, there can be no rational justification for a

state appellate court to strip the defendant of the right to

22

appeal under the fugitive dismissal rule. The fugitive

dismissal rule is the means of protecting the appellate interests

served by the rule and is not an end in itself and shouid not be

transformed from a rule triggered by appellate consequences

into an unconstitutional one of automatic dismissal and

additional punishment for pre-appeal flight, as occurred here.

‘Branch v. Turner, supra, 37 F.3d 371.

In its unpublished opinion on denial of rehearing, the

California Court of Appeal made a weak attempt to draw a

nexus between petitioner’s flight and its adverse affect on his

appeal by pointing out that the appellate court had reduced

petitioner’s bail two years before he fled. (See Appendix B.)

The court failed to explain how this previous bail reduction

has anything to do with his current appeal. It appears that the

judges of the California Court of Appeal may have felt

wronged. Petitioner is aware of no decision that holds or

suggests that an appellate court’s dignity is sufficiently

offended by flight to justify dismissal if it has set bail, when

jurisdiction resided elsewhere at the time of flight.

The California Court of Appeal should have based it

decision as to whether a dismissal of petitioner’s appeal was

justified on whether or not petitioner’s misconduct had any

effect on California appellate procedures. In its unpublished

opinion, the appellate court made no suggestion that

considerations of enforceability, judicial dignity, or judicial

efficiency justified its refusal to reinstate petitioner’s appeal,

dismissal of which had not yet become final under the Court’s

own rules.

Petitioner was in custody when he asked the Court of

Appeal to reinstate his appeal, so no issues of enforceability

existed. The judicial dignity of the Court of Appeal was not

at issue, because petitioner’s escape had occurred during trial.

ee

I, Ie gee aM EN ORT er ie ee ne fon ee eens

isin durin <>

ye

Nor could considerations of judicial efficiency or orderly

judicial procedures justify the refusal to reinstate the appeal.

Petitioner was sentenced on February 18, 2003; his notice of

appeal was timely filed on April 17, the Court of Appeals

dismissed the appeal, on the State’s motion on June 10, 2003,

and was asked to reinstate it, following the Petitioner’s return

to custody on June 18, 2003.

The California appellate court’s misuse of the rule to

dismiss petitioner’s appeal runs against the grain of due

process, particularly since petitioner claims constitutional

deprivations on appeal that neither the California appellate

court nor the State suggests are legally frivolous, and are

indeed substantial. Thus, the appellate court’s dismissal is

clearly at odds with this Court’s recognition that a convicted

defendant’s liberty should not be curtailed “unless a second

judicial decisionmaker, the appellate court, was convinced

that the conviction was in accord with law.” Evitts, 469 U.S.

at 403-04. Instead, the California Court of Appeal deprived

9/ That petitioner remained a fugitive at the time his counsel

filed his notice of appeal cannot properly be considered an affront

to the dignity of the appeals court; California court rules do not

prevent an absent defendant from filing a notice of appeal.

10/ Under California Rules of Court 35, once a notice of appeal

is filed, the superior court has 20 days to prepare the transcripts for

appeal and has the option of asking for an extension, which it often

does. Once the transcripts are filed, appellant has 30 days to file

an opening brief, also with the option of asking for an extension,

which often occurs and is almost always granted. Under the facts

of this case, petitioner would have been returned to custody prior

to the filing of his opening brief. As noted above, this is perfectly

acceptable as the court rules do not prevent an absent defendant

from filing a notice of appeal.

24

petitioner of the fair opportunity to obtain a decision on the

merits of his appeal in violation of his due process rights.

Indeed, rather than furthering one or more governmental

purposes, the refusal of the California Court of Appeal to

reinstate petitioner’s appeal appears to be an aberration even

in that jurisdiction. Historically, where a defendant is absent

during the pendency of his appeal, the courts of California

have given the defendant a fixed period of time in which to

_ surrender, making dismissal of the appeal contingent upon the

failure to surrender within the time given.’ Thus, in People

v. Redinger, 55 Cal. 290, 5 P.C.L.J. 696 (1880), after the

defendant’s appeal was called for argument, the State moved

to dismiss the appeal on the ground that the defendant had

escaped from jail during the pendency of the appeal and was

no longer in custody to abide the sentence of the court. The

court, after careful consideration of the precedents from other

jurisdictions, denied the State’s motion to dismiss then and

there, ordering instead that the case be dismissed only if the

defendant failed to return to custody by a date which it set.

See also People v. Elkins, 122 Cal. 654 (1898) (same, giving

defendant 30 days to return to custody); People v. Sitz, 21

Cal. App. 54 (Cal.App.2d Dist. 1913)(ordered appeal

dismissed unless defendant surrendered within 30 days);

People v. Buffalo, 49 Cal. App. 3d 838, 123 Cal.Rptr. 308

(4th Dist. 1975) (same). More recently, in People v. Kubby,

97 Cal. App. 4th 619, 118 Cal. Rptr. 2d 588 (3d Dist. 2002),

the California Court of Appeal, ordered a defendant’s

cross-appeal dismissed unless he surrendered within 30 days,

ruling that he could not prosecute his cross-appeal while he

remained a fugitive.

11/ California law does not reflect any legislative judgment that

dismissal of appeals operates to deter flight.

en eee

25

In People v. Clark, 201 Cal. 474, 259 P. 47 (1927), the

Supreme Court of California was asked to reinstate an appeal

that was previously dismissed when the defendant failed to

reappear within the 30 days the Court gave him to surrender,

or suffer dismissal of his appeal. After the Court entered its

order finally dismissing his appeal, the defendant was

apprehended, and moved to set aside the order of dismissal

and to reinstate the appeal. Noting that there was no statute

governing the situation, the California Supreme Court ruled

that the power to reinstate should be exercised “where it is

plainly made to appear that a denial of its exercise would

work a palpable injustice or wrong upon the appellant.” 201

Cal. at 478. Only after carefully considering the defendant’s

appellate claims and determining that his appeal lacked merit

did the Court pronounce itself “satisfied in the present action

that no advantage would accrue to the appellant by

reinstatement of the appeal.” Id.

. . The record on appeal before us presents no

sufficient showing that would justify a reversal of the

judgment. It would accomplish no useful purpose and

it would avail nothing to the appellant to reinstate his

appeal, as a consideration thereof could only result in

an affirmance of the judgment. We therefore feel

constrained to deny appellant’s motion to set aside the

order dismissing his appeal, and it is so ordered.

Id. at 486. Even so, one Justice dissented.

In People v. Kang, 107 Cal. App. 4th 43, 131 Cal. Rptr.

2d 447 (2d Dist. 2003), decided only three months before

petitioner’s appeal was dismissed, the defendant was

convicted on multiple counts of rape, sodomy, robbery,

burglary, and conspiracy. Ten days after the verdict, Kang

posted a $2.5 million bond and was released from custody.

26

On April 6, 1999, Kang failed to appear for sentencing.

Several months later, on June 21, 1999, after finding there

had been due diligence to locate Kang, he was sentenced to

multiple life sentences in absentia. Several years later, Kang

was extradited from South Korea.

In Kang, the defendant’s fugitive status precluded

consolidation of his appeal with his codefendants’ appeal,

which resulted in the loss of an efficient disposition of related

appeals. Some courts have found this basis alone enough to

justify the loss of the statutory right to appeal. Other courts,

including the court in Kang, found that this was an inadequate

basis by itself to disallow appellate review. The California

Court of Appeal found that dismissing Kang’s appeal would

“work a palpable injustice . >. without a full review of the

record with the benefit of briefing and oral argument.” See

People v. Clark, 201 Cal. 474, 477 (1927). The Kang court

found that a defendant whose attorney had filed a notice of

appeal while defendant remained a fugitive, and whose appeal

had been dismissed, was entitled to pursue his criminal appeal

anew after being apprehended and returned to custody:

.. . Because Kang is now in custody and no longer a

fugitive, the decision of the appellate court is

enforceable. It may be true that Kang flouted the

authority of the trial court when he failed to appear for

sentencing and became a fugitive, but disentitlement of

Kang to foreclose appellate review is not desirable. If

it is essential to vindicate judicial authority, the

prosecution may charge Kang with failure to appear

pursuant to Penal Code section 1320.5, although the

penalty for that crime pales in comparison with the

sentence imposed by the trial court. Put in

perspective, disentitlement is largely symbolic. Also,

ee ee

a a Sey Ne es

27

any consideration that dismissal discourages escape is

speculative at best.

107 Cal. App. at 51-52.

Like Kang, petitioner fled while his case was pending in

the trial court, not the court of appeal. Yet petitioner appears

to be the sole individual who has not been given a grace

period in which to submit to.custody on pain of having his

appeal dismissed, and whose request for reinstatement of his

appeal was denied without consideration of its merits.

Thus, the California Court of Appeal arbitrarily and

capriciously applied its fugitive dismissal rule to petitioner,

though he stood in no different position than Kang, imposing

a totally irrational and disproportionate punishment for flight.

As it stands now, the California Court of Appeal may

arbitrarily select certain cases for dismissal and allow

fugitives in other cases to file an appeal, literally exercising

veto power over a defendant’s statutory right to appeal. For

that reason alone, the foreclosure of petitioner’s appeal takes

on an arbitrary and capricious character which raises serious

questions as to fundamental fairness, and thus, of due process

and equal protection.

Even if California applied its rules consistently,

application of the fugitive dismissal rule necessarily operates

capriciously, and in an upside-down fashion. It works no

punishment on those who have no legitimate appellate claims,

penalizing only those whose convictions would be subject to

reversal because of reversible error in the trial court.

Moreover, it inflicts a punishment - letting stand convictions

which are, by definition, infirm, together with the sentences

imposed in connection with such convictions - that has no

28

relationship to the defendant’s misconduct, his flight. It works

a particular hardship on an individual, like petitioner, who

maintains his innocence and who fled, in a panic when it

appeared that his criminal trial was not providing a fair forum

for the adjudication of his guilt or innocence, and that he

might be returned to the custody of the same deputies from

whom he had suffered abuse.

To be sure, flight was the wrong response, and the law

provides stiff sanctions for that offense.“ But the sanction of

depriving petitioner of an opportunity to challenge the fairness

and validity of his conviction and 124-year sentence bears no

rational relationship to any of the interests the fugitive

dismissal doctrine may be said to exist to serve, particularly

where there are demonstrable constitutional infirmities in the

underlying conviction.

The appellate process exists as part of the system of

criminal justice in all fifty states and in the federal system in

recognition of the fact that trial courts make mistakes, often

of constitutional magnitude. It has been said that “there is .

_ no constitutional right to an appeal,” Jones v. Barnes, 463

U.S. 745, 751 (1983); see also Griffin v. Illinois, 351 USS.

12, 18 (1956), (“a State is not required by the Federal

Constitution to provide appellate courts or a right to appellate

12/ Penal Code Section 1320.5. Willful failure to appear for

felony charge: Every person who is charged with or convicted of

the commission of a felony, who is released from custody on bail,

and who in order to evade the process of the court willfully fails to

appear as required, is guilty of felony. Upon conviction under this

section, the person shall be punished by a fine not exceeding ten

thousand dollars ($10,000) or by imprisonment in the state prison,

or in the county jail for not more than one year, or by both the fine

and imprisonment.

ts

a

29

review at all”). | But that proposition is itself subject to

doubt.+2’ See Jones v. Barnes, 463 U.S. 745, 757 n.1 (1983)

(Brennan, J. and Marshall, J. concurring) (“If the question

were to come before us in a proper case . . . I have little

doubt that we would decide that a State must afford at least

some opportunity for review of convictions.”).

Under current law, the appellate process - and not habeas

corpus - provides the principle vehicle for insuring that a

criminal defendant’s conviction was not obtained through a

violation of his constitutional rights. See, e.g., Sawyer v.

Smith, 497 U.S. 227, 241 (1990) (“State courts are coequal

parts of our national judicial system and give serious attention

to their responsibilities for enforcing the commands of the

Constitution.”) But the California court’s disposition may

operate to foreclose not only state appellate review, but any

federal review of his Constitutional claims, whether through

writ of certiorari or perhaps even via habeas corpus

proceedings.

In any event, even if a state has no obligation to grant

criminal defendants a right to appeal, when it does establish

appellate courts, the procedures employed by those courts

must satisfy due process. Evitts 469 U.S. at 396.

13/ The sole case cited in Griffin for the proposition is McKane

v. Dustin, 153 U.S. 684 (1894), where the question was whether

the defendant had a federal right to bail pending his appeal of his

conviction; the right to take an appeal was not at issue.

sig la ct

. rin

30

CONCLUSION

Petitioner respectfully submits that California Court of

Appeal’s refusal to allow him to go forward with his appeal

did violate his right to due process.

Accordingly, he respectfully prays that his Petition for a

Writ of Certiorari be granted.

Dated: December 9, 2003 Respectfully submitted,

ROGER JON DIAMOND

Counsel of record

2115 Main Street

Santa Monica, CA 90405

(310) 399-3259

(310) 392-9029 (fax)

KIANA SLOAN-HILLIER

1901 Ave of the Stars

Suite 615

Los Angeles, CA 90067

(310 ) 556-1911

(310) 391-1377 (fax)

Counsel for Petitioner

ANDREW S. LUSTER

PRRSEN smc cen wears ISIC SETTER Sere os nee ween eee eee

a

APPENDIX A

IN THE COURT OF APPEAL

OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE No. B166741

Plaintiff and Respondent (Sup. Ct. No CR49259)

¥~

ORDER

ANDREW STUART LUSTER

Entered

Defendant and Appellant. 06/10/2003

The Court has read and considered respondent’s motion to

dismiss the appeal, filed May 9, 2003, and the opposition

thereto, filed by appellant on May 27, 2003.

IT IS ORDERED that the motion to dismiss is granted.

The appeal filed April 17, 2003 is hereby dismissed.

YEGAN PERREN, J.

Acting Presiding Justice Justice

A-1

APPENDIX B

NOT FOR PUBLICATION

IN THE COURT OF APPEAL

OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT-DIVISION SIX

THE PEOPLE 2d. Crim No. B166741

(Sup. Ct. No CR49259)

Plaintiff and Respondent (Ventura County)

V.

OPINION ON DENIAL

ANDREW STUART LUSTER OF REHEARING AND

ORDER

Defendant and Appellant. Entered 07/02/2003

FILED

July 2, 2003

Joseph A. Lane, Clerk

Deputy Clerk

By order filed June 10, 2003, this Court dismissed the

appeal of Andrew Stuart Luster, without opinion, because he

was a fugitive from justice. He had been sentenced in

absentia on February 18, 2003. We dismissed the appeal on

noticed motion after considering the opposition papers. (Cal.

Rules of Court, Rule 41, subs. (a) (b).) He now ask this court

to grant rehearing and reinstate his appeal because he was

captured on June 19, 2003, returned to California, and has

commenced to serve his prison term. As we shall explain,

these subsequent events do not require reinstatement of the

appeal. We issue this opinion on denial of rehearing to

briefly explain why this appeal should remain dismissed. (See

B-1

SPS RSE SD i

B-2

Witkin, Cal. Procedure (4th ed. 1997) vol. 9, § 856, pp. 889-890.)

“[A]n appellate court may employ dismissal as a sanction

when a defendant’s flight operates as an affront to the dignity

of the court’s proceedings.” (Ortega-Rodriguez v. United

States (1993) 507 U.S. 234, 246 [122L.Ed.2d 581, 595].) “It

is often said that a fugitive ‘flouts’ the authority of the court

by escaping, and that dismissal is an appropriate sanction for

his act of disrespect. (Citations.)” (/d., at p. 245[122 L.Ed.2d

at p. 595) Recapture of the fugitive before any appellate

process has begun and which does not interfere with the

efficient operation of the appellate court may lead to

reinstatement. (/d., pp. 244-246 [122 L.Ed.2d at pp.

594-595] compare Allen v. Georgia (1897) 166 U.S. 138 [41

L.Ed. 949].)

Petitioner contends that “he did not flout the authority of

the Court of Appeal but if the Attorney General is correct in

his assertion that Luster fled intentionally then only the

authority of the trial court is flouted.” (Supp. To Petn. For

Rehg. P. 7.) This is a myopic view of the record. Here there

is the required nexus between appellant’s fugitive status and

the appellate process. (Ortega-Rodriguez v. United States,

supra, 507 U.S. at pp. 249, 251 [122 L.Ed.2d at pp. 597,

599.) Petitioner was originally incarcerated with the trial

court setting bail at $10,000,000. In an unprecedented writ

proceeding before this court, we were compelled to reduce

bail because the court’s order was a deprivation of the

constitutional right to bail. We set bail at $1,000,000 along

with other terms and conditions. (B145137, nonpublished

opinion by Yegan J.; Gilbert, P.J. and Perren, J.

Concurring.) Petitioner posted the bail, and complied with

the other terms and conditions for approximately two years,

but fled “during jury trial.

B-3

Had petitioner voluntarily reappeared, he would have a

much stronger argument for reinstatement of the appeal. By

his flight to a foreign country, the inference is compelling that

but for his capture he would be a fugitive to this day. That he

is now serving his prison sentence and is once again subject

to the court’s power does not, standing alone, provide a

compelling reason for reinstatement.

Our ruling denying the petition for rehearing 1. upholds

the authority of the Court of Appeal and discourages the

flouting of the criminal justice system, 2. discourages felony

escape, 3. encourages voluntary surrender, 4. promotes the

orderly administration of justice, and 5. protects the people

from prejudice by the passage of time in the event of reversal

on appeal. Petitioner knew, or should have known, that his

flight could be viewed as a waiver or abandonment of a

statutory right to appeal. (Ortega-Rodriguez v. United States,

supra, 507 U.S. pp. 240 [120 L.Ed.2d at pp. 591-592].)

Petitioner places reliance on the recent per curium opinion

from division four of the court, People v. Kang (2003) 107

Cal.App.4th 43. The authorities relied upon by Kang, while

instructive, do not require that the appeal be reinstated. (See

Auto Equity Sales Inc. v. Superior court (1962) 57 Cal.2d

450, 455.) Moreover, we strongly disagree with Kang’s

assumption that it is speculative that “dismissal discourages

escape.” (People v. Kang, supra, 107 Cal.App.4th at p. 52.)

To the contrary, and as the Attorney General points out, the

Kang decision gives the defendant in a case such as this

incentive to flee because by doing so he has little to lose.

B-4

The petition for rehearing is denied.

NOT TO BE PUBLISHED.

YEGAN, J.

We concur:

GILBERT, P.J.

PERREN, J.

B-5

Ken W. Riley, Judge

Superior Court of Ventura

Roger Jon Diamond, for Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson,

Chief Assistant Attorney General, Pamela C. Hamaniaka,

Senior Assistant Attorney General, Jeffrey B. Kahan, Joseph

P. Lee, Deputy Attorneys General, for Plaintiff and

Respondent.

SDP

APPENDIX C

Court of Appeal, Second Appellate District,

Division Six - No. B166741

S116867

IN THE SUPREME COURT OF CALIFORNIA

En Banc

THE PEOPLE, Plaintiff and Respondent,

¥.

ANDREW STUART LUSTER, Defendant and Appellant.

Petition for review is DENIED

SUPREME COURT

FILED

SEP 10 2003

Entered 09/10/2003

Frederick K. Ohlrich Clerk

DEPUTY

GEORGE

Chief Justice