Monday, April 15, 2002
Page 3
Appeal Ordered Dismissed if Medical Marijuana Advocate Remains Fugitive
By KENNETH OFGANG, Staff Writer/Appellate Courts
Fugitive medical marijuana advocate and ex-gubernatorial candidate Steven Wynn Kubby cannot appeal his misdemeanor drug convictions unless he returns to California within 30 days, the Third District Court of Appeal has ruled.
The court Thursday gave Kubby a month to return to the state. If he does not comply, his appeal will be dismissed, the court held in an opinion by Justice Daniel Kolkey.
Kubby can move for a stay of his pending 120-day jail term once he returns, the justice said.
Kubby, who is living near Vancouver, B.C., was the Libertarian candidate for governor in 1998.
A Placer Superior Court jury found him guilty of possession of two controlled substances, psilocyn and mescaline, in December 2000. Charges of cultivating marijuana, possessing it for sale, and conspiracy—brought against Kubby and his wife—were dismissed after jurors deadlocked.
Judge John L. Cosgrove reduced the convictions on the lesser charges to misdemeanors, pursuant to Penal Code Sec. 17(b), and sentenced Kubby to 120 days in jail as a condition of probation. He was given until last July 20 to surrender, and a warrant was issued after he failed to do so.
Kubby was a key supporter of the medical-marijuana law, Proposition 215, which he raised as a defense at the trial. He suffers from adrenal cancer, and his doctors have said that his life would be at risk if he were incarcerated and denied access to marijuana.
Prosecutors argued that the amount of marijuana seized from Kubby’s residence was far more than he needed for any personal use, and that Proposition 215 was no defense to the charge that he had sold marijuana to “cannabis clubs” for distribution to other medical users.
They are appealing the reduction of the mescaline conviction to a misdemeanor, saying the judge erred in determining the crime was a wobbler rather than a felony. Kubby cross-appealed, arguing among other things that the search was illegal and that he is entitled to a no-jail sentence under Proposition 36.
But Kolkey said misdemeanor appeals, like those from felony convictions, are subject to what is sometimes called the fugitive disentitlement doctrine. A person convicted of a crime cannot appeal while avoiding the court’s jurisdiction, the justice explained, because “a fugitive has no right to ask the courts to review the very judgment that the fugitive flaunts.”
Kolkey rejected the argument that because misdemeanor defendants are not required to attend court proceedings, a misdemeanor defendant who has left the jurisdiction rather than serve a jail sentence is merely a probation violator and not a fugitive.
The rule, the justice explained, is not premised on the obligation to appear, but on the “broader doctrine” that it would be a “farce” for a court to hear an appeal by a person over whom the court is unable to enforce its judgment.
“We see no reason why this rationale should not apply to a misdemeanant who flees from the jurisdiction to avoid the incarceration term of his probation,” Kolkey wrote. “A misdemeanant who places himself outside the court’s control to avoid a jail term has prevented the effective exercise of the court’s jurisdiction and should not be permitted to invoke it to challenge the judgment he flaunts.”
The justice went on to conclude that the fact that Kubby was cross-appealing, as opposed to having appealed initially, was of no relevance. He distinguished a case involving fugitive film director Roman Polanski, which held that the doctrine did not prevent him from defending himself in a lawsuit.
A cross-appeal is not merely a defensive measure, Kolkey said, because it seeks affirmative relief.
Kubby’s medical condition, Kolkey went on to say, is no basis for an exception to the doctrine. The defendant had alternatives to becoming a fugitive, the justice suggested, such as moving for a stay of the jail term pending appeal—which the trial judge had said he would consider, Kolkey pointed out.
The case is People v. Kubby, 02 S.O.S. 1750.
Copyright 2002, Metropolitan News Company