Extradition is the legal procedure involving one sovereign handing over a fugitive from justice to another sovereign, upon request of the latter sovereign and so that the latter sovereign can criminally prosecute the fugitive from justice.
A "sovereign," for purposes of this article, means a U.S. state, such as the state of California. A national government is also a sovereign, but for brevity, we are only going to discuss California extradition law.
For example, if David lives in the state of Arizona, and David has a felony warrant for his arrest from the state of California for the murder of Goliath, then the state of California will request that Arizona hand over David to California, so that David may be prosecuted in California for Goliath’s murder.
Extradition laws are reciprocal for almost all states. In other words, almost every state, including California, has an agreement with every other state, to return a fugitive from justice to the state where the fugitive committed a crime, so that the fugitive may be prosecuted in that state. This state-reciprocal extradition agreement is found under the Uniform Criminal Extradition Act (UCEA).
Two Types of Extradition: There are two types of California extradition: extradition of a fugitive to California from another state, and extradition of a fugitive from California back to California. The state where the fugitive is located is known as the “asylum” state, and the state where the defendant committed her crime is known as the “demanding” state.
For example, if California wants to extradite David from Arizona to prosecute him for Goliath's murder, then California will "demand’ of Arizona that it delivers Goliath to California for Goliath’s prosecution in California.
Note: A person may be extradited to a state where she committed a crime, committed a probation violation, committed a bail violation, or where she escaped from jail or prison.
Penal Code 1558: California extradition laws are found at California Penal Code Section 1548 - 1558. These laws govern the rules for California extradition.
Extradition Process: A state will not extradite every person that has a warrant for his or her arrest from another state. The asylum state decides whether it is appropriate to extradite a fugitive from justice before it extradites a person. In deciding the appropriateness of extraditing a fugitive from justice, California will look to the severity of the offense alleged in the demanding state.
For example, if defendant who is pulled over for driving without a license in California, and the citing officer discovers that the driver has a warrant from Nevada for the same, then the citing officer may arrest the defendant for his out-of-state warrant. But, in this scenario, the fugitive from justice is not likely to be extradited on the misdemeanor warrant because driving without a license is a minor offense, and the extradition process is timely and expensive.
Extradition Formality: The formalities of extradition must be followed, or the defendant must be released from custody. These formalities are listed in PC 1548-1558. For brevity, those formalities include, but are not limited to, the following:
a) A proper demand from the demanding state that includes the name of the offense and a probable cause statement related to the fugitive’s out-of-state prosecution,
b) The demanding state sending of a person to retrieve the fugitive from justice within 30 days of the demand,
c) Proper identification of the alleged fugitive from justice, and
d) A statement of probable cause, signed by an officer of the law or court from the demanding state.
Note: Flaws in the extradition warrant, such as a vague description of the wanted person, can invalidate the extradition request.
Extradition Hearing: The fugitive is entitled to an attorney if she requests a hearing on the issue of extradition. At the hearing, the defendant may fight extradition, in which case there will be a hearing on the issue, or she may waive extradition and thereafter be delivered immediately to the demanding state.
Contested Hearing: If the fugitive objects to her extradition to the demanding state, then the asylum state will hold an extradition hearing. At the hearing, the criminal court judge will consider the probable cause statement of the demanding state, the validity of the warrant for extradition, and the severity of the alleged offense in relationship to the cost of delivering the fugitive to the demanding state. The judge may also allow the defendant to post bail, or release the fugitive on her own recognizance with an order to report to the demanding state to handle her criminal matters in that state.
Note: Bail or Own Recognizance Release are unlikely options in most extradition cases. This is because the fugitive is already presumed to be a flight risk. However, every case is different, and if the charges are not serious or violent from the demanding state, then the fugitive will have a stronger argument for release on bail or OR. This is especially true if the fugitive did not even know that there was a warrant for her arrest in the demanding state.
Criminal Charges in Two or More States: If a fugitive is incarcerated in the asylum state at the time the extradition warrant from another state is delivered, then the asylum state and the demanding state may work out an agreement as to when the fugitive will be delivered to the demanding state (i.e., before prosecution of a criminal charge in the asylum state, after jail term served in the asylum state, etc.).
Criminal Charges Not Covered in the Warrant: Once the demanding state receives the fugitive from justice, then that state may prosecute other criminal charges, regardless of whether those additional criminal charges were noted in the extradition warrant.
For example, if David flees the state of California after being charged with the attempted murder of Goliath, and California successfully has David extradited back to California, the David may be prosecuted for the attempted murder of Goliath. In addition, once California has jurisdiction of David, then California can also prosecute David for his California misdemeanor DUI charge from several years prior to his attempted murder of Goliath. This is true even if the extradition warrant for David never mentions the DUI allegations.
Jail Transfers: The fugitive who is ordered returned to the demanding state after a loss at the extraction hearing, or a waiver of extradition, will have a long jail-hopping journey back to the demanding state. Essentially, the fugitive from justice will be transported to the demanding state by multiple agencies over a long period of time. The farther the demanding state from the asylum state, the longer the trip in most circumstances. It is not uncommon for an extradited person to visit a dozen jails over a long distance.
Note: If the charges are very serious, such as murder in the first degree, the demanding state might make a special trip to the asylum state for a special expedited trip back to the asylum state.
Defenses to Extradition: The most common defenses to an extradition warrant include: 1) showing that the description in the extradition warrant is too vague to properly identify the alleged defendant; 2) the extradition paperwork is not properly filled out (i.e., probable cause statement not signed, lack of Governor’s warrant if required, probable cause statement fails to state a criminal offense, etc.), 3) argument that fugitive did not know she was a fugitive in an effort to secure bail or OR release, 4) weighing of the pros and cons related to possibly “waiving” extradition, and more.
California Extradition Laws (Abbrev.)
PC 1548.2: No demand for the extradition of a person charged with crime in another State shall be recognized by the Governor unless it is in writing alleging that the accused was present in the demanding State at the time of the commission of the alleged crime, and that thereafter he fled from that State. Such demand shall 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; or such demand shall be accompanied by a copy of a judgment of conviction or of a sentence imposed in execution thereof, together with a statement by the executive authority of the demanding State that the person claimed has escaped from confinement or has violated the terms of his bail, probation or parole. The indictment, information, or affidavit made before the magistrate must substantially charge the person demanded with having committed a crime under the law of that State; and the copy of indictment, information, affidavit, judgment of conviction or sentence must be certified as authentic by the executive authority making the demand (PC 1548.2).
PC 1548.4: When a demand is made upon the Governor of this State by the executive authority of another State for the surrender of a person so charged with crime, the Governor may call upon the Attorney General or any district attorney in this State to investigate or assist in investigating the demand, and to report to him the situation and circumstances of the person so demanded, and whether he ought to be surrendered according to the provision of this chapter (PC 1548.4).
PC 1549: When it is desired to have returned to this state a person charged in this state with a crime, and the person is imprisoned or is held under criminal proceedings then pending against him or her in another state, the Governor of this state may agree with the executive authority of the other state for the extradition of the person before the conclusion of the proceedings or his or her term of sentence in the other state, upon the condition that the person be returned to the other state at the expense of this state as soon as the prosecution in this state is terminated (PC 1549 Abbrev.).
PC 1549.2: If a demand conforms to the provisions of this chapter, the Governor or agent authorized in writing by the Governor whose authorization has been filed with the Secretary of State shall sign a warrant of arrest, which shall be sealed with the State Seal, and shall be directed to any peace officer or other person whom he may entrust with the execution thereof. The warrant must substantially recite the facts necessary to the validity of its issuance… (PC 1549.2 Abbrev.).
PC 1550.1: No person arrested upon such warrant shall be delivered over to the agent of the executive authority demanding him unless he is first taken forthwith before a magistrate, who shall inform him of the demand made for his surrender, and of the crime with which he is charged, and that he has the right to demand and procure counsel. If the accused or his counsel desires to test the legality of the arrest, the magistrate shall remand the accused to custody, and fix a reasonable time to be allowed him within which to apply for a writ of habeas corpus (PC 1550.1 Abbrev.).
PC 1550.3: The officer or persons executing the Governor’s warrant of arrest, or the agent of the demanding State to whom the prisoner has been delivered may confine the prisoner in the jail of any county or city through which he may pass. The keeper of such jail must receive and safely keep the prisoner until the officer or person having charge of him is ready to proceed on his route. Such officer or person shall be charged with the expense of keeping the prisoner (PC 1550.3 Abbrev.).
PC 1551.2 (Abbrev.): At the initial appearance of a person arrested under Section 1551 or 1551.1, he shall be informed of the reason for his arrest and of his right to demand and procure counsel. If the person denies that he is the same person charged with or convicted of a crime in the other state, a hearing shall be held within 10 days to determine whether there is probable cause to believe that he is the same person and whether he is charged with or convicted of a crime in the other state…. (PC 1551.2 Abbrev.).
PC 1552: If at the hearing before the magistrate, it appears that the accused is the person charged with having committed the crime alleged, the magistrate must, by a warrant reciting the accusation, commit him to the county jail for such a time, not exceeding thirty days and specified in the warrant, as will enable the arrest of the accused to be made under a warrant of the Governor on a requisition of the executive authority of the State having jurisdiction of the offense, unless the accused give bail as provided in section 1552.1, or until he shall be legally discharged (PC 1552).
PC 1552.1 (Abbrev.): Unless the offense with which the prisoner is charged, is shown to be an offense punishable by death or life imprisonment under the laws of the state in which it was committed, or it is shown that the prisoner is alleged to have escaped or violated the terms of his parole following conviction of a crime punishable in the state of conviction by imprisonment for a term exceeding one year, the magistrate may admit the person arrested to bail by bond or undertaking, with sufficient sureties, and in such sum as he deems proper, conditioned upon the appearance of such person before him at a time specified in such bond or undertaking, and for his surrender upon the warrant of the Governor of this state…. (PC 1552.1 Abbrev.).
PC 1552.2: If the accused is not arrested under warrant of the Governor by the expiration of the time specified in the warrant, bond, or undertaking, a magistrate may discharge him or may recommit him for a further period of 60 days. In the latter event a justice of the Supreme Court or court of appeal or a judge of the superior court may again take bail for his appearance and surrender, as provided in Section 1552.1 but within a period not to exceed 60 days after the date of such new bond or undertaking (PC 1552.2).
PC 1553.2: The guilt or innocence of the accused as to the crime with which he is charged may not be inquired into by the Governor or in any proceeding after the demand for extradition accompanied by a charge of crime in legal form as above provided has been presented to the Governor, except as such inquiry may be involved in identifying the person held as the person charged with the crime (PC 1553.2).
PC 1555.2(d): Notwithstanding the provisions of subdivision (c), the district attorney may stipulate, with the concurrence of the other state, that the arrested person may be released on bail or own recognizance pending the arrival of duly accredited agents from the other state (PC 1555.2(d)).
PC 1556: After a person has been brought back to this State by extradition proceedings, he may be tried in this State for other crimes which he may be charged with having committed in this State as well as for the crime or crimes specified in the requisition for his extradition (PC 1556)
For more information about California extradition laws, including California Penal Code Sections 1548, 1548.2, 1555, and more. Contact our criminal defense lawyers today for a free consultation. Our team of highly qualified defense lawyers, including winning trial lawyers, represent all defendant's charged with misdemeanor or felony offenses in the Inland Empire, including the cities of Grand Terrace, Adelanto, Redlands, Fontana, Ontario, Rancho Cucamonga, San Bernardino, Yucaipa, Victorville, Riverside, and Chino. Call today!
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