Metropolitan News-Enterprise


Friday, June 21, 2002


Page 3


S.C. Won’t Review Ruling on Fugitive Medical-Marijuana Backer


By a MetNews Staff Writer


The state Supreme Court has declined to review a ruling that requires a fugitive medical marijuana advocate and former gubernatorial candidate to return to California or have his appeal from misdemeanor drug convictions dismissed.

Justices at Wednesday’s conference voted 6-0 to let stand the Third District Court of Appeal’s decision in the case of Steven Wynn Kubby. Justice Joyce L. Kennard was absent.

Kubby, the 1998 standard-bearer of the Libertarian Party, was sentenced to 120 days in jail for possession of two controlled substances, psilocyn and mescaline, in December 2000. The Third District Court of Appeal ruled in April of this year that the appeal would be dismissed if Kubby did not return within one month.

Kubby has been living near Vancouver, B.C. since failing to surrender almost a year ago.  Placer Superior Court Judge John L. Cosgrove imposed the sentence after jurors convicted Kubby on the two charges but deadlocked on additional allegations of cultivating marijuana, possessing it for sale, and conspiracy.

Kubby’s wife was also charged in the counts on which jurors could not agree. Those charges were dismissed by Cosgrove, who reduced the convictions on the lesser charges to misdemeanors, pursuant to Penal Code Sec. 17(b).

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 Justice Dan Kolkey, writing for the Court of Appeal, 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 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.

The Court of Appeal also held that the fact that Kubby was cross-appealing, as opposed to having appealed initially, was of no relevance. Kolkey distinguished a case involving fugitive film director Roman Polanski, who won a ruling 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, 97 Cal.App.4th 619.


Copyright 2002, Metropolitan News Company