Tuesday, January 22, 2002
Defendant Who Took Child to Foreign Country May Be Tried Here—C.A.
By a MetNews Staff Writer
A defendant convicted in a foreign court of removing a child from parental custody may be tried in California for continuing to detain the child after the foreign conviction, the Sixth District Court of Appeal has ruled.
The justices reinstated charges that Dragisa Lazarevich retained and concealed his two children in violation of their mother’s custody rights. The opinion, by Monterey Superior Court Judge Robert O’Farrell, sitting on assignment, was filed Dec. 20 and certified Friday for publication.
Prosecutors claim that Lazarevich picked up his two children for a scheduled overnight visit in 1989, then took them to his home in the Yugoslav republic of Serbia with the aid of forged passports. He was picked up by Serbian officials in 1991, after California and federal arrest warrants had been issued, tried and sentenced in 1992 to pay a fine or spend a week in jail.
The children remained with their father in Yugoslavia, however, until 1995, when they were taken into custody by local officials. They were returned to the United States through diplomatic efforts when American citizens were evacuated prior to the outbreak of the Kosovo war.
Lazarevich was later extradited to the United States, imprisoned for passport fraud and agreed to accept deportation. He returned to the United States in late 1997, was arrested near his wife’s Santa Cruz home, was convicted of reentering the country illegally.
After being sentenced on that charge, he brought a speedy trial demand on the outstanding state charges pursuant to Penal Code Sec. 1381.
Lazarevich moved to dismiss on double-jeopardy grounds. While constitutional protection against being tried twice for the same crime does not apply where the first trial occurred in a foreign country, Penal Code Sec. 793 provides that “[w]hen an act charged as a public offense is within the jurisdiction of another State or country, as well as of this State, a conviction or acquittal thereof in the former is a bar to the prosecution or indictment therefor in this State.”
Santa Cruz Superior Court Judge Heather Morse agreed and dismissed. She reasoned that since Serbian law, like California law, “punishes both the taking and retention” of children from a parent’s legal custody, the prior conviction barred any prosecution in California.
But O’Farrell, writing for the appellate panel, reasoned that Lazarevich was only tried in Serbia for having kidnapped his children and detained them through the date of his conviction. If he willfully detained the children and concealed then from their California-resident mother from 1992 to 1995, O’Farrell said, that was a California crime for which he was not tried in Serbia.
The jurist also rejected the argument that any such offense would have been committed solely in Serbia and thus be outside California’s jurisdiction. He cited a 1984 California law that makes the taking of a child from parental custody, or the retention of any such child, a crime regardless of where it occurs “if the child was a resident of California or present in California at the time of the taking.
The case is People v. Lazarevich, 02 S.O.S. 275.
Copyright 2002, Metropolitan News Company