Metropolitan News-Enterprise


Thursday, July 3, 2003


Page 1


Court of Appeal Cites ‘Disentitlement’ Doctrine, Won’t Reinstate Appeal by Andrew Luster


By a MetNews Staff Writer


The Court of Appeal for this district yesterday denied a rehearing of its dismissal of an appeal by returned fugitive Andrew Luster.

Luster’s capture by bounty hunters and subsequent deportation from Mexico does not alter the fact that he fled and was still at large when his appeal was dismissed, Justice Kenneth Yegan wrote in an unpublished opinion for Div. Six.

Luster was convicted in absentia on 86 counts of sex and drug violations based on evidence, including videotapes made by the defendant himself, that he assaulted unconscious women at his beach house after giving them GHB, a drug that rendered them unconscious.

The trial judge declined to delay proceedings after Luster, who had posted $1 million bail and was on electronically monitored house arrest, disappeared. He was sentenced to 124 years in prison.

His attorney, Roger Diamond, filed an appeal. But the Court of Appeal dismissed it on June 10, citing the fugitive disentitlement doctrine.

The doctrine prevents a litigant from using the court system for his or her benefit while avoiding prosecution or imprisonment, and has been applied to various types of proceedings initiated by a fugitive, including criminal appeals and writ petitions and civil suits unrelated to the criminal proceedings.

In seeking to have the appeal reinstated, Diamond argued that any affront caused by Luster was to the dignity of the trial court, rather than the Court of Appeal. But Yegan, who authored the opinion when the panel cut Luster’s bail from $10 million to $1 million more than three years ago, said that Diamond was taking a “myopic view of the record.”

Luster, the justice reasoned, had taken advantage of the appellate court’s conclusion that the original bail was excessive.

Yegan wrote:

“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.”

In urging reinstatement, Diamond cited People v. Kang (2003) 107 Cal.App.4th 43, in which this district’s Div. Four allowed a defendant convicted of multiple violent felonies to have his appeal reinstated following extradition from South Korea.

Reinstatement under Kang and the cases it cites is discretionary, Yegan noted. “Moreover, we strongly disagree with Kang’s assumption that it is speculative that ‘dismissal discourages escape.’...To the contrary, and as the Attorney General points out, the Kang decision gives the defendant in a case such as this the incentive to flee because by doing so he has little to lose.”

Diamond, whose June 20 petition for review of the dismissal by the state Supreme Court was found to be premature, said he will file a new petition next week. “I think we need some law from the Supreme Court” as to when “disentitled” fugitives may have their appeals reinstated.

Diamond, who successfully argued before the same panel—Yegan, Presiding Justice Arthur Gilbert, and Justice Steven Perren—in getting the appeal reinstated, said he understood that the justices felt “scorned” and “embarrassed” by Luster’s flight. But that should not have been the overriding factor in deciding whether to allow him to appeal the conviction, the attorney told the METNEWS.


Copyright 2003, Metropolitan News Company