I respectfully dissent to the majority’s holding that “defendants [have] not been substantially charged with a crime in Louisiana.” My colleagues have ignored the limitations on an asylum state’s powers of judicial examination in extradition proceedings established by the United States Supreme Court in Michigan v. Doran (1978) 439 U.S. 282 [58 L.Ed.2d 521, 99 S.Ct. 530].
In Michigan v. Doran, the high court held that only four matters may be considered by a court in the asylum state reviewing a request for release on *773habeas corpus. Those matters are derived from the extradition clause1 of the United States Constitution (art. IV, § 2, cl. 2) and from 18 United States Code section 31822 implementing the extradition clause. The court explained that “[w]hatever the scope of discretion vested in the governor of an asylum state . . ., the courts of an asylum state are bound by Art. IV, § 2, cf. Compton v. Alabama, 214 U.S. 1, 8 (1909), by § 3182, and, where adopted, by the Uniform Criminal Extradition Act. A governor’s grant of extradition is prima facie evidence that the constitutional and statutory requirements have been met. . . . Once the governor has granted extradition, a court considering release on habeas corpus can do no more than decide (a) whether the extradition documents on their face are in order; (b) whether the petitioner has been charged with a crime in the demanding state; (c) whether the petitioner is the person named in the request for extradition; and (d) whether the petitioner is a fugitive.” (439 U.S. at pp. 288-289 [58 L.Ed.2d at p. 527].)
Because defendants admit that they are the persons who took the children and whose extradition is sought by Louisiana, the only remaining questions are “whether the extradition documents on their face are in order” and “whether the petitioner has been charged with a crime in the demanding state.” The extradition documents on their face are in order, and defendants therefore confine their argument to a claim that they are not substantively charged with a crime.
The majority correctly notes that although California courts cannot inquire into the guilt or innocence of a person whose extradition is sought (Pen. Code, § 1553.2), nonetheless extradition documents must “substantially charge the person demanded with having committed a crime” under the laws of the demanding state. (Id., § 1548.2.) (Ante, p. 767.) My colleagues, however, confuse the question of whether defendants are substantially charged with a crime with the question of whether defendants are *774innocent. Whether a person is substantially charged with a crime against the laws of the demanding state “is a question of law and is always open upon the face of the papers to judicial inquiry, on an application for a discharge under a writ of habeas corpus.” (Roberts v. Reilly (1885) 116 U.S. 80, 95 [29 L.Ed. 544, 549, 6 S.Ct. 291], italics added.) “Any other judicial inquiry in the asylum state into the matter exceeds the court’s jurisdiction. [Citations.]” (In re Fabricant (1981) 118 Cal.App.3d 115, 120 [173 Cal.Rptr. 245].) By going beyond the “face of the papers,” my colleagues probe too far.
The majority notes that People ex rel. Lewis v. Com’r. of Correction (1979) 100 Misc.2d 48 [417 N.Y.S.2d 377, 379-380], held that the asylum state may inquire whether the act alleged in the extradition papers constitutes a crime according to the statutory and decisional law of the demanding state. {Ante, p. 768, fn. 9.) This inquiry is necessary in order to discover whether the extradition papers substantially charge the person demanded with having committed a crime under the laws of the demanding state. (See Pen. Code, § 1548.2.) For example, in Application of Varona (1951) 38 Wn.2d 833 [232 P.2d 923], a case cited by the majority, the extradition documents indicated that defendant was a partner charged with stealing money from his own partnership. (Ante, p. 767.) Examination of the statutory and decisional law of the demanding state (California) revealed that the act charged was not in the abstract a crime under California law at that time.3 When defendants in the instant case argued that the extradition documents did not substantially charge them with the crime of kidnapping because they had authority to take the child, they asked the court to look beyond the extradition documents and the statutory and decisional law of both Louisiana and California to determine the status of the alleged crime in general. Instead, they requested that the court take cognizance of a particular document to determine whether they, individually, were “charged with a crime.” That requested consideration clearly involved contemplation of an individual defense to an otherwise permissible charge, something the court has no power to examine in extradition proceedings. In sum, defendants are arguing their innocence, not challenging the sufficiency of the extradition request. The California custody order that they offer thus supports an affirmative defense which may be considered only by the Louisiana court, not the California court.
My colleagues conclude that their holding here is in “complete harmony” with Michigan v. Doran, supra, 439 U.S. 282, because a custody ruling is “at least as verifiable as the other matters referred to in the Supreme Court’s *775opinion. ...” (Ante, p. 770.) The majority has put the cart before the horse. What the Supreme Court in Michigan v. Doran held was that there are only four matters that can be considered in habeas corpus extradition proceedings. Although the high court added that these four matters “are historic facts readily verifiable” (439 U.S. at p. 289 [58 L.Ed.2d at p. 527]), it did not hold that a court may consider any other matters (such as asylum state custody rulings or defenses to the crime charged) which may also be considered “historic facts readily verifiable.” The four areas of inquiry described by the court were not merely illustrative. They were meant to define and restrict the actual boundaries of permissible inquiry. Thus, the trial court clearly exceeded its jurisdiction in considering the California custody ruling because that was not a matter falling under one of Michigan v. Doran’s four categories.
Interstate extradition is meant to be a summary executive proceeding; the extradition clause “never contemplated that the asylum state was to conduct the kind of preliminary inquiry traditionally intervening between the initial arrest and trial.” (Michigan v. Doran, supra, 439 U.S. at p. 288 [58 L.Ed.2d at p. 527].) Under the constitutional provision, extradition is not a matter of mere comity, but instead is an absolute right of the demanding state and a duty of the asylum state. (In re Russell (1974) 12 Cal.3d 229, 234 [115 Cal.Rptr. 511, 524 P.2d 1295].) “[A]n asylum state does not refrain from undertaking an examination of a fugitive’s guilt merely to avoid procedural delays or complications in the rendition procedure. Rather it does so in recognition of the principle that such an inquiry ' “into the merits of the charge against the prisoner or into the motives which inspired the prosecution in the demanding State . . . exceeds its authority under the constitutional and statutory provisions regulating the extradition of criminals. The mandate of the Constitution requires ‘a person charged in any State with a crime’ to be delivered by the asylum State to the State whose laws he has violated. That State alone can determine the guilt or innocence of the offending party.”’ (In re Kimler, supra, 37 Cal.2d at p. 572 [233 P.2d 902].)” (In re Golden (1977) 65 Cal.App.3d 789, 795-796 [135 Cal.Rptr. 512].) The majority and trial court here have completely ignored the constitutional and statutory limitations on an asylum state’s role in requests for extradition.
As noted, Richard’s claim of entitlement to sole custody of his children based on a 1981 California custody order4 is an affirmative defense to the *776kidnapping charge, which must be asserted in a Louisiana court. The asylum state, California, was without jurisdiction to inquire into the guilt or innocence of the person whose extradition was sought; that decision may be reached only by the demanding state. (Pen. Code, § 1553.2; In re Russell, supra, 12 Cal.3d at pp. 233-234.) For the foregoing reasons I would hold that the trial court erred in taking judicial notice of the California custody order, and I would grant the petition for writ of mandate.
Petitioner’s application for a rehearing was denied June 5, 1986. Lucas, J., and Panelli, J., were of the opinion that the application should be granted.
“A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up to be removed to the State having Jurisdiction of the Crime.”
“Whenever the executive authority of any State or Territory demands any person as a fugitive from justice, of the executive authority of any State, District or Territory to which such person has fled, and produces a copy of an indictment found or an affidavit made before a magistrate of any State or Territory, charging the person demanded with having committed treason, felony, or other crime, certified as authentic by the governor or chief magistrate of the State or Territory from whence the person so charged has fled, the executive authority of the State, District or Territory to which such person has fled shall cause him to be arrested and secured, and notify the executive authority making such demand, or the agent of such authority appointed to receive the fugitive, and shall cause the fugitive to be delivered to such agent when he shall appear. If no such agent appears within thirty days from the time of the arrest, the prisoner may be discharged.”
A later California case, People v. Sobiek (1973) 30 Cal.App.3d 458 [106 Cal.Rptr. 519], held that a partner may be guilty of embezzling or stealing partnership property.
On April 11, 1984, in California, Judith initiated an order to show cause to set aside the custody order of February 11, 1981, which awarded sole custody to Richard. The trial court reaffirmed the 1981 order on May 31, 1984. Judith appealed, and the Court of Appeal on rehearing on February 25, 1986, reversed the 1984 order and remanded the matter for further proceedings. Although there now exists a question about the current validity of *776Richard’s 1981 custody order, the order apparently was valid on March 9, 1984, when Richard took his children from Louisiana. In my opinion, the custody order and its questioned validity are not in any event relevant to the resolution of this extradition case, however, because the custody order is not a matter that can be considered in habeas corpus extradition proceedings pursuant to Michigan v. Doran.