People v. Francisco

• Decision Date: 07 July 1964
• Docket Number: Cr. 3496
• Citation: People v. Francisco, 39 Cal.Rptr. 503, 228 Cal.App.2d 355 (Cal. App. 1964)
• Court: California Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Gary Richard FRANCISCO, Defendant and Appellant.

Page 503

39 Cal.Rptr. 503

228 Cal.App.2d 355

The PEOPLE of the State of California, Plaintiff and Respondent, v. Gary Richard FRANCISCO, Defendant and Appellant.

Cr. 3496.

District Court of Appeal, Third District, California.

July 7, 1964.

Harry A. Ackley, Woodland, for appellant.

Stanley Mosk, Atty. Gen., by Doris H. Maier, Asst. Atty. Gen., Sacramento, for respondent.

PIERCE, Presiding Justice.

Defendant appeals from judgment (with sentence to a state prison term) following a court conviction of the crime of escape under Penal Code, § 4532, a felony. His contentions on appeal are (1) that there was no evidence proving a necessary element of the offense charged; (2) that he had no trial on the issue of his guilt; and (3) that he was inadequately represented by appointed counsel. We sustain the first contention, disallow the other two.

Defendant was arraigned under an information stating in part: 'The said GARY RICHARD FRANCISCO is accused by the District Attorney of Butte County, by information, found this 11th day of June, 1963, of the crime of violation of the provisions of Section 4532 of the Penal Code of the State of California, committed as follows: The said GARY RICHARD FRANCISCO did on or about the 23d day of May, at Butte County and State of California, and before the filing of this information, wrongfully, willfully, and unlawfully, while being confined in the Butte County Jail, after having been convicted of violation of Section 484-488 of the Penal Code, escape from the Butte County Hospital, while awaiting treatment; all of which is contrary * * *.' (Emphasis supplied.)

Defendant was arraigned, asked for and was assigned counsel to represent him, and pleaded not guilty. ¹ When the case was called for trial a jury was waived and the defendant and prosecuting attorney stipulated that the matter be tried upon the transcript of the evidence taken at the preliminary hearing before the committing magistrate. It was solely upon this evidence that the superior court made its determination of guilt.

The transcript showed (through the testimony of Deputy Sheriff Horrell) that defendant and another 'prisoner' had been taken by Horrell from the Butte County Jail to the county hospital for treatment. Left unattended briefly defendant departed from the building and ran out onto the grounds. Horrell gave chase, called to defendant to stop and fired two warning shots. Defendant stopped and was apprehended.

There was no proof that defendant had been convicted of petty theft as charged in the information; nor was there proof that he had been convicted of any other misdemeanor; nor was there proof that he had been arrested, booked or charged with any other misdemeanor. Section 4532 of the Penal Code then provided (and now provides) in part: 'Every prisoner arrested and booked for, charged with, or convicted of a misdemeanor who is confined in any county * * * jail * * * or who is in the lawful custody of any officer or person * * * and who thereafter escapes or attempts to escape * * * is guilty of a felony * * *.'

The absence of proof of imprisonment was noted by the committing magistrate. The district attorney made no effort to supply the deficiency by submission of the record of the charged petty theft conviction or otherwise. He stated he considered sufficient the testimony of the officer that he had had charge of the prisoners and was taking them from the jail to the hospital, plus the disputable presumption that an official duty was being lawfully performed. When this was stated, the magistrate, addressing defendant's counsel (who also represented him at the trial), asked, 'Is that agreeable with you?' to which the attorney replied, 'I am certainly not going to stipulate to it, Your Honor.' Nevertheless, the omission was neither remedied then nor was the evidence supplied when the proceedings were had in the superior court. (There is in the transcript of the preliminary hearing a conversation between the magistrate and defense attorney in which the former, speculating upon the matter of possible release on bail, asked whether defendant was still serving sentence. The attorney replied he 'understood' that he was.)

As shown above, the elements of the crime of escape under Penal Code, § 4532 are:

(1) That the accused had been either arrested and booked for, or charged with, or convicted of, a misdemeanor;

(2) That he had been either confined in jail, or placed in the lawful custody of an officer;

(3) That under conditions (1) and (2) he escaped, or attempted escape, from said jail or custody.

It is elementary that '[i]n every prosecution for crime, it is necessary to established the corpus delicti, i. e., the body or elements of the crime.' (1 Witkin, California Crimes, sec. 88, p. 84.) The burden is upon the prosecution to prove beyond reasonable doubt every essential element of the crime of which the defendant is charged. (People v. Borchers, 50 Cal.2d 321, 325 P.2d 97.)

It has also been held that a person cannot be convicted of an offense (other than a necessarily included offense) not charged against him by indictment or information. (People v. Feldman, 171 Cal.App.2d 15, 23, 339 P.2d 888.)

In the early case of People v. Ah Teung, 92 Cal. 421, 28 P. 577, 15 L.R.A. 190, it was held that a departure from an unlawful imprisonment or custody is not an escape. The rule of Ah Teung was followed in People v. Clark, 69 Cal.App. 520, 522, 231 P. 590. In People v. Hinze, 97 Cal.App.2d 1, 217 P.2d 35, however, the majority of this court (with Justice Peek dissenting) said, 97 Cal.App.2d on page 5, 217 P.2d on page 37, that 'it does not follow that a person who has been wrongfully imprisoned may always free himself therefrom with impunity.' And the court distinguished between an imprisonment without any process and wholly without authority of law and imprisonment under a process which is simply irregular in form. (See also People v. Armstrong, 188 Cal.App.2d 745, 749, 10 Cal.Rptr. 618.)

There was here, of course, evidence that while defendant was in custody he departed. There was, however, no direct proof whatever that such custody was under any color of process.

The Attorney General cites People v. Quisenberry, 151 Cal.App.2d 157, 311 P.2d 99, a prosecution for the taking of an automobile without the owner's consent. The taking was during the course of an attempt by defendant to escape from juvenile hall. Objection was made to the admission of evidence of the escape as constituting a totally different offense. Answering the contention the court stated on page 164 of 151 Cal.App.2d, on page 104 of 311 P.2d: 'Appellant is presumed to have been held lawfully by the prison in which he was confined.' And the court cited in support of that statement section 1963 of the Code of Civil Procedure, subdivision 15, creating a disputable presumption '[t]hat official duty has been regularly performed,' and subdivision 33, '[t]hat the law has been obeyed.' Also cited was People v. Citrino, 46 Cal.2d 284, 287, 294 P.2d 32.

The Attorney General relies upon that case and also upon People v. Armstrong, supra, 188 Cal.App.2d 745, 10 Cal.Rptr. 618, as supporting his proposition that the presumption that custody is lawful extends also to a presumption that imprisonment was by color of process. These cases do not furnish that support.

Lawful custody is one element of the statutory crime of 'escape;' imprisonment as the result of a misdemeanor 'arrest and booking,' 'charge,' or 'conviction' is another. The assumption that because a man is in lawful custody it is for one of these three causes is a non sequitur. (He may, for example, be in lawful custody as a material witness (Pen.Code, § 881), or under a contempt order, or for alleged insanity, or for narcotic addiction.)

The two cases cited by the Attorney General will illustrate this distinction. In Quisenberry, supra, the defendant had not been charged with an escape and proof of the escape was not an element of the crime. Moreover, there had been proof of imprisonment under process. In Armstrong, supra, the facts were similar to the facts here in all save one significant respect. There the defendant had escaped while being taken to a hospital by an officer. But there (unlike the case at bench) proof had been made that a misdemeanor sentence was being served by the defendant at the time...