People v. Kelly, Cr. 6376

• Citation: 261 Cal.App.2d 708,68 Cal.Rptr. 337
• Decision Date: 01 May 1968
• Docket Number: Cr. 6376
• Court: California Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. George KELLY, aka Lester Heitzmann, Defendant and Appellant.

Page 337

68 Cal.Rptr. 337

261 Cal.App.2d 708

The PEOPLE of the State of California, Plaintiff and Respondent, v. George KELLY, aka Lester Heitzmann, Defendant and Appellant.

Cr. 6376.

Court of Appeal, First District, Division 3, California.

May 1, 1968.

Lois Prentice, San Francisco, for appellant.

Thomas C. Lynch, Atty. Gen., of the State of California, Robert R. Granucci, Lawrence R. Mansir, Deputy Attys. Gen., San Francisco, for respondent.

SALSMAN, Associate Justice.

Appellant was charged with violation of Penal Code section 4530 (escape from a prison camp). He was found guilty by a jury. On appeal he questions certain instructions given to the jury, challenges the sufficiency of the evidence to show intent to escape, and claims error in the trial court's admission of his prior felony convictions to impeach his testimony when he became a witness in his own behalf. We have examined the record and considered each of these contentions, but find no error. Accordingly, we affirm the judgment.

Appellant was previously convicted of second degree robbery and sentenced to prison. Later he was convicted of escape from prison and was returned to confinement. At the time of the events with which we are here concerned he was held in Conservation Camp #73 in Tulare County. The camp is a fire-fighting facility located on about one care of ground. There are no fences surrounding the camp, but signs mark the camp limits, and inmates are not permitted beyond such limits, except by permission, or to carry out their fire-fighting duties.

Appellant's alleged escape took place on the night of May 16, 1965. Joseph Duffy, an officer in the camp, testified that at about 9:20 p.m. appellant came to him for treatment of an upset stomach, and was given medicine. About 10 minutes later Duffy made a check of the camp's inmates. Appellant was missing. Duffy toured the perimeter of the camp shouting appellant's name, but could not locate him. Later, one of the fire-fighting crews returned to the camp but appellant was not among these men. Duffy did not see appellant until more than six months later. Prison records in evidence showed that appellant was at Conservation Camp #73 on May 16, 1965, but missing from that date until November 22, 1965.

An employee of the Monterey County sheriff's office testified that on November 22, 1965 he went to Reno, Nevada to pick up appellant, who was then in custody of a Nevada sheriff, and that he returned with his prisoner to Monterey County.

Appellant testified that on the night of May 16, 1965 he became ill and went to an officer of the camp for medicine. He said he was then called out on a fire but later returned. After his return he remembered that two fifths of whisky which were brought in by a visitor had been cancealed on the premises. He found one of the bottles of whisky, and sat down and drank most of it. He said the whisky affected him greatly because he had not had a drink in ten years. Then he began walking. He testified he did not know which way he went when he left the camp, but that when he 'came to' the following evening at about 6 o'clock he was near the City of Visalia, far from camp, but did not know how he got there. He claimed that he was inside the camp limits when he drank the whisky, that he didn't remember leaving, and that he had no intention of leaving when he began drinking. He did not return to camp, however, but continued on until he reached the City of Reno, where he was apprehended about six months later.

The trial judge instructed the jury as follows:

'California Penal Code Section 4530 provides that every person confined in a State prison forestry camp under the custody of prison officials, officers and employees who escapes or attempts to escape therefrom is guilty of a felony.

'An escape is defined as an unlawful departure from the limits of custody.' 'In every crime or public offense there must exist a union or joint operation of act and intent.'

'Guilt of the crime of escape requires the intent to exceed the limits of the lawfully prescribed custody.'

'You are instructed that a prison camp inmate remains a prisoner and under the custody of the prison camp guards at all times and that if he leaves the limits of his lawful custody and forms the general intent to escape, whether such intent was formed before, at the time of or after he exceeds the limits of his lawful custody, he is guilty of escape.'

Appellant's strongest objections focus on the final instruction quoted above. He argues that this instruction took from the jury the question of what the limits of his custody were, and permitted the jury to find him guilty if at any time, whether before or after crossing the camp's boundary, he formed a general intent to escape. We see no error in the instruction.

Appellant interprets the phrase '* * * limits of his lawful custody * * *' as used in the instruction, to mean the geographical boundaries of the Conservation Camp, and argues that, to be guilty of escape he must have entertained a general intent to escape at the moment he crossed the boundary line. The Attorney General, on the other hand, contends that appellant could properly be found guilty of escape if he formed a general intent to escape before or after leaving the limits of the camp. The question presented is not a new one. Prior decisions of the Court of Appeal have settled the law contrary to appellant's contention. Thus, in People v. Crider, 76 Cal.App. 101, 244 P. 113, the defendant was at work outside the prison walls. By permission, he started back to the prison for medical treatment. En route he 'changed his mind' and escaped. In Crider, the defendant argued, as appellant does here, that he had no intent to escape when he left the prison camp and hence there was no proof of an essential element of the crime. His contention was rejected. The court said (at page 104, 244 P. at page 114): 'Some mention is also made by the defendant that there is evidence to the effect that when he departed from said prison camp his intention was to return to the prison to obtain medical treatment, but that on the way back to the prison he changed his mind and made his escape, and he claims, therefore, it was not proved that he escaped from the prison camp. We think it would make no difference when he conceived the intent to escape, because, in contemplation of law, he was at all times a prisoner and under the surveillance of the prison guards.'

In People v. Hadley, 88 Cal.App.2d 734, 199 P.2d 382, the defendant was outside camp boundaries by permission and...