People v. Perez, Cr. 20047

• Decision Date: 24 March 1972
• Docket Number: Cr. 20047
• Citation: 24 Cal.App.3d 340,100 Cal.Rptr. 834
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Manuel PEREZ, Defendant and Appellant.

Page 834

100 Cal.Rptr. 834

24 Cal.App.3d 340

The PEOPLE of the State of California, Plaintiff and Respondent, v. Manuel PEREZ, Defendant and Appellant.

Cr. 20047.

Court of Appeal, Second District, Division 5, California.

March 24, 1972.

Albert A. Glazer, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant.

Evelle J. Younger, Atty. Gen., William E. James, Asst. Atty. Gen., and Geoffrey S. Cantrell, Deputy Atty. Gen., for plaintiff and respondent.

AISO, Associate Justice.

A jury found defendant Manuel Perez guilty of a violation of Penal Code section 4530, subdivision (c), (escape--failure to return upon expiration of temporary release). His motion for a new trial was denied. He was sentenced to state prison with sentence to be served concurrently with any prior uncompleted sentence. His notices of appeal from the judgment, sentence, and denial of the new trial motion are construed as an appeal from the judgment of conviction. (Pen.Code, § 1237, subd. 1; People v. Spencer (1969) 71 Cal.2d 933, 934--935, fn. 1, 80 Cal.Rptr. 99, 458 P.2d 43); People v. Garcia (1967) 67 Cal.2d 830, 832, fn. 1, 64 Cal.Rptr. 110, 434 P.2d 366.)

Following his conviction in a municipal court for a violation of Health and Safety Code section 11721, defendant was committed as a narcotic addict in 1967 by the Superior Court of Los Angeles County (Welf. & Inst.Code, § 3050). After several unsuccessful releases on outpatient status, he was received at the California Men's Colony-East (the Colony) in 1970. (See In re Cruz (1965) 62 Cal.2d 307, 313--315, 42 Cal.Rptr. 220, 398 P.2d 412.)

He was 'granted a 72 hour temporary release for the purpose of: seeking employment, interview with Field Agent and visit with family' commencing November 25, 1970, around 2 p.m. The temporary release authorization form (the form) indicates that the temporary release was granted pursuant to the authority of Welfare and Institutions Code section 3306. A condition specified on the form reads: 'If subject does not return as designated, escape procedures will be initiated.' Below the conditions and immediately above defendant's signature appear the printed words: 'Above conditions accepted.' The form was signed by defendant on November 18, 1970, and was approved by the custodial authorities on November 20, 1970. (Exhibit 'C'.) Prior to his execution of the form, defendant was also orally advised that if he did not return within the 'stipulated time,' escape procedures would be initiated against him. According to the testimony of a records officer from the Colony, the records of the Colony did not reflect a release date within 90 days of the date he was allowed to go on pass. Neither did they indicate the grant of any permanent release or parole, which would have been recorded if such a release or parole had been granted. (The form shows that 'scheduled parole date' was 'tentative.')

Defendant did not return to the Colony after the expiration of the 72 hours at approximately 2 p.m. on November 28, 1970.

On February 10, 1971, defendant was stopped and questioned concerning his suspicion-evoking behavior in an area in Los Angeles which had a high frequency of burglaries. In course of the search of defendant for weapons, the officer noticed three puncture marks on defendant's arm. A radio check disclosed a warrant for a moving traffic violation outstanding against a person with a name corresponding to that given by defendant as his. Defendant then was taken to the station for further check of identity. This check developed that defendant had given a false name and that a felony warrant for an escape from the Colony was outstanding against him. He was returned to the Colony and this prosecution followed.

The original information charged defendant with an escape in violation of Penal Code section 4530, subdivision (b); the amended information on which he proceeded to trial charged him with a violation of subdivision (c) of that section. No demurrer was filed to the amended information, nor was a motion in arrest of judgment made. His motion to dismiss on the ground that the temporary release did not comply with the requirements of Welfare and Institutions Code section 3306, which was indicated on the form as the legal authorization for the furlough, was denied. In his handwritten Pro se declaration in support of his motion for a new trial, defendant states that his promise on the form related to Welfare and Institutions Code section 3002.

The provisions of these and other statutes insofar as they are relevant to this appeal are set forth in the margin below. ¹ All of these statutes were in effect when defendant signed the form on November 18, 1970, which the exception of Penal Code section 4530 subdivision (c) and the amendment to Penal Code section 2690, which did not become effective until November 23, 1970.

Defendant first contends that because Penal Code section 4530, subdivision (c), was not in force on November 18, 1970, when he signed the form, his conviction constitutes a violation of the state and federal constitutional prohibitions against Ex post facto laws. We do not agree.

An Ex post facto law is "one which, in its operation, makes that criminal or penal which was not so at the time the action was performed; or which increases the punishment; or, in short, which, in relation to the offense or its consequences, alters the situation of a party to his disadvantage." (Thompson v. Missouri (1898) 171 U.S. 380, 383, 18 S.Ct. 922, 923, 43 L.Ed. 204, 206; see also 3 Witkin, Summary of Cal. Law (7th ed. 1960) Constitutional Law, § 95, p. 1894, and cases cited.)

The signing of the form was not an operative act upon which the Corpus delicti of the crime charged in this case must rest. In crimes laid under such statutes as Penal Code section 1319.4 or Vehicle Code section 40508, subdivision (a), where the gravamen of the offense is the failure to appear after signing a written promise to appear, the execution of the written promise is an essential element of the offense; but not so in an escape. The only function which the signed form played in this case was that of evidentiary proof that the failure to return to the Colony was willful. The escape was subject to prosecution with or without the signed form. It did not occur until November 28, 1970, when Penal Code section 4530 subdivision (c) had been in force some five days. Hence, there was no violation of the constitutional prohibitions against Ex post facto laws.

The foregoing discussion also answers defendant's contention that, since under the law of contracts only those statutes in force at the time of entering into a contract are read into the agreement, he may not be prosecuted under a statute not in force when he signed the form. There is no attempt in this case to enforce an agreement.

Although not raised by defendant upon this appeal, there remains to be considered the question whether Penal Code section 4530, subdivision (c), or Welfare and Institutions Code section 3002 should control in this case. As one committed under Welfare and Institutions Code section 3050, defendant falls within the purview of section 3002. However, defendant, as one confined to the Colony considered as an institution, was also subject to the provisions of Penal Code section 4530, subdivision (c), read together with Penal Code sections 4530, subdivision (a), and 4504 and with Welfare and Institutions Code section 3305. Both statutory provisions apply to civilly committed narcotic addicts, but Penal Code section 4530, subdivision (c), applies only to committed addicts in a specific situation whereas Welfare and Institutions Code section 3002 applies generally to all such persons committed under chapter 1, division 3, of the Welfare and Institutions Code. It is also both later in time and the statute directly applicable to the place of confinement. Consequently, Penal Code section 4530, subdivision (c), controls as to persons temporarily released from the Colony pursuant to Welfare and Institutions Code section 3306. (See People v. Temple (1962) 203 Cal.App.2d 654, 656--658, 21 Cal.Rptr. 633.)

Defendant points to the 'xx' mark on the form as indicating that the legal authorization for his three-day furlough was Welfare and Institutions Code section 3306, but that there was no showing made that he was within 90 days of a release date. From this he argues that his temporary release was invalid and that therefore his failure to return was not unlawful. His contention not only strikes us as being overly technical (cf. People v. Armstrong (1960) 188 Cal.App.2d 745, 748, 10 Cal.Rptr. 618), but we fail to follow the logic of it. Even if there had been no defect in the temporary release, defendant would have been deemed 'confined in' the Colony. (Pen.Code, § 4504, subd. (b).) Much less would an invalid permit, to be physically outside of the facility, terminate constructive custody, which may be the basis of an escape (People v. Owens (1965) 236 Cal.App.2d 403, 404, 46 Cal.Rptr. 91; People v. Haskins (1960) 177 Cal.App.2d 84, 86--87, 2 Cal.Rptr. 34). The shortcoming asserted by defendant did not convert the temporary release into an unconditional release or a parole. The operative period of the temporary release authorization, valid or invalid, came to an end upon the expiration of the 72 hours; the legal invalidity of the purported authority or license by which he left the physical confines of the Colony could in no way have any...