People v. Ramirez

• Decision Date: 07 September 1972
• Docket Number: Cr. 1215
• Citation: 27 Cal.App.3d 660,104 Cal.Rptr. 102
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Paul RAMIREZ, Defendant and Appellant.

Page 102

104 Cal.Rptr. 102

27 Cal.App.3d 660

The PEOPLE of the State of California, Plaintiff and Respondent, v. Paul RAMIREZ, Defendant and Appellant.

Cr. 1215.

Court of Appeal, First District, California.

Sept. 7, 1972.

As Modified Sept. 13, 1972.

Willard L. Weddell, Public Defender of Kern County, Robert T. Baca, Deputy Public Defender, Bakersfield, for defendant-appellant.

Evelle J. Younger, Atty. Gen., Herbert L. Ashby, Chief Asst. Atty. Gen., William E. James, Asst. Atty. Gen., and Daniel J. Kremer and A. Wells Petersen, Deputy Attys. Gen., Sacramento, for plaintiff-respondent.

FRANSON ^*, Associate Justice.

Appellant appeals from a conviction by jury under an amended information charging him with violation of Welfare and Institutions Code section 3002, escape from the California Rehabilitation Center, at Tehachapi, California.

Following a felony conviction in the Superior Court of San Joaquin County, appellant was committed to the California Rehabilitation Center at Corona on September 3, 1968. From August 21, 1969, to the date of the events hereinafter described he was confined at the rehabitation facility at Tehachapi. On July 14, 1970, he was allowed to leave the institution on a 72-hour temporary community release pursuant to the authority contained in section 3306 of the Welfare and Institutions Code. Prior to his release appellant was fully advised of the conditions of his release and of the requirement that he return to the facility by July 17, 1970. He did not return within the prescribed time.

In the original information filed by the district attorney on October 9, 1970, appellant was charged with violating Penal Code section 4530, subdivision (b), escape from state prison. The information alleged that on July 17, 1970, while a prisoner in the California Correctional Institution at Tehachapi and in the lawful custody of the superintendent of the institution he escaped from the institution. Appellant was thereafter arraigned on the information and entered a plea of not guilty and requested a jury trial. Trial commenced December 7, 1970; the jury was called, impaneled and sworn. After swearing the jury, the court excused the jurors from the courtroom and the prosecutor moved to amend the information to allege a violation of Welfare and Institutions Code section 3002. Over defense objection the motion to amend was granted and the information was amended by interlineation. Counsel for appellant then advised the court that he was not prepared to go to trial on the amended information and requested a continuance. Over the prosecutor's objection a continuance was granted and the court discharged the jury. On December 9, 1970, the district attorney filed a new amended information alleging a violation of section 3002 of the Welfare and Institutions Code. The amended information alleged that appellant on July 17, 1970, being a person committed as a narcotic addict pursuant to chapter I of the Welfare and Institutions Code, escaped from the narcotic rehabilitation facility at Tehachapi. Appellant was arraigned on the amended information and entered pleas of not guilty and once in jeopardy. Jury trial commenced on March 22, 1971. As part of his defense appellant sought to present to the jury evidence on the issue of his jeopardy at the first trial. The trial court refused to allow the matter to be considered by the jury and ruled as a matter of law that appellant had not been in jeopardy. Appellant was found guilty on the charge contained in the amended information.

Appellant raises many contentions of error which we have reduced to three issues deserving of discussion:

(1) The validity of his prosecution under Welfare and Institutions Code section 3002.

(2) The sufficiency of the evidence to uphold the conviction.

(3) The defense of once in jeopardy.

Appellant raises the question whether an inmate relased under a temporary community release pursuant to Welfare and Institutions Code section 3306 and who fails to return within the time specified can be tried for escape under Welfare and Institutions Code section 3002 after November 23, 1970.

Welfare and Institutions Code section 3002 provides:

'Every person committed pursuant to this chapter or former Chapter 11 (commencing with Section 6399) of Title 7 of the Penal Code who escapes or attempts to escape from lawful custody is guilty of a crime punishable by imprisonment in the state prison for not exceeding seven years. This section does not apply to unauthorized absence from a halfway house.'

In 1970 the Legislature added subdivision (c) to Penal Code section 4530, effective November 23, 1970, which provides:

'The willful failure of a prisoner who is employed or continuing his education, or who is authorized to secure employment or education, or who is temporarily released pursuant to the provisions of Section 2690, 2910, or 6254 of this code or Section 3306 of the Welfare and Institutions Code, to return to the place of confinement not later than the expiration of a period during which he is authorized to be away from such place of confinement, is an escape from such place of confinement punishable as provided in this section. A conviction of violation of this subdivision, not involving force or violence, shall not be charged as a prior felony conviction in any subsequent prosecution for a public offense.'

Inasmuch as the amendment to Penal Code section 4530 became effective prior to trial we conclude that appellant's failure to return from the temporary community release should have been prosecuted as a violation of Penal Code section 4530, subdivision (c), rather than as a violation of Welfare and Institutions Code section 3002. We believe this conclusion is compelled by the rule announced by our Supreme Court in In re Estrada (1965) 63 Cal.2d 740, 48 Cal.Rptr. 172, 408 P.2d 948, that where an amendatory statute mitigates punishment and there is no saving clause the amendment operates retroactively so that the lighter punishment must be imposed as to all cases not reduced to final judgment at the time the amendment became effective. (People v. Labrum (1972) 25 Cal.App.3d 105, 109--111, 101 Cal.Rptr. 602; People v. Perez (1972) 24 Cal.App.3d 340, 345, 100 Cal.Rptr. 834.)

Having concluded that appellant was prosecuted under the wrong statute we turn next to the question of whether such error requires a reversal of his conviction. We conclude that it does not. An analogous situation was presented in People v. Siegel (1961) 198 Cal.App.2d 676, 18 Cal.Rptr. 268, where a defendant was charged with violation of Penal Code section 664, attempted escape from a county jail. It was alleged that defendant was a prisoner charged with a violation of section 11500 of the Health and Safety Code and was confined in the Santa Clara County Jail and attempted to escape from the jail. He properly should have been charged with a violation of Penal Code section 4532, subdivision (b), which provided at that time: 'Every prisoner . . . charged with, or convicted of a felony who is confined in any county . . . jail . . . who escapes or attempts to escape . . . is guilty of a felony. . . .' The court ruled that the error was not prejudicial in that the charging language under which defendant was prosecuted was exactly that which would support a charge under the proper statutes; that he was fully apprised of the offense of which he was being tried, his own attempted escape, and the error in alleging the wrong statute was unimportant as the only practical difference between the two statutes was the matter of punishment. (People v. Aresen (1949) 91 Cal.App.2d 26, 36, 204 P.2d 389, 957; People v. Beber (1951) 104 Cal.App.2d 359, 370, 231 P.2d 516.) In the instant case appellant was informed of the offense of which he was about to be tried, i.e., his failure to return to Tehachapi at the time specified, he was given ample time to meet the charge and was accorded a fair trial. In a similar situation this court in People v. Labrum, Supra, 25 Cal.App.3d 105, at pages 109--111, 101 Cal.Rptr. 602, applied the rationale of People v. Marshall (1957) 48 Cal.2d 394, 309 P.2d 456 and held that Penal Code section 4530, subdivision (c), specifies a lesser crime embraced within the specific allegations of Welfare and Institutions Code section 3002; that in reality the defendant was convicted of the lesser crime even though not charged in the information.

In any event, we must remand with directions to the trial court to correct the record to show that appellant was convicted of escape in violation of Penal Code section 4530, subdivision (c), and to sentence appellant under that section. (People v. Labrum, Supra, 25 Cal.App.3d 105, 110, 101 Cal.Rptr. 602.)

Appellant next contends that his 72-hour community release for the purpose it was granted was not authorized under Welfare and Institutions Code section 3306 as the section read in 1970 and, therefore, his release was invalid and his failure to return voluntarily was not an escape. Welfare and Institutions Code section 3306 was enacted in 1969 (Stats.1969, ch. 1425, p. 2925, § 1) probably to parallel the provisions then contained in Penal Code section 2690 pertaining to temporary removal of prisoners from state prison. In doing so it appears that a comma or the disjunctive coordinate 'or' missing from section 2690 between the words 'institution' and 'for' in the first sentence of the second paragraph of the section, as it read in 1969, was also omitted in section 3306. In 1970 section 2690 was amended (Stats.1970, ch. 830, p. 1563, § 1) to allow the Director of Corrections to authorize the temporary removal from prison of any inmate for a period not longer than three days. Section 3306 of the Welfare and Institutions Code was amended in 1971 (Stats.1971, ch. 1124, p. 2138, § 1, operative Jan. 1, 1972) to allow the director to authorize the temporary removal of any person confined in a rehabilitation center for a...