People v. Redmond

• Decision Date: 06 December 1966
• Docket Number: Cr. 2529
• Citation: 55 Cal.Rptr. 195,246 Cal.App.2d 852
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Kenneth Jackson REDMOND, Defendant and Appellant.

Page 195

55 Cal.Rptr. 195

246 Cal.App.2d 852

The PEOPLE of the State of California, Plaintiff and Respondent, v. Kenneth Jackson REDMOND, Defendant and Appellant.

Cr. 2529.

Court of Appeal, Fourth District, Division 2, California.

Dec. 6, 1966.

Rehearing Denied Jan. 4, 1967.

Hearing Denied Feb. 1, 1967.

[246 Cal.App.2d 853] Hillel Chodos, Beverly Hills, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., Jack K. Weber, Deputy Atty. Gen., for plaintiff and respondent.

OPINION

TAMURA, Justice.

Following a jury trial on an information charging him with one count of robbery (Pen.Code, § 211) and one count of escape (Pen. Code, § 4532(a)), defendant was found guilty on each count, motion for a new trial and probation were denied, and he was sentenced to state prison. Defendant now appeals from the judgment of conviction as to each count.

The escape count alleged that defendant escaped, without force or violence, from the lawful custody of deputy sheriffs of Riverside County while he was under arrest for a violation of sections 12025 (Concealed Weapon in Vehicle) and 466 (Possession of Burglary Tools) of the Penal Code. The facts relating to the escape were as follows:

In the early morning of January 7, 1965, plainclothes Sheriff's Deputies Hill and Balfe, driving an unmarked sheriff's unit, were on a stakeout in an area of Riverside County where there had recently been a high incidence of burglaries, particularly of commercial establishments. Shortly after 1:00 a.m. they passed a shopping center and noted that the businesses were closed and that there were no cars in the parking lot. At approximately 1:15 a.m., as they passed the same shopping center, they observed a vehicle about to exit from the parking lot to the street. The officers slowed down to permit the car to enter the street ahead of them, but when it failed to do so they proceeded on and the vehicle then entered the street behind them. In order to permit the vehicle to pass them so they could observe the occupants, the officers pulled to the curb and almost came to a stop; the following car also nearly stopped but thereafter passed the police vehicle. The officers noted three male occupants in the vehicle and observed that one in the right front seat was bending over and appeared to be reaching under the seat. The conduct of the occupants aroused the officers' suspicion so they stopped the vehicle. Hill approached the car, announced that he was a police officer, identified himself, and asked for and received identification from each occupant. The car was being driven by one Cassera, the owner; one Gomez was in the right front seat; and defendant was in the left rear seat. Not being satisfied with their explanation for their presence and noting a red-handled object protruding from under the right front seat, Hill asked the driver if he might check out the vehicle. The driver replied 'Fine'. A search of the vehicle revealed a pair of bolt cutters, two screw drivers, two pairs of gloves and a pry bar under the right front seat. Upon request, the owner unlocked the trunk but the officer found nothing of interest in it. Returning to the interior of the vehicle, Hill opened a small air vent under the dashboard where he discovered a revolver, a brown paper sack which contained coins, and a plastic box. Hill held up the gun to the view of Officer Balfe who then informed all three that they were under arrest '* * * for a concealed weapon in the vehicle.' The three were then ordered to place their hands on the vehicle so that they could be searched for weapons. After Balfe searched defendant and had started to search Gomez, defendant started running across the street. Balfe yelled 'halt' and fired a warning shot into the air but defendant kept running and disappeared behind some buildings.

The facts relating to the robbery count were as follows:

At about 2:20 a.m. on January 14, 1965, a black 1939 Ford pulled into a Texaco service station in Riverside. When Nichols, the only employee on duty, walked up to the car, the driver, holding a revolver on his lap, handed Nichols a brown plastic bag and ordered him to fill it up. The employee placed $70.00 in the bag and handed it to the robber who then ordered him to turn around and drove away. During the five minutes the robber was at the station, Nichols had the opportunity to observe him for a total period of approximately two minutes. Several days after the incident Nichols was shown several pictures and selected one as the robber, but was not sure. At a later date he was shown more pictures and selected one of the defendant without reservation. At the trial he identified defendant as the robber, again without reservation. On a motion for a new trial, defendant's counsel informed the court that he had new evidence in the form of an affidavit by Nichols indicating he was not sure of his identification of defendant. The affidavit, however, was not produced nor was a continuance requested for an opportunity to do so. The motion for a new trial was denied. on this appeal, defendant moved this court for an order to augment the record to include the affidavit alleging that the failure of his trial counsel to produce it at the hearing for a motion for a new trial was inexplicable. Since the affidavit had never been introduced in evidence or offered in the trial court, the motion to augment was denied.

ESCAPE COUNT

Defendant urges several grounds for the reversal of his conviction on the escape count but, as we view it, the controlling issue is the validity of his contention that the People failed to allege and prove an offense of escape under section 4532(a) of the Penal Code.

At the time of the alleged escape, section 4532(a) provided in relevant part as follows: 'Every prisoner arrested and booked for, charged with, or convicted of a misdemeanor who is confined in any county or city jail or prison or industrial farm or industrial road camp or who is engaged on any county road or other county work or who is in the lawful custody of any officer or person, * * * and who thereafter escapes or attempts to escape from such county or city jail, prison, industrial farm or industrial road camp or from the custody of the officer or person in charge of him while engaged on or going to or returning from such county work or from the custody of any officer or person in whose lawful custody he is, is guilty of a felony and, if such escape or attempt to escape was not by force or violence, is punishable by imprisonment in the state prison for not exceeding one year and one day, regardless of any prior convictions, or in the county jail not exceeding one year; * * *'

Defendant was charged with the crime of escape under section 4532(a) for an unauthorized departure from the custody of officers who had placed him under arrest for a misdemeanor. Defendant contends that since the People failed to allege or prove that he was 'arrested and booked', the information failed to charge and the evidence failed to prove the crime of escape under section 4532(a). ¹

Defendant argues that any fair grammatical analysis of 4532(a) patently reveals that the section is directed to escape by prisoners after they have been taken to jail and that it has no application to an unauthorized departure from the custody of an arresting officer prior to booking. He urges that this is the holding of People v. Francisco, 228 Cal.App.2d 355, 39 Cal.Rptr. 503 (1964). In that case defendant was convicted of escape under section 4532 (a) on evidence that when he was taken from the county jail to the county hospital for treatment and while unattended for a brief moment, he fled to the hospital grounds where he was promptly apprehended. The court reversed the conviction on the ground that there was no evidence that defendant had been convicted of a misdemeanor as alleged in the information. In response to the People's argument that lawful custody must be presumed, the court stated that 'lawful custody' was merely one element of the offense of escape and that 'imprisonment as the result of a misdemeanor 'arrest and booking,' 'charge,' or 'conviction' is another.' The court's observation respecting the showing which the section requires as the basis for lawful custody was dictum since the People failed to submit any proof respecting derivation of custody. The case is authority, however, for the proposition that in order to establish an offense under section 4532(a) the People must prove more than an unauthorized departure from lawful custody.

The attorney general argues that section 4532(a) may be read: 'Every prisoner * * * who is in lawful custody of an officer * * * and who thereafter escapes * * *,' is guilty of escape, and that such construction is supported by People v. Torres, 152 Cal.App.2d 636, 639, 313 P.2d 197 (1957), and People v. Valenzuela, 171 Cal.App.2d 331, 340 P.2d 685 (1959). People v. Torres, supra, however, does not support the construction urged by the People. There a conviction of escape under 4632(a) was affirmed where the defendant fled from the custody of an arresting officer prior to booking but a charge of robbery had previously been filed against defendant and a warrant for his arrest was issued and outstanding, although the officer making the arrest did not have the warrant in his possession. Thus, in that case, defendant was a prisoner 'charged' with a felony and in the lawful custody of an officer at the time of his unauthorized departure. The court noted that the trial court correctly instructed the jury: 'Every person charged with * * * a felony * * * who is in the lawful custody of any officer or person, who escapes or attempts to escape * * * from the custody of any officer or person in whose lawful custody he is, is guilty of a felony * * *.' In People v. Valenzuela, supra, 171 Cal.App.2d 331, 340 P.2d 685 (1959), a conviction for escape for an unauthorized departure from...