Opinion
For Opinion on Hearing, see 73 Cal.Rptr. 393, 447 P.2d 633. Lin B. Densmore, San Francisco, for petitioner.
Thomas C. Lynch, Atty. Gen., and Doris H. Maier, Asst. Atty. Gen., and Edward A. Hinz, Jr. and Harold Bradford, Deputy Attys. Gen., Sacramento, for respondent.
BRAY, Associate Justice.
Petition for writ for habeas corpus after judgment of conviction, based upon jury verdict of violation of section 4532, subdivision (b), Penal Code (escape without force or violence from custody of a deputy sheriff), with a prior conviction of manslaughter.
QUESTION PRESENTED
Did section 4532, subdivision (b), at the time of petitioner's conviction apply to an escape from a deputy sheriff prior to the filing of a formal charge of felony violation?
RECORD
Sergeant Lockhart Gale, a deputy sheriff, was on patrol duty on the night of August 1, 1961. At approximately 11 p. m. he received a call stating that in a fight in a pool hall a man had been struck with a billiard cue and giving the name and description of a person wanter for the crime of assault with a deadly weapon. Two suspects had been apprehended when the sergeant, working alone, saw petitioner, who answered the description given him of the man wanted. He pursued petitioner and apprehended him at the place where he was hiding. The sergeant placed him under arrest and returned him to the patrol car. However, petitioner made a break, and after a scuffle, fled. Lateer that night petitioner was apprehended by other officers. Subsequently, in addition to the escape charge, petitioner was charged with battery (Pen.Code, § 242), a misdemeanor, rather than with the felony charge of assault with a deadly weapon. At trial defendant was found not guilty of the battery charge. He was convicted of the escape charge.
Since that time petitioner has kept the courts rather busy. He has unsuccessfully filed four petitions in the United States District Court, four in the California Supreme Court, fourt, four in this Court of Appeal (one being on the exact grounds raised in this his fifth petition) and one in the superior court.
Was defendant 'charged with a felony' when he escaped from the officer?
Section 4532, subdivision (a), at the time of petitioner's arrest and trial provided in pertinent part: 'Every prisoner formally charged with * * * a misdemeanor * * * who is in the lawful custody of any officer or person, and who thereafter escapes or attempts to escape * * * from the custody of any officer or person in whose lawful custody he is, is guilty of a felony * * *.' (Emphasis added.)
It is interesting to note that at that time section 4532, subdivision (a), dealing with the escape from an officer or person having lawful custody of a person charged with a misdemeanor, specified 'every prisoner formally charged' with a misdemeanor. Section 4532, subdivision (b), dealing with In 1961 both the misdemeanor subdivision, (a), of section 4532, and the felony subdivision, (b), were amended to read in pertinent part: 'Every prisoner arrested and boored for, charged with * * *.' (Emphasis added.)
In People v. Redmond (1966) 246 Cal.App.2d 852, 55 Cal.Rptr. 195, decided after the 1961 amendment of section 4532, defendant was charged with the offense of escape under section 4532, subdivision (a), for an unauthorized departure from an officer who had placed him under arrest for a misdemeanor. The court held (page 858, 55 Cal.Rptr. page 199) that subdivision (a) 'appears unequivocally to provide that the classes of prisoners to whom the statute applies is limited to those 'arrested and booked,' 'charged with,' or 'convicted of" and that an unauthorized departure from the custody of an officer of an arrested person where a formal filing of a charge and a booking had not occurred, did not constitute an 'escape' under the section.
Petitioner contends that the reasoning of Redmond should be applied to the section as it existed prior to the amendment. While there is some dicta in Redmond (which, after all, was considering the statute as amended and not the statute as it existed prior to the addition of the words 'arrested and booked') which might be considered to be interpreting the word 'charged' in the statute to require the filing of a formal charge, such an interpretation would overlook the fact that prior to the amendment subdivision (a) dealing with a person charged with a misdemeanor expressly required that the escaping prisoner had been 'formally' charged, while the word 'formally' was not required in connection with a prisoner charged with a felony.
Redmond was dealing with the phrase 'arrested and booked for, charged with.' This correlation indicates that in the amendment the Legislature intended that there be a formal charge and a booking. The court in Redmond pointed out ' * * * the qualifying pgrase [that is, 'arrested and booked'] cannot be ignored.' (P. 861, 55 Cal.Rptr. P. 201.)
Prior to the amendment of 1961 there were a number of cases in which judgments of convictions under section 4532 for unauthorized departures from arresting officers were affirmed where no formal charges had been filed. Among them were People v. Torres (1957) 152 Cal.App.2d 636, 639, 313 P.2d 197; People v. Paul (1957) 147 Cal.App.2d 609, 617, 305 P.2d 996; and People v. McConahay (1949) 90 Cal.App.2d 596, 600, 203 P.2d 791. In these cases no discussion of what was meant by the word 'charged' in section 4532 appears, the courts seeming to take for granted that the informing of the prisoner by the officer of the 'charge' against him met the requirement of the section, the only inquiry in those cases being whether the departing prisoner had been in lawful custody, that is, whether the arrest was lawful.
People v. Serrano (1932) 123 Cal.App. 339, 11 P.2d 81, was considering section 107, Penal Code, the predecessor of section 4532. It then read, in pertinent part: 'Every prisoner charged with * * * a felony who is confined in any jail or prison * * * or who is in the lawful custody of any officer or person, who escapes or attempts to escape from such jail, prison, * * * or from the custody of any officer or person in whose lawful custody he is, is guilty of a felony * * *.' (Emphasis added.) In Serrano the chief of police was requested by one Holbrook to arrest the respondent for giving him a bad check. Holbrook with the chief and another officer went to the respondent's home, where the latter was identified as the one who had given Holbrook the bad check. The officers then took the respondent to the home of one Enos, who also identified the respondent as one who had passed bad checks. The officers then placed the latter under arrest and took him to the city jail where he was booked on the charge of 'suspicion of forgery' and jailed. The respondent '* * * In the case of People v. Garnett, 129 Cal. 364, 366, 61 P. 1114, 1115, the Supreme Court construed the word 'charged' as used in section 32 of the Penal Code, relating to persons who harbor and protect persons 'charged with' a felony, as follows: 'The word 'charged' as used in the section, means a formal complaint, information, or indictment filed against the criminal, or possibly an arrest without a warrant might be sufficient.' (Italics ours.) To interpret the words 'charged with' in section 107 of the Penal Code in the sense that a formal charge must have been filed against the prisoner, would encourge escapes of the kind found in the case at bar and might cause the utmost confusion and disorder. We believe the legislature intended that a more liberal construction should be given to that language. * * *' (P. 342, 11 P.2d p. 822.) From the time of Serrano up to and at the time involved here there was no change in the section's wording and that of its successor section 4532 so far as relates to the word 'charged' except that it was amended to require that a misdemeanant had to be 'formally charged' in order for his running away from an officer to constitute an escape. The opinion in Serrano that the word 'charged' did not require a formal charging and the fact that the Legislature saw fit thereafter to require a formal charge to be filed against one charged with a misdemeanor but left the section as defined by Serrano as to one charged with a felony, indicates that no formal charge was required in order for there to be an escape. In Serrano at the time of the booking, the only 'charge' against Serrano was 'the charge of suspicion of forgery.' (People v. Serrano, supra, 123 Cal.App. at p. 340, 11 P.2d at p. 81.) Actually, there is no such offense as 'suspicion' of forgery or any other crime, but Serrano points out, at page 341, 11 P.2d at page 82, '* * * we are convinced that the charge 'suspicion of forgery' in the jail record was a sufficient designation of the fact that defendant was being held in the city jail until a formal charge of forgery should be made against him * * *.'
No booking was then required by the escape section.
In the case at bench defendant was informed by the arresting officer that he was being arrested on the charge of assault with a deadly weapon, a felony. This was the 'charge' upon which he was arrested even though later the only formal charge filed was that of battery, a misdemeanor. He was not arrested for battery, he was arrested for assault with a deadly weapon, and when he ran away he was the officer's 'prisoner charged with * * * a felony * * * who escapes * * * from the custody of * * * any officer * * * in whose lawful custody he' was.
Petitioner contends that the opinion in People v. Redmond, supra, 246 Cal.App.2d 852, 55 Cal.Rptr. 195, decided after the 1961 amendment to section 4532, requires a determination that the word 'charged' in section 4532 prior to the amendment be construed to mean formally charged. However, in Redmond the court referred to the decision in Serrano, supra, and said (p. 861, 55 Cal.Rptr. p. 201): 'The question raised in Serrano, supra, has been legislatively resolved by the addition of the words 'arrested and booked.' The addition of these clarifying words indicates that the Legislature did not intend the word 'charged' to be construed to extend to an arrest without a booking. If that were so it would not have included the word 'booked.' It manifestly appears that by adding the word 'formally' before the word 'charged' in 1955 and then substituting 'arrested and booked' for 'formally' in 1961, the Legislature intended some formality beyond
It is ironical that petitioner was found not guilty of the crime of battery, the only offense other than escape with which he was formally charged. Thus had he not escaped he would not have had to serve a single day in confinement. But he did escape, and the fact is that he has spent nearly seven years in prison because the offense of which he was found guilty is a felony, and the term for that offense was extended because of his prior felony (manslaughter) conviction.
Petitioner contends that section 4532 placed emphasis on escapes from jail, prison, industrial farms and camps, county road or other county work, etc., as evidenced by the then possible heavy penalty for an escape even in a misdemeanor situation (not less than 6 months nor more than 5 years). We find no emphasis in this respect in the section over escape while in the lawful custody of an officer. Nor is the fact that section 148 of the Penal Code makes the punishment for one who wilfully resists, delays or obstructs an officer in the discharge of the duty of his office punishable only by maximum imprisonment of one year or a fine not exceeding $1,000 or by both, an indication that it was not intended that escape from an officer before a formal charge was filed should be an offense. Section 148 provides the abovementioned punishment 'when no other punishment is prescribed.' It may very well be that the punishment prescribed in section 4532 is the 'other punishment prescribed' in section 148. In the latter section, the duties which the officer is discharging, interference with which is proscribed, cover more than just an arrest, while section 4532 relates only to an escape. Moreover, section 148 can be violated by others than an arrestee, while section 4532 can be violated only by an arrestee.
Nor is the fact, if it be a fact, that in arresting persons, the arresting officer is more prone to 'charge' them with a felony than a misdemeanor, any reason for denying It is clear that the 1961 amendment of section 4532 requiring 'booking' does not have any retroactive application to defendant's conviction under the statute as it stood at the time of petitioner's commission of the offense of escape. (See Sekt v. Justice's Court (1945) 26 Cal.2d 297, 306, 159 P.2d 17, 167 A.L.R. 833; People v. Fontaine (1965) 237 Cal.App.2d 320, 330-331, 46 Cal.Rptr. 855; In re Lopez (1965) 62 Cal.2d 368, 380, 42 Cal.Rptr. 188, 398 P.2d 380.)
The order to show cause issue herein is discharged and the petition denied.
FRIEDMAN, Acting P. J., and REGAN, J., concur.