SERIES 2700 CRIMES AGAINST GOVERNMENT—ESCAPE
F 2760 Escape (PC 4532(a)(1) & (b)(1))
TABLE OF CONTENTS
F 2760 Note 1 Escape: Necessity Defense—CALCRIM Cross References And Research Notes
F 2760 Note 2 Escape: Failure to Return From Furlough (PC 4532/WI 871)
F 2760 Note 3 Escape: Flight From Officer Is Not Escape From Custody
F 2760 Note 4 Escape: Preemption Precludes Prosecution Of Juvenile For Felony Escape Based on Escape From Juvenile Hall
F 2760 Note 5 Escape: Duress/Necessity As Justification
F 2760 Note 6 Escape: Applicability To Home Detention Program (PC 4532)
F 2760 Note 7 Escape: Merely Being “Missing” Is Insufficient To Prove Escape (PC 4530(b))
F 2760 Note 8 Escape: “Privately Run” “Group Home Facility” (WI 871)
F 2760 Note 9 Escape From Probation Officer While On Field Trip (WI 871)
F 2760 Note 10 Escape: Constructive Imprisonment Of Parolee
F 2760 Note 11 Escape: Prisoner Defined—Arrestee Is Not A Prisoner (PC 4532)
F 2760 Note 12 Applicability Of Flight Instruction To Escape Charge
F 2760 Note 13 Escape: Lawful Custody As A Legal Question (PC 4532)
F 2760 Note 14 Escape: Group Home Excluded
F 2760 Note 15 Objective Standard Applies To Reasonable Belief Re: Arrest
Return to Series 2700 Table of Contents.
F 2760 Note 1 Escape: Necessity Defense—CALCRIM Cross-References And Research Notes
CALCRIM Cross-References:
CALCRIM 2761 [Escape by Force or Violence]
CALCRIM 2762 [Escape After Remand or Arrest]
CALCRIM 2763 [Escape After Remand or Arrest: Force or Violence]
CALCRIM 2764 [Escape: Necessity Defense]
Research Notes:
See CLARAWEB Forum, Series 2600 Crimes Against Government.
F 2760 Note 2 Escape: Failure to Return From Furlough (PC 4532/WI 871)
Prior to 1993, failure to return from furlough was not an escape per WI 871. (In re Thanh Q. (1992) 2 CA4th 1386, 1387-89.) However, in the next legislative session after Thanh Q. was decided, the legislature amended WI 871 to include a new subdivision (c), which made punishable the willful failure to return from a furlough or temporary release. (See In re Antonio F. (2002) 98 CA4th 1227.)
CALJIC NOTE: See FORECITE F 7.30 n2.
F 2760 Note 3 Escape: Flight From Officer Is Not Escape From Custody
“An arrest requires either physical force … or, where that is absent, submission to the assertion of authority.” (California v. Hodari D. (1991) 499 US 621, 626 [113 LEd2d 690; 111 SCt 1547] [internal citations and quote marks omitted].) Hence, a person who flees the police in order to avoid arrest is not in “custody” and cannot be convicted of escape from custody. (See Castell v. Commonwealth (Virginia) (1995) 454 SE2d 16 [19 Va.App. 615]; see also Cavell v. Commonwealth (VA 1998) 506 SE2d 552 [28 Va.App. 484]; People v. Diaz (1978) 22 C3d 712, 715 [the term “prisoner” was intended to limit PC 4532 either to those incarcerated in prison, or to prisoners incarcerated in facilities other than prisons or who might be temporarily in custody outside the walls of a custodial facility]; People v. Trotter (1998) 65 CA4th 965, 966, 971 [defendant who is not in custody at the time of arraignment cannot be convicted of escape for running from the courtroom].) Hence, the defendant must have been booked, incarcerated at the time of escape, or previously incarcerated and temporarily in custody outside the confinement facility in connection with the present case.)
CALJIC NOTE: See FORECITE F 7.30 n4.
F 2760 Note 4 Escape: Preemption Precludes Prosecution Of Juvenile For Felony Escape Based on Escape From Juvenile Hall
Escape from juvenile hall is a misdemeanor. (WI 871.) Hence, a minor—even if tried as an adult—may not be convicted of felony escape under PC 4532 if the minor escapes from the custody of juvenile hall. This is so because the more specific statute (WI 871) “preempts” the more general felony statute. (See People v. Rackley (1995) 33 CA4th 1659, 1664.)
CALJIC NOTE: See FORECITE F 7.30 n5.
F 2760 Note 5 Escape: Duress/Necessity As Justification
See FORECITE F 4.44 n1.
CALJIC NOTE: See FORECITE F 7.30 n6.
F 2760 Note 6 Escape: Applicability To Home Detention Program (PC 4532)
Effective January 1, 1999, PC 4532 was amended to include escape from a home detention program pursuant to a misdemeanor conviction. (Stats. 1998 ch. 258 [AB 531].) Assembly Bill 531 also made it a crime for any person convicted of a felony and placed in a home detention program to escape from home detention, and clarified that the failure to return to confinement subsequent to an authorized temporary release is an escape punishable under PC 4532.
CALJIC NOTE: See FORECITE F 7.30 n7.
F 2760 Note 7 Escape: Merely Being “Missing” Is Insufficient To Prove Escape (PC 4530(b))
In People v. Lavaie (1999) 70 CA4th 456, the defendant was charged with PC 4530(b) [escape of prisoner without force or violence] after guards conducted a head count and discovered him “missing.” A search of the grounds indicated that the prisoner was in none of the areas he was authorized to be, and he was later found in an off-limits area. The court concluded that while the evidence may have been sufficient to show a violation of prison rules, it was insufficient to prove an escape. (Lavaie, 70 CA4th at 462.)
CALJIC NOTE: See FORECITE F 7.30 n8.
F 2760 Note 8 Escape: “Privately Run” “Group Home Facility” (WI 871)
WI 871 does not apply to a “privately run” “group home facility” funded by the county as an alternative to a juvenile hall detention facility. (See In re Jason G. (1996) 46 CA4th 1017, 1019, 1020.)
CALJIC NOTE: See FORECITE F 7.30 n9.
F 2760 Note 9 Escape From Probation Officer While On Field Trip (WI 871)
WI 871 provides for escapes from facilities to which the minors are committed and escapes during transportation to and from such places. However, it does not include escapes from private facilities during field trips. (See In re Antonio F. (2002) 98 CA4th 1227.)
CALJIC NOTE: See FORECITE F 7.30 n10.
F 2760 Note 10 Escape: Constructive Imprisonment Of Parolee
A parolee, though no longer actually incarcerated in a state institution, is constructively a prisoner under the control of correctional authorities. (People v. Nicholson (2004) 123 CA4th 823, 830.) Hence, if a parolee is taken into lawful custody for a warrant issued following suspension of his parole, any attempted flight from that custody may constitute escape in violation of PC 4532(b)(1).
CALJIC NOTE: See FORECITE F 7.30 n11.
F 2760 Note 11 Escape: Prisoner Defined—Arrestee Is Not A Prisoner (PC 4532)
See People v. Diaz (1978) 22 Cal.3d 712, 717 [ordinary arrestee is not a prisoner].
CALJIC NOTE: See FORECITE F 7.30 n12.
F 2760 Note 12 Applicability Of Flight Instruction To Escape Charge
See FORECITE F 2.52 n5.
F 2760 Note 13 Escape: Lawful Custody As A Legal Question (PC 4532)
If an issue arises concerning whether or not the prisoner was in custody when he “escaped” it will have to be determined whether or not to submit this issue to the jury. While there appears to be no California law addressing this issue, the 9th Circuit has held that whether the defendant was in custody is a legal question which need not be submitted to the jury in the absence of a factual dispute regarding the circumstances relating to the custody. (U.S. v. Keller (9th Cir. 1990) 912 F2d 1058, 1061; see also PC 836.6 [escape from custody of a “sheriff, marshal or other police agency”].)
CALJIC NOTE: See FORECITE F 7.30 n1.
F 2760 Note 14 Escape: Group Home Excluded
Escape does not apply to privately run group home facilities, even those funded by the county as an alternative to the Juvenile Hall Detention Facility. (In re Jason G. (1996) 46 CA4th 1017, 1019, 1020, In re Antonio F. (2002) 98 CA4th 1227, 1230.)
F 2760 Note 15 Objective Standard Applies To Reasonable Belief Re: Arrest
According to People v. Mathews (1994) 25 CA4th 89, 99, an objective standard is used to determine whether the defendant should have known that he or she had been arrested. In Mathews, the defendant was hard-of-hearing and legally blind.
ALERT: CALCRIM 2760 does not use the “should have known” language. (Compare CC 2762.)
SERIES 2700 CRIMES AGAINST GOVERNMENT—ESCAPE
F 2760 Escape (PC 4532(a)(1) & (b)(1))
TABLE OF CONTENTS
F 2760 Note 1 Escape: Necessity Defense—CALCRIM Cross References And Research Notes
F 2760 Note 2 Escape: Failure to Return From Furlough (PC 4532/WI 871)
F 2760 Note 3 Escape: Flight From Officer Is Not Escape From Custody
F 2760 Note 4 Escape: Preemption Precludes Prosecution Of Juvenile For Felony Escape Based on Escape From Juvenile Hall
F 2760 Note 5 Escape: Duress/Necessity As Justification
F 2760 Note 6 Escape: Applicability To Home Detention Program (PC 4532)
F 2760 Note 7 Escape: Merely Being “Missing” Is Insufficient To Prove Escape (PC 4530(b))
F 2760 Note 8 Escape: “Privately Run” “Group Home Facility” (WI 871)
F 2760 Note 9 Escape From Probation Officer While On Field Trip (WI 871)
F 2760 Note 10 Escape: Constructive Imprisonment Of Parolee
F 2760 Note 11 Escape: Prisoner Defined—Arrestee Is Not A Prisoner (PC 4532)
F 2760 Note 12 Applicability Of Flight Instruction To Escape Charge
F 2760 Note 13 Escape: Lawful Custody As A Legal Question (PC 4532)
F 2760 Note 14 Escape: Group Home Excluded
F 2760 Note 15 Objective Standard Applies To Reasonable Belief Re: Arrest
Return to Series 2700 Table of Contents.
F 2760 Note 1 Escape: Necessity Defense—CALCRIM Cross-References And Research Notes
CALCRIM Cross-References:
CALCRIM 2761 [Escape by Force or Violence]
CALCRIM 2762 [Escape After Remand or Arrest]
CALCRIM 2763 [Escape After Remand or Arrest: Force or Violence]
CALCRIM 2764 [Escape: Necessity Defense]
Research Notes:
See CLARAWEB Forum, Series 2600 Crimes Against Government.
F 2760 Note 2 Escape: Failure to Return From Furlough (PC 4532/WI 871)
Prior to 1993, failure to return from furlough was not an escape per WI 871. (In re Thanh Q. (1992) 2 CA4th 1386, 1387-89.) However, in the next legislative session after Thanh Q. was decided, the legislature amended WI 871 to include a new subdivision (c), which made punishable the willful failure to return from a furlough or temporary release. (See In re Antonio F. (2002) 98 CA4th 1227.)
CALJIC NOTE: See FORECITE F 7.30 n2.
F 2760 Note 3 Escape: Flight From Officer Is Not Escape From Custody
“An arrest requires either physical force … or, where that is absent, submission to the assertion of authority.” (California v. Hodari D. (1991) 499 US 621, 626 [113 LEd2d 690; 111 SCt 1547] [internal citations and quote marks omitted].) Hence, a person who flees the police in order to avoid arrest is not in “custody” and cannot be convicted of escape from custody. (See Castell v. Commonwealth (Virginia) (1995) 454 SE2d 16 [19 Va.App. 615]; see also Cavell v. Commonwealth (VA 1998) 506 SE2d 552 [28 Va.App. 484]; People v. Diaz (1978) 22 C3d 712, 715 [the term “prisoner” was intended to limit PC 4532 either to those incarcerated in prison, or to prisoners incarcerated in facilities other than prisons or who might be temporarily in custody outside the walls of a custodial facility]; People v. Trotter (1998) 65 CA4th 965, 966, 971 [defendant who is not in custody at the time of arraignment cannot be convicted of escape for running from the courtroom].) Hence, the defendant must have been booked, incarcerated at the time of escape, or previously incarcerated and temporarily in custody outside the confinement facility in connection with the present case.)
CALJIC NOTE: See FORECITE F 7.30 n4.
F 2760 Note 4 Escape: Preemption Precludes Prosecution Of Juvenile For Felony Escape Based on Escape From Juvenile Hall
Escape from juvenile hall is a misdemeanor. (WI 871.) Hence, a minor—even if tried as an adult—may not be convicted of felony escape under PC 4532 if the minor escapes from the custody of juvenile hall. This is so because the more specific statute (WI 871) “preempts” the more general felony statute. (See People v. Rackley (1995) 33 CA4th 1659, 1664.)
CALJIC NOTE: See FORECITE F 7.30 n5.
F 2760 Note 5 Escape: Duress/Necessity As Justification
See FORECITE F 4.44 n1.
CALJIC NOTE: See FORECITE F 7.30 n6.
F 2760 Note 6 Escape: Applicability To Home Detention Program (PC 4532)
Effective January 1, 1999, PC 4532 was amended to include escape from a home detention program pursuant to a misdemeanor conviction. (Stats. 1998 ch. 258 [AB 531].) Assembly Bill 531 also made it a crime for any person convicted of a felony and placed in a home detention program to escape from home detention, and clarified that the failure to return to confinement subsequent to an authorized temporary release is an escape punishable under PC 4532.
CALJIC NOTE: See FORECITE F 7.30 n7.
F 2760 Note 7 Escape: Merely Being “Missing” Is Insufficient To Prove Escape (PC 4530(b))
In People v. Lavaie (1999) 70 CA4th 456, the defendant was charged with PC 4530(b) [escape of prisoner without force or violence] after guards conducted a head count and discovered him “missing.” A search of the grounds indicated that the prisoner was in none of the areas he was authorized to be, and he was later found in an off-limits area. The court concluded that while the evidence may have been sufficient to show a violation of prison rules, it was insufficient to prove an escape. (Lavaie, 70 CA4th at 462.)
CALJIC NOTE: See FORECITE F 7.30 n8.
F 2760 Note 8 Escape: “Privately Run” “Group Home Facility” (WI 871)
WI 871 does not apply to a “privately run” “group home facility” funded by the county as an alternative to a juvenile hall detention facility. (See In re Jason G. (1996) 46 CA4th 1017, 1019, 1020.)
CALJIC NOTE: See FORECITE F 7.30 n9.
F 2760 Note 9 Escape From Probation Officer While On Field Trip (WI 871)
WI 871 provides for escapes from facilities to which the minors are committed and escapes during transportation to and from such places. However, it does not include escapes from private facilities during field trips. (See In re Antonio F. (2002) 98 CA4th 1227.)
CALJIC NOTE: See FORECITE F 7.30 n10.
F 2760 Note 10 Escape: Constructive Imprisonment Of Parolee
A parolee, though no longer actually incarcerated in a state institution, is constructively a prisoner under the control of correctional authorities. (People v. Nicholson (2004) 123 CA4th 823, 830.) Hence, if a parolee is taken into lawful custody for a warrant issued following suspension of his parole, any attempted flight from that custody may constitute escape in violation of PC 4532(b)(1).
CALJIC NOTE: See FORECITE F 7.30 n11.
F 2760 Note 11 Escape: Prisoner Defined—Arrestee Is Not A Prisoner (PC 4532)
See People v. Diaz (1978) 22 Cal.3d 712, 717 [ordinary arrestee is not a prisoner].
CALJIC NOTE: See FORECITE F 7.30 n12.
F 2760 Note 12 Applicability Of Flight Instruction To Escape Charge
See FORECITE F 2.52 n5.
F 2760 Note 13 Escape: Lawful Custody As A Legal Question (PC 4532)
If an issue arises concerning whether or not the prisoner was in custody when he “escaped” it will have to be determined whether or not to submit this issue to the jury. While there appears to be no California law addressing this issue, the 9th Circuit has held that whether the defendant was in custody is a legal question which need not be submitted to the jury in the absence of a factual dispute regarding the circumstances relating to the custody. (U.S. v. Keller (9th Cir. 1990) 912 F2d 1058, 1061; see also PC 836.6 [escape from custody of a “sheriff, marshal or other police agency”].)
CALJIC NOTE: See FORECITE F 7.30 n1.
F 2760 Note 14 Escape: Group Home Excluded
Escape does not apply to privately run group home facilities, even those funded by the county as an alternative to the Juvenile Hall Detention Facility. (In re Jason G. (1996) 46 CA4th 1017, 1019, 1020, In re Antonio F. (2002) 98 CA4th 1227, 1230.)
F 2760 Note 15 Objective Standard Applies To Reasonable Belief Re: Arrest
According to People v. Mathews (1994) 25 CA4th 89, 99, an objective standard is used to determine whether the defendant should have known that he or she had been arrested. In Mathews, the defendant was hard-of-hearing and legally blind.
ALERT: CALCRIM 2760 does not use the “should have known” language. (Compare CC 2762.)
