Return to CALJIC Part 5-8 – Contents
F 7.30 n1 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”].)
F 7.30 n2 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. (92) 2 CA4th 1386, 1387-89 [4 CR2d 19].) 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 [120 CR2d 325].)
F 7.30 n3 Escape: Definition of “Force and Violence” (PC 4532).
CALJIC’s definition of “force and violence” includes “any wrongful application of physical force against property ….” This definition is founded upon People v. Lozano (87) 192 CA3d 618, 626-28 [237 CR 612]. However, Lozano failed to express an opinion as to the amount of force which must be applied against property. (Ibid.) Given the fact that even nonviolent escapes may involve the application of some physical force to property (e.g. opening an unlocked door, cutting a wire fence, etc.), it would seem that in the case of property, the application of physical force above and beyond that necessary to effect the escape should be necessary in order to warrant liability under the statute. (See People v. Pahl (91) 226 CA3d 1651, 1656-62 [277 CR 656] [“unlawful restraint” per PC 243.4 requires application of force beyond the physical effort necessary to commit the prohibited sexual act].)
F 7.30 n4 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. (91) 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) (95) 454 SE2d 16 [19 VaApp 615]; see also Cavell v. Commonwealth (VA 1998) 506 SE2d 552 [28 Va.App. 484]; People v. Diaz (78) 22 C3d 712, 715 [150 CR 471] [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 (98) 65 CA4th 965, 966, 971 [76 CR2d 898] [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.)
F 7.30 n5 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 (95) 33 CA4th 1659, 1664 [40 CR2d 49].)
F 7.30 n6 Escape: Duress/Necessity As Justification.
(See FORECITE F 4.44 n1.)
F 7.30 n7 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.
F 7.30 n8 Escape: Merely Being “Missing” Is Insufficient To Prove Escape (PC 4530(b)).
In People v. Lavaie (99) 70 CA4th 456 [82 CR2d 719], 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.)
F 7.30 n9 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. (96) 46 CA4th 1017, 1019, 1020 [54 CR2d 255].)
F 7.30 n10 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 [120 CR2d 325].)
F 7.30 n11 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).
F 7.30 n12 Escape: Prisoner Defined – Arrestee Is Not A Prisoner (PC 4532).
See People v. Diaz (78) 22 Cal.3d 712, 717 [ordinary arrestee is not a prisoner].
Definition Of “Prisoner”
*Add to CJ 7.30:
A person is a prisoner for purposes of these instructions if at the time [he] [she] was [arrested] [detained] [taken into custody] [he] [she] was on parole for another offense and [he] [she] was [arrested] [detained] [taken into custody] in relation to that prior offense.
Points and Authorities
CJ 7.30 fails to define the term “prisoner” for purposes of a constructive incarceration case. Without such a definition, the instruction could be “reasonably interpreted to require the conviction of any ex-felon who fled the lawful custody of an officer during arrest, regardless of whether the ex-felon was then a prisoner as defined by [People v. Diaz] and regardless of whether the custody related to the previous felony conviction.” (People v. Nicholson (2004) 123 CA4th 823, 833.) Accordingly, CJ 7.30 should be modified to include the required definition of “prisoner.”
Escape: Definition Of Lawful Custody
*Add to CJ 7.30:
Lawful custody is the imposition of restraint or confinement under color of authority of law by which the person is physically deprived of his freedom of action in any significant way or is led to believe, as a reasonable person, that he is so deprived.
Points and Authorities
It is error to define lawful custody as an attempt to arrest a person based upon an arrest warrant since this definition is “far too broad.” (People v. Nicholson (2004) 123 CA4th 823, 834; see also People v. Parker (1978) 85 CA3d 439, 443; In re Estrada (1965) 63 C2d 740, 749.)