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F 7.31 n1 Escape: Applicability To Home Detention Program (PC 4532).
(See FORECITE F 7.30 n7.)
F 7.31a
Escape By Force Or Violence: Defendant Must Personally Use Force Or Violence
Or Aid And Abet Or Conspire With The Person Who Used Force Or Violence
*Add to CJ 7.31:
In order to prove the “force or violence” element of the charge, the prosecution must prove beyond a reasonable doubt that the defendant [personally used force or violence] [or] [aided and abetted the person who used force or violence] [or] [conspired with the person who used force or violence].
Points and Authorities
In People v. Davis (85) 166 CA3d 760, 767 [212 CR 673], the Court of Appeal held that the force or violence provisions in PC 4532(a) and PC 4532(b) apply to prisoners who escape knowing that the previous or contemporaneous use of force or violence created the conditions that made their escape possible. (Id. at 768.) However, in People v. Moretto (94) 21 CA4th 1269, 1276 [26 CR2d 719], the Court of Appeal disagreed with Davis holding the prisoner must have personally use force or violence in order to escape or aided and abetted or conspired with the person who used force or violence. Accordingly, CJ 7.31 should be modified to properly require this element.
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII.]
