Opinion
F073150
09-14-2017
THE PEOPLE, Plaintiff and Respondent, v. DENERO LEON WATERS, Defendant and Appellant.
George J. Vasquez, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Sarah J. Jacobs, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Merced Super. Ct. No. 15CR04986)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Merced County. Ronald W. Hansen, Judge. George J. Vasquez, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Sarah J. Jacobs, Deputy Attorneys General, for Plaintiff and Respondent.
Before Detjen, Acting P.J., Meehan, J. and Black,† J.
-ooOoo-
INTRODUCTION
Appellant Denero Leon Waters was convicted of escape from custody, a violation of Penal Code section 4532, subdivision (a)(1). He contends the evidence is insufficient to sustain the conviction. He also contends the trial court erred at sentencing. We affirm the conviction, but modify the sentence.
All further statutory references are to the Penal Code unless otherwise specified.
FACTUAL AND PROCEDURAL SUMMARY
On September 17, 2015, Waters was charged with escape from custody, in violation of section 4532, subdivision (a)(1). It also was alleged that he had served six prior prison terms.
At trial, Waters stipulated to his identity and that he was in custody on August 14, 2015. He also stipulated that he was released on a pass on August 17, 2015, was to report back on August 21, 2015, and was taken into custody on August 28, 2015.
Waters testified that he was in jail on August 14, 2015, and was transported to court for a hearing. At the hearing, he asked for a pass to be released from custody. He was granted a pass from August 17 to August 21, 2015. Waters knew he was to report to the probation office every day he was on release; he reported the first day of his release, but not on any other days.
Three exhibits introduced by the People were admitted into evidence. One exhibit was a minute order reflecting Waters received a pass on August 17, 2015, was to return to court on August 21, 2015, and was to report to probation every day while out on the pass. The second exhibit was the pass itself, reflecting the release date, condition to report to probation, and return date. The third exhibit was a minute order reflecting Waters failed to appear as ordered on August 21, 2015. The People did not call any witnesses to testify.
The jury found Waters guilty of escape. The People moved to dismiss all enhancements; the motion was granted. The trial court sentenced Waters to one year and one day for the escape from custody offense, to be served consecutive to his second degree burglary conviction in case number 15CR-02085.
DISCUSSION
Waters contends the evidence is insufficient to sustain his conviction for escape from custody in violation of section 4532 because he was released from custody by a judge, not a sheriff. He also contends the trial court erred at sentencing by failing to apply section 1170.1, subdivision (a), thereby reducing his sentence for the escape offense to one-third the midterm.
I. Section 4532
Section 4532, subdivision (e) provides in relevant part: "The willful failure of a prisoner, whether convicted of a felony or misdemeanor, to return to his or her place of confinement no later than the expiration of the period that he or she was authorized to be away from that place of confinement, is an escape from that place of confinement." " 'An escape is an unlawful departure from the limits of an inmate's custody.' [Citation.]" (People v. Allen (2016) 6 Cal.App.5th 1, 4.) The specific intent to escape is not required. (Ibid.)
Here, Waters was confined to the county jail, obtained a temporary release, and failed to return as ordered. While Waters contends he can only be found guilty of violating section 4532 if he was released by the sheriff, not by a judicial officer, there is nothing in the language of section 4532 that so restricts its application. Under the " 'rules of statutory construction, we do not read into the statute a limitation that is not there [citation]' ...." (People v. Clark (2011) 201 Cal.App.4th 235, 248-249.)
An unlawful departure from the limits of his custody constitutes an escape. (People v. Allen, supra, 6 Cal.App.5th at p. 4.) A variety of circumstances has been found to support a section 4532 conviction for escape from custody. (See e.g., People v. Potts (2016) 247 Cal.App.4th 1167, 1175-1176 [defendant on a home detention program failed to return directly home after work]; People v. Kunes (2014) 231 Cal.App.4th 1438, 1440 [defendant placed on home monitoring was guilty of escape from custody by force when he cut the ankle monitor]; People v. Nicholson (2004) 123 Cal.App.4th 823, 826 [parolee who fled from officers attempting to place him under arrest was guilty of escape from custody].)
Waters was granted a temporary release from the confines of the county jail by the judicial officer and failed to return when the temporary pass expired. His conduct fell squarely within the definition of escape from custody set forth in section 4532, subdivision (e).
II. Sentencing Error
The trial court imposed a consecutive term of one year and one day for the section 4532 conviction, to be served consecutive to the principal term for the second degree burglary, as provided for in section 4532, subdivision (a). The term for the escape conviction was a consecutive, subordinate term and thus, section 1170.1, subdivision (a) applies. (People v. Cota (1987) 191 Cal.App.3d 150, 154-155 (Cota).)
In Cota, this court held that terms imposed for section 4532, subdivision (a) convictions are subject to the limitation of section 1170.1, subdivision (a), even though section 4532 imposes a single term of punishment, not a triad. (Cota, supra, 191 Cal.App.3d at p. 154.) Therefore, the term imposed for the escape conviction should be one-third of one year and one day, or 122 days.
DISPOSITION
The term imposed for the section 4532, subdivision (a)(1) conviction is modified from one year and one day to 122 days. In all other respects, the judgment is affirmed. The superior court shall prepare a modified abstract of judgment and disseminate the same to all appropriate authorities.
† Judge of the Fresno Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.