In Re Kindred

Opinion

BROWN (G. A.), P. J.

Petitioner asserts that he was illegally sentenced to a full consecutive prison term upon his conviction of escape from prison in violation of Penal Code section 4530, subdivision (b).

1

He seeks a writ of habeas corpus directing the trial court to modify its judgment to impose a lawful sentence.

2

Facts

On April 19, 1978, petitioner was sentenced to prison for four years upon his conviction of burglary in Kern County Superior Court action No. 19038.

On February 14, 1980, petitioner was sentenced to prison for two years upon his conviction of escape from prison in violation of section 4530, subdivision (b), in Kern County Superior Court action No. 20652. The escape sentence is consecutive to the burglary sentence; the

[167]

abstract of judgment states that the escape sentence shall commence upon completion of the sentence imposed in Kern County action No. 19038.

Discussion

Petitioner contends that the term for his consecutive sentence for escape should be computed pursuant to section 1170.1, subdivision (a). We disagree. By its express terms, subdivision (a) is not applicable where subdivision (b) of section 1170.1 applies.

3

Section 1170.1, subdivision (b),

4

clearly applies to petitioner’s conviction of escape from prison in violation of section 4530, subdivision (b). Petitioner could not have been convicted of violating section 4530, subdivision (b), unless he was a prisoner confined in a state prison at the time of the escape. Therefore, petitioner necessarily committed the escape while confined in a state prison. The law requires the escape term to be served consecutively (§ 4530, subd. (b)), and the trial court actually imposed a consecutive term for the escape. Thus, all of the requirements for application of section 1170.1, subdivision (b), are satisfied.