People v. Nunez

[282]

Opinion

FRANSON, Acting P. J.

Statement of the Case

Appellant stands convicted after a court trial of several felonies arising out of an escape from the Fresno County jail on January 16, 1983. Two custodial officers allegedly were injured by appellant and two other escapees during the escape. At the time of the escape, appellant had been sentenced to life imprisonment without the possibility of parole for a conviction of murder and was awaiting transportation to state prison.

A first amended information was filed charging appellant in counts one and two of assault on a custodial officer (Officers Fall and Gregory) by means of force likely to produce great bodily injury (Pen. Code, § 245.3) with the additional allegation that great bodily injury was intentionally inflicted with respect to count one involving Officer Fall (Pen. Code, § 12022.7); count three, of escape and attempted escape from the Fresno County jail (Pen. Code, § 4532, subd. (b)); count four, of assault with a deadly weapon by a person undergoing a life sentence in a state prison (Pen. Code, § 4500), and count five, of escape and attempt to escape from the Fresno County jail by force and violence (Pen. Code, § 4530, subd. (a)). A prior conviction of murder was also alleged.

Appellant pleaded not guilty to all of the charges and denied the special allegations.

Appellant moved under Penal Code section 995 to dismiss count four which alleged assault by a person undergoing a life sentence in a state prison on the ground that he was not in a state prison but in the Fresno County jail awaiting transportation to the state facility at Vacaville when the assault and escape occurred. The trial court denied the motion, reasoning that the Legislature intended by the enactment of section 4500 “to proscribe the conduct of life sentence prisoners . . . whether [they] are in a county jail awaiting transportation [to prison] or are in a state prison, ...”

After waiving a jury trial, appellant was found guilty of all charges, and the prior conviction of murder was found true. Appellant moved for a new trial on the ground that counts three and five were inconsistent. The trial court agreed, but rather than granting a new trial it simply dismissed count five.