People v. Hasson

CONLEY, P. J.

The defendant, O. C. Hasson, Jr., confined in the Deuel Vocational Institution as a Youth Authority inmate, was charged with battery pursuant to section 4501.5 of the Penal Code, which reads as follows: " Every

[866]

person confined in a

state prison

of this state who commits a battery upon the person of any individual who is not himself a person confined therein shall be guilty of a felony and shall be imprisoned in the state prison not less than one year nor more than three years.” (Italics added.) The defendant was convicted and sentenced to prison. The evidence that he attacked a prison guard, one I. B. Selvy, is complete, and the evidence would justify the conviction without doubt were it not for the fact that the Supreme Court of the state has approved the holding of the Court of Appeal, Third Appellate District, that Deuel Vocational Institution is not a state prison as to Youth Authority inmates. This conclusion was reached by a majority of the justices of the Court of Appeal in and for the Third Appellate District in

People

v.

Romo,

256 Cal.App.2d 589 [64 Cal.Rptr.

151];

that case was not decided until November 30, 1967, whereas the Hasson trial was completed on May 16, 1967. The

Romo

ease held that the Deuel Vocational Institution is not a state prison insofar as the incarceration of California Youth Authority wards is concerned. Presiding Justice Pierce filed a strongly worded dissent. Were it not for the fact that the Supreme Court denied a hearing of the case after its decision in the Court of Appeal, we would feel free to consider the matter on its merits and, if we believed that Mr. Justice Pierce’s dissent was sound, we would not hesitate to decide accordingly.

However, it appears to us that footnotes in Supreme Court opinions, which are specific, have the same effect as parts of the opinion itself. And in a footnote appearing on page 351 of 45 Cal.2d 345 [289 P.2d 450, 54 A.L.R.2d 1137], in the case of