People v. Eggleston

DRAPER, P. J.

A jury found defendant guilty of possession of a knife while confined in a prison (Pen. Code, § 4502). He was sentenced to a term concurrent with that he was already serving. He appeals.

Two prison-made knives were found wrapped in a rolled blanket at the foot of defendant’s bed. Brought before the prison disciplinary committee, he admitted an infraction of prison rule D-1205, possession of a weapon in the prison, and was confined in an isolation unit for 29 days. The present prosecution followed. At trial, he contended that the knives were placed in his bedroll by another, but the jury, on evidence concededly sufficient, found against him.

Defendant urges that the “punishment” of solitary confinement placed him once in jeopardy, and that this prosecution is therefore within the proscription of double jeopardy. Under the California jeopardy rule (Cal. Const., art. I, § 13; Pen. Code, § 1023), prison disciplinary measures do not bar subsequent prosecution in a criminal action for violation of a penal statute prohibiting the same act which was the basis of the prison discipline

(People

v.

Elliott,

221 Cal.App.2d 575 [34 Cal.Rptr. 560] ;

People

v.

Mason,

200 Cal.App.2d 282, 284 [19 Cal.Rptr. 240];

People

v.

Garmon,

177 Cal.App.2d 301, 303-304 [2 Cal.Rptr. 60] ;

People

v.

Conson,

72 Cal.App. 509 [237 P. 799]). Nor is such action barred by the statute (Pen. Code, § 654) proscribing double punishment

(People

v.

Ford,

175 Cal.App.2d 37 [345 P.2d 354]).

But, says defendant, the Fifth Amendment to the Constitution of the United States is, by the Fourteenth Amend: ment, made applicable to the states, and thus the federal court interpretations of the double jeopardy clause of the Fifth govern this case. Those interpretations, he says, require a holding that the present prosecution is barred. The premise that the Fourteenth Amendment makes the Fifth wholly applicable to the states has not been adopted by the United States Supreme Court (see