People v. Segura

SHINN, P. J. On information No. 158835 appellant was accused of grand theft consisting of the wilful, unlawful and felonious taking of a 1951 Oldsmobile 88 club coupe automobile, the personal property of Eleanore Fisher. It was alleged that he had previously been convicted of and served a term of imprisonment for robbery, a felony, and another felony, namely, violation of Dangerous Weapons Control Law. He was arraigned, pleaded not guilty and denied the prior convictions. Thereafter information No. 160606 was filed, accusing appellant of escape from custody of a deputy sheriff of the county of Los Angeles in violation of section 4532 of the Penal Code, a felony, in that while charged with a felony, to wit, violation of section 487, subdivision 3, Penal Code (theft of an automobile) appellant escaped from custody. The former convictions and service of terms of imprisonment were alleged as in information No. 158835. A deputy public defender was appointed to represent appellant at the trial. On motion of the People the two informations were consolidated, information No. 160606 being incorporated as count II of the consolidated information. Appellant withdrew his plea of not guilty as charged in count I (escape) and admitted the two prior convictions as alleged. He was sentenced to state prison upon his plea of guilty and count II of the information was dismissed.

Judgment ordering imprisonment in state prison was issued February 9, 1954. October 14, 1954, appellant made a motion to annul, vacate and set aside the judgment of conviction. The ground of the motion was “The punishment for escape, section 4532, P. C., is imprisonment in the County Jail, not prison.” The motion was denied and this appeal followed.

Appellant argues that escape from lawful custody by a person charged with a misdemeanor is a misdemeanor unless the escape is by force or violence, in which case it is a felony. He realizes that if the escape is by one charged with a felony, the escape is a felony under section 4532. He also realizes that the theft of an automobile is grand theft, but he argues that under section 489, Penal Code, which prescribes punishment for grand theft, imprisonment may be in the county jail for not more than one year or in the state prison for not less than one year nor more than 10 years. Appellant cites section 17 of the Penal Code which provides that every crime is a misdemeanor unless it is punishable with death or by imprisonment in the state prison and he relies upon the language of that section: “When a crime, punishable by [534]imprisonment in the state prison, is also punishable by fine or imprisonment in the county jail, in the discretion of the court, it shall be deemed a misdemeanor for all purposes after a judgment other than imprisonment in the state prison, unless the court commits the defendant to the California Youth Authority.” He contends that since no judgment was rendered upon the information charging him with grand theft, the offense must be deemed to have been a misdemeanor and therefore his escape, if accomplished without force or violence, was a misdemeanor only. He says in his briefs that he walked away from a deputy sheriff with the latter’s consent when he was mistaken for another person, but it is too late for inquiry into the truth of that assertion.