People v. Jackson

[769]Opinion

PUGLIA, P. J.— Defendant contends that the trial court erroneously ran a term of imprisonment for burglary second degree (Pen. Code, § 459) consecutively to a term of imprisonment for escape with force and violence (Pen. Code, § 4532, subd. (b)). He argues that the escape term should instead be made to run consecutively to the burglary term. We reject defendant’s contention and affirm the judgment.

In 1975 defendant was placed on three years’ probation for receiving stolen property (Pen. Code, § 496.) In August 1977, he was charged with burglary (Pen. Code, § 459) alleged to have been committed on July 20, 1977. At a hearing in October 1977, on an alleged violation of probation on the receiving conviction, the trial court revoked probation and ordered defendant remanded to custody. Defendant, then on bail on thé burglary charge, ran out of the courtroom, knocked down a deputy sheriff, and escaped.

Defendant was charged with violation of Penal Code section 4532, subdivision (b) accomplished by force and violence. He pleaded guilty to that charge on November 21, 1977. On November 25, 1977, he entered a plea of guilty to the burglary charge in the second degree. The trial court sentenced defendant to state prison for both escape and burglary. The middle term for escape (three years) was used as the principal term, to which was cumulated a consecutive sentence for burglary second degree, consisting of one-third of the middle term (two years) for that offense or eight months. The defendant was thus committed for a total determinate term of three years and eight months.1

The contention is that escape may not be used as the principal term under the determinate sentence law because section 4532, subdivision (b) renders escape punishable by imprisonment in the state prison “to be served consecutively.” Thus, the argument proceeds, another conviction, here the burglary second degree, must serve as the primary term with the escape to run consecutively thereto as a subordinate term. Under that formulation, defendant would be liable for imprisonment for two years, the middle term for burglary second degree (Pen. Code, §§ 18, 461) plus twelve months, being one-third of the three-year middle term for escape [770]