People v. Cota

Opinion

HARRIS, J.* —Appellant Jesse Henry Cota was charged on September 25, 1985, with escape, a violation of Penal Code section 4532, subdivision (a);1 the complaint also alleged a prior felony conviction under section 667.5, subdivision (b). On December 27,1985, a second complaint was filed against appellant in another action alleging three counts of forgery in violation of section 470 and one prior conviction under section 667.5, subdivision (b). In municipal court on January 14, 1986, appellant pleaded guilty to one count of forgery and escape and admitted the prior conviction alleged in the second complaint. The other charges were dismissed and the allegations struck.

[152]Appellant was sentenced in superior court on February 11,1986. The trial court denied probation and sentenced appellant to a two-year state prison term for the forgery conviction. One year enhancement for the prior conviction was added. The court then imposed a consecutive sentence on the escape conviction, setting the time at one year and one day. Appellant’s total sentence was four years and one day.2

Appellant’s sole contention on appeal is that the trial court erroneously failed to apply section 1170.1, subdivision (a), by imposing consecutively the full determinate term of one year and one day for nonviolent escape, rather than one-third the term.

Discussion

Section 4532, subdivision (a), provided in relevant part:3 “Every prisoner ... convicted of a misdemeanor, ... who is confined in any county or city jail or prison or industrial farm or industrial road camp or who is engaged on any county road or other county work ... , and who thereafter escapes or attempts to escape ... from the custody of the officer or person in charge of him while engaged in or going to or returning from such county work or from the custody of any officer or person in whose lawful custody he is, is guilty of a felony and, if such escape or attempt to escape was not by force or violence, is punishable by imprisonment in the state prison for a determinate term of one year and one day, or in the county jail not exceeding one year; ..

The state prison term for nonviolent escape is set at a single term of one year and one day. Appellant argues that notwithstanding the unique nature of the single determinate term, in sentencing consecutively, the court is constrained to imposing the “one-third of the middle term” limitation of section 1170.1, subdivision (a).4 The Attorney General replies that the Legis