PEOPLE v. BECKHAM (1980)

Defendant James Roger Beckham was convicted of an escape from county jail (Pen.Code, § 4532(b)). We affirm.

At trial defendant admitted that he escaped from the Santa Barbara County jail on the night of 3-4 August 1978 by walking out of his cell after jamming the door with dominoes, exiting through the open back door of the jail, climbing a basketball pole, and then vaulting over the jail's outer wall. His defense, which was rejected by the trier of fact, was entrapment. Specifically, on 13 July 1978 defendant had been placed in an isolation cell after he and a cellmate were discovered in the early morning hours in the medical office of the jail. Defendant testified that after he was placed in isolation he had a conversation with an Officer Dedios in which defendant explained that he had cut the air ventilation securing unit in his cell, had then walked through the ventilation system and attic of the jail, and had eventually entered the medical office through a trap door. Defendant testified that Dedios then stated, “You know, if you guys wanted out, there's a place you could get out over the top of the women's section.” Defendant further testified that on another occasion, Dedios offered to sell him a jail key for $500, and that on the actual night of the escape, Dedios provided the dominoes and scotch tape which defendant used to jam his cell door. However, the deputy sheriff assigned to investigate the August 4 escape found no evidence of any involvement on the part of Officer Dedios in the escape.

On appeal, defendant argues the trial court erred in admitting evidence of three prior convictions, and in sentencing him.

1. Prior Convictions.

a. In May 1978 defendant was convicted of armed robbery (Pen.Code, § 211). Evidence of the robbery conviction was admitted in the trial at bench to impeach defendant. Defendant argues that the admission of this evidence was improper for two reasons: (1) because he had not actually been “convicted” yet in that the robbery conviction was still pending on appeal, and (2) because the evidence was more prejudicial than probative. (Evid.Code, § 352.)

A “conviction” is the trier of fact's finding that defendant is guilty (People v. Clapp (1944) 67 Cal.App.2d 197, 200, 153 P.2d 758; see also, Pen.Code, § 689), and the mere fact that the matter is pending on appeal does not foreclose the use of that conviction for impeachment purposes in a trial on a separate charge. (People v. Braun (1939) 14 Cal.2d 1, 6, 92 P.2d 402.)

Defendant's second argument is also without merit. A robbery by its very definition—“the felonious taking of personal property in the possession of another” (Pen.Code, § 211)—evinces a lack of integrity and honesty on the part of the perpetrator and therefore is probative on the issue of credibility. The robbery, which occurred in November 1977 was not too remote in time, and was sufficiently dissimilar to the crime charged that the jury could not have been improperly influenced by its admission into evidence. (See People v. Rist (1976) 16 Cal.3d 211, 219, 127 Cal.Rptr. 457, 545 P.2d 833; People v. Kyllingstad (1978) 85 Cal.App.3d 562, 568, 149 Cal.Rptr. 637.) The admission or exclusion of evidence under Evidence Code section 352 is discretionary, and we find no abuse of discretion here.

b. Defendant also objects to the admission of evidence of his 1958 conviction for attempted escape from county jail and his 1967 conviction for escape from state prison. The trial court found these convictions to be admissible to rebut defendant's entrapment defense. Preliminarily, defendant argues that his prior convictions for escape and attempted escape were inadmissible because they were not proved by the prosecution. At bench, defendant admitted the prior convictions and the prosecution, therefore, did not have to prove them. (See People v. Craig (1925) 196 Cal. 19, 28, 235 P. 721; People v. Donovan (1969) 272 Cal.App.2d 426, 434, 77 Cal.Rptr. 293; see also, Evid.Code, § 788.)

Defendant also argues that evidence of the prior escape convictions was inadmissible under the general rule excluding evidence of other crimes even when offered solely to prove criminal disposition or a propensity on the part of the accused to commit the crime charged. (Evid.Code, § 1101(a); People v. Foster (1974) 36 Cal.App.3d 594, 597, 111 Cal.Rptr. 6; People v. Kelley (1967) 66 Cal.2d 232, 238-239, 57 Cal.Rptr. 363, 424 P.2d 947.) However evidence of prior crimes is generally admissible to show intent, motive, guilty knowledge, or the presence of a common design or plan. (Evid.Code, § 1101(b); People v. Foster, supra, p. 597, 111 Cal.Rptr. 6; People v. Kelley, supra, p. 239, 57 Cal.Rptr. 363, 424 P.2d 947.) Because such evidence can be highly prejudicial, the Supreme Court in People v. Schader (1969) 71 Cal.2d 761, 80 Cal.Rptr. 1, 457 P.2d, 841, instructed the trial court to consider, inter alia, the following factors in deciding whether to admit such evidence: (1) whether the evidence “tends logically, naturally, and by reasonable inference to prove the issue upon which it is offered”; (2) “is offered upon an issue that will ultimately prove to be material to the People's case”; and (3) “is not merely cumulative with respect to other evidence which the People may use to prove the same issue.” (People v. Schader, supra, p. 775, 80 Cal.Rptr. p. 9, 457 P.2d p. 849.)

At bench, defendant admitted that he had escaped, and the only issue, therefore, was whether he had been entrapped by Officer Dedios. To prove that he had been entrapped, defendant was required to show that the idea of committing the crime of escape originated in someone else's mind and was suggested to the defendant by a law enforcement officer for the purpose of inducing him to commit a crime to provide cause for his arrest. (People v. Foster (1974) 36 Cal.App.3d 594, 596, 111 Cal.Rptr. 6.) If the original intent was manifested in the defendant's mind, that fact that the officer was present, provided the opportunity, or even encouraged the offense, is no defense. (People v. Foster, supra, pp. 596-597, 111 Cal.Rptr. 6; People v. Partlow (1978) 84 Cal.App.3d 540, 558, 148 Cal.Rptr. 744.)¹ Here evidence of defendant's prior escape convictions (1) tended “logically, naturally, and by reasonable inference” to establish defendant's preexisting intent to escape, (2) was offered on an issue which was critical to the People's case, and (3) was not cumulative. (See People v. Foster, supra.) We therefore conclude that the admission of evidence of defendant's prior convictions for escape and attempted escape was proper. Moreover, any possible error in the admission of this evidence was harmless because defendant's testimony, if believed, would show only that Dedios aided the escape.

2. Sentence. Defendant was sentenced to the middle term of two years to run consecutively with his sentence in case No. 120707 (the 1978 robbery case). The two-year term was to begin at the time defendant would otherwise have been released from state prison. Defendant contends that because the escape sentence was to run consecutively with the robbery sentence, the actual term imposed for the escape should have been only a third of the full two-year term, i. e. 8 months. (Pen. Code, § 1170.1(a).) Penal Code section 4532(b) under which defendant was convicted and sentenced provides that any person convicted of a felony who is confined in and then escapes from a county or city jail, is guilty of a felony. The section further provides that if the escape was not by force or violence, it is punishable by imprisonment in the state prison for 16 months, 2, or 3 years “to be served consecutively.” Penal Code section 1170.1(a) states that “Except as provided in subdivision (b) … when any person is convicted of two or more felonies, whether in the same proceeding or court or in different proceedings or courts, … and a consecutive term of imprisonment is imposed … the aggregate term of imprisonment for all such convictions shall be the sum of the principal term, the subordinate term and any additional term imposed pursuant to section 667.5 or 667.6. The principal term shall consist of the greatest term of imprisonment imposed by the court for any of the crimes … The subordinate term for each consecutive offense shall consist of one-third of the middle term of imprisonment proscribed for each other felony conviction for which a consecutive term of imprisonment is imposed …” Subsection (b) provides: “In the case of any person convicted of one or more felonies committed while such person is confined in a state prison … and the law either requires the terms to be served consecutively or the court imposes consecutive terms, the term of imprisonment for all such convictions which such person is required to serve consecutively shall commence from the time such person would otherwise have been released from prison.”

Defendant argues that subsection (b) is inapplicable because defendant was confined in a county jail rather than a state prison when he escaped. However, defendant had already been sentenced on July 19 to state prison in the robbery case, and it is clear the only reason he was in county jail at the time of his escape on 3 August 1978 was because he was awaiting trial on an attempted escape charge arising out of the July 13 incident. The People, therefore, argue, and we agree, that defendant was in essence in the “constructive custody” of the Department of Corrections and could properly be considered to be confined in “state prison” when he escaped. (See Pen.Code, § 4504(b).) We find no error in the trial court's imposition of a full two year consecutive term.

The judgment is affirmed.

FOOTNOTES

1.  The test of entrapment was subsequently revised by the Supreme Court in People v. Barraza (1979) 23 Cal.3d 675, 153 Cal.Rptr. 459, 591 P.2d 947 to make the accused's subjective intent irrelevant. However, because the revised entrapment test was “designed primarily to deter impermissible police conduct,” the new test is applicable only to trials commenced after the Barraza decision became final. (People v. Barraza, supra, p. 691, fn. 5, 153 Cal.Rptr. p. 468, 591 P.2d p. 956.)

FLEMING, Associate Justice.

ROTH, P. J., and BEACH, J., concur.