APPEAL from a judgment of the Superior Court of Los Angeles County, Charles D. Sheldon, Judge. Affirmed in part and reversed in part. (Los Angeles County Super. Ct. No. NA073903).
The opinion of the court was delivered by: Mosk, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
In the published portion of this opinion, we hold that the trial court prejudicially erred in instructing the jury, in effect, that defendant could be convicted of attempted escape by force or violence under Penal Code section 4532*fn2 if it found that she attempted to escape from an officer's custody within the confines of the jail. Section 4532 does not apply to breaking away from the custody of an officer within the custodial facility. We therefore reverse the conviction on that count. In the unpublished portion of this opinion we reverse the conviction on another count on the basis of instructional error, and otherwise affirm the judgment.
Defendant and appellant Carmella Ligons (defendant) had been arrested for violating section 69 by resisting eviction from her residence following a foreclosure. On March 30, 2007, Long Beach Police Department Detention Officer Judy Gomez and her partner, Officer Teresa Olivarez, were working in the Long Beach Police Department's women's jail. Defendant was housed by herself in a cell. About 5:30 p.m., Officer Olivarez went to defendant's cell to collect defendant's dinner tray, plate, and utensils. Defendant's cell door had a flap through which the tray could be passed. When Officer Olivarez asked defendant to pass her tray through the flap, defendant smashed her arm on the flap and yelled, "They're beating me. They're beating me." Officer Olivarez again asked defendant to pass her tray through the flap, and defendant threw out the tray at Officer Olivarez.
Officer Gomez noticed that defendant had not returned a plastic spoon. The officers were required to collect all utensils because they could be used as weapons. Officer Gomez looked through the window in the door to defendant's cell and saw the spoon. Officer Olivarez asked defendant to return the spoon. Defendant did not respond, but instead kept raising the door flap and saying that the officers were beating her. When the officers again asked defendant to return the spoon, defendant refused, saying that she wanted to get out and go home. Defendant screamed, "I need to go home. I want to get out. I want to use the phone. I want to go home." Officer Gomez told defendant that she would get to use the telephone and go home, but not at that moment.
Officer Olivarez asked defendant to step to the far end of her cell. Defendant complied. The officers opened the cell door slowly. Officer Gomez continued to talk to defendant, telling her to calm down, that she would go home, but not at that moment, and that she would be allowed to use the telephone. Office Gomez entered the cell first, and Officer Olivarez followed. Officer Olivarez retrieved the spoon and the officers began to back out of the cell. Officer Olivarez exited the cell first, followed by Officer Gomez. As Officer Gomez was backing out of the cell, defendant started to walk towards her. Defendant said that she wanted to use the telephone that was in the "control area" in front of the women's jail. Officer Gomez responded that she would roll a special pay telephone to defendant's cell that defendant would be able to use with the flap open. Defendant said, "I don't want to use that phone. I want to use the one in the front. I need to go home. I need to get out."
Defendant charged at Officer Gomez and started to push the officer out of the cell. Defendant said, "'I need to get out. I need to go home.'" Defendant's "whole body weight" was on the officer.*fn3 Officer Gomez pushed back while trying, at the same time, to back out of the cell. Officer's Gomez's efforts to push defendant back were unsuccessful because defendant was much stronger than the officer. Defendant began to overpower Officer Gomez, and Officer Gomez pushed defendant as hard as she could. Defendant then charged Officer Gomez again and hit the officer under her arms. Defendant then pushed her way halfway out of the door. At the preliminary hearing, Officer Gomez testified that she had received injuries from "this"- bruises under both of her arms, on her biceps, and on her left arm. At trial, Officer Gomez testified that defendant caused those injuries.
Officer Gomez jumped out of the way and told Officer Olivarez to close the door. Officer Olivarez attempted to close the door, but defendant's body was halfway through the doorway. Officer Gomez told defendant to go into her cell and sit down. Defendant tried to strike the officer. Defendant said, "I want to get the f--k out. I want to go home. I want to go home now." Officer Olivarez also instructed defendant to sit down, and continued to push on the door so defendant could not exit.
Officer Gomez called the men's jail on another floor for backup, but no one responded. Defendant continued to struggle to get out of the cell and, slowly, began to push her way out. Officer Olivarez called the men's jail and told a sergeant that she and Officer Gomez needed immediate assistance. Again, the officers did not receive any help. As defendant pushed her way out of the cell, she attempted to strike Officer Gomez, saying, "I need to get the f--k out. I need to go home."
Officer Olivarez testified, "Towards the end of the incident [defendant] stated to Officer Gomez that she was going to f--k us up if she got out, and that was the point where we realized this was not going well. We were going to need to do something else to try to put an end to this before anybody got hurt." Officer Gomez told Officer Olivarez to hold the door for a few more minutes. Officer Gomez, who was unarmed, then ran to get a fire extinguisher believing that she could scare defendant into her cell by spraying her with the fire extinguisher.
Officer Gomez approached defendant with the fire extinguisher and told her, "Go have a seat. This is your last warning." Defendant responded, "No. I need to get the f--k out. I need to go home." Officer Gomez shoved defendant with the fire extinguisher to see if she could scare her. Defendant did not appeared to be scared and said, "'I'm tired of playing games with you. I need to go home. I've already told you. I need to get the f--k out and I'm going to beat you guys' f--king ass.'" Officer Gomez sprayed defendant in the face with a quick burst from the fire extinguisher. Defendant coughed and started to push her way out of the cell. Officer Olivarez stated that she could not hold the door any longer and Officer Gomez sprayed defendant in the face a second time with a prolonged spray. Defendant coughed and let go of the door. Officer Gomez pushed defendant, and Officer Olivarez closed the cell door. Officer Gomez testified that the struggle lasted from 20 to 30 minutes.
A jury convicted defendant of resisting an executive officer (§ 69), attempted escape by force or violence (§ 4532, subd. (b)(2)), and assault by means like to produce great bodily injury (§ 245, subd. (a)(1)). The trial court apparently found true the allegation that defendant suffered a prior conviction within the meaning of section 667, subdivisions (b) through (i) and 1170.12, subdivisions (a) through (d), and struck that prior conviction for purposes of sentencing.*fn4 The trial court sentenced defendant to state prison for four years and eight months consisting of a four-year term for defendant's attempted escape by force or violence conviction, a concurrent two-year term for her assault by means likely to produce bodily injury conviction, and an eight-month consecutive term for her resisting an executive officer conviction.
On appeal, defendant contends, inter alia, that the trial court gave an erroneous instruction as to the attempted escape. Defendant asserts that the error was prejudicial and that therefore her conviction should be reversed.
I. The Trial Court Prejudicially Erred In Instructing The Jury On The Offense Of Attempted Escape By Force Or Violence
Defendant contends that the trial court erred in instructing the jury that she could be convicted of attempting to escape from "the lawful custody of an officer" in violation of section 4532. Defendant argues that under section 4532, it is illegal for a prisoner to escape from jail or to escape from the lawful custody of an officer while outside of jail, but it is not illegal for a prisoner to escape from the custody of an officer while in jail. We agree.
Section 4532, subdivision (b)(1) provides:
"Every prisoner arrested and booked for, charged with, or convicted of a felony, and every person committed by order of the juvenile court, who is confined in any county or city jail, prison, industrial farm, or industrial road camp, is engaged on any county road or other county work, is in the lawful custody of any officer or person, or is confined pursuant to Section 4011.9, is a participant in a home detention program pursuant to Section 1203.016, who escapes or attempts to escape from a county or city jail, prison, industrial farm, or industrial road camp or from the custody of the officer or person in charge of him or her while engaged in or going to or returning from the county work or from the custody of any officer or person in whose lawful custody he or she is, or from confinement pursuant to Section 4011.9, or from the place of confinement in a home detention program pursuant to Section 1203.016, is guilty of a felony...."*fn5
The trial court instructed the jury on defendant's alleged violation of section 4532, subdivision (b)(2) with CALJIC No. 7.31 as follows:
"Defendant is accused in Count 2 of having committed the crime of attempted escape by force or violence, a violation of section 4532, subdivision (a)(2) (b)(2) of the Penal Code.
"Every prisoner arrested and booked for a felony who is confined in any city jail under the lawful custody of any officer, attempts to escape by force or violence the lawful custody of that officer, is guilty of the crime of escape by force or violence in violation of Penal Code section 4532, subdivision (a)(2) (b)(2).
"The term 'booked' means the recordation of an arrest in official police records, and the taking by the police of fingerprints and photographs of the person arrested, or any of these acts following an arrest.
"The term 'charged with' means that a formal complaint, information, alleging the commission of a crime by the defendant, has been filed.
"As used in this instruction, the words 'force' and 'violence' are synonymous and mean any wrongful application of physical force against property or the person of another.
"In order to prove this crime, each of the following elements must be proved:
"1. A person was arrested and booked or charged with a felony.
"2. That person was confined in a jail or prison under the lawful custody of an officer; and
"3. That person attempted to escape with specific intent to escape, with force or violence from jail or the lawful custody of such officer."
Defendant contends that subdivision (b)(1) of section 4532 proscribes a number of alternative and mutually exclusive theories of attempted escape and that one such theory of attempted escape-that concerning a prisoner's attempted escape from the "lawful custody of any officer"-applies only to those attempted escapes from an officer's custody that occur outside the jail, such as, for example, when an officer transports a prisoner from jail to the courthouse. Thus, defendant argues CAJIC No. 7.31, as given, was erroneous because it permitted the jury to find defendant guilty of attempted escape by force or violence if it found she attempted to escape from an officer's custody within the confines of the jail.
In support of her claim of instructional error, defendant relies on language from In re Culver (1968) 69 Cal.2d 898. There, the Supreme Court addressed whether an arrestee who fled from the arresting officer but before the booking of the person under arrest was a "prisoner" within the meaning of, and thus subject to, the provisions of subdivision (b) of section 4532. (Id. at pp. 900-901.) The court analyzed in detail the legislative history of that section and concluded that the legislative history "indicates that section 4532 applies only to persons incarcerated in jails and other institutions of confinement who escape therefrom or such persons who escape from the custody of those to whom they have been entrusted while temporarily outside such places of confinement." (Id. at p. 900.) Holding that because the arrestee had not yet been booked, he was not a "prisoner" within the meaning of section 4532, the court granted the petitioner's writ of habeas corpus. (Id. at pp. 904-905.) The court said that it was not unreasonable for the Legislature to conclude that other provisions of the Penal Code were sufficient to deal with escapes from arresting officers and that "an arrestee who has not yet been incarcerated and who may have done no more than walk away from an arresting officer should not be declared guilty of the felony of escape." (Id. at p. 905.)
In a later decision, People v. Diaz (1978) 22 Cal.3d 712, the Supreme Court explained that in In re Culver, supra, 69 Cal.2d 898, it had "pointed out that although the literal language of the section 'might be construed to apply to an arrestee's flight from the arresting officer,' legislative history made it clear that the use of the term 'prisoner' was intended as limiting the section either to those incarcerated in prison or 'to prisoners incarcerated in facilities other than prisons or who might be temporarily in custody outside the walls of a custodial facility....' [Citation.] We concluded, accordingly, that 'the statute does not apply until an arrestee has been booked preparatory to incarceration in a jail or other place of confinement and thereby becomes a prisoner within its meaning.' [Citations.]" (People v. Diaz, supra, 22 Cal.3d at p. 715.)
"'"In construing a statute, our role is to ascertain the Legislature's intent so as to effectuate the purpose of the law. [Citation.] In determining intent, we must look first to the words of the statute because they are the most reliable indicator of legislative intent. [Citation.] If the statutory language is clear and unambiguous, the plain meaning of the statute governs. [Citation.]" (People v. Lopez (2003) 31 Cal.4th 1051, 1056 [6 Cal.Rptr.3d 432, 79 P.3d 548].) In other words, if there is "no ambiguity or uncertainty in the language, the Legislature is presumed to have meant what it said," and it is not necessary to "resort to legislative history to determine the statute's true meaning." (People v. Cochran (2002) 28 Cal.4th 396, 400-401 [121 Cal.Rptr.2d 595, 48 P.3d 1148].)' (People v. Licas (2007) 41 Cal.4th 362.) 'We begin by examining the statute's words, giving them a plain and commonsense meaning.' (People v. Murphy (2001) 25 Cal.4th 136, 142.) [¶] 'But the "plain meaning" rule does not prohibit a court from determining whether the literal meaning of a statute comports with its purpose or whether such a construction of one provision is consistent with other provisions of the statute. The meaning of a statute may not be determined from a single word or sentence; the words must be construed in context, and provisions relating to the same subject matter must be harmonized to the extent possible. (Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1386-1387 [241 Cal.Rptr. 67, 743 P.2d 1323].) Literal construction should not prevail if it is contrary to the legislative intent apparent in the statute. The intent prevails over the letter, and the letter will, if possible, be so read as to conform to the spirit of the act. (People v. Belton (1979) 23 Cal.3d 516, 526 [153 Cal.Rptr. 195, 591 P.2d 485]; Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 245 [149 Cal.Rptr. 239, 583 P.2d 1281].)...; and if a statute is amenable to two alternative interpretations, the one that leads to the more reasonable result will be followed (Metropolitan Water Dist. v. Adams (1948) 32 Cal.2d 620, 630-631 [197 P.2d 543]).' (Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735.) [¶] '... Courts also look to the legislative history of the enactment. "Both the legislative history of the statute and the wider historical circumstances of its enactment may be considered in ascertaining the legislative intent." (Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1387 [241 Cal.Rptr. 67, 743 P.2d 1323].)...'" (Absher v. AutoZone, Inc. (2008) 164 Cal.App.4th 332, 339-340.) In addition, when a penal statute "is susceptible to two reasonable interpretations, the appellate court should ordinarily adopt the interpretation more favorable" to the accused. (People v. Avery (2002) 27 Cal.4th 49, 57.)
As discussed in In re Culver, supra, 69 Cal.2d at pages 901-902, the Legislature by adding to a predecessor of section 4532 the language "'every prisoner charged with or convicted of a felony... who escapes... from the lawful custody of any officer'" intended to "extend the coverage of the sections to prisoners incarcerated in facilities other than prisons or who might be temporarily in custody outside the walls of a custodial facility...." Later amendments did not bear on this conclusion. (Id. at p. 904.) It defies common sense to consider bolting from the physical custody of a correctional officer within a jail or prison without intending to leave the custodial facility as an "escape" under section 4532. For example, if a prisoner breaks loose of a prison guard inside a cell block or prison yard, or, as might be the case here, a jail inmate tries to break away from a correctional officer in order to get to a jail phone, those events would not fit within the customary understanding of a prison or jail "escape." (See Garner, A Dictionary of Modern Legal Usage (2d ed. 1995) 325 [escape refers to "an unlawful departure from legal custody"]; Black's Law Dictionary (3d ed. 1933) 678 [escape is "[t]he departure or deliverance out of custody of a person who was lawfully imprisoned, before he is entitled to his liberty by the process of law"].) A prisoner who breaks loose from a correctional officer escorting him or her from one part of a prison or jail to another, without intending to leave the facility, might violate section 69 [obstructing or resisting executive officer in performance of their duties], or sections 241.1 and 243.1 [assault and battery committed against a custodial officer]-but the prisoner does not violate section 4532. As noted with respect to arresting officers in In re Culver, supra, 69 Cal.2d at page 905, the Legislature reasonably concluded that other statutes are adequate to protect correctional officers in the performance of their duties when the prisoner is within their custody.
Section 4532 refers to the "custody of any officer or person." When confined in a penal institution, the prisoner is in the legal custody of that institution-not of any individual officer within that institution, even if the prisoner might be in the physical custody of a correctional officer at a particular moment. (See §§ 653.75 [offense while in "custody in any local detention facility"]; 13128 [public offense "while in custody in any local detention facility"]; 13154 [public offense while "in custody in any local detention facility, or any state prison"].) Moreover, other statutes covering "escape" do not mention the custody by an officer. (See, e.g., §§ 107, 4133.)
Accordingly, the language of the Supreme Court in In re Culver, supra, 69 Cal.2d 898, the legislative history of section 4532 referred to in that case, the wording of that statute and common sense combine to render an interpretation of the statute to exclude from an escape in violation of section 4532 merely breaking away from the physical custody of a correctional officer within a jail and with no intent to leave the jail.
As given, CALJIC No. 7.31, contrary to section 4532, erroneously permitted the jury to find defendant guilty of attempted escape by force or violence if it found that she attempted to escape from the custody of an officer while in jail, even if it did not also find that defendant attempted to escape from the jail itself. That erroneous instruction prejudiced defendant. "An instruction that omits or misdescribes an element of a charged offense violates the right to jury trial guaranteed by our federal Constitution, and the effect of this violation is measured against the harmless error test of Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 87 S.Ct. 824]. (People v. Williams (2001) 26 Cal.4th 779, 797 [111 Cal.Rptr.2d 114, 29 P.3d 197].) Under that test, an appellate court may find the error harmless only if it determines beyond a reasonable doubt that the jury verdict would have been the same absent the error. (Neder v. United States (1999) 527 U.S. 1, 15 [144 L.Ed.2d 35, 119 S.Ct. 1827 [(Neder)].)" (People v. Samaniego (2009) 172 Cal.App.4th 1148, 1165.) The record in this case does not support a holding of such harmless error.
Defense counsel, in pertinent part, argued to the jury that defendant "wanted to use the phone. She wanted to get out of that cell to use the phone. She wanted to call internal affairs. She felt that she was being treated unfairly. That was her intent that day, and that's the only intent they can prove. Trying to get out of that cell. Nothing says she tried to walk out the door of that jail. When you look at the jury instruction it does not say 'escape from a cell.' It ...