California Criminal Jury Instructions (CALCRIM) (2017)

2760. Escape

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(iv) Escape
2760.Escape (Pen. Code, § 4532(a)(1) & (b)(1))
The defendant is charged [in Count ] with (escape/ [or]
attempting to escape) [in violation of Penal Code section 4532].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant was a prisoner who had been ((arrested and
booked for[,]/ [or] charged with[,]/ [or] convicted of) a
(misdemeanor/felony)/committed by order of the juvenile court
to an adult facility);
<Alternative 2A—confined in penal institution>
[2. The defendant was confined in (a/an) (county jail/city jail/prison/
industrial farm/industrial road camp);]
<Alternative 2B—engaged in county work>
[2. The defendant was working on (a county road/ [or other] county
work) as an inmate;]
<Alternative 2C—lawful custody>
[2. The defendant was in the lawful custody of (an officer/ [or] a
person);]
<Alternative 2D—work furlough>
[2. The defendant was confined in (a/an) (county jail/city jail/prison/
industrial farm/industrial road camp) but was authorized to be
away from the place of confinement in connection with a work
furlough program;]
<Alternative 2E—temporary release>
[2. The defendant was confined in (a/an) (county jail/city jail/prison/
industrial farm/industrial road camp) but was away from the
place of confinement in connection with an authorized temporary
release;]
<Alternative 2F—home detention>
[2. The defendant was a participant in a home detention program;]
<Alternative 2G—confined under Pen. Code, § 4011.9>
[2. The defendant was confined as an inmate in a hospital for
treatment even though no guard was present to detain the
defendant;]
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AND
<Alternative 3A—confined in penal institution>
[3. The defendant (escaped/ [or] attempted to escape) from the (jail/
prison/farm/camp).]
<Alternative 3B—engaged in county work>
[3. The defendant (escaped/ [or] attempted to escape) from the
custody of the (officer/ [or] person in charge of (him/her)) while
engaged in work at, or going to or returning from, the county
work site.]
<Alternative 3C—lawful custody>
[3. The defendant (escaped/ [or] attempted to escape) from the
custody of the (officer/ [or] person) who had lawful custody of
the defendant.]
<Alternative 3D—work furlough>
[3. The defendant (escaped/ [or] attempted to escape) from the (jail/
prison/farm/camp) by failing to return to the place of
confinement.]
<Alternative 3E—temporary release>
[3. The defendant (escaped/ [or] attempted to escape) from the (jail/
prison/farm/camp) by failing to return to the place of
confinement.]
<Alternative 3F—home detention>
[3. The defendant (escaped/ [or] attempted to escape) from the place
of confinement in the home detention program.]
<Alternative 3G—confined under Pen. Code, § 4011.9>
[3. The defendant (escaped/ [or] attempted to escape) from the place
of hospital confinement.]
[A person has been booked for a (misdemeanor/felony) if he or she has
been taken to a law enforcement office where an officer or employee has
recorded the arrest and taken the person’s fingerprints and
photograph.]
[A person has been charged with a (misdemeanor/felony) if a formal
complaint, information, or indictment has been filed in court alleging
that the person committed a crime.]
Escape means the unlawful departure of a prisoner from the physical
limits of his or her custody. [It is not necessary for the prisoner to have
left the outer limits of the institution’s property. However, the prisoner
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must breach a wall or fence marking the security perimeter of the
correctional facility. It is not sufficient for the prisoner to be merely
outside the particular area within the facility where he or she is
permitted to be.]
[A prisoner also escapes if he or she willfully fails to return to his or her
place of confinement within the period that he or she was authorized to
be away from that place of confinement. Someone commits an act
willfully when he or she does it willingly or on purpose.]
[A prisoner is in the lawful custody of (an officer/ [or] a person) if the
(officer/ [or] person), acting under legal authority, physically restrains
or confines the prisoner so that the prisoner is significantly deprived of
his or her freedom of movement or the prisoner reasonably believes that
he or she is significantly deprived of his or her freedom of movement.]
New January 2006; Revised August 2013
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of
the crime.
In elements 2 and 3, select the location where the defendant was allegedly confined
or the program that the defendant allegedly escaped from.
In the definition of escape, give the bracketed sentence if there is an issue as to
whether the defendant went far enough to constitute an escape. (See People v.
Lavaie (1999) 70 Cal.App.4th 456, 459–461 [82 Cal.Rptr.2d 719].)
Give the bracketed paragraph on willful failure to return if appropriate based on the
evidence.
Give the bracketed paragraph defining lawful custody if there is an issue as to
whether the defendant was in lawful custody. (People v. Nicholson (2004) 123
Cal.App.4th 823 [20 Cal.Rptr.3d 476].)
If the defendant is charged with attempt, give CALCRIM No. 460, Attempt Other
Than Attempted Murder. (People v. Gallegos (1974) 39 Cal.App.3d 512, 517 [114
Cal.Rptr. 166].)
If the prosecution alleges escape with force or violence (Pen. Code, § 4532(a)(2) or
(b)(2)), give CALCRIM No. 2761, Escape By Force or Violence. (People v.
Gallegos, supra, 39 Cal.App.3d at pp. 518–519.)
Defenses—Instructional Duty
If there is sufficient evidence of necessity, the court has a sua sponte duty to give
CALCRIM No. 2764, Escape: Necessity Defense. (People v. Condley (1977) 69
Cal.App.3d 999, 1008–1013 [138 Cal.Rptr. 515]; People v. Lovercamp (1974) 43
Cal.App.3d 823, 831–832 [118 Cal.Rptr. 110].)
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AUTHORITY
• Elements. Pen. Code, § 4532(a)(1) & (b)(1).
• Specific Intent Not an Element of Completed Escape. People v. George (1980)
109 Cal.App.3d 814, 819 [167 Cal.Rptr. 603].
• Attempt to Escape—Must Instruct on Direct Act and Specific Intent. People v.
Gallegos (1974) 39 Cal.App.3d 512, 517 [114 Cal.Rptr. 166].
• Escape Defined. People v. Lavaie (1999) 70 Cal.App.4th 456, 459–461 [82
Cal.Rptr.2d 719].
• Arrested Defendant Must Be Booked Before Statute Applies. People v. Diaz
(1978) 22 Cal.3d 712, 716–717 [150 Cal.Rptr. 471, 586 P.2d 952]; see also
People v. Trotter (1998) 65 Cal.App.4th 965, 967, 971 [76 Cal.Rptr.2d 898].
• Arrest of Probationer—Booking Not Required. People v. Cisneros (1986) 179
Cal.App.3d 117, 120–123 [224 Cal.Rptr. 452].
• Arrest of Parolee—Booking Not Required. People v. Nicholson (2004) 123
Cal.App.4th 823, 830 [20 Cal.Rptr.3d 476].
• Must Be Confined in Adult Penal Institution. People v. Rackley (1995) 33
Cal.App.4th 1659, 1668 [40 Cal.Rptr.2d 49].
Secondary Sources
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against
Governmental Authority, §§ 86–102.
1 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 11, Arrest,
§§ 11.02, 11.06[3] (Matthew Bender).
3 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 73,
Defenses and Justifications, § 73.05 (Matthew Bender).
5 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 94,
Prisoners’ Rights, § 94.20[2] (Matthew Bender).
LESSER INCLUDED OFFENSES
Attempted escape is not a lesser included offense of escape. (People v. Bailey
(2012) 54 Cal.4th 740, 748–752 [143 Cal.Rptr.3d 647, 279 P.3d 1120]).
RELATED ISSUES
Violating Work Furlough Conditions
In order for an inmate assigned to work furlough to violate Penal Code section
4532, the inmate must “willfully” fail to return on time. (Yost v. Superior Court
(1975) 52 Cal.App.3d 289, 292 [125 Cal.Rptr. 74] [defendant who was arrested on
other charges on his way back to camp did not willfully fail to return].) If the
defendant merely violates conditions of the work furlough release, that conduct
falls under Penal Code section 1208, not section 4532. (Id. at p. 295.)
Defendant Illegally Detained
If a person is detained in custody “without any process, . . . wholly without
authority of law,” or “where the judgment was void on its face,” the detention is
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illegal and the defendant may “depart” without committing the crime of escape.
(People v. Teung (1891) 92 Cal. 421, 421–422, 426 [28 P. 577]; In re Estrada
(1965) 63 Cal.2d 740, 749 [48 Cal.Rptr. 172, 408 P.2d 948].) “But where the
imprisonment is made under authority of law and the process is simply irregular in
form, or the statute under which he is confined is unconstitutional, the escape is
unlawful.” (In re Estrada, supra, 63 Cal.2d at p. 749.) Note that this is a narrow
exception, one that has not been applied by the courts since the case of People v.
Clark (1924) 69 Cal.App. 520, 523 [231 P. 590].
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