Opinion
The primary issue presented in this petition is whether a state prison inmate convicted of escaping from prison without force or violence, in violation of Penal Code section 4530, subdivision (b), is required to be inсarcerated for one-third of the middle term for the escape or for the full term for which he was sentenced.
Petitioner was convicted of first degree robbery in Fresno in 1974, then sentenced to state prison for the term prescribed by law. He was subsequently paroled in 1977. While on parole, he committed two more robberies for which he was sentenced to state prison, the two terms to run concurrently. On July 24, 1978, during his imprisonment оn the 1977 robbery convictions, petitioner escaped from the Knocti Conservation Camp without force and violence. He was subsequently convicted of violation of Penal Code section 4530, subdivision (b), with thе prior 1974 robbery conviction charged and proven. He was sentenced to the middle term of two years for the escape and a one-year prior prison term enhancement for the 1974 robbery.
Subsequently, on April 3, 1979, petitioner’s confinement under Penal Code section 1170.2, subdivision (a), was fixed at six years. He received *312 a three-year middle term for one of the 1977 robberies, a one-year prior prison term еnhancement for the 1974 robbery, and a two-year middle term for the escape. Petitioner contends here that as to the escape he should be receiving one third of the two-year middle term, not the full middlе term as fixed by the Community Release Board.
This petition followed a denial of habeas corpus relief sought from the Lake County Superior Court.
Penal Code section 4530, subdivision (b), the section under which petitioner was convicted, provides with respect to state prison escapes: “Every prisoner who commits an escape or attempts an escape as described in subdivision (a), without force or violence, is punishable by imprisonment in the state prison for 16 months, or two or three years
to be served
consecutively.” (Italics added.) In
People
v.
Jones
(1980)
The comparable portion of Penal Code section 4532, subdivision (b) provides that as to escapes from county or city facilities: “Every prisoner ... is guilty of a felоny and, if such escape or attempt to escape was not by force or violence, is punishable by imprisonment in the state prison for 16 months, or two or three years to be served consecutively, or in the county jail not exceеding one year,. ...” (Italics added.)
In
People
v.
Jones, supra,
the court invalidated a trial court’s enhancement by two years for a consecutive section 4532, subdivision (b), escape from a county facility, stating the following (
“Penal Code section 4532, subdivision (b), provides that punishment for an escape violation is 16 months, 2 or 3 years, to be served consecutively. A consecutive term for escape is made mandatory. Although the *313 term is mandated to be consecutive, it is not reasonably inferable the Legislature intended the specific full terms provided in the statute be applied consecutively.
“In this instance, section 1170.1 applies in the calculation of the consecutive term requirеd for escape.
“Had the Legislature intended the full term for escape be served consecutively to another, it would have declared section 4532 as an exception from the sentencing requirements of section 1170.1, subdivision (a), and provided for the service of a full consecutive term, as it did with the adoption of Penal Code section 667.6, subdivision (d).”
Petitioner contends that Jones controls this case. Petitioner’s escape, however, was from the state prison, and not from a county or city jail. This distinction justifies the community release board’s utilization of the full two-year period for petitioner’s consecutive escape term. Penal Codе section 1170.1, subdivision (a), upon which the Jones court relied for its holding, provides that “Except as provided in subdivision (b),. .. subordinate term for each consecutive offense which is not a ‘violent felony’ ... shall consist of one-third of the middle term of imprisonment prescribed. ...” (Italics added.) The exсeption in subdivision (b) is that: “(b) In the case of any person convicted of one or more felonies committed while such person is confined in a state prison, or is subject to reimprisonment for escapе from such custody 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 sеrve consecutively shall commence from the time such person would otherwise have been released from prison. If the new offenses are consecutive with each other, the principal аnd subordinate terms shall be calculated as provided in subdivision (a), except that the total of subordinate terms may exceed five years. The provisions of this subdivision shall be applicable in cases of convictions of more than one offense in different proceedings, and convictions of more than one offense in the same or different proceedings.” (Italics added.)
The emphasized portion of subdivision (b) does not appear in subdivision (a). The Legislature exempted felonies committed while in state prison from the sentencing requirements of subdivision (a) except as to multiple offenses committed while in рrison. The emphasized language makes clear that the prison escape sentence is to be served after com *314 pletion of other prison sentences. The true legislative intent in enacting subdivisiоn (b) applicable to crimes committed by state prison inmates, is to require that they serve their full term for such conviction upon the completion of their term for other offenses for which they were cоnvicted. The Legislature has thus made clear that a person who commits offenses while in prison is not entitled to the usual one-third of the middle term for consecutively imposed sentences. Any other reading of the section would make subdivision (b) superfluous.
Petitioner next contends that equal protection principles require a similar computation for escapees from both county jails and state prisons. We hеld in
People
v.
Hughes
(1980)
Petitioner next contends that the enhancement for the 1974 robbery was improper in light of the provisions of Penal Code section 667.5.
Penal Code section 1170.1, subdivision (a) provides in part that when computation of a subordinate term for a consecutive offense takes place, the “subordinate term for each consecutive offense which is a ‘violent felony’ as dеfined in subdivision (c) of Section 667.5, including those offenses described in paragraph (8) of subdivision (c) of Section 667.5, shall consist of one-third of the middle term of imprisonment prescribed for each other such felony cоnviction for which a consecutive term of imprisonment is imposed, and shall include one-third of any *315 enhancements imposed pursuant to Section 12022, 12022.5 or 12022.7.” However, as to any consecutive offense which is nоt one of the violent felonies referred to in section 667.5, subdivision (c), section 1170.1, subdivision (a), provides that the subordinate term “shall exclude any enhancements.”
Petitioner asserts that escape is not one of the violent felonies included in Penal Code section 667.5, subdivision (c), and argues that the enhancement for the 1974 prior felony conviction was therefore unlawful. Referring solely to the trial court sentence for escape with a prior, the prior has the appearance of an enhancement of the escape term. However, petitioner’s present confinement is under a recomputеd Indeterminate Sentence Law term in combination with his determinate sentence law term. The computation he attacks followed the provisions of Penal Code section 1170.1, subdivision (a), which makes clear that a prior prison term does not “attach” to any particular crime in group of consecutively sentenced crimes. Because the 1974 prior is not an “enhancement” of the escape term here, the community release board properly included a year for the prior.
People
v.
Gaines
(1980)
Other contentions of error raised by petitioner are without merit.
The petition is denied.
Barry-Deal, J., and Panelli, J., * concurred.
Petitioner’s application for a hearing by the Supreme Court was denied May 13, 1981.
Notes
At oral argument, petitioner’s attorney suggested that it would be unfair to penalize him with a full term while another felon who escaped while being held in county jail prior to transfer to statе prison would be covered by the Jones decision. However, the fact that the Legislature has not included a small class of almost similarly situated persons in the disfavored class does not invalidate the legislation as to the disfavored class. There is no requirement that the Legislature penalize all culpable conduct or precisely structure penal sanctions so that all degrees of culpability are omnisciently placed in their proper place in some continuum of penalties.
Assigned by the Chairperson of the Judicial Council.