Rocca

Appellant Michael Jon Rocca was convicted following a jury trial of violating Penal Code section 4533 which prohibits a person employed as a guard from aiding or permitting the escape of a prisoner in custody. He was also convicted of violating Penal Code section 261.5 (unlawful sexual intercourse with a minor).

The events giving rise to the convictions involved minors detained in the Tulare County juvenile hall. As we shall explain, Penal Code section 4533 does not apply to the crime of aiding a minor to escape from a juvenile hall because the minor is not a “prisoner” in a jail or prison. For a similar reason, we reject the People’s contention that appellant’s conviction can be affirmed as a violation of Penal Code section 109 which prohibits assisting the escape of any “inmate” of any “public training school or reformatory.”

Finally, we reject the argument that appellant’s conviction for assisting in the juveniles’ attempted escape can be upheld on the theory that he aided and abetted the minors to escape from a juvenile hall, as proscribed by Welfare and Institutions Code section 871 since the trial court failed to instruct the jury that a minor, Connie S., who…