Yost

Petitioner David Allan Yost seeks to prohibit further proceedings relative to an information charging him with violation of Penal Code section 4532, escape from a prison work furlough.

The State of California and petitioner stipulated to the facts. It is petitioner’s contention that these facts are insufficient to support the charge of escape and that the information should be dismissed. He concedes that his conduct violated his work furlough and that he is subject to penalty under Penal Code section 1208, subdivision (g), for such violation. Therefore, the issue before us is whether this violation of work furlough conditions also indicates either an actual or implied general criminal intent justifying prosecution under the escape statute. Penal Code section 4532, as well.

The facts may be briefly summarized as follows: On August 1, 1974, when the alleged escape occurred, Yost was an inmate in the Santa Clara County jail. He had been selected for the work furlough program and was released from the county jail to work for one Paul Marsol in the City of Milpitas, a short distance from the jail. As a condition of his work furlough, he was required to walk to and from work…

I concur in the judgment.

One on a work furlough program is guilty of escape if he willfully fails to return to jail at the specified time. (Pen. Code, § 4532, subd. (a).) Here, petitioner’s failure to return was hardly wilful, since it resulted only from his arrest on suspicion of an offense of which admittedly he was not guilty.

Of course, the rule governing such furlough prisoners is not so restrictive as to prevent a finding of escape earlier than the moment of the scheduled return. For example, a work furlough man found at an airport boarding an outbound plane could well be guilty of escape. But no facts tending to show escape are presented here. Far from indicating “willful failure ... to return to the place of confinement” (Pen. Code, § 4532, subd. (a)), the evidence here shows only an offense at the opposite end of the chronological scale—a failure to report to his place of employment. Thus he has violated the “conditions laid down for . . . employment” (Pen. Code, § 1208, subd. (g)). The pénalty for such violation is but administrative—“the work furlough administrator may order the balance of the prisoner’s sentence to be spent in actual confinement.”

This evidence has…

I dissent.

This petition for writ of prohibition is made pursuant to Penal Code section 999a, which comes after denial of Yost’s motion to dismiss the information pursuant to Penal Code section 995.

Our function is not to determine whether Yost is guilty or not guilty, but to determine whether there was probable cause shown which would lead an ordinary, cautious or prudent man to believe and conscientiously *296 entertain a strong suspicion of the guilt of the accused. The prosecution should not be prohibited if there is some rational ground for assuming the possibility that an offense has been committed and the accused is guilty of it. (Rideout v. Superior Court (1967) 67 Cal.2d 471 [ 62 Cal.Rptr. 581 . 432 P.2d 197 ].)

Escape is the unlawful departure of a prisoner from the limits of his custody. (People v. Quijada (1921) 53 Cal.App. 39 [ 199 P. 854 ].) Penal Code section 4532. subdivision (a), provides an additional definition of escape, that is. “the willful failure of a prisoner ... to return to the place of confinement” at the appointed time. I do not read this latter definition as the exclusive manner in which an inmate, while on work furlough, can escape from custody,…

Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant Attorney General, Edward P. O'Brien, Assistant Attorney General, W. Eric Collins and James D. Hurwitz, Deputy Attorneys General, for Real Party in Interest.

OPINION

BROWN (H.C.), J.

Petitioner David Allan Yost seeks to prohibit further proceedings relative to an information charging him with violation of Penal Code section 4532, escape from a prison work furlough.

The State of California and petitioner stipulated to the facts. It is petitioner's contention that these facts are insufficient to support the charge of escape and that the information should be dismissed. He concedes that his conduct violated his work furlough and that he is subject to penalty under Penal Code section 1208, subdivision (g), for such violation. (1) Therefore, the issue before us is whether this violation of work furlough conditions also indicates either an actual or implied general criminal intent justifying prosecution under the escape statute, Penal Code section 4532, as well.

The facts may be briefly summarized as follows: On August 1, 1974, when the alleged escape occurred, Yost was an inmate in the Santa Clara County jail. He…