Fain

In 1967, appellant was convicted of murder in the first degree, numerous counts of forcible rape, kidnaping, attempted kidnaping and forcible sex perversion; as to the murder count, the jury fixed the punishment at death, but because of violations of the mandate of Wither-spoon v. Illinois, 391 U.S. 510 [ 20 L.Ed.2d 776 , 88 S.Ct. 1770 ], the California Supreme Court reversed the judgment in part and remanded the cause to the Superior Court of Stanislaus County for a new trial on the penalty phase. (People v. Fain, 70 Cal.2d 588 [ 75 Cal.Rptr. 633 , 451 P.2d 65 ].) Thereafter appellant moved for a change of venue, and his motion was denied. He petitioned this court for a writ of mandate to compel the superior court to grant his motion, and the petition was denied. Appellant’s petition for writ of mandate directing a change of venue for the retrial on the penalty issue was ultimately granted by the Supreme Court (Fain. v. *141 Superior Court, 2 Cal.3d 46 [ 84 Cal.Rptr. 135 , 465 P.2d 23 ]). In the meantime appellant escaped from the Stanislaus County jail.

Appellant’s escape from jail was effected as follows; As Deputy Sheriff Abernathy was returning two inmates, Drummond…