
    [No. B179876.
    Second Dist., Div. Eight.
    Aug. 2, 2006.]
    THE PEOPLE, Plaintiff and Respondent, v. GUAN TYRONE BROCK, Defendant and Appellant.
    
      Counsel
    Karyn H. Bucur, under appointment by the Court of Appeal, for Defendant and Appellant.
    Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and Kyle S. Brodie, Deputy Attorneys General, for Plaintiff and Respondent.
   Opinion

FLIER, J.

Guan Tyrone Brock appeals his conviction for escape without force or violence. He was sentenced to six years in prison, which is the upper term of three years, doubled for one prior “strike” conviction, under the “Three Strikes” law. He contends: (1) The trial court abused its discretion when it admitted a confession he made during plea negotiations at a pretrial proceeding; (2) his case must be remanded for resentencing, as he should have been charged under a more specific statute, which carried a lesser punishment; (3) imposition of the upper term was improper because the aggravating factors were not found true by a jury.

We modify appellant’s conviction from a violation of subdivision (b) of Penal Code section 4530 to a violation of subdivision (c) of that same section, and otherwise affirm.

FACTS

1. Prosecution Testimony

The Bridge Back Reentry Center (Bridge Back) is a privately owned residential work furlough program that contracts with the California Department of Corrections to provide services for prison inmates whose sentences are nearly completed. Bridge Back is designed to help prisoners reenter society by assisting them with job searches and related matters. Inmates are permitted to leave the facility to obtain identification cards, to look for employment, and to reestablish relationships with their families. They must sign out when they leave for an approved activity and sign in when they return.

Upon arrival at Bridge Back, inmates sign documents in which they agree to abide by the rules of the program. They are advised that they are still prison inmates; noncompliance with rules could result in a return to incarceration; and any unauthorized absence may be treated as an escape.

Appellant arrived at Bridge Back from prison on December 5, 2003. He agreed to the rules. On January 13, 2004, he signed out at 9:00 a.m. to go to the Employment Development Department. He was supposed to return at 1:00 p.m. that day. He did not return. Bridge Back personnel looked for him, and did not find him. About three months later, he was arrested on the street, at a different location.

At a pretrial hearing on June 2, 2004, appellant stated: “If you guys say I escaped, I escaped. I went out there and smoked crack. I didn’t come back. I am being straight up with the court.”

2. Defense Testimony

Appellant testified that he did not leave or sign out of the.Bridge Back facility on January 13, 2004. On cross-examination, he testified that he was at Bridge Back on January 13 and January 14, but left the program before he was arrested “on the street” on April 16. When he was asked when he left, he said, “I take the Fifth on that.”

DISCUSSION

1. Confession During Plea Discussions

Appellant maintains that the trial court abused its discretion when it introduced evidence that, at a pretrial hearing, he confessed that he left Bridge Back to “smoke[] crack,” and did not return.

The context of appellant’s statement shows that it occurred during plea negotiations. Appellant, counsel for both sides, and the court discussed whether appellant wanted to plead not guilty or guilty in two cases, the instant escape case and another case, in which appellant was charged with attempted robbery. The court said, “The other option is to work out a disposition.” Appellant responded that he was “willing to settle all this today” if the guilty plea concerned only the escape, as he “went out there and smoked crack,” and “didn’t come back.” However, he was not willing to plead guilty to attempted robbery, because he did not commit that crime. Therefore, the case did not settle that day.

We agree with appellant that his statement was made during plea negotiations and should not have been introduced at his trial. A criminal defendant’s offer to plead guilty “is inadmissible in any action or in any proceeding of any nature . . . .” (Evid. Code, § 1153.) “The purpose of the statute is to promote the public interest by encouraging the parties to settle a criminal case without the necessity of a trial.” (People v. Magana (1993) 17 Cal.App.4th 1371, 1376 [22 Cal.Rptr.2d 59].) “Bona fide plea negotiations include statements made to the trial court and to the prosecuting attorney because those are the participants in a plea bargain.” (Id. at p. 1377.)

However, under the unusual circumstances of this case, the error was harmless. (People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243].) The prosecution established that appellant signed out of Bridge Back at 9:00 a.m., was supposed to return at 1:00 p.m., and did not return. When he testified, appellant admitted that he left the program and disputed only the actual day that he left it. Based on appellant’s testimony, erroneous introduction of his statement during plea negotiations caused no possible prejudice.

2. Prosecution Under General or Specific Statute

Appellant was charged with, and convicted of, violating subdivision (b) of Penal Code section 4530. He argues that he should have been charged with violating subdivision (c), and not subdivision (b), of section 4530, because subdivision (c) is a more specific statute that carries a lesser punishment.

“Generally, prosecutors may elect to proceed under either of two statutes that proscribe the same conduct.” (People v. Cockburn (2003) 109 Cal.App.4th 1151, 1157 [135 Cal.Rptr.2d 807].) However, “when the Legislature has enacted a specific statute addressing a specific matter, and has prescribed a sanction therefor, the People may not prosecute under a general statute that covers the same conduct, but which prescribes a more severe penalty, unless a legislative intent to permit such alternative prosecution clearly appears.” {Mitchell v. Superior Court (1989) 49 Cal.3d 1230, 1250 [265 Cal.Rptr. 144, 783 P.2d 731].)

“The doctrine that a specific statute precludes any prosecution under a general statute is a rule designed to ascertain and carry out legislative intent. The fact that the Legislature has enacted a specific statute covering much the same ground as a more general law is a powerful indication that the Legislature intended the specific provision alone to apply. Indeed, in most instances, an overlap of provisions is determinative of the issue of legislative intent and ‘requires us to give effect to the special provision alone in the face of the dual applicability of the general provision . . . and the special provision ....’” {People v. Jenkins (1980) 28 Cal.3d 494, 505-506 [170 Cal.Rptr. 1, 620 P.2d 587], fn. omitted, quoting People v. Gilbert (1969) 1 Cal.3d 475, 481 [82 Cal.Rptr. 724, 462 P.2d 580].)

A comparison of the statutory language shows that subdivisions (a) and (b) are general statutes that define the crime of escape, while subdivision (c) is a special statute, applicable to a specific type of escape.

Subdivision (a) provides in pertinent part: “Every prisoner confined in a state prison .. . who, by force or violence escapes or attempts to escape while at work outside or away from prison under custody of prison officials, officers, or employees, is punishable by imprisonment in a state prison for a term of two, four, or six years.”

Subdivision (b) gives a lesser prison sentence, 16 months, two years or three years, to “[e]very prisoner who commits an escape or attempts an escape as described in subdivision (a), without force or violence.”

Subdivision (c) states: “The willful failure of a prisoner who is employed or continuing his education, or who is authorized to secure employment or education, or who is temporarily released pursuant to Section 2690, 2910, or 6254, or Section 3306 of the Welfare and Institutions Code, to return to the place of confinement not later than the expiration of a period during which he or she is authorized to be away from the place of confinement, is an escape from the place of confinement punishable as provided in this section. A conviction of a violation of this subdivision, not involving force or violence, shall not be charged as a prior felony conviction in any subsequent prosecution for a public offense.”

Thus, subdivision (c) punishes one particular form of escape by a prisoner, a willful failure to make a timely return to confinement after an authorized absence. Subdivisions (a) and (b) are more general, as they punish any escape by a prisoner, “while at work outside or away from prison under custody of prison officials, officers, or employees . . . .” An escape without force or violence, under either subdivision (b) or (c), receives subdivision (b)’s penalty, with this important exception: a violation of subdivision (c) that does not involve force or violence “shall not be charged as a prior felony conviction in any subsequent prosecution for a public offense.” (Subds. (a)-(c).)

Appellant left Bridge Back at 9:00 a.m. to go to the Employment Development Department, and failed to return at 1:00 p.m., the time he was supposed to return. As a matter of logic, it appears that the more specific language of subdivision (c) should apply to his conduct, as he left “to secure employment,” and willfully failed “to return to the place of confinement not later than the expiration of a period during which he . . . [was] authorized to be away from the place of confinement . . . .” However, the general/special statute rule required the prosecution to prosecute appellant under the special statute, subdivision (c), only if the general statute, subdivision (b), prescribed a more severe penalty than the special statute. (Mitchell v. Superior Court, supra, 49 Cal.3d at p. 1250.) We must therefore decide whether subdivision (b) prescribed a more severe penalty than subdivision (c), when the punishments were identical, except for the additional sentence of subdivision (c) that states: “A conviction of a violation of this subdivision, not involving force or violence, shall not be charged as a prior felony conviction in any subsequent prosecution for a public offense.”

Respondent maintains that, based on People v. Cockburn, supra, 109 Cal.App.4th at page 1156, subdivision (b) does not involve a more severe penalty than subdivision (c). We find Cockbum to be distinguishable. The defendant there was convicted under a general statute, and maintained that he should have been charged under a special statute. Comparing the penalties for the two statutes, Cockbum observed that the lengths of prison terms were identical, but one statute provided for a longer term of probation, and the other contained possible penalties that the other lacked, including a fine and an enhancement for a prior conviction of the same offense. Since the “competing provisions [were] a wash,” the general statute did not provide a more severe penalty than the special statute, and the general/special statute rule was inapplicable. (109 Cal.App.4th at pp. 1159-1160.)

Unlike Cockbum, there is an important difference between the penalties for the general and special statutes in the case at bench. The penalty for violating subdivision (b) is more severe than the penalty for violating subdivision (c), because of the final sentence of subdivision (c), which states that a conviction of that subdivision that does not involve force or violence, “shall not be charged as a prior felony conviction in any subsequent prosecution for a public offense.”

Respondent maintains that the punishments for the two subdivisions are actually the same, because use of the subdivision (b) conviction in a subsequent prosecution would “ ‘ “arise as an incident of the subsequent offense rather than constituting a penalty for the prior offense.” ’ ” (Gonzales v. Superior Court (1995) 37 Cal.App.4th 1302, 1309 [44 Cal.Rptr.2d 144], quoting People v. Jackson (1985) 37 Cal.3d 826, 833 [210 Cal.Rptr. 623, 694 P.2d 736].) Respondent has omitted the first part of Gonzales’ s quotation of Jackson, which shows that the quoted principle applies “ ‘[i]n the context of habitual criminal statutes.’ ” The principle does not apply to the inquiry here.

Respondent also argues that the People may prosecute under a general statute that covers the same conduct but provides for a more severe penalty, if “a legislative intent to permit such alternative prosecution clearly appears.” (Mitchell v. Superior Court, supra, 49 Cal.3d at p. 1250.) That rule is also inapplicable, as there is no clear legislative intent that permits a prosecution of appellant’s conduct under subdivision (b).

Moreover, we must give the language of a statute its usual, ordinary meaning (Kaufman & Broad Communities v. Performance Plastering, supra, 133 Cal.App.4th at p. 29), and avoid any construction that renders statutory words superfluous. (Shoemaker v. Myers (1990) 52 Cal.3d 1, 22 [276 Cal.Rptr. 303, 801 P.2d 1054].) Here, the Legislature specifically included in subdivision (c) a sentence it did not include in subdivisions (a) and (b). That sentence precludes a conviction of subdivision (c), “not involving force or violence,” from being “charged as a prior felony conviction in any subsequent prosecution for a public offense.” The Legislature specifically decided to provide a lesser penalty for the conduct in subdivision (c), by making a violation of subdivision (c) unusable as a prior felony conviction in a subsequent criminal prosecution. To avoid making the last sentence of subdivision (c) superfluous, conduct that violates subdivision (c) must be prosecuted under subdivision (c), rather than under the more general escape provision of subdivision (b). Therefore, appellant should have been prosecuted under subdivision (c), and not (b).

There remains the question of remedy. Appellant maintains that the case must be remanded, with directions to the trial court to resentence appellant under subdivision (c). In the interests of judicial economy, instead of remanding for resentencing, we modify appellant’s conviction, from a violation of subdivision (b) to a violation of subdivision (c).

3. Imposition of the Upper Term

Finally, appellant maintains that, under Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403, 124 S.Ct. 2531], imposition of the upper term violated his federal constitutional rights to proof beyond a reasonable doubt and to trial by jury. However, in People v. Black (2005) 35 Cal.4th 1238 [29 Cal.Rptr.3d 740, 113 P.3d 534], our Supreme Court held that Blakely was inapplicable to the imposition of the upper term under California’s determinate sentencing law. As an intermediate court of review, we are required to follow Black. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 [20 Cal.Rptr. 321, 369 P.2d 937].)

DISPOSITION

Appellant’s conviction is modified from a violation of section 4530, subdivision (b), to a violation of section 4530, subdivision (c). The trial court is directed to prepare a corrected abstract of judgment to reflect that modification, and to forward a certified copy of the corrected abstract of judgment to the Department of Corrections. In all other respects, the judgment is affirmed.

Rubin, Acting P. J., and Boland, J., concurred.

Appellant’s petition for review by the Supreme Court was denied October 25, 2006, S146346. 
      
       It appears that appellant was' acquitted on the attempted robbery case, before his trial on the escape case.
     
      
       All subsequent statutory references are to the Penal Code, unless otherwise stated. All subsequent references to subdivisions (a), (b) or (c) relate to subdivisions of section 4530.
     
      
       Concurrently with the filing of respondent’s brief, respondent requested judicial notice of legislative materials that concern subdivision (c)’s enactment in 1970. (Stats. 1970, ch. 570, § 1, p. 1142.) We denied judicial notice without prejudice to filing an additional request with the items segregated and with appropriate points and authorities. Respondent renewed the request in compliance with our order. Nonetheless, we deny judicial notice, as there is no ambiguity in the statutory language and “resort to legislative history is appropriate only where statutory language is ambiguous.” (Kaufman & Broad Communities, Inc. v. Performance Plastering, Inc. (2005) 133 Cal.App.4th 26, 29 [34 Cal.Rptr.3d 520].)
     