Filed 6/1/16
                              CERTIFIED FOR PUBLICATION




               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                              THIRD APPELLATE DISTRICT
                                             (Butte)
                                              ----




THE PEOPLE,                                                     C076318

                 Plaintiff and Respondent,             (Super. Ct. No. CM039633)

        v.

JERAD MARSHALL POTTS,

                 Defendant and Appellant.




      APPEAL from a judgment of the Superior Court of Butte County, Kristen A.
Lucena, Judge. Affirmed.

      William A. Malloy, under appointment by the Court of Appeal, for Defendant and
Appellant.

      Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Senior Assistant Attorney General, Julie A. Hokans and
Catherine Chatman, Supervising Deputy Attorneys General, for Plaintiff and Respondent.




                                               1
       After a jury trial, defendant Jerad Marshall Potts was convicted of, inter alia,
escape from his home detention program (Pen. Code, § 4532, subd. (b)(1)1). Thereafter,
he was sentenced to an eight-month term on the escape conviction as part of an aggregate
term of four years eight months, which included a sentence on another case. On appeal,
defendant challenges the escape conviction arguing the trial court erred in refusing to
instruct the jury that his escape conviction required the willful failure to return to his
place of confinement no later than the period he was authorized to be away.
       We conclude that any instructional error was harmless. In so concluding, we
observe that one source specifying the scope of a prisoner’s authority to be away from
home and the period of time by which a prisoner must return home from an approved
activity is the contract prisoners must sign upon entering a home detention program. The
provisions of the agreements defendant signed included requirements that he
“immediately” go “directly” home if he left work early. These provisions coupled with
his conduct of driving in a direction away from his home and thereafter fleeing the scene
of a traffic collision in which he was involved, established that defendant willfully failed
to return home within the period he was authorized to be away from home. This is so
even though before he was arrested for driving under the influence and hit and run,
defendant still had time to get home before the expiration of the normal time he had been
authorized to be away. Thus, defendant’s assertion that his failure to return was not
willful because he was authorized to be away from home until the deadline for returning
home at the end of a normal workday is unavailing, because the “immediately” and
“directly” provisions of the agreements described the relevant authorized period of time
to return home, not the normal workday deadline. Consequently, any error in failing to




1 Undesignated statutory references are to the Penal Code in effect at the time of the
charged offense.

                                               2
instruct as defendant requested was harmless because the evidence showed that defendant
willfully failed to return home before the expiration of the authorized time period.
       We affirm.
                  FACTUAL AND PROCEDURAL BACKGROUND
       Defendant was serving a three-year sentence under the “Butte County Sheriff’s
Office Alternative Custody Supervision” (ACS) program when the events underlying the
escape charge took place. The program, authorized by section 1203.016, allowed him to
live in an apartment and leave home for approved activities. He was permitted to go to
his landscaping job, which included traveling to different job sites.
       As required by section 1203.016, subdivision (b), defendant executed a contract
acknowledging the program’s terms. Deputy James Beller explained the contract to
defendant and watched him initial and sign in the appropriate places. Thereafter, Beller
supervised defendant in the program.
       The terms of the contract included wearing a GPS ankle monitor, obeying the
verbal instructions issued by an ACS deputy, not possessing alcohol, not drinking
alcohol, and not driving a vehicle with any amount of alcohol in his blood. Paragraphs
39 through 46 of the contract are preceded by the following: “I understand and agree that
the following ACS terms and conditions may result in my removal from the ACS
program and that I may be charged with felony escape pursuant to [section 4532] and if
convicted be sent to state prison.” In summary, the pertinent paragraphs in this part of
the contract prohibited deviating from his schedule or leaving an authorized location
without approval and required him to go directly home from work. If defendant could
not return directly home, he was to immediately notify a deputy. Also, if he was released
from work early, he was to immediately return home and notify the program.2



2 We set forth the pertinent parts of the contract verbatim. Paragraph 39: “I understand
that if . . . I have an unauthorized deviation from my schedule I will be in violation of the

                                              3
        In addition to the contract, defendant signed a separate document titled,
“Individual Scheduling Instructions for Butte County Alternative Custody Supervision”
(individual scheduling instructions). This document also prohibited defendant from
deviating from his schedule.3
        On the day of the incident, defendant was authorized to work from 8:30 a.m. to
5:30 p.m. According to GPS data, defendant was at a landscaping site from 3:00 p.m. to
4:39 p.m. A minute later, he was monitored driving northbound toward his home. But a
minute after that, GPS data showed him driving southbound, in a direction away from
home.
        While still traveling away from his home, defendant crashed the truck he was
driving into a car in the middle of an intersection. The collision took place about a mile
from defendant’s home. After the collision, defendant left the truck and fled to a nearby
residence. Five to ten minutes later, an officer found defendant standing in the doorway
of a house a quarter mile from the crash. This location was even further away from


conditions of this program and may be subject to felony escape charges as outlined in
[s]ection 4532.” Paragraph 40: “I understand than any change in my ACS Schedule
must be authorized by an ACS Deputy, and that I may be charged with felony escape as
outlined in section 4532 . . . if I fail to obtain an ACS Deputies [sic] approval to deviate
from my schedule.” Paragraph 41: “I understand that if I . . . deviate from my approved
written schedule I may be charged with felony escape as outlined in section 4532.”
Paragraph 42: “I understand that if I am away from my approved residence or other
approved location without the approval of an ACS Deputy, I . . . may be subject to felony
escape charges as outlined in [s]ection 4532.” Paragraph 44: “I will go to and return
directly from . . . my place of employment . . . . If for any reason[] I am delayed and
cannot return to my home, I will notify an ACS Deputy at once and await further
instructions.” Paragraph 45: “If I am released from work . . . earlier than usual . . . , I
will immediately return to my residence and notify the ACS Staff.” (Italics added.)
3 In pertinent part, the individual scheduling instructions document reads: “I understand
that any change in this schedule must be authorized by an ACS deputy. I also understand
that if I leave my home without an ACS Deputies’ authorization, deviate from my
schedule, remove my electronic monitor, or fail to charge/power my monitoring
equipment, I may be charged with felony escape as outlined in section 4532.”

                                              4
defendant’s home than the collision scene. Defendant appeared to have been drinking,
and at 5:26 p.m., his blood-alcohol content was 0.22 percent. Defendant told the
arresting officer that he fled the collision scene because he was scared and because he
wearing an ankle monitor.
       Deputy Beller testified that defendant had not been authorized to go anywhere else
before going home that day. He further testified that defendant departed the physical
limits imposed upon him when he deviated from the route home and also when he fled
from the collision scene to an unauthorized location.
       The trial court instructed the jury on escape using CALCRIM No. 2760, which
includes the following as the third element of the crime: “[T]he defendant escaped from
the place of confinement in the home detention program. [¶] Escape means the unlawful
departure of a prisoner from the physical limits of his or her custody.”
       Defendant requested, as an additional instruction, a bracketed paragraph from
CALCRIM No. 2760, which states: “[A prisoner also escapes if he or she willfully fails
to return to his or her place of confinement within the period that he or she was
authorized to be away from that place of confinement. Someone commits an act willfully
when he or she does it willingly or on purpose.]”
       In support of his request, defendant cited Yost v. Superior Court (1975)
52 Cal.App.3d 289 (Yost), which held that a prisoner had not escaped while on work
furlough from the jail when the prisoner failed to report for work and was later arrested
on suspicion of robbery in another city before he was due to return to the jail. (Id. at
pp. 291-292.) The robbery charge was dismissed, but the arrest had prevented the
prisoner from returning to jail on time. (Id. at p. 292.) On a writ petition under section




                                              5
999a,4 a plurality held that while the prisoner had violated the terms of his furlough, he
could not be convicted of escape under section 4532 because the arrest prevented him
from willfully failing to return to the jail, and the violation of program conditions did not
establish the general criminal intent required for escape. (Yost, at p. 293.)
       Here, defendant argued that the place of confinement in his home detention
program is his home. He further argued that a home detention participant escapes by
leaving home without authorization, or by failing to return home by the expiration of the
time he is authorized to be away. But escape does not include a participant leaving the
home with authorization and doing something other that was he was authorized to do.
Thus, according to defendant, he could only be convicted if he left his home without
authorization or willfully failed to return home on time.
       The trial court denied defendant’s requested instruction. The court ruled that Yost
was not on point because it involved a work furlough program and predated section
1203.016 home detention. Further, defendant’s reading of the relevant statutes was too
narrow. The trial court reasoned that “the home detention program encompasses a 24-
hour, 7-day a week custodial setting.[5]” Within that setting, the statute authorizes
prisoners to go to work or attend other specifically authorized activities pursuant to a
schedule. Thus, the court ruled that to limit the place of confinement to the home would
be inconsistent with the language of the statute. The court added that the CALCRIM




4  Section 999a provides that a defendant may petition for writ of prohibition when the a
trial court has denied a section 995 motion to set aside an information on the grounds that
the defendant was committed by the magistrate without reasonable or probable cause.
5 Deputy Beller testified that “[w]hile inmates are on ACS, they’re in custody 24 hours a
day, seven days a week.” He did not testify that this was communicated to defendant or
that it was part of the contract or any other document defendant signed. On our review,
we do not find any such language in the contract or the individual scheduling
instructions.

                                              6
bench notes state that the bracketed language defendant requested is to be given “if
appropriate based on the evidence” and further stated, “That’s not the People’s theory of
the case. And the evidence does not support that bracketed section.” (See CALCRIM
No. 2760.)
       In closing argument, the prosecutor told the jury it could find defendant guilty of
escape either based on his conduct of driving away from his home “in deviation from his
authorized location” or based on his conduct of running away from the scene of the
collision to someone else’s house “without authorization.”6 The prosecutor pointed to
the contract and individual scheduling instructions as the source of defendant’s home
detention authorization. The prosecutor also argued the requirement that defendant
escape from his place of confinement did not necessarily mean that he “escaped from his
home, but escaped from his home detention program. So as long as he’s within the
requirements of his home detention program, there’s no problem at all. But once he
deviates from that home detention program, that’s where [defendant] had violated that
element of [the] crime. [¶] And it simply defines -- escape means the unlawful departure
of a prisoner from the physical limits of his or her custody. So there [were] specific
requirements, and [defendant] violated the terms of those requirements.”
       Defense counsel argued that defendant did not escape from his place of
confinement, as the jury instructions required. His place of confinement was his home;
defendant was on what amounted to “house arrest.” And the detour was not an escape
because at the time defendant veered away from home, he still had plenty of time to get
home before the 5:30 p.m. deadline. Defendant was guilty of violating program rules, but
not guilty of escape.



6 The trial court gave a unanimity instruction telling the jury it could not find defendant
guilty unless it unanimously agreed on at least one of these acts. (See CALCRIM
No. 3500.)

                                             7
       In rebuttal, the prosecutor argued that it did not matter how much time defendant
had left to get home, because his unauthorized departure satisfied the third element of the
escape charge. He reiterated that defendant’s physical place of confinement was the
“home detention program,” which was not limited to defendant’s home. Rather, the place
of confinement was the places defendant was authorized to go. And defendant departed
from the physical limits imposed upon him when he detoured away from his home and
fled the collision scene.
       The jury convicted defendant of escape (§ 4532, subd. (b)(1) (count 1)); driving
under the influence (Veh. Code, § 23152, subd. (a) (count 3)); driving with a blood-
alcohol content of 0.08 or higher (Veh. Code, § 23152, subd. (b) (count 4)); and hit-and-
run (Veh. Code, § 20002, subd. (a) (count 5)).
                                       DISCUSSION
       Defendant contends the trial court erred in declining to instruct the jury that a
conviction for escape requires the willful failure to return to the place of home
confinement. According to defendant, “to obtain a conviction for escape, the People
were required to prove that [he] had either left his place of home detention (his home)
without authorization, or willfully failed to return on time to his place of home detention
(his home).” Because he was authorized to be away, his prosecution could not be based
on an unauthorized departure from his home. Rather, it was based on his willful failure
to timely return home. The prosecution was required to prove defendant willfully failed
to return home no later than the expiration of the period he was authorized to be away.
       Defendant argues that his failure to return was not willful. He was authorized to
work from 8:30 a.m. to 5:30 p.m. But for his arrest about a mile from home, sometime
between 4:52 p.m. and 4:59 p.m., he could have returned home before 5:30 p.m. Like the
furloughed prisoner in Yost, his arrest precluded a willful failure to return to his place of
confinement on time.



                                              8
       Assuming defendant is correct that his place of confinement was limited to his
home and that the trial court erred in not giving the bracketed paragraph from CALCRIM
No. 2760, the error was harmless. Defendant was “authorized” to be in one of three
places at the time he was arrested -- at work, on a direct route home from work, or at
home. Whenever he left work at the end of his workday he was to “return directly” home
and if work ended early, he was to “immediately return to [his] residence” and notify a
program deputy. (See fn. 2, ante.) Defendant was not authorized to go or be anywhere
else after leaving work. Thus, the 5:30 p.m. deadline applicable to the normal workday
was not the relevant time period. The period he was authorized to be away from home
after leaving work early encompassed only the time it would have taken to immediately
drive directly home. Because the evidence shows beyond a reasonable doubt that
defendant willfully failed to return home within that time period, any error in failing to
instruct on this requirement was harmless.
                                       A. Applicable Law
       Section 4532, subdivision (b)(1), provides in pertinent part: “Every prisoner . . .
[who] is a participant in a home detention program pursuant to Section 1203.016 . . . who
escapes or attempts to escape . . . from the place of confinement in a home detention
program pursuant to Section 1203.016, is guilty of a felony.”7



7  Section 4532, subdivision (b)(1), includes many varieties of escape. (People v. Lopez
(1971) 6 Cal.3d 45, 50-51.) In full, subdivision (b)(1) of section 4532 provides: “Every
prisoner arrested and booked for, charged with, or convicted of a felony, and every
person committed by order of the juvenile court, who is confined in any county or city
jail, prison, industrial farm, or industrial road camp, is engaged on any county road or
other county work, is in the lawful custody of any officer or person, or is confined
pursuant to Section 4011.9, is a participant in a home detention program pursuant to
Section 1203.016, 1203.017, or 1203.018 who escapes or attempts to escape from a
county or city jail, prison, industrial farm, or industrial road camp or from the custody of
the officer or person in charge of him or her while engaged in or going to or returning
from the county work or from the custody of any officer or person in whose lawful

                                              9
       Subdivision (e) of section 4532 provides a definition of escape from the “place of
confinement,” applicable in the context of cases like the one before us. It states in
pertinent part: “The willful failure of a prisoner . . . to return to his or her place of
confinement no later than the expiration of the period that he or she was authorized to be
away from that place of confinement, is an escape from that place of confinement.”8
(Italics added.)
       Additionally, section 1203.016, subdivision (f), the statute authorizing the home
detention program defendant participated in, provides: “The correctional administrator
may permit home detention program participants to seek and retain employment in the
community, attend psychological counseling sessions or educational or vocational
training classes, or seek medical and dental assistance. Willful failure of the program
participant to return to the place of home detention not later than the expiration of any
period of time during which he or she is authorized to be away from the place of home
detention pursuant to this section and unauthorized departures from the place of home




custody he or she is, or from confinement pursuant to Section 4011.9, or from the place
of confinement in a home detention program pursuant to Section 1203.016, is guilty of a
felony and, if the escape or attempt to escape was not by force or violence, is punishable
by imprisonment in the state prison for 16 months, two years, or three years, to be served
consecutively, or in a county jail not exceeding one year.” (§ 4532, subd. (b)(1), italics
added.)
8 Section 4532, subdivision (e), provides in pertinent part that: “The willful failure of a
prisoner, whether convicted of a felony or a misdemeanor, to return to his or her place of
confinement no later than the expiration of the period that he or she was authorized to be
away from that place of confinement, is an escape from that place of confinement. This
subdivision applies to a prisoner who is employed or continuing in his or her regular
educational program, authorized to secure employment or education pursuant to the
Cobey Work Furlough Law (Section 1208), authorized for temporary release for family
emergencies or for purposes preparatory to his or her return to the community pursuant to
Section 4018.6, or permitted to participate in a home detention program pursuant to
Section 1203.016, 1203.017, or 1203.018.” (Italics added.)

                                               10
detention are punishable as provided in Section 4532.” (§ 1203.016, subd. (f), italics
added.)
       Thus under section 4532, the prosecution can prove escape from a home detention
program based on a failure to return home after work, if it can prove that the defendant:
(1) failed to return home no later than the expiration of the period he or she was
authorized to be away; and (2) that failure was willful. As we will explain, one source of
authorization indicating the period for which a prisoner may be away from home is the
contract the prisoner signs upon entering the program.
                                            B. Analysis
       In addressing defendant’s instructional error claim, we will assume without
deciding that defendant is correct that the “place of confinement” and “place of home
detention” is his home.9 We consider whether his conduct constituted a willful failure to
return to the place of confinement such that the failure to instruct on that theory is
harmless.10



9 We do note, however, that section 1203.061, subdivision (f), speaks to failing to timely
return to “the place of home detention,” and section 4532, subdivision (e), speaks to
returning to the “place of confinement” within the authorized period of time “to be away
from that place of confinement.” (Italics added.)
10 The information generically charged defendant with escape under section 4532,
subdivision (b)(1), alleging that defendant, “did, while being a person described in
section 4532[, subdivision] (b)(1), attempt to escape and escape.” The information did
not mention subdivision (e) of section 4532 or section 1203.016, subdivision (f). Nor did
the information specifically allege the failure to return theory set forth in those
provisions. We requested supplemental briefing on whether the willful failure to return
theory (as reflected in §§ 4532, subd. (e), & 1203.016, subd. (f)) must be separately
charged. The parties agreed that the willful failure to return theory need not be separately
charged. As the People point out, the prosecution’s theory need not be charged or
expressly stated in the charging document when notice has been provided to the
defendant by way of the preliminary hearing evidence. (People v. Kelly (2007) 42
Cal.4th 763, 791 [generally, a defendant will receive adequate notice of the prosecution’s
theory of the case from the testimony presented at the preliminary hearing or at the

                                             11
       Defendant argues that the failure to give the bracketed instruction he requested
amounted to a failure to instruct on willfulness, a necessary element of the offense.
According to defendant, because the trial court failed to instruct on a necessary element,
the Chapman beyond a reasonable doubt harmless error standard applies. (Chapman v.
California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710-711].) The People disagree,
asserting that willfulness was a necessary element only if the prosecution relied on the
failure to return theory, and accordingly the Watson standard applies. (People v. Watson
(1956) 46 Cal.2d 818, 836.) We need not resolve this dispute, because we conclude any
error here was harmless under either standard.
       Defendant contends his failure to return was not willful because his arrest
prevented him from getting home. Defendant’s entire argument is grounded on the
notion that he was authorized to be away from home until 5:30 p.m., the end of the
normal workday. For this reason, his argument fails.
       In determining the scope of prisoner’s authorization, we look to what the prisoner
was told he could do, could not do and must do as a program participant. The contract
and the individual scheduling instructions document defendant signed are relevant
sources of authorization here. The terms of defendant’s home detention in the contract
told him to drive “directly” home from work. If released from work early, as he was on
the day of the incident, he was required to “immediately return” home and notify home
detention staff. (See fn. 2, ante.) Those requirements defined the period defendant was
authorized to be away from home when his workday ended early. Thus, the authorized
period was whatever time it would take to immediately drive directly home. By
deviating from a direct route after he left work and driving in the opposite direction from


indictment proceedings].) The People did not argue in their briefing that an instruction
related to a prosecution theory not advanced by the prosecution need not be given and we
do not address that issue here. The People argued that any error related to the failure to
give the instruction on the failure to return theory was harmless.

                                            12
his home, defendant exceeded the period he was authorized to be away from home.
Similarly, defendant’s flight from the accident scene to a location even further away from
his home added time beyond the authorized time period. Because the detour and
subsequent flight were willful, defendant willfully failed to return to his place of
confinement before the expiration of the period he was authorized to be away. (See § 7,
subd. (1) [“ ‘willfully’ ” implies simply a purpose or willingness to commit the act. It
does not require intent to violate law].)11
       Yost, supra, 52 Cal.App.3d 289 does not help defendant. In Yost, the defendant
participated in a work furlough program allowing him to leave the jail for work and
return thereafter. His hours of work were from 3:30 p.m. to midnight, and he was to be
back at the jail by 12:45 a.m. (Id. at p. 291.) Other than a condition prohibiting the
defendant from riding in automobiles, the opinion tells us nothing else about the
restrictions and requirements of the defendant’s furlough.
       On the night in question, the defendant in Yost did not go to work when he left the
jail. At 8:30 p.m., he was arrested on suspicion of robbery in another city. Because of
the arrest, he was unable to return to the jail by the 12:45 a.m. deadline. (Yost, supra, 52
Cal.App.3d at pp. 291-292.) Similar to the current section 1203.016, subdivision (f),
section 1208, subdivision (h), pertaining to work furlough provided that the willful failure
of the prisoner to “ ‘return to the place of confinement not later than the expiration of any
period during which he is authorized to be away from the place of confinement’ ” could
be punishable as an escape under section 4532. (Yost, at p. 292.) A plurality concluded
that because of the arrest, the defendant did not willfully fail to return on time to the jail.
(Ibid.) Defendant had several hours to return to his place of confinement. (Id. at p. 293.)



11 Defendant cannot credibly argue that he did not willfully drive in a direction away
from his home or willfully leave the scene of the collision and go to some other
residence; nor does he try.

                                              13
He “had time to change his mind and to repent.” (Id. at p. 294.) The Yost plurality
further held that the evidence of defendant’s departure from his work schedule and being
in an unauthorized locality in an unauthorized means of transportation did not establish
willfulness. (Id. at pp. 292-293, 295.)
       Here, however, the relevant deadline was not the end of defendant’s normal
workday. By the time defendant was arrested, the period he was authorized to be away
had already expired because his authorized period was the amount of time it took to go
immediately and directly home. Unlike the defendant in Yost, who was required to return
to jail by a set time, once defendant detoured from the direct route home and drove in the
opposite direction he exceeded his authorized time period for returning home.
       Also, unlike Yost, defendant’s conduct demonstrated willfulness. His detour was
clearly willful within the legal meaning of that term. So too was his flight from the
collision scene to a location even further away from his home. His explanation for
fleeing the scene was that he was scared and because he was on GPS monitoring. The
evidence overwhelmingly shows defendant willfully failed to return home before the
expiration of his authorized time to be away from home.
       For these reasons, any error relating to the trial court’s refusal to give the failure to
return instruction was harmless under any standard.




                                              14
                            DISPOSITION
The judgment is affirmed.


                                          MURRAY   , J.


We concur:



     HULL          , Acting P. J.



     RENNER        , J.




                                    15
