(Monterey County Super. Ct. No. SS082741A) Trial Judge: Hon. Timothy S. Buckley
The opinion of the court was delivered by: Elia, J.
CERTIFIED FOR PUBLICATION
Defendant Robin Bailey was initially charged in a single count with escape and attempt to escape from the Correctional Training Facility (CTF) in violation of Penal Code section 4530, subdivision (b).*fn1 An escape or an attempt to escape from prison constitutes a crime under section 4350, subdivision (b); both are subject to the same punishment. Apparently, with the court's approval, the parties agreed that the case would be tried solely as an escape. A jury found defendant guilty of escape. It also found true that defendant had five prior felony convictions within the meaning of section 1170.12, subdivision (c)(2). The court sentenced defendant to 25 years to life.
On appeal from the judgment, defendant challenges the sufficiency of the evidence to show the crime of escape. He maintains that this court cannot modify the conviction to an attempt to escape because the jury was not instructed on attempt. Defendant also argues that the trial court erred by "threatening" to give an attempt instruction and the trial court improperly limited defense counsel's closing argument in violation of his Sixth Amendment right to counsel when counsel began to intimate that escape from prison required the defendant to have left the prison facility. Lastly, defendant asks this court to correct the minutes and abstract of judgment to correctly reflect the $200 restitution fine imposed by the trial court.
We conclude that the evidence is insufficient to show a violation of section 4530 by escape from prison and reverse the conviction.
The parties stipulated that, on June 18, 2008, defendant was a prisoner who had been convicted of a felony. The evidence properly viewed (see People v. Story (2009) 45 Cal.4th 1282, 1296; see Jackson v. Virginia (1979) 443 U.S. 307, 319 [99 S.Ct. 2781]) also showed the following.
Defendant Bailey was an inmate in CTF's Central Facility in Soledad. He was housed in a G Wing cell.
A few minutes before 7:30 a.m. on June 18, 2008, Correctional Officer David Doglietto and Correctional Officer Joseph Netro were dispatched to CTF's Central maintenance area in response to a report of a break-in at the carpentry shop there. Tools were reported missing.
Officer Doglietto discovered a cut in the fence between the maintenance area and an area containing Connexes. When Officer Netro went over to inspect the fence, a staff electrician pointed out an inmate beyond the fence in an area accessible through a locked pedestrian gate.
At about 7:55 a.m. on June 18, 2008, Abel Munoz, a correctional officer at CTF assigned as an O Wing roof gunner, was stationed on top of the O Wing roof, an interior location. His job was to keep security of the five Administrative Segregation yards where inmates were housed and to prevent fights and escapes. From his position on the O Wing roof, Officer Munoz saw defendant Bailey, an inmate, hiding behind a Connex, a big storage unit.
Defendant was looking around the side of the Connex, "darting his head back and forth." Inmates are not ordinarily in that area without an officer or supervisor. Officer Munoz asked defendant what he was doing and defendant replied that he was waiting for his supervisor. Defendant could not name his supervisor but told Munoz that his supervisor was over by the silver truck. This response seemed suspicious to Munoz who could not see anyone standing by the truck and knew that Correctional Officer Stephens, who drove that truck, had "already entered underneath Central." After the officer told defendant to stay put, defendant went behind the Connex. Officer Munoz telephoned Officer Stephens and alerted him to the unsupervised inmate.
Officer Stephens was in Central tunnel, which is located underneath the Central Facility. Officer Stephens was the inmate day labor officer and was supervising a 15 member construction work crew. Officer Stephens went out to the Connexes by the O Wing yard and made contact with defendant Bailey.
Defendant said that his boss had allowed him into the area. This explanation did not make sense to Officer Stephens because the area was fenced and keys were required to get in. Officer Doglietto and Officer Netro joined Officer Stephens. Officer Netro handcuffed defendant. Defendant was wearing a CDC jacket on ...