Ct.App. 6 H034382 Monterey County Super. Ct. No. SS082741A Judge: Tim S. Buckley*fn1
The opinion of the court was delivered by: Chin, J.
We granted review to determine whether, after finding insufficient evidence to support a conviction for escape from state prison, an appellate court may reduce the conviction to attempt to escape, notwithstanding the trial court's failure to instruct the jury on attempt. In this case, the Court of Appeal refused to modify the conviction to attempt to escape on the ground that attempt to escape is not a lesser included offense of escape and the trial court did not instruct the jury on attempt to escape. Because attempt to escape is not a lesser included offense of escape -- attempt to escape contains a specific intent element not present in escape -- we affirm the judgment of the Court of Appeal.
I. FACTS AND PROCEDURAL HISTORY
On June 18, 2008, defendant Robin Bailey was a felon and a prisoner at the Correctional Training Facility in Soledad. He was assigned to a cell in the G Wing of the Central Facility. Shortly before 7:30 a.m., correctional officers discovered the facility's maintenance area had been broken into and tools were missing. An officer noticed a cut in the fence between the maintenance area and an area containing Conex storage boxes. When the officer went to investigate, a staff electrician pointed out an inmate outside the fence in an area accessible only through a locked gate.
At 7:55 a.m., a correctional officer assigned as a gunner on the roof of the O Wing noticed defendant hiding behind a Conex box. Defendant was "darting his head back and forth" and was in an area where inmates were not permitted without authorization. Defendant was wearing the standard California Department of Corrections and Rehabilitation jacket, but the bright yellow lettering "CDC Prisoner" had been blacked out.
Defendant had reached the location where he was apprehended by sawing through the bars of his cell window, removing the window pane, cutting through a metal screen, and breaching four fences: the G Wing perimeter security fence, the Central chapel yard gate, a rooftop fence in the Central Facility textile building, and the fence separating the maintenance area from the Conex boxes.
Officers later discovered a hacksaw blade on top of the Conex box and tools underneath it. Near the breach in the maintenance area fence, officers found wire strippers. In defendant's cell, officers found a lump of clothing on an upper bunk covered by blankets. The next day, officers searched defendant's cell more thoroughly and discovered hacksaw blades.
Defendant admitted to prison officials that he was trying to escape. A sergeant testified that defendant admitted that he planned to escape by cutting through a fence and making his way from the Central Facility to the North Facility, where he planned to cut through another fence and be picked up by an accomplice. His plan failed because it took him "so long to cut out of the G Wing fence" and because sawing through the fence was so loud. Defendant also wrote letters to his children admitting that he tried to escape.
In a single count, the prosecution charged defendant with "escape from custody," in violation of Penal Code section 4530, subdivision (b).*fn2 However, in that count, the information alleged that defendant "did willfully and unlawfully escape and attempt to escape." During pretrial proceedings, the prosecutor advised the trial court: "Although [defendant] didn't make it outside the outer perimeter, I feel legally it qualifies as an escape since he sawed through the bars of his cell and made several holes in several fences and was where he was not authorized to be." She later asserted, "I'm trying this case as an escape. If there was evidence that the escape was only an attempted escape, it's the same charge. If anyone wants to argue attempted escape, we will need an attempt instruction, which I didn't put down the CALJIC number for. [¶] It will be CALCRIM number 460 if that should become necessary."
At trial, defendant maintained he sawed through four layers of prison security to attack another inmate, against whom he held a grudge. Maps of the prison showed defendant had actually sawed his way further into the facility before his capture. Defendant testified that he did not intend to escape. He stated that "it was no escape at all. When I reached the maintenance area, I reached my final destination as far as leaving out of my cell."
When finalizing jury instructions, the court commented, "Attempts generally are lessers of virtually every type of charge . . . because of the instruction, it would appear that . . . since we only give attempts where there's sufficient evidence of an attempt not a completed act, here we have an admission of a completed act." Both attorneys agreed an instruction on attempt should not be given.
The trial court instructed the jury on the charged offense as follows: "The defendant is charged with escape, in violation of Penal Code section 4530(b). To prove that the defendant is guilty of this crime, the People must prove that, one, the defendant was a prisoner who had been convicted of a felony; two, the defendant was confined in prison; three, and the defendant escaped from the prison. [¶] Escape means the unlawful departure of a prisoner from the physical limits of his or her custody. It is not necessary for the prisoner to have left the outer limits of the institution's property. However, the prisoner must pass beyond some barrier, such as a fence or wall, intended to keep the prisoner within a designated area." Regarding the escape charge, the court further instructed on general intent, requiring only "wrongful intent," i.e., "when he or she intentionally does a prohibited act."
In closing arguments, defense counsel argued that going through the bars or fences inside a prison facility was insufficient to prove an escape. The prosecutor objected to counsel's argument as misleading and unsupported by the escape instruction, which stated it was not necessary to have left the outer limits of the property. During subsequent discussions outside the jury's presence, defense counsel referred to People v. Lavaie (1999) 70 Cal.App.4th 456, which neither the trial court nor the prosecutor had reviewed. Defense counsel argued that Lavaie supported the defense theory that a prisoner must exit the institution's exterior, perimeter fence to be guilty of escape and that breaching interior security walls was insufficient. The prosecutor maintained that defense counsel's argument was contrary to the agreed-upon instructions and that "any case law in contradiction of [them] is not the jury instruction."
The trial court indicated it would permit the prosecution to amend the information to add attempt to escape, and to allow argument on the point. The court stated, "It would appear then that the jury would simply have to make a determination as to whether, in fact he truly intended to return, if they conclude that it's not an escape." Defense counsel objected to the court's proposal to allow the prosecution to reopen closing argument and add an attempt charge. He argued that it had been agreed the court would not instruct on attempt and that the case would be tried as a "straight escape." Counsel asserted the defense would prefer to limit closing argument. Based on defendant's request, the court agreed not to instruct the jury on attempt. Defense counsel then simply concluded his argument by asking the jury to determine whether or not defendant had escaped.
The jury found defendant guilty of escape from prison without force or violence (§ 4530, subd. (b)) and that he had suffered five prior serious felony convictions (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). The trial court sentenced defendant under the Three Strikes Law.
In a published opinion, the Court of Appeal found insufficient evidence of escape and reversed the conviction. Relying on People v. Lavaie, supra, 70 Cal.App.4th 456, the Court of Appeal concluded that for conviction of an escape, it is not enough for the inmate to have reached an unauthorized location or be out of bounds within the prison facility. Rather, the term "escape" must be interpreted in light of the plain language of the statute, requiring an actual escape beyond the outer boundary of the prison facility having custody of that prisoner. Accordingly, the court held that "[a]n inmate who remains ...