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Name: People v. Bailey
Case #: S187020
Court: CA Supreme Court
District CalSup
Opinion Date: 07/12/2012

Under the particulars of this case, because attempted escape is not a lesser included offense of escape, the appellate court, after finding insufficient evidence to support the escape conviction, cannot modify the conviction to attempted escape. Appellant was charged with a violation of Penal Code section 4530, subdivision (b) (escape from custody), with the information alleging appellant “did willfully and unlawfully escape and attempt to escape.” The evidence revealed that appellant made it past several interior prison barricades but ultimately did not make it past a final barricade. The prosecutor informed the court that she was trying the case as an escape, although there was sufficient evidence to support an attempted escape. The parties agreed to instruct the jury only on escape. The court informed the jury that escape is a general intent crime and the evidence need not show that a prisoner left the outer limits of the institution’s property, only that he passed beyond some barrier designed to keep a prisoner in a specific area. The jury convicted appellant of escape. The appellate court, relying on People v. Lavaie (1999) 70 Cal.App.4th 456, which requires an escape from the actual outer boundary of the prison facility, found insufficient evidence to support the escape conviction and, under Penal Code sections 1181, subdivision (6) and 1260, determined that it had no authority to modify the conviction to attempted escape. The Supreme Court agreed with the lower court’s finding that the conviction could not be modified because, under the elements test, attempted escape, with its requisite specific intent, is not a lesser included offense to the general intent crime of escape. (People v. Smith (1998) 64 Cal.App.4th 1458.) An appellate court may make a modification by applying the established law to the existing facts found by the jury, not by finding or changing any fact. Here, because the case was tried solely as an escape, the jury was never required to make a finding of specific intent, a required element of attempted escape.