THE PEOPLE, Plaintiff and Respondent, v. ROBIN BAILEY, Defendant and Appellant.
No. S187020
Supreme Court of California
July 12, 2012.
Jonathan E. Berger, under appointment by the Supreme Court, and William M. Robinson, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Assistant Attorney General, Catherine A. Rivlin, Gregg E. Zywicke and Sara Turner, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
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., cоrrectional 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 Dеpartment 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 windowpane, cutting
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 childrеn admitting that he tried to escape.
In a single count, the prosecution charged defendant with “escape from custody,” in violation of
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 arе lessers of virtually every type of charge . . . because of the
The trial court instructed the jury on the charged offense as follows: “The defendant is charged with escape, in violation of
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 argumеnt 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 [82 Cal.Rptr.2d 719], 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.
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 within the bounds of the prison has not escaped that prison even if he has broken out of his cell and breached interior security barriers.” (Italics added.)
The Court of Appeal concluded that although “the evidence was more than ample to establish an attempt to escape from prison,” it refused to modify the escape conviction to attempt to escape. The court noted that because attеmpt to escape contains an element of specific intent to escape that escape does not, attempt to escape is not a lesser included offense of escape. Because evidence of defendant‘s intent was conflicting and the trial court failed to instruct the jury on attempt to escape, the court held that modification of the conviction to an attempt would deprive defendant of his Fifth Amendment right to due process and Sixth Amendment right to a jury trial.
The Attorney General petitions for review only on the modification issue. The Attorney General does not challenge the Court of Appeal‘s conclusion regarding the sufficiency of the evidencе on the escape conviction. We granted review solely on the modification issue.2
II. DISCUSSION
The Attorney General contends that attempt to escape is a lesser included offense of escape, and that therefore an appellate court has the statutory power, under
Although the term “escape” is not statutorily defined, case law has defined “escape” as the unauthorized or “unlawful departure of a prisoner
Unlike escape, attempt to escape requires a specific intent to escape. (People v. Gallegos (1974) 39 Cal.App.3d 512, 517 (Gallegos); accord, Brawner v. U.S. (D.C. 2009) 979 A.2d 1191, 1193 [statutory violation of ” ‘escape or attempt to escape’ ” requires proof defendant “acted with the intent to avoid further confinement” for attempt but not for completed offense].)
Under the elements test, attempt to escape is not a lesser included offense of escape since it requires additional proof that the prisoner actually intended to escape. The Attorney General acknowledges that crimes for which general attempt provisions apply (e.g.,
Assault is defined as “an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” (
We explained that criminal attempt and assault require different mental states. “Because the act constituting a criminal attempt ‘need not be the last proximate or ultimate step toward commission of the substantive crime,’ criminal attempt has always required ‘a specific intent to commit the crime.’ [Citation.] In contrast, the crime of assault has always focused on the nature of the act and not on the perpetrator‘s specific intent.” (People v. Williams, supra, 26 Cal.4th at p. 786.) Thus, we noted that assault is defined in terms of the proximity of the assaultive act to the completion of the offense (i.e., battery) and does not include a specific intent to injure because the assaultive act, by its nature, subsumes such an intent to injure. (Ibid.)
Unlike assault, the act constituting an attempt to escape is not defined in terms of its proximity to the completed escape. The Attorney General has provided no legislative history or case law to support the argument that attempt to escape as it relates to specific intent is analogous to assault. Indeed, Gallegos rejected that very argument. (Gallegos, supra, 39 Cal.App.3d at p. 516; see People v. Lancaster (2007) 41 Cal.4th 50, 94 [58 Cal.Rptr.3d 608, 158 P.3d 157] [citing Gallegos with approval].) “The introduction into the concept of attempt to escape of a requirement of intentionally doing an act, the direct, natural and probable consequence of which, if successfully completed, would be an escape, too narrowly limits the application of the statute. Such an act could be to pass part way through a door, window or
This case illustrates the purpose of a specific intent requirement. If a prisoner stole a pair of wire cutters from the prison shop, would that act constitute an attempt to escape? It would be difficult to answer this question without an inquiry into what the prisoner intended to do with the cutters: did he intend to usе them as a weapon to attack another inmate, or to cut through the outer perimeter fence of the prison institution? The element of specific intent to escape distinguishes the act of an attempt to escape from the same act of a violation of prison rules regarding inmate conduct.
The Attorney General further argues that attempt to escape is a necessarily included offense of escape under the accusatory pleading test because the prosecution charged both crimes of escape and attempt to escape under
Even if it can be said that the prosecution charged attempt to escape in the information, the accusatory pleading test only applies in determining whether a defendant received notice of the charges against him in order to have a reasonable opportunity to prepare and present his defense. (People v. Reed, supra, 38 Cal.4th at p. 1231; People v. Lohbauer (1981) 29 Cal.3d 364, 368–369 [173 Cal.Rptr. 453, 627 P.2d 183].) “Courts should consider the statutory elements and accusatory pleading in deciding whether a defendant received notice, and therefore may be convicted, of an uncharged crime . . . .” (People v. Reed, at p. 1231.) However, where ” ‘[c]оncerns about notice are irrelevant,’ ” as in the rule prohibiting multiple convictions of charged offenses, the legal elements test, rather than the accusatory pleading test, is used to determine whether an offense is necessarily included within another. (Id. at p. 1230.)
Here, the case was tried solely as an escape, the trial court did not instruct on attempt to escape, and the jury was never required to make a finding of specific intent to escape, an element of attempt to escape. Because the crime of attempt to escape is not necessarily included in the offense of escape under the elements test, the jury, by finding defendant guilty of escape, did not impliedly find аll the elements of the attempt offense. Thus, the Court of Appeal correctly determined it could not statutorily reduce the escape conviction to attempted escape.
Nevertheless, the Attorney General further argues that “a conviction of attempt to commit the substantive crime is deemed a lesser included offense of the charged substantive offense, by operation of
In support of the claim that attempt is a lesser included offense of any completed crime, the Attorney General relies on cases that have stated generally that ” ’ “it is not conceivable that any crime can be committed in the absence of an attempt to commit it.” ’ ” (People v. Vanderbilt (1926) 199 Cal. 461, 463–464 [249 P. 867]; see In re Sylvester C. (2006) 137 Cal.App.4th 601, 609 [40 Cal.Rptr.3d 461] [“attempt is a lesser included offense of any completed crime“]; People v. Meyer (1985) 169 Cal.App.3d 496, 506 [215
However, “[t]he law of ‘attempt’ is complex and fraught with intricacies and doctrinal divergences.” (Moorman v. Thalacker (8th Cir. 1996) 83 F.3d 970, 974.) “As simple as it is to state the terminology for the law of attempt, it is not always clear in practice how to apply it.” (People v. Superior Court (Decker) (2007) 41 Cal.4th 1, 8 [58 Cal.Rptr.3d 421, 157 P.3d 1017].) Thus, “[w]e must not generalize in the law of attempt.” (U.S. v. Berrigan (3d Cir. 1973) 482 F.2d 171, 187.) Although the above cаses relied on by the Attorney General have stated or applied the general principle that attempt is a lesser included offense of any completed crime, it is not applicable here, where the attempted offense includes a particularized intent that goes beyond what is required by the completed offense.
The Attorney General contends that any error in the trial court‘s failure to instruct on attempt to escape was invited. The Attorney General argues defendant is barred from challenging the court‘s failure to instruct because he expressly objected to an attempt instruction as a conscious tactical choice and induced the court not to give an attempt instruction. (People v. Bunyard (1988) 45 Cal.3d 1189, 1234 [249 Cal.Rptr. 71, 756 P.2d 795].)
The Attorney General‘s invited error argument lacks merit for two reasons. First, the trial court did not have a sua sponte duty to instruct on attempt to escape because it is not a lesser included offense of escape. (See People v. Gutierrez (2009) 45 Cal.4th 789, 826 [89 Cal.Rptr.3d 225, 200 P.3d 847] [trial court has sua sponte duty to instruct jury on any lesser offense that is both included in the offense charged and is supported by the evidence].) Second, defendant does not raise instructional error. “The doctrine of invited error is designed to prevent an accused from gaining a reversal on appeal because of an error made by the trial court at his behest. If defense counsel intentionally caused the trial court to err, the appellant cannot be heard to complain on appeal.” (People v. Wickersham (1982) 32 Cal.3d 307, 330 [185 Cal.Rptr. 436, 650 P.2d 311].) Here, the issue is not whether defendant may challenge the omission of the instruction because it was invited error, but
The Attorney General further argues that the absence of an instruction and of a specific intent finding on attempt to escape does not bar modification because the evidence was overwhelming. When аpprehended, defendant confessed to planning an escape and wore a prison jacket with the yellow letters “CDC” blacked out. He wrote letters to his children admitting to the escape plan. Additionally, defendant arranged his bed to make it appear he was still in it. Although the prosecution‘s evidence of escape (including the intent to escape) was substantial, the evidence of intent was conflicting; defendant testified that he left his cell to go to the maintenance area to assault another prisoner and did not intend to escape. During closing argument, the prosecutor argued that defendant‘s undisputed acts of sawing through the bars of his cell window, removing the windowpane, climbing out of the cell window, scaling a wall, and cutting through fences constituted a completed escape. She concluded that “[e]ven if you believe that [defendant] only left his cell so he could go stab somebody, it was still an escape under the law.”
In finding defendant guilty of escape, the jury only had to conclude that defendant was a prisoner who had been convicted of a felony, that he was confined in a prison, and that he “escaped from prison” with wrongful intent. Thus, despite the conflicting evidence on defendant‘s intent to escape, the jury was not required to decide the credibility of defendant‘s testimony. In returning a verdict on the escape charge, it did not have to make a specific intеnt determination, and defendant‘s testimony was irrelevant as to the jury‘s “wrongful intent” finding. But even if the jury believed defendant‘s testimony that he merely intended to assault another prisoner and did not intend to escape, the jury could have reasonably believed under the instructions given, that defendant‘s acts of passing through the barrier of the cell bars and interior fences qualified as a completed escape.
Thus, the record contains evidence that could lead a rational jury to find the element of specific intent lacking and such a finding would be consistent with the jury‘s verdict. The Court of Appeal correctly determined it could not modify the escape conviction to an attempt to escape. (Cf. People v. Mil (2012) 53 Cal.4th 400, 417 [135 Cal.Rptr.3d 339, 266 P.3d 1030]; see Neder v. United States (1999) 527 U.S. 1, 19 [144 L.Ed.2d 35, 119 S.Ct. 1827] [“wherе the defendant contested the omitted element and raised evidence sufficient to support a contrary finding,” the reviewing court “should not find the error harmless.“].)
We affirm the judgment of the Court of Appeal.
Cantil-Sakauye, C. J., Kennard, J., Baxter, J., Corrigan, J., and Liu, J., concurred.
WERDEGAR, J., Concurring.—I concur in the majority‘s holding that the Court of Appeal, having reversed defendant‘s conviction of escape (
CALCRIM No. 2760, the Judicial Council-approved instruction on escape and attempted escape, states in part: “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 a wall, intended to keep the prisonеr within a designated area.]”
The trial court gave this part of CALCRIM No. 2760, including the bracketed portion. (Maj. opn., ante, at p. 746.) Quoting the instruction, the prosecutor then argued to the jury that defendant committed a completed escape simply by sawing through the bars of his cell window, leaving his cell, and going through other fences, even though defendant—who was apprehended in a storage area of the Correctional Training Facility, where he was confined—admittedly had not left the confinement of the prison itself, had not, in the prosecutor‘s words, gotten “outside that last fence.”1 Later in her argument, the prosecutor reiterated that because defendant had “sawed through the bars of his cell and . . . left his cell,” and hаd gone through “fences that were supposed to keep him where he belongs within the prison,” defendant had escaped. Indeed, “When he left his cell, the escape was committed.”
The prosecutor‘s argument reflected the wording of CALCRIM No. 2760, which in the last sentence of the quoted passage above implies that a prisoner escapes merely by crossing a wall or fence “intended to keep the prisoner within a designated area.” This, however, is not the law.
In three older decisions considered and distinguished by the Lavaie court and the appellate court in the present case, which followed Lavaie, Court of Appeal panels held the evidence showed a completed escape even though the defendant had not reached the limits of the correctional facility‘s property or grounds when apprehended. (See People v. Temple (1962) 203 Cal.App.2d 654, 654, 656, 658–659 [21 Cal.Rptr. 633]; People v. Sharp (1959) 174 Cal.App.2d 520, 520, 522–523 [344 P.2d 796]; People v. Quijada (1921) 53 Cal.App. 39, 39, 41 [199 P. 854].)2 These holdings support the second, seemingly correct, sentence of CALCRIM No. 2760‘s escape definition: “It is not necessary for the prisoner to have left the outer limits of the institution‘s property.”
In all these cases, however, the defendant had breached a wall or fence marking the security perimeter of the correctional facility. (See People v. Temple, supra, 203 Cal.App.2d at pp. 655–656 [defendant climbed over “the security fence” and was apprehended in a field before reaching the “northern boundary of the prison property“]; People v. Sharp, supra, 174 Cal.App.2d at p. 522 [defendant scaled a fence that “marked the outer limits of the security area“]; People v. Quijada, supra, 53 Cal.App. at p. 40 [defendant and accomplices drove locomotive through prison‘s gate, “across the track and beyond the wall of the prison“].) None of these decisions, and none other I have found construing
The majority‘s holding on attempt to escape would appear to call for a modified instruction defining the specific intent to escape as including an intent to avoid further confinement. (Maj. opn., ante, at p. 749.) At the same time, consideration should be given to revising the definition of escape in CALCRIM No. 2760 so that it no longer erroneously implies an inmate commits an escape merely by breaching a barrier enclosing “a designated area” of a prison or jail.