PEOPLE v. BAILEY

Respondent's Opening Brief on the Merits

Cal.March 11, 2011

CO}. jn the Supreme Court of the State of Caltfornta THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, Vv. ROBIN BAILEY, Defendant and Appellant. Case No. $187020 Sixth Appellate District, Case No. H034382 Monterey County Superior Court, Case No. SS082741 Deputy Oe The Honorable Timothy Buckley, Judge OPENING BRIEF ON THE MERITS KAMALA D. HARRIS Attorney General of California DANE R. GILLETTE Chief Assistant Attorney General GERALD A. ENGLER Senior Assistant Attorney General CATHERINE A. RIVLIN Supervising Deputy Attorney General SARA TURNER Deputy Attorney General State Bar No. 158096 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004 Telephone: (415) 703-5712 Fax: (415) 703-1234 Email: Sara.Turner@doj.ca.gov Attorneysfor Respondent Page TSSUC eee eeseeceeeeeseeeseecneeeseeecsuecseeceecaesseseseseeesaseseessaessesaesesensesssessesseseesaes 1 Introduction .....ccccceescccssecessseccsseceseeesteeseessesensdace eesceceetvaeeeteeeecsesaetentaeeseesaaees 1 Statement of the Case........... beeteeeneecsaneseneecesacersesaaeesenatsensneseeaeaaeeseneesseseneeees 1 A, Information oo... cceeeeseeee tees neseeneesneneneneeneseseseenenees I B Prosecution CVIGENCE .......ccccceeseessceessesssssecsecesseeeesseees 2 C, Defense evidence ......cccesccescssestseessessesessscsseessaeensees 5 D. INStrUCtiONS 0... ccceceecesteceneeeeseceeeeseeeeeeeseeseseenteseeeesaeses 5 E Verdict and Sentence... ccccccesesssesesesssteesereessesveeeeees 8 F, Court of Appeal decision...ceeeeereneeenreees 8 Summary of Argument.......cccccccccccccscscsescsesesesscscsesesssecsescsssesressscssseseetaes 10 ATQUMEME 0... cceeecssessseseseeeecstesseecseerseeenteceeteaeeeeesaaaeeeeaeseeaeeseeseaeeseenaeetens 10 I. A reviewing court has powerto reduce a conviction of prison escape wherethe evidenceat trial establishes attempted prison escape under section 4530 uo.eeees 10 A, The court had powerto reduce the conviction to attempted escape as a necessarily included offense under sections 1181, subdivision (6) ANG 1260... eeceeeeessseeseeeeseessecsseeeseceseeessecntessseeenes 11 B. The court also had powerto reduce the conviction to attempted escape undersection LSDieeeetec eeeceteeneteceererecetetessceeeeees 16 C. Attempt under section 4530 meets the statutory TABLE OF CONTENTS elements test of a lesser included offense because the intent is the same as escape under the statute 0... escecssccsssceessneesseeesneeeseeeeseteeseseseeseeess 19 IL. Anyerror in failing to instruct on attempted escapeis invited and harmless ...........cccccsccessssesesessesssessessssesssnsseseees25 CONCLUSION 00... eee ceeeeneeeeeeeeneceseecaeesecnseeseeaecaesereeseaeceaeeseseaeseneeeassessseesesnes 29 TABLE OF AUTHORITIES Page CASES Auto Equity Sales, Inc. vy. Superior Court (1962) 57 Cal.2d 450 oieeeeeseeseseeeeeseseescneenessesnentectneeteenesnenernenteneess 19 In re Culver . (1968) 69 Cal.2d 898occsecsnesnececeneeeeeeeeereeetennensesneseeneeseeneness 14 In re James M. (1973) 9 Cab.3d S17 oceecccccsceecteecsenesrsessessssssescenesessseesesesssnsseessnsnsaernenensesens 20 In re Sylvester C. (2006) 137 Cal.App.4th 601 cccccccccseceeseneereeeteceenesnererereneserenieess 17 People v. Anderson (1979) 97 Cal.App.3d 419 vciiccccececteceeereeeeesdee cacecaeeceeetaeeeaeenseseneenseenees 17 People v. Atkins . (2001) 25 Cal.4th 76 vocescscs enesecenecseecneneeteseeesnenersireneneeesenerinenss 18 Peoplev. Barton (1995) 12 Cal.4th 186 occececcecsesecseceneenesnesnesnesneenepeessereeneteeseteeneeny 26 People v. Bishop (1988) 202 Cal.App.3d 273 ..........Neseenebenees eseesssetesesesssseresesserereaeereeeess DO, 2] People v. Boyde | (1988) 46 Cal.3d 212 oieicciceeessecssnecsseneerecseeesseeseeeeesserseecneenerseteereeeetnnes 24 People v. Bradford (1997) 14 Cal.4th 1005ccccscs cseeeeserseneersnecteseieeesteetenerieneneneesess 27 © People v. Breverman (1998) 19 Cal.4th 142occcccesecesseeeteeensetereeeteeeereeaserseees 26, 27, 28 People v. Bunyard (1988) 45 Cal.3d 1189ceceeects rteesereeteeteseenecteneeesiesteneriersnenecees 26 People v. Cooper (1991) 53 Cal.3d 771 .ocieccsssesscsesseeessenecseeeesenecsesseneeeceenseesnesienrsereeeeesiees 27 ii People v. Duncan (1991) 53 Cal.3d 955 vcccccccscccssssssssssssssssesesvessssssasivesessessssssssstessevesesssesessievee 27 People v. Edwards (1985) 39 Cal.3d 107 oie cccceceessesssestseesteseseecsesecsesecsesetecssesssesesasenvssseees 12 People v. Flannel (1979) 25 Cal.3d 668 oo. cecccccecsseeseseseseecsseseessessvsesecscsecassevessteevevsuesensvases 26 People v. Fritz [(1967)] 250 Cal.App.2d 55 ...cccccccescecesseeecsessesesesecsesessstsesseessssesscseesesenes 24 People v. Gallego (1990) 15 Cal.3d 11S occcccccceeccesesseesssesscscsssesecscsssesestecsescsscecevscseenes 24 People v. Gallegos (1974) 39 Cal.App.3d 512 oicccccccccccsecsseccseessescesecesescssessesssesvavensenspassim People v. George (1980) 109 Cal.App.3d 814 oc icccccccsscecssssetscssssecsssectecsesseeseiseneesesines 7,14 People v. Holt (1944) 25 Cal.2d 59ciccececceeseetsteeecscssesecsecsecacsassecsecsecasseseessecetrssevees 12 People v. Howard | (1930) 211 Cal. 322 ecccetecceeeeseseseeeeesesssecsesecsesesssseseseesecaeecstasseeass 12 People v. Jenkins - (1980) 28 Cal.3d 494 oo.deevevaeueveresenecseneueesseaeseaeecatsessasseseacsecasseseenes 20 People v. Jennings (2010) 50 Cal.4th 616 ooo cccceeeesesceseesesetecsetersesessesecseesrsceeeseneaneninens 13 People v. Kelly (1992) 1 Cal.4th 495 oo ccceceesnesieesneseresseeseessesesseseeseensensenenseesinenesees 18 People v. Kinsey (1995) 40 Cal.App.4th 162]ci ccccsecsecseesesscnsetsesenessesececsecessesseveseseens 17 People v. Lancaster (2007) 41 Cal.4th 50 ooo ccccccesscsssssscseesscssrsesscsscsessssecsessessesseeessesseess 20, 24 People v. Lavaie (1999) 70 Cal.App.4th 456 oo. ccccccccessecsessesscsssseecseessesesessesseesssassees 6, 7,8 People v. Lohbauer (1981) 29 Cal.3d 364Leseeeeuecaevaceneceseesererseesneesneceaesineeeeerrenateasesseente 17 ill People v. Lopez (1998) 19 Cal4th 282 o..cceccccccccsseseneseeerersesenenenscseesseeresenenenenenenenerens 25 People v. Martinez (1999) 20 Cal4th 225 ooocccccececeseseseneteeseteneneienesssesenenenenenenenenrenenenen 13 People v. Mason | (1991) 52 Cal.3d 909 oi cccccececeseeseenene sees terenseesseerereneneneneretsenneeenenas 24 People v. Meyer . (1985) 169 Cal.App.3d 496occsaceeeeseecsesseceeeeeeneteteentaaseseens 17 People v. Murphy - (2007) 154 Cal.App.4th 979 ....cccccceeeneieneneneeeestienererssaresrenssereerereeneney 14 People v. Navarro (2007) 40 Cal4th 668 oo...eeeetener tiene tener seeeeeenes 11, 12, 13, 16 People v. Neely (1998) 670 N.Y.S.2d 993 ..eccccccccseeseeeseeeeeesieerenerseasseeneescensnenensneerersage® 19 People v. Odle (1951) 37 Cal.2d 52 cecececeesee eters neeseerererseereeeneensesseeecaeeanes 12 People v. Ramirez (2009) 45 Cal.4th 980 oo.ccccccccecsseeseseeeererseesentseeessssssereneseneererneney 14, 21 People v. Reed (2006) 38 Cal.4th 1224 oo... ccccccseseeseeecreeseeesierseererenseerenereneneasesereeteenesens 14 People v. Sedeno (1974) 10 Cal.3d 703 .o.cscsccscessscseesesereeteeeeeteenseenessseessesrenenssesseneeeraracenensieess 26 People v. Sloan (2007) 42 Cal.4th 110 oo. ccccccccceeseeecneseeeeeeeeieneiseerssseeeenersneneesesesseeneer sens 17 People v.St. Martin (1970) 1 Cal.3d 524 iiccccsecssssescscscsesseseestenereasienssesssiseneranereeseeeenenesegaens 26 People v. Strunk (1995) 31 Cal.App.4th 265 .......ect ccesecseceaceaesneenaeeevaeeeaeessanenseenaeenessaes 17,18 People v. Toledo (2001) 26 Cal.4th 221 oocccccccscscesceeeeeeeeeeenseseessereeeenesssesnearereraees19, 24 People v. Vanderbilt (1926) 199 Cal. 461 cccceesecceseeseeeeeeessersesrensieeeeseneeeenesseenen saeeareeeneeenes 17 Iv People v. Wickersham (1982) 32 Cal.3d 307 oiccciccccsccessesctseeesesscseccsecsecsecsecsscsssssessevsesstsscessersenses 26 People v. Williams (2001) 26 Cal.4th 779 ooo ccccccescsscssessecseesssescssssessecsecsesseseseuesseressersesats 22 People v. Wright (2002) 100 Cal.App.4th 703 oo... ccceccccesssssccrscsscscesescessecsssssesessvestsssssesens 22 STATUTES Penal Code 8 accteeetereeetenerecneeccresessesesessecseseuessesessessessesatenseeresseess 9, 20, 21 9 OOFcececeecnecneretaesseteneeeetecseeseessesaessesssssaseessascsecsecaecesesassatesesseseneaess 20 8OLcececeeseesestseesscsaceseecsessesessecsescesecsessascauecsuseesvsssceuecsscauesesspassim SLL TOLQe eecccccscssessesseseesesseesesssssusssessssussesassessesusssasavsevsavavsueassassucsneersveeees 8 BLSDeececeetecsetssteestesetsssssssetstrattssseeseeeesene £O, 11, 12, 13 § L181 (6) ooceccccneceeesecsecssnsecsecsecseessessscsessescsesacsseesecsessessetseseresssvesspassim § 1260.eeeeceererteeeeneeeeseneeesaeesecsesseseesseestesscsesseesseenes 1, 12, 18, 19 8 1370Sccceceecnecsseeesecsecseeseesessecseessacsecsecsaessscasesscsassesssccsecsesstcausasensenaey 21 8 S30cstcneseestetetseneeetesenseesaeessssessasrssssssaessessesseecaneateatesteasypassim § 4530(D) oo. eeeececeseseeseeseeseesesseenesseessesecsecsesssecsecsccsessscsecsesseesssesecsscess passim § a8Qoeeececesceeeteeseeeseecseesssneeeeeesseeesssseecsecsessessecascaeessteaseasentsess 19, 21 § S34eeecneenecnecneeneeaeeeeecseneteseseceessescsesaeeeteseesssessecessesecsecateaesiteness 20 Stats. 1949, Chapter 1309, § 1. p.2297 ooo cccccccceteeseeseeeseseeneteesecsessssataneney 12 CONSTITUTIONAL PROVISIONS United States Constitution Fourteenth Amendment ........cccccccccsccccescccecensectsecssessessessneersusevstuceceeeseettsitecens 9 COURT RULES CALCRIM . NO. 250... e cece cececcecccceteseceeceescnsenss ceeees eee eseeceeaeaesesesesesesasesessseceseneneceeasinneaeeeey 6 NO. 460... ccc ceccsscccseecsssseceecececseeeecececeuaucussauusnseaseausaescsrssenssersetevseessereresverss 6 CALJIC NO. 2760... ciiccccccscccceccesensssceceececececsereuauuceveceeeseeestrsucrsnaseseeeeeeausensas 6, 7, 8, 26 ISSUE Whethera failure to prove prison escape under Penal Codesection 4530, subdivision (b) compels reversal where an attempted escape appears underthat statute. INTRODUCTION Defendant Robin Bailey was charged by information with escape and attempted escape fromprison, a violation of Penal Code section 4530, subdivision (b). A jury convicted him of escape. The Court of Appeal for the Sixth Appellate District held that the evidence proved only attempted escape. The court reversed the judgment, finding it lacked the powerto modify a conviction of a substantive crime that requires generalintentto a conviction of attempt whenthe jury is not instructed on specific intent. Because attempted escape was chargedin the information and proved at trial, Penal Code sections 1159, 1181, subdivision (6) and 1260 provided the Court of Appeal with the powerto modify the escape conviction to attempted escape. Alternatively, even if attempt constituted an uncharged crime, the lower court could exercise that modification power because attempted escape undersection 4530 is, substantively, a general intent crime undifferentiated from escape. Any erroneousfailureofthetrial court to instruct on attempt was invited and harmless. The judgment of the Court of Appeal should be reversed with directions to make the modification and to remand for resentencing. | - STATEMENTOF THE CASE A. Information The information charged defendantas follows: “On or about June 18, - 2008, the crime of ESCAPE FROM CUSTODY,in violation of Section 4530(b) of the Penal Code, a FELONY, was committed by ROBIN - BAILEY, whoat the time and placelast aforesaid, did willfully and unlawfully escape and attempt to escape from CORRECTIONAL TRAINING FACILITY. (CT 20.)' B. Prosecution Evidence On June 18, 2008, shortly before 8:00 a.m., Officer Munoz was the assigned roof gunner on the O Wingroof, inside the California Training Facility in Soledad (CTF). (RT 30, 45.) His job was keepingfive Administrative Segregation inmate yards secure and preventing fights and escapes. (RT 31.) Officer Munoz saw defendant, an inmate,hiding behind a Connex, a large storage unit, in a locked maintenance area, where inmates ' Penal Code section 4530 (hereafterall statutory citationsare to this code) provides as follows: (a) Every prisoner confined in a state prison who,by force or violence, escapes or attempts to escape therefrom and every prisoner committed to a state prison who,byforceor violence, escapes or attempts to escape while being conveyedto or from such prison or any otherstate prison, or any prison road camp, prison forestry camp, or other prison campor prison farm or any other place while underthe custodyofprisonofficials, officers or employees; or who, by force or violence, escapes or attempts to escape from any prison road camp,prison forestry camp, or other prison camporprison farm or other place while underthe custodyofprison officials, officers or employees; or who, by force or violence, escapes or attempts to escape while at work outside or away from prison undercustodyofprison officials, officers, or employees, is punishable by imprisonmentin state prison for a term of two, four, or six years. The second term of imprisonmentof a person convicted under this subdivision shall commence from the time he would otherwise have been discharged from prison. No additional probation report shall be required with respect to such offense. [{] (b) Every prisoner who commits an escape or attempts an escape as described in subdivision (a), without force or violence, is punishable by imprisonmentin the state prison for 16 months, or twoorthree years to be served consecutively. No additional probation report shall be required with respect to such offense. are not ordinarily found without an officer or supervisor. (RT 30-33, 35, 37, 38, 43.) Defendant looked aroundthe side of the Connex, “darting his head back and forth.” (RT 43.) When Officer Munoz asked what he was doing, defendantsaid that he was waiting for his supervisor, who wasoverbythe silver truck. (RT 40.) The response seemed unusualas no one wasbythe truck and Officer Munoz knew the driver, Officer Stephens, had “already entered underneath Central.” (RT 40.) Officer Munoz telephoned Officer Stephens in the tunnel underneath the Central Facility and alerted him to the unsupervised inmate. (RT 45, 49-51, 53.) Officer Stephens, the inmate day labor boss in charge of a 15-member construction crew, wentto the Connexes, found defendant, and noticed he had on gray sweatpants, rather than state-issued denim pants. (RT 49-51, 54.) Asked what he was doing, defendantrepliedthat“his boss let him in there.” (RT 53.) The explanation made no sense because the area was fenced and keys were required to get in. (RT 53.) Meanwhile, Officers Doglietto and Netro were investigating a report of a break-in at the carpentry shop and had founda cutin the fence between the maintenance area and the Connexesafter discovering tools missing from CTF Central’s maintenance area. (RT 56, 50-61, 90.) Whena staff electrician pointed out the inmate in the fenced area accessible through the locked pedestrian gate, Officers Doglietto and Netro joined Officer Stephens there, and Netro handcuffed defendant. Netro noticed defendant’s California Department of Corrections (CDC)jacket had the standard bright yellow lettering “CDC Prisoner” blacked out. (RT 53, 57-59, 62, 81.) Correctional officers found the G Wing fence cut and the bars cut out of defendant’s cell window in G Wing. (RT 63-64, 77, 133-134, 178-180.) The window panesin the cell had been removedandthe outer metal grate covering the windowscut through. (RT 133, 178-180.) Blankets covered someclothing piled on the upper bunk of the cell. (RT 180.) Additional fencing was cut on the roof abovethe textile building that led to a fenced walkway. (RT 64-65.) Correctional staff ultimately located holes cut in the fence next to the chapel’s patio, the fence in the G Wing yard, the fence abovethetextile building abovethe stairs, and the fence on the west end of the maintenance yard. (RT 149.) | | Sergeant Soekardi went to the maintenance area and admonished defendant with the Miranda rights. (RT 85-87.) Defendant admitted a plan to escape that had begun at 12:30 a.m. (RT 87-88.) Earlier, defendant had obtained hacksaw blades and sawedthroughhis cell window bars over a two-day period. (RT 87-88.) He had plannedto cut through a fence behind G Wing and “make his way towards North Facility,” cut through its double - fence, and then meet someone who was supposed to be waiting there to pick him up. (RT 89.) Defendant was unable to execute the plan becauseit took him “so long to cut out of the G Wing fence,”and it was “so loud”he knew it would not work. Hehid in the family visiting building and devised _a different plan. (RT 89, 98, 101.) He cut the fence bythe chapel, scaled a wall to get on top of anotherfence, then went to the east end of the Central Facility where the maintenance yard waslocated. (RT 89, 96-97.) Officers later found a hacksaw blade on top of a Connex and twotools underneath the Connex. (RT 109, 126.) Wire strippers were near the breach in the maintenance area fence. A thorough search of defendant’s cell the next day revealed hidden hacksaw blades. (RT 111, 113.) According to Sergeant. Soekardi, three inner towers between the Central Facility and the North Facility (Towers Five, Six, and Seven) are guarded “94/7,” but the roof is not. No officers were stationed in the maintenance yard fencearea “at [the] time of [defendant’s] attempt.” (RT 101, 104-105.) The jury viewed a videotape ofthe route through the facility grounds that defendant would have taken. (RT 237-239.) C. Defense Evidence Defendanttestified that he did not escape or intend to escape andthat the maintenance area washis‘final destination.” (RT 261-262.) He was seeking to stab inmate “Charles Queen,” in revenge for a prior incident and plannedto return to his cell while officers attended to “Queen”that morning. (RT 271, 274, 276-277, 281.) Defendant cut through three fences and jumped overthe razor-wire fence while wearingthree pairs of pants; the video fairly portrayed his route. (RT 278, 280, 287.) If he had been escaping, defendanttestified, he would have gone out the back, where the towers were not mannedafter 10 p.m. (RT 279-280.) “Charles Queen” did not appearattrial. Beforetrial, defendant had written letters to his son and daughter describing how hetried to escape but misjudgedthe strength of the fence wire, stating, “Just think we would haveall been together right now,” and reporting, “I was moments away from freedom.” (RT 282-285;see also RT 330-331 [prosecutor readingletters inargument].) In oneletter, he wrote: “I cut the bars out the cell window, and I made one major mistake. ; I misjudgedthe strength of the fence wire. My cutters were not big enough to cut the fence quickly. It was taking me too longto cut the fencing. That plan failed. So I roamedall overthe prison all night searching for a different way out. I had to use the roof so the gun towers would not see me. ({] Man, I am so hurt that my plan for freedom failed.” (RT 284-285.) Defendanttestified he wrote the letters so the investigators would find them to “enhance mystory I was trying to escape.” (RT 286.) D. Instructions Duringtrial, the prosecutor informed the court, “I don’t know ifit’s going to be an issue because, ... , 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 wantsto argue attempted escape, we will need an attempt instruction,” and that the relevant attempt instruction would be CALCRIM No.460, “should that become necessary.” (RT 92.) Defense counselsaid nothing in response (ibid.); defense counsel’s instructionlist requested CALCRIM No.2760, but no specific intent instruction. (CT 24.) At a conferenceoninstructions in which the court reminded counsel ofthe earlier discussion about attempt,it noted that attempts “generally are lessers of virtually every type of charge,” that under CALJIC No. 2760 attemptis punishable the sameas actual escape, and thatin this case “we have an admission of a completedact.” (RT 299.) Neither counsel wanted an attemptinstruction, and the court agreed not to give one. (RT 299.) The court instructed on CALJIC No. 2760 by eliminating the bracketed portions that refer to attempted escape and also instructed on general intent for éscape under CALCRIM No.250. 2 (CT 118, 124-126; RT 294-295, 298, 325.) | *As read to the jury, CALCRIM No. 2760 stated: “The defendantis 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 wasa prisoner who had been convictedof a felony; two, the defendant was confinedin prison; three, and the defendant escaped from the prison. [§] Escape means the unlawful departure of a prisoner from the physicallimits of his or her custody.It is not necessary for the prisonerto haveleft the outer limits of the institution's property. However, the prisoner must pass beyond somebarrier, such as a fence or wall, intended to keep the prisoner within a designated area.” Asrelevant to this case, the current BENCH NOTESand AUTHORITYfor CALCRIM No. 2760 reflect that (1.) the last two- sentences of the above-quoted instruction are given if there is an issueas to whether the defendant went far enoughto constitute an escape. (See People vy. Lavaie (1999) 70 Cal.App.4th 456, 459-461); (2) if the defendantis charged with attempt, CALCRIM No. 460 should be given on specific intent (People v. Gallegos (1974) 39 Cal.App.3d 512, 517); and (3) specific . (continued...) Duringargumentto the jury, the prosecutor objected when defense counsel interpreted CALCRIM No. 2760 to mean escape occurs only by passing the outer barrier keeping an inmate on prison property. (RT 336- 338.) Outside the jury’s presence, defense counsel presented the court with a copy of People v. Lavaie, supra, 70 Cal.App.4th 456, a recently decided case. (RT 338-340.) The prosecutor obj ected that the argument was improper and untimely in view of the defense’s failure to seek an attempt instruction and agreement to CALCRIM No.2760 as given by the court. (RT 339-340.) After examining the decision and the statute, the court observedthat section 4530 did not define escape or attempted escape, and that while CALCRIMis not a dispositive statement of the law, Lavaie also did not, in its reading of that case, necessarily control over other earlier case law, though the new case did makethe distinction between escape and attempted escape “a little more muddled.” (RT 344.) In view of the uncertainty in the law, the court offered the prosecutor an opportunity to reinstate attempted escape as an issue in the case andto allow brief arguments on the question whether defendantdid or did not intend to return to prison. (RT 344-345.) Defense counsel objected, claiming that defendant had based his defense on the case being tried as a “straight escape,” that everything the defense had donein this regard represented tactical decisions, and that counselpreferred to withholdhis legal theory of the CALJIC instruction in closing argumentso that the jury would not consider attempted escape. (RT 345-346, 348.) In responseto the prosecutor’s objection, the court recounted that in the earlier instructions conference, the parties stipulated an attempt instruction should not be given (.. continued) intent is not an element of completed escape (People v. George (1980) 109 Cal.App.3d 814, 819). on a representation that the CALCRIM instructionreflected leaving a cell could be a completed escape; the court had not been aware of a dispute about the law; and it declined to rule Lavaie was more limited than defense counsel suggested or was wrongin the absenceof clear precedent. (RT 346-347, 349-350.) As to defense counsel’s objection to an attempt instruction, the court indicated that absent an offer of proof, it was unable to see how the instruction would changethe defensestrategy; it doubted allowing an amendmentto show attempt would be a problem on appeal “because that was the charging document” (RT 347) and “it would be the same [defense] strategy all along, that in fact [defendant] intended to return and that there was no intent to escape,” (RT 347-348); and reopening would “simply allow escape in the words ofthe statute to be back in” (RT 351). On inquiry by the court, defense counsel confirmed thatin lieu of the jury considering attempt escape, the defense would restrict its argument by not asserting its theory of the CALCRIMinstruction to the jury. (RT 348.) Both counsel completedtheir arguments and the matter was submitted on the existing instructions. (RT 351-356.) E. Verdict and Sentence Thejury convicted defendant of escape from a state prison facility without force or violence, pursuant to section 4530, subdivision (b). (CT 43: RT 360.) Ina bifurcatedtrial, the jury found true five prior strike allegations. (CT 41,.44-48, 405-408.) Under section 1170.12, the court sentenced defendant to a Three Strikes law term of 25 years to life, to be served consecutive to his current indeterminate life term. (Typed opn.at p. 9; CT 49, 91, 118-120.) . F. Court of Appeal Decision On appeal, defendant argued that the evidence did not prove escape and that a modification of the conviction to attempted escape was precluded because the jury was notinstructed on attempt. (Typed opn.at p. 1) The Court of Appeal agreed. The court construed escape under section 4530 to require proof that the inmate went beyond the boundary ofthe prison facility having custody of the inmate. (/d. at p. 13.) Because defendant remained on prison grounds, it held that the evidence failed to support the jury’s verdict. (/d. at pp. 6-8.) The appellate court acknowledged that “the evidence was more than ample to establish an attempt to escape from prison.” (Jd. at p. 13.) However, it held that the absenceof an instruction on specific intent meant that “[a]ttempt to escapeis not a lesser-included offense of escape based upon the elements of the offense impliedly found true by the jury,” because - attempted escaperequiresspecific intent under section 21a and Peoplev. Gallegos, supra, 39 Cal.App.3d at page 517. (Typed opn.atp. 13, & fn. 4.)° Acknowledgingthe statutes that authorize a modification of a conviction unsupported by sufficient evidence to a lesser included offense or a lower degree (§§ 1159, 1181, subd. 6, 1260), the court held a modification to attempted escape would deprive the defendantofa jury trial on specific intent in violation of the Sixth and Fourteenth Amendment rights. (/d. at pp. 13-14.) It concluded: “Becausethe trial court failed to instruct regarding an attempt to escape from prison andthe evidenceis not sufficient to support the conviction of escape, we mustreverse.” (/d.at p. 14.) In denying a rehearing onpetition of the People, the appellate court distinguished decisions by this Court involving defendants with the * Penal Code section 21a, provides: An attempt to commit crime consists of two elements: a specific intent to commit the crime, and a direct but ineffectual act done toward its commission. requisite intent who fail to complete the substantive crime due to unforeseen circumstances, explaining that here “there was conflicting evidence whether defendanthad specific intent to escape and the prosecution madea deliberate decision to not prosecute defendant for attempted escape.” (Order on Denial of Rehg,at pp. 2-3.) SUMMARY OF ARGUMENT A reviewing court is authorized to reduce a conviction where the evidencefails to establish prison escape but supports a conviction of an attempted prison escape under Penal Codesection 4530, subdivision (b). The Court of Appeal had the statutory powerto reduce the conviction to an attempt as reflected in decisions by this Court and the Courts of Appeal. Attempted prison escape waschargedin the accusatory pleading and was | provedat defendant’s trial. Moreover,even if attempt were deemed an uncharged offense in this case, despite the accusatory pleading expressly charging it, the modification power of the appellate court survives because a violation section 4530 issatisfied by general intent whether ornotthe. defendant succeeds in an escape. Assumingspecific intent is required for a conviction of attempted escape under section 4530, however, the absence ofan instruction on specific intent did not preclude a modification of the conviction to an _ attempt, since any erroneousfailure to instruct the jury was both invited . and harmless. ARGUMENT I. A REVIEWING CouRT HAS POWER TO REDUCE A CONVICTION OF PRISON ESCAPE WHERE THE EVIDENCE AT TRIAL ESTABLISHES ATTEMPTED PRISON ESCAPE UNDER SECTION 4530 . The Court of Appealheld that it lacked the power undersections 1181 and 1260 to reduce the conviction to attempted escape from escape as 10 found by the jury. The appellate court conclusion that attempted escapeis not an offense necessarily included in escape in this case rests upon two principles: (1.) the test of whether an offenseis a lesser included offense of the charged crimeis determined by the elements impliedly found true by the jury in light of the instructions defining the charged crime; (2.) because attempted escapeis a specific intent crime unlike the substantive crime of escape, defendant was not charged with attempted escape for lack of a jury instruction defining that crime as one requiring specific intent. Neither principle is correct. First, in this case, attempted escapeis a necessarily included offense because the information charged section 4530 in the statutory language, which includes attempted escape. Furthermore, attempt is included in every crimeincluding general intent crimes under section 1159. Second, any instructionalfailure with respect to specific intent under the Court of Appeal’s apparent assumption that the instructions “uncharged” defendant with an attemptis irrelevant to the court’s modification power, in view of the reviewing court’s power undersections 1159 and 1260 to modify the conviction to attempt. In any event, by operation of law, specific intent is not a material element of attempted escape from prison in section 4530. A. The Court Had Powerto Reduce the Conviction to Attempted Escapeas a Necessarily Included Offense UnderSections 1181, Subdivision (6) And 1260 The appellate court had the power to modify the escape conviction to attempted escape under sections 1181 and 1260. (See People v. Navarro (2007). 40 Cal.4th 668, 678 (Navarro).) Subdivision 6 of section 1181 provides that a trial court may grant a new trial “Tw]hen the verdict or finding is contrary to law or evidence, but if the evidence showsthe defendantto be not guilty of the degree ofthe crime of which he was convicted, but guilty of a lesser degree thereof, or of 1] a lesser crime included therein, the court may modify the verdict, finding or judgmentaccordingly without granting or orderinga new trial, and this powershall extend to any court to which the cause may be appealed. .. .” (Emphasis added.) Since section 1181’s amendmentin 1927,it has been the law in California that when a conviction is unsupported by sufficient evidence, the conviction may be reducedto lesser offense included within the greater offense as long as the evidenceis sufficient to support the latter. (See Navarro, supra, 40 Cal.4th at pp. 676-677; e.g., People v. Edwards (1985) 39 Cal.3d 107, 118 [affording prosecution the option of a reduction from second degree murder to involuntary manslaughter]; People v. Holt (1944) 25 Cal.2d 59, 93 [modifyingfirst degree murderverdict to second degree murder]; People v. Howard (1930) 211 Cal. 322, 329-330 [same].) A 1949 amendmentto section 1260, which allowed an appellate court modification of a judgmentor reduction of degree of the offense or the punishment imposed (§ 1260, as amended by Stats. 1949, ch. 1309, § 1. p. 2297), “did no more than bring section 1260 into accord with section 1181(6) with respect to reduction of the degree... .” (People v. Odle (1951) 37 Cal.2d 52,58.) Section 1260 provides in part: “The court may reverse, affirm, or modify a judgmentor order appealed from, or reduce the degree of the offense or attempted offenseor the punishment imposed, and mayset aside, affirm, or modify any orall of the proceedings subsequentto, or dependent upon, such judgmentor order... .” Whenthe jury improperly decides the degree of the crime on insufficient evidence, the purpose ofthe statutes is served whenthe court replaces the greater offense with a lesser included offense. “Underthe schemeprovided by thosestatutes, “‘the power to change the offenseis as unlimited as the power to changethe degree.’” (Navarro, supra, 40 Cal.4th at p. 678, quoting People v. Enriquez (1967) 65 Cal.2d 746, 749, internal quotation omitted.) “[SJuch a modification merely bringsthe jury’s verdict 12 in line with the evidence presented at trial.” (People v. Navarro, supra, 40 Cal.4th at p. 680.) In People v. Martinez (1999) 20 Cal.4th 225, this Court modified the defendant’s conviction from kidnapping to attempted kidnapping under Penal Code section 1181, subdivision 6. (/d. at p. 241). The defendant had grabbed the victim and announced that someone wasgoing to pay for what had been done to him. (/d. at p. 231.) He forced the victim at knife-point through various roomsofher house, then outside across a 15-foot porch, the backyard, and a parking area, which bordered on five-acre vacantlot. Officers spotted defendant and the victim between two trees about 40 to 50 feet from the back of the residence. (/bid.) This Court reversed the kidnapping conviction because the defendant had not moved the victim a sufficient distance under then applicable law. In reducing the conviction to attempted kidnapping, the Court said that the evidence “showsthat, but for the prompt responseofthe police, the movement would have exceededthe minimum. asportation distance. ...” (Ud. at p. 241.) Martinez may be understood as holding a reduction to attempted kidnappingis proper and appropriate under Penal Code section 1181, subdivision (6) where the evidence establishes movement that while insubstantial under the test for sufficiency of the evidence would naturally and probably result in a completed kidnap had the incident continued without interruption. The same result as in Martinez applies in this case. Thetest for lesser included offensesin this state is established law. “Under California law, a lesser offense is included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser . offense, such that the greater cannot be committed without also committing the lesser.’” (People v. Jennings (2010) 50 Cal.4th 616, 668, quoting People v. Birks (1998) 19 Cal.4th 108, 117.) 13 “Courts should consider [both] the statutory elements and accusatory pleading in deciding whether a defendant received notice, and therefore maybe convicted, of an uncharged crime, but only the statutory elements in deciding whether a defendant may be convicted of multiple charged crimes.’ (People v. Reed (2006) 38 Cal.4th 1224, 1231.) Underthe ‘elements’ test, we lookstrictly to the statutory elements, not to the specific facts of a given case. (See, e.g., People v. Murphy (2007) 154 Cal.App.4th 979, 983-984.) Weinquire whetherall the statutory elements ofthe lesser offense are included within those ofthe greater offense. In other words,if a crime cannot be committed without also committing a lesser offense, the latter is a necessarily included offense.” (People v, Ramirez (2009) 45 Cal.4th 980, 985, brackets original and parallel citations omitted.) As the Court’s description of these tests makes clear, the “accusatory pleading” and “statutory elements” tests do not turn on the particular instructions given in the defendant’s case. The question is one of law considered in the ‘abstract. (See generally People v. Reed, supra, 38 Cal.4th at p. 1227.) Here, the charge in the language of section 4530 expressly includes attempt to escape. The accusatory pleading charged defendantin the statutory language. (CT 20.) Asthetrial court noted, underthe charge of an escape and attemptto escape, the jury not only had the powerto return a guilty verdict based upon attempt, defendant would be punished the same on such finding as on findingof escape.* (RT 347, 351.) In People v. George, supra, 109 Cal.App.3d 814, the defendant was charged with escape and attempted escape under section 4530, subdivision (b). “In orderto conform to the proof, the prosecution, following the - * Thelegislative unification of the two meansofviolating the statute postdates the doctrine of lesser included offenses. (See Jn re Culver (1968) 69 Cal.2d 898, 900-903 [recounting legislative history of the escape statutes].) 14 conclusion of its case in chief, moved to amendthe informationbystriking the charge of attemptedescape.” (/d. at p. 818.) “The trial court granted the motion and simultaneously therewith ruled that evidenceas to [defendants’] motivation for leaving the prison camp andtheir intent to return to their confinementafter [a] ‘booze run’ wasirrelevant and therefore inadmissible. (/bid.) On appeal, defendants claimed the amendment improperly reconstituted the charge becauseit eliminated defense evidence of diminished capacity. (See ibid.) The Court of Appeal found“it is clear that the amendmentdid not change the offense charged in the original information. While the prosecution lessened the burden of _[defendants’] defense by omitting the charge of attempted escape, the primary charge ofescape, the backboneofboth the criminal complaint and the information, has remained unchanged.” (Id. at p. 819.) In the present case, there was no amendmentto the accusatory pleading. Attempted escape wasnot deleted from the information. Thatis whythe prosecutor offered an attempt instruction if one were deemed to be needed. (RT 92.) No changein the charge was made. Thus,the charge of attempted escape and escape remainedthe “backbone”ofthe accusatory pleading. Overwhelming evidence establishes that defendant’s apprehension by correctional officers interrupted and prevented his escape after an unauthorized movement from the boundaries of confinementthat if not interrupted would naturally and probably result in a complete escape. The bars of defendant’s cell window were cut through with a hacksaw and the windowpanes were removed. (RT 133-134, 178-180.) He concealed his absence from the cell inferentially to give himself more time. (RT180.) He cut fences in four locations. (RT 64-75, 149.) He wore his own pants as opposedto state-issued denim, and he had blacked out the yellow letters “CDC”on the back of his jacket. (RT 58-59, 62, 81.) Upon being caught 15 inside a locked maintenanceyard, he confessed. He sawed through the bars of his cell’s window, removed the windowpanes, climbed out of the window,scaled a wall, cut through the fences, and jumped overa razor- wire fence and said he intended to go through the double fence where someone would pick him up. (RT 85-87, 89, 96-98.) The charge of escape and attempted escape in the accusatory pleading containedall the elements of section 4530, whichincludes an attempt to escape. The jury did not receive an instructionon attempt. However, that implicates the correctnessof the instructions—adifferent question from whether a charged attempt constitutes a necessarily included offense for purposes of the appellate court’s modification powers.” Becausethe defendant was charged with escape and attempted escape in the accusatory pleading, attempted escape was a necessarily included offense for purposes of sections 1181, subdivision (6) and 1260. B. The Court Also Had Power to Reduce the Conviction to Attempted Escape UnderSection 1159 Wherethe evidence proves attempt but not the completed crime, sections 1181 and 1260 do not exhaust the powerof the reviewing court to modify-the conviction in a way that “brings the jury’s verdict in line with the evidence presented attrial.” (People v. Navarro, supra, 40 Cal.4th atp. 680.) Under sections 1159 and 1260, the reviewing court can modify a section 4530 conviction for escape to a section 4530 conviction of an uncharged attempt to escape. Section 1159 provides: “The jury, or the judgeif a jury trial is waived, _ mayfind the defendantguilty of any offense, the commission of whichis > As shownin argumentII, the Court of Appeal below ultimately acknowledged that attempt was an offense included in the escape charge by reversing, in part, for the lack of an instruction on attemptas a lesser included offense 16 necessarily included in that with which heis charged, or ofan attempt to commit the offense.” (Emphasis added.) Underthatstatute, “[a] defendant may be convicted of an uncharged crimeif, but only if, the uncharged crime is necessarily included in the charged crime. (§ 1159; People v.Lohbauer (1981) 29 Cal.3d 364, 368-369.) The reason for this rule is settled. ‘“This reasoning rests upona constitutional basis: ‘Due process of law requires that an accused be advised of the charges against him in order that he may have a reasonable opportunity to prepare and present his defense and not be taken by surprise by evidence offeredat his trial.’ [Citation.]”’ (People v. Lohbauer, supra, at p. 368.) The required notice is provided as to any charged offense and anylesser offense that is necessarily committed when the charged offense is committed. (Ud. at pp. 368-369.)” (People v. Sloan (2007) 42 Cal.4th 110, 116, parallel citations omitted.) But a conviction of attempt to commit the substantive crimeis deemed a lesser included offense of the charged substantive offense, by - operation of section 1159 itself. This principle is reflected in long-standing precedent. (See People v. Vanderbilt (1926) 199 Cal. 461, 464 [by operation of section 1159, an attempt to commit the charged offense constitutes a lesser included offense]; People v. Kinsey (1995) 40 Cal.App.4th 1621, 1627, fn. 4 [same]; People v. Meyer (1985) 169 Cal.App.3d 496, 506 [same]; People v. Anderson (1979) 97 Cal.App.3d 419, 424 [same]; /n re Sylvester C. (2006) 137 Cal.App.4th 601, 609 [“‘attemptis a lesser included offense of any completed crime”); cf. People v. Strunk (1995) 31 Cal.App.4th 265, 267 [dicta stating: “While the same sua sponte Jury instruction rule generally applies to attempts as well as to lesser included offenses (see,e.g., § 1159), an attemptis a specific intent crime and doesnotfit within the definition of a necessarily included offense of a general intent crime”; case holds no evidence supported an instruction on attempt].) 17 The Strunk dicta that attempt to commit a general intent crime does notfit the definition of a lesser included offense flouts the literal language of section 1159, which makesall attempts “fit” as respects the factfinder’s power to return a finding of guilt of an uncharged attempt. Moreover, Strunkis incorrect in principle. An attempt to commit an offense can be a lesser included offense in cases where the substantive crime requires only general criminal intent. “For example, attempted rape, a specific intent crime,is a lesser included offense of rape, a general intent crime.” (People v. Atkins (2001) 25 Cal.4th 76, 88, citing People v. Osband (1996) 13 Cal.4th 622, 685 and People v. Kelly (1992) 1 Cal.4th 495, 526, 528.) In People v. Kelly supra, | Cal.4th 495, due to instructional error, this Court reduced a rape conviction to attempted rape under section 1260, because some evidence showedthe defendant, despite his admission to the contrary, killed a victim at one location and had sexual intercourse with her body in another. (/d. at p. 528.) With respect to the court’ s modification powers under section 1159 and 1260, nothing distinguishes attempted escape, even assuming that crime,like attempted rape, required specific intent. The Court of Appeal offered no authority for its holding that the specific intent element of an attempt rendersthat crimenot included within a substantive crime requiring generalintent for purposesof section 1159 and 1260. Nordid it offer any explanation how one could commit a prison escape without necessarily attempting to escape. This Court’s approval of modifying the conviction of a substantive offense when the evidence supports only a conviction of attempt obligated the Court of Appeal to follow suit as a matter ofstare 18 decisis. (See Auto EquitySales, Inc. v. Superior Court (1962) 57 Cal.2d 450.)° | C. Attempt UnderSection 4530 Meets the Statutory Elements Test of a Lesser Included Offense Because the Intent Is the Same As Escape Underthe Statute Sections 1159, 1181 and 1260 do not contain a restriction against modifying a conviction for a general intent crime to an attempt. However, even if a modification were only allowed when an uncharged attempt has a mental state that is identical to or subsumed within the mental state needed for the substantive offense, an attempt to escape prison requires the same general intent as escape undersection 4530. This Court in People v. Toledo (2001) 26 Cal.4th 221 contemplated the possibility, not presented there, ofthe Legislature codifying an offense using languagethat, for purposes of construing the law of attempt, “should be treated differently from virtually all other crimes as to which the attempt provisions are applicable.” (Id. at p. 232.) Section 4530 is such an instance. Wechallenge the Court of Appeal’s holding that an attempt to escape,at all times andin all circumstances, requires a specific intent to escape. (Typed Opn.at pp. 13-14.) People v. Gallegos, supra, 39 Cal.App.3d 512, 517 (Gallegos) is to the contrary of our position—andrequires disapproval. It held thata trial court erred by not “instruct[ing] that the crime of attempt to escape [under section 4532] required a specific intent... to escape from thejail, plus a ° Cases in other states have reached a similar conclusion. For example, in People v. Neely (1998) 670 N.Y.S.2d 993, 248 A.D.2d 996, the appellate court held the evidence did not support the crime of second degree escape where the defendant hadfled the courtroom during sentencing but was apprehended on the samefloor of the courthouse by court officers. (/d. at p. 994.) The court however, modified the conviction to attempted escape. (/d. at p. 995.) 19 direct, unequivocalact to effect that purpose.” It reasoned that section 21a has to apply becauseif attempted escape is “moved outof the class of attempts of which a specific intent is an element, tothe status of a substantive crime that requires only a general intent to commit the act,”it raises “the possibility that there is such a crime as an attempt to attempt to escape, [which] leads onto a logical merry-go-round.” (/d. at p. 516.) This reasoning is flawed becausethere is no merry-go-round. An “attempt to commit an attempt,” e.g., attempted assault, which was a deductive impossibility at commonlaw,is not a crimein this state. (In re James M. (1973) 9 Cal.3d 517, 521-522.) The merry-go-roundlegislatively stops with section 4534, which penalizes any person whowillfully assists a prisoner whoescapesor attempts to escape but doesnot establish any crime of attempting to assist an attempted escape. (People v. Bishop (1988) 202 Cal.App.3d 273, 279-282.) Contrary to the holding in Gallegos that attempted escapeis a specific intent crime, we see no convincing indication oflegislative intent to apply section 21a to section 4530.’ When the Legislature enacts a specific statute like section 4530 covering much the same ground as more general laws, an indication exists that the Legislature intended the specific provision alone | to apply. (See People v. Jenkins (1980) 28 Cal.3d 494, 505-506.) The proper goalof statutory construction “is to ascertain and effectuate Tn footnote dicta, this Court has quoted Gallegosto the effect that “the essential elements of an attempt to commit a crime, so as to make the attemptitself punishable, are present in an attempt to escape as well as in those attempts made punishable under Penal Code section 664.’” (People vy. Lancaster (2007) 41 Cal.4th 50, 94, fn. 7, quoting People v. Gallegos, supra, 39 Cal.App.3dat p. 516.) But Lancaster only decided that the presenceof a handcuff key in the defendant’s cell was a preparafory act rather than evidence of an attempted escape for purposes of a statutory death penalty aggravating factor. The mental elementof attempted escape under section 4530 was not decided. 20 legislative intent, giving the wordsofthe statute their usual and ordinary meaning. Whenthestatutory languageis clear, we need go no further. If, however, the language supports more than one reasonableinterpretation, we look to a variety of extrinsic aids, including the objects to be achieved, the evils to be remedied,legislative history, the statutory scheme of which the statute is a part, contemporaneous administrative construction, and questions of public policy.” (People v. Ramirez (2009) 45 Cal.4th 980, 986, citations omitted.) Since nothing in section 4530 reflects thatit is governed by section 21a, we look to section 4530 itself. . Section 4530 applies to any inmate who has been convicted of a felony and been placed underthe custody ofthe state until the expiration of a prison sentence. It includes both escape and attempt to escape. It draws no distinction between the twoin terms ofthe respective elements. The punishmentprovided for escape and attempted escapeis identical. The statute distinguishes instead inmates who employ force and violence from those who donot.® The statute adds, “No additional probation report shall be required with respect to such offense.” No additional probation report is required because a conviction, whether for escape or attempted escape, requires the court to order the sentence to be served consecutive to the sentence the prisoner was serving. (See Pen. Code, §§ 1370.5, 4530, 4532). The implication from thestatutory languageis not limited to the obvious legislative indifference as to whether or not an escape succeeds. The affirmative indication is that any act beyond mere preparation speaks for itself exactly like a completed escape. In section 4530, attemptis not 8 «This lack of differentiation is the Legislature’s established practice in statutes dealing with unauthorized departures from places of confinement or detention.” (People v. Bishop, supra, 202 Cal.App.3d at p. 280.) 21 just part and parcel of the substantive crime, but the equal ofit. In this statute, whatis equal does not become unequal with the venture’s interruption orfrustration. As regards the inmate’s immediate plan at the time ofhis apprehension outside his authorized place of confinement, e.g., whether he intends to cut another inmate or to cut anotherfence,that appears to be irrelevant. This is reflected by the equality ofthe punishmentfor the undifferentiated conductviolating the statute and the absence of any need for a probation report without regard to the exact nature of the inmate’s plan. The ultimate consequencesthe inmate endeavorsto produce at the time the venture goesastray is largely beside the point. Provided the general intent has been manifested to willfully do an actthat if continued without interruption would naturally and probably result in escape, the policy of the law is to treat the conduct as punishable under section 4530 whether or not the defendant surmounts the last obstacle in his path. Put in slightly different terms, whetheror not the inmate actually managesto depart the groundsofthe facility, the state’s penal system has been assaulted once the defendant’s general intent conjoins with an act beyond mere preparation. The appropriate analogy,then, is not to specific intent crimes but to the crime ofassault. Assault was defined historically as an attempted battery. (Peoplev. Wright (2002) 100 Cal.App.4th 703, 706.) Assault, even though defined as an attempt to commit a battery, is a general intent offense. (People v. Williams (2001) 26 Cal.4th 779, 787.) Assault “does not require a specific intent to cause injury or a subjective awareness ofthe risk that an injury might occur. Rather, assault only requires an intentional act and actual knowledge ofthose facts sufficient to establish that the act by its nature will probably anddirectly result in the application of physical force against another.” (/d. at p. 790.) 22 By analogy, attempt to escape from prison occurs when (1.) an act exceeding mere preparation is performed by one (2.) with knowledgeofthe facts sufficient to establish that the unlawful and willful departure of a prisoner from the physical limits of his or her custody would directly, naturally, and probably be exceeded. Thatis true even assuming the inmate has other more immediate plans in mind than immediately leaving prison. Every perpetrator of an escape from prisonis a prisoner, and every willful action exceeding merepreparatory steps taken by a prisoner, knowing the act furthers the potential for an actual escape, whether completely successful or not, injures governmental authority to punish prisoners with confinement in general and inflicts actual harm to the security of the institution in particular. Because all prison escape attempts systemically threaten-the state’s ability to punish effectively those convicted and sentenced for crime, neither the success ofthe individual’s venture, nor the details of the individual’s “plan” at the momentofits frustration or prevention, determine the punishable quality of the willful acts that precededit, as section 4530 reflects. Gallegos rejected the analogy to general intent for assault. It did so on two grounds, neither of which survives analysis. First, the court stated, “It does not follow that the only intent required for commission of the crime of attempted escapeis the intent to attempt to commit an escape.It is not possible to attempt to escape without intending to escape.” (/d.at p. 516.) This point merely reiterates the “merry-go-round” strawman discussed above. Nobodyarguesfor “intent to attempt to commit escape,” least of all the state. Second, the court observed: “The introduction into the concept of attempt to escape of a requirementof 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 23 an act could be to pass part way through a door, window orother opening to the outside of the place of confinementbefore falling back, being pulled back or disabled. [§] In People v. Fritz [(1967)] 250 Cal.App.2d 55, 57, the court noted that the jury wasentitled to believe the defendant had ‘attempted to squeeze throughthe jail window Forthe purposeofescape.’ (Emphasis added.) [{] The Legislature has notproscribedthe doing of any single definedact as an attempt to escape. Manyacts, including some non-criminal in themselves, might be conducive toward carrying out an intention to escape, and the scope ofthe statute proscribing such an attempt should not be limited to specifically designated acts.” (/d. at pp. 516-517, parallel citation omitted.) - It is true that attempt to escape from prison can include a wide range of conduct. (See, e.g., People v. Mason (1991) 52 Cal.3d 909, 954-956 [cuts through screen in cell window but guards discoveredcuts before defendant could leave]; People v. Gallego (1990) 15 Cal.3d 115, 155, 196 [note outlining escape plan, torn bed sheets, and a shank]; People v. Boyde (1988) 46 Cal.3d 212, 248-250 [defendant solicited another inmate to help him escape from thejail roof and the plan involved the other inmate leaving a gun on the rooffor the defendant’s use in subduing a guardif necessary]; cf. People v. Lancaster, supra, 51 Cal.4th at p. 94 [possession of handcuff keys alone without any other evidence doesnotrise to the level of attempted escape].) But Gallego mistakenly assumedthat a conviction of attempt based on general intent necessarily would require an act which,if successfully completed, would directly constitute escape. That assumption confuses act with intent and does not follow. In refusing to draw a clear boundary between the offense of escape and attempted escapein section 4530 (cf. People v. Toledo, supra, 26 Cal.4th at p. 232 [acknowledging the existence of the offense of attempted criminal threat under general principles of attempt]), the Legislature took 24 note of the wide continuum of conduct involved and decidedto treat attempted escape as the equal of the substantive offense. A jury finding that a defendantin fact completed the crime of escape necessarily is a finding the defendant attempted the escape. It is not possible to escape without an escape attempt. If this Court finds attempted escape is a generalintent crime, rather than a specific intent crime, the powerof a reviewing court to modify a conviction of escape to attempted escape under section 4530 cannot be doubted. (Pen. Code, §§ 1159, 1181, subd. 6, 1260.) Defendant’s jury necessarily did find all required elements for a conviction of attempted escape undersection 4530. Il. ANY ERROR IN FAILING TO INSTRUCT ON ATTEMPTED ESCAPEIS INVITED AND HARMLESS The Court of Appeal reversed the judgmentfor insufficiency of the evidence andalso “[b]ecause thetrial court failed to instruct the jury regarding an attempt to escape from prison... .” (Typed Opn.at p. 14, fn. omitted.) The court did not address the fact that defendant’s reply brief expressly stated that defendant wasnotraising errorin the failure to instruct on attempt as a groundfor reversal. (Reply Br. at p. 11.) The decision below contains a lengthy footnote identifying the nature of the instructional error. First, the Court of Appeal quoted section 1159, which as discussed ante, allowsthe factfinder to find the defendant guilty of any offense, the commission of whichis necessarily included in the charge or of an attempt to commit the offense. (Typed opn.at p. 14, fn. 5.) The appellate court next said that the rule requiring the court to instruct sua sponte on necessarily included offenses when the evidence would support the lesser but raises a question as to the greater, “presumably extends to attempts.” It includeda citation reading, “See People v. Lopez (1998) 19 Cal.4th 282, 287 [‘A court mustinstruct sua sponte on general 25 principles of law that are closely and openly connected with the facts presentedattrial.’].” (Typed opn.at pp. 14-15, fn. 5.) Lastly, the court approvingly quoted from People v. St. Martin (1970) 1 Cal.3d 524, 533, People v. Barton (1995) 12 Cal.4th 186, 196 and People v. Sedeno (1974) 10 Cal.3d 703, 716, overruled on another ground in People v. Breverman (1998) 19 Cal.4th 142, 149, 165 and Peoplev. Flannel (1979) 25 Cal.3d 668, 684-685, fn. 12. The point of these citations was the familiar one that a party’s tactical decisions, even a defendant’s express objection based on trial strategy, does not supplantthetrial court’s sua sponte obligation to instruct on lesser included offenses when the evidence supports the instruction. (Typed opn.at p. 15, fn. 5.) As defendant observedin his reply brief below (Court of Appeal Reply Br. at p. 11), the instructionalerror identified in the court’s decision below is not grounds for reversal. Indeed, as defendant acknowledgedin his reply brief, it is barred by the invited error doctrine. (People v. Bunyard (1988) 45 Cal.3d 1189, 1234.) “The doctrine ofinvited error is designed to prevent an accused from gaining a reversal on appeal because of an error madebythetrial court at his behest. If defense counselintentionally caused _ the trial court to err, the appellant cannot be heard to complain on appeal.” (People v. Wickersham (1982) 32 Cal.3d 307, 330.) | Defense counsel expressly declined an attempt instruction. (RT 299) During the argumentsto the jury, defense counsel made an express on-the- record tactical decision to refrain from arguing to the jury his interpretation of CALJIC No. 2760, which the court had modified to eliminate the bracketed language addressing attempt to escape. Counsel made that decision in order to induce the court not to reopen the instructions and argumentto allow the jury to consider a verdict of attempted escape. Based upon defense counsel’s decision not to argue his interpretation of the existing instruction, the court refrained from allowing arguments and 26 instruction on attempt. (RT 345-351.) The recordestablishes that an express objection by defense counselto an attemptinstruction (RT 299, 345), made as a conscioustactical choice (RT 348), inducedthetrial court not to give such an instruction (RT 351). Thus, any instructional defect in this regard wasinvited error. (People v. Duncan (1991) 53 Cal.3d 955, 969-970; People v. Cooper (1991) 53 Cal.3d 771, 826-827; cf. People v. Bradford (1997) 14 Cal.4th 1005, 1057.) Regardless, the import of the appellate court’s discussion at pages 14 to 15 of its opinion is that the trial court hadto instruct on attempted escape, over defense objection, pursuantto the lesser included offense doctrine and section 1159. One pageearlier the court stated that an attempt to escape “is not a lesser-included offense of escape based upon the elements ofthe . offense impliedly foundtrue bythe jury.” (Typed opn.at p. 13, fn. omitted.) A crime cannot be both lesser included offense triggering a trial court’s obligationto instruct, but not a lesser included offense triggering a reviewing court’s power to modify a conviction. It is either one or the other. The Court of Appeal got it right the second time and wrongthefirst time: attempted escape is a lesser included offense of escape in section 4530. Assumingthat the trial court should have instructed on attempted escape over defendant’s objection and that defendant could take advantage of the error, the failure to instruct is harmless underthe applicable state law test. (See People v. Breverman, supra, 19 Cal.4th at p. 165 [concluding that the failure to instruct sua sponte on lesser included offense is an error of state law not subject to reversal “unless an examination ofthe entire record establishes a reasonable probability that the error affected the outcome’’].) The evidence overwhelmingly refutes defendant’s testimony that he was on a roundtrip to stab “Charles Queen.” (RT 261-262, 271, 274, 276, 27 281) Very strong evidence showed defendant tried to escape. (RT 64-75, 149.) The bars of his cell window had been cut through with a hacksaw and the windowpanes removed. (RT 133-134, 178-180.) Fences had been cut in four different locations. (RT 64-75, 149.) Apprehended inside a locked maintenance yard, defendant confessed that he sawed through the bars ofhis cell’s window, removed the windowpanes, climbed out of the window,scaled a wall, cut through the fences, and jumped over a razor- wire fence wearing additional pairs of pants, intending to go through the double fence where someone would pick him up. (RT 85-87, 89, 96-98.) He was wearing nonprison clothes, had blacked out the yellow letters “CDC”on the back of his jacket, and had arranged his bed to makeit appear that he wasstill in it. (RT 58-59, 62, 81, 180.) Defendant wrote letters addressed to his children in which he admitted that he searchedall night for a way out ofprison but failed. (RT 284-285.) Stealing tools, hiding blades in the cell, breaking the bars of the cell, removing the windows,leaving clothing in the bed to resemble a person, cutting through wire fencing, wearing extra pants to jump over a razor-wire fence, blacking out the moniker on prison clothing, entering a locked off “maintenance area when nobodyis there, and confessing an escapeplanall evidence an escape effort, not a plan to stab someoneandattract no attention while returning to a cell. Noreasonable probability exists that a jury instructed on attempt would have reached a result different from the jury that heard the evidence. Giventhetrial record, no rational jury wouldfail to find attempted escape under Penal Code section 4530, subdivision (b). Therefore, the trial court’s failure to instruct on attempted prison escape was harmless. (People v. Breverman, supra, 19 Cal.4th at p. 165.) 28 CONCLUSION The judgment of the Court of Appeal should be reversed with directions to modify the conviction to attempted prison escape andto remand for resentencing. Dated: March 11, 2011 SF2010401148 40486736.doc Respectfully submitted, KAMALA D. HARRIS Attorney General of California _ DANE R. GILLETTE Chief Assistant Attorney General GERALD A. ENGLER Senior Assistant Attorney General _ CATHERINEA. RIVLIN Supervising Deputy Attorney General SARA TURNER Deputy Attorney General Attorneysfor Respondent 29 CERTIFICATE OF COMPLIANCE I certify that the attached OPENING BRIEF ON THE MERITSuses a | 13 point Times New Romanfont and contains 8,279 words. Dated: March 11, 2011 KAMALA D. HARRIS Attorney General of California dow SARA TURNER Deputy Attorney General Attorneysfor Respondent DECLARATION OF SERVICEBY U.S. MAIL Case Name: People v. Robin Bailey No.: §187020; H034382 I declare: I am employedin the Office of the Attorney General, which is the office of a memberofthe California State Bar, at which member's direction this service is made. I am 18 years of age or older and not a party to thismatter. | am familiar with the businesspractice at the Office of the Attorney Generalfor collection and processing of correspondencefor mailing with the United States Postal Service. In accordancewith that practice, correspondenceplaced in the internal mail collection system at the Office of the Attorney Generalis deposited with the United States Postal Service that same day in the ordinary course of business. On October 5, 2010, I served the attached OPENING BRIEF ON THE MERITSbyplacing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid, in the internal mail collection system at the Office of the Attorney General at 455 Golden Gate Avenue, Suite 11000, San Francisco, CA 94102-7004, addressed as follows: Jonathan E. Berger The Honorable Dean D. Flippo Attorney at Law District Attorney 1415 Fulton Road #205-170 Monterey County District Attorney's Office Santa Rosa, CA 95403 P O. Box 1131 (2 copies) _ Salinas, CA 93902 Sixth District Appellate Program Monterey County Superior Court 100 North Winchester Blvd., Suite 310 Salinas Division Santa Clara, CA 95050 240 ChurchStreet, Suite 318 Salinas, CA 93901 California Court of Appeal Sixth Appellate District 333 West Santa Clara Street, Suite 1060 San Jose, CA 95113 I declare under penalty of perjury under the lawsof the State of California the foregoing is true and correct andthat this declaration was executed on October 5, 2010, at San Francisco, California. Nelly Guerrero - -Z7 4 Ltthen— Declarant é Signature SF2009404705 20350135.doc