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California Supreme Court: Cutting Through Fences May Not Constitute Attempt to Escape

In a July 2012 unpublished decision, the California Supreme Court upheld a published opinion of the Court of Appeal dismissing the “three strikes” conviction of a prisoner, Robin Bailey, who was charged with escaping from the Correctional Training Facility in Soledad in 2008.

Both courts found the trial evidence insufficient as a matter of law to support a conviction for escape from a state prison, where the record established merely that Bailey, while cutting through four fences, had managed only to “saw his way further into the facility” but did not breach a wall or perimeter fence.

The question reviewed by the Supreme Court was whether, under the circumstances presented, an appellate court could reduce Bailey’s conviction from one of escape to attempted escape. The Supreme Court agreed with the appellate court that it could not do so because, counter-intuitively, attempt to escape is not a lesser included offense of escape; the former contains a specific intent element not present in the latter, as the Court discussed at length.

The appellate court had 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.” Thus, since there was insufficient evidence that Bailey had “escaped” based on the legal definition of that term, his conviction and 25-years-to-life three strikes sentence were reversed. See: People v. Bailey, 187 Cal. App. 4th 1142 (Cal. App. 6th Dist. 2010).

On review, the Supreme Court convincingly illustrated the need for a specific intent finding for a charge of attempted escape by considering the example of a prisoner – like Bailey – who stole a pair of wire cutters from a prison shop. Whether that act constituted an escape attempt would obviously depend, the Supreme Court noted, on what the prisoner intended to do with the cutters. Intending to use them to cut through the prison’s outer perimeter fence could support a conviction for attempt to escape, while planning to use them, for example, as a weapon would not.

The jury in Bailey’s trial was instructed only on the elements of escape, which has no specific intent requirement. As the jury therefore made no finding of specific intent (and because the record relative to that issue was susceptible to differing interpretations), the Supreme Court held the Court of Appeal was correct when it determined that it could not modify Bailey’s escape conviction to attempted escape, and thus reversed his conviction. See: People v. Bailey, 54 Cal. 4th 740, 279 P.3d 1120 (Cal. 2012).

Additional source: Monterey Herald

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Related legal case

People v. Bailey