P. v. Bailey 8/26/10 CA6

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: H034382

Case Date: 12/02/2010

Preview:Filed 8/26/10

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent, v. ROBIN BAILEY, Defendant and Appellant.

H034382 (Monterey County Super. Ct. No. SS082741A)

Defendant Robin Bailey was initially charged in a single count with escape and attempt to escape from the Correctional Training Facility (CTF) in violation of Penal Code section 4530, subdivision (b).1 An escape or an attempt to escape from prison constitutes a crime under section 4350, subdivision (b); both are subject to the same punishment. Apparently, with the court's approval, the parties agreed that the case would be tried solely as an escape. A jury found defendant guilty of escape. It also found true that defendant had five prior felony convictions within the meaning of section 1170.12, subdivision (c)(2). The court sentenced defendant to 25 years to life. On appeal from the judgment, defendant challenges the sufficiency of the evidence to show the crime of escape. He maintains that this court cannot modify the conviction to an attempt to escape because the jury was not instructed on attempt. Defendant also

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All further statutory references are to the Penal Code. 1

argues that the trial court erred by "threatening" to give an attempt instruction and the trial court improperly limited defense counsel's closing argument in violation of his Sixth Amendment right to counsel when counsel began to intimate that escape from prison required the defendant to have left the prison facility. Lastly, defendant asks this court to correct the minutes and abstract of judgment to correctly reflect the $200 restitution fine imposed by the trial court. We conclude that the evidence is insufficient to show a violation of section 4530 by escape from prison and reverse the conviction. A. Evidence The parties stipulated that, on June 18, 2008, defendant was a prisoner who had been convicted of a felony. The evidence properly viewed (see People v. Story (2009) 45 Cal.4th 1282, 1296; see Jackson v. Virginia (1979) 443 U.S. 307, 319 [99 S.Ct. 2781]) also showed the following. Defendant Bailey was an inmate in CTF's Central Facility in Soledad. He was housed in a G Wing cell. A few minutes before 7:30 a.m. on June 18, 2008, Correctional Officer David Doglietto and Correctional Officer Joseph Netro were dispatched to CTF's Central maintenance area in response to a report of a break-in at the carpentry shop there. Tools were reported missing. Officer Doglietto discovered a cut in the fence between the maintenance area and an area containing Connexes. When Officer Netro went over to inspect the fence, a staff electrician pointed out an inmate beyond the fence in an area accessible through a locked pedestrian gate. At about 7:55 a.m. on June 18, 2008, Abel Munoz, a correctional officer at CTF assigned as an O Wing roof gunner, was stationed on top of the O Wing roof, an interior location. His job was to keep security of the five Administrative Segregation yards 2

where inmates were housed and to prevent fights and escapes. From his position on the O Wing roof, Officer Munoz saw defendant Bailey, an inmate, hiding behind a Connex, a big storage unit. Defendant was looking around the side of the Connex, "darting his head back and forth." Inmates are not ordinarily in that area without an officer or supervisor. Officer Munoz asked defendant what he was doing and defendant replied that he was waiting for his supervisor. Defendant could not name his supervisor but told Munoz that his supervisor was over by the silver truck. This response seemed suspicious to Munoz who could not see anyone standing by the truck and knew that Correctional Officer Stephens, who drove that truck, had "already entered underneath Central." After the officer told defendant to stay put, defendant went behind the Connex. Officer Munoz telephoned Officer Stephens and alerted him to the unsupervised inmate. Officer Stephens was in Central tunnel, which is located underneath the Central Facility. Officer Stephens was the inmate day labor officer and was supervising a 15 member construction work crew. Officer Stephens went out to the Connexes by the O Wing yard and made contact with defendant Bailey. Defendant said that his boss had allowed him into the area. This explanation did not make sense to Officer Stephens because the area was fenced and keys were required to get in. Officer Doglietto and Officer Netro joined Officer Stephens. Officer Netro handcuffed defendant. Defendant was wearing a CDC jacket on which the standard bright yellow lettering "CDC Prisoner" had been blacked out. Ismyanto Soekardi, the correctional sergeant, arrived at the maintenance area where Officer Netro had custody of defendant. The closest perimeter fence, which if scaled by an inmate would put him "out on the streets," was about 500 yards away. To arrive at the location where he was apprehended, defendant had hacksawed through the bars of his cell in the Central Facility G Wing, removed the windows, and cut 3

through a metal screen. Defendant had breached four fences, including the G Wing perimeter security fence, the Central chapel yard gate, a rooftop fence on the Central Facility textile building, and the fence separating the Central maintenance area, where the carpenter shop was located, from the Connexes. He had made his way to the east end of the Central Facility. Defendant had actually gone deeper into the interior of the institution after breaking out of his cell. At trial, defendant admitted taking the reconstructed route shown in the DVD played for the jury. It showed the fence breaches and a path along the roof corridor. Defendant also said that he had leaped over a razor wire wearing three pairs of pants. He admitted that he had left the area in which he was confined. Later that same day, a hacksaw blade was discovered on top of a Connex. Two tools were located underneath the Connex. Wire strippers were found near the breach in the maintenance area fence. When officers examined defendant's cell, they found a lump of clothing in the upper bunk covered by blankets. A more thorough search of defendant's cell on June 19, 2008 uncovered hidden hacksaw blades. Sergeant Soekardi explained that between the Central Facility and the North Facility there are three inner towers, Towers Five, Six, and Seven, which were "manned 24/7." However, the roof is not staffed "24/7." The sergeant stated that no officers were stationed in the area of the maintenance yard fences "at [the] time of his attempt." Sergeant Soekardi spoke with defendant after he had been apprehended. Defendant admitted to having a plan to escape. He said that his plan had been to cut through a fence behind G Wing and "make his way towards North Facility," cut through a double fence, and meet someone who was supposed to be waiting there to pick him up. He explained that he was unable to execute this plan because it took him "so long to cut out of the G Wing fence" and because cutting the G Wing fence was "so loud." Defendant wrote letters to his daughter and son indicating he had tried to escape. At trial, 4

however, defendant claimed that he had no intent to escape but rather he had merely planned to reach the maintenance area, where he intended to assault another inmate against whom he held a grudge, and then return to his cell. B. Procedural History As stated, the information originally charged attempt to escape and escape from CTF in violation of section 4530, subdivision (b). The People's trial brief stated that "[o]n June 18, 2008, defendant a prisoner at the Correctional Training Facility, Soledad, in Monterey County, attempted to escape." The defendant's trial brief stated that he had been charged in count one with escape and attempt to escape. During pretrial proceedings, the prosecutor told the court: "Although [the defendant] didn't make it outside the outer perimeter, I feel legally it qualifies as an escape since he sawed though the bars of his cell and made several holes in several fences and was where he was not authorized to be." Before closing argument, the court gave instructions to the jury, including an instruction regarding escape: "The defendant is charged with escape, in violation of Penal Code section 4530 (b). To prove that the defendant is guilty of this crime, the People must prove that, one, the defendant was a prisoner who had been convicted of a felony; two, the defendant was confined in prison; three, and the defendant escaped from the prison. [

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