P. v. Bailey 9/17/10 CA6

State: California

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

Docket No: H034382M

Case Date: 12/02/2010

Preview:Filed 9/17/10

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) ORDER

THE COURT: The above captioned opinion, which was filed on August 26, 2010, is hereby modified as follows: Insert the following footnote on page 14, second line, after "(1961) 55 Cal.2d 252, 260-261": This court expresses no opinion regarding the application of People v. Rojas, supra, 55 Cal.2d 252 in circumstances different from those present here. Rojas has been cited for the proposition that "[w]here a defendant has the requisite criminal intent but 'elements of the substantive crime [are] lacking' due to 'circumstances unknown' to him, he can only be convicted of attempt-and not the substantive crime itself. (People v. Rojas (1961) 55 Cal.2d 252, 257-258 . . . [because the property was not actually stolen, defendants were guilty of attempted receipt of stolen property]; see also People v. Camodeca (1959) 52 Cal.2d 142, 147 . . . [because the victim was not deceived by and did not rely on the false representations, defendant was guilty of attempted grand theft by false pretenses].)" (People v. Rizo (2000) 22 Cal.4th 681, 685.) This case does not fit the Rojas scenario. Moreover, in this case, there was conflicting evidence whether 1

defendant had specific intent to escape and the prosecution made a deliberate decision to not prosecute defendant for attempted escape. There is no change in the judgment. The petition for rehearing is denied.

______________________________ ELIA, J.

_____________________________ PREMO, Acting P. J.

_____________________________ McADAMS, J.

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