LIGONS

Officer Gomez noticed that defendant had not returned a plastic spoon. The officers were required to collect all utensils because they could be used as weapons. Officer Gomez looked through the window in the door to defendant's cell and saw the spoon. Officer Olivarez asked defendant to return the spoon. Defendant did not respond, but instead kept raising the door flap and saying that the officers were beating her. When the officers again asked defendant to return the spoon, defendant refused, saying that she wanted to get out and go home. Defendant screamed, "I need to go home. I want to get out. I want to use the phone. I want to go home." Officer Gomez told defendant that she would get to use the telephone and go home, but not at that moment.

Officer Olivarez asked defendant to step to the far end of her cell. Defendant complied. The officers opened the cell door slowly. Officer Gomez continued to talk to defendant, telling her to calm down, that she would go home, but not at that moment, and that she would be allowed to use the telephone. Office Gomez entered the cell first, and Officer Olivarez followed. Officer Olivarez retrieved the spoon and the officers began to back out…

I respectfully dissent from the portion of the majority opinion reversing defendant's conviction in count 2 for attempted escape. This case was tried on only one theory — that defendant attempted to escape from the jail facility. The case was not tried to the jury on the theory that defendant merely attempted to escape from her cell to use a telephone that was within the jail facility. The trial court never instructed the jury that it could convict defendant for attempting to escape from her jail cell. I simply do not agree that an equivocal portion of the jury instruction on attempted escape, which had nothing to do with the way this case was tried, resulted in any prejudice to defendant. *Page 822 There is no reason to address whether In re Culver (1968) 69 Cal.2d 898 [ 73 Cal.Rptr. 393 , 447 P.2d 633 ] 1 has any application to the factual situation before this court. Assuming defendant and the majority are correct that Penal Code section 4532 , subdivision (b)(2), does not apply to a prisoner who merely intends to escape from the control of a custodial officer to go to some other part of a jail or other institution of confinement, and that the instruction on attempted escape…

In the published portion of this opinion, we hold that the trial court prejudicially erred in instructing the jury, in effect, that defendant could be convicted of attempted escape by force or violence under Penal Code section 4532 [1] if it found that she attempted to escape from an officer's custody within the confines of the jail. Section 4532 does not apply to breaking away from the custody of an officer within the custodial facility. We therefore reverse the conviction on that count. In the unpublished portion of this opinion we reverse the conviction on another count on the basis of instructional error, and otherwise affirm the judgment.

Defendant and appellant Carmella Ligons (defendant) had been arrested for violating section 69 by resisting eviction from her residence following a foreclosure. On March 30, 2007, Long Beach Police Department Detention Officer Judy Gomez and her partner, Officer Teresa Olivarez, were working in the Long Beach Police Department's women's jail. Defendant was housed by herself in a cell. About 5:30 p.m., Officer Olivarez went to defendant's cell to collect defendant's dinner tray, plate, and utensils. Defendant's cell door had a…