Bailey

[EDITORS' NOTE: THIS OPINION IS DEPUBLISHED UPON GRANTING OF PETITION FOR REVIEW. THE OPINION APPEARS BELOW WITH A GRAY BACKGROUND.] [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 1144 OPINION 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 4530, 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…