Bailey

We granted review to determine whether, after finding insufficient evidence to support a conviction for escape from state prison, an appellate court may reduce the conviction to attempt to escape, notwithstanding the trial court’s failure to instruct the jury on attempt. In this case, the Court of Appeal refused to modify the conviction to attempt to escape on the ground that attempt to escape is not a lesser included offense of escape and the trial court did not instruct the jury on attempt to escape. Because attempt to escape is not a lesser included offense of escape—attempt to escape contains a specific intent element not present in escape—we affirm the judgment of the Court of Appeal.

I. FACTS AND PROCEDURAL HISTORY

On June 18, 2008, defendant Robin Bailey was a felon and a prisoner at the Correctional Training Facility in Soledad. He was assigned to a cell in the G Wing of the Central Facility. Shortly before 7:30 a.m., correctional officers discovered the facility’s maintenance area had been broken into and tools were missing. An officer noticed a cut in the fence between the maintenance area and an area containing Conex storage boxes. When the officer went to…