People v. Bailey

Opinion

CHIN, J.

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…