Opinion
Page 327b
188 Cal.App.4th 327b __ Cal.Rptr.3d __ THE PEOPLE, Plaintiff and Respondent, v. ROBIN BAILEY, Defendant and Appellant. H034382 California Court of Appeal, Sixth District September 17, 2010Monterey County Super. Ct. No. SS082741A.
THE COURT:
The above captioned opinion, which was filed on August 26, 2010 (187 Cal.App.4th 1142; ___Cal.Rptr.3d ___), is hereby modified as follows and the petition for rehearing is DENIED: Insert the following footnote on page 14, second line [187 Cal.App.4th 1154, advance report, line 1], after "(1961) 55 Cal.2d 252, 260-261 [10 Cal.Rptr. 465, 358 P.2d 921]": 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[, supra,] 55 Cal.2d [at pp.] 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 [338 P.2d 903] [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 [94 Cal.Rptr.2d 375, 996 P.2d 27].) This case does not fit the Rojas scenario. Moreover, in this case, there was conflicting evidence whether 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.