People v. Fontenot

IN THE SUPREME COURT OF
CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
JOHN REYNOLD FONTENOT,
Defendant and Appellant.
S247044
Second Appellate District, Division Seven
B271368
Los Angeles County Superior Court
NA093411
August 26, 2019
Justice Cuéllar authored the opinion of the Court, in which
Chief Justice Cantil-Sakauye and Justices Chin and Corrigan
concurred.
Justice Kruger filed a concurring opinion.
Justice Liu filed a concurring and dissenting opinion, in which
Justice Groban concurred.
PEOPLE v. FONTENOT
S247044
Opinion of the Court by Cuéllar, J.
Defendant John Reynold Fontenot was charged with
completed kidnapping, but he was convicted of attempted
kidnapping. The Court of Appeal affirmed, citing our decision
in People v. Martinez (1999) 20 Cal.4th 225 (Martinez), which
treated attempted kidnapping as a lesser included offense of
completed kidnapping. Fontenot asks us to overrule Martinez
and to hold that, despite a statutory provision authorizing
conviction for attempted crimes even when only completed
crimes are charged, he could not constitutionally be convicted of
attempted kidnapping because that offense includes an element
that completed kidnapping lacks. Accepting the former
invitation but rejecting the latter, we affirm.
I.
One fall evening in 2012, a youth named Destiny was
babysitting a young child named Madeline. Madeline and two
other girls were playing with dolls in the lobby of an apartment
building, with Destiny looking on. Fontenot entered the lobby
and approached the children. When Fontenot got close enough,
he grabbed Madeline by the arm and started pulling her towards
the door. Destiny intervened. She latched onto Madeline’s other
arm, struggling to wrest the child from Fontenot’s grasp. As
Destiny kicked Fontenot, the other two girls hit him with their
dolls –– so he let go. Destiny swept up Madeline in her arms
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Opinion of the Court by Cuéllar, J.
and told the other girls to run. Fontenot fled, only to return a
few hours later. He was promptly arrested.
About three months later, the People charged Fontenot
with kidnapping in violation of Penal Code section 207,
subdivision (a).1 Tracking the statutory definition of the
completed offense, the first amended information alleged that,
“[o]n or about September 15, 2012,” Fontenot “did unlawfully,
forcibly and by instilling fear steal, take, hold, detain and arrest
MADELINE C. in LOS ANGELES County, California and did
take the said MADELINE C. into another country, state, county
and another part of LOS ANGELES County.” (See § 207, subd.
(a).) The document also alleged that the victim was under the
age of 14. (See § 208, subd. (b).) Fontenot pleaded not guilty
and waived his right to a jury trial.
At Fontenot’s subsequent bench trial in March 2016, the
People argued in closing argument that he was guilty of
completed kidnapping. Fontenot’s attorney acknowledged
during her closing argument that, if not “for the intervening of
Destiny and the other two little girls hitting [Fontenot] and him
getting kicked, there might have been a completed crime” — but
countered that those facts showed only a “classic attempt.”
Because there was “no substantial movement” of the victim, the
evidence — though “sufficient to show an attempt” — was
insufficient to prove the completed crime. The trial court agreed
with Fontenot’s attorney. Sitting as the trier of fact, it found
“there was definitely a crime,” though only “an attempt,” not
“a completed kidnapping.” Noting that attempted kidnapping,
unlike completed kidnapping, is “a specific intent crime,” the
1
All subsequent statutory references are to the Penal Code
unless otherwise noted.
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PEOPLE v. FONTENOT
Opinion of the Court by Cuéllar, J.
trial court expressly found Fontenot had formed the requisite
specific intent. The trial court therefore found him “not guilty
of the kidnapping but guilty of the attempt[ed] kidnapping.”
Fontenot’s attorney responded, “Thank you.”
The next day, Fontenot’s attorney filed a letter brief
challenging the verdict. She pointed out that the People neither
charged Fontenot with, nor urged a conviction for, attempted
kidnapping. Fontenot’s attorney also argued that, because
attempted kidnapping is “not a lesser included offense” of
completed kidnapping, the trial court lacked any power to
convict him of attempted kidnapping. Yet she acknowledged
that “the facts might support such a conviction.” The trial court
rejected the challenge to its verdict. Under the “Three Strikes”
law, a conviction for attempted kidnapping –– like a conviction
for completed kidnapping –– exposed Fontenot to a life sentence.
(See § 667, subd. (e)(2)(A).) But the trial court nonetheless
agreed with the People that, at trial, Fontenot’s attorney
effectively invited a conviction for attempted kidnapping,
instead of merely arguing that the evidence was insufficient to
prove completed kidnapping. Fontenot ultimately received a
Three Strikes sentence.
Fontenot appealed. In its unpublished decision, the Court
of Appeal treated as controlling our conclusion in Martinez that
“attempted kidnapping is a lesser included offense of
kidnapping.” So despite acknowledging that our subsequent
decision in People v. Bailey (2012) 54 Cal.4th 740 (Bailey)
“appears to undermine” Martinez by holding that attempted
escape is not a lesser included offense of escape, the Court of
Appeal affirmed. In view of “the apparent confusion in the
intermediate appellate courts following Bailey,” however, the
Court of Appeal asked us to “provide further guidance with
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Opinion of the Court by Cuéllar, J.
regard to the issues surrounding attempted kidnapping.”
Taking the request from our appellate court colleagues to heart,
we granted review.
II.
Fontenot was charged with completed kidnapping under
section 207, subdivision (a). That provision establishes that
“[e]very person who forcibly, or by any other means of instilling
fear, steals or takes, or holds, detains, or arrests any person in
this state, and carries the person into another country, state, or
county, or into another part of the same county, is guilty of
kidnapping.” (§ 207, subd. (a).) What Fontenot was convicted of
is an attempt to commit kidnapping within the meaning of
section 207, subdivision (a). But by itself, this discrepancy
between charge and conviction does not warrant reversal. Nor
do any other arguments Fontenot has properly presented in our
court.
A.
Under California law, a defendant may be convicted of an
attempt even if the People charged only the completed crime.
The relevant statute is Penal Code section 1159, and what it
provides is this: “The jury, or the judge if a jury trial is waived,
may find the defendant guilty of any offense, the commission of
which is necessarily included in that with which he is
charged, or of an attempt to commit the offense.” (Italics added.)
Citing section 1159, we upheld in People v. Oates (1904) 142
Cal. 12 (Oates) a conviction where the jury was instructed on,
and found the defendant guilty of, an attempt to commit the
completed offense charged in the information. (Id. at pp. 13-14
[describing as “erroneous” the “assumption that [a] defendant
[may] not be convicted of an attempt to commit the crime
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PEOPLE v. FONTENOT
Opinion of the Court by Cuéllar, J.
charged”].) We approved such a procedure both before and after
deciding Oates. (See People v. Defoor (1893) 100 Cal. 150, 154
[before]; People v. Vanderbilt (1926) 199 Cal. 461, 464 [after].)
California is not alone. Many jurisdictions have a similar
statute or rule allowing criminal defendants to be convicted of
an attempt when they are charged only with the completed
offense. In the federal system, for example, Federal Rules of
Criminal Procedure, rule 31(c) provides (in relevant part) that a
“defendant may be found guilty” of not just “an offense
necessarily included in the offense charged,” but also “an
attempt to commit the offense charged.” (Fed. Rules Crim.Proc.,
rule 31(c)(1)-(2); see also United States v. Resendiz-Ponce (2007)
549 U.S. 102, 111, fn. 7 (Resendiz-Ponce) [noting that
“a defendant indicted only for a completed offense can be
convicted of attempt under Rule 31(c)”]; U.S. v. Castro-Trevino
(5th Cir. 2006) 464 F.3d 536, 542; U.S. v. Pino (4th Cir. 1979)
608 F.2d 1001, 1003; U.S. v. Marin (2d Cir. 1975) 513 F.2d 974,
976; Simpson v. U.S. (9th Cir. 1952) 195 F.2d 721, 723.) Similar
provisions are on the books in at least three dozen states, along
with the District of Columbia and the United States Virgin
Islands as well.2 (See, e.g., Ga. Code § 16-4-3 [“A person charged
with commission of a crime may be convicted of the offense of
criminal attempt as to that crime without being specifically
charged with the criminal attempt in the accusation,
indictment, or presentment.”]; Okla. Stat. tit. 22, § 916 [“The
2
Some jurisdictions, like California, have a general statute
proscribing any attempt to commit a codified completed offense.
(See § 664.) But federal law, for example, has no such general
attempt statute and thus punishes only attempts that are
themselves specifically enumerated in the criminal code. (See
U.S. v. Castro-Trevino, supra, 464 F.3d at pp. 541-542.)
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PEOPLE v. FONTENOT
Opinion of the Court by Cuéllar, J.
jury may find the defendant guilty of any offense, the
commission of which is necessarily included in that with which
he is charged, or of an attempt to commit the offense.” (Italics
added)]; Ky. Rev. Stat. Ann. § 505.020(2)(a-b) [“A defendant may
be convicted of an offense that is included in any offense with
which he is formally charged. An offense is so included when:
(a) It is established by proof of the same or less than all the facts
required to establish the commission of the offense charged; or
(b) It consists of an attempt to commit the offense charged . . . .”
(italics added)].)3
Courts across the country have held that such provisions
raise no federal constitutional problem. Several state high
courts have addressed whether their relevant statute or rule
gives defendants charged with a completed offense sufficient
3
(See also Alaska Rules Crim. Proc., rule 31(c); Ala. Code
§ 13A-1-9(a)(2); Ariz. Rules Crim. Proc., rule 21.4(a)(2); Ark.
Code Ann. § 16-89-126; Colo. Rev. Stat. § 18-1-408(5)(b); Conn.
Gen. Stat. § 54-60; D.C. Rules Crim. Proc. rule 31(c)(2); Fla.
Rules Crim. Proc., rule 3.510(a); Idaho Code Ann. § 19-2312;
Ind. Code § 35-31.5-2-168(2); Iowa Rules Crim. Proc., rule
2.22(3); Kan. Stat. § 21-5109(b)(3); Me. Rev. Stat. Ann. tit. 17-A,
§ 152(3-A); Mich. Comp. Laws § 768.32(1); Minn. Stat.
§ 609.04(1)-(2); Miss. Code Ann. § 99-19-5(1); Mo. Rev. Stat.
§ 556.046(3); Mont. Code Ann. § 46-16-607(1); N.M. Rules Crim.
Proc., rule 5-611(D); Neb. Rev. Stat. § 29-2025; Nev. Rev. Stat.
§ 175.501; N.C. Gen. Stat. § 15-170; N.J. Stat. Ann. § 2C:1-
8(d)(2); Ohio Rev. Code Ann. § 2945.74; Or. Rev. Stat. § 136.465;
R.I. Gen. Laws § 12-17-14; S.D. Codified Laws § 23A-26-8; Tenn.
Rules Crim. Proc., rule 31(d)(1)(B); Tex. Code Crim. Proc. Ann.
art. 37.09(4); V.I. Rules Crim. Proc. rule 31(c)(2); Vt. Stat. Ann.
tit. 13, § 10; Utah Code Ann. § 76-1-402(3)(b); Va. Rules Crim.
Proc., rule 3A:17(c); Wash. Rev. Code § 10.61.003; W. Va. Code
§ 62-3-18; Wis. Stat. § 939.66(4); Wyo. Rules Crim. Proc., rule
31(c).)
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PEOPLE v. FONTENOT
Opinion of the Court by Cuéllar, J.
notice that they may instead face conviction for an attempt. And
all those courts have concluded the answer is yes. (See, e.g.,
State v. Young (Vt. 1981) 433 A.2d 254, 258 [holding that such a
provision prevented “unfair surprise”]; Patton v. State
(Miss. 2012) 109 So.3d 66, 81 [similar]; see also Com. v. Sims
(Pa. 2007) 919 A.2d 931, 941-942 [relying in part on Model Pen.
Code, § 1.07, subd. (4)(b) to hold that a defendant convicted of,
but not charged with, an attempt to commit the charged offense
suffered no constitutional violation — even without a state
statute on point]; State v. LeFurge (N.J. 1986) 502 A.2d 35, 41 &
fn. 8 (LeFurge) [holding that a state statute allowing convictions
for conspiracy to commit a charged offense gave the defendant
“adequate notice”].) So has the only federal appellate court to
confront an analogous constitutional challenge related to
Federal Rules of Criminal Procedure, rule 31(c). (See United
States v. Brozyna (2d Cir. 1978) 571 F.2d 742, 746 (Brozyna).)
“The courts,” in other words, “are in general agreement that an
attempt conviction may be had on a charge of the completed
crime.” (2 LaFave, Substantive Criminal Law (3d ed. 2018)
§ 11.5(c) (LaFave).) Indeed, to our knowledge no federal
appellate court has concluded the federal Constitution dictates
that an attempt conviction is necessarily invalid if the defendant
was charged only with the completed offense. Neither has any
state high court.
True: courts have offered a range of explanations for why
a defendant may be convicted of an attempt despite being
charged only with the completed crime. Some have cited case
law in their jurisdictions to argue that an attempt is invariably
a lesser included offense of the completed crime. (See, e.g., State
v. Young, supra, 433 A.2d at pp. 542-543.) Others have looked
instead to the notice provided by the terms of their relevant
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PEOPLE v. FONTENOT
Opinion of the Court by Cuéllar, J.
state statute or rule. (See, e.g., Patton v. State, supra, 109 So.3d
at p. 81, citing Eakes v. State (Miss. 1995) 665 So.2d 852, 860;
State v. March (Conn.App. 1995) 664 A.2d 1157, 1161.) Despite
such distinctions, not one state high court or federal appellate
court has reversed an attempt conviction simply because the
defendant was charged only with the completed crime.
We decline Fontenot’s invitation to be the first. The Sixth
Amendment to the United States Constitution accords criminal
defendants the right “to be informed of the nature and cause of
the accusation” against them. (U.S. Const., 6th Amend.; see
People v. Seaton (2001) 26 Cal.4th 598, 640 (Seaton).) Federal
due process principles likewise “ ‘require[] that an accused be
advised of the charges against him so that he has a reasonable
opportunity to prepare and present his defense and not be taken
by surprise by evidence offered at his trial.’ ” (Seaton, at
pp. 640-641, quoting People v. Jones (1990) 51 Cal.3d 294, 317.)4
But as we see it, the whole point of section 1159 — and
provisions like it — is to serve these constitutional commands.
Section 1159 informs criminal defendants charged with a
completed crime that they must prepare to defend against not
just that crime and “necessarily included” offenses, but also
against “an attempt to commit” the completed crime. By
establishing that background rule for all such charges, the
statute is meant to provide notice across the board.
(See Brozyna, supra, 571 F.2d at p. 746 [noting that Fed. Rules
Crim. Proc., rule 31(c) made clear the defendant needed “to
4
The California Constitution has a similar requirement.
(Seaton, supra, 26 Cal.4th at pp. 640-641.) But Fontenot
grounds his claim solely in the federal Constitution, so we focus
our analysis there.
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PEOPLE v. FONTENOT
Opinion of the Court by Cuéllar, J.
prepare to defend not only against that charge but also against
whatever necessarily included offenses and attempts she could
have been convicted of under” the rule (italics added)]; LeFurge,
supra, 502 A.2d at p. 41 [describing similar provision as
providing “express notice to defendant[s]”]; State v. March,
supra, 664 A.2d at p. 1161 [similar].)
What’s more, any attempt bears an extremely close
relationship to the completed crime. Attempts, after all, are
defined as incomplete efforts to commit a completed crime. (See,
e.g., § 21a [“An attempt to commit a crime consists of two
elements: a specific intent to commit the crime, and a direct but
ineffectual act done toward its commission.”].) This tight nexus
might explain why provisions like section 1159 are so common
across the United States. So beyond what section 1159 reveals
as a statutory signpost here, prohibitions on criminal attempts
are premised on — and in some sense convey — an intuitive
idea: someone whose actions and intentions fall just short of
constituting a completed crime shouldn’t necessarily get off
scot-free. With that double-barreled forewarning in place, we
conclude that a charging document enumerating the elements
of a completed crime and specifying the time and place of the
crime’s alleged commission gives defendants — at least in most
cases — constitutionally sufficient notice that they may be
convicted of an attempt to commit the crime charged. (Resendiz-
Ponce, supra, 549 U.S. at p. 108.)
B.
What section 1159 does not purport to do — and what it
constitutionally could not do — is let the People earn a criminal
conviction without proving every element of the offense beyond
a reasonable doubt. (See People v. Flood (1998) 18 Cal.4th 470,
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PEOPLE v. FONTENOT
Opinion of the Court by Cuéllar, J.
523, citing Sullivan v. Louisiana (1993) 508 U.S. 275, 277-278.)
Nothing of the sort happened here. To be sure, an attempt to
commit kidnapping under section 207, subdivision (a) has an
intent element that the completed crime lacks. But in this case
the trial court, sitting as the trier of fact, recognized as much
and made an express finding on that additional element.
1.
The People concede that attempted kidnapping is not a
lesser included offense of completed kidnapping, given the
context of section 207, subdivision (a) and our decision in Bailey
We agree.5
To determine whether one offense is a lesser included
offense of another, we have at times looked to the accusatory
pleading in the case before us, as well as to the statutory
elements of the two offenses at issue. (People v. Robinson (2016)
63 Cal.4th 200, 207.) But because the first amended information
charging Fontenot with completed kidnapping merely
“incorporate[d] the statutory definition of the charged offense
without referring to the particular facts” in detail, we “must rely
5
In Justice Kruger’s view, “there is no real reason for us to
decide the issue here, overruling precedent in the process.”
(Conc. opn. of Kruger, J., post, at p. 2.) But whether attempted
kidnapping is a lesser included offense of kidnapping is precisely
the issue on which we granted review and an issue on which
even the Court of Appeal asked us to provide guidance. That we
also hold that section 1159 provides constitutionally sufficient
notice does not detract from the need for guidance on this issue.
(See Bank of Italy Nat. etc. Assn. v. Bentley (1933) 217 Cal. 644,
650 [“It is well settled that where two independent reasons are
given for a decision, neither one is to be considered mere dictum
. . . . The ruling on both grounds is the judgment of the court
and each is of equal validity.”]
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PEOPLE v. FONTENOT
Opinion of the Court by Cuéllar, J.
on the statutory elements” alone. (Ibid.) So here we need only
apply the so-called “elements test.” (Ibid.) What that test
requires is determining whether a given crime’s elements
together constitute a mere subset of another crime’s elements.
(Ibid.) If the answer is yes, the greater offense “ ‘ “ ‘cannot be
committed without also necessarily committing [the] lesser
offense.’ ” ’ ” (Ibid., quoting Bailey, supra, 54 Cal.4th at p. 748.)
Which means that, so long as some additional evidence is
required to support a conviction for the former, the latter is a
lesser included offense. (Robinson, at p. 207.)
Our decision in Bailey likewise hinged solely on a
comparison of the statutory elements of the two offenses at issue
in that case. (Bailey, supra, 54 Cal.4th at pp. 751-752.) There,
we held that attempted escape is not a lesser included offense of
completed escape. (Id. at p. 749.) To commit completed escape,
we explained, the mental state required is only what we and
other courts have often called “general criminal intent”: if “the
defendant intentionally d[id] the act which constitutes the
crime,” the government need not prove his precise purpose for
doing it. (Ibid.) By contrast, “attempt to escape requires a
specific intent to escape” — that is, a conscious design or purpose
to avoid confinement. (Ibid.; see also People v. Pool (1865) 27
Cal. 572, 585 (opn. on denial of rehearing) [defining “specific
intent” as a “design or purpose” of achieving a
particular — usually harmful — end]; People v. Davis (1995) 10
Cal.4th 463, 518-519, fn. 15 [observing that a “crime is
characterized as a ‘general intent’ crime when the required
mental state entails only an intent to do the act that causes the
harm,” but it “is characterized as a ‘specific intent’ crime when
the required mental state entails an intent to cause the
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Opinion of the Court by Cuéllar, J.
resulting harm”].) The latter offense therefore calls for a more
searching inquiry into the defendant’s mental state.
We ourselves have lamented that the distinction between
specific and general intent is “notoriously difficult to define and
apply” — but the distinction between intent of a more specific or
more general nature nevertheless can be meaningful. (People v.
Hood (1969) 1 Cal.3d 444, 456 (Hood).) Case in point: evidence
that the defendant in Bailey “was voluntarily intoxicated or
intended to return [to prison]” would bear on whether he was
guilty of attempted escape, but not on whether he was guilty of
completed escape. (Bailey, at p. 749; see also Carter v. United
States (2000) 530 U.S. 255, 268 [distinguishing “ ‘specific
intent’ ” from “ ‘general intent’ ” on the ground that the former,
but not the latter, demands inquiry into whether the defendant
had a purpose or goal to cause a particular harm when
performing a set of physical acts].)6
6
It may be true in some sense that as a purely “abstract
proposition, every completed crime necessarily involves an
attempt to commit it.” (People v. Vanderbilt, supra, 199 Cal. at
p. 463; see conc. opn. of Kruger, J., post, at p. 5.) But that
statement risks simply assuming its conclusion by implying that
a completed crime always includes an attempt to commit that
crime, because it does (rather than acknowledging that this
question is part of what’s at issue in the case), or eliding the
distinction between the colloquial use of the word “attempt” and
the use of it as a term of art to describe a certain category of
inchoate criminal offenses. In any event, even if we embraced
the abstract proposition, we see no clear practical basis for a
cross-cutting rule based on this proposition. As we observed in
Bailey, such a rule would not apply “where the attempted
offense includes a particularized intent that goes beyond what
is required by the completed offense.” (Bailey, supra, 54 Cal.4th
at p. 753.)
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Opinion of the Court by Cuéllar, J.
Hood expressly recognized the meaningful “difference in
mental activity” required for “crimes that have traditionally
been characterized as crimes of specific intent” as compared to
those traditionally characterized as crimes of general intent.
(Hood, supra, 1 Cal.3d at p. 458.) That difference, as we’ve
reiterated today, is the distinction between (i) merely
committing a physical act intentionally and (ii) engaging in goal-
oriented, purposive thinking. (See People v. Williams (2001) 26
Cal.4th 779, 786 [distinguishing “ ‘an intent to commit [an] act’ ”
from “a specific intent to obtain some further objective” and
concluding the former falls short of describing “the traditional
formulation of criminal attempt later codified in section 21a,
which requires a specific intent”].) And as we held in Hood, that
distinction “is sufficient to justify drawing a line between” those
two types of crimes for, among other things, “considering
evidence of intoxication in the one case and disregarding it in
the other.” (Hood, at p. 458.) So under our precedents, the kind
of “specific intent” at issue in attempted kidnapping is indeed a
“heightened mental state” distinct from a mere intent to commit
the physical acts constituting the completed crime.7 (Bailey,
supra, 54 Cal.4th at p. 751; see also Williams, at p. 786.)
7
Justice Kruger looks to Chief Justice Traynor’s statement
in Hood, supra, 1 Cal.3d 444, that “[t]here is no real difference,
however, only a linguistic one, between an intent to do an act
already performed and an intent to do that same act in the
future.” (Id. at p. 457.) Based on this discussion, Justice Kruger
concludes that general intent and specific intent “will generally
be indistinguishable” when a crime is defined only in terms of
committing a particular act. (Conc. opn. of Kruger, J., post, at
p. 5.) But what’s at issue here is not whether it makes sense to
draw a distinction between an intent to do an act already
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Opinion of the Court by Cuéllar, J.
Attempts require a heightened mental state for good
reason. As we explained in Bailey, requiring a heightened
mental state for attempt liability helps distinguish, for example,
“the act of an attempt to escape” from the “same act of a violation
of prison rules” or even purely “ ‘innocuous behavior.’ ” (Bailey,
supra, 54 Cal.4th at p. 751, quoting U.S. v. Bailey (1980) 444
U.S. 394, 405.) When someone intentionally commits an act
constituting a completed felony, for example, that person’s
culpability is often obvious because “the completed act is itself
culpable conduct.” (U.S. v. Gracidas-Ulibarry (9th Cir. 2000)
231 F.3d 1188, 1193 (en banc).) But when someone intentionally
commits an act that merely could be a step towards committing
a certain completed crime, “uncertainty” about the person’s
culpability — or at least the contours of that culpability —
persists. (Ibid.)
To ensure that only those whose intentions and actions
made them a pronounced threat to accomplish what a given
criminal statute prohibits may be found criminally liable, courts
impose a “heightened intent requirement” for attempts — even
when the completed crime requires a less demanding mental
state. (U.S. v. Gracidas-Ulibarry, supra, 231 F.3d at p. 1193.)
In effect, the higher bar serves as a bulwark against convicting
someone of attempting to accomplish something they never set
performed and an intent to do the same act in the future, where
the individual in question happens to have an intent that fulfills
the requirement for both the completed offense and the attempt.
What’s at issue is whether we should presume that the only
conceivable kind of intent that would make an individual guilty
of a completed offense is the kind of intent that would also be
enough to allow for conviction of the inchoate offense of attempt.
That’s not a question that has an elegant metaphysical answer.
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Opinion of the Court by Cuéllar, J.
out to do. “Because the act constituting a criminal attempt ‘need
not be the last proximate or ultimate step toward commission of
the substantive crime,’ criminal attempt has always required ‘a
specific intent to commit the crime.’ ” (People v. Williams, supra,26 Cal.4th at p. 786, quoting People v. Kipp (1998) 18 Cal.4th
349, 376.) And in California, the Legislature codified that
safeguard: under section 21a, an attempt conviction requires
“specific intent to commit the [completed] crime,” even if the
underlying offense is a general intent crime. (Italics added.)
Bailey concerned this same principle. There, we noted it
would be difficult to determine whether a prisoner who “stole a
pair of wire cutters” had at that point attempted to escape.
(Bailey, supra, 54 Cal.4th at p. 751.) Yes, the prisoner might
have intended to use them “to cut through the outer perimeter
fence of the prison institution.” (Ibid.) And had he done that
and run off, there would be no doubt he committed the
completed crime of escape. (Ibid.) But the prisoner might also
have intended to use the wire cutters “as a weapon to attack
another inmate.” (Ibid.) So if he were apprehended soon after
stealing them, one couldn’t know whether he attempted to
escape –– not without more information about what specifically
he had planned to do with the wire cutters. (Ibid.) Hence the
“specific intent requirement” for attempted escape. (Ibid.)
When it comes to the elements of completed kidnapping
and attempted kidnapping under section 207, subdivision (a),
we see a similar distinction. We’ve described completed
kidnapping under that provision as a “general intent crime.”
(People v. Prieto (2003) 30 Cal.4th 226, 257). Conviction under
section 207, subdivision (a) requires the defendant to
intentionally perform the physical acts constituting the crime.
And because any criminal conviction in California (with a few
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exceptions not applicable here) requires, as a threshold matter,
“a union of act and wrongful intent” (People v. Mayberry (1975)
15 Cal.3d 143, 154 (Mayberry)) under section 20, we have
further concluded that someone with an honest and reasonable
belief that the victim “voluntarily consented to accompany him”
(Mayberry, at p. 155) is not guilty of completed kidnapping. (See
also § 26, class Three [providing that someone is not guilty of a
crime if they “committed the act or made the omission charged
under an ignorance or mistake of fact, which disproves any
criminal intent”].) So to satisfy a basic requirement for
criminality — that a defendant’s mental state be culpable in
some minimal way — completed kidnapping under section 207,
subdivision (a) requires not just the intentional commission of
physical acts, but also –– at least — criminal negligence as to
consent. (Mayberry, at p. 154, citing People v. Vogel (1956) 46
Cal.2d 798, 801, fn. 2.) Voluntary intoxication, moreover, does
not bear on whether a defendant formed the intent necessary to
be guilty of completed kidnapping. (People v. Hernandez (1988)
46 Cal.3d 194, 209-211.)
An attempt to commit kidnapping under section 207,
subdivision (a), by contrast, is most consistent with what our
case law tends to describe as a “specific intent” crime. It
requires that the defendant act with a conscious design or
purpose to accomplish what the provision punishing the
completed crime prohibits (or –– stated otherwise –– to bring
about the harmful result that statute proscribes): taking and
carrying away the victim a substantial distance, by force or fear,
and without consent. (§ 207, subd. (a).) So here, as in Bailey,
“the attempted offense includes a particularized intent that goes
beyond what is required by the completed offense.” (Bailey,
supra, 54 Cal.4th at p. 753.) For example, while voluntary
16
PEOPLE v. FONTENOT
Opinion of the Court by Cuéllar, J.
intoxication does not matter for whether someone is guilty of
completed kidnapping, it does matter for whether someone is
guilty of attempted kidnapping. (See People v. Williams (1988)
44 Cal.3d 883, 908 [noting that “alcohol intoxication” may
negate “specific intent to commit” kidnapping].) So it’s possible
for an intoxicated defendant to commit completed kidnapping
under section 207, subdivision (a) without necessarily
committing attempted kidnapping along the way. And while
completed kidnapping under that provision requires mere
criminal negligence as to consent to satisfy the baseline
requirement for criminality of (almost) any kind (Mayberry,
supra¸ 15 Cal.3d at p. 154), attempted kidnapping requires the
defendant to purposefully inflict whatever degree of force or fear
is required to overcome the victim’s will (see §§ 21a, 207, subd.
(a); cf. Davis, supra, 10 Cal.4th at p. 509.). Put another way: we
agree with the “prevailing view” that an attempt “cannot be
committed by recklessness or negligence” — “even if the
underlying crime can be so committed.” (LaFave, supra, § 11.3,
p. 293.)
Of course, the Legislature may conclude it makes sense to
punish negligent or reckless conduct in this context, irrespective
of whether a particular harm is brought about — and subject to
constitutional constraints, it can criminalize such conduct. (See
LaFave, supra, § 11.3(b), p. 298.) While enactment of such an
offense would functionally overlap with the kind of attempt
Justice Kruger envisions –– where the required mens rea is
merely recklessness or negligence –– there’s no basis in our law
to presume that attempt offenses require mere negligence or
recklessness. To the contrary: such a conclusion cuts sharply
against the distinctions we’ve repeatedly drawn between the
intent that must be shown to establish a defendant’s guilt of a
17
PEOPLE v. FONTENOT
Opinion of the Court by Cuéllar, J.
completed offense, and the intent that establishes attempt. (See
Bailey, supra, at pp. 750-751; Williams, supra, 26 Cal.4th at p.
786.) Other courts have drawn similar distinctions, too. (See,
e.g., United States v. Bailey, supra, 444 U.S. at p. 405
[explaining that “inchoate offenses such as attempt” require a
“heightened mental state” as compared to completed offenses];
U.S. v. Gracidas-Ulibarry, supra, 231 F.3d at p. 1192 [similar].)
The additional intent element required both for attempted
escape and for attempted kidnapping underscores why we
decided Bailey the way we did. A reviewing court may not
reduce a conviction for completed escape to one for attempted
escape, we explained in Bailey, because doing so would gloss
over the heightened intent requirement that, for the latter
offense, must be proved beyond a reasonable doubt. (Bailey,
supra, 54 Cal.4th at p. 752.) And that additional element
suggests we were wrong in Martinez to reduce on appeal a
conviction for completed kidnapping to one for attempted
kidnapping.
In neither Bailey nor Martinez was the attempt a lesser
included offense of the completed crime under the elements test.
Moreover, in Bailey, the case was “tried solely as an escape” and
“the trial court did not instruct on attempt to escape . . . .”
(Bailey, supra, 54 Cal.4th at p. 752.) The jury, then, “was never
required to make a finding of specific intent to escape” when it
returned a guilty verdict of the completed offense. (Ibid.)
Martinez is scarcely different. That case was tried solely as a
completed kidnapping under section 207, subdivision (a). (See
Martinez, supra, 20 Cal.4th at p. 230.) And a conviction for
attempted kidnapping was not contemplated until appeal. (Id.
at p. 241.) So the jury was never asked to find that the
defendant formed the specific intent to kidnap notwithstanding,
18
PEOPLE v. FONTENOT
Opinion of the Court by Cuéllar, J.
for example, evidence he was drunk at the time of the alleged
crime. (See id. at p. 229.) And because only the general intent
crime of completed kidnapping under section 207, subdivision
(a) was litigated at trial, the defendant had no reason to build a
defense around voluntary intoxication. Yet our decision to
reduce on appeal the defendant’s conviction for completed
kidnapping to attempted kidnapping did not rest on a reasoned
consideration of these complexities. It relied instead on the
assumption that an attempt was always a “lesser included
offense” of the completed crime. (Martinez, at p. 241). So we
overrule that portion of Martinez.
Yet we do not supplant Martinez’s across-the-board
assumption with an equally sweeping conclusion of our own.
Our decision does not mean all attempts are created equal, any
more than all completed offenses are. Attempts may be lesser
included offenses of the completed crime — and, at the very
least, application of the elements test may not always be
straightforward. (See Bailey, supra, 54 Cal.4th at p. 753.) Look
no further than the very criminal statute at issue here. Other
variations of kidnapping set out in different subdivisions of
section 207 have distinct elements, including as to the mental
state required for a conviction. Subdivision (c), for example,
establishes as a separate offense kidnapping that is:
(1) achieved by force, fear, or various forms of deception; and
(2) “for the purpose and with the intent to sell [the victim] into
slavery or involuntary servitude, or otherwise to employ” the
victim against his or her will. (§ 207, subd. (c), italics added.)
And while subdivision (e) does not itself establish a stand-
alone offense, it provides that — for the various “types of
kidnapping [offenses] requiring force” established in other
subdivisions of section 207, including kidnapping under
19
PEOPLE v. FONTENOT
Opinion of the Court by Cuéllar, J.
subdivision (a) — “the amount of force required to kidnap an
unresisting infant or child is the amount of physical force
required to take and carry the child away a substantial distance
for an illegal purpose or with an illegal intent.” (§ 207, subd. (e),
italics added; see also People v. Oliver (1961) 55 Cal.2d 761, 768.)
That latter wrinkle could affect whether the attempted
kidnapping of a young child is a lesser included offense of the
completed crime. (See conc. opn. of Kruger, J., post, at pp. 13-
17.) Indeed, these are precisely the kind of “ ‘intricacies and
doctrinal divergences’ ” (Bailey, supra, 54 Cal.4th at p. 753,
quoting Moorman v. Thalacker (8th Cir. 1996) 83 F.3d 970, 974)
that, as we explained in Bailey, cut against “ ‘generaliz[ing] in
the law of attempt’ ” (Bailey, at p. 753, quoting U.S. v. Berrigan
(3d Cir. 1973) 482 F.2d 171, 187).
True: this case involved a young victim. But at no point
have the People relied on subdivision (e) of section 207 — nor
does the briefing before us address any subdivision of section
207 other than (a). So whether subdivision (e) means that
attempted kidnapping is a lesser included offense of the
completed crime in cases involving young victims is a question
not properly presented here. Accordingly, we needn’t express
any view on that narrow issue.8 Our decision today concerns
8
Justice Kruger is quite right that the People need not
expressly plead a violation of subdivision (e) of section 207 when
they charge a defendant with a kidnapping offense. (See conc.
opn. of Kruger, J., post, at p. 16, citing People v. Westerfield
(2019) 6 Cal.5th 632, 715.) But that’s somewhat beside the point
in this case. What matters for present purposes is that this
issue is not central to the question on which we granted review,
and we lack briefing about the effect (if any) of subdivision (e).
Nor was that issue addressed at oral argument. Because we
20
PEOPLE v. FONTENOT
Opinion of the Court by Cuéllar, J.
instead the question addressed in the briefing before us:
whether, putting aside potential complications caused by the
application of subdivision (e), attempted kidnapping under
subdivision (a) is a lesser included offense of completed
kidnapping. We conclude the answer to that question is no.
2.
Yet this case differs from Bailey and Martinez in one
crucial respect. The factfinder in those jury trials (the jury)
never found the specific intent required for an attempt
conviction; the jury was not even instructed on it. (See Bailey,
supra, 54 Cal.4th at p. 752; Martinez, supra, 20 Cal.4th at
pp. 230, 241.) So in Bailey we held that the defendant’s
conviction at trial for the completed offense could not be changed
on appeal to a conviction for an attempt. And we erred in
Martinez by not reaching a similar result. But the factfinder in
Fontenot’s bench trial (the judge) recognized that a conviction
for attempted kidnapping requires specific intent — and he
expressly made a finding to that effect. Accordingly, unlike in
Bailey and Martinez, the factfinder in this case indeed found
every element necessary to support an attempt conviction.
That distinction matters. The constitutional defect
lurking in the attempt convictions contemplated only on appeal
in Bailey and Martinez does not apply to the attempt conviction
lack input from the parties and need not resolve any question
about subdivision (e) in order to decide this case, we decline to
address it. (See, e.g., Kinney v. Vaccari (1980) 27 Cal.3d 348,
356, fn. 6 [noting that we generally decline to consider
arguments not raised in the briefs].) So contrary to Justice
Kruger’s suggestion, nothing about our decision today calls
Westerfield into question.
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PEOPLE v. FONTENOT
Opinion of the Court by Cuéllar, J.
imposed at Fontenot’s trial. As a result, our conclusion that
attempted kidnapping is not a lesser included offense of
completed kidnapping in the context of section 207,
subdivision (a) does not — standing alone — warrant reversal
of Fontenot’s conviction for the former crime.
C.
We have concluded that section 1159 means what it says,
and that the statute, so read, is constitutional. And consistent
with our decision in Bailey, attempted kidnapping is not a lesser
included offense of completed kidnapping, at least in the context
of section 207, subdivision (a). At trial, moreover, the factfinder
found every element of attempted kidnapping beyond a
reasonable doubt. So contrary to Fontenot’s contentions, we are
not convinced that his conviction must be reversed.
To be sure, Fontenot cites language from our precedents
that might appear in some tension with what we hold today.
A single sentence in Bailey opined that we have “made the
qualification that under section 1159, ‘ “[a] defendant may be
convicted of an uncharged crime if, but only if, the uncharged
crime is necessarily included in the charged crime.” ’ ” (Bailey,
supra, 54 Cal.4th at p. 752, quoting People v. Sloan (2007) 42
Cal.4th 110, 116.) And in cases before Bailey we made similar,
seemingly absolute assertions about the constitutionality of
convicting a defendant for committing an uncharged crime.
(See, e.g., Sloan, at p. 116; People v. Reed (2006) 38 Cal.4th 1224,
1227; People v. Toro (1989) 47 Cal.3d 966, 973; People v.
Lohbauer (1981) 29 Cal.3d 364, 367; People v. West (1970) 3
Cal.3d 595, 612; In re Hess (1955) 45 Cal.2d 171, 174-175.)
But because we do not treat cases as “authority for
propositions not considered,” the sweeping assertions on which
22
PEOPLE v. FONTENOT
Opinion of the Court by Cuéllar, J.
Fontenot relies do not dictate our decision in this case about the
meaning and constitutionality of section 1159. (In re Tartar
(1959) 52 Cal.2d 250, 258; see also People v. Ghobrial (2018)
5 Cal.5th 250, 285.) Bailey, supra, 54 Cal.4th 740, addressed
only the power of an appellate court to reduce a conviction for
escape to a conviction for attempt, where the trial court did not
instruct on attempt to escape. Unlike here, “concerns about
notice [we]re not at issue . . . .” (Id. at p. 752.) Instead, what
concerned us in Bailey was the fact that the failure to instruct
the jury regarding the specific intent required for an attempt to
escape meant that the jury “did not impliedly find all the
elements of the attempt offense.” (Ibid.) Neither Bailey nor any
of those prior decisions from our court confronted a situation like
this one: a case where the defendant was charged with a
completed offense, but at trial the factfinder nevertheless
considered, and found every element of, an attempt. (In fact,
other than Bailey, none of those decisions concerned attempts at
all.) The only time we have confronted circumstances at all like
those here was in Oates, and there we upheld the defendant’s
conviction for an attempt.9 (Oates, supra, 142 Cal. at p. 14.)
The dissent’s view that a person might nonetheless have
reasonably relied on these statements — not holdings —
9
The dissent faults our citation of Oates on the ground that
Oates addressed whether section 1159 had been properly
enacted. Therefore, the dissent contends, Oates could not have
given Fontenot notice that he could be convicted of an uncharged
attempt. (Conc. & dis. opn. of Liu, J., post, p. 6.) But this court
subsequently cited Oates for the “well-established principle[]”
that pursuant to section 1159, a person may be convicted of an
attempt to commit a charged crime even if not charged with an
attempt of the charged crime. (People v. Vanderbilt, supra, 199
Cal. at p. 464.)
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PEOPLE v. FONTENOT
Opinion of the Court by Cuéllar, J.
concerning the propriety of convictions for uncharged crimes in
our prior cases assumes that a person would reasonably adopt
an atextual reading of section 1159. More particularly, taking
those assertions at face value would strip the statutory language
“or of an attempt to commit the offense” of any meaning
whatsoever. (Ibid.) But whenever reasonably possible, courts
avoid reading statutes in a way that renders “meaningless”
language the Legislature has chosen to enact. (People v. Hudson
(2006) 38 Cal.4th 1002, 1010.) Moreover, as we’ve explained,
many jurisdictions permit defendants charged only with a
completed offense to be convicted of an attempt — and no federal
appellate court or state high court has condemned the practice.
Even Fontenot himself acknowledges that section 1159 is
“capable of providing” constitutionally adequate notice to
defendants that they may be convicted of an attempt even if they
are charged only with the completed offense. Yet, in his view,
that is not the end of the matter. Fontenot counters that, even
if the language in our prior decisions was technically dicta, he
had enough cause for confusion at the time of trial to justify
reversal of his conviction on constitutional grounds. And in
addition to cases from our court, Fontenot cites decisions of the
Court of Appeal to support that fallback argument, including
most notably People v. Braslaw (2015) 233 Cal.App.4th 1239 and
People v. Hamernik (2016) 1 Cal.App.5th 412.
In Braslaw, which was decided before Fontenot’s trial, the
Court of Appeal held that trial courts have “no sua sponte duty
to instruct on attempt unless it is also a lesser included offense.”
(People v. Braslaw, supra, 233 Cal.App.4th at p. 1247.) Braslaw
echoed Bailey’s purported “ ‘qualification’ ” of section 1159
(Braslaw, at p. 1247), but the case did not involve any issue
regarding the authority to convict of an uncharged attempt. In
24
PEOPLE v. FONTENOT
Opinion of the Court by Cuéllar, J.
Hamernik, the Court of Appeal reversed an attempt conviction
solely because the defendant was charged with the completed
offense but the attempt — though presented to the jury — “was
not included in the information.” (People v. Hamernik, supra, 1
Cal.App.5th at pp. 426-427.) Hamernik cited Bailey only in
connection with its analysis of whether the crime of attempt was
a lesser included offense of the charged crime. The Hamernik
court was apparently not aware of, much less confused by,
Bailey’s dicta on which Fontenot relies. In fact, Hamernik did
not even acknowledge section 1159, perhaps because the People
focused on section 1009, which addresses courts’ authority to
allow an amendment of charges after the defendant has
responded to the original pleading. Moreover, Fontenot could
not have relied on Hamernik’s erroneous holding because
Hamernik was decided after the trial in this case. But Fontenot
argues that the court’s conclusion nevertheless demonstrates
that litigants, like the Court of Appeal, wouldn’t have
understood that a defendant could be convicted of an attempt
despite being charged only with a completed crime. So according
to Fontenot, the state of California case law at the time of his
trial so muddled the meaning of section 1159 that his conviction
cannot stand.
We reject Fontenot’s fallback argument. Just as our dicta
in Bailey and other decisions do not control our decision today,
Fontenot could not reasonably rely on those statements in
preparing for trial in the face of section 1159’s unambiguous and
clearly relevant language, and the nearly ubiquitous charging
practice it establishes. Indeed, we made clear in Bailey that
“concerns about notice” were “not at issue” there. (Bailey, supra,
54 Cal.4th at p. 752.) And, as discussed above, not one of our
25
PEOPLE v. FONTENOT
Opinion of the Court by Cuéllar, J.
other cases with sweeping, seemingly absolute statements about
convictions for uncharged crimes involved an attempt.
These circumstances — a defendant’s reliance on dicta
that is inconsistent with a clear statute and common practice —
present a stark contrast to the circumstances in Moss v.
Superior Court (1998) 17 Cal.4th 396 (Moss), on which the
dissent relies. (Con. & dis. opn. of Liu, J., post, pp. 2-3.) In Moss,
we considered whether constitutional prohibitions on
involuntary servitude and imprisonment for debt precluded a
judgment of contempt based on a parent’s failure to pay child
support when the parent’s inability to pay results from the
parent’s willful failure to seek and accept available employment.
Our earlier opinion in Ex parte Todd (1897) 119 Cal. 57, which
held that courts had no power to impose contempt sanctions for
a failure to pay spousal support when the inability to pay
resulted from a willful failure to obtain employment, had been
interpreted to be based on these constitutional prohibitions. We
held in Moss that these constitutional prohibitions do not bar
the imposition of contempt sanctions for the failure to pay child
support where the failure is based on the parent’s willful failure
to seek and accept available employment. We also disapproved
In re Feiock (1989) 215 Cal.App.3d 141, which held that the
petitioner bore the burden of proof with respect to the issue of
whether the contemnor had the ability to pay child support.
(Moss, supra, 17 Cal. 4th at p. 428.)
But we did not apply our holdings to contemnor Moss,
because those holdings could “reasonably be seen as both an
unanticipated expansion of the law of contempt in the child
support context and a change in the evidentiary burden of which
[Moss] has no notice at the time of trial.” (Moss, supra, 17
Cal.4th at p. 429.) We acknowledged that Ex parte Todd, supra,
26
PEOPLE v. FONTENOT
Opinion of the Court by Cuéllar, J.
119 Cal. 57, on which the contemnor relied, involved spousal
rather than child support, but observed that “no basis for
distinguishing child support orders was apparent at the time
Todd was decided . . . .” (Moss, at p. 429.) We also declined to
assume that the enactment of a statute authorizing a court to
require a parent to demonstrate efforts to find employment
would have apprised the contemnor that Todd, which was based
on substantive constitutional restrictions, no longer applied.
(Moss, supra, 17 Cal.4th at p. 429.) Finally, the contemnor
“reasonably relied on In re Feiock,” supra, 215 Cal.App.3d 141.
(Moss, supra, 17 Cal.4th at p. 429.) In sum, the contemnor in
Moss reasonably relied on indistinguishable precedent that was
based on constitutional principles, whereas Fontenot relied on
dicta that was inconsistent with a statute that gave him
constitutionally sufficient notice of the fact that he could be
convicted of attempt.
Fontenot had another reason to know he could potentially
be convicted of attempted kidnapping despite being charged
only with completed kidnapping. When he was tried, we had
not yet overruled Martinez. Indeed, in Bailey, we cited Martinez
but took special care not to directly overrule it. (See Bailey,
supra, 54 Cal.4th at p. 753.) We cautioned that the law of
attempt is complicated, leaving room for the possibility that we
might one day reaffirm Martinez’s conclusion that attempted
kidnapping was a lesser included offense of completed
kidnapping. (See ibid.) Although we decline to take that course
today, that possibility was very much alive at the time of
Fontenot’s trial. So despite overbroad dicta in our prior cases,
and despite the Court of Appeal’s decisions in Braslaw and
27
PEOPLE v. FONTENOT
Opinion of the Court by Cuéllar, J.
Hamernik, Fontenot had ample reason to be ready to defend
against allegations of attempted kidnapping.10
III.
An attempt to commit kidnapping under section 207,
subdivision (a) has an element that the completed crime does
not. To be guilty of completed kidnapping under subdivision (a)
of section 207, someone need only engage intentionally in the
action that constitutes the crime — provided there exists a
union between that act and some minimally wrongful intent,
and leaving aside the application of subdivision (e) in cases
involving young victims. Yet attempted kidnapping in this
context requires a more demanding mental state: a conscious
design or purpose to take and carry away the victim a
substantial distance, by force or fear, and without consent. That
additional intent element serves to distinguish a step towards a
completed crime from other behavior, and it means courts
10
The dissent contends that our reasoning expects Fontenot
to have somehow anticipated that we would reject Bailey’s dicta
regarding section 1159, but not to have anticipated that we
would overrule Martinez, supra, 20 Cal.4th 225. (Conc. & dis.
opn. of Liu, J., post, p. 9.) Yet our analysis does not depend on
whether Fontenot might reasonably have questioned our
holding in Martinez. The issue instead is whether Fontenot was
on notice at the time of trial that he could potentially be
convicted of an uncharged attempted kidnapping. In light of the
fact that immediately following Bailey’s dicta, we cited Martinez
as a case that “stated or applied the general principle that
attempt is a lesser included offense of any completed crime”
(Bailey, supra, 54 Cal.4th at p. 753), and we expressly noted that
the offense in Martinez was kidnapping, the most reasonable
conclusion at that time was that he could potentially be
convicted of attempted kidnapping. The dissent, in contrast,
would expect a defendant in these circumstances to rely on dicta
and ignore a holding.
28
PEOPLE v. FONTENOT
Opinion of the Court by Cuéllar, J.
cannot assume attempted kidnapping is a lesser included
offense of completed kidnapping.
Despite this conclusion, we do not find reversal is
warranted by the mere fact that Fontenot was charged with
completed kidnapping but convicted of attempted kidnapping.
That’s because section 1159 means what it says: a defendant
may be convicted of an attempt despite being charged only with
the completed crime. And section 1159, so read, comports with
a defendant’s Sixth Amendment right to be informed of the
nature and cause of the accusation against him, as well as with
federal due process principles.
Nor does the substance of California’s case law at the time
of Fontenot’s trial persuade us to disturb the Court of Appeal’s
judgment. Contrary to what Fontenot contends, our previous
decisions and those of the Courts of Appeal gave him sufficient
reason to know he could potentially be convicted of attempted
kidnapping despite being charged only with the completed
offense.
The foregoing conclusions resolve the challenges to
Fontenot’s conviction that he has meaningfully advanced in our
court. So we affirm the Court of Appeal’s judgment.
CUÉLLAR, J.
We Concur:
CANTIL-SAKAUYE, C. J.
CHIN, J.
CORRIGAN, J.
29
PEOPLE v. FONTENOT
S247044
Concurring Opinion by Justice Kruger
Defendant John Reynold Fontenot was dragging a four-
year-old girl through a building lobby when he was stopped by
the combined efforts of the girl’s babysitter and her playmates.
Defendant was charged with kidnapping. After a bench trial,
the trial court found that defendant had not managed to
complete the kidnapping before he was stopped, but that he had
attempted to kidnap her. Defendant challenges the resulting
conviction on the ground that he lacked adequate notice that he
could be held liable for attempted kidnapping. He contends that
attempted kidnapping is not a lesser included offense of
kidnapping and therefore was not fairly included in the charges
against him. He asks us to overrule our precedent holding
otherwise. (People v. Martinez (1999) 20 Cal.4th 225, 241
(Martinez).)
I agree with the majority that the plain language of Penal
Code section 1159 provided defendant with constitutionally
sufficient notice that he could be convicted of an attempt to
commit the charged offense, regardless of whether the attempt
is considered to be a lesser included offense. (Maj. opn., ante, at
pp. 4–9.) That is a complete answer to defendant’s challenge,
and I concur in the majority’s judgment upholding defendant’s
conviction on that basis.
The majority, however, does not stop there. It goes on to
address the underlying premise of defendant’s argument—that
PEOPLE v. FONTENOT
Kruger, J., concurring
we were wrong in Martinez to call attempted kidnapping a lesser
included offense of kidnapping—and to agree with it. (Maj. opn.,
ante, part II.B.1.) I do not join this portion of the majority’s
opinion for two reasons.
First, there is no real reason for us to decide the issue here,
overruling precedent in the process. Whether or not attempted
kidnapping is considered a lesser included offense, as we have
previously said it is, Penal Code section 1159 informed
defendant that he could be convicted of attempt. The majority
says we still have to assure ourselves that the trial court found
all the necessary elements to support the conviction. (Maj. opn.,
ante, at pp. 9–10.) But no one doubts that the trial court made
the necessary findings; that is not defendant’s problem with the
court’s judgment.
But second—for reasons I’ll explain in greater detail
below—I am not persuaded the majority’s answer to the lesser
included offense question is correct. Defendant relies on a
formal distinction between the “general” criminal intent
required for forcible kidnapping under Penal Code section 207,
subdivision (a), and the “specific” intent to kidnap required for
attempted kidnapping. But the question whether there is a
substantive difference between these two mental states, beyond
the difference in labels, is more complex than either defendant
or the majority acknowledges. And more to the point, precedent
establishes that where, as here, the victim is a young child, the
crime of kidnapping requires the taking and asportation of the
victim be done for an illegal purpose or with an illegal intent.
(In re Michele D. (2002) 29 Cal.4th 600, 610–612; People v. Oliver
(1961) 55 Cal.2d 761, 767–768 (Oliver).) That is a kind of
specific intent requirement, and it is substantively
indistinguishable from the specific intent requirement for
2
PEOPLE v. FONTENOT
Kruger, J., concurring
attempted kidnapping. Thus, at least where the victim is a
young child, it would seem that attempted kidnapping is, in fact,
a lesser included offense of kidnapping. We should leave other
questions about other forms of the offense for cases in which
those questions are squarely presented.
I.
The lesser included offense issue is one that has generated
considerable confusion among both lower courts and the parties
to this case. Again, there is no reason for us to decide the issue
here. But if we are going to address it anyway, some
clarification would be helpful.
Much of the confusion stems from the parties’ reading of
our decision in People v. Bailey (2012) 54 Cal.4th 740 (Bailey).
In that case, we considered whether, after finding that the
defendant inmate’s escape from his cell was insufficient to
support a conviction for escape from state prison, the appellate
court could reduce the defendant’s conviction to attempted
escape on the ground that the latter is a lesser included offense
of the former. We answered no, explaining that the latter is not
a lesser included offense of the former: Escape has been
described as requiring only general criminal intent while, under
Penal Code section 21a, an attempt involves the specific intent
to commit the crime. We concluded that “[u]nder the elements
test, attempt to escape is not a lesser included offense of escape
since it requires additional proof that the prisoner actually
intended to escape.” (Bailey, at p. 749.) The parties here largely
follow this lead; relying on Bailey, defendant argues, and the
Attorney General concedes, that attempted kidnapping is not a
lesser included offense of kidnapping because it requires proof
that the defendant intended to kidnap.
3
PEOPLE v. FONTENOT
Kruger, J., concurring
This reliance is misplaced, in my view. Unlike this case,
Bailey was not a case about whether the defendant had
adequate notice of the charges; the question was whether it was
permissible on appeal to reduce an invalidated conviction for a
completed crime to a conviction for attempt. On that question,
Bailey unquestionably reached the right result: Based on the
elements found by the jury, the defendant’s invalidated escape
conviction could not be reduced to attempted escape on the
ground that the latter was a lesser included offense of the
former. This is because the jury that rendered the escape
conviction had never found that the defendant had the intent
that would have been necessary to support a conviction for
attempted escape (or a valid conviction for completed escape, for
that matter).1
But it is not the case, as the parties here have understood
Bailey to say, that attempt is never a lesser included offense of
a general intent crime because it always requires an additional
1
The Bailey jury had been given a misleading instruction
implying that a completed escape could be found so long as the
defendant merely passed “ ‘beyond some barrier, such as a fence
or wall, intended to keep the prisoner within a designated
area.’ ” (Bailey, supra, 54 Cal.4th at p. 746; see id. at pp. 755–
757 (conc. opn. of Werdegar, J.).) In light of that instruction, the
jury’s guilty verdict on escape did not necessarily rest on a
finding that the defendant intentionally escaped from the limits
of his confinement, the proper measure of a completed escape.
(Id. at pp. 748–749.) And absent such a finding, the Court of
Appeal could not properly reduce the defendant’s conviction to
attempted escape, as that offense, too, requires the intent to
escape from the limits of one’s confinement. (See id. at p. 754
[reduction improper because under the instructions given, jury
might have convicted of escape even if it believed the defendant
that he “merely intended to assault another prisoner and did not
intend to escape”].)
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PEOPLE v. FONTENOT
Kruger, J., concurring
element of proof—namely, proof of “specific” intent to commit
the crime. On the contrary, we have long said that attempt to
commit a crime is, in fact, a lesser included offense of the
completed crime. (See, e.g., People v. Vanderbilt (1926) 199 Cal.
461, 463 (Vanderbilt) [“ ‘It is not disputed, nor could it well be
disputed, that, as an abstract proposition, every completed
crime necessarily involves an attempt to commit it.’ ”].)
Although Bailey rightly noted that this general principle does
not always apply, our opinion did not purport to repudiate the
principle altogether. (Bailey, supra, 54 Cal.4th at p. 753.)
In many cases, the general principle only makes sense.
Many criminal statutes define the actus reus, or prohibited
conduct, in terms of committing a particular unlawful act (for
example, striking another person)—as opposed to, for example,
producing a particular harmful result (for example, causing
serious injuries to another person). For such act-based offenses,
the “general” criminal intent to do the specified act, as required
for the completed offense, will generally be indistinguishable
from the “specific” intent to do the specified act, as required for
an attempt. In other words, when an offense requires
commission of act X, the general criminal intent needed is
simply the intent to do X. To convict of the attempted crime, the
jury would also need to find the defendant intended to do X. We
call this “specific” intent because it refers to an act the defendant
has not yet performed. (See People v. Hood (1969) 1 Cal.3d 444,
456–457.) This requirement of intent to perform some future
unlawful act is, as the majority says, generally what
distinguishes the crime of attempt from purely innocent
conduct. (Maj. opn., ante, at p. 14.) But it is not different in
substance from the intent the prosecution would be required to
5
PEOPLE v. FONTENOT
Kruger, J., concurring
prove if it were going to establish liability for the completed
crime. (See ibid.)2
To give a concrete example, consider Penal Code section
288.7, subdivision (a), which punishes sexual intercourse or
sodomy by a person at least 18 years old with a child 10 years
old or younger. The general criminal intent required for the
completed crime is the intent to engage in sexual intercourse or
sodomy with the child victim. If an attempt conviction were
sought instead, the People would need to prove that the
defendant took a direct action toward sexual intercourse or
sodomy with the intent of committing one of those sexual acts.
We call this mental state a specific intent, because it relates to
an action beyond the attempt itself. But if it is proved that the
defendant intentionally committed one of these unlawful acts, it
will also necessarily have been proved that the defendant
2
Thus when a crime is defined in terms of committing a
particular unlawful act, it is perfectly accurate to say (as we
have long said) that the defendant could not have committed the
crime without also having attempted to do so. (See Vanderbilt,
supra, 199 Cal. at pp. 463–464.) A person who intentionally
committed a prohibited act must also have “specifically”
intended to commit the act before it was completed.
I do not mean to say that attempts are invariably included
in the completed crime, or that the mental state elements for
attempts and completed crimes are always identical. Where, for
example, the offense is not solely conduct-based, having as an
element the creation of a particular result but not the intent to
cause that result, the intent for attempt will differ significantly.
Murder, for instance, requires an act causing the death of
another, but not the intent to kill, as implied malice will suffice.
Attempted murder, which does require intent to kill, is therefore
not a lesser included offense of murder. (People v. Bland (2002)
28 Cal.4th 313, 327–328; People v. Mize (1889) 80 Cal. 41, 42–
43.)
6
PEOPLE v. FONTENOT
Kruger, J., concurring
intended to commit one of these unlawful acts. In the attempt
context, we might label this “specific” intent, but the label does
not change the substance of the requirement.
This observation about the relationship between general
and specific intent is by no means a new one. Chief Justice
Traynor made the same point 50 years ago in a slightly different
context. After setting out his now-canonical description of
general criminal intent as the intent to perform a particular
criminal act (People v. Hood, supra, 1 Cal.3d at p. 456) and
specific intent as the “intent to do some further act or achieve
some additional consequence” (id. at p. 457), he noted: “There
is no real difference, however, only a linguistic one, between an
intent to do an act already performed and an intent to do that
same act in the future.” (Ibid.; accord, People v. Hering (1999)
20 Cal.4th 440, 445.) From the sometimes “chimerical” nature
of the specific or general intent distinction in the context of the
crime of assault, the Hood court took the lesson that the
question of whether evidence of intoxication may be used to
defend against an assault charge “must rest on other
considerations.” (Hood, at p. 458.) A similar note of caution is
in order here. Whether attempt is a lesser included offense of
the completed crime does not turn on a mere difference in labels,
but on the “reality” of the distinction in the context of a
particular crime. (Ibid.) The question we must ask is whether,
in substance, the attempt offense requires proof of some element
the completed crime does not.
II.
With this background in mind, we can return to the matter
at hand: Was attempted kidnapping a lesser included offense of
the crime charged in this case? Defendant says no, and the
7
PEOPLE v. FONTENOT
Kruger, J., concurring
Attorney General concedes the point. Completed kidnapping
under Penal Code section 207, subdivision (a), requires proof the
defendant took the victim and carried him or her away a
substantial distance by force or fear and without the victim’s
consent. Defendant reasons that a conviction for completed
kidnapping requires only general criminal intent as to the
criminal act itself, meaning intent to move the victim a
substantial distance. (People v. Mayberry (1975) 15 Cal.3d 143,
153; People v. Dalerio (2006) 144 Cal.App.4th 775, 781.) By
contrast, attempted kidnapping requires proof of a specific
intent to move the victim a substantial distance. But labels
aside, defendant does not explain how this intent requirement
differs substantively from the general intent required for the
completed offense.
The majority does suggest one possible answer, but it is not
clear the answer is correct. The majority points out that for
forcible kidnapping, much as for forcible rape, California law
provides a defense of reasonable and bona fide belief that the
victim consented to the asportation. The law thus effectively
requires that the defendant have been at least negligent as to
the victim’s consent. (Maj. opn., ante, at p. 16; Mayberry, at
pp. 154–155.) In contrast, the majority reasons, attempted
kidnapping under Penal Code section 21a must impose a
heightened mens rea element that “requires the defendant to
purposefully inflict whatever degree of force or fear is required
to overcome the victim’s will.” (Maj. opn., ante, at p. 17, italics
added.) Elsewhere, the majority describes this requirement as
a “conscious design or purpose” to “tak[e] and carr[y] away the
victim a substantial distance, by force or fear, and without
consent.” (Id. at pp. 16–17.) Though the majority does not say
it precisely this way, this “conscious design” requirement would
8
PEOPLE v. FONTENOT
Kruger, J., concurring
seem to mean that for attempted kidnapping the People must
prove both that the defendant intended to carry the victim away
and that the defendant actually knew the victim did not consent
to the asportation. An unreasonable failure to appreciate the
victim’s unwillingness would not be enough.
For reasons I’ll explain further below, this explanation does
not have much to do with this case. The victim was a
four-year-old legally incapable of consent; whether the child
consented to being carried away, or whether defendant believed
she consented, was not at issue. But even setting the point aside
for now, it seems to me we should pause before embracing this
suggested view of the specific intent requirement for attempted
kidnapping and other crimes to which the victim’s consent is
relevant.
Whether the majority’s suggested view is correct depends
on what we mean when we say that an attempt involves an
“intent to commit the crime.” (Pen. Code, § 21a.) If that means
the defendant’s purpose must encompass each of the
circumstances that make an act criminal, including the
existence of victim’s lack of consent, then an attempt will often
require a higher mens rea as to those circumstances than the
completed crime. But alternatively, if “intent to commit the
crime” simply means intent to commit an act that would be
criminal if completed, then it is not clear why a defendant who
intended to move a person the defendant should have known to
be unconsenting, and took a concrete step to put the plan into
action, should not be held liable for attempted kidnapping.
If we are choosing between these two interpretations, there
are some good reasons to prefer the second one. For one, it fits
with common understandings of the law of attempt. If a person
9
PEOPLE v. FONTENOT
Kruger, J., concurring
tries to take an unconsenting victim, unreasonably failing to see
the victim’s unwillingness to go, and is stopped before he can
travel too far, undoubtedly many of us would say that person
attempted to kidnap the victim. The law of attempt, as we have
explained, is designed to protect society from the harm
threatened by individuals who set out on a course of criminal
conduct but “ ‘for some collateral reason [are unable to] complete
the intended crime.’ ” (People v. Toledo (2001) 26 Cal.4th 221,
230.) A person who tries and fails to carry away an
unconsenting victim threatens significant harm, even if he has
been merely negligent or reckless in ascertaining the victim’s
consent.
The second interpretation also fits with the ways we have
previously described the intent requirement for attempt. We
have said a defendant may be convicted of criminal attempt
when he or she acts “with the intent to engage in the conduct
and/or bring about the consequences proscribed by the
attempted crime [citation], and performs an act that . . . ‘show[s]
that the perpetrator is putting his or her plan into action.’ ”
(People v. Toledo, supra, 26 Cal.4th at p. 230; see 2 LaFave,
Substantive Criminal Law (2018) Solicitation and Attempt,
§ 11.3, p. 293 (LaFave) [describing mental state for attempt as
“an intent to do an act or to bring about a certain consequence
which would in law amount to a crime”].) We have not further
required that the defendant act with a purpose of performing
the prescribed acts under the particular circumstances that
render them illegal.
The Model Penal Code makes this point more explicitly: For
an attempt, the Model Penal Code requires that the person act
purposefully as to the criminal conduct itself, with purpose or
belief as to a particular result that is an element of the
10
PEOPLE v. FONTENOT
Kruger, J., concurring
completed crime, but in other respects only “with the kind of
culpability otherwise required for commission of the crime.”
(Model Pen. Code, § 5.01, subd. (1).) An explanatory note
reiterates that while purposive action is required as to the
criminal conduct itself, “with respect to the circumstances under
which a crime must be committed, the culpability otherwise
required for commission of the crime is also applicable to the
attempt . . . .” (Id., explanatory note to § 5.01, p. 297.)3
And finally, this interpretation generally fits with the way
California courts have approached attempts to commit forcible
sex offenses, to which the victim’s consent is also relevant. In
such cases, courts have not required that the defendant act with
the conscious purpose of overcoming the victim’s will. They have
instead required only that the defendant show a willingness to
use whatever force is necessary to accomplish the intended
sexual act. Early California cases held that assault with intent
to commit rape requires the defendant have the intent “to use
whatever force was necessary upon the prosecutrix to
accomplish the consummation of his desires.” (People v.
Fleming (1892) 94 Cal. 308, 312; accord, People v. Stewart (1893)
97 Cal. 238, 240.) We reaffirmed this formulation more recently,
3
The commentary to this section of the Model Penal Code
gives some illustrations of its application. For example, where
a statute prohibits sexual intercourse with a female under a
certain age, the required culpability as to the victim’s age would
be no greater for attempt than for the completed offense. (Model
Pen. Code & Commentaries, com. 2 to § 5.01, pp. 301–303.)
Attempt requires the person act with the purpose of committing
the criminal conduct defining the completed offense, “but his
purpose need not encompass all of the circumstances included
in the formal definition of the substantive offense.” (Id. at
p. 301.)
11
PEOPLE v. FONTENOT
Kruger, J., concurring
equating “ ‘the intent to commit the act against the will of the
complainant’ ” with the intent “ ‘to use whatever force may be
required.’ ” (People v. Davis (1995) 10 Cal.4th 463, 509, quoting
People v. Meichtry (1951) 37 Cal.2d 385, 388–389.) This
formulation does not require the prosecution to prove a
“conscious design or purpose” (maj. opn., ante, at pp. 16–17) to
overcome the will of a victim the defendant knows to be
unconsenting; it requires indifference with regard to the victim’s
consent. This understanding may help to explain why we have
previously described attempted rape as a lesser included offense
of rape. (People v. Atkins (2001) 25 Cal.4th 76, 88, citing People
v. Osband (1996) 13 Cal.4th 622, 685 and People v. Kelly (1992)
1 Cal.4th 495, 526, 528.) It is not clear why we would treat
attempted kidnapping differently.
To be clear, this approach is not the same thing as saying
that a person can negligently or recklessly attempt to commit a
crime. As the majority says, an attempt necessarily requires
that the perpetrator intend to commit the conduct constituting
the completed crime, and have purpose or at least knowledge as
to any required consequence. It is in this sense that “an attempt
‘cannot be committed by recklessness or negligence’—‘even if the
underlying crime can be so committed.’ (LaFave, supra, § 11.3,
p. 293.)” (Maj. opn., ante, at p. 17.) But it does not follow that
the prosecution must prove the defendant’s conscious purpose
with respect to every element of the offense, including the
existence of victim consent or other circumstances of the crime.
Indeed, Professor LaFave himself also acknowledges that there
is nothing obviously unsound about an approach that treats the
mental state respecting such circumstances as the same for both
12
PEOPLE v. FONTENOT
Kruger, J., concurring
attempt and for the completed crime, even when the mental
state in question is one of recklessness or negligence.4
I express no firm views on these issues here; I raise these
points only to explain why the matter is more complex than the
majority opinion suggests. If we are to answer the lesser
included offense question by focusing on the role of victim
consent—overturning our own precedent in the process (maj.
opn., ante, p. 19)—these are important issues we ought to
grapple with.
But ultimately there is no reason for us to resolve these
issues in this case, because, as I have already noted, the victim’s
consent was not relevant in this prosecution. Defendant was not
charged with kidnapping of an unconsenting victim; he was
charged with kidnapping a four-year-old child who, because of
4
Professor LaFave finds a lack of authority on this issue but
notes “a persuasive argument” that if the completed crime
requires only “ ‘recklessness, or negligence, or even blameless
inadvertence’ ” as to an attendant circumstance such as victim
consent, that mental state “ ‘will suffice also for the attempt.’ ”
(LaFave, supra, § 11.3(c), p. 302, quoting Smith, Two Problems
in Criminal Attempts (1957) 70 Harv. L.Rev. 422, 434; see
LaFave, supra, § 11.3(b), p. 298, fn. 32, citing Sergie v. State
(Alaska Ct.App. 2005) 105 P.3d 1150, 1154 [to be guilty of an
attempted sexual assault offense, the defendant must exhibit
reckless disregard for the victim’s lack of consent to the sexual
contact]; id. at p. 1155 [the government need not prove the
defendant “intended the circumstance that the penetration be
without . . . consent”]; see also, e.g., State v. Mayfield (Alaska
Ct.App., May 3, 2019, No. A-12534) 2019 WL 1970114, p. *7
[clarifying that an attempted sexual assault requires only that
the defendant recklessly disregarded a risk the victim did not
consent to sexual contact and intended to achieve that contact
by force or threat if necessary].)
13
PEOPLE v. FONTENOT
Kruger, J., concurring
her youth, was legally incapable of giving or withholding
consent. Her lack of consent, and defendant’s mental state with
regard to it, were not legally material to the charge. Instead,
the kidnapping charge required proof that defendant took the
child for an illegal purpose—itself a kind of specific intent
requirement.
We interpreted the kidnapping statute this way in Oliver,
supra, 55 Cal.2d 761, a case in which the defendant had been
charged with kidnapping a two-year-old child. He complained
that under the standard instruction on the intent for
kidnapping, which stated that no proof of a specific intent or
purpose was needed, an adult forcibly moving a child without
any wrongful purpose—for example, to rescue the child from
danger or simply to walk with the child down the street—could
be convicted of kidnapping. (Id. at pp. 764–765.) The court
agreed, and noted the same could be true of an adult victim
mentally incapacitated by illness or intoxication. Considering
this result inconsistent with legislative purpose, we formulated
this general rule: “Penal Code, section 207, as applied to a
person forcibly taking and carrying away another, who by
reason of immaturity or mental condition is unable to give his
legal consent thereto, should . . . be construed as making the one
so acting guilty of kidnaping only if the taking and carrying
away is done for an illegal purpose or with an illegal intent.”
(Oliver, at p. 768.) We have since repeatedly reaffirmed this
holding. (People v. Hill (2000) 23 Cal.4th 853, 856–857; In re
Michele D., supra, 29 Cal.4th at pp. 610–612 (Michele D.); People
v. Westerfield (2019) 6 Cal.5th 632, 714.)
In Michele D., we considered a second, corollary question:
If the victim is too young to withhold consent to movement and
therefore offers no resistance to the asportation, how is the
14
PEOPLE v. FONTENOT
Kruger, J., concurring
element of force or fear to be established? (Michele D., supra, 29
Cal.4th at p. 606.) Although Oliver had expressly addressed
only consent, we held the logic of that decision required that the
standard of force or fear (which typically functions as the inverse
of consent) should also be modified for kidnapping of a small
child: “We formulate that standard as follows: the amount of
force required to kidnap an unresisting infant or child is simply
the amount of physical force required to take and carry the child
away a substantial distance for an illegal purpose or with an
illegal intent.” (Michele D., at p. 610.) The Legislature later
codified this force standard in Penal Code section 207,
subdivision (e). Although the holdings of Oliver and Michele D.
are related, they are distinct, as the Michele D. opinion itself
makes clear: the opinion first articulates the standard of force
applicable to kidnap of an unresisting child (Michele D., at
p. 610) and then, separately, reaffirms Oliver’s illegal purpose
holding (Michele D., at p. 612).
Oliver’s requirement that the asportation be made with an
illegal purpose or intent makes kidnapping of a small child a
specific intent crime, not a crime of general intent. It would
seem to follow that there was no substantive difference between
the intent element of the kidnapping charged and the specific
intent element of the attempt offense.
The majority acknowledges the point, but sets it aside; it
asserts this theory of kidnapping is not before us because the
People have not relied on Penal Code section 207, subdivision
(e), but only on subdivision (a) of that statute, which defines the
offense of forcible kidnapping. (Maj. opn., ante, at pp. 20–21.) It
is true that at defendant’s bench trial, the parties’ arguments
paid little or no attention to the “illegal purpose” element—
indeed, they barely addressed any element other than
15
PEOPLE v. FONTENOT
Kruger, J., concurring
asportation; both attorneys noted that the only serious dispute
was over whether the victim had been moved a substantial
distance. But both court and counsel had before them and
referred to a standard instruction on kidnapping, CALJIC
No. 9.50, whose use note plainly states the Oliver rule.5 And
although the information charged only a violation of Penal Code
section 207, subdivision (a), without citing subdivision (e) of that
statute, the element of illegal purpose required under Oliver
was not thereby eliminated. Subdivision (e) does not set out a
variant form of kidnapping; like the Michele D. decision from
which it was drawn, it merely provides a gloss on how force may
be established “[f]or purposes of those types of kidnapping
requiring force.” (Pen. Code, § 207, subd. (e).) There was no
need to include it in the information’s allegations. (People v.
Westerfield, supra, 6 Cal.5th at p. 715 [“Oliver and Michele D.
. . . did not create a new or different crime of kidnapping that
needed to be expressly pleaded against the defendant.”].)
The majority expresses concern that the parties have not
briefed the special intent requirement that applies in child
kidnapping cases. This is true, and unfortunate—as is the fact
they have not briefed the substantive differences between the
5
The use note to CALJIC No. 9.50 (2012 rev.) states: “If the
victim of the alleged kidnapping is incapable of giving consent,
the People must prove the movement was done for an illegal
purpose or with an illegal intent. See CALJIC 9.57. (People v.
Oliver, 55 Cal.2d 761, 768, 12 Cal.Rptr. 865, 869, 361 P.2d 593,
597 (1961).) (People v. Ojeda-Parra, 7 Cal.App.4th 46, 50, 8
Cal.Rptr.2d 634, 636 (2d Dist. 1992).)” CALJIC No. 9.57,
referenced in the use note, states the force standard of
Michele D. and Penal Code section 207, subdivision (e). The
Oliver rule has also been captured in a Judicial Council
instruction, CALCRIM No. 1201 (2008 rev.).
16
PEOPLE v. FONTENOT
Kruger, J., concurring
mental state required for attempted kidnapping and for the
offense with which defendant was charged. But if we are going
to venture beyond the bounds of the parties’ briefing, as the
majority already does, I see no reason why we shouldn’t also
acknowledge the direct relevance of the Oliver line of cases—
particularly before undertaking to overrule Martinez. Martinez,
after all, was also a case involving the taking of a child; it held
that the kidnapping charge there at issue encompassed “the
lesser included offense of attempted kidnapping of a person
under the age of 14 (§§ 664/207, 208) . . . .” (Martinez, supra, 20
Cal.4th at p. 241.) Because Oliver establishes that kidnapping
is a specific intent crime when the victim is a small child, it
seems to me Martinez’s description of the relationship between
attempted kidnapping and the completed crime likely remains
correct, at least as to a child the age of the victim here.
In short, whatever might be said about the offense in
general, kidnapping is a specific intent crime when the victim is
a young child, requiring proof defendant took and moved the
victim for an illegal purpose or with an illegal intent. It appears
there is no difference between this mental state requirement
and the required mental state for attempted kidnapping.
Defendant’s challenge to his attempted kidnapping conviction
falters out of the gate.
III.
Ultimately, however, I return to where I began. The lesser
included question is largely academic here. Whatever fine
distinctions might or might not exist between the mental state
requirements for attempted kidnapping and the crime charged
in this case, the Legislature has put all defendants charged with
crime on notice that they may be convicted of attempt if the
17
PEOPLE v. FONTENOT
Kruger, J., concurring
evidence supports it. As the majority opinion holds, Penal Code
section 1159 affords defendants constitutionally adequate notice
that they may be convicted of an attempt to commit the charged
crime. (Maj. opn., ante, at pp. 4–9.) On this basis, I concur in
the judgment of the court.
KRUGER, J.
18
PEOPLE v. FONTENOT
S247044
Concurring and Dissenting Opinion by Justice Liu
Today’s opinion correctly holds that attempted kidnapping
is not a lesser included offense of completed kidnapping and that
Penal Code section 1159 (section 1159) authorizes conviction for
an uncharged attempt to commit a charged offense, even if the
attempt is not necessarily included in the charged offense. I do
not agree, however, that the defendant in this case had
sufficient notice to permit conviction for attempted kidnapping
on a charge of completed kidnapping. Notwithstanding the
plain language of section 1159, our precedent at the time of
defendant John Fontenot’s 2016 trial did not make clear that a
conviction for an uncharged attempt was possible if the attempt
offense included an element that the charged offense lacked.
Not only did our case law contain no clear holding to that effect,
but we had made consistent statements to the contrary in
several cases over the past six decades and, in so doing,
repeatedly cited section 1159.
It is one thing to say, as the court does today, that our past
statements were mistaken. But it is quite another to say that
the burden of our mistakes should fall on Fontenot because he
should have known not to give credence to statements that we
had affirmed, reaffirmed, and re-reaffirmed over the years. This
seems quite unfair. I would reverse Fontenot’s conviction for
attempted kidnapping on the ground that he was not adequately
“informed of the nature and cause of the accusation.” (U.S.
PEOPLE v. FONTENOT
Liu, J., concurring and dissenting
Const., 6th Amend.; see People v. Thomas (1987) 43 Cal.3d 818,
823.)
“[R]etroactive application of a decision disapproving prior
authority on which a person may reasonably rely” in preparing
a defense or in determining whether conduct is criminal violates
due process of law. (Moss v. Superior Court (1998) 17 Cal.4th
396, 429–430 (Moss).) In Moss, we evaluated whether “a parent
whose inability to pay court-ordered child support results from
a willful failure to seek and obtain employment [may] be
adjudged in contempt of court and punished for violation of the
order.” (Id. at p. 400.) We held that such a parent could be
subject to contempt sanctions, but we declined to apply this rule
to the litigant before us, Brent Moss. (Id. at p. 401.) A prior
case, Ex parte Todd (1897) 119 Cal. 57, had held that a court
may not impose contempt sanctions for nonpayment of spousal
support in such circumstances. Although Moss involved child
support, not spousal support, we observed that “no basis for
distinguishing child support orders was apparent at the time
Todd was decided . . . .” (Moss, at p. 429.) We acknowledged
that “the Legislature has authorized a court to require
nonsupporting parents to demonstrate that efforts have been
made to find employment” (ibid.) and that “the Legislature
intend[ed] that . . . parental ability to work in order to support
a child be considered in any enforcement action” (id. at p. 423).
Nevertheless, we were “unwilling to assume” that “Brent should
have known in advance of our decision today . . . that Todd was
inapplicable . . . .” (Id. at p. 429.) Thus, even though Todd
involved spousal support and not child support, and even though
the Legislature had enacted child support statutes bearing on
the issue presented, we concluded that “Brent could reasonably
have relied on Todd” for a contrary rule applicable to child
2
PEOPLE v. FONTENOT
Liu, J., concurring and dissenting
support and that our decision in Moss “may reasonably be seen
. . . as an unanticipated expansion of the law of contempt in the
child support context.” (Moss, supra, 17 Cal.4th at p. 429.)
We applied similar reasoning in holding that Brent could
not be subject to a second rule we newly established in Moss, i.e.,
that an alleged contemnor has the burden of proof as to inability
to pay. (Moss, supra, 17 Cal.4th at p. 430.) Because this new
rule partially disapproved In re Feiock (1989) 215 Cal.App.3d
141, retroactive application to Brent violated due process.
(Moss, at p. 430.) As we explained, “to state a new rule on appeal
after trial . . . and to apply the new rule retroactively to a trial
at which the defendant did not have notice of the change is not
permissible.” (Ibid.)
Similarly here, Fontenot “could reasonably have relied” on
our prior statements limiting convictions for uncharged crimes
to those necessarily included in charged crimes, and today’s
opinion “may reasonably be seen” as “an unanticipated change
in the law.” (Moss, supra, 17 Cal. 4th at pp. 429, 401.)
Considered in isolation, the plain language of section 1159
would have provided Fontenot with sufficient notice of a possible
conviction for attempted kidnapping when he was charged with
completed kidnapping. But the text of section 1159 did not exist
in a vacuum at the time of Fontenot’s trial. Notwithstanding
the statute’s text, this court had repeatedly stated, with
citations to section 1159, that a defendant could be convicted of
an uncharged crime only if that crime is a lesser included offense
of a charged crime.
In In re Hess (1955) 45 Cal.2d 171 (Hess), we said: “A
person cannot be convicted of an offense (other than a
necessarily included offense) not charged against him by
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PEOPLE v. FONTENOT
Liu, J., concurring and dissenting
indictment or information, whether or not there was evidence at
his trial to show that he had committed that offense.” (Id. at
pp. 174–175.) In support of this conclusion, we cited to a string
of cases and statutes, including section 1159. (Hess, at p. 175.)
In People v. West (1970) 3 Cal.3d 595 (West), we cited Hess
in stating that “[w]hen a defendant pleads not guilty, the court
lacks jurisdiction to convict him of an offense that is neither
charged nor necessarily included in the alleged crime.” (West at
p. 612, citing Hess, supra, 45 Cal.2d at pp. 174–175.) We quoted
Hess’s concern that “ ‘[d]ue process of law requires that an
accused be advised of the charges against him in order that he
may have a reasonable opportunity to prepare and present his
defense and not be taken by surprise by evidence offered at his
trial.’ ” (West, at p. 612, quoting Hess, at p. 175.)
In People v. Lohbauer (1981) 29 Cal.3d 364 (Lohbauer), we
said that a defendant cannot “be convicted of an offense which
is neither specifically charged in the accusatory pleading nor
‘necessarily included’ within a charged offense.” (Id. at p. 367.)
Echoing Hess and West, and citing section 1159, we explained
that “the requisite notice is nonetheless afforded if the lesser
offense is ‘necessarily included’ within the statutory definition
of the charged offense; in such event conviction of the included
offense is expressly authorized (§ 1159).” (Lohbauer, at p. 367.)
In People v. Reed (2006) 38 Cal.4th 1224 (Reed), we again
said: “A defendant may be convicted of an uncharged crime if,
but only if, the uncharged crime is necessarily included in the
charged crime. (§ 1159; Lohbauer, supra, 29 Cal.3d at pp. 368–
369.) The reason for this rule is settled. ‘ “ This reasoning rests
upon a constitutional basis: ‘Due process of law requires that
an accused be advised of the charges against him in order that
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PEOPLE v. FONTENOT
Liu, J., concurring and dissenting
he may have a reasonable opportunity to prepare and present
his defense and not be taken by surprise by evidence offered at
his trial.’ [Citation.]” ’ (Lohbauer, supra, at p. 368.) The
required notice is provided as to any charged offense and any
lesser offense that is necessarily committed when the charged
offense is committed.” (Id. at p. 1227.)
This language in Reed could not be clearer. We did not say
that a defendant may be convicted of an uncharged crime if, but
only if, the uncharged crime either is necessarily included in the
charged crime or is an attempt to complete the charged crime.
Instead, we said that due process requires notice of charges and
that such notice is given only for the charged offense and lesser-
included offenses. In stating this rule, we cited section 1159.
One year later, in People v. Sloan (2007) 42 Cal.4th 110, we
recited with approval the language from Reed quoted above.
(Sloan, at p. 116, quoting Reed, supra, 42 Cal.4th at p. 1127.)
Most recently, in People v. Bailey (2012) 54 Cal.4th 740(Bailey), we expressly recognized that a literal construction of
section 1159 was inconsistent with our prior cases. The
Attorney General argued in Bailey that section 1159’s language
authorizing conviction of any uncharged offense necessarily
included in the charged offense “ ‘or of an attempt to commit the
offense’ ” (Bailey, at p. 752, quoting § 1159, italics added by
Bailey) meant that “ ‘a conviction of attempt to commit the
substantive crime is deemed a lesser included offense of the
charged substantive offense, by operation of section 1159 itself’ ”
(Bailey, at p. 752). In rejecting this argument, we said: “The
disjunctive language [of section 1159] appears to support the
claim a trial court may reduce a defendant’s conviction to an
uncharged attempt if supported by the evidence. However, we
made the qualification that under section 1159, ‘[a] defendant
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PEOPLE v. FONTENOT
Liu, J., concurring and dissenting
may be convicted of an uncharged crime if, but only if, the
uncharged crime is necessarily included in the charged crime.’
(Sloan, supra, 42 Cal.4th at p. 116; see Reed, supra, 38 Cal.4th
at p. 1227; Lohbauer, supra, 29 Cal.3d at pp. 368–369.” (Ibid.)
Today’s opinion says “[t]he only time we have confronted
circumstances at all like those here was in Oates, and there we
upheld the defendant’s conviction for an attempt.” (Maj. opn.,
ante, at p. 23, citing People v. Oates (1904) 142 Cal. 12, 14.) But
it is readily apparent that Oates, a brief and somewhat cryptic
opinion, could not have provided Fontenot with sufficient notice
that he could be convicted of an uncharged attempt that was not
necessarily included in the charged crime. In Oates, we rejected
the argument that section 1159 had been enacted in violation of
a state constitutional provision prescribing the format of certain
statutes. (Oates, at pp. 13–14.) The meaning of section 1159
was not at issue, and we said nothing about it. The court today
says People v. Vanderbilt (1926) 199 Cal. 461, 464, cited Oates
“for the ‘well-established principle’ that pursuant to section
1159, a person may be convicted of an attempt to commit a
charged crime even if not [so] charged.” (Maj. opn., ante, at
p. 24, fn. 9.) But this overreads Vanderbilt, which cited Oates in
saying that a charged offense of sodomy may result in a
conviction for attempted sodomy and then, in the very next
sentence, explained that “an attempt to commit [sodomy] — a
lesser crime — is necessarily included within the greater and
completed offense.” (Vanderbilt, at p. 464.) In any event, Oates
and Vanderbilt long predated the line of cases discussed above,
which repeatedly “made the qualification that under section
1159, ‘ [a] defendant may be convicted of an uncharged crime if,
but only if, the uncharged crime is necessarily included in the
charged crime. ’ ” (Bailey, supra, 54 Cal.4th at p. 752.)
6
PEOPLE v. FONTENOT
Liu, J., concurring and dissenting
The court says our past statements “do not dictate our
decision in this case about the meaning and constitutionality of
section 1159” because none of our prior decisions “confronted a
situation like this one.” (Maj. opn., ante, at p. 23.) But the
above-quoted passage in Bailey construing section 1159 was not
dicta; it was reasoning essential to the decision. (See Sonic-
Calabasas A, Inc. v. Moreno (2013) 57 Cal.4th 1109, 1158
[“ ‘Dicta consists of observations and statements unnecessary to
the appellate court’s resolution of the case.’ ”].)
In any event, it is a non sequitur to say that “[j]ust as our
dicta in Bailey and other decisions do not control our decision
today, Fontenot could not reasonably rely on those statements
in preparing for trial in the face of section 1159’s unambiguous
and clearly relevant language, and the nearly ubiquitous
charging practice it establishes.” (Maj. opn., ante, at p. 25.)
Even if our past statements “do not control our decision today,”
it does not follow that “Fontenot could not reasonably rely on
those statements.” Indeed, it was “in the face of section 1159’s
unambiguous and clearly relevant language” (ibid.) that our
own decisions nevertheless stated, again and again, that a
defendant may be convicted of an uncharged crime only if it is
necessarily included in the charged crime.
In fact, People v. Braslaw (2015) 233 Cal.App.4th 1239 and
People v. Hamernik (2016) 1 Cal.App.5th 412 adopted exactly
the position that Fontenot urges here. Those cases held that a
defendant may not be convicted of an uncharged attempt unless
it is necessarily included in the charged crime, and Braslaw,
which predated Fontenot’s trial, squarely relied on the
“ ‘qualification’ ” of section 1159 stated in Bailey. (Braslaw, at
p. 1247, quoting Bailey, supra, 54 Cal.4th at p. 752; see
Hamernik, at pp. 426–427.) Braslaw and Hamernik confirm the
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PEOPLE v. FONTENOT
Liu, J., concurring and dissenting
reasonableness of Fontenot’s understanding of the law at the
time of his trial.
There is nothing wrong with acknowledging error in our
past statements. But when we do so, we should not fault
litigants like Fontenot for believing what we write in the Official
California Reports. It was not unreasonable for Fontenot to rely
on a legal proposition that turned out to be incorrect — a
proposition we repeated in multiple cases over six decades and
did not disavow until today.
Finally, today’s opinion alternatively contends that
Fontenot had sufficient notice because at the time of his trial,
we had not yet overruled People v. Martinez (1999) 20 Cal.4th
225. (Maj. opn., ante, at p. 25.) In a single sentence, without
elaboration, Martinez treated attempted kidnapping as a lesser
included offense of completed kidnapping. (Martinez, at p. 241.)
But, as the Attorney General concedes, and as today’s opinion
holds, our reasoning in Bailey as to why attempted escape is not
a lesser included offense of escape fatally undermined that
portion of Martinez, which contained no “reasoned
consideration” of the issue before us. (Maj. opn., ante, at p. 19.)
Further, the court acknowledges, “Martinez is scarcely
different” from Bailey in the essential contours of the facts and
legal question presented. (Ibid.) If the nonpaying parent in
Moss, a case about child support, could reasonably rely on Todd,
a case about spousal support, notwithstanding contrary statutes
because Todd’s logic applied equally to child support (see Moss,
supra, 17 Cal.4th at p. 429), then I see no reason why Fontenot,
whose case involves attempted kidnapping, could not reasonably
rely on Bailey, a case about attempted escape, notwithstanding
Martinez in light of the court’s conclusion that Bailey’s logic
applies equally to attempted kidnapping.
8
PEOPLE v. FONTENOT
Liu, J., concurring and dissenting
Readers of today’s opinion will no doubt detect a dark
irony here. On one hand, the court faults Fontenot for failing to
anticipate a change in the law — namely, today’s rejection of the
qualification of section 1159 repeatedly stated in Bailey and
prior cases. On the other hand, the court faults Fontenot for
correctly discerning a change in the law — namely, the holding
and reasoning of Bailey that plainly undermined Martinez’s
treatment of attempted kidnapping as a lesser included offense
of kidnapping. It is problematic enough that each of the court’s
rationales for finding sufficient notice is unpersuasive on its
own. But the damned-if-you-do-and-damned-if-you-don’t
quality of the two rationales together puts an especially fine
point on the unfairness of today’s decision.
I would reverse Fontenot’s conviction because at the time
of his trial the kidnapping charge did not provide him adequate
notice that he could be convicted of attempted kidnapping. In
all other respects, I join the opinion of the court.
LIU, J.
I Concur:
GROBAN, J.
9
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Fontenot
__________________________________________________________________________________
Unpublished Opinion XXX NP opn. filed 1/9/18 – 2d Dist., Div. 7
Original Appeal
Original Proceeding
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No. S247044
Date Filed: August 26, 2019
__________________________________________________________________________________
Court: Superior
County: Los Angeles
Judge: Gary J. Ferrari
__________________________________________________________________________________
Counsel:
Michael Allen and Melissa L. Camacho-Cheung, under appointments by the Supreme Court, for Defendant
and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters,
Assistant Attorney General, Susan Sullivan Pithey, Louis W. Karlin and Robert M. Snider, Deputy
Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Melissa L. Camacho-Cheung
California Appellate Project
520 South Grand Avenue, Fourth Floor
Los Angeles, CA 90071
(213) 243-0300
Robert M. Snider
Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
(213) 269-6192