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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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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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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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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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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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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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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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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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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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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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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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

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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

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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,

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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

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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

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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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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

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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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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

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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

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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,

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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

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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.

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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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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

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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.)

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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

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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

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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

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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

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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.)

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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

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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].)

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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

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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

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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.).

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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

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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.

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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

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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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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.)

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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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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.

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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