8 Cal. 5th 57
Cal.2019Background
- In 2012 Fontenot grabbed a four‑year‑old (Madeline) in an apartment lobby and began pulling her toward the door; bystanders intervened and the victim was not carried away a substantial distance. Fontenot fled and later returned and was arrested.
- The People charged Fontenot with completed kidnapping under Penal Code § 207(a); trial was a bench trial (defendant waived jury).
- At trial the court found the conduct insufficient for completed kidnapping but found Fontenot guilty of attempted kidnapping, expressly finding the specific intent required for attempt; defense counsel had argued the facts supported only an attempt during closing and later objected that the information did not charge attempt.
- The Court of Appeal affirmed, relying on People v. Martinez, which treated attempted kidnapping as a lesser included offense of kidnapping; the Court of Appeal sought guidance from the Supreme Court because Bailey had cast doubt on Martinez.
- The California Supreme Court (Cuéllar, J.) held: (1) Penal Code § 1159 authorizes conviction for an attempt even if only the completed offense is charged and that reading is consistent with the Sixth Amendment and due process; (2) attempted kidnapping under § 207(a) is not a lesser included offense of completed kidnapping because attempt requires a distinct specific intent; but (3) Fontenot’s conviction stands because the factfinder (judge) expressly found the specific intent element and the defendant had constitutionally adequate notice under § 1159.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 1159 permits conviction for an uncharged attempt when only the completed offense is charged | § 1159 authorizes conviction for an attempt to commit the charged offense; such a statute provides constitutionally adequate notice | § 1159 cannot be read to permit conviction of an uncharged attempt where the attempt is not necessarily included in the charged offense because of notice and due process concerns | Held: § 1159 is constitutional and authorizes conviction for an uncharged attempt; charging a completed offense gives constitutionally sufficient notice in most cases that an attempt conviction is possible |
| Whether attempted kidnapping (§ 664/207(a)) is a lesser included offense of completed kidnapping (§ 207(a)) | People argued (and some precedent suggested) attempt is a lesser included offense | Fontenot argued attempt is not a lesser included offense because attempt requires a distinct specific intent that the completed crime lacks | Held: Attempted kidnapping under § 207(a) is not a lesser included offense of completed kidnapping because attempt requires a particularized specific intent beyond the general intent for the completed offense |
| Whether Fontenot had adequate notice and due process to be convicted of attempted kidnapping although charged only with completed kidnapping | The People: § 1159 and common charging practice gave adequate notice; courts’ dicta did not relieve defendants of notice | Fontenot: Precedent (including dicta in multiple cases and some Court of Appeal decisions) would reasonably lead him to believe conviction for an uncharged attempt required the attempt to be a lesser included offense; conviction violates due process | Held: Fontenot had adequate notice — § 1159, prevailing practice, and existing precedent (including Martinez still viable at trial time) meant no due process violation; conviction stands |
| Whether the conviction must be reversed because attempt includes an element (specific intent) not alleged/decided at trial | N/A | Fontenot argued appellate reduction or conviction invalid because specific intent was not found/charged | Held: No reversal — distinction from Bailey/Martinez is that here the factfinder at trial (the judge) expressly found the specific intent required for attempt, so all elements were proved beyond a reasonable doubt |
Key Cases Cited
- People v. Martinez, 20 Cal.4th 225 (1999) (treated attempted kidnapping as lesser included offense)
- People v. Bailey, 54 Cal.4th 740 (2012) (held attempted escape is not a lesser included offense of escape; emphasized specific‑intent distinction)
- People v. Oates, 142 Cal. 12 (1904) (upheld conviction for attempt when only completed crime was charged; early construction of § 1159)
- People v. Reed, 38 Cal.4th 1224 (2006) (stated rule that a defendant may be convicted of an uncharged crime only if it is necessarily included in the charged crime)
- People v. Sloan, 42 Cal.4th 110 (2007) (reiterated the ‘‘necessarily included’’ rule under § 1159)
- People v. Vanderbilt, 199 Cal. 461 (1926) (discussed § 1159 and the relationship between completed crimes and attempts)
- People v. Mayberry, 15 Cal.3d 143 (1975) (described kidnapping as requiring at least criminally culpable mental state regarding consent)
- People v. Oliver, 55 Cal.2d 761 (1961) (held kidnapping of an infant/child requires an illegal purpose or intent; influenced analysis of specific intent when victim is a child)