People v. Fontenot

Citation251 Cal.Rptr.3d 341,8 Cal.5th 57,447 P.3d 252
Decision Date26 August 2019
Docket NumberS247044
CourtUnited States State Supreme Court (California)
Parties The PEOPLE, Plaintiff and Respondent, v. John Reynold FONTENOT, Defendant and Appellant.

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.

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, 83 Cal.Rptr.2d 533, 973 P.2d 512 ( 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.


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 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 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, 143 Cal.Rptr.3d 647, 279 P.3d 1120 ( 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 regard to the issues surrounding attempted kidnapping." Taking the request from our appellate court colleagues to heart, we granted review.


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.


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, 75 P. 337 ( 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, 75 P. 337 [describing as "erroneous" the "assumption that [a] defendant [may] not be convicted of an attempt to commit the crime charged"].) We approved such a procedure both before and after deciding Oates . (See People v. Defoor (1893) 100 Cal. 150, 154, 34 P. 642 [before]; People v. Vanderbilt (1926) 199 Cal. 461, 464, 249 P. 867 [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, 127 S.Ct. 782, 166 L.Ed.2d 591 ( 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 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 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 (1981) 139 Vt. 535, 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 (2007) 591 Pa. 506, 919 A.2d 931, 941-942 [relying in part on Model Pen. Code, § 1.07, subd. (4)(b) to...

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