People v. Medina

• Decision Date: 09 July 2007
• Docket Number: No. S137055.,S137055.
• Court: California Supreme Court
• Parties: The PEOPLE, Plaintiff and Respondent, v. Juan Manuel MEDINA, Defendant and Appellant.

61 Cal.Rptr.3d 677

41 Cal.4th 685

161 P.3d 187

The PEOPLE, Plaintiff and Respondent, v. Juan Manuel MEDINA, Defendant and Appellant.

No. S137055.

Supreme Court of California.

July 9, 2007.

John A. Colucci, under appointment by the Supreme Court, Studio City, for Defendant and Appellant.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Kristofer Jorstad, Marc E. Turchin and Richard S. Moskowitz, Deputy Attorneys General, for Plaintiff and Respondent.

CHIN, J.

Several Courts of Appeal have held that the crime of kidnapping during the commission of a carjacking (Pen.Code,¹ § 209.5, subd. (a); hereafter section 209.5(a)), requires a completed carjacking. (People v. Contreras (1997) 55 Cal.App.4th 760, 765, 64 Cal.Rptr.2d 233 (Contreras); see also People v. Jones (1999) 75 Cal. App.4th 616, 626, 89 Cal.Rptr.2d 485 (Jones), following Contreras.) We must decide whether attempted kidnapping during the commission of a carjacking also requires a completed carjacking, and whether attempted carjacking and attempted kidnapping are lesser included offenses² of an attempt to violate section 209.5(a). For reasons that follow, we conclude that a completed carjacking is not a prerequisite for an attempt to violate section 209.5(a), and that attempted carjacking and attempted kidnapping are lesser included offenses of an attempt to violate section 209.5(a).

FACTUAL AND PROCEDURAL BACKGROUND

On September 5, 2002, Long Beach Police Officer Mauk observed defendant recklessly driving northbound in southbound lanes. When he and another officer stopped defendant, defendant exited his vehicle and ran, refusing to stop as ordered by Officer Mauk, who then chased him on foot. With Officer Mauk in close pursuit, defendant ran to a supermarket parking lot and approached a parked white van.

Hubie Perez was sleeping in the front passenger seat of the van; he had left the key in the ignition. Along with his three young sons, Perez was waiting for his wife, Zoveida Rodriguez, to get off from work. Rodriguez arrived at the van and had started buckling the children into the backseat when she saw defendant enter the van and get into the driver's seat. She jumped towards defendant and elbowed him so he would get out. Defendant kept saying, "We got to go, we got to go," and shoved Rodriguez back. Rodriguez yelled: "You got to get out of my van. My kids are in the van. I have kids in here. Get out. Get out." Reaching for the ignition, defendant was unable to start it, and could not move the steering wheel or put the van in gear. After defendant and Perez looked at each other, defendant muttered, "Oh damn," and left. Defendant was later apprehended by other officers.

Later that day, an officer searched defendant's apartment and found a baggie containing methamphetamine and a heavily used glass pipe containing residue. To support a defense of voluntary intoxication, defendant presented an expert witness on "addiction medicine," who testified that defendant's panicked reaction on seeing police and other behavior were consistent with methamphetamine use.

A jury convicted defendant of five counts of attempted kidnapping during the commission of a carjacking, one count for each of the five members of the Perez family (§§ 664, 209.5(a) [counts 1-5]), and one count of attempted carjacking (§§ 664, 215, subd. (a) [count 6]). Defendant admitted suffering a prior felony conviction. Staying the sentence for attempted carjacking under section 654, the trial court sentenced him to the total of 37 years and eight months in prison. Defendant appealed. Among other claims, he argued that his convictions for attempted kidnapping during commission of a carjacking (§§ 664, 209.5(a)) must be reversed because the offense requires a completed carjacking for which there was insufficient evidence, and that attempted carjacking (§§ 664, 215) is a lesser included offense of attempted kidnapping during a carjacking, and he cannot be convicted of both.

The Court of Appeal majority modified defendant's custody credits, but otherwise affirmed the judgment. The majority explained that an attempt to commit a crime does not require that all elements of the crime be completed and proven: "Kidnapping during the commission of a carjacking is an amalgam of two offenses, carjacking and kidnapping, insofar as both of those offenses must be completed in order to commit the crime. To attempt to kidnap during commission of a carjacking, it is only required that the perpetrator intend to commit each of the combined offenses and make an ineffectual act towards accomplishment of the kidnapping during commission of the carjacking. An attempted kidnapping during commission of a carjacking is committed when the kidnapping is incomplete or the carjacking is incomplete, or both are incomplete." It found sufficient evidence to support the convictions for attempted kidnapping during the commission of a carjacking. (§§ 664, 209.5(a).) Based on its conclusion that a completed carjacking is not required, the Court of Appeal majority also rejected defendant's claim that an attempted carjacking and attempted kidnapping are lesser included offenses of attempted kidnapping during commission of a carjacking. To be convicted of the latter offense, the majority reiterated, defendant "had to intend to commit that offense (i.e., intend both kidnapping and carjacking) and perform at least one ineffectual act towards its commission. That ineffectual act might be an act towards kidnapping or an act towards carjacking, not necessarily an act towards each. If the act was directed at the kidnapping but not the carjacking, the elements of attempted carjacking would not be present. Therefore, attempted kidnapping during commission of a carjacking can be committed without committing attempted carjacking. Consequently, the latter offense is not a lesser included offense of the former." In any event, the majority concluded that even assuming error, the trial court's failure to instruct on the lesser included offenses was harmless.

In her dissent, Justice Ashmann-Gerst agreed with the majority that an attempt does not require that all elements of the particular crime be proven; however, she disagreed with its characterization of section 209.5(a) as an amalgam of the crimes kidnapping and carjacking. "Section 209.5, subdivision (a) establishes a unique crime that cannot be treated as two crimes stitched together. It has two elements — a kidnapping during the commission of a carjacking — and only the kidnapping element is subject to an attempt analysis. This is because the statute does not presuppose a completed kidnapping, but it does presuppose a completed carjacking." Focusing on the phrase "during the commission of a carjacking" (§ 209.5(a)), the dissent underscored that "[a] carjacking cannot be ineffectual during its commission. This, of course, would amount to a logical impossibility." The dissent concluded that because defendant did not move the Perez van, an element of carjacking, he did not complete the carjacking and, as such, could not be convicted of attempted kidnapping during the commission of a carjacking. (§§ 664, 209.5(a).) Justice Ashmann-Gerst also dissented from the majority's holding that attempted kidnapping and attempted carjacking are not lesser included offenses of an attempted violation of section 209.5(a).

We granted review limited to the issues noted above.

DISCUSSION

At issue here, section 209.5(a) provides: "Any person who, during the commission of a carjacking and in order to facilitate the commission of the carjacking, kidnaps another person who is not a principal in the commission of the carjacking shall be punished by imprisonment in the state prison for life with the possibility of parole." For section 209.5(a) to apply, the victim must be moved "beyond [what is] merely incidental to the commission of the carjacking" and "a substantial distance from the vicinity of the carjacking," and "the movement of the victim increases the risk of harm to the victim over and above that necessarily present in the crime of carjacking itself." (§ 209.5, subd. (b).)

In turn, carjacking is defined as "the felonious taking of a motor vehicle in the possession of another, from his or her person or immediate presence, or from the person or immediate presence of a passenger of the motor vehicle, against his or her will and with the intent to either permanently or temporarily deprive the person in possession of the motor vehicle of his or her possession, accomplished by means of force or fear." (§ 215, subd. (a); see People v. Lopez (2003) 31 Cal.4th 1051, 6 Cal.Rptr.3d 432, 79 P.3d 548 (Lopez) [carjacking requires asportation or movement].)³ The parties do not dispute that to be convicted of a kidnapping during the commission of a carjacking under section 209.5(a), a defendant must complete the carjacking. (Contreras, supra, 55 Cal. App.4th at p. 765, 64 Cal.Rptr.2d 233; Jones, supra, 75 Cal.App.4th at p. 625, 89 Cal.Rptr.2d 485.) The issue here, however, is an attempt to violate section 209.5(a).

A. Does the crime of attempted kidnapping during a carjacking require a completed carjacking?

An attempted kidnapping during the commission of a carjacking is not defined within section 209.5. We look, therefore, to general principles governing attempt crimes. (See People v. Toledo (2001) 26 Cal.4th 221, 227-230, 109 Cal. Rptr.2d 315, 26 P.3d 1051 (Toledo) [recognizing crime of attempted criminal threat]; see also Lopez, supra, 31 Cal.4th at p. 1059, 6 Cal.Rptr.3d 432, 79 P.3d 548.)

An attempt to commit a crime is comprised of "two elements: a specific intent to commit the crime, and a direct but ineffectual act done toward its commission." (§ 21a; see § 664 [prescribing punishment].) Other than forming the requisite criminal intent, a defendant need not commit an element of the...