People v. Navarro

• Decision Date: 26 February 2007
• Docket Number: No. S132666.,S132666.
• Citation: 40 Cal.4th 668,54 Cal.Rptr.3d 766,151 P.3d 1177
• Court: California Supreme Court
• Parties: The PEOPLE, Plaintiff and Respondent, v. Horacio NAVARRO, Defendant and Appellant.

54 Cal.Rptr.3d 766

40 Cal.4th 668

151 P.3d 1177

The PEOPLE, Plaintiff and Respondent, v. Horacio NAVARRO, Defendant and Appellant.

No. S132666.

Supreme Court of California.

February 26, 2007.

Superior Court, Tulare County; David L. Allen^*, Judge.

Patricia L. Watkins, and William Joseph Arzbaecher III, Sacramento, under appointments by the Supreme Court, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Kathleen A. McKenna, Louis M. Vasquez and Brian Alvarez, Deputy Attorneys General, for Plaintiff and Respondent.

MORENO, J.

This court has long recognized that under Penal Code sections 1181, subdivision 6,¹ and 1260, an appellate court that finds that insufficient evidence supports the conviction for a greater offense may, in lieu of granting a new trial, modify the judgment of conviction to reflect a conviction for a lesser included offense. We granted review in this case to determine whether an appellate court may, upon finding insufficient evidence supports the judgment of conviction for one greater offense, substitute convictions for two lesser included offenses shown by the evidence at trial. We conclude that the statutory provisions at issue do not authorize such a procedure.

I. FACTS AND PROCEDURAL HISTORY

A. Defendant's Convictions

On the evening of March 16, 2002, Kim Mapel was working at a Subway restaurant in Goshen when defendant entered, revealed a gun in his waistband, and demanded money from the cash register. Mapel gave defendant about $200 from the register, whereupon defendant fled. A couple of days after the incident, Mapel was at a gas station near the Subway restaurant when she saw defendant hiding behind one of the pumps. Mapel contacted police, but defendant could not be found.

On the morning of April 2, 2002, Mapel was standing near her vehicle in a parking lot at San Joaquin Valley College where she was a student when defendant approached her and asked why she "rat[ted] on him for having a gun?" Defendant then stated he knew Mapel "had two pretty little girls at home" and that if Mapel "ratted," he would "use a gun" on her. Defendant thereafter ran away and Mapel drove home. Mapel told her boyfriend, Joe Martinez, with whom she lived, about the incident and he telephoned the police. Martinez drove around the neighborhood to see if Mapel had been followed and drove by a white car with four occupants. One of the men yelled out of the window, "What's up?" After Martinez returned home, he and Mapel noticed the same white car drive by their house.

At that point, a Tulare County Sheriffs detective responded to Martinez's call and spotted a white Chevy Capri, which matched Martinez's description. The detective activated his car's siren and a vehicle chase ensued. During the pursuit, two of the four vehicle occupants fled on foot. Officers eventually detained three of the occupants, but the fourth person escaped.

Meanwhile, a Plymouth Neon belonging to Lonetta Hogue was stolen from the area. A few minutes later, the Neon merged onto Highway 99 in Goshen and almost struck California Highway Patrol Officer Ryan Duran's patrol vehicle. A high-speed chase ensued, during which the Neon reached speeds of approximately 100 miles per hour. As the Neon attempted to navigate an off-ramp to Route 198, the car careened out of control and crashed. Duran saw the driver exit the Neon and run eastbound onto Route 198.

By this time, California Highway Patrol Officer Roy Frakes had responded to the scene and gave chase. James Petersen, who was driving `his pickup truck on Route 198, saw the chase and stopped his vehicle. The suspect, later identified as defendant, entered Petersen's pickup on the passenger's side and stated, "Drive or I'll kill ya." Petersen put the pickup in park, pulled the key out of the ignition, and jumped out. Defendant locked the passenger door, got behind the steering wheel and attempted to drive the pickup. At this point, Officer Frakes arrived and started to bang on the passenger's side window. Seeing that defendant was unarmed, Petersen returned to the pickup and pulled defendant out with the help of Officer Frakes and another man. Mapel later identified defendant in a field show-up as the man who robbed her at the Subway restaurant and the man who accosted her at San Joaquin Valley College.

The jury convicted defendant of attempted kidnapping during the commission of carjacking (Pen.Code, §§ 664, 209.5, subd. (a)) and attempted unlawful driving or taking of a vehicle (Pen.Code, § 664, Veh.Code, § 10851, subd. (a)) with respect to the incident involving victim Petersen. Defendant was also convicted of various other counts related to the Subway robbery, his threats against victim Mapel, and the high-speed chase.² The trial court sentenced defendant to a prison term totaling 23 years and four months, which included a term of two years and four months for attempted kidnapping during the commission of carjacking. (Calculated as one-third the midterm; see Pen.Code, § 1170.1, subd. (a).) Defendant filed a timely notice of appeal.

B. Proceedings in the Court of Appeal

As relevant here, defendant claimed on appeal that insufficient evidence supported his conviction for attempted kidnapping during the commission of a carjacking, which was based upon defendant's attempt to drive away Petersen's pickup truck. Defendant argued the offense required a completed carjacking, which in turn required asportation of the vehicle. (See People v. Lopez (2003) 31 Cal.4th 1051, 1055-1063, 6 Cal.Rptr.3d 432, 79 P.3d 548 [completed carjacking requires asportation of vehicle].) Since he was unable to move the vehicle, defendant asserted he did not commit a carjacking, and thus, did not commit an attempted kidnapping during the commission of carjacking. (See People v. Contreras (1997) 55 Cal.App.4th 760, 763-765, 64 Cal.Rptr.2d 233 [kidnapping during the commission of a carjacking requires a completed carjacking]; see also People v. Jones (1999) 75 Cal.App.4th 616 627, fn. 3, 89 Cal.Rptr.2d 485 [suggesting in dicta that attempted kidnapping during the commission of carjacking would require a completed carjacking].) The Attorney General conceded the issue and the Court of Appeal agreed with defendant that insufficient evidence supported his conviction for attempted kidnapping during the commission of carjacking.

However, the Attorney General urged the Court of Appeal to reduce defendant's conviction to reflect convictions for two lesser included offenses: attempted carjacking (§§ 664, 215, subd. (a)) and attempted simple kidnapping (§§ 664, 207, subd. (a)). The Attorney General argued sections 1181, subdivision 6, and 1260 (see discussion, post) authorized the Court of Appeal to so reduce defendant's conviction, since the evidence at trial reflected that defendant had committed both lesser included offenses and the jury's verdict necessarily reflected that the jury had found defendant had committed both lesser included offenses.

In his reply brief, defendant opposed the proposed modification, claiming that the Court of Appeal could at most modify the judgment to reflect a conviction for only attempted carjacking. Defendant noted that section 1181, subdivision 6, allows modification to a "lesser crime" in the singular and that no case had held that a single greater conviction could be modified to reflect multiple convictions for lesser offenses. Defendant also objected to the modification on state double jeopardy and estoppel grounds.

The Court of Appeal agreed with the Attorney General's proposal. Noting that the "`purpose for allowing an appellate court to modify the judgment to a lesser included offense is to "obviate the necessity of a new trial when the insufficiency of the evidence only goes to the degree of the crime,"`" the Court of Appeal commented that "[a]s long as an appellate court exercises its power to modify a conviction only `where the evidence would support a conviction of a lesser necessarily included offense, a lesser degree offense or an offense that was charged ...,' there is no due process violation. [Citation.]" The Court of Appeal concluded that both attempted carjacking and attempted kidnapping were lesser included offenses of attempted kidnapping during the commission of carjacking and both offenses were supported by substantial evidence at trial.

Addressing the arguments raised in defendant's reply brief, the Court of Appeal acknowledged that section 1181, subdivision 6, uses the term "lesser crime" in the singular, but noted that, under section 7, "the singular number includes the plural, ..." As for defendant's claim that no case law supported the proposed modification, the Court of Appeal acknowledged "the dearth of authority on this issue" but also asserted that "there is an equal lack of authority saying that we cannot undertake such a modification." The Court of Appeal additionally rejected defendant's state double jeopardy and estoppel arguments. We granted defendant's petition for review.

II. DISCUSSION

We address here the narrow question of whether an appellate court, upon finding insufficient evidence supports a conviction for one offense, may modify the judgment to reflect a conviction for two lesser included offenses. In arriving at an affirmative answer to that question, the Court of Appeal had to reach two subsidiary conclusions. First, the court concluded that attempted kidnapping during the commission of a carjacking required a completed carjacking, an issue conceded by the Attorney General. Second, the court concluded that both attempted carjacking and attempted simple kidnapping were lesser included offenses of that greater offense. We need not decide here whether the Court of Appeal was correct with respect to either of these conclusions.³ For purposes of this opinion, we will assume the truth of these conclusions and address the...