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Name: People v. Fontenot
Case #: S247044
Court: CA Supreme Court
District CalSup
Opinion Date: 08/26/2019

Opinion by Justice Cuéllar (joined by Chief Justice Cantil-Sakauye and Justices Chin and Corrigan). Justice Kruger filed a concurring opinion. Justice Liu filed a concurring and dissenting opinion, in which Justice Groban concurred.

Although attempted kidnapping is not a lesser included offense (LIO) of kidnapping (Pen. Code, § 207, subd. (a)), defendant charged with kidnapping had notice (based on Pen. Code, § 1159) that he could be convicted of attempted kidnapping. A girl named Destiny was babysitting Madeline and several other girls when Fontenot approached, grabbed Madeline’s arm, and tried to pull her away. Destiny grabbed Madeline’s other arm and kicked Fontenot. The other girls hit him with their dolls and he ran away. Fontenot was charged with kidnapping (Pen. Code, § 207, subd. (a)), but not attempted kidnapping. At a bench trial, the trial court found him guilty of attempted kidnapping and expressly found that he formed the specific intent for an attempt. On appeal Fontenot challenged his conviction because attempted kidnapping is not an LIO of kidnapping. The Court of Appeal, relying on People v. Martinez (1999) 20 Cal.4th 225, affirmed. The California Supreme Court granted review. Held: Affirmed. Pursuant to the Sixth Amendment, a defendant must be informed of the nature of the charges against him. Section 1159 provides that a defendant may be found guilty of any offense that is necessarily included in the charged crime or of an attempt to commit the offense. When a defendant is charged with a completed crime, this section provides the constitutionally-required notice that the defendant may be convicted of an attempt to commit the charged crime. The court also concluded that attempted kidnapping is not an LIO of kidnapping because an attempt requires the specific intent to commit the completed crime while kidnapping requires only the general intent to commit the physical act constituting the complete crime (overruling People v. Martinez (1999) 20 Cal.4th 225). However, Fontenot’s conviction did not need to be reversed because the trier of fact in this case (the trial court) expressly found Fontenot formed the specific intent required for an attempt. [Editor’s Note: Because the issue was not raised, the court did not consider whether section 207, subdivision (e) (which addresses the kidnapping of children and includes an intent requirement) means that attempted kidnapping is a lesser included offense of a completed kidnapping in cases involving young victims.]

The full opinion is available on the court’s website here: