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Name: People v. Medina
Case #: B169140
Court: CA Court of Appeal
District 2 DCA
Division: 2
Opinion Date: 07/26/2005
Subsequent History: Rehg den. 8/25/05; Rev. GRANTED 10/26/05: S137055
Summary

Appellant was convicted of five counts of attempted kidnaping during the commission of a carjacking and one count of attempted carjacking. On appeal, he argued that the attempted kidnaping during commission of a carjacking convictions were not supported by substantial evidence because the evidence established that the carjackings were not complete. The appellate court rejected the argument. Although kidnap during the commission of a carjacking requires a completed carjacking, an attempted commission of the offense does not. There was sufficient evidence that appellant had the specific intent to kidnap the victims and carjack their vehicle, and sufficient evidence of ineffectual acts in an effort to do so. Further, the court did not err in failing to dismiss the attempted carjacking conviction because attempted carjacking is not a lesser included offense of attempted kidnaping during commission of a carjacking, and therefore appellant could be convicted of both offenses. Nor did the trial court err in failing to instruct sua sponte on the offenses of attempted kidnaping and attempted carjacking. Neither attempted kidnaping nor attempted carjacking are lesser included offenses of attempted kidnaping during the commission of a carjacking. Therefore, the court was not obliged to instruct on them sua sponte. Further, there was no evidence that the offenses committed were less than those charged. Any error would have been harmless. However, the court did err when it failed to instruct that asportation of the van was an element of the offense of kidnaping during commission of a carjacking. This error was harmless given the facts that appellant entered the van and attempted to drive it away. The trial court did not abuse its discretion in denying recusal of the Los Angeles County District Attorney’s Office and the prosecuting deputy because appellant physically attacked the deputy following the return of the verdicts. The motion to recuse was made and heard after the trial and after the prosecutor had filed his sentencing memorandum. The memorandum suggested no bias by the prosecutor. The trial court properly concluded that there was no conflict which would have justified recusal. Further, there was no Blakely error because consecutive sentences were imposed. This contention was rejected by People v. Black, which concluded that the imposition of an upper term or consecutive sentence does not implicate a defendant’s right to a jury trial.