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Name: People v. Navarro
Case #: F044291
Court: CA Court of Appeal
District 5 DCA
Opinion Date: 02/25/2005
Subsequent History: Rev. Granted: 6/8/05 (S132666)

A conviction of attempted kidnapping during the commission of a carjacking requires sufficient evidence of a completed carjacking (i.e., movement of the car). Where the evidence showed only an attempted carjacking, the conviction under Penal Code section 664/209.5, subdivision (a), was not supported by sufficient evidence. The Court of Appeal modified the conviction into two separate offenses for attempted kidnapping (sec. 664/207) and attempted carjacking (sec. 664/215, subd. (a)), with the sentence on one of these two new convictions being stayed under section 654. The Court of Appeal held that this modification of appellant’s conviction from one offense into two lesser offenses did not violate the statutory language of Penal Code section 1181, subdivision 6, even though that statute says that an offense may be reduced to a “lesser crime,” because Penal Code section 7 provides that, in construing the Penal Code, “the singular number includes the plural.” The Court of Appeal also held that this remedy of modifying a greater offense into two lesser offenses did not violate state double-jeopardy principles or penalize appellant for exercising his right to appeal (see People v. Henderson (1963) 60 Cal.2d 482, 495-497), even though it will cause appellant to have two strikes rather than one if he reoffends in the future, because the remedy results in an 18-month reduction of his sentence now, and because a “mere potential for increased punishment sometime in the future [i.e., based on the additional strike] is not enough to cause us to declare a violation of constitutional principles now.” The Court of Appeal also rejected appellant’s contention that the prosecutor’s position at trial that attempted carjacking was the only lesser-included offense on which the jury should be instructed should estop the People from contending on appeal that the conviction be modified so as to include a conviction of attempted kidnapping.