In People v. Fontenot, the Supreme Court today overrules — gratuitously, according to one justice — its 20-year-old opinion in People v. Martinez (1999) 20 Cal.4th 225, which held that attempted kidnapping is a lesser included offense of completed kidnapping. It also affirms an attempted kidnapping conviction, wrongly, according to two other justices.
The defendant was convicted of attempted kidnapping even though he was charged only with completed kidnapping. The four-justice majority opinion by Justice Mariano-Florentino Cuéllar — for himself, Chief Justice Tani Cantil-Sakauye, Justice Ming Chin, and Justice Carol Corrigan — says that’s expressly allowed by Penal Code section 1159 regardless whether the attempt is a lesser included offense of the completed crime, and it rejects the defendant’s Sixth Amendment claim that he had insufficient notice of the charges against him. The majority states the statute gives clear notice and also comments, “prohibitions on criminal attempts are premised on — and in some sense convey — an intuitive idea: someone whose actions and intentions fall just short of constituting a completed crime shouldn’t necessarily get off scot-free.”
The court reverses the Second District, Division Seven, Court of Appeal, which, although recognizing that Martinez‘s precedential status was tenuous, had nonetheless considered itself bound to follow the decision. In its opinion, the appellate court had “respectfully suggest[ed] the Supreme Court provide further guidance with regard to the issues surrounding attempted kidnapping,” and the high court today says it took “the request from our appellate court colleagues to heart.”
Justice Leondra Kruger agrees that section 1159 permits the attempt conviction and that the statute is constitutional, but says the court should stop there and not overturn Martinez, because the conviction should be affirmed whether or not attempted kidnapping is a lesser included offense. The majority responds: “But whether attempted kidnapping is a lesser included offense of kidnapping is precisely the issue on which we granted review and an issue on which even the Court of Appeal asked us to provide guidance. That we also hold that section 1159 provides constitutionally sufficient notice does not detract from the need for guidance on this issue.” Justice Kruger also questions whether the majority is substantively right that Martinez is wrong, although she “express[es] no firm views on these issues here.”
Justice Goodwin Liu (joined by Justice Joshua Groban) agrees that Martinez should be overruled, but disagrees that “the defendant in this case had sufficient notice to permit conviction for attempted kidnapping on a charge of completed kidnapping.” Justice Liu asserts the notice section 1159 provides is not enough because “this court had repeatedly stated, with citations to section 1159, that a defendant could be convicted of an uncharged crime only if that crime is a lesser included offense of a charged crime.”