Supreme Court of California Justia
Docket No. S137055
People v. Medina

Filed 7/9/07

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,
S137055
v.
Ct.App. 2/2 B169140
JUAN MANUEL MEDINA,
Los Angeles County
Defendant and Appellant.
Super. Ct. No. NA054131

Several Courts of Appeal have held that the crime of kidnapping during the
commission of a carjacking (Pen. Code,1 § 209.5, subd. (a); hereafter section
209.5(a)), requires a completed carjacking. (People v. Contreras (1997) 55
Cal.App.4th 760, 765 (Contreras); see also People v. Jones (1999) 75 Cal.App.4th
616, 626 (Jones), following Contreras.) We must decide whether attempted
kidnapping during the commission of a carjacking also requires a completed
carjacking, and whether attempted carjacking and attempted kidnapping are lesser
included offenses2 of an attempt to violate section 209.5(a). For reasons that

1
All subsequent statutory references are to the Penal Code unless otherwise
noted.
2
We use the term “lesser included offense” interchangeably with the
equivalent term “necessarily included offense.” (People v. Ortega (1998) 19
Cal.4th 686, 704-705 (Ortega) (conc. & dis. opn. of Chin, J.).)
1


follow, we conclude that a completed carjacking is not a prerequisite for an
attempt to violate section 209.5(a), and that attempted carjacking and attempted
kidnapping are lesser included offenses of an attempt to violate section 209.5(a).
FACTUAL AND PROCEDURAL BACKGROUND
On September 5, 2002, Long Beach Police Officer Mauk observed
defendant recklessly driving northbound in southbound lanes. When he and
another officer stopped defendant, defendant exited his vehicle and ran, refusing to
stop as ordered by Officer Mauk, who then chased him on foot. With Officer
Mauk in close pursuit, defendant ran to a supermarket parking lot and approached
a parked white van.
Hubie Perez was sleeping in the front passenger seat of the van; he had left
the key in the ignition. Along with his three young sons, Perez was waiting for his
wife, Zoveida Rodriguez, to get off from work. Rodriguez arrived at the van and
had started buckling the children into the backseat when she saw defendant enter
the van and get into the driver’s seat. She jumped towards defendant and elbowed
him so he would get out. Defendant kept saying, “We got to go, we got to go,”
and shoved Rodriguez back. Rodriguez yelled: “You got to get out of my van.
My kids are in the van. I have kids in here. Get out. Get out.” Reaching for the
ignition, defendant was unable to start it, and could not move the steering wheel or
put the van in gear. After defendant and Perez looked at each other, defendant
muttered, “Oh damn,” and left. Defendant was later apprehended by other
officers.
Later that day, an officer searched defendant’s apartment and found a
baggie containing methamphetamine and a heavily used glass pipe containing
residue. To support a defense of voluntary intoxication, defendant presented an
expert witness on “addiction medicine,” who testified that defendant’s panicked
2
reaction on seeing police and other behavior were consistent with
methamphetamine use.
A jury convicted defendant of five counts of attempted kidnapping during
the commission of a carjacking, one count for each of the five members of the
Perez family (§§ 664, 209.5(a) [counts 1-5]), and one count of attempted
carjacking (§§ 664, 215, subd. (a) [count 6]). Defendant admitted suffering a prior
felony conviction. Staying the sentence for attempted carjacking under section
654, the trial court sentenced him to the total of 37 years and eight months in
prison. Defendant appealed. Among other claims, he argued that his convictions
for attempted kidnapping during commission of a carjacking (§§ 664, 209.5(a))
must be reversed because the offense requires a completed carjacking for which
there was insufficient evidence, and that attempted carjacking (§§ 664, 215) is a
lesser included offense of attempted kidnapping during a carjacking, and he cannot
be convicted of both.
The Court of Appeal majority modified defendant’s custody credits, but
otherwise affirmed the judgment. The majority explained that an attempt to
commit a crime does not require that all elements of the crime be completed and
proven: “Kidnapping during the commission of a carjacking is an amalgam of two
offenses, carjacking and kidnapping, insofar as both of those offenses must be
completed in order to commit the crime. To attempt to kidnap during commission
of a carjacking, it is only required that the perpetrator intend to commit each of the
combined offenses and make an ineffectual act towards accomplishment of the
kidnapping during commission of the carjacking. An attempted kidnapping during
commission of a carjacking is committed when the kidnapping is incomplete or
the carjacking is incomplete, or both are incomplete.” It found sufficient evidence
to support the convictions for attempted kidnapping during the commission of a
carjacking. (§§ 664, 209.5(a).) Based on its conclusion that a completed
3
carjacking is not required, the Court of Appeal majority also rejected defendant’s
claim that an attempted carjacking and attempted kidnapping are lesser included
offenses of attempted kidnapping during commission of a carjacking. To be
convicted of the latter offense, the majority reiterated, defendant “had to intend to
commit that offense (i.e., intend both kidnapping and carjacking) and perform at
least one ineffectual act towards its commission. That ineffectual act might be an
act towards kidnapping or an act towards carjacking, not necessarily an act
towards each. If the act was directed at the kidnapping but not the carjacking, the
elements of attempted carjacking would not be present. Therefore, attempted
kidnapping during commission of a carjacking can be committed without
committing attempted carjacking. Consequently, the latter offense is not a lesser
included offense of the former.” In any event, the majority concluded that even
assuming error, the trial court’s failure to instruct on the lesser included offenses
was harmless.
In her dissent, Justice Ashmann-Gerst agreed with the majority that an
attempt does not require that all elements of the particular crime be proven;
however, she disagreed with its characterization of section 209.5(a) as an amalgam
of the crimes kidnapping and carjacking. “Section 209.5, subdivision (a)
establishes a unique crime that cannot be treated as two crimes stitched together.
It has two elements—a kidnapping during the commission of a carjacking—and
only the kidnapping element is subject to an attempt analysis. This is because the
statute does not presuppose a completed kidnapping, but it does presuppose a
completed carjacking.” Focusing on the phrase “during the commission of a
carjacking” (§ 209.5(a)), the dissent underscored that “[a] carjacking cannot be
ineffectual during its commission. This, of course, would amount to a logical
impossibility.” The dissent concluded that because defendant did not move the
Perez van, an element of carjacking, he did not complete the carjacking and, as
4
such, could not be convicted of attempted kidnapping during the commission of a
carjacking. (§§ 664, 209.5(a).) Justice Ashmann-Gerst also dissented from the
majority’s holding that attempted kidnapping and attempted carjacking are not
lesser included offenses of an attempted violation of section 209.5(a).
We granted review limited to the issues noted above.
DISCUSSION
At issue here, section 209.5(a) provides: “Any person who, during the
commission of a carjacking and in order to facilitate the commission of the
carjacking, kidnaps another person who is not a principal in the commission of the
carjacking shall be punished by imprisonment in the state prison for life with the
possibility of parole.” For section 209.5(a) to apply, the victim must be moved
“beyond [what is] merely incidental to the commission of the carjacking” and “a
substantial distance from the vicinity of the carjacking,” and “the movement of the
victim increases the risk of harm to the victim over and above that necessarily
present in the crime of carjacking itself.” (§ 209.5, subd. (b).)
In turn, carjacking is defined as “the felonious taking of a motor vehicle in
the possession of another, from his or her person or immediate presence, or from
the person or immediate presence of a passenger of the motor vehicle, against his
or her will and with the intent to either permanently or temporarily deprive the
person in possession of the motor vehicle of his or her possession, accomplished
by means of force or fear.” (§ 215, subd. (a); see People v. Lopez (2003) 31
Cal.4th 1051 (Lopez) [carjacking requires asportation or movement].)3 The parties

3
Section 207, subdivision (a), which defines kidnapping generally, provides:
“Every person who forcibly, or by any other means of instilling fear, steals or
takes, or holds, detains, or arrests any person in this state, and carries the person
into another country, state, or county, or into another part of the same county, is
guilty of kidnapping.”
5


do not dispute that to be convicted of a kidnapping during the commission of a
carjacking under section 209.5(a), a defendant must complete the carjacking.
(Contreras, supra, 55 Cal.App.4th at p. 765; Jones, supra, 75 Cal.App.4th at p.
625.) The issue here, however, is an attempt to violate section 209.5(a).
A. Does the crime of attempted kidnapping during a carjacking
require a completed carjacking?
An attempted kidnapping during the commission of a carjacking is not
defined within section 209.5. We look, therefore, to general principles governing
attempt crimes. (See People v. Toledo (2001) 26 Cal.4th 221, 227-230 (Toledo)
[recognizing crime of attempted criminal threat]; see also Lopez, supra, 31 Cal.4th
at p. 1059.)
An attempt to commit a crime is comprised of “two elements: a specific
intent to commit the crime, and a direct but ineffectual act done toward its
commission.” (§ 21a; see § 664 [prescribing punishment].) Other than forming
the requisite criminal intent, a defendant need not commit an element of the
underlying offense. (See People v. Superior Court (Decker) (2007) 41 Cal.4th 1;
see also People v. Dillon (1983) 34 Cal.3d 441, 453-454 (Dillon); Jones, supra, 75
Cal.App.4th at p. 627.)4 We have explained that “under California law, ‘[a]n
attempt to commit a crime is itself a crime and [is] subject to punishment that
bears some relation to the completed offense.’ [Citation.] . . . [¶] . . . ‘One of the
purposes of the criminal law is to protect society from those who intend to injure
it. When it is established that the defendant intended to commit a specific crime

4
The parties do not dispute that there was sufficient evidence of defendant’s
specific intent to commit an attempted kidnapping during the commission of a
carjacking. (See People v. Perez (2000) 84 Cal.App.4th 856, 860 (Perez);
CALJIC No. 9.54.1 [“specific intent to facilitate the commission of the
carjacking”].)
6


and that in carrying out this intention he committed an act that caused harm or
sufficient danger of harm, it is immaterial that for some collateral reason he could
not complete the intended crime.’ [Citation.]” (Toledo, supra, 26 Cal.4th at pp.
229-230.)
Applying these general attempt principles, we conclude that a completed
carjacking is not required for an attempt to violate section 209.5(a). Section
209.5(a) provides that a “person who, during the commission of a carjacking and
in order to facilitate the commission of the carjacking, kidnaps another person,” is
subject to a sentence of life with the possibility of parole. As the People argue,
this language suggests that like the offense of robbery (§ 211), which combines
elements of theft and assault (People v. Sutton (1973) 35 Cal.App.3d 264, 270),
section 209.5(a) combines the offenses of kidnapping and carjacking. An
attempted robbery requires a specific intent to commit robbery and a direct,
ineffectual act (beyond mere preparation) toward its commission. (Dillon, supra,
34 Cal.3d at pp. 455-456; People v. Vizcarra (1980) 110 Cal.App.3d 858, 861.)
Under general attempt principles, commission of an element of the crime is not
necessary. (See ante, at p. 6.) As such, neither a completed theft (People v.
Bonner (2000) 80 Cal.App.4th 759, 764) nor a completed assault (see Vizcarra,
supra, 110 Cal.App.3d at pp. 862-863), is required for attempted robbery. (See
People v. Mullins (1992) 6 Cal.App.4th 1216, 1221 [to be guilty of related offense
of attempted kidnapping to commit robbery (§§ 664, 209, subd. (b)), defendant
need not complete kidnapping].) Likewise, the People contend only a specific
intent to facilitate the commission of the carjacking (CALJIC No. 9.54.1), and “a
direct but ineffectual act in furtherance of both the planned kidnapping and the
planned carjacking” are required for an attempt to violate section 209.5(a). (See §
21a.)
7
We agree with the People’s reasoning. Thus, we conclude that neither a
completed kidnapping nor a completed carjacking is necessary for an attempted
kidnapping during the commission of a carjacking
Defendant, however, argues to the contrary. Tracking the Court of Appeal
dissent, he maintains that section 209.5(a) establishes “a species of kidnapping in
which the completed commission of a carjacking provides the context.” He adds
that the phrase “during the commission of a carjacking” in section 209(a) should
be viewed “as an enhancement or aggravator which punishes more severely a
more serious species of kidnapping,” and that an attempted kidnapping during an
attempted carjacking is a “non-crime.” In other words, defendant maintains that
this conduct is not a violation of section 209.5. Defendant relies on the reasoning
of Contreras, supra, 55 Cal.App.4th at pages 763-764, which concerned a
completed violation of section 209.5(a). (See also Jones, supra, 75 Cal.App.4th at
pp. 624-625; id. at p. 627, fn. 3 [“it appears a completed carjacking would be a
requirement” for an attempt to violate § 209.5(a)].) Arguing that the Legislature
knows how to distinguish between a completed offense and attempted offense, he
also points to the wording of various sentence enhancement statutes as support.5

5
See, e.g., sections 422.75, subdivision (a) (“person who commits . . . or
attempts to commit a felony that is a hate crime”), 12021.5, subdivision (a)
(“person who carries a loaded or unloaded firearm . . . during the commission or
attempted commission of any street gang crimes”), 12022, subdivision (a)(1)
(“person who is armed with a firearm in the commission of a felony or attempted
felony”), 12022, subdivision (b)(1) (“person who personally uses a deadly or
dangerous weapon in the commission of a felony or attempted felony”), 12022.2,
subdivision (b) (person who wears bullet-resistant vest “in the commission or
attempted commission of a violent offense”), 12022.5, subdivision (a) (“person
who personally uses a firearm in the commission of a felony or attempted
felony”), 12022.7, subdivision (a) (“person who personally inflicts great bodily
injury . . . in the commission of a felony or attempted felony”).
8


Contrary to defendant’s argument, we conclude that section 209.5 should not be
treated differently from other criminal offense statutes for purposes of defining the
requirements of an attempt.
First, there is no indication that the Legislature, which did not define
attempts within section 209.5, intended the “during the commission of a
carjacking” language to remove section 209.5(a) from the ambit of the general
attempt statutes. (§§ 21a, 664.) As section 209.5(a)’s legislative history reveals,
the Legislature added section 209.5 in 1993 while creating the new crime of
carjacking (§ 215). (Stats. 1993, ch. 611, §§ 5, 6, p. 3508.) It previously included
“the attempt to take, a vehicle” in the definition of carjacking. (Sen. Bill No. 60
(1993-1994 Reg. Sess.) as amended Feb. 17, 1993.) After the Senate Judiciary
Committee criticized that “[p]roponents have not indicated why attempted
carjacking should be [punished] differently from virtually all other attempts,” the
Legislature deleted the phrase. (Sen. Com. on Judiciary, Analysis of Sen. Bill No.
60 (1993-1994 Reg. Sess.) as amended Feb. 17, 1993, p. 4; Sen. Bill No. 60
(1993-1994 Reg. Sess.) as amended Mar. 8, 1993; Lopez, supra, 31 Cal.4th at pp.
1059-1060.) We concluded that “the Legislature’s subsequent deletion of the
‘attempt to take’ language from the definition of carjacking reflected a desire to
maintain the general punishment scheme for attempted offenses, rather than a
commentary on the substantive elements of the crime.” (Lopez, supra, 31 Cal.4th
at p. 1059.) We likewise conclude that the Legislature most likely intended to
treat attempted kidnappings during the commission of a carjacking (§§ 664, 209.5)
the same way; that is, to be governed by the general attempt statutes (§§ 21a, 664).
(See Phelps v. Stostad (1997) 16 Cal.4th 23, 32 [“ ‘ “the various parts of a
statutory enactment must be harmonized by considering the particular clause or
section in the context of the statutory framework as a whole” ’ ”]; Dillon, supra,
34 Cal.3d at p. 453 [target offense need not be completed].) “A statute is passed
9
as a whole and not in parts or sections and is animated by one general purpose and
intent. Consequently, each part or section should be construed in connection with
every other part or section so as to produce a harmonious whole.” (2A Sutherland,
Statutory Construction (6th ed. 2000) § 46:05.)
Second, although defendant relies on Contreras’s interpretation of the
phrase “during the commission of a carjacking” (§ 209.5(a)), that case is
distinguishable and its reasoning does not extend to attempts. Defendant
Contreras was convicted of both carjacking (§ 215) and kidnapping during the
commission of a carjacking (§ 209.5(a)). Seeking reversal of the carjacking
conviction, Contreras maintained that carjacking is a necessarily included offense
of section 209.5 because the phrase “during the commission of a carjacking”
implies a completed carjacking. (Contreras, supra, 55 Cal.App.4th at p. 763.)
The Court of Appeal agreed.
The Contreras Court of Appeal looked to the special circumstances statute
(§ 190.2, subd. (a)(17)), to determine the meaning of “during the commission”
under section 209.5(a). Section 190.2, subdivision (a)(17), provides for either the
death penalty or life without possibility of parole if the “murder was committed
while the defendant was engaged in, or was an accomplice in, the commission of,
attempted commission of, or the immediate flight after committing, or attempting
to commit” one of the enumerated felonies. (Contreras, supra, 55 Cal.App.4th at
p. 764.) Noting a “distinct difference” between the commission and attempted
commission language in section 190.2, subdivision (a)(17), the Court of Appeal
reasoned that “[t]he Legislature must have meant the phrase, ‘during the
commission,’ as used in section 209.5 to have the same meaning as ‘in . . . the
commission’ as used in section 190.2, to wit, to refer to a completed offense. In
fact, there is no semantic difference between the two phrases.” (Contreras, supra,
55 Cal.App.4th at p. 764.) Thus, the Court of Appeal concluded that “a violation
10
of section 209.5 ‘during the commission of a carjacking’ requires a completed
offense of carjacking,” and held carjacking is a necessarily included offense of
section 209.5. (Contreras, supra, 55 Cal.App.4th at p. 765.)
Contreras is inapposite because it did not deal with an attempted violation
of section 209.5(a). Its emphasis on section 190.2, subdivision (a)(17), along with
defendant’s reliance on other sentence enhancement statutes, is misplaced here.
These statutes set forth an enhanced penalty for a conviction under certain
circumstances; they do not outline the elements of a substantive crime. The
distinction is important. (See People v. Le (1984) 154 Cal.App.3d 1, 11 [“if the
Legislature had intended to include attempts in the enhancement provisions, it
would have specifically stated the enhancement applies to the ‘commission or
attempted commission’ of specific crimes”].) As a practical matter, prison or jail
terms for attempt crimes are generally one-half of that for completed crimes. (§
664, subds. (a) & (b).) Because a sentence enhancement is “ ‘an additional term of
imprisonment added to the base term’ ” (Robert L. v. Superior Court (2003) 30
Cal.4th 894, 898), it makes sense that sentence enhancement statutes expressly
encompass both completed and attempted offenses, which would result in different
sentences. In contrast, attempts of most crimes are not defined within a statute,
but are governed by the general attempt statute (§ 21a). (See Toledo, supra, 26
Cal.4th at pp. 227-230.) Thus, it is reasonable that such attempt language would
not be necessarily included within section 209.5(a).
Defendant claims, however, that requiring a completed carjacking for an
attempted violation of section 209.5(a) would somehow further the Legislature’s
intent to protect victims from being removed from the scene of a carjacking. He
posits that “the evils to be remedied are better targeted by punishing those who
actually accomplish a carjacking.” We fail to see the logic in this argument, which
is also contrary to section 209.5(a)’s legislative history.
11
A “direct offshoot of robbery,” carjacking “was made a separate offense
because of perceived difficulties with obtaining convictions under the robbery
statute. [Citation.]” (Lopez, supra, 31 Cal.4th at pp. 1059, 1057.) The Legislature
was specifically concerned with the “ ‘considerable increase in the number of
persons who have been abducted, many have been subjected to the violent taking
of their automobile and some have had a gun used in the taking of the car. This
relatively “new” crime appears to be as much thrill-seeking as theft of a car. If all
the thief wanted was the car, it would be simpler to hot-wire the automobile
without running the risk of confronting the driver. People have been killed,
seriously injured, and placed in great fear, and this calls for a strong message to
discourage these crimes.’ ” (Id. at p. 1057, quoting Assem. Com. on Pub. Safety,
Analysis of Sen. Bill No. 60 (1993-1994 Reg. Sess.) July 13, 1993, p. 1.) Such
concern for the abduction and safety of a driver or passenger is particularly
evident in section 209.5, which provides for significant punishment if the victim is
also moved a substantial distance with the risk of increased harm. (§ 209.5, subd.
(b).) While simple carjacking exposes a defendant to a prison term of three, five,
or nine years (§ 215, subd. (b)) and simple kidnapping sets forth a prison term of
three, five, or eight years (§ 208, subd. (a)), kidnapping during the commission of
a carjacking carries a prison term of life with the possibility of parole. (§ 209.5,
subd. (a).)6 The Legislature evidently viewed the combination of kidnapping and
carjacking as far more dangerous and serious than either one alone.

6
The Legislature’s intent was to extend the same penalty in section 209
(kidnapping for the purpose of robbery) to section 209.5. (Sen. Com. on Judiciary,
Analysis of Sen. Bill No. 60 (1993-1994 Reg. Sess.) as amended Feb. 17, 1993, p.
2; see also Perez, supra, 84 Cal.App.4th at p. 860 [§§ 209.5 & 209 are
analogous].)
12


As discussed above, “ ‘one of the purposes of the criminal law is to protect
society from those who intend to injure it. When it is established that the
defendant intended to commit a specific crime and that in carrying out this
intention he committed an act that caused harm or sufficient danger of harm, it is
immaterial that for some collateral reason he could not complete the intended
crime.’ [Citation.]” (Toledo, supra, 26 Cal.4th at p. 230.) Indeed, “no public
purpose is served by drawing fine distinctions between those who have managed
to satisfy some element of the offense and those who have not.” (Dillon, supra, 34
Cal.3d at p. 453, fn. omitted.) Given the Legislature’s view on the seriousness and
dangerousness of section 209.5(a), it follows that the Legislature would perceive
attempts to commit section 209.5(a) the same way. We conclude that extending
the reach of this provision to encompass attempted kidnappings during an
attempted commission of a carjacking would send a “strong message to
discourage” such crimes. (Assem. Com. on Pub. Safety, Analysis of Sen. Bill No.
60 (1993-1994 Reg. Sess.) July 13, 1993, p. 1.)
Based on the foregoing, we conclude the rule of lenity does not assist
defendant. (People v. Avery (2002) 27 Cal.4th 49, 58 [“although true ambiguities
are resolved in a defendant’s favor, an appellate court should not strain to interpret
a penal statute in defendant’s favor if it can fairly discern a contrary legislative
intent”].)
Next, we address defendant’s sufficiency of evidence claim in view of our
holding above. “Our role is limited here. We review the entire record in the light
most favorable to the judgment, and affirm the convictions as long as a rational
trier of fact could have found guilt based on the evidence and inferences drawn
therefrom. [Citations.]” (People v. Lewis & Oliver (2006) 39 Cal.4th 970, 1044.)
We agree with the Court of Appeal majority that sufficient evidence supports
13
defendant’s five convictions for attempted kidnapping during the commission of a
carjacking.
Defendant’s actions provide clear circumstantial evidence of his specific
intent to kidnap the Perez family to facilitate a carjacking. Fleeing from the
police, defendant ran to the Perez van, where he jumped into the driver’s seat and
tried to start the engine. Struggling with Rodriguez, defendant urged, “[w]e got to
go, we got to go.” All the while wrestling with Rodriguez, who yelled at him to
get out because her “kids [were] in the van,” he continued in vain to try to start the
engine and move the van. When he saw the officer approaching the van,
defendant ran off. The reasonable inference is that defendant intended to take the
van and its occupants in order to escape from the police; there was also no
evidence defendant told the family to get out.
There was also sufficient evidence of defendant’s direct but ineffectual acts
to commit a kidnapping during the commission of a carjacking. (§§ 209.5(a),
21a.) There was uncontroverted evidence that defendant jumped into the Perez
van and tried in vain to drive it. Despite the struggle with Rodriguez, defendant
tried to start the ignition, put the van in gear, and move the steering wheel.
Defendant’s actions were ineffectual because he failed to start and move the van,
thus failing to complete a carjacking or a kidnapping. However, we agree with the
People that defendant’s conduct from the time he approached the van until he gave
up trying to start the engine and ran away was a direct but ineffectual act in
furtherance of a kidnapping during the commission of a carjacking.
Based on the foregoing, we conclude that defendant’s five convictions for
attempted kidnapping during the commission of a carjacking should be affirmed.
14
B. Are attempted carjacking and attempted kidnapping lesser
included offenses of attempted kidnapping during a carjacking?
As discussed above, the Court of Appeal majority held that neither
attempted carjacking nor attempted kidnapping were lesser included offenses of an
attempt to violate section 209.5(a). (See ante, at pp. 3-4.) Defendant argues the
majority erred because “acts which facilitate the carjacking through the
kidnapping are acts toward both crimes. So, where the intent of the kidnapping is
to carjack, then the ineffectual acts toward the kidnapping must, necessarily, also
be acts toward the carjacking.” Thus, defendant asserts his conviction for the
lesser included offense of attempted carjacking must be reversed. (People v.
Pearson (1986) 42 Cal.3d 351, 355 (Pearson) [“multiple convictions may not be
based on necessarily included offenses”]; People v. Moran (1970) 1 Cal.3d 755,
763 (Moran) [“If the evidence supports the verdict as to a greater offense, the
conviction of that offense is controlling, and the conviction of the lesser offense
must be reversed”].)
The People concede that both attempt offenses are lesser included offenses,
but disagree with defendant on the consequences that flow from this proposition.
Even if the trial court did not instruct sua sponte on the lesser included offense of
attempted kidnapping as to counts 1 through 5, and attempted carjacking as to
counts 2 through 5, the People contend there was no prejudicial error.
Although a defendant has a constitutional right to have a jury determine
every material issue presented by the evidence and the failure to so instruct is
error, a trial court is not required to instruct the jury as to all lesser included
offenses, only those that “find substantial support in the evidence.” (People v.
Haley (2004) 34 Cal.4th 283, 312.) In this context, substantial evidence is
evidence from which reasonable jurors could conclude “ ‘that the lesser offense,
but not the greater, was committed.’ ” (Ibid.) In this case, there was no
15
substantial evidence that the offense committed was less than that charged. As the
Court of Appeal majority concluded: “If the jury found that [defendant] intended
to kidnap the Perez family, it must have also found that he intended to carjack, as
he was running from the police and jumped into the van and attempted to start it,
knowing the Perez family was inside. If [defendant] had successfully started the
van and driven away, he would have simultaneously committed carjacking and
kidnapping. There was no evidence he intended only one of those offenses and
not the other, or, under the facts, he would have committed only one.”
Defendant also argues the Court of Appeal majority erroneously failed to
dismiss count 6 against Rodriguez as duplicative because he was convicted of the
greater offense of kidnapping during the commission of a carjacking in count 1.
However, the People contend, reversal is not required because the court’s stay of
the count 6 sentence (§ 654) more than adequately protected defendant from
double punishment. At bottom, the People ask that we modify the so-called
Moran/Pearson rule to permit courts to stay, instead of strike, convictions for
lesser included offenses to prevent defendants from receiving a windfall if a
greater offense conviction is reversed or otherwise rendered unenforceable. (See
Moran, supra, 1 Cal.3d at p. 763; Pearson, supra, 42 Cal.3d at p. 355.) Defendant
counters that this issue is beyond the scope of issues on which we granted review,
and, more importantly, the People offer no sound basis to abandon this long-
standing rule. Because this issue is “fairly included” within the issues on which
we granted review (Cal. Rules of Court, rule 8.516(b)(1)), we will address it. For
reasons that follow, we conclude that both attempted carjacking and attempted
kidnapping are lesser included offenses of an attempt to violate section 209.5(a),
and that the rule against multiple convictions for lesser included offenses should
remain unchanged.
16
“Under California law, a lesser offense is necessarily included in a greater
offense if either the statutory elements of the greater offense, or the facts actually
alleged in the accusatory pleading, include all the elements of the lesser offense,
such that the greater cannot be committed without also committing the lesser.
[Citations.]” (People v. Birks (1998) 19 Cal.4th 108, 117 (Birks).) In general, a
defendant “may be convicted of any number of the offenses charged” (§ 954), but
section 654 prohibits multiple punishment. “When section 954 permits multiple
conviction, but section 654 prohibits multiple punishment, the trial court must stay
execution of sentence on the convictions for which multiple punishment is
prohibited. [Citations.]” (People v. Reed (2006) 38 Cal.4th 1224, 1227 (Reed).)
However, an exception to this general rule allowing multiple convictions prohibits
multiple convictions based on necessarily included offenses. (Ibid.; Pearson,
supra, 42 Cal.3d at p. 355.)
At the outset, we agree with both parties that attempted carjacking (§§ 664,
215) and attempted kidnapping (§§ 664, 207) are lesser included offenses of
attempted kidnapping during the commission of a carjacking (§§ 664, 209.5(a)).
If a defendant has a specific intent to commit both a kidnapping and a
simultaneous carjacking intended to facilitate that kidnapping, it follows that he
necessarily has the intent to commit each offense individually. Likewise, if a
defendant performs a direct but ineffectual act towards both the kidnapping and
carjacking, that same act also constitutes a direct but ineffectual act towards each
offense individually. In other words, attempted kidnapping during the commission
of a carjacking cannot be committed without also committing an attempted
carjacking or an attempted kidnapping. (See Birks, supra, 19 Cal.4th at p. 117.)
However, we reject the People’s urging to modify the rule against multiple
convictions based on necessarily included offenses. (Pearson, supra, 42 Cal.3d at
p. 355; Moran, supra, 1 Cal.3d at p. 763.) Notwithstanding several cases which
17
have questioned the foundation of the Pearson rule, including Pearson itself, we
see no justification to modify the rule here. (See Pearson, supra, 42 Cal.3d at p.
355 [“the reason for the rule is unclear”]; People v. Scheidt (1991) 231 Cal.App.3d
162, 168 [same]; People v. Rush (1993) 16 Cal.App.4th 20, 29 (dis. opn. of
Woods, J.) [same; rule “is of murky origin”].)7 There is logic behind the rule
prohibiting convictions for both a greater offense and a necessarily included
offense: “If a defendant cannot commit the greater offense without committing
the lesser, conviction of the greater is also conviction of the lesser. To permit
conviction of both the greater and the lesser offense ‘ “ ‘would be to convict twice
of the lesser.’ ” ’ (People v. Fields (1996) 13 Cal.4th 289, 306.) There is no
reason to permit two convictions for the lesser offense.” (Ortega, supra, 19
Cal.4th at p. 705 (conc. & dis. opn. of Chin, J.).) There is also no prejudice to the
People if a court strikes, rather than stays, the conviction. If a greater offense is
reversed on appeal, the lesser included offense may be revived by operation of
law. (§ 1260; see People v. Kelly (1992) 1 Cal.4th 495, 528 [prosecutor has option
to retry greater offense or accept reduction to lesser included offense]; People v.
Edwards (1985) 39 Cal.3d 107, 118 [same].)8

7
A long line of cases has affirmed the rule under Pearson (see, e.g., Reed,
supra, 38 Cal.4th at p. 1227; People v. Montoya (2004) 33 Cal.4th 1031, 1034;
People v. Sanchez
(2001) 24 Cal.4th 983, 987; People v. King (2000) 81
Cal.App.4th 472, 475; People v. Watterson (1991) 234 Cal.App.3d 942, 946), and
cases long predating Pearson have held similarly. (See, e.g., People v. Greer
(1947) 30 Cal.2d 589, 598-599 [defendant may not be convicted for both greater
and lesser offenses]; People v. Miranda (1967) 254 Cal.App.2d 517, 525 [rule
against convictions for both greater and lesser offenses “has long been established
and consistently followed”].)
8
We therefore do not address defendant’s double jeopardy and due process
claims.

18


Based on our conclusion that defendant’s five convictions for attempted
kidnapping during the commission of a carjacking be affirmed (in particular, count
1 with respect to victim Rodriguez) (see ante, at p. 14), his conviction for count 6
for the lesser included offense of attempted carjacking against Rodriguez is
reversed.
DISPOSITION
We reverse the Court of Appeal’s judgment to the extent it is inconsistent
with our opinion. The matter is remanded to that court with directions to strike
count 6 for attempted carjacking. In all other respects, the judgment is affirmed.
CHIN, J.
WE CONCUR:

GEORGE, C.J.
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
MORENO, J.
CORRIGAN, J.

19



See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Medina
__________________________________________________________________________________

Unpublished Opinion


Original Appeal
Original Proceeding
Review Granted
XXX 131 Cal.App.4th 493
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S137055
Date Filed: July 9, 2007
__________________________________________________________________________________

Court:

Superior
County: Los Angeles
Judge: Mark C. Kim

__________________________________________________________________________________

Attorneys for Appellant:

John A. Colucci, under appointment by the Supreme Court, for Defendant and Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson, Chief Assistant Attorney
General, Pamela C. Hamanaka, Assistant Attorney General, Kristofer Jorstad, Marc E. Turchin and Richard
S. Moskowitz, Deputy Attorneys General, for Plaintiff and Respondent.



Counsel who argued in Supreme Court (not intended for publication with opinion):

John A. Colucci
13273 Ventura Boulevard, Suite 101
Studio City, CA 91604
(818) 990-1507

Richard S. Moskowitz
Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
(213) 897-2286


Opinion Information
Date:Docket Number:
Mon, 07/09/2007S137055

Parties
1Medina, Juan Manuel (Defendant and Appellant)
Represented by John A. Colucci
Law Office of John A. Colucci
13273 Ventura Boulevard, Suite 101
Studio City, CA

2Medina, Juan Manuel (Defendant and Appellant)
Represented by California Appellate Project - La
Jonathan Steiner , Executive Director
520 S. Grand Avenue, Suite 400
Los Angeles, CA

3The People (Plaintiff and Respondent)
Represented by Richard S. Moskowitz
Office of the Attorney General
300 S. Spring Street, Suite 300
Los Angeles, CA


Disposition
Jul 9 2007Opinion: Affirmed in part/reversed in part

Dockets
Sep 6 2005Petition for review filed
  appellant Juan Manuel Medina
Sep 8 2005Received Court of Appeal record
 
Oct 26 2005Petition for review granted; issues limited (criminal case)
  Petition for review GRANTED. The issues to be briefed and argued are limited to the following: (1) Can a defendant commit the crime of attempted kidnapping during the commission of carjacking (Pen. Code, ? 664/209.5) by attempting to kidnap the victim in an attempt to commit a carjacking, or does the crime require the completed commission of the crime of carjacking in the course of an attempted kidnapping? (2) Are attempted kidnapping and attempted carjacking lesser included offenses of attempted kidnapping during the commission of carjacking? Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, and Moreno, JJ.
Nov 16 2005Counsel appointment order filed
  Upon request of appellant for appointment of counsel, John Colucci is hereby appointed to represent appellant on the appeal now pending in this court. Appellant's brief on the merits must be served and filed on or before thirty (30) days from the date of this order.
Dec 14 2005Request for extension of time filed
  to file appellant [Juan M.Medina's) opening brief/merits to January 17, 2006.
Dec 22 2005Extension of time granted
  to 1-17-06 for appellant to file the opening brief on the merits.
Jan 9 2006Request for extension of time filed
 
Jan 17 2006Extension of time granted
  to 2-17-06 for appellant to file the opening brief on the merits.
Feb 16 2006Request for extension of time filed
  to file appellant's opening brief/merits to March 20, 2006.
Feb 22 2006Extension of time granted
  to 3-20-06 for aplt to file the opening brief on the merits. No further extensions of time are contemplated.
Mar 20 2006Request for extension of time filed
  to file opening brief on the merits. Requesting to March 30, 2006.
Mar 24 2006Opening brief on the merits filed
  Juan Manuel Medina, appellant John A. Colucci, counsel
Mar 24 2006Extension of time granted
  to 3-30-06 for appellant to file the opening brief on the merits. No further extensions of time will be granted.
Apr 19 2006Compensation awarded counsel
  Atty Colucci
Apr 24 2006Request for extension of time filed
  respondent's answer brief/merits to 6-23-06
Apr 28 2006Extension of time granted
  To June 23, 2006 to file respondent's answer brief on the merits.
Jun 14 2006Answer brief on the merits filed
  by Respondent, Attorney General
Jun 14 2006Request for judicial notice filed (granted case)
  by Respondent, Attorney General
Jul 3 2006Request for extension of time filed
  appellant's counsel request to August 4, 2006 to file appellant's reply brief on the merits.
Jul 12 2006Extension of time granted
  The time to file appellant's reply brief on the merits is extended to 8-4-06.
Aug 4 2006Request for extension of time filed
  reply brief/merits to 9-5-06 Appellant Juan Manuel Medina Attorney John A. Colucci
Aug 14 2006Extension of time granted
  Time extended to 9-5-06 for appellant to file the reply brief on the merits.
Sep 5 2006Received:
  Request For Permission To File Oversize Reply Brief On The Merits from Juan Manuel Medina, appellant John A. Colucci, counsel
Sep 11 2006Reply brief filed (case fully briefed)
  Juan Medina, defendant and appellant John Colucci, counsel (permission granted for filing of oversize brief)
Apr 3 2007Case ordered on calendar
  to be argued Tuesday, May 1, 2007, at 1:30 p.m., in San Francisco
May 1 2007Cause argued and submitted
 
May 3 2007Request for judicial notice granted
  The Respondent's request for judicial notice of certain materials of legislative history, filed on June 14, 2006, is granted.
Jul 6 2007Notice of forthcoming opinion posted
 
Jul 9 2007Opinion filed: Affirmed in part, reversed in part
  We reverse the Court of Appeal's judgement to the extent it is inconsistent with our opinion. The matter is remanded to that court with directions to strike count 6 for attempted carjacking. In all other respects, the judgement is affirmed. Opinion by: Chin, J. -----joined by: George, C. J., Kennard, Baxter, Werdegar, Moreno, and Corrigan, JJ.
Aug 14 2007Remittitur issued (criminal case)
 
Aug 17 2007Note:
  case record will be sent to the Court of Appeal
Oct 15 2007Compensation awarded counsel
  Atty Colucci

Briefs
Mar 24 2006Opening brief on the merits filed
 
Jun 14 2006Answer brief on the merits filed
 
Sep 11 2006Reply brief filed (case fully briefed)
 
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website