Supreme Court of California Justia
Docket No. S132666
People v. Navarro


Filed 2/26/07

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,
S132666
v.
) Ct.App.
5
F044291
HORACIO NAVARRO,
Tulare
County
Defendant and Appellant.
Super. Ct. Nos. CRF020088051,
) CRF020098496

This court has long recognized that under Penal Code sections 1181,
subdivision 6,1 and 1260, an appellate court that finds that insufficient evidence
supports the conviction for a greater offense may, in lieu of granting a new trial,
modify the judgment of conviction to reflect a conviction for a lesser included
offense. We granted review in this case to determine whether an appellate court
may, upon finding insufficient evidence supports the judgment of conviction for
one greater offense, substitute convictions for two lesser included offenses shown
by the evidence at trial. We conclude that the statutory provisions at issue do not
authorize such a procedure.

1
Subsequent unspecified references will be to the Penal Code.
1



I. FACTS AND PROCEDURAL HISTORY
A. Defendant’s Convictions
On the evening of March 16, 2002, Kim Mapel was working at a Subway
restaurant in Goshen when defendant entered, revealed a gun in his waistband, and
demanded money from the cash register. Mapel gave defendant about $200 from
the register, whereupon defendant fled. A couple of days after the incident, Mapel
was at a gas station near the Subway restaurant when she saw defendant hiding
behind one of the pumps. Mapel contacted police, but defendant could not be
found.
On the morning of April 2, 2002, Mapel was standing near her vehicle in a
parking lot at San Joaquin Valley College where she was a student when
defendant approached her and asked why she “rat[ted] on him for having a gun?”
Defendant then stated he knew Mapel “had two pretty little girls at home” and that
if Mapel “ratted,” he would “use a gun” on her. Defendant thereafter ran away
and Mapel drove home. Mapel told her boyfriend, Joe Martinez, with whom she
lived, about the incident and he telephoned the police. Martinez drove around the
neighborhood to see if Mapel had been followed and drove by a white car with
four occupants. One of the men yelled out of the window, “What’s up?” After
Martinez returned home, he and Mapel noticed the same white car drive by their
house.
At that point, a Tulare County Sheriff’s detective responded to Martinez’s
call and spotted a white Chevy Capri, which matched Martinez’s description. The
detective activated his car’s siren and a vehicle chase ensued. During the pursuit,
two of the four vehicle occupants fled on foot. Officers eventually detained three
of the occupants, but the fourth person escaped.
Meanwhile, a Plymouth Neon belonging to Lonetta Hogue was stolen from
the area. A few minutes later, the Neon merged onto Highway 99 in Goshen and
2

almost struck California Highway Patrol Officer Ryan Duran’s patrol vehicle. A
high-speed chase ensued, during which the Neon reached speeds of approximately
100 miles per hour. As the Neon attempted to navigate an off-ramp to Route 198,
the car careened out of control and crashed. Duran saw the driver exit the Neon
and run eastbound onto Route 198.
By this time, California Highway Patrol Officer Roy Frakes had responded
to the scene and gave chase. James Petersen, who was driving his pickup truck on
Route 198, saw the chase and stopped his vehicle. The suspect, later identified as
defendant, entered Petersen’s pickup on the passenger’s side and stated, “Drive or
I’ll kill ya.” Petersen put the pickup in park, pulled the key out of the ignition, and
jumped out. Defendant locked the passenger door, got behind the steering wheel
and attempted to drive the pickup. At this point, Officer Frakes arrived and started
to bang on the passenger’s side window. Seeing that defendant was unarmed,
Petersen returned to the pickup and pulled defendant out with the help of Officer
Frakes and another man. Mapel later identified defendant in a field show-up as
the man who robbed her at the Subway restaurant and the man who accosted her at
San Joaquin Valley College.
The jury convicted defendant of attempted kidnapping during the
commission of carjacking (Pen. Code, §§ 664, 209.5, subd. (a)) and attempted
unlawful driving or taking of a vehicle (Pen. Code, § 664, Veh. Code, § 10851,
subd. (a)) with respect to the incident involving victim Petersen. Defendant was
also convicted of various other counts related to the Subway robbery, his threats
against victim Mapel, and the high-speed chase.2 The trial court sentenced

2
The jury additionally convicted defendant of second degree robbery (Pen.
Code, §§ 211, 212.5) with an enhancement for firearm use (id., §§ 12022.5, subd.
(a), 12022.53, subd. (b)) and dissuading a witness or victim by threat (id., § 136.1,
subd. (c)(1)). Defendant pleaded no contest to charges of unlawful driving or
taking of a vehicle (Veh. Code, § 10851, subd. (a)), driving with disregard for
3



defendant to a prison term totaling 23 years and four months, which included a
term of two years and four months for attempted kidnapping during the
commission of carjacking. (Calculated as one-third the midterm; see Pen. Code,
§ 1170.1, subd. (a).) Defendant filed a timely notice of appeal.
B. Proceedings in the Court of Appeal
As relevant here, defendant claimed on appeal that insufficient evidence
supported his conviction for attempted kidnapping during the commission of a
carjacking, which was based upon defendant’s attempt to drive away Petersen’s
pickup truck. Defendant argued the offense required a completed carjacking,
which in turn required asportation of the vehicle. (See People v. Lopez (2003) 31
Cal.4th 1051, 1055-1063 [completed carjacking requires asportation of vehicle].)
Since he was unable to move the vehicle, defendant asserted he did not commit a
carjacking, and thus, did not commit an attempted kidnapping during the
commission of carjacking. (See People v. Contreras (1997) 55 Cal.App.4th 760,
763-765 [kidnapping during the commission of a carjacking requires a completed
carjacking]; see also People v. Jones (1999) 75 Cal.App.4th 616, 627, fn. 3
[suggesting in dicta that attempted kidnapping during the commission of
carjacking would require a completed carjacking].) The Attorney General
conceded the issue and the Court of Appeal agreed with defendant that insufficient
evidence supported his conviction for attempted kidnapping during the
commission of carjacking.

safety while evading a pursuing officer (Veh. Code, § 2800.2, subd. (a)), receiving
stolen property (Pen. Code, § 496, subd. (a)), transporting methamphetamine
(Health & Saf. Code, § 11379, subd. (a)), and misdemeanor transporting marijuana
(Health & Saf. Code, § 11360, subd. (b)), and admitted an enhancement for being
on bail at the time of the offenses (Pen. Code, § 12022.1, subd. (b)). Defendant
also pleaded no contest to a charge of possessing a short-barreled shotgun (id.,
§ 12020, subd. (a)(1)) with respect to a prior, unrelated case.
4



However, the Attorney General urged the Court of Appeal to reduce
defendant’s conviction to reflect convictions for two lesser included offenses:
attempted carjacking (§§ 664, 215, subd. (a)) and attempted simple kidnapping
(§§ 664, 207, subd. (a)). The Attorney General argued sections 1181, subdivision
6, and 1260 (see discussion, post) authorized the Court of Appeal to so reduce
defendant’s conviction, since the evidence at trial reflected that defendant had
committed both lesser included offenses and the jury’s verdict necessarily
reflected that the jury had found defendant had committed both lesser included
offenses.
In his reply brief, defendant opposed the proposed modification, claiming
that the Court of Appeal could at most modify the judgment to reflect a conviction
for only attempted carjacking. Defendant noted that section 1181, subdivision 6,
allows modification to a “lesser crime” in the singular and that no case had held
that a single greater conviction could be modified to reflect multiple convictions
for lesser offenses. Defendant also objected to the modification on state double
jeopardy and estoppel grounds.
The Court of Appeal agreed with the Attorney General’s proposal. Noting
that the “ ‘purpose for allowing an appellate court to modify the judgment to a
lesser included offense is to “obviate the necessity of a new trial when the
insufficiency of the evidence only goes to the degree of the crime,” ’ ” the Court
of Appeal commented that “[a]s long as an appellate court exercises its power to
modify a conviction only ‘where the evidence would support a conviction of a
lesser necessarily included offense, a lesser degree offense or an offense that was
charged . . . ,’ there is no due process violation. [Citation.]” The Court of Appeal
concluded that both attempted carjacking and attempted kidnapping were lesser
included offenses of attempted kidnapping during the commission of carjacking
and both offenses were supported by substantial evidence at trial.
5

Addressing the arguments raised in defendant’s reply brief, the Court of
Appeal acknowledged that section 1181, subdivision 6, uses the term “lesser
crime” in the singular, but noted that, under section 7, “the singular number
includes the plural, . . .” As for defendant’s claim that no case law supported the
proposed modification, the Court of Appeal acknowledged “the dearth of authority
on this issue” but also asserted that “there is an equal lack of authority saying that
we cannot undertake such a modification.” The Court of Appeal additionally
rejected defendant’s state double jeopardy and estoppel arguments. We granted
defendant’s petition for review.
II. DISCUSSION
We address here the narrow question of whether an appellate court, upon
finding insufficient evidence supports a conviction for one offense, may modify
the judgment to reflect a conviction for two lesser included offenses. In arriving at
an affirmative answer to that question, the Court of Appeal had to reach two
subsidiary conclusions. First, the court concluded that attempted kidnapping
during the commission of a carjacking required a completed carjacking, an issue
conceded by the Attorney General. Second, the court concluded that both
attempted carjacking and attempted simple kidnapping were lesser included
offenses of that greater offense. We need not decide here whether the Court of
Appeal was correct with respect to either of these conclusions.3 For purposes of
this opinion, we will assume the truth of these conclusions and address the narrow
issue stated above. Although defendant raises various constitutional objections to
the Court of Appeal’s modification of the judgment, we need not address such
objections here since we find dispositive his claim that neither section 1181,

3
These issues are currently pending before this court in People v. Medina,
review granted November 30, 2005, S137055.
6



subdivision 6 nor section 1260 authorize the Court of Appeal’s procedure. (Lyng
v. Northwest Indian Cemetery Protective Assn. (1988) 485 U.S. 439, 445 [“A
fundamental and longstanding principle of judicial restraint requires that courts
avoid reaching constitutional questions in advance of the necessity of deciding
them.”]; Santa Clara County Local Transportation Authority v. Guardino (1995)
11 Cal.4th 220, 230-231; see also Ashwander v. Valley Authority (1936) 297 U.S.
288, 347 (conc. opn. of Brandeis, J.).)
Section 1181 prescribes the grounds upon which a trial court may grant a
new trial after a verdict or finding has been made. (See § 1179 [defining “new
trial”].) Subdivision 6 of section 1181 provides that a trial court may grant a new
trial “[w]hen the verdict or finding is contrary to law or evidence, but if the
evidence shows the defendant to be not guilty of the degree of the crime of which
he was convicted, but guilty of a lesser degree thereof, or of a lesser crime
included therein, the court may modify the verdict, finding or judgment
accordingly without granting or ordering a new trial, and this power shall extend
to any court to which the cause may be appealed . . . .”
The Legislature added this provision in 19274 in response to our decision in
People v. Nagy (1926) 199 Cal. 235. In that case, we found insufficient evidence
supported the defendant’s conviction for first degree arson because there existed
no evidence that the structure was occupied at the time of the fire. (Id. at pp. 236-
239.) Nagy commented as to the proper remedy: “We are presented with a
somewhat anomalous situation. The evidence in our opinion is sufficient to
sustain a judgment of conviction of arson of the second degree, and insufficient to
sustain a conviction of arson of the first degree, as found by the jury, and this court

4
In an amendment not pertinent here, section 1181, subdivision 6 was
modified in 1951 to include references to a “finding.” (Stats. 1951, ch. 1674,
§ 117, p. 3851.)
7



has neither the constitutional nor statutory authority to modify or interfere with the
verdict of the jury in any respect. It is within our power only to affirm or reverse
the judgments in criminal cases. The case must, therefore, be remanded for a new
trial.” (Id. at p. 239.)
We first construed the 1927 enactment of section 1181, subdivision 6 in
People v. Kelley (1929) 208 Cal. 387 (Kelley). Kelley, in acknowledging that the
amendment was made in response to Nagy, commented that the “meaning and
purpose of the amendment are so clear that we need not consume time in
discussing the reason for its passage, beyond saying that its application to many
criminal prosecutions will prevent reversals and new trials.” (Id. at pp. 391-392.)
Kelley outlined the effect of the new statutory provision: “The contention that
there is no evidence to establish the charge set forth in the indictment presents a
question of law, but, on appeal, the court having jurisdiction is no longer
confronted with the necessity of reversing a judgment of conviction if it sustains
the contention. If it finds the evidence insufficient to justify the conviction for the
crime alleged in the indictment, but sufficient to justify the conviction of a lesser
degree of the crime or of some lesser and included crime, it need not set aside the
verdict entirely, but may direct a modification of the judgment without ordering a
new trial, and remand the cause to the trial court for the sole purpose of enabling
that court to prescribe the proper penalty in punishment for the crime the appellate
court finds to have been committed.” (Id. at p. 392.) Kelley found this provision
constituted “a complete departure in our criminal jurisprudence, and one which on
first impression seems a startling innovation in our procedure.” (Ibid.)
8

Kelley ultimately applied the new rule and, after finding insufficient
evidence supported the defendant’s first degree murder conviction, modified the
verdict to reflect a conviction for manslaughter. (Kelley, supra, 208 Cal. at p.
393.) Kelley reasoned: “Appellant was properly found guilty, on competent
evidence, of a most serious offense, and the errors complained of did not, in our
judgment, prejudicially contribute toward bringing about the finding that he killed
[the victim]. No miscarriage of justice, therefore, resulted, except that, as a matter
of law, the jury improperly fixed the degree of the crime and imposed the penalty
therefor. That injustice may now be righted without subjecting the state and the
defendant to the delay and expense of a new trial.” (Ibid.)
Numerous cases, both from this court and the Courts of Appeal,
subsequently applied Kelley to modify a verdict on appeal to reflect a conviction
on a lesser included offense after finding insufficient evidence supported
conviction of the greater offense. (See, e.g., People v. Holt (1944) 25 Cal.2d 59,
93 [modifying first degree murder verdict to second degree murder]; People v.
Howard (1930) 211 Cal. 322, 329-330 [same]; see also People v. Shaver (1936) 7
Cal.2d 586, 593 [“The power to . . . reduce the verdict is given to the trial court
and also to an appellate court by subdivision 6 of section 1181 . . . and it has been
exercised by this court and the District Court of Appeal.”].)
In 1949, the Legislature amended section 1260, which generally specifies
the power of an appellate court with respect to a judgment in a criminal case. The
amendment added the following italicized language: “The court may reverse,
affirm, or modify a judgment or order appealed from, or reduce the degree of the
offense or the punishment imposed, and may set aside, affirm, or modify any or all
of the proceedings subsequent to, or dependent upon, such judgment or order, and
9

may, if proper, order a new trial.”5 (Stats. 1949, ch. 1309, § 1, p. 2297.) This
court in People v. Odle (1951) 37 Cal.2d 52 (Odle), concluded that the amendment
“did no more than bring section 1260 into accord with section 1181(6) with
respect to reduction of the degree of an offense and make clear that the court may
reduce the punishment in lieu of ordering a new trial, when there is error relating
to the punishment imposed. The test for determining what action should be taken
remains the same: was there prejudicial error in the proceedings? When, as in this
case, the trial court is vested with discretion to determine the punishment
[citation], and there has been no error, this court has no power to substitute its
judgment for that of the trial court.” (Id. at pp. 58-59.)
After Odle, courts routinely cited, without further discussion, both section
1181, subdivision 6, and section 1260 for the proposition that an appellate court
may modify a verdict to reflect a conviction of a lesser included offense where
insufficient evidence supports the conviction on the greater offense, and applied
the rationale underlying Kelley to offenses other than murder. (See, e.g., People v.
Ruiz (1975) 14 Cal.3d 163, 165 [modifying conviction for possession of heroin for
sale to simple possession of heroin]; People v. Noah (1971) 5 Cal.3d 469, 477
[modifying conviction for assault by a prisoner serving less than a life sentence to
assault by means of force likely to produce great bodily injury].)

5
Section 1260 currently reads: “The court may reverse, affirm, or modify a
judgment or order appealed from, or reduce the degree of the offense or attempted
offense or the punishment imposed, and may set aside, affirm, or modify any or all
of the proceedings subsequent to, or dependent upon, such judgment or order, and
may, if proper, order a new trial and may, if proper, remand the cause to the trial
court for such further proceedings as may be just under the circumstances.”
10



Although this court has stated with respect to section 1260 that “ ‘the power
to change the offense is as unlimited as the power to change the degree’ ” (People
v. Enriquez (1967) 65 Cal.2d 746, 749, quoting Witkin, Cal. Criminal Procedure
(1963) § 730, p. 702), it has also been recognized that an appellate court’s power
to modify a judgment is purely statutory. (See People v. Romo (1967) 256
Cal.App.2d 589, 596.) We confirmed this in People v. Lagunas (1994) 8 Cal.4th
1030, in which we rejected a claim that principles of due process authorized courts
to modify a verdict to reflect a conviction on a lesser related offense. Lagunas
noted that section 1181, subdivision 6 only allowed modification to “a lesser crime
included therein,” and the same policy considerations underlying jury instructions
on lesser related offenses simply did not apply to a court’s power to modify the
verdict. (Lagunas, supra, 8 Cal.4th at pp. 1036-1039.) Lagunas concluded that
the “trial court exceeded the statutory authority of section 1181 when it modified
the jury’s residential burglary verdict to the lesser related offense of receiving
stolen property.” (Id. at p. 1040.)
Examining the statutory scheme, neither the language nor the legislative
history of sections 1181, subdivision 6, and 1260 provide authority for the Court
of Appeal’s modification of the judgment here. As discussed, the Legislature
added section 1181, subdivision 6, for the purpose of overturning the result in
Nagy, in which the court acknowledged that it may be appropriate under some
circumstances to modify a judgment to reflect a conviction of a single lesser
included offense shown by the evidence, but concluded it lacked the authority to
do so. This court in Kelley characterized section 1181, subdivision 6 as
empowering courts which find that insufficient evidence supported a jury’s verdict
on a greater offense “to prescribe the proper penalty in punishment” and to correct
the “injustice” resulting from the circumstance that “the jury improperly fixed the
degree of the crime and imposed penalty therefor.” (Kelley, supra, 208 Cal. at pp.
11

392, 393.) Likewise, this court in Odle made clear that section 1260, like section
1181, subdivision 6, empowered courts to “reduce the punishment in lieu of
ordering a new trial, when there is error relating to the punishment imposed.”
(Odle, supra, 37 Cal.2d at p. 58.) In rejecting a due process claim that section
1181, subdivision 6 violated the defendants’ right to have the jury fix the degree of
the offense, People v. Cowan (1941) 44 Cal.App.2d 155 stated: “[T]he jury was
not free to fix either degree [of murder] as a matter of mere discretion or choice
resting with them, but it was their duty to fix it in accordance with the facts as
disclosed by the evidence. Their error in performing that duty could be and was
corrected on appeal, not by finding or changing any fact, but by applying the
established law to the existing facts as found by the jury, the correction itself being
in favor of and beneficial to the appellants.” (Id. at p. 162.)
From the beginning, section 1181, subdivision 6, and later section 1260,
have been understood to provide courts a mechanism for correcting the jury’s error
in “fix[ing] the degree of the crime.” (Kelley, supra, 208 Cal. at p. 393; see
Cowan, supra, 44 Cal.App.2d at p. 162.) The statutory scheme properly serves
this corrective function if a court replaces a single greater offense with a single
lesser offense, since such a modification merely brings the jury’s verdict in line
with the evidence presented at trial. Every subsequent case that has applied these
provisions to date, including those cited and discussed ante, has modified a greater
offense to a single lesser offense, a point readily acknowledged by the Court of
Appeal below. Far from providing a “dearth of authority” on the point as the
Court of Appeal suggested, these cases constitute an acknowledgement of the
long-standing historical understanding of the purpose underlying the statutory
scheme to solve the problem presented in Nagy, a case involving a one-for-one
modification, and to serve the corrective function articulated in Kelley and like
12

cases. We are reluctant to expand the statute beyond the scope of its evident
purpose.
Further underscoring the purpose of the statutory scheme, both statutes
repeatedly refer to “the crime” or “the offense” in the singular. The Court of
Appeal cited Penal Code section 7 in support of its interpretation of sections 1181,
subdivision 6, and 1260, which provision defines commonly used terms appearing
throughout the Penal Code. In a laundry list of general provisions, section 7
provides in relevant part that “the singular member includes the plural, and the
plural the singular.” This general provision would appear to be a slim reed upon
which to support the Court of Appeal’s unprecedented action. “ ‘ “ ‘General terms
should be so limited in their application as not to lead to injustice or oppression or
an absurd consequence. It will always be presumed that the legislature intended
exceptions to its language which would avoid results of this character. The reason
of the law in such cases should prevail over its letter.’ ” ’ ” (In re Michele D.
(2002) 29 Cal.4th 600, 607, quoting People v. Oliver (1961) 55 Cal.2d 761, 767.)
It would be inappropriate to apply the general provision of section 7 that
“the singular member includes the plural” to sections 1181, subdivision 6, and
1260. As discussed, Kelley commented with respect to section 1181, subdivision
6, that it “mark[ed] a complete departure in our criminal jurisprudence,” which
constituted a “startling innovation in our procedure.” (Kelley, supra, 208 Cal. at p.
392.) Kelley made its remarks with respect to the modification of one greater
offense for a single lesser included offense. There is little doubt that modifying
one greater offense to reflect convictions for two lesser offenses would have been
an even greater “departure in our criminal jurisprudence” and an even more
“startling innovation.” (Ibid.) As we have stated, “it should not ‘be presumed that
the Legislature in the enactment of statutes intends to overthrow long-established
principles of law unless such intention is made clearly to appear either by express
13

declaration or by necessary implication.’ ” (Theodor v. Superior Court (1972) 8
Cal.3d 77, 92, quoting County of Los Angeles v. Frisbie (1942) 19 Cal.2d 634,
644.) It is doubtful that the Legislature would have authorized by silence or by
implication through a statute of general application such a departure from
established precedent. Under these circumstances, applying section 7 to the
present statutory scheme would lead to an interpretation that runs counter to both
the legislative purpose of the statutory scheme and subsequent historical practice.
(See People v. Kunitz (2004) 122 Cal.App.4th 652, 655-656 [concluding that
applying section 7 to restitution fines under section 1202.4, subdivision (b) would
run counter to legislative intent].)
For all of the above reasons, we conclude that sections 1181, subdivision 6,
and 1260 do not authorize an appellate court to modify a judgment to reflect
convictions for two lesser included offenses upon finding insufficient evidence of
a single greater offense, and the Court of Appeal’s two-for-one modification of the
judgment here was improper.
Having so concluded, the proper remedy remains to be determined. There
is no guidance in prior decisions construing sections 1181, subdivision 6, and 1260
on the matter. However, it seems logical that, where there are multiple lesser
included offenses supported by the evidence at trial, a court exercising its
discretion to modify the judgment pursuant to these provisions should choose the
offense with the longest prescribed prison term so as to effectuate the fact finder’s
apparent intent to convict the defendant of the most serious offense possible. (Cf.
§ 654, subd. (a) [“An act or omission that is punishable in different ways by
different provisions of law shall be punished under the provision that provides for
the longest potential term of imprisonment . . . .”].) As between attempted
carjacking and attempted kidnapping, the former provides a marginally greater
sentencing range, since attempted carjacking is punishable by 18 months, two
14

years and six months, or four years and six months (§§ 215, subd. (b), 664, subd.
(a)), while attempted simple kidnapping is punishable by 18 months, two years
and six months, or four years (§§ 208, subd. (a), 664, subd. (a)).6
We therefore order the Court of Appeal, upon remand, to strike the
modification of count 6 to the extent it reflected a conviction for attempted
kidnapping and remand the matter to the trial court for resentencing. Although the
Court of Appeal’s prior remand order was for resentencing “on the modified
convictions only,” we believe a remand for a full resentencing as to all counts is
appropriate, so the trial court can exercise its sentencing discretion in light of the
changed circumstances. (See People v. Burbine (2003) 106 Cal.App.4th 1250,
1259 [“upon remand for resentencing after the reversal of one or more subordinate
counts of a felony conviction, the trial court has jurisdiction to modify every
aspect of the defendant’s sentence on the counts that were affirmed, including the
term imposed as the principal term”]; see also People v. Bautista (2005) 129
Cal.App.4th 1431, 1439; People v. Jones, supra, 75 Cal.App.4th at pp. 635-636.)

6
As a subordinate term under the determinate sentencing law (see § 1170.1,
subd. (a)), a consecutive sentence for either attempted carjacking or attempted
kidnapping would result in the same term, namely, 10 months (calculated as one-
third the midterm of two years and six months). However, the trial court upon
resentencing is not obligated to impose a consecutive term on this count, thus
possibly bringing into play the higher sentencing range for attempted carjacking.
15



III. DISPOSITION
The judgment of the Court of Appeal is reversed to the extent it is
inconsistent with this opinion. The matter is remanded to that court with
directions to strike in count 6 the conviction for attempted kidnapping and to
remand to the trial court for resentencing on all counts. In all other respects, the
judgment of the Court of Appeal is affirmed.
MORENO, J.
WE CONCUR:
GEORGE, C. J.
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
KITCHING, J.*

*
Associate Justice of the Court of Appeal, Second Appellate District,
Division Three, assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
16



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

Name of Opinion People v. Navarro
__________________________________________________________________________________

Unpublished Opinion


Original Appeal
Original Proceeding
Review Granted
XXX 127 Cal.App.4th 159
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S132666
Date Filed: February 26, 2007
__________________________________________________________________________________

Court:

Superior
County: Tulare
Judge: David L. Allen*

__________________________________________________________________________________

Attorneys for Appellant:

Patricia L. Watkins and William Joseph Arzbaecher III, under appointments by the Supreme Court, for
Defendant and Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves,
Assistant Attorney General, Kathleen A. McKenna, Louis M. Vasquez and Brian Alvarez, Deputy
Attorneys General, for Plaintiff and Respondent.

*Retired judge of the Tulare Superior Court, assigned by the Chief Justice pursuant to article VI, section 6
of the California Constitution.

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

William Joseph Arzbaecher III
Central California Appellate Program
2407 J Street, #301
Sacramento, CA 95816
(961) 441-3792

Brian Alvarez
Deputy Attorney General
2550 Mariposa Mall, Room 5090
Fresno, CA 93721
(559) 477-1671


Opinion Information
Date:Docket Number:
Mon, 02/26/2007S132666

Parties
1The People (Plaintiff and Respondent)
Represented by Frank Brian Alvarez
Office of the Attorney General
2550 Mariposa Mall, Room 5090
Fresno, CA

2Navarro, Horacio (Defendant and Appellant)
Represented by Patricia L. Watkins
Attorney at Law
80-Q N. Cabrillo Highway, Suite 503
Half Moon Bay, CA

3Navarro, Horacio (Defendant and Appellant)
Represented by William Joseph Iii Arzbaecher
Central California Appellate Program
2407 "J" Street, Suite 301
Sacramento, CA

4Navarro, Horacio (Defendant and Appellant)
Represented by Central California Appellate Program
2407 "J" Street, Suite 301
2407 "J" Street, Suite 301
Sacramento, CA


Disposition
Feb 26 2007Opinion: Affirmed in part/reversed in part

Dockets
Apr 1 2005Record requested
 
Apr 1 2005Petition for review filed
  by counsel for aplt. (Horacio Navarro)
Apr 5 2005Received Court of Appeal record
  one doghouse
May 16 2005Time extended to grant or deny review
  to and including June 20, 2005
Jun 8 2005Petition for review granted; issues limited (criminal case)
  Petition for review GRANTED. The issue to be briefed and argued is limited to the following: After concluding that the evidence was insufficient to support defendant's conviction for attempted kidnapping during the commission of carjacking, could the Court of Appeal properly modify the judgment to reflect conviction of two lesser included offenses - attempted kidnapping and attempted carjacking - or only one such offense? Baxter, J., was recused and did not participate. Votes: George, C.J., Kennard, Brown, and Moreno, JJ.
Jun 16 2005Counsel appointment order filed
  Patricia L. Walkins 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 30 days from the date of this order.
Jul 12 2005Request for extension of time filed
  Appellant requesting to Aug. 16, 2005 to file opening brief on the merits.
Jul 14 2005Extension of time granted
  to and including August 16, 2005 for appellant to file the opening brief on the merits.
Aug 12 2005Request for extension of time filed
  Appellant requesting to Sept. 16, 2005 to file opening brief on the merits.
Aug 12 2005Extension of time granted
  to and including September 16, 2005 for appellant to file the opening brief on the merits.
Aug 29 2005Opening brief on the merits filed
  by counsel for appellant (Horacio Navarro).
Sep 23 2005Compensation awarded counsel
  Atty Watkins
Sep 26 2005Request for extension of time filed
  to file answer brief on the merits to October 28, 2005.
Sep 27 2005Extension of time granted
  to serve and file the answer brief on the merits to and including October 28, 2005.
Oct 25 2005Answer brief on the merits filed
  By counsel for The People
Nov 14 2005Request for extension of time filed
  By counsel for appellant requesting to December 15, 2005 (30 days) to file reply brief on the merits. (to court for permission to file)
Nov 17 2005Extension of time granted
  On application of appellant and good cause appearing, it is ordered that the time to serve and file the reply brief on the merits is extended to and including December 15, 2005.
Dec 16 2005Application to file over-length brief filed
  Horacio Navarro, appellant Patricia L. Watkins, counsel
Dec 16 2005Received:
  oversized reply brief on the merits Horacio Navarro, defendant and appellant Patricia L. Watkins, counsel
Dec 20 2005Reply brief filed (case fully briefed)
  with permission
Oct 3 2006Case ordered on calendar
  Tuesday, November 7, 2006, at 1:30 p.m., in Sacramento
Oct 10 2006Application filed to:
  Application filed to associate William Joseph Arzbaecher, III, as counsel for purposes of oral argument. Filed by Patricia L. Watkins, counsel for appellant Navarro.
Oct 12 2006Order filed
  The request of counsel for appellant Horacio Navarro to associate William Joseph Arzbaecher, III, as counsel for the purpose of presenting oral argument is granted.
Oct 24 2006Argument rescheduled
  To be called and continued to the December 2006 calendar.
Nov 7 2006Case ordered on calendar
  Wednesday, December 6, 2006, at 1:30 p.m., in Los Angeles
Dec 6 2006Cause argued and submitted
 
Feb 23 2007Notice of forthcoming opinion posted
 
Feb 26 2007Opinion filed: Affirmed in part, reversed in part
  The matter is remanded to that court with directions. Majority Opinion by Moreno, J. joined by George, C.J., Werdegar, Chin, Kennard, Corrigan and Kitching, JJ.
Apr 4 2007Remittitur issued (criminal case)
  case final
Apr 9 2007Received:
  Receipt for Remittitur from the Court of Appeal, Fifth Appellate District
Apr 11 2007Compensation awarded counsel
  Atty Watkins
Apr 16 2007Letter sent to:
  Counsel regarding correction of opinion posted on the court's web site.

Briefs
Aug 29 2005Opening brief on the merits filed
 
Oct 25 2005Answer brief on the merits filed
 
Dec 20 2005Reply 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