P. v. Fontenot

Filed 1/9/18 P. v. Fontenot CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE,
Plaintiff and Respondent,
v.
JOHN FONTENOT,
Defendant and Appellant.
B271368
(Los Angeles County
Super. Ct. No. NA093411)
APPEAL from a judgment of the Superior Court of Los
Angeles County, Gary Ferrari, Judge. Affirmed.
Michael Allen, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Senior Assistant
Attorney General, Susan Sullivan Pithey, Supervising Deputy
Attorney General and Robert M. Snider, Deputy Attorney
General, for Plaintiff and Respondent.
__________________________

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Appellant John Fontenot was charged with one count of
simple kidnapping. (See Pen. Code, § 207.) At a bench trial, the
court found Fontenot not guilty of kidnapping, but guilty of
attempted kidnapping.
Fontenot argues the court lacked jurisdiction to convict him
of attempted kidnapping because that offense was neither
charged in the accusatory pleading, nor necessarily included in
the alleged crime of kidnapping. Although Fontenot
acknowledges the California Supreme Court has previously held
that attempted kidnapping is a lesser included offense of
kidnapping (see People v. Martinez (1999) 20 Cal.4th 225, 241
(Martinez)), he contends that decision is no longer valid in light of
the Court’s subsequent decision in People v. Bailey (2012) 54
Cal.4th 740 (Bailey). We affirm, concluding we are bound by the
Court’s holding in Martinez.
FACTUAL BACKGROUND
A. Summary of Facts Preceding Trial
On March 23, 2016, the District Attorney for the County of
Los Angeles charged defendant John Fontenot with one count of
kidnapping. (Pen. Code, § 207, subd. (a).)1 The information
further alleged that the victim of the kidnapping was under 14
years of age. (§ 208, subd. (b).)2
1 Unless otherwise noted, all further statutory citations are
to the Penal Code.
2 The information also included numerous special allegations
regarding prior offenses, asserting that Fontenot had suffered
three prior strike convictions within the meaning of the
California Three Strikes Law (§§ 667.5 and 1170.12), three prior

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At a bench trial, Destiny L. testified that on the night of
September 15, 2012, she was babysitting a four-year-old child
named Madeline in the lobby of an apartment building.
Madeline was “playing dolls” with two other girls her age.
Sometime between 9:00 and 10:00 p.m., Destiny heard the lobby
door open, and saw Fontenot enter the building. He was
barefoot, wearing only underwear and a shirt. Destiny had
previously seen Fontenot washing himself with a hose located in
front of the building.
Fontenot approached the three girls, and told Madeline to
“come here.” He then grabbed Madeline’s arm, and pulled her
across the lobby, toward the exit of the building. As Fontenot
was pushing open the exit door, Destiny grabbed Madeline’s
other arm, and told the other two girls to run. Destiny then
kicked Fontenot, causing him to reach toward his leg, and release
Madeline. Destiny picked up Madeline, and brought her to the
family’s apartment.
A police officer involved in the investigation testified that
he arrived at the family’s apartment approximately one hour
after the incident, and saw Madeline wrapped in a blanket,
crying. The officer stated that the child looked scared and
“visibly shaken.”
Fontenot testified in his defense. He denied entering the
building, and denied touching the child. He admitted he had
used drugs in the past, but asserted that he had not used drugs
on the date of the incident.
At closing argument, the district attorney argued that the
evidence established Fontenot had used force to move Madeline
prison term felonies (§ 667.5, subd. (b)) and three prior serious
felonies (§ 667, subd. (a)).

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without her consent, and that the only “issue” for the court to
decide was whether Madeline had been moved for a “substantial
distance.” The district attorney asserted that Destiny’s
testimony showed Fontenot had pulled Madeline across a fifteen-
foot wide apartment lobby, and had moved the child in a manner
that increased her risk of harm.
In response, defense counsel argued that while there was
sufficient evidence to support a finding that Fontenot had
attempted to kidnap Madeline, the evidence was not sufficient to
convict him of kidnapping: “The only issue is was this a
kidnapping or attempted kidnapping. . . . [¶] . . . [¶] You have an
attempt. And I’ll submit it to the court. I think the evidence is
sufficient to show an attempt. It is not sufficient for actual
kidnapping. There is no substantial movement.”
The court agreed with defense counsel, explaining that
Fontenot’s actions constituted a “classic attempt” because he had
only moved the victim a “short distance” before Destiny
intervened. After hearing further argument, the court
announced its verdict: “I feel there was definitely a crime but I
don’t believe it was a completed kidnapping. I think it was an
attempt, and, of course, it goes from an attempt, all of a sudden
becomes a specific intent crime, which I find was there, and I’m
going to find the defendant not guilty of the kidnapping but
guilty of the attempted kidnapping.”
The next day, defense counsel submitted a letter brief
arguing that the court lacked jurisdiction to convict Fontenot of
attempted kidnapping because: (1) the district attorney had not
charged Fontenot with attempt; and (2) attempted kidnapping is
a specific intent crime, and therefore does not qualify as a lesser
included offense of kidnapping, a general intent crime. Although

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defense counsel acknowledged the evidence “might support [an
attempt] conviction,” she argued the court had no authority to
“make a finding as to an uncharged offense.” After hearing oral
argument on the issue, the trial court ruled that attempted
kidnapping was necessarily included within the charged offense
of kidnapping. The court also found that Fontenot’s conviction
qualified as a third strike offense, and that he had suffered three
prior serious felony convictions and three prior prison term
felonies.
The court sentenced Fontenot to an aggregate term of 40
years to life in prison, which consisted of 25 years to life in prison
for the attempted kidnapping, plus three consecutive five-year
terms for the three prior serious felonies.
DISCUSSION
Fontenot argues the trial court had no authority to convict
him of attempted kidnapping because that offense was not
charged in the accusatory pleading, and is not a lesser included
offense of kidnapping. Although Fontenot acknowledges that our
Supreme Court has previously found attempted kidnapping to be
a lesser included offense of kidnapping (see Martinez, supra, 20
Cal.4th 225), he asserts the Court effectively overruled that
holding in Bailey, supra, 54 Cal.4th 740.
A. Summary of Relevant Law
“‘When a defendant pleads not guilty, the court lacks
jurisdiction to convict him of an offense that is neither charged
nor necessarily included in the alleged crime. [Citations.] This
reasoning rests upon a constitutional basis: “Due process of law
requires that an accused be advised of the charges against him in

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order that he may have a reasonable opportunity to prepare and
present his defense and not be taken by surprise by evidence
offered at his trial.” [Citation.]’ [Citations.]” (People v. Lohbauer
(1981) 29 Cal.3d 364, 368-369; see also In re Fernando C. (2014)
227 Cal.App.4th 499, 502-503 [“Due process of law requires that
an accused be advised of the charges against him; accordingly, a
court lacks jurisdiction to convict a defendant of an offense that is
neither charged in the accusatory pleading nor necessarily
included in the crime alleged”].)
Simple kidnapping is “a ‘general intent crime’” (People v.
Bell (2009) 179 Cal.App.4th 428, 435 (Bell); see also People v.
Davis (1995) 10 Cal.4th 463, 519) that requires the prosecution to
“‘prove three elements: (1) a person was unlawfully moved by the
use of physical force or fear; (2) the movement was without the
person’s consent; and (3) the movement of the person was for a
substantial distance.’ [Citation.] This last element, i.e., that the
victim be moved a substantial distance, is called the ‘asportation’
element.” (Bell, supra, 179 Cal.App.4th at p. 435.) Attempted
kidnapping, in contrast, is a specific intent crime that has two
elements: a specific intent to commit kidnapping, and a direct
but ineffectual act done toward its commission. (See § 21a;
People v. Clark (2011) 52 Cal.4th 856, 948 [attempt to commit a
crime consists of two elements: a specific intent to commit the
crime, and a direct but ineffectual act done toward is
commission]; People v. Cole (1985) 165 Cal.App.3d 41, 47-48
[attempted kidnapping is a specific intent crime].)
In Martinez, supra, 20 Cal.4th 225, the defendant was
charged with simple kidnapping (§ 207, subd. (a)). The evidence
at trial showed the defendant had moved the victim 40 or 50 feet

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from a residence before responding officers intervened. The jury
found the defendant guilty of kidnapping.
The Supreme Court granted review to clarify “the
asportation requirement [for] simple kidnapping, and articulate
what factors are appropriate to making that determination.”
(Martinez, supra, 20 Cal.4th at p. 229.) The Court explained that
its prior decisions had held “distance [was] . . . the sole criterion
for assessing asportation” in simple kidnapping cases. (Id. at
p. 234.) After reviewing the language and history of section 207,
the Court overruled those prior decisions, holding that the jury
could properly consider factors other than distance, including
“whether that movement increased the risk of harm above that
which existed prior to the asportation, decreased the likelihood of
detection, and increased both the danger inherent in a victim’s
foreseeable attempts to escape and the attacker’s enhanced
opportunity to commit additional crimes.” (Id. at p. 237.) The
Court also concluded, however, that this multi-factor asportation
standard could not be applied retroactively to the defendant, and
that there was insufficient evidence to sustain his kidnapping
conviction under the previously-applicable, distance-based
standard.
The Court further found that because there was insufficient
evidence to sustain the defendant’s kidnapping conviction, the
proper remedy was to modify the judgment to attempted
kidnapping: “Although we must reverse the kidnapping count,
[Penal Code] section 1181, subdivision 6,[3] authorizes us to
3 Section 1181, subdivision 6 states: “When 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

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reduce the conviction to the lesser included offense of attempted
kidnapping . . . in light of the record.” (Martinez, supra, 20
Cal.4th at p. 241.) The Court explained that the evidence at trial
conclusively established that “but for the prompt response of the
police, the movement would have exceeded the minimum
asportation distance set by [prior cases].” (Ibid.)
Two years later, in People v. Kelly (1992) 1 Cal.4th 495
(Kelly), the Court imposed a similar remedy after having reversed
a rape conviction. The defendant in Kelly was charged with rape
and several other offenses. The evidence at trial raised a factual
issue as to whether the victim had died before the sexual assault
occurred. The trial court instructed the jury that “[i]t is legally
possible to rape a dead body.” (Id. at p. 526.) The Supreme Court
found this instruction was erroneous, and that the error required
a reversal of the defendant’s rape conviction. The Court further
concluded, however, that “the error would not . . . have affected a
conviction of the lesser included offense of attempted rape,” and
modified the judgment of conviction to attempted rape. (Id. at
p. 528.)
In Bailey, supra, 54 Cal.4th 740, the defendant was
charged with “‘escape from custody,’ in violation of Penal Code
section 4530, subdivision (b).” (Id. at p. 745.) The evidence at
trial showed the defendant was found “in an area where inmates
were not permitted without authorization.” (Id. at p. 744.)
During a subsequent investigation, prison officials determined
the defendant had reached the location by sawing through the
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.”

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bars of his cell window, and breaching several security fences.
The defendant was interrogated, and admitted he was trying to
escape the prison facility. At trial, however, the defendant
denied that he had been trying to escape, asserting he had cut
through several layers of prison security to attack another
inmate, against whom he held a grudge. The jury was instructed
that to constitute an escape, it was not necessary for the
defendant to have left the outer limit of the prison facility.
Instead, the defendant need only have passed beyond a barrier
intended to keep the prisoner within a designated area. The jury
found defendant guilty of escape.
The appellate court reversed based on instructional error,
concluding that the crime of escape requires an inmate to have
moved beyond the outer boundary of the prison facility. The
court further held that while there was sufficient evidence to
support a finding of attempted escape, it had no authority to
modify the judgment to that lesser offense because “attempt to
escape contains an element of specific intent to escape that
escape does not.” (Bailey, supra, 54 Cal.4th at p. 747.) Thus,
“attempted escape is not a lesser included offense of escape.”
(Ibid.)
The Supreme Court “granted review solely on the
modification issue.” (Bailey, supra, 54 Cal.4th at p. 747.) In its
analysis, the Court explained that under “section[] 1181,
subdivision 6, . . . 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.” (Id. at p. 748.)
The Court further explained that “two tests [apply] in
determining whether an uncharged offense is necessarily

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included within a charged offense: the ‘elements’ test and the
‘accusatory pleading’ test. [Citation.] The elements test is
satisfied if the statutory elements of the greater offense include
all of the statutory elements of the lesser offense, such that all
legal elements of the lesser offense are also elements of the
greater. [Citation.] In other words, ‘“[I]f a crime cannot be
committed without also necessarily committing a lesser offense,
the latter is a lesser included offense within the former.”’
[Citations.] Under the accusatory pleading test, a lesser offense
is included within the greater charged offense if the facts actually
alleged in the accusatory pleading include all of the elements of
the lesser offense. [Citations.]” (Id. at p. 748.)
After concluding that the accusatory pleading test was
inapplicable, the Court analyzed whether attempted escape was a
lesser included offense of escape under the elements test. The
Court explained that escape is a “general intent crime” that is
“‘completed when the prisoner wilfully leaves the prison camp,
without authorization. . . .’ [Citations.] The only requisite for its
commission is that the defendant intentionally do the act which
constitutes the crime.’ [Citation.] Thus, for instance, evidence
that a defendant was voluntarily intoxicated or intended to
return when he left is generally immaterial to the commission of
escape.” (Bailey, supra, 54 Cal.4th at p. 749.) Attempt to escape,
in contrast, “requires a specific intent to escape. . . . Thus, ‘[i]t is
not possible to attempt to escape without intending to escape.’
[Citation.]” (Ibid.) The Court held that because attempted
escape “requires additional proof that the prisoner actually
intended to escape,” it does not qualify as a “lesser included
offense of escape.” (Ibid.)

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In its analysis, the Court considered and rejected the
Attorney General’s assertion that “attempt is [always] a lesser
included offense of any completed crime.” (Bailey, supra, 54
Cal.4th at p. 747.) In support of this argument, the Attorney
General had cited language from prior Supreme Court decisions
stating that a crime cannot be “‘committed in the absence of an
attempt to commit it,” and “point[ed] to” Martinez and Kelly as
examples of cases in which the Court had previously “reduced a
general intent offense to an attempt to commit that offense.”
(Bailey, supra, 54 Cal.4th at p. 747.) The Court, however,
concluded those prior cases were not controlling, explaining:
“‘[T]he law of “attempt” is complex and fraught with intricacies
and doctrinal divergences. [Citation.] ‘As simple as it is to state
the terminology for the law of attempt, it is not always clear in
practice how to apply it.’ [Citation.] Thus, ‘[w]e must not
generalize in the law of attempt.’ [Citation.] Although the . . .
cases relied on by the Attorney General have stated or applied
the general principle that attempt is a lesser included offense of
any completed crime, it is not applicable here, where the
attempted offense includes a particularized intent that goes
beyond what is required by the completed offense.” (Id. at
p. 753.)
In People v. Braslaw (2015) 233 Cal.App.4th 1239, the
defendant was convicted of raping an intoxicated person. On
appeal, he argued the trial court was obligated to instruct the
jury on attempted rape of an intoxicated person, “contending the
crime is a lesser included offense of rape of an intoxicated
person.” (Id. at p. 1247.) In assessing this claim, the court
explained that under Bailey, “[a]ttempts are only lesser included
offenses if the sole distinction between the attempt and the

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completed offense is completion of the act constituting the crime.
[Citation.] If the attempt requires a heightened mental state, as
is the case with attempts of many general intent crimes, the
attempt requires proof of an additional element and is therefore
not a lesser included offense.” (Id. at p. 1248.)
The court then analyzed the elements of the crimes at
issue, explaining that “[a]ctual rape of an intoxicated person is
. . . . a general intent crime” (Braslaw, supra, 233 Cal.App.4th at
p. 1250), while attempted rape of an intoxicated person requires
specific intent to commit the crime. (Id. at p. 1249.) The court
also highlighted certain consequences that result from those
differing mental states. First, the court explained that “[a]s a
specific intent crime, attempted rape of an intoxicated person
hinges on a defendant’s actual intent and, thus, is subject to a
good faith, unreasonable mistake of fact defense.” (Id. at
p. 1249.) For the general intent crime of rape of an intoxicated
person, however, mistake of fact is available as a defense only “if
the mistake was objectively reasonable.” (Id. at p. 1250.) Second,
the court explained that while “[i]ntoxication can negate the
required mental state of a specific intent crime, such as
attempted rape of an intoxicated person,” intoxication cannot
negate the “general intent . . . mental state required for actual
rape of an intoxicated person.” (Ibid.) According to the court,
given “the significantly different intent requirements” between
the two offenses, “attempted rape of an intoxicated person is not
a lesser included offense of rape of an intoxicated person.” (Id. at
p. 1252.)
The court also addressed the Supreme Court’s prior
decision in Kelly, which had reversed a rape conviction, and
modified the judgment to “‘the lesser included offense of

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attempted rape.’” (Braslaw, supra, 233 Cal.App.4th at p. 1251
[citing and quoting Kelly].) The court concluded Bailey, rather
than Kelly was controlling, explaining: “Kelly significantly
predate[s] Bailey, and [did not] appl[y] the elements test set forth
in that case. In fact, . . . Kelly [did not] engage[] in any analysis
to establish that attempted rape is a lesser included offense of
forcible rape. Furthermore, the Supreme Court, in other, more
recent cases, has recognized that rape and attempted rape
require different kinds of intent. [Citations.] [¶] . . . [¶] We
therefore conclude Bailey is controlling and compels the
conclusion attempted rape of an intoxicated person is not a lesser
included offense of rape of an intoxicated person.” (Braslaw,
supra, 233 Cal.App.4th at p. 1252.)4
B. We Are Compelled to Follow Martinez
Although Fontenot acknowledges Martinez “treated
attempted kidnapping as a lesser included offense of kidnapping”,
he argues that Bailey effectively overruled that portion of
Martinez, clarifying that when an attempted crime contains a
specific intent element that is not required to complete the
offense, the attempt is not a lesser included offense of the
completed crime. Fontenot further asserts that applying Bailey’s
framework here, attempted kidnapping, a specific intent crime, is
not a lesser included offense of kidnapping, a general intent
crime.
4 See also People v. Hamernick (2016) 1 Cal.App.5th 412
[applying Bailey and concluding that attempted possession of a
controlled substance is not a lesser included offense of
possession.]

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We agree that the analysis in Bailey suggests that if an
attempt requires a heightened mental state that is not required
to prove the completed crime, it does not qualify as a lesser
included offense. (See Braslaw, supra, 233 Cal.App.4th at p.
1248; People v. Ngo (2014) 225 Cal.App.4th 126, 156 [under
Bailey, “‘when the completed offense is a general intent crime, an
attempt to commit that offense does not meet the definition of a
lesser included offense under the elements test because the
attempted offense includes a specific intent element not included
in the complete offense’”]; People v. Mendoza (2015) 240
Cal.App.4th 72, 83 (Mendoza).) Moreover, as Fontenot correctly
notes, our courts have previously held that kidnapping is a
general intent offense (Davis, supra, 10 Cal.4th at p. 519; Bell,
supra, 179 Cal.App.4th at p. 435), and that attempted kidnapping
is a specific intent offense. (Cole, supra, 165 Cal.App.3d 41, 47-48
[attempted kidnapping requires specific intent].) Thus, as
discussed in Braslaw, certain defenses that negate specific intent,
including voluntary intoxication and unreasonable mistake of
fact, would presumably be available as defenses against
attempted kidnapping, but not available against a charge of
kidnapping. (See People v. Atkins (2001) 25 Cal.4th 76, 81-82
[evidence of intoxication is generally “inadmissible to negate the
existence of general criminal intent,” but admissible “to negate
the existence a specific intent”]; People v. Givan (2015) 233
Cal.App.4th 335, 350 [“for a general intent crime any mistake of
fact must be both reasonable and actual before it is presented to
the jury. [Citation.] In contrast, an unreasonable mistake of fact
may be asserted in a specific intent crime . . . so long as the
defendant had an actual mistaken belief”]; see also Mendoza,
supra, 240 Cal.App.4th. at p. 83.)

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The Court’s rationale in Bailey appears to undermine its
conclusion in Martinez that attempted kidnapping is a lesser
included offense of kidnapping. However as an intermediate
appellate court, we “must accept the law declared by courts of
superior jurisdiction. It is not [our] function to attempt to
overrule decisions of a higher court.” (Auto Equity Sales, Inc. v.
Superior Court (1962) 57 Cal.2d 450, 455 (Auto Equity).)
Martinez is a directly controlling case, and expressly states
that attempted kidnapping is a lesser included offense of
kidnapping. That language cannot be deemed dicta because the
Court did in fact reduce the defendant’s conviction to attempted
kidnapping, an offense that was neither charged in the
information nor pursued by the prosecution at trial. Moreover,
Bailey specifically cites Martinez as an example of a case in which
the Court had previously found it proper to “reduce a general
intent offense to an attempt to commit that offense.” (Bailey,
supra, 54 Cal.4th at p. 753.) Bailey does not contain any
language directly questioning Martinez’s continued validity in
kidnapping cases. Instead, Bailey explained that “‘[t]he law of
“attempt” is . . . fraught with intricacies and doctrinal
divergences.’” (Ibid.)
Given that Bailey treated the Martinez analysis as
inapplicable to the situation before it, and the complexities
inherent in the law of attempt (see Bailey, supra, 54 Cal.4th at
p. 753 [“‘[t]he law of “attempt” is complex and . . .’ . . . . not always
clear . . . how to apply”], we decline to disregard Martinez’s
express finding that attempted kidnapping qualifies as a “lesser
included offense” of kidnapping. (Martinez, supra, 20 Cal.4th at
p. 241.) We recognize that other courts have, as discussed above,
applied the Bailey analysis to crimes other than kidnapping,

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where there was no other binding Supreme Court precedent.
Here, however, there is direct authority.5 Unless and until the
Court reverses Martinez, we are bound by that holding. (See
Auto Equity, supra, 57 Cal.2d at p. 455 [“Under the doctrine of
stare decisis, all tribunals exercising inferior jurisdiction are
required to follow decisions of courts exercising superior
jurisdiction. . . . The decisions of [the California Supreme Court]
are binding upon and must be followed by all the state courts of
California. . . .].)
DISPOSITION
The judgment is affirmed.
ZELON, Acting P. J.
We concur:
SEGAL, J. BENSINGER, J.
5 In light of the apparent confusion in the intermediate
appellate courts following Bailey, we respectfully suggest the
Supreme Court provide further guidance with regard to the
issues surrounding attempted kidnapping.
 Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.

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