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Court of Appeal, Fifth District, California.

The PEOPLE, Plaintiff and Respondent, v. Horacio NAVARRO, Defendant and Appellant.

No. F044291.

Decided: February 25, 2005

Patricia L. Watkins, Half Moon Bay, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Kathleen A. McKenna and Brian Alvarez, Deputy Attorneys General, for Plaintiff and Respondent.


On June 6, 2002, an information was filed in Tulare County Superior Court case No. CRF020088051 (hereafter No. 88051), charging appellant Horacio Navarro with possession of a short-barreled shotgun (Pen.Code,1 § 12020, subd. (a);  count 1) and misdemeanor carrying a concealed firearm in a vehicle (§ 12025, subd. (a)(1);  count 2).   He pled not guilty.

On January 31, 2003, an information was filed in Tulare County Superior Court case No. CRF020098496 (hereafter No. 98496), charging appellant with robbery involving the personal use of a firearm (§§ 211;  12022.5, subd. (a)(1);  12022.53, subd. (b);  count 1), dissuasion of a witness or victim by threat or force (§ 136.1, subd. (c)(1);  count 2), unlawful driving or taking of a vehicle (Veh.Code, § 10851, subd. (a);  count 3), receiving a stolen motor vehicle (§ 496d, subd. (a);  count 4), evading a peace officer (Veh.Code, § 2800.2, subd. (a);  count 5), attempted kidnapping during commission of a carjacking (§§ 209.5, subd. (a);  664;  count 6), attempted unlawful driving or taking of a vehicle (§ 664;  Veh.Code, § 10851, subd. (a);  count 7), receiving stolen property (§ 496, subd. (a);  count 8), sale of methamphetamine (Health & Saf.Code, § 11379, subd. (a);  count 9), and sale or transportation of marijuana (Health & Saf.Code, § 11360, subd. (a);  count 10).   With respect to each count, it was alleged that appellant committed the offense while released from custody on bail or own recognizance in case No. 88051 (§ 12022.1).   Appellant pled not guilty and denied the special allegations.

Trial in case No. 98496 began on September 15, 2003.   Appellant admitted the section 12022.1 allegation with respect to counts 1-9,2 and changed his plea to no contest on counts 3, 5, 8, 9, and 10.   It was agreed that count 4 would be dismissed at sentencing. On September 22, a jury convicted appellant of the remaining counts, and found true the section 12022.53, subdivision (b) allegation with respect to count 1. On September 30, appellant withdrew his not guilty plea in case No. 88051 and pled no contest to count 1. Count 2 was dismissed.

Appellant was sentenced to a total unstayed term of 23 years 4 months and ordered to pay restitution fines and victim restitution.   He filed a timely notice of appeal in both cases, and now raises various claims of error.   For the reasons which follow, we will modify the judgment on count 6 and remand the matter for resentencing thereon.   In all other respects, we will affirm.


On the evening of March 16, 2002, appellant entered the Subway store in Goshen, showed clerk Kim Mapel that he had his hand on a gun tucked in his waistband, and demanded the money in the cash register.   Mapel complied, and appellant escaped with approximately $200.   On March 24 or 26, Mapel saw him at a mini-mart near the Subway.   They made eye contact, and she saw him hiding behind a gas pump when she got into her vehicle.   Mapel reported the sighting to police, but they were unable to locate appellant.

On the morning of April 2, appellant came up behind Mapel as she was getting books out of her vehicle at San Joaquin Valley College.   He asked why she was telling people that he had a gun and said there were no bullets in his gun.   He said he knew she had two pretty little girls at home, and told her that if she ratted, he would use a gun on her.   Mapel took this as a threat to kill her or her children.   Appellant then ran.   Mapel returned home and contacted the police.

Early that afternoon, Mapel and Joe Martinez, who resided with her, saw a four-door white car containing four young men drive past their house.   As this seemed unusual, Martinez got into his truck and drove around.   He was about a block from the house when the car passed him.   The driver and rear passenger were hanging out the windows, yelling.   Martinez reported the incident to Detective Hager, who arrived a short time later and began to check the area for the vehicle.

Hager came upon a vehicle that matched the description given by Martinez and which contained four subjects.   He and the driver made eye contact and a vehicle pursuit ensued.   Eventually the car slowed, allowing two passengers to exit.   When the vehicle pulled into the front yard of what was subsequently determined to be the residence of the registered owner, a member of the driver's family, the driver and remaining passenger were taken into custody.   One of the other passengers was apprehended nearby.   Mapel came to the scene for a field identification, but stated that none of the three was the person who had contacted her at the college.

A short time later, Lanetta Hogue's car was taken from the area in which the fourth person had been.   At some point, this car entered southbound Highway 99 and nearly struck California Highway Patrol (CHP) Officer Duran's marked vehicle.   Duran took evasive action, then attempted to stop the car, in which appellant was the driver and sole occupant.   Instead of pulling over, appellant accelerated to approximately 100 miles per hour and began passing traffic on the right shoulder.   He exited the road at the westbound Highway 198 exit at a high rate of speed and went out of control.   The vehicle was disabled, and appellant began to run south from the location.   Duran pursued him on foot.

CHP Officer Frakes, who arrived to assist Duran, saw appellant standing in the middle of the transition road between eastbound Highway 198 and southbound Highway 99, waving his arms and trying to stop traffic.   When Frakes drove toward him, appellant ran.   Frakes followed.

James Petersen was driving east on Highway 198 when he stopped in the middle of the highway because he saw Frakes chasing appellant.   Appellant jumped into Petersen's pickup through the unlocked passenger door, then told Petersen, “ ‘Drive or I'll kill you.’ ”   Petersen, who assumed appellant had some type of weapon, put the vehicle in “park,” pulled the keys out of the ignition, and got out of the truck.   Appellant slid over behind the steering wheel and attempted to drive off.   By this time, Frakes had come up on the passenger side and was beating on the window with his pistol, as appellant had locked the door.   Petersen was now able to see that appellant did not have a weapon.   Not wanting his month-old truck to be damaged, he then “jumped on” appellant and tried to pull him out of the vehicle.   He, Frakes, and another individual were able to take appellant into custody.   Petersen's truck had to be towed because the transmission was impaired.   After appellant got into the truck, the vehicle did not move at all.

Mapel came to the location for a field identification.   She identified appellant as the person who had accosted her at the college and who had robbed the Subway store.

Appellant presented evidence that he was in Farmersville at his father's birthday party at the time the Subway was robbed.   He also presented evidence that one Andres Escareno was investigated for a number of store robberies which occurred in Visalia and outlying areas between January and May 2002.   Escareno lived in Goshen around March and April, but apparently was not questioned about the Subway robbery.   In the three robberies to which he confessed, a man entered the business, casually walked up to a clerk or cashier, displayed a portion of a handgun in his waistband, asked for the money underneath the cash drawer as well as in the register (as occurred in the Subway robbery), and then walked out.   The times of the robberies and descriptions of the perpetrator were somewhat similar to those involved in the Subway robbery.4

Appellant testified and denied ever being in the Subway store in Goshen or at the gas station nearby.   He denied ever going to San Joaquin Valley College.   According to him, the first time he ever saw Mapel was when she testified at trial.   Appellant admitted taking Hogue's vehicle and attempting to evade officers.   He also admitted attempting to take Petersen's vehicle, but denied that he ever intended to kidnap Petersen.   According to appellant, he needed a ride on April 2, so he called a friend.   As they were driving around, someone started following them.   When appellant realized it was a police officer, he jumped out of the car and ran because he had drugs in his pocket.   Appellant saw Hogue's car with the keys in it, and he took it so he could get away.   He attempted to flee from the CHP officers, then lost control of the car.   At that point, he ran.   He found himself in front of a truck, so he got in and locked the door.   A CHP officer was at the window, telling him to open the door.   Appellant was panicking, so he turned toward the driver.   He might have told the driver something;  he could not recall.   The driver jumped out of the vehicle.   Appellant moved to the driver's seat and tried to take the vehicle, but it would not move.   The driver then pulled him out of the car and he was arrested.



Appellant was convicted in count 6 of attempted kidnapping in commission of a carjacking, in violation of sections 209.5, subdivision (a) and 664.   He now contends the evidence supporting that conviction is insufficient as a matter of law, as there was no evidence of a completed carjacking, an essential element of section 209.5.   Respondent agrees that a completed carjacking was required, but asks us to reduce appellant's single conviction for attempted aggravated kidnapping to convictions for both attempted kidnapping (§§ 207, subd. (a);  664) and attempted carjacking (§§ 215, subd. (a);  664).   Appellant responds that we must either reverse the conviction on count 6, or, at most, reduce the offense solely to attempted carjacking.

Section 209.5, subdivision (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.”  (Italics added.)   For reasons which are not clear, the Legislature did not include in the statute language covering the attempted commission of, or goal of committing, a carjacking.  (Compare § 190.2, subd. (a)(17) [defendant subject to death or life in prison without the possibility of parole where first degree murder committed “while the defendant was engaged in ․ the commission of, attempted commission of, or the immediate flight after committing” enumerated felony];  § 209, subd. (b)(1) [defendant subject to life in prison with the possibility of parole where he or she kidnaps “to commit robbery, rape,” or other enumerated offense].)

 “In construing a statute, our role is to ascertain the Legislature's intent so as to effectuate the purpose of the law.  [Citation.]  In determining intent, we must look first to the words of the statute because they are the most reliable indicator of legislative intent.  [Citation.]  If the statutory language is clear and unambiguous, the plain meaning of the statute governs.  [Citation.]”  (People v. Lopez (2003) 31 Cal.4th 1051, 1056, 6 Cal.Rptr.3d 432, 79 P.3d 548.)   In such circumstances, “there is no need for statutory construction ‘ “and courts should not indulge in it.”   [Citation.]’  [Citations.]”  (People v. Bechler (1998) 61 Cal.App.4th 373, 377, 71 Cal.Rptr.2d 532.)

 There can be no doubt that the relevant language of section 209.5, subdivision (a) is clear and unambiguous, especially since the Legislature unmistakably knows how to include the attempted commission of a crime, or a crime committed with a specific goal or purpose, in such a statute.   Accordingly, we are bound by the plain meaning of the statute's words, and are constrained to agree with those courts which have held that a violation of section 209.5, subdivision (a) requires a completed carjacking.  (People v. Contreras (1997) 55 Cal.App.4th 760, 764-765, 64 Cal.Rptr.2d 233;  accord, People v. Jones (1999) 75 Cal.App.4th 616, 624-625, 89 Cal.Rptr.2d 485.)   Thus, a person violates section 209.5, subdivision (a) by committing a kidnapping during a carjacking (assuming the facilitation requirement is met), but not by committing a kidnapping during conduct that goes no further than an attempted carjacking.5

 In People v. Jones, supra, 75 Cal.App.4th 616, 89 Cal.Rptr.2d 485, the appellate court acknowledged that it did not need to decide whether the crime of attempting kidnapping during the commission of carjacking existed, but observed that if such a crime did exist, “under the language of section 209.5, it appears a completed carjacking would be a requirement.”  (Id. at p. 627, fn. 3, 89 Cal.Rptr.2d 485.) This statement was dictum.   Faced squarely with the issue, we now hold that such a crime does exist, as section 664 expressly criminalizes an attempt to commit “any crime․” (Italics added.)   Section 209.5, subdivision (a) establishes a separate crime, not merely enhanced punishment for a form of kidnapping.  (See People v. Martinez (1999) 20 Cal.4th 225, 232, 83 Cal.Rptr.2d 533, 973 P.2d 512;  People v. Rayford (1994) 9 Cal.4th 1, 8, 36 Cal.Rptr.2d 317, 884 P.2d 1369.) Accordingly, the crime of attempted kidnapping during the commission of a carjacking exists, but, based on the clear statutory language, a conviction for such an offense requires a completed carjacking.   As appellant observes, the carjacking element defines the context in which the kidnapping occurs.   Under the express language of the statute, that context-as respondent concedes-is a completed carjacking.   If the carjacking element is not satisfied, there is no violation, attempted or otherwise, of section 209.5.   Thus, a person commits an attempted violation of section 209.5, subdivision (a) by attempting to kidnap while committing a carjacking, but not by attempting to kidnap (or by kidnapping) while merely attempting to carjack.   In short, as appellant asserts, attempted kidnapping during commission of a carjacking is itself a crime (§§ 209.5, subd. (a);  664), but attempted kidnapping during the attempted commission of a carjacking is not, at least insofar as section 209.5 is concerned.

 A completed carjacking requires movement of the motor vehicle.  (People v. Lopez, supra, 31 Cal.4th at pp. 1055-1063, 6 Cal.Rptr.3d 432, 79 P.3d 548;  People v. Vargas (2002) 96 Cal.App.4th 456, 460-463, 116 Cal.Rptr.2d 867.)   In the present case, it is undisputed that the Petersen vehicle did not move once appellant entered it.   Accordingly, there was no completed carjacking;  hence, a necessary element of the charged offense was not established by the evidence, and so appellant's conviction on count 6 cannot stand.

 We turn now to the appropriate remedy.   Under certain circumstances, an appellate court has the power to modify a verdict or judgment instead of granting a new trial or reversing outright. (§§ 1181, subd. 6;  1260.) 6  “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.’  [Citation.]”  (People v. Matian (1995) 35 Cal.App.4th 480, 487, 41 Cal.Rptr.2d 459.) As 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.  (People v. Adams (1990) 220 Cal.App.3d 680, 688, 269 Cal.Rptr. 479.)  “ ‘The test in this state of a necessarily included offense is simply that where an offense cannot be committed without necessarily committing another offense, the latter is a necessarily included offense.’  [Citations.]”  (People v. Pearson (1986) 42 Cal.3d 351, 355, 228 Cal.Rptr. 509, 721 P.2d 595.) 7

 Simple kidnapping is a lesser offense included within the crime of kidnapping during the commission of a carjacking.  (Cf. People v. Jackson (1998) 66 Cal.App.4th 182, 189, 77 Cal.Rptr.2d 564;  People v. Bailey (1974) 38 Cal.App.3d 693, 699, 113 Cal.Rptr. 514.)  “[K]idnapping, be it simple or aggravated, requires a degree of asportation․” (People v. Reed (2000) 78 Cal.App.4th 274, 284, 92 Cal.Rptr.2d 781;  see People v. Martinez, supra, 20 Cal.4th at pp. 232-235, 83 Cal.Rptr.2d 533, 973 P.2d 512.)   Where the asportation is insufficient for a completed crime or where, for example, the kidnapping is thwarted by the victim's escape but the evidence shows an attempted kidnapping, the verdict may be modified to that offense. (See, e.g., People v. Daly (1992) 8 Cal.App.4th 47, 57, 10 Cal.Rptr.2d 21;  People v. Mullins (1992) 6 Cal.App.4th 1216, 1220-1221, 8 Cal.Rptr.2d 289.)

 Similarly, carjacking is a lesser offense included within the crime of kidnapping during the commission of a carjacking.   (People v. Jones, supra, 75 Cal.App.4th at p. 626, 89 Cal.Rptr.2d 485;  People v. Contreras, supra, 55 Cal.App.4th at p. 765, 64 Cal.Rptr.2d 233.)   Accordingly, attempted carjacking is also a lesser included offense of kidnapping during the commission of a carjacking.  (People v. Jones, supra, at p. 626, 89 Cal.Rptr.2d 485.)   Where the movement of the motor vehicle required for a completed carjacking is not shown by the evidence, the appropriate offense is attempted carjacking.  (People v. Lopez, supra, 31 Cal.4th at p. 1063, 6 Cal.Rptr.3d 432, 79 P.3d 548;  People v. Vargas, supra, 96 Cal.App.4th at pp. 460, 463, 116 Cal.Rptr.2d 867.)

 “An attempt to commit a crime occurs when the perpetrator, with the specific intent to commit the crime, performs a direct but ineffectual act towards its commission.  [Citations.]”  (People v. Marshall (1997) 15 Cal.4th 1, 36, 61 Cal.Rptr.2d 84, 931 P.2d 262.)  “The act must not be mere preparation but must be a direct movement after the preparation that would have accomplished the crime if not frustrated by extraneous circumstances.  [Citation.]”  (People v. Carpenter (1997) 15 Cal.4th 312, 387, 63 Cal.Rptr.2d 1, 935 P.2d 708.)   Examining the evidence adduced at trial in accordance with standard principles of appellate review (see Jackson v. Virginia (1979) 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560;  People v. Johnson (1980) 26 Cal.3d 557, 578, 162 Cal.Rptr. 431, 606 P.2d 738), we conclude it was sufficient to support convictions for attempted kidnapping and attempted carjacking.8  Moreover, while the parties and trial court failed to recognize that the offense of attempted kidnapping during the commission of a carjacking requires a completed carjacking, they did recognize that the evidence did not show either a completed kidnapping or a completed carjacking, and this was conveyed to the jury.   The jury was instructed on attempt pursuant to CALJIC No. 6.00 (attempt-defined), and reminded by the trial court that completed acts of kidnapping and carjacking were not alleged.9  Under the circumstances, by convicting appellant on count 6, jurors made the findings necessary to support convictions for attempted kidnapping and attempted carjacking.  (See People v. Jones, supra, 75 Cal.App.4th at pp. 626-628, 89 Cal.Rptr.2d 485;  People v. Mullins, supra, 6 Cal.App.4th at pp. 1222-1223, 8 Cal.Rptr.2d 289.)

 Despite the foregoing, appellant contends that while we may modify his conviction on count 6 to one lesser offense, we cannot modify his conviction of a single offense to two lesser offenses as respondent requests.   A modification of the verdict to attempted carjacking may be proper, appellant says, but a modification to attempted carjacking and attempted kidnapping is not.   Insofar as we can tell, this is an issue of first impression, and we examine each of appellant's reasons for opposing the requested modification in turn.

Appellant first observes that section 1181, subdivision 6 uses the singular “lesser crime” and not the plural “lesser crimes.”   When construing the Penal Code, however, “the singular number includes the plural ․” (§ 7;  see People v. O'Connor (1927) 81 Cal.App. 506, 510, 254 P. 630.)

Appellant next points to the apparent absence of any case in which an appellate court has reduced a single offense to multiple lesser included offenses.   We readily acknowledge the dearth of authority on this issue;  on the other hand, there is an equal lack of authority saying that we cannot undertake such a modification.

Third, appellant complains that the proposed modification would punish him for successfully appealing his wrongful conviction and would violate California's constitutional prohibition against double jeopardy, because it would result in a single conviction being counted as two “strikes” under the three strikes law.   We do not find any constitutional prohibition under the circumstances of this case.10

 “When a defendant successfully appeals a criminal conviction, California's constitutional prohibition against double jeopardy precludes the imposition of more severe punishment on resentencing.   [Citation.]”  (People v. Hanson (2000) 23 Cal.4th 355, 357, 97 Cal.Rptr.2d 58, 1 P.3d 650;  see generally People v. Henderson (1963) 60 Cal.2d 482, 495-497, 35 Cal.Rptr. 77, 386 P.2d 677.) 11  “ ‘It is immaterial to the basic purpose of the constitutional provision against double jeopardy whether the Legislature divides a crime into different degrees carrying different punishments or allows the court or jury to fix different punishments for the same crime.’  [Citation.]  In either instance, ‘a defendant is not required to elect between suffering an erroneous conviction to stand unchallenged and appealing therefrom at the cost of forfeiting a valid defense to the greater offense․’ [Citation.]  ‘ “ ‘[A] defendant faced with such a “choice” takes a “desperate chance” in securing the reversal of the erroneous conviction.   The law should not, and in our judgment does not, place the defendant in such an incredible dilemma.’ ”  [Citation.]'  [Citations.]   In sum, ‘[a] defendant's right of appeal from an erroneous judgment is unreasonably impaired when he is required to risk his life to invoke that right.   Since the state has no interest in preserving erroneous judgments, it has no interest in foreclosing appeals therefrom by imposing unreasonable conditions on the right to appeal.’  [Citations.]”  (People v. Hanson, supra, at pp. 358-359, 97 Cal.Rptr.2d 58, 1 P.3d 650.)

The punishment for a violation of section 209.5 is life in prison with the possibility of parole. (§ 209.5, subd. (a).)  Accordingly, the punishment for an attempt is five, seven, or nine years. (§ 664, subd. (a).)  Appellant here was sentenced to one-third of the middle term, or two years four months (28 months).   The punishment for simple kidnapping is three, five, or eight years. (§ 208, subd. (a).)  The punishment for carjacking is three, five, or nine years. (§ 215, subd. (b).)  The punishment for an attempt to commit either offense is one-half the specified term. (§ 664, subd. (a).)  One-half of the specified middle term of either offense is two years six months (30 months), one-third of which is 10 months.   Since the attempted kidnapping and attempted carjacking arose from an indivisible course of conduct, sentence for one must be stayed pursuant to section 654.  (See, e.g., People v. Cline (1998) 60 Cal.App.4th 1327, 1336, 71 Cal.Rptr.2d 41;  People v. Austin (1994) 23 Cal.App.4th 1596, 1613, 28 Cal.Rptr.2d 885, disapproved on other grounds in People v. Palmer (2001) 24 Cal.4th 856, 861, 867, 103 Cal.Rptr.2d 13, 15 P.3d 234;  People v. Saffle (1992) 4 Cal.App.4th 434, 438, 5 Cal.Rptr.2d 648) 12 Clearly, then, a modification of appellant's conviction on count 6 to attempted kidnapping and attempted carjacking will result in a reduction of his sentence, not an increase.

It is true that, as the law currently stands, attempted kidnapping and attempted carjacking both constitute “strikes” within the meaning of the three strikes law, as does attempted kidnapping during commission of a carjacking. (§§ 667, subd. (d)(1);  1170.12, subd. (b)(1);  1192.7, subds. (c)(20), (c)(22), (c)(27), (c)(39).)   Thus, to modify the verdict on count 6 as respondent proposes could leave appellant, at some future date, subject to two strikes arising from count 6, instead of the one strike he currently faces.13  However, such a possibility is by no means certain;  if, upon appellant's release from prison, he does not reoffend, the possibility will never ripen into reality.   A mere potential for increased punishment sometime in the future is not enough to cause us to declare a violation of constitutional principles now.14

 Appellant's final argument against modification is that respondent should be judicially estopped from requesting a reduction to attempted kidnapping because the People took the opposite position in the trial court.   In this regard, “[t]he doctrine of judicial estoppel essentially acts to prevent a party from abusing the judicial process by advocating one position, and later, if it becomes beneficial to do so, asserting the opposite.   The doctrine is designed not to protect any party, but to protect the integrity of the judicial process.  [Citation.]”  (People v. Watts (1999) 76 Cal.App.4th 1250, 1261-1262, 91 Cal.Rptr.2d 1.)  “Although the doctrine ․ has been recognized in California, our courts have not established a clear set of principles for applying it․ Yet, it has long been settled that ‘[o]ne to whom two inconsistent courses of action are open and who elects to pursue one of them is afterward precluded from pursuing the other.’   [Citation.]  Further, it is well established that, for the doctrine to apply, the seemingly conflicting positions ‘must be clearly inconsistent so that one necessarily excludes the other.’  [Citation.]  Moreover, the doctrine ‘cannot be invoked where the position first assumed was taken as a result of ignorance or mistake.’  [Citation.]”  (Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 181-182, 70 Cal.Rptr.2d 96, fn. omitted;  cf. New Hampshire v. Maine (2001) 532 U.S. 742, 749-751, 121 S.Ct. 1808, 149 L.Ed.2d 968.)   The doctrine is applied only sparingly, if at all, against the prosecution in criminal actions.  (People v. Watts, supra, 76 Cal.App.4th at p. 1262, 91 Cal.Rptr.2d 1.)

Assuming the doctrine can be applied against the prosecution in an appropriate case, this is not that case.   Although the prosecutor at trial took the position that attempted carjacking was the sole lesser included offense on count 6, it was never his position that there was no attempted kidnapping.   Instead, it is apparent he believed the scenario shown by the evidence-no completed kidnapping and no completed carjacking-was covered by giving jurors the option of convicting of attempted kidnapping during commission of a carjacking, or, if they did not find an attempted kidnapping, attempted carjacking.15  Although the prosecutor opposed the giving of instructions on attempted kidnapping as a lesser included offense, he did so as the result of a mistaken understanding of what the law required with respect to an attempted violation of section 209.5, subdivision (a).   Accordingly, and because respondent's position now is not clearly inconsistent with the prosecutor's position at trial such that one necessarily excludes the other, the doctrine of judicial estoppel does not apply.  (Jackson v. County of Los Angeles, supra, 60 Cal.App.4th at pp. 181-182, 70 Cal.Rptr.2d 96.)



The conviction of attempted kidnapping during commission of a carjacking (§§ 209.5, subd. (a), 664) in count 6 is modified to attempted kidnapping (§§ 207, subd. (a), 664) and attempted carjacking (§§ 215, subd. (a), 664).   The matter is remanded for resentencing on the modified convictions only, with the trial court directed to resentence appellant for those convictions in accordance with the views expressed in this opinion.   In all other respects, the judgment is affirmed.


FN1. All statutory references are to the Penal Code unless otherwise stated..  FN1. All statutory references are to the Penal Code unless otherwise stated.

2.   The People clarified that count 9 involved transportation, not sale, of methamphetamine, and they moved to amend count 10 to charge misdemeanor transportation of marijuana in an amount less than 28.5 grams (Health & Saf.Code, § 11360, subd. (b)).  By operation of law, this eliminated the section 12022.1 allegation from count 10.

3.   In light of the issues raised on appeal, we recite only those facts relevant to case No. 98496.

4.   Booking photographs of Escareno and appellant were admitted into evidence.   Visalia Police Detective Lopez, who interrogated Escareno, described his build as that of a football player, while appellant was “kind of thin.”   On the booking photograph, Escareno's weight was depicted as being 235 pounds.   Appellant testified that he himself weighed approximately 140 pounds.   Although appellant could not be excluded as the source of fingerprints lifted from the Subway counter, the prints definitely were not those of Escareno.

5.   Although People v. Russell (1996) 45 Cal.App.4th 1083, 53 Cal.Rptr.2d 241 states that “a violation of Penal Code section 209.5 may be committed by one who never successfully takes or drives a vehicle” (id. at p. 1089, 53 Cal.Rptr.2d 241), that opinion undertakes no examination of the statute's language or comparison of that language with the wording of other statutes, and antedates the California Supreme Court's decision in People v. Lopez, supra, 31 Cal.4th 1051, 6 Cal.Rptr.3d 432, 79 P.3d 548, concerning the asportation requirement for carjacking.   Accordingly, we decline to follow it on this point.

6.   Section 1181 states, in pertinent part:  “When a verdict has been rendered or a finding made against the defendant, the court may, upon his application, grant a new trial, in the following cases only:  [¶] ․ [¶] 6. 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 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․”Section 1260 provides:  “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.”

7.   Since here the information merely described the crime in the statutory language, we need not separately consider the language of the accusatory pleading.  (See People v. Wolcott (1983) 34 Cal.3d 92, 99, 192 Cal.Rptr. 748, 665 P.2d 520;  People v. Adams, supra, 220 Cal.App.3d at p. 689, 269 Cal.Rptr. 479.)

8.   Appellant concedes the issue with respect to attempted carjacking.   With respect to attempted kidnapping, he contends that he only told Petersen to drive because the pursuing CHP officer was right behind him and he wanted to get away.   In light of Petersen's testimony that appellant did not order him out of the vehicle, but instead told him, “Drive or I'll kill you,” a reasonable inference can be drawn that appellant intended to kidnap Petersen.

9.   The jury was also given the option of convicting appellant of attempted carjacking as a lesser included offense on count 6.

10.   Because double jeopardy issues arising in the context of a sentence imposed after a successful appeal also raise related due process concerns about whether an increased punishment reflects a vindictive retaliation for a defendant's having taken a successful appeal (People v. Craig (1998) 66 Cal.App.4th 1444, 1447, 78 Cal.Rptr.2d 659;  see North Carolina v. Pearce (1969) 395 U.S. 711, 723-726, 89 S.Ct. 2072, 23 L.Ed.2d 656), our discussion subsumes both due process and double jeopardy considerations (People v. Craig, supra, at p. 1447, 78 Cal.Rptr.2d 659).

11.   The protections afforded by the double jeopardy provisions of the California Constitution are broader than those afforded by the federal Constitution.  (People v. Monge (1997) 16 Cal.4th 826, 844, 66 Cal.Rptr.2d 853, 941 P.2d 1121, affd. sub nom.  Monge v. California (1998) 524 U.S. 721, 118 S.Ct. 2246, 141 L.Ed.2d 615;  compare North Carolina v. Pearce, supra, 395 U.S. at p. 723, 89 S.Ct. 2072.)

12.   Appellant points out that, pursuant to Neal v. State of California (1960) 55 Cal.2d 11, 19, 9 Cal.Rptr. 607, 357 P.2d 839 “[i]f only a single act is charged as the basis of the multiple convictions, only one conviction can be affirmed, notwithstanding that the offenses are not necessarily included offenses.”   Here, while there was one indivisible course of conduct, there were two acts:  appellant's demand that Petersen drive, and appellant's attempt to drive the truck himself.   Accordingly, multiple convictions are proper.  (See People v. Cline, supra, 60 Cal.App.4th at p. 1336, 71 Cal.Rptr.2d 41 [multiple convictions for grand theft and commercial burglary proper, but sentence on one to be stayed, where defendant entered store and stole clothing].)

13.   Appellant's convictions for robbery involving the personal use of a firearm and victim intimidation also constitute strikes. (§§ 667, subd. (d)(1);  667.5, subds. (c)(9), (c)(22);  1170.12, subd. (b)(1);  1192.7, subds. (c)(19), (c)(37), (c)(40).)

14.   We note that double jeopardy challenges to recidivist statutes have consistently been rejected “because the enhanced punishment imposed for the later offense ‘is not to be viewed as either a new jeopardy or additional penalty for the earlier crimes,’ but instead as ‘a stiffened penalty for the latest crime, which is considered to be an aggravated offense because a repetitive one.’  [Citations.]”  (Witte v. United States (1995) 515 U.S. 389, 400, 115 S.Ct. 2199, 132 L.Ed.2d 351;  accord, Ewing v. California (2003) 538 U.S. 11, 25-26, 123 S.Ct. 1179, 155 L.Ed.2d 108.)   Although some courts have addressed potential increased punishment (see, e.g., People v. Pearson, supra, 42 Cal.3d at pp. 362-363, 228 Cal.Rptr. 509, 721 P.2d 595), the California Supreme Court has made it clear that, in the case of multiple strikes arising from counts originally stayed under section 654, “ ‘there are some circumstances in which two prior felony convictions are so closely connected ․ that a trial court would abuse its discretion under section 1385 if it failed to strike one of the priors.’  [Citation.]”  (People v. Sanchez (2001) 24 Cal.4th 983, 993, 103 Cal.Rptr.2d 698, 16 P.3d 118, quoting People v. Benson (1998) 18 Cal.4th 24, 36 & fn. 8, 74 Cal.Rptr.2d 294, 954 P.2d 557.) Sanchez concerned a situation in which the defendant complained that, if the court decided he could be convicted of two offenses arising out of the same act because those offenses were not greater and lesser included offenses, he could be subject to enhanced punishment under the three strikes law despite a section 654 stay, since he could be treated as having two strikes on the basis of the two convictions.   The high court determined it was “not faced with that question in the present case․” (People v. Sanchez, supra, at p. 993, 103 Cal.Rptr.2d 698, 16 P.3d 118.)

15.   Count 7 also gave jurors the alternative of convicting appellant of attempted unlawful driving or taking of a vehicle.

FOOTNOTE.   See footnote *, ante.



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Docket No: No. F044291.

Decided: February 25, 2005

Court: Court of Appeal, Fifth District, California.

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