People v. Fontenot

Defendant John Reynold Fontenot was charged with completed kidnapping, but he

attempted kidnapping, instead of merely arguing that the evidence was insufficient to prove completed kidnapping. Fontenot ultimately received a Three Strikes sentence.

Fontenot appealed. In its unpublished decision, the Court of Appeal treated as controlling our conclusion in Martinez that "attempted kidnapping is a lesser included offense of kidnapping." So despite acknowledging that our subsequent decision in People v. Bailey (2012) 54 Cal.4th 740 , 143 Cal.Rptr.3d 647 , 279 P.3d 1120 ( Bailey ) "appears to undermine" Martinez by holding that attempted escape is not a lesser included offense of escape, the Court of Appeal affirmed. In view of "the apparent confusion in the intermediate appellate courts following Bailey ," however, the Court of Appeal asked us to "provide further guidance with regard to the issues surrounding attempted kidnapping." Taking the request from our appellate court colleagues to heart, we granted review.

Fontenot was charged with completed kidnapping under section 207, subdivision (a). That provision establishes that "[e]very person who forcibly, or by any other means of instilling fear, steals or takes, or holds, detains, or arrests any person in this state, and carries the person into another country, state, or county, or into another part of the same county, is guilty of kidnapping." ( § 207, subd. (a).) What Fontenot was convicted of is an attempt to commit kidnapping within the meaning of section 207, subdivision (a). But by itself, this discrepancy between charge and conviction does not warrant reversal. Nor do any other arguments Fontenot has properly presented in our court.

A.

Under California law, a defendant may be convicted of an attempt even if the People charged only the completed crime. The relevant statute is Penal Code section 1159, and what it provides is this: "The jury, or the judge if a jury trial is waived, may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged, or of an attempt to commit the offense ." (Italics added.) Citing section 1159, we upheld in People v. Oates (1904) 142 Cal. 12 , 75 P. 337 ( Oates ) a conviction where the jury was instructed on, and found the defendant guilty of, an attempt to commit the completed offense charged in the information. ( Id. at pp. 13-14, 75 P. 337 [describing as "erroneous" the "assumption that [a] defendant [may] not be convicted of an attempt to commit the crime charged"].) We approved such a procedure both before and after deciding Oates . (See People v. Defoor (1893) 100 Cal. 150 , 154, 34 P. 642 [before]; People v. Vanderbilt (1926) 199 Cal. 461 , 464, 249 P. 867 [after].)

California is not alone. Many jurisdictions have a similar statute or rule allowing criminal defendants to be convicted of an attempt when they are charged only with the completed offense. In the federal system, for example, Federal Rules of Criminal Procedure, rule 31(c) provides (in relevant part) that a "defendant may be found guilty" of not just "an offense necessarily

Courts across the country have held that such provisions raise no federal constitutional problem. Several state high courts have addressed whether their relevant statute or rule gives defendants charged with a completed offense sufficient notice that they may instead face conviction for an attempt. And all those courts have concluded the answer is yes. (See, e.g., State v. Young (1981) 139 Vt. 535 , 433 A.2d 254 , 258 [holding that such a provision prevented "unfair surprise"]; Patton v. State (Miss. 2012) 109 So.3d 66 , 81 [similar]; see also Com. v. Sims (2007) 591 Pa. 506 , 919 A.2d 931 , 941-942 [relying in part on Model Pen. Code, § 1.07, subd. (4)(b) to hold that a defendant convicted of, but not charged with, an attempt to commit the charged offense suffered no constitutional violation - even without a state statute on point];

every element of the offense beyond a reasonable doubt. (See People v. Flood (1998) 18 Cal.4th 470 , 523, 76 Cal.Rptr.2d 180 , 957 P.2d 869 , citing Sullivan v. Louisiana (1993) 508 U.S. 275 , 277-278, 113 S.Ct. 2078 , 124 L.Ed.2d 182 .) Nothing of the sort happened here. To be sure, an attempt to commit kidnapping under section 207, subdivision (a) has an intent element that the completed crime lacks. But in this case the trial court, sitting as the trier of fact, recognized as much and made an express finding on that additional element.

escape, we explained, the mental state required is only what we and other courts have often called "general criminal intent": if "the defendant intentionally d[id] the act which constitutes the crime," the government need not prove his precise purpose for doing it. ( Ibid. ) By contrast, "attempt to escape requires a specific intent to escape" - that is, a conscious design or purpose to avoid confinement. ( Ibid. ; see also People v. Pool (1865) 27 Cal. 572 , 585 (opn. on denial of rehearing) [defining "specific intent" as a "design or purpose" of achieving a particular - usually harmful - end]; People v. Davis (1995) 10 Cal.4th 463 , 518-519, fn. 15, 41 Cal.Rptr.2d 826 , 896 P.2d 119 [observing that a "crime is characterized as a 'general intent' crime when the required mental state entails only an intent to do the act that causes the harm," but it "is characterized as a 'specific intent' crime when the required mental state entails an intent to cause the resulting harm"].) The latter offense therefore calls for a more searching inquiry into the defendant's mental state.

We ourselves have lamented that the distinction between specific and general intent is "notoriously difficult to define and apply" - but the distinction between intent of a more specific or more general nature nevertheless can be meaningful. ( People v. Hood (1969) 1 Cal.3d 444 , 456, 82 Cal.Rptr. 618 , 462 P.2d 370 ( Hood ).) Case in point: evidence that the defendant in Bailey "was voluntarily intoxicated or intended to return [to prison]" would bear on whether he was guilty of attempted escape, but not on whether he was guilty of completed escape. ( Bailey , at p. 749, 143 Cal.Rptr.3d 647 , 279 P.3d 1120 ; see also Carter v. United States (2000) 530 U.S. 255 , 268, 120 S.Ct. 2159 , 147 L.Ed.2d 203 [distinguishing " 'specific intent' " from " 'general intent' " on the ground that the former, but not the latter, demands inquiry into whether the defendant had a purpose or goal to cause

attempting to accomplish something they

defendant formed the intent necessary to be guilty of completed kidnapping. ( People v. Hernandez (1988) 46 Cal.3d 194 , 209-211, 249 Cal.Rptr. 850 , 757 P.2d 1013 .)

An attempt to commit kidnapping under section 207, subdivision (a), by contrast, is most consistent with what our case law tends to describe as a "specific intent" crime. It requires that the defendant act with a conscious design or purpose to accomplish what the provision punishing the completed crime prohibits (or -- stated otherwise -- to bring about the harmful result that statute proscribes): taking and

require a "heightened mental state" as compared to completed offenses]; U.S. v. Gracidas-Ulibarry , supra , 231 F.3d at p. 1192 [similar].)

The additional intent element required both for attempted escape and for attempted kidnapping underscores why we decided Bailey the way we did. A reviewing court may not reduce a conviction for completed escape to one for attempted escape, we explained in Bailey , because doing so would gloss over the heightened intent requirement that, for the latter offense, must be proved beyond a reasonable doubt. ( Bailey , supra , 54 Cal.4th at p. 752, 143 Cal.Rptr.3d 647 , 279 P.3d 1120 .) And that additional element suggests we were wrong in Martinez to reduce on appeal a conviction for completed kidnapping to one for attempted kidnapping.

In neither Bailey nor Martinez was the attempt a lesser included offense of the completed crime under the elements test. Moreover, in Bailey , the case was "tried solely as an escape" and "the trial court did not instruct on attempt to escape ...." (

intent to sell [the victim] into slavery or involuntary servitude, or otherwise to employ" the victim against his or her will. ( § 207, subd. (c), italics added.)

And while subdivision (e) does not itself establish a stand-alone offense, it provides that - for the various "types of kidnapping [offenses] requiring force" established in other subdivisions of section 207, including kidnapping under subdivision (a) - "the amount of force required to kidnap an unresisting infant or child is the amount of physical force required to take and carry the child away a substantial distance for an illegal purpose or with an illegal intent ." ( § 207, subd. (e), italics added; see also People v. Oliver (1961) 55 Cal.2d 761 , 768, 12 Cal.Rptr. 865 , 361 P.2d 593 .) That latter wrinkle could affect whether the attempted kidnapping of a young child is a lesser included offense of the completed crime. (See conc. opn. of Kruger, J., post , 251 Cal.Rptr.3d at pp. 363-366, 447 P.3d at pp. 271-273.) Indeed, these are precisely the kind of " 'intricacies and doctrinal divergences' " ( Bailey, supra , 54 Cal.4th at p. 753, 143 Cal.Rptr.3d 647 , 279 P.3d 1120 , quoting Moorman v. Thalacker (8th Cir. 1996) 83 F.3d 970 , 974 ) that, as we explained in Bailey , cut against " 'generaliz[ing] in the law of attempt' " ( Bailey , at p. 753, 143 Cal.Rptr.3d 647 , 279 P.3d 1120 , quoting U.S. v. Berrigan (3d Cir. 1973) 482 F.2d 171 , 187 ).

True: this case involved a young victim. But at no point have the People relied on subdivision (e) of section 207 - nor does the briefing before us address any subdivision of section 207 other than (a). So

required for an attempt conviction; the jury was not even instructed on it. (See Bailey , supra , 54 Cal.4th at p. 752, 143 Cal.Rptr.3d 647 , 279 P.3d 1120 ; Martinez , supra , 20 Cal.4th at pp. 230, 241, 83 Cal.Rptr.2d 533 , 973 P.2d 512 .) So in Bailey we held that the defendant's conviction at trial for the completed offense could not be changed on appeal to a conviction for

enough cause for confusion at the time of trial to justify reversal of his conviction on constitutional grounds. And in addition to cases from our court, Fontenot cites decisions of the Court of Appeal to support that fallback argument, including most notably People v. Braslaw (2015) 233 Cal.App.4th 1239 , 183 Cal.Rptr.3d 575 and People v. Hamernik (2016) 1 Cal.App.5th 412 , 204 Cal.Rptr.3d 649 .

In Braslaw , which was decided before Fontenot's trial, the Court of Appeal held that trial courts have "no sua sponte duty to instruct on attempt unless it is also a lesser included offense." ( People v. Braslaw , supra, 233 Cal.App.4th at p. 1247, 183 Cal.Rptr.3d 575 .) Braslaw echoed Bailey 's purported " 'qualification' " of section 1159 ( Braslaw , at p. 1247, 183 Cal.Rptr.3d 575 ), but the case did not involve any issue regarding the authority to convict of an uncharged attempt. In Hamernik , the Court of Appeal reversed an attempt conviction solely because the defendant was charged with the completed offense but the attempt - though presented to the jury - "was not included in the information." ( People v. Hamernik , supra, 1 Cal.App.5th at pp. 426-427, 204 Cal.Rptr.3d 649 .) Hamernik cited Bailey only in connection with its analysis of whether the crime of attempt was a lesser included offense of the charged crime. The Hamernik court was apparently not aware of, much less confused by, Bailey 's dicta on which Fontenot relies. In fact, Hamernik did not even acknowledge section 1159, perhaps because the People focused on section 1009, which addresses courts' authority to allow an amendment of charges after the defendant has responded to the original pleading. Moreover, Fontenot could not have relied on Hamernik 's erroneous holding because Hamernik was decided after the trial in this case. But Fontenot argues that the court's conclusion nevertheless demonstrates that litigants, like the Court of Appeal, wouldn't have understood that a defendant could be convicted of an attempt despite being charged only with a completed crime. So according to Fontenot, the state of California case law at the time of his trial so muddled the meaning of section 1159 that his conviction cannot stand.

We reject Fontenot's fallback argument. Just as our dicta in Bailey and other decisions do not control our decision today, Fontenot could not reasonably rely on those statements in preparing for trial in the face of section 1159 's unambiguous and clearly relevant language, and the nearly ubiquitous charging practice it establishes. Indeed, we made clear in Bailey that "concerns about notice" were "not at issue" there. ( Bailey , supra , 54 Cal.4th at p. 752, 143 Cal.Rptr.3d 647 , 279 P.3d 1120 .) And, as discussed above, not one of our other cases with sweeping, seemingly absolute statements about convictions for uncharged crimes involved an attempt.

These circumstances - a defendant's reliance on dicta that is inconsistent with a clear statute and common practice - present a

Moss v. Superior Court (1998) 17 Cal.4th 396 , 71 Cal.Rptr.2d 215 , 950 P.2d 59 ( Moss ), on which the dissent relies. (Con. & dis. opn. of Liu, J., post , 251 Cal.Rptr.3d at pp. 367-368, 447 P.3d at pp. 274-275.) In Moss , we considered whether

The foregoing conclusions resolve the challenges to Fontenot's conviction that he has meaningfully advanced in our court. So we affirm the Court of Appeal's judgment.

We Concur:

CANTIL-SAKAUYE, C. J.

CHIN, J.

CORRIGAN, J.

KRUGER, J.

Defendant John Reynold Fontenot was dragging a four-year-old girl through a building lobby when he was stopped by the combined efforts of the girl's babysitter and her playmates. Defendant was charged with kidnapping. After a bench trial, the trial court found that defendant had not managed to complete the kidnapping before he was stopped, but that he had attempted to kidnap her. Defendant challenges the resulting conviction on the ground that he lacked adequate notice that

criminal intent required for forcible kidnapping under Penal Code section 207, subdivision (a), and the "specific" intent to kidnap required for attempted kidnapping. But the question whether there is a substantive difference between these two mental states, beyond the difference in labels, is more complex than either defendant or the majority acknowledges. And more to the point, precedent establishes that where, as here, the victim is a young child, the crime of kidnapping requires the taking and asportation of the victim be done for an illegal purpose or with an illegal intent. ( In re Michele D. (2002) 29 Cal.4th 600 , 610-612, 128 Cal.Rptr.2d 92 , 59 P.3d 164 ; People v. Oliver (1961) 55 Cal.2d 761 , 767-768, 12 Cal.Rptr. 865 , 361 P.2d 593 ( Oliver ).) That is a kind of specific intent requirement, and it is substantively indistinguishable from the specific intent requirement for attempted kidnapping. Thus, at least where the victim is a young child, it would seem that attempted kidnapping is, in fact, a lesser included offense of kidnapping. We should leave other questions about other forms of the offense for cases in which those questions are squarely presented.

The lesser included offense issue is one that has generated considerable confusion among both lower courts and the parties to this case. Again, there is no reason for us to decide the issue here. But if we are going to address it anyway, some clarification would be helpful.

conviction for a completed crime to a conviction for attempt. On that question, Bailey unquestionably reached the right result: Based on the elements found by the jury, the defendant's invalidated escape conviction could not be reduced to attempted escape on the ground that the latter was a lesser included offense of the former. This is because the jury that rendered the escape conviction had never found that the defendant had the intent that would have been necessary to support a conviction for attempted escape (or

evidence of intoxication may be used to defend against an assault charge "must rest on other considerations." ( Hood , at p. 458, 82 Cal.Rptr. 618 , 462 P.2d 370 .) A similar note of caution is in order here. Whether attempt is a lesser included offense of the completed crime does not turn on a mere difference in labels, but on the "reality" of the distinction in the context of a particular crime. ( Ibid. ) The question we must ask is whether, in substance, the attempt offense requires proof of some element the completed crime does not.

With this background in mind, we can return to the matter at hand: Was attempted kidnapping a lesser included offense of the crime charged in this case? Defendant says no, and the Attorney General concedes the point. Completed kidnapping under Penal Code section 207, subdivision (a), requires proof the defendant took the victim and carried him or her away a substantial distance by force or fear and without the victim's consent. Defendant reasons that a conviction for completed kidnapping requires only general criminal intent as to the criminal act itself, meaning intent to move the victim a substantial distance. ( People v. Mayberry (1975) 15 Cal.3d 143 , 153, 125 Cal.Rptr. 745 , 542 P.2d 1337 ; People v. Dalerio (2006) 144 Cal.App.4th 775 , 781, 50 Cal.Rptr.3d 724 .) By contrast, attempted kidnapping requires proof of a specific intent to move the victim a substantial distance. But labels aside, defendant does not explain how this intent requirement differs substantively from the general intent required for the completed offense.

The majority does suggest one possible answer, but it is not clear the answer is correct. The majority points out that for forcible kidnapping, much as for forcible rape, California law provides a defense of reasonable and bona fide belief that the victim consented to the asportation. The law thus effectively requires that the defendant have been at least negligent as to the victim's consent. (Maj. opn., ante , 251 Cal.Rptr.3d at pp. 350-351, 447 P.3d at p. 260; Mayberry , at pp. 154-155, 125 Cal.Rptr. 745 , 542 P.2d 1337 .) In contrast, the majority reasons, attempted kidnapping under Penal Code section 21a must impose a heightened mens rea element that "requires the defendant to purposefully inflict whatever degree of force or fear is required to overcome the victim's will." (Maj. opn., ante , 251 Cal.Rptr.3d at p. 351, 447 P.3d at p. 261, italics added.) Elsewhere, the majority describes this requirement as a "conscious design or purpose" to "tak[e] and carr[y] away the victim a substantial distance, by force or fear, and without consent." ( Id. at pp. 350-351, 447 P.3d at p. 260.) Though the majority does not say it precisely this way, this "conscious design" requirement would seem to mean that for attempted kidnapping the People must prove both that the defendant intended to carry the

For reasons I'll explain further below, this explanation does not have much to do with this case. The victim was a four-year-old legally incapable of consent; whether the child consented to being carried away, or whether defendant believed she consented, was not at issue. But even setting the point aside for now, it seems to me we should pause before embracing this suggested view of the specific intent requirement for attempted kidnapping and other crimes to which the victim's consent is relevant.

Whether the majority's suggested view is correct depends on what we mean when we say that an attempt involves an "intent to commit the crime." ( Pen. Code, § 21a.) If that means the defendant's purpose must encompass each of the circumstances that make an act criminal, including the existence of victim's lack of consent, then an attempt will often require a higher mens rea as to those circumstances than the completed crime. But alternatively, if "intent to commit the crime" simply means intent to commit an act that would be criminal if completed, then it is not clear why a defendant who intended to move a person the defendant should have known to be unconsenting, and took a concrete step to put the plan into action, should not be held liable for attempted kidnapping.

If we are choosing between these two interpretations, there are some good reasons to prefer the second one. For one, it fits with common understandings of the law of attempt. If a person tries to take an unconsenting victim, unreasonably failing to see the victim's unwillingness to go, and is stopped before he can travel too far, undoubtedly many of us would say that person attempted to kidnap the victim. The law of attempt, as we have explained, is designed to protect society from the harm threatened by individuals who set out on a course of criminal conduct but " 'for some collateral reason [are unable to] complete the intended crime.' " ( People v. Toledo (2001) 26 Cal.4th 221 , 230, 109 Cal.Rptr.2d 315 , 26 P.3d 1051 .) A person who tries and fails to carry away an unconsenting victim threatens significant harm, even if he has been merely negligent or reckless in ascertaining the victim's consent.

The second interpretation also fits with the ways we have previously described the intent requirement for attempt. We have said a defendant may be convicted of criminal attempt when he or she acts "with the intent to engage in the conduct and/or bring about the consequences proscribed by the attempted crime [citation], and performs an act that ... 'show[s] that the perpetrator is putting his or her plan into action.' " ( People v. Toledo , supra , 26 Cal.4th at p. 230, 109 Cal.Rptr.2d 315 , 26 P.3d 1051 ; see 2 LaFave, Substantive Criminal Law (2018) Solicitation and Attempt, § 11.3, p. 293 (LaFave) [describing mental state for attempt as "an intent to do an act or to bring about a certain consequence which would in law amount to a crime"].) We have not further required that the defendant act with a purpose of performing the prescribed acts under the particular circumstances that render them illegal.

The Model Penal Code makes this point more explicitly: For an attempt, the Model Penal Code requires that the person act purposefully as to the criminal conduct itself, with purpose or belief as to a particular result that is an element of the completed crime, but in other respects only "with the kind of culpability otherwise required for commission of the crime." (Model Pen. Code, § 5.01, subd. (1).) An explanatory note reiterates that while purposive action is required as to the criminal conduct itself, "with respect to the circumstances

two-year-old child. He complained that under the standard instruction on the intent for kidnapping, which stated that no proof of a specific intent or purpose was needed, an adult forcibly moving a child without any wrongful purpose-for example, to rescue the child from danger or simply to walk with the child down the street-could be convicted of kidnapping. ( Id. at pp. 764-765, 12 Cal.Rptr. 865 , 361 P.2d 593 .) The court agreed, and noted the same could be true of an adult victim mentally incapacitated by illness or intoxication. Considering this result inconsistent with legislative purpose, we formulated this general rule: " Penal Code, section 207, as applied to a person forcibly taking and carrying away another, who by reason of immaturity or mental condition is unable to give his legal consent thereto, should ... be construed as making the one so acting guilty of kidnaping only if the taking and carrying away is done for an illegal purpose or with an illegal intent." ( Oliver , at p. 768, 12 Cal.Rptr. 865 , 361 P.2d 593 .) We have since repeatedly reaffirmed this holding. ( People v. Hill (2000) 23 Cal.4th 853 , 856-857, 98 Cal.Rptr.2d 254 , 3 P.3d 898 ; In re Michele D. , supra , 29 Cal.4th at pp. 610-612, 128 Cal.Rptr.2d 92 , 59 P.3d 164 ( Michele D. ); People v. Westerfield (2019) 6 Cal.5th 632 , 714, 243 Cal.Rptr.3d 18 , 433 P.3d 914 .)

In Michele D. , we considered a second, corollary question: If the victim is too young to withhold consent to movement and therefore offers no resistance to the asportation, how is the element of force or

Penal Code section 207, subdivision (e), but only on subdivision (a) of that statute, which defines the offense of forcible kidnapping. (Maj. opn., ante , 251 Cal.Rptr.3d at pp. 352-353, 447 P.3d at pp. 262-263.) It is true that at defendant's bench trial, the parties' arguments paid little or no attention to the "illegal purpose" element-indeed, they barely addressed any element other than asportation; both attorneys noted that the only serious dispute was over whether the victim had been moved a substantial distance. But both court and counsel had before them and referred to a standard instruction on kidnapping,

In short, whatever might be said about the offense in general, kidnapping is a specific intent crime when the victim is a young child, requiring proof defendant took and moved the victim for an illegal purpose or with an illegal intent. It appears there is no difference between this mental state requirement and the required mental state for attempted kidnapping. Defendant's challenge to his attempted kidnapping conviction falters out of the gate.

Ultimately, however, I return to where I began. The lesser included question is largely academic here. Whatever fine distinctions might or might not exist between the mental state requirements for attempted kidnapping and the crime charged in this case, the Legislature has put all defendants charged with crime on notice that they may be convicted of attempt if the evidence supports it. As the majority opinion holds, Penal Code section 1159 affords defendants constitutionally adequate notice that they may be convicted of an attempt to commit the charged crime. (Maj. opn., ante , 251 Cal.Rptr.3d at pp. 344-347, 447 P.3d at pp. 255-257.) On this basis, I concur in the judgment of the court.

LIU, J.

Today's opinion correctly holds that attempted kidnapping is not a lesser included offense of completed kidnapping and that Penal Code section 1159 ( section 1159 ) authorizes conviction for an uncharged attempt to commit a charged offense, even if the attempt is not necessarily included in the charged offense. I do not agree, however, that the defendant in this case had sufficient notice to permit conviction for attempted kidnapping on a charge of completed kidnapping. Notwithstanding the plain language of

whether conduct is criminal violates due process of law. ( Moss v. Superior Court (1998) 17 Cal.4th 396 , 429-430, 71 Cal.Rptr.2d 215 , 950 P.2d 59 ( Moss ).) In Moss , we evaluated whether "a parent whose inability to pay court-ordered child support results from a willful failure to seek and obtain employment [may] be adjudged in contempt of court and punished for violation of the order." ( Id. at p. 400, 71 Cal.Rptr.2d 215 , 950 P.2d 59 .) We held that such a parent could be subject to contempt sanctions, but we declined to apply this rule to the litigant before us, Brent Moss. ( Id. at p. 401, 71 Cal.Rptr.2d 215 , 950 P.2d 59 .) A prior case, Ex parte Todd (1897) 119 Cal. 57 , 50 P. 1071 , had held that a court may not impose contempt sanctions for nonpayment of spousal support in such circumstances. Although Moss involved child support, not spousal support, we observed that "no basis for distinguishing child support orders was apparent at the time Todd was decided ...." ( Moss , at p. 429, 71 Cal.Rptr.2d 215 , 950 P.2d 59 .) We acknowledged that "the Legislature has authorized a court to require nonsupporting parents to demonstrate that efforts have been made to find employment" ( ibid. ) and that "the Legislature intend[ed] that ... parental ability to work in order to support a child be considered in any enforcement action" ( id. at p. 423, 71 Cal.Rptr.2d 215 , 950 P.2d 59 ). Nevertheless, we were "unwilling to assume" that "Brent should have known in advance of our decision today ... that Todd was inapplicable ...." ( Id. at p. 429, 71 Cal.Rptr.2d 215 , 950 P.2d 59 .) Thus, even though Todd involved spousal support and not child support, and even though the Legislature had enacted child support statutes bearing on the issue presented, we concluded that "Brent could reasonably have relied on Todd " for a contrary rule applicable to child support and that our decision in Moss "may reasonably be seen ... as an unanticipated expansion of the law of contempt in the child support context." ( Moss , supra , 17 Cal.4th at p. 429, 71 Cal.Rptr.2d 215 , 950 P.2d 59 .)

We applied similar reasoning in holding that Brent could not be subject to a second rule we newly established in Moss , i.e., that an alleged contemnor has the burden of proof as to inability to pay. ( Moss , supra , 17 Cal.4th at p. 430, 71 Cal.Rptr.2d 215 , 950 P.2d 59 .) Because this new rule partially disapproved In re Feiock (1989) 215 Cal.App.3d 141 , 263 Cal.Rptr. 437 , retroactive application to Brent violated due process. ( Moss , at p. 430, 71 Cal.Rptr.2d 215 , 950 P.2d 59 .) As we explained, "to state a new rule on appeal after trial ... and to apply the new rule retroactively to a trial at which the defendant did not have notice of the change is not permissible." ( Ibid. )

Similarly here, Fontenot "could reasonably have relied" on our prior statements limiting convictions for uncharged crimes to those necessarily included in charged crimes, and today's opinion "may reasonably be seen" as "an unanticipated change in the law." ( Moss , supra , 17 Cal. 4th at pp. 429, 401, 71 Cal.Rptr.2d 215 , 950 P.2d 59 .)

Considered in isolation, the plain language of section 1159 would have provided

the text of section 1159 did not exist in a vacuum at the time of Fontenot's trial. Notwithstanding the statute's text, this court had repeatedly stated, with citations to section 1159 , that a defendant could be convicted of an uncharged crime only if that crime is a lesser included offense of a charged crime.

In In re Hess (1955) 45 Cal.2d 171 , 288 P.2d 5 ( Hess ), we said: "A person cannot be convicted of an offense (other than a necessarily included offense) not charged against him by indictment or information, whether or not there was evidence at his trial to show that he had committed that offense." ( Id. at pp. 174-175, 288 P.2d 5 .) In support of this conclusion, we cited to a string of cases and statutes, including section 1159. ( Hess , at p. 175, 288 P.2d 5 .)

In People v. West (1970) 3 Cal.3d 595 , 91 Cal.Rptr. 385 , 477 P.2d 409 ( West ), we cited Hess in stating that "[w]hen 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." ( West at p. 612, 91 Cal.Rptr. 385 , 477 P.2d 409 , citing Hess , supra , 45 Cal.2d at pp. 174-175, 288 P.2d 5 .) We quoted Hess 's concern that " '[d]ue process of law requires that an accused be advised of the charges against him in 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.' " ( West , at p. 612, 91 Cal.Rptr. 385 , 477 P.2d 409 , quoting Hess , at p. 175, 288 P.2d 5 .)

In People v. Lohbauer (1981) 29 Cal.3d 364 , 173 Cal.Rptr. 453 , 627 P.2d 183 ( Lohbauer ), we said that a defendant cannot "be convicted of an offense which is neither specifically charged in the accusatory pleading nor 'necessarily included' within a charged offense." ( Id. at p. 367, 173 Cal.Rptr. 453 , 627 P.2d 183 .) Echoing Hess and West , and citing section 1159, we explained that "the requisite notice is nonetheless afforded if the lesser offense is 'necessarily included' within the statutory definition of the charged offense; in such event conviction of the included offense is expressly authorized ( § 1159 )." ( Lohbauer , at p. 367, 173 Cal.Rptr. 453 , 627 P.2d 183 .)

In People v. Reed (2006) 38 Cal.4th 1224 , 45 Cal.Rptr.3d 353 , 137 P.3d 184 ( Reed ), we again said: "A defendant may be convicted of an uncharged crime if, but only if, the uncharged crime is necessarily included in the charged crime. ( § 1159 ; Lohbauer , supra , 29 Cal.3d at pp. 368-369, 173 Cal.Rptr. 453 , 627 P.2d 183 .) The reason for this rule is settled. ' "This reasoning rests upon a constitutional basis: 'Due process of law requires that an accused be advised of the charges against him in 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.]" ' ( Lohbauer , supra , at p. 368, 173 Cal.Rptr. 453 , 627 P.2d 183 .) The required notice is provided as to any charged offense and any lesser offense that is necessarily committed when the charged offense is committed." ( Id. at p. 1227, 45 Cal.Rptr.3d 353 , 137 P.3d 184 .)

This language in Reed could not be clearer. We did not say that a defendant may be convicted of an uncharged crime if, but only if, the uncharged crime

either is necessarily included in the charged crime or is an attempt to complete the charged crime . Instead, we said that due process requires notice of charges and that such notice is given only for the charged offense and lesser-included offenses. In stating this rule, we cited section 1159. One year later, in People v. Sloan (2007) 42 Cal.4th 110 , 64 Cal.Rptr.3d 137 , 164 P.3d 568 , we

qualification that under section 1159, '[a] defendant may be convicted of an uncharged crime if, but only if, the uncharged crime is necessarily included in the charged crime.' " ( Bailey , supra , 54 Cal.4th at p. 752, 143 Cal.Rptr.3d 647 , 279 P.3d 1120 .)

The court says our past statements "do not dictate our decision in this case about the meaning and constitutionality of section 1159" because none of our prior decisions "confronted a situation like this one." (Maj. opn., ante , 251 Cal.Rptr.3d at p. 354, 447 P.3d at p. 263.) But the above-quoted passage in Bailey construing section 1159 was not dicta; it was reasoning essential to

People v. Martinez (1999) 20 Cal.4th 225 , 83 Cal.Rptr.2d 533 , 973 P.2d 512 . (Maj. opn., ante , 251 Cal.Rptr.3d at p. 355, 447 P.3d at p. 264.) In a single sentence, without elaboration, Martinez treated attempted kidnapping as a lesser included offense of completed kidnapping. ( Martinez , at p. 241, 83 Cal.Rptr.2d 533 , 973 P.2d 512 .) But, as the Attorney General concedes, and as today's opinion holds, our reasoning in Bailey as to why attempted escape is not a lesser included offense of escape fatally undermined that portion of Martinez , which contained no "reasoned consideration" of the issue before us. (Maj. opn., ante , 251 Cal.Rptr.3d at p. 352, 447 P.3d at pp. 261-262.) Further, the court acknowledges, " Martinez is scarcely different" from Bailey in the essential contours of the facts and legal question presented. ( Ibid. ) If the nonpaying parent in Moss , a case about child support, could reasonably rely on Todd , a case about spousal support, notwithstanding contrary statutes because Todd 's logic applied equally to child support (see Moss , supra , 17 Cal.4th at p. 429, 71 Cal.Rptr.2d 215 , 950 P.2d 59 ), then I see no reason why Fontenot, whose case involves attempted kidnapping, could not reasonably rely on Bailey , a case about attempted escape, notwithstanding Martinez in light of the court's conclusion that Bailey 's logic applies equally to attempted kidnapping.

The next day, Fontenot's attorney filed a letter brief challenging the verdict. She pointed out that the People neither charged Fontenot with, nor urged a conviction for, attempted kidnapping. Fontenot's attorney also argued that, because attempted kidnapping is "not a lesser included offense" of completed kidnapping,

offense of the completed crime. (See, e.g., State v. Young , supra , 433 A.2d at p. 258.) Others have looked instead to the notice provided by the terms of their relevant state statute or rule. (See, e.g., Patton v. State , supra , 109 So.3d at p. 81, citing Eakes v. State (Miss. 1995) 665 So.2d 852 , 860 ; State v. March (1995) 39 Conn.App. 267 , 664 A.2d 1157 , 1161.) Despite such distinctions, not one state high court or federal appellate court has reversed an attempt conviction simply because the defendant was charged only with the completed crime.

We decline Fontenot's invitation to be the first. The Sixth Amendment to the United States Constitution accords criminal defendants the right "to be informed of the nature and cause of the accusation" against them. ( U.S. Const., 6th Amend.; see

liable, courts impose a "heightened intent requirement" for attempts - even when the completed crime requires a less demanding mental state. ( U.S. v. Gracidas-Ulibarry, supra , 231 F.3d at p. 1193.) In effect, the higher bar serves as a bulwark against convicting someone of

is guilty of attempted kidnapping. (See People v. Williams (1988) 44 Cal.3d 883 , 908, 245 Cal.Rptr. 336 , 751 P.2d 395 [noting that "alcohol intoxication" may negate "specific intent to commit" kidnapping].) So it's possible for an intoxicated defendant to commit completed kidnapping under section 207, subdivision (a) without necessarily committing attempted kidnapping along the way. And while completed kidnapping under that provision requires mere criminal negligence as to consent to satisfy the baseline requirement for criminality of (almost) any kind ( Mayberry , supra, 15 Cal.3d at p. 154, 125 Cal.Rptr. 745 , 542 P.2d 1337 ), attempted kidnapping requires the defendant to purposefully inflict whatever degree of force or fear is required to overcome the victim's will (see §§ 21a, 207, subd. (a) ; cf. Davis , supra , 10 Cal.4th at p. 509, 41 Cal.Rptr.2d 826 , 896 P.2d 119 .). Put another way: we agree with the "prevailing view" that an attempt "cannot be committed by recklessness or negligence" - "even if the underlying crime can be so committed." (LaFave, supra , § 11.3, p. 293.)

Of course, the Legislature may conclude it makes sense to punish negligent or reckless conduct in this context, irrespective of whether a particular harm is brought about - and subject to constitutional constraints, it can criminalize such conduct. (See LaFave, supra, § 11.3(b), p. 298.) While enactment of such an offense would functionally overlap with the kind of attempt Justice Kruger envisions -- where the required mens rea is merely recklessness or negligence -- there's no basis in our law to presume that attempt offenses require mere negligence or recklessness. To the contrary: such a conclusion cuts sharply against the distinctions we've repeatedly drawn between the intent that must be shown to establish a defendant's guilt of a completed offense, and the intent that establishes attempt. (See Bailey , supra , at pp. 750-751, 143 Cal.Rptr.3d 647 , 279 P.3d 1120 ; Williams , supra , 26 Cal.4th at p. 786, 111 Cal.Rptr.2d 114 , 29 P.3d 197 .) Other courts have drawn similar distinctions, too. (See, e.g., United States v. Bailey , supra , 444 U.S. at p. 405, 100 S.Ct. 624 [explaining that "inchoate offenses such as attempt"

crime. ( Martinez , at p. 241, 83 Cal.Rptr.2d 533 , 973 P.2d 512 ). So we overrule that portion of Martinez .

Yet we do not supplant Martinez 's across-the-board assumption with an equally sweeping conclusion of our own. Our decision does not mean all attempts are created equal, any more than all completed offenses are. Attempts may be lesser included offenses of the completed crime - and, at the very least, application of the elements test may not always be straightforward. (See Bailey , supra , 54 Cal.4th at p. 753, 143 Cal.Rptr.3d 647 , 279 P.3d 1120 .) Look no further than the very criminal statute at issue here. Other variations of kidnapping set out in different subdivisions of section 207 have distinct elements, including as to the mental state required for a conviction. Subdivision (c), for example, establishes as a separate offense kidnapping that is: (1) achieved by force, fear, or various forms of deception ; and (2) " for the purpose and with the

an attempt. And we erred in Martinez by not reaching a similar result. But the factfinder in Fontenot's bench trial (the judge) recognized that a conviction for attempted kidnapping requires specific intent - and he expressly made a finding to that effect. Accordingly, unlike in Bailey and Martinez , the factfinder in this case indeed found every element necessary to support an attempt conviction.

That distinction matters. The constitutional defect lurking in the attempt convictions contemplated only on appeal in Bailey and Martinez does not apply to the attempt conviction imposed at Fontenot's trial. As a result, our conclusion that attempted kidnapping is not a lesser included offense of completed kidnapping in the context of section 207, subdivision (a) does not - standing alone - warrant reversal of Fontenot's conviction for the former crime.

C.

We have concluded that section 1159 means what it says, and that the statute, so read, is constitutional. And consistent with our decision in Bailey , attempted kidnapping is not a lesser included offense of completed kidnapping, at least in the context of section 207, subdivision (a). At trial, moreover, the factfinder found every element of attempted kidnapping beyond a reasonable doubt. So contrary to Fontenot's contentions, we are not convinced that his conviction must be reversed.

To be sure, Fontenot cites language from our precedents that might appear in some tension with what we hold today. A single sentence in Bailey opined that we have "made the qualification that under section 1159, ' "[a] defendant may be convicted

The dissent's view that a person might nonetheless have reasonably relied on these statements - not holdings - concerning the propriety of convictions for uncharged crimes in our prior cases assumes that a person would reasonably adopt an atextual reading of section 1159. More particularly, taking those assertions at face value would strip the statutory language "or of an attempt to commit the offense" of any meaning whatsoever. ( Ibid. ) But whenever reasonably possible, courts avoid reading statutes in a way that renders "meaningless" language the Legislature has chosen to enact. ( People v. Hudson (2006) 38 Cal.4th 1002 , 1010, 44 Cal.Rptr.3d 632 , 136 P.3d 168 .) Moreover, as we've explained, many jurisdictions permit defendants charged only with a completed offense to be convicted of an attempt -

stark contrast to the circumstances in

First, there is no real reason for us to decide the issue here, overruling precedent in the process. Whether or not attempted kidnapping is considered a lesser included offense, as we have previously said it is, Penal Code section 1159 informed defendant that he could be convicted of attempt. The majority says we still have to assure ourselves that the trial court found all the necessary elements to support the conviction. (Maj. opn., ante , 251 Cal.Rptr.3d at pp. 346-347, 447 P.3d at pp. 257-258.) But no one doubts that the trial court made the necessary findings; that is not defendant's problem with the court's judgment.

But second-for reasons I'll explain in greater detail below-I am not persuaded the majority's answer to the lesser included offense question is correct. Defendant relies on a formal distinction between the "general"

conviction were sought instead, the People would need to prove that the defendant took a direct action toward sexual intercourse or sodomy with the intent of committing one of those sexual acts. We call this mental state a specific intent, because it relates to an action beyond the attempt itself. But if it is proved that the defendant intentionally committed one of these unlawful acts, it will also necessarily have been proved that the defendant intended to commit one of these unlawful acts. In the attempt context, we might label this "specific" intent, but the label does not change the substance of the requirement.

This observation about the relationship between general and specific intent is by no means a new one. Chief Justice Traynor made the same point 50 years ago in a slightly different context. After setting out his now-canonical description of general criminal intent as the intent to perform a

victim away and that the defendant actually knew the victim did not consent to the asportation. An unreasonable

And finally, this interpretation generally fits with the way California courts have approached attempts to commit forcible sex offenses, to which the victim's consent is also relevant. In such cases, courts have not required that the defendant act with the conscious purpose of overcoming the victim's will. They have instead required only that the defendant show a willingness to use whatever force is necessary to accomplish the intended sexual act. Early California cases held that assault with intent to commit rape requires the defendant have the intent "to use whatever force was necessary upon the prosecutrix to accomplish the consummation of his desires." ( People v. Fleming (1892) 94 Cal. 308 , 312, 29 P. 647 ; accord, People v. Stewart (1893) 97 Cal. 238 , 240, 32 P. 8 .) We reaffirmed this formulation more recently, equating " 'the intent to commit the act against the will of the complainant' " with the intent " 'to use whatever force may be required.' " ( People v. Davis (1995) 10 Cal.4th 463 , 509, 41 Cal.Rptr.2d 826 , 896 P.2d 119 , quoting People v. Meichtry (1951) 37 Cal.2d 385 , 388-389, 231 P.2d 847 .) This formulation does not require the prosecution to prove a "conscious design or purpose" (maj. opn., ante , 251 Cal.Rptr.3d at pp. 350-351, 447 P.3d at pp. 260-261) to overcome the will of a victim the defendant knows to be unconsenting; it requires indifference with regard to the victim's consent. This understanding may help to explain why we have previously described attempted rape as a lesser included offense of rape. ( People v. Atkins (2001) 25 Cal.4th 76 , 88, 104 Cal.Rptr.2d 738 , 18 P.3d 660 , citing People v. Osband (1996) 13 Cal.4th 622 , 685, 55 Cal.Rptr.2d 26 , 919 P.2d 640 and People v. Kelly (1992) 1 Cal.4th 495 , 526, 528, 3 Cal.Rptr.2d 677 , 822 P.2d 385 .) It is not clear why we would treat attempted kidnapping differently.

have already noted, the victim's consent was not relevant in this prosecution. Defendant was not charged with kidnapping of an unconsenting victim; he was charged with kidnapping a four-year-old child who, because of her youth, was legally incapable of giving or withholding consent. Her lack of consent, and defendant's mental state with regard to it, were not legally material to the charge. Instead, the kidnapping charge required proof that defendant took the child for an illegal purpose-itself a kind of specific intent requirement.

We interpreted the kidnapping statute this way in Oliver , supra , 55 Cal.2d 761 , 12 Cal.Rptr. 865 , 361 P.2d 593 , a case in which the defendant had been charged with kidnapping a

section 1159, our precedent at the time of defendant John Fontenot's 2016 trial did not make clear that a conviction for an uncharged attempt was possible if the attempt offense included an element that the charged offense lacked. Not only did our case law contain no clear holding to that effect, but we had made consistent statements to the contrary in several cases over the past six decades and, in so doing, repeatedly cited section 1159 .

It is one thing to say, as the court does today, that our past statements were mistaken. But it is quite another to say that the burden of our mistakes should fall on Fontenot because he should have known

charged with completed kidnapping. But

offense of the charged substantive offense, by operation of section 1159 itself' " ( Bailey , at p. 752, 143 Cal.Rptr.3d 647 , 279 P.3d 1120 ). In rejecting this argument, we said: "The disjunctive language [of section 1159 ] appears to support the claim a trial court may reduce a defendant's conviction to an uncharged attempt if supported by the evidence. However, we made the qualification that under section 1159, '[a] defendant may be convicted of an uncharged crime if, but only if, the uncharged crime is necessarily included in the charged crime.' ( Sloan , supra , 42 Cal.4th at p. 116 [ 64 Cal.Rptr.3d 137 , 164 P.3d 568 ] ; see Reed , supra , 38 Cal.4th at p. 1227 [ 45 Cal.Rptr.3d 353 , 137 P.3d 184 ] ; Lohbauer , supra , 29 Cal.3d at pp. 368-369 [ 173 Cal.Rptr. 453 , 627 P.2d 183 ].)" ( Ibid. )

Today's opinion says "[t]he only time we have confronted circumstances at all like those here was in Oates , and there we upheld the defendant's conviction for an attempt." (Maj. opn., ante , 251 Cal.Rptr.3d at p. 354, 447 P.3d at p. 263, citing People v. Oates (1904) 142 Cal. 12 , 14, 75 P. 337 .) But it is readily apparent that Oates , a brief and somewhat cryptic opinion, could not have provided Fontenot with sufficient notice that he could be convicted of an uncharged attempt that was not necessarily included in the charged crime. In Oates , we rejected the argument that section 1159 had been enacted in violation of a state constitutional provision prescribing the format of certain statutes. ( Oates , at pp. 13-14, 75 P. 337 .) The meaning of section 1159 was not at issue, and we said nothing about it. The court today says People v. Vanderbilt (1926) 199 Cal. 461 , 464, 249 P. 867 , cited Oates "for the 'well-established principle' that pursuant to section 1159, a person may be convicted of an attempt to commit a charged crime even if not [so] charged." (Maj. opn., ante , 251 Cal.Rptr.3d at p. 354, fn. 9, 447 P.3d at pp. 263-264, fn. 9.) But this overreads Vanderbilt , which cited Oates in saying that a charged offense of sodomy may result in a conviction for attempted sodomy and then, in the very next sentence, explained that "an attempt to commit [sodomy] - a lesser crime - is necessarily included within the greater and completed offense." ( Vanderbilt , at p. 464, 249 P. 867 .) In any event, Oates and Vanderbilt long predated the line of cases discussed above, which repeatedly "made the

squarely relied on the " 'qualification' " of section 1159 stated in Bailey . ( Braslaw , at p. 1247, 183 Cal.Rptr.3d 575 , quoting Bailey , supra , 54 Cal.4th at p. 752, 143 Cal.Rptr.3d 647 , 279 P.3d 1120 ; see Hamernik , at pp. 426-427, 204 Cal.Rptr.3d 649 .) Braslaw and Hamernik confirm the reasonableness of Fontenot's understanding of the law at the time of his trial.

There is nothing wrong with acknowledging error in our past statements. But when we do so, we should not fault litigants like Fontenot for believing what we write in the Official California Reports. It was not unreasonable for Fontenot to rely on a legal proposition that turned out to be incorrect - a proposition we repeated in multiple cases over six decades and did not disavow until today.

Finally, today's opinion alternatively contends that Fontenot had sufficient notice because at the time of his trial, we had not yet overruled

was convicted of attempted kidnapping. The Court of Appeal affirmed, citing our decision in People v. Martinez (1999) 20 Cal.4th 225 , 83 Cal.Rptr.2d 533 , 973 P.2d 512 ( Martinez ), which treated attempted kidnapping as a lesser included offense of completed kidnapping. Fontenot asks us to overrule Martinez and to hold that, despite a statutory provision authorizing conviction for attempted crimes even when only completed crimes are charged, he could not constitutionally be convicted of attempted kidnapping because that offense includes an element that completed kidnapping lacks. Accepting the former invitation but rejecting the latter, we affirm.

One fall evening in 2012, a youth named Destiny was babysitting a young child named Madeline. Madeline and two other girls were playing with dolls in the lobby of an apartment building, with Destiny looking on. Fontenot entered the lobby and approached the children. When Fontenot got close enough, he grabbed Madeline by the arm and started pulling her towards the door. Destiny intervened. She latched onto Madeline's other arm, struggling to wrest the child from Fontenot's grasp. As Destiny kicked Fontenot, the other two girls hit him with their dolls -- so he let go. Destiny swept up

the trial court lacked any power to convict him of attempted kidnapping. Yet she acknowledged that "the facts might support such a conviction." The trial court rejected the challenge to its verdict. Under the "Three Strikes" law, a conviction for attempted kidnapping -- like a conviction for completed kidnapping -- exposed Fontenot to a life sentence. (See § 667, subd. (e)(2)(A).) But the trial court nonetheless agreed with the People that, at trial, Fontenot's attorney effectively invited a conviction for

included in the offense charged," but also "an attempt to commit the offense charged." ( Fed. Rules Crim.Proc., rule 31(c)(1)-(2) ; see also United States v. Resendiz-Ponce (2007) 549 U.S. 102 , 111, fn. 7, 127 S.Ct. 782 , 166 L.Ed.2d 591 ( Resendiz-Ponce ) [noting that "a defendant indicted only for a completed offense can be convicted of attempt under Rule 31(c)"];

State v. LeFurge (1986) 101 N.J. 404 , 502 A.2d 35 , 41 & fn. 8 ( LeFurge ) [holding that a state statute allowing convictions for conspiracy to commit a charged offense gave the defendant "adequate notice"].) So has the only federal appellate court to confront an analogous constitutional challenge related to Federal Rules of Criminal Procedure, rule 31(c). (See United States v. Brozyna (2d Cir. 1978) 571 F.2d 742 , 746 ( Brozyna ).) "The courts," in other words, "are in general agreement that an attempt conviction may be had on a charge of the completed crime." (2 LaFave, Substantive Criminal Law (3d ed. 2018) § 11.5(c) (LaFave).) Indeed, to our knowledge no federal appellate court has concluded the federal Constitution dictates that an attempt conviction is necessarily invalid if the defendant was charged only with the completed offense. Neither has any state high court.

True: courts have offered a range of explanations for why a defendant may be convicted of an attempt despite being charged only with the completed crime. Some have cited case law in their jurisdictions to argue that an attempt is invariably a lesser included

crime. Attempts, after all, are defined as incomplete efforts to commit a completed crime. (See, e.g., § 21a ["An attempt to commit a crime consists of two elements: a specific intent to commit the crime, and a direct but ineffectual act done toward its commission."].) This tight nexus might explain why provisions like section 1159 are so common across the United States. So beyond what section 1159 reveals as a statutory signpost here, prohibitions on criminal attempts are premised on - and in some sense convey - an intuitive idea: someone whose actions and intentions fall just short of constituting a completed crime shouldn't necessarily get off scot-free. With that double-barreled forewarning in place, we conclude that a charging document enumerating the elements of a completed crime and specifying the time and place of the crime's alleged commission gives defendants - at least in most cases - constitutionally sufficient notice that they may be convicted of an attempt to commit the crime charged. ( Resendiz-Ponce , supra , 549 U.S. at p. 108, 127 S.Ct. 782 .)

B.

What section 1159 does not purport to do - and what it constitutionally could not do - is let the People earn a criminal conviction without proving

committing [the] lesser offense.' " ' " ( Ibid. , quoting Bailey , supra , 54 Cal.4th at p. 748, 143 Cal.Rptr.3d 647 , 279 P.3d 1120 .) Which means that, so long as some additional evidence is required to support a conviction for the former, the latter is a lesser included offense. ( Robinson , at p. 207, 202 Cal.Rptr.3d 485 , 370 P.3d 1043 .)

Our decision in Bailey likewise hinged solely on a comparison of the statutory elements of the two offenses at issue in that case. ( Bailey , supra , 54 Cal.4th at pp. 751-752, 143 Cal.Rptr.3d 647 , 279 P.3d 1120 .) There, we held that attempted escape is not a lesser included offense of completed escape. ( Id. at p. 749, 143 Cal.Rptr.3d 647 , 279 P.3d 1120 .) To commit completed

characterized as crimes of specific intent" as compared to those traditionally characterized as crimes of general intent. ( Hood , supra , 1 Cal.3d at p. 458, 82 Cal.Rptr. 618 , 462 P.2d 370 .) That difference, as we've reiterated today, is the distinction between (i) merely committing a

never set out to do. "Because the act constituting a criminal attempt 'need not be the last proximate or ultimate step toward commission of the substantive crime,' criminal attempt has always required 'a specific intent to commit the crime.' " ( People v. Williams, supra , 26 Cal.4th at p. 786, 111 Cal.Rptr.2d 114 , 29 P.3d 197 , quoting People v. Kipp (1998) 18 Cal.4th 349 , 376, 75 Cal.Rptr.2d 716 , 956 P.2d 1169 .) And in California, the Legislature codified that safeguard: under section 21a, an attempt conviction requires " specific intent to commit the [completed] crime," even if the underlying offense is a general intent crime. (Italics added.)

Bailey concerned this same principle. There, we noted it would be difficult to determine whether a prisoner who "stole a pair of wire cutters" had at that point attempted to escape. ( Bailey , supra , 54 Cal.4th at p. 751, 143 Cal.Rptr.3d 647 , 279 P.3d 1120 .) Yes, the prisoner might have intended to use them "to cut through the outer perimeter fence of the prison institution." ( Ibid. ) And had he done that and run off, there would be no doubt he committed the completed crime of escape. ( Ibid. ) But the prisoner might also have intended to use the wire cutters "as a weapon to attack another inmate." ( Ibid. ) So if he were apprehended soon after stealing them, one couldn't know whether he attempted to escape -- not without more information about what specifically he had planned to do with the wire cutters. ( Ibid. ) Hence the "specific intent requirement" for attempted escape. ( Ibid . )

When it comes to the elements of completed kidnapping and attempted kidnapping under section 207, subdivision (a), we see a similar distinction. We've described completed kidnapping under that provision as a "general intent crime." ( People v. Prieto (2003) 30 Cal.4th 226 , 257, 133 Cal.Rptr.2d 18 , 66 P.3d 1123 ). Conviction under section 207, subdivision (a) requires the defendant to intentionally perform the physical acts constituting the crime. And because any criminal conviction in California (with a few exceptions not applicable here) requires, as a threshold matter, "a union of act and wrongful intent" ( People v. Mayberry (1975) 15 Cal.3d 143 , 154, 125 Cal.Rptr. 745 , 542 P.2d 1337 ( Mayberry )) under section 20, we have further concluded that someone with an honest and reasonable belief that the victim "voluntarily consented to accompany him" ( Mayberry , at p. 155, 125 Cal.Rptr. 745 , 542 P.2d 1337 ) is not guilty of completed kidnapping. (See also § 26, class Three [providing that someone is not guilty of a crime if they "committed the act or made the omission charged under an ignorance or mistake of fact, which disproves any criminal intent"].) So to satisfy a basic requirement for criminality - that a defendant's mental state be culpable in some minimal way - completed kidnapping under section 207, subdivision (a) requires not just the intentional commission of physical acts, but also -- at least - criminal negligence as to consent. ( Mayberry , at p. 154, 125 Cal.Rptr. 745 , 542 P.2d 1337 , citing People v. Vogel (1956) 46 Cal.2d 798 , 801, fn. 2, 299 P.2d 850 .) Voluntary intoxication, moreover, does not bear on whether a

carrying away the victim a substantial distance, by force or fear, and without consent. ( § 207, subd. (a).) So here, as in Bailey , "the attempted offense includes a particularized intent that goes beyond what is required by the completed offense." ( Bailey , supra , 54 Cal.4th at p. 753, 143 Cal.Rptr.3d 647 , 279 P.3d 1120 .) For example, while voluntary intoxication does not matter for whether someone is guilty of completed kidnapping, it does matter for whether someone

Bailey , supra , 54 Cal.4th at p. 752, 143 Cal.Rptr.3d 647 , 279 P.3d 1120 .) The jury, then, "was never required to make a finding of specific intent to escape" when it returned a guilty verdict of the completed offense. ( Ibid. ) Martinez is scarcely different. That case was tried solely as a completed kidnapping under section 207, subdivision (a). (See Martinez , supra , 20 Cal.4th at p. 230, 83 Cal.Rptr.2d 533 , 973 P.2d 512 .) And a conviction for attempted kidnapping was not contemplated until appeal. ( Id. at p. 241, 83 Cal.Rptr.2d 533 , 973 P.2d 512 .) So the jury was never asked to find that the defendant formed the specific intent to kidnap notwithstanding, for example, evidence he was drunk at the time of the alleged crime. ( See id. at p. 229, 83 Cal.Rptr.2d 533 , 973 P.2d 512 .) And because only the general intent crime of completed kidnapping under section 207, subdivision (a) was litigated at trial, the defendant had no reason to build a defense around voluntary intoxication. Yet our decision to reduce on appeal the defendant's conviction for completed kidnapping to attempted kidnapping did not rest on a reasoned consideration of these complexities. It relied instead on the assumption that an attempt was always a "lesser included offense" of the completed

of an uncharged crime if, but only if, the uncharged crime is necessarily included in the charged crime." ' " ( Bailey , supra , 54 Cal.4th at p. 752, 143 Cal.Rptr.3d 647 , 279 P.3d 1120 , quoting People v. Sloan (2007) 42 Cal.4th 110 , 116, 64 Cal.Rptr.3d 137 , 164 P.3d 568 .) And in cases before Bailey we made similar, seemingly absolute assertions about the constitutionality of convicting a defendant for committing an uncharged crime. (See, e.g., Sloan , at p. 116, 64 Cal.Rptr.3d 137 , 164 P.3d 568 ; People v. Reed (2006) 38 Cal.4th 1224 , 1227, 45 Cal.Rptr.3d 353 , 137 P.3d 184 ; People v. Toro (1989) 47 Cal.3d 966 , 973, 254 Cal.Rptr. 811 , 766 P.2d 577 ; People v. Lohbauer (1981) 29 Cal.3d 364 , 367, 173 Cal.Rptr. 453 , 627 P.2d 183 ; People v. West (1970) 3 Cal.3d 595 , 612, 91 Cal.Rptr. 385 , 477 P.2d 409 ; In re Hess (1955) 45 Cal.2d 171 , 174-175, 288 P.2d 5 .)

and no federal appellate court or state high court has condemned the practice.

Even Fontenot himself acknowledges that section 1159 is "capable of providing" constitutionally adequate notice to defendants that they may be convicted of an attempt even if they are charged only with the completed offense. Yet, in his view, that is not the end of the matter. Fontenot counters that, even if the language in our prior decisions was technically dicta, he had

constitutional prohibitions on involuntary servitude and imprisonment for debt precluded a judgment of contempt based on a parent's failure to pay child support when the parent's inability to pay results from the parent's willful failure to seek and accept available employment. Our earlier opinion in Ex parte Todd (1897) 119 Cal. 57 , 50 P. 1071 , which held that courts had no power to impose contempt sanctions for a failure to pay spousal support when the inability to pay resulted from a willful failure to obtain employment, had been interpreted to be based on these constitutional prohibitions. We held in Moss that these constitutional prohibitions do not bar the imposition of contempt sanctions for the failure to pay child support where the failure is based on the parent's willful failure to seek and accept available employment. We also disapproved In re Feiock (1989) 215 Cal.App.3d 141 , 263 Cal.Rptr. 437 , which held that the petitioner bore the burden of proof with respect to the issue of whether the contemnor had the ability to pay child support. ( Moss, supra , 17 Cal. 4th at p. 428, 71 Cal.Rptr.2d 215 , 950 P.2d 59 .)

But we did not apply our holdings to contemnor Moss , because those holdings could "reasonably be seen as both an unanticipated expansion of the law of contempt in the child support context and a change in the evidentiary burden of which [Moss] has no notice at the time of trial." ( Moss, supra , 17 Cal.4th at p. 429, 71 Cal.Rptr.2d 215 , 950 P.2d 59 .) We acknowledged that Ex parte Todd, supra , 119 Cal. 57 , 50 P. 1071 , on which the contemnor relied, involved spousal rather than child support, but observed that "no basis for distinguishing child support orders was apparent at the time Todd was decided ...." ( Moss , at p. 429, 71 Cal.Rptr.2d 215 , 950 P.2d 59 .) We also declined to assume that the enactment of a statute authorizing a court to require a parent to demonstrate efforts to find employment would have apprised the contemnor that Todd , which was based on substantive constitutional restrictions, no longer applied. ( Moss, supra , 17 Cal.4th at p. 429, 71 Cal.Rptr.2d 215 , 950 P.2d 59 .) Finally, the contemnor "reasonably relied on In re Feiock ," supra , 215 Cal.App.3d 141 , 263 Cal.Rptr. 437 . ( Moss, supra , 17 Cal.4th at p. 429, 71 Cal.Rptr.2d 215 , 950 P.2d 59 .) In sum, the contemnor in Moss reasonably relied on indistinguishable precedent that was based on constitutional principles, whereas Fontenot relied on dicta that was inconsistent with a statute that gave him constitutionally sufficient notice of the fact that he could be convicted of attempt.

Fontenot had another reason to know he could potentially be convicted of attempted kidnapping despite being charged only with completed kidnapping. When he was tried, we had not yet overruled Martinez . Indeed, in Bailey , we cited Martinez but took special care not to directly overrule it. (See Bailey , supra , 54 Cal.4th at p. 753, 143 Cal.Rptr.3d 647 , 279 P.3d 1120 .) We cautioned that the law of attempt is complicated, leaving room for the possibility that we might one day reaffirm Martinez 's conclusion that attempted kidnapping was a lesser included offense of completed kidnapping. (See ibid. ) Although we decline to take that

An attempt to commit kidnapping under section 207, subdivision (a) has an element that the completed crime does not. To be guilty of completed kidnapping under subdivision (a) of section 207, someone need only engage intentionally in the action that constitutes the crime - provided there exists a union between that act and some minimally wrongful intent, and leaving aside the application of subdivision (e) in cases involving young victims. Yet attempted kidnapping in this context requires a more demanding mental state: a conscious design or purpose to take and carry away the victim a substantial distance, by force or fear, and without consent. That additional intent element serves to distinguish a step towards a completed crime from other behavior, and it means courts cannot assume attempted kidnapping is a lesser included offense of completed kidnapping.

Despite this conclusion, we do not find reversal is warranted by the mere fact that Fontenot was charged with completed kidnapping but convicted of attempted kidnapping. That's because section 1159 means what it says: a defendant may be convicted of an attempt despite being charged only with the completed crime. And section 1159, so read, comports with a defendant's Sixth Amendment right to be informed of the nature and cause of the accusation against him, as well as with federal due process principles.

Nor does the substance of California's case law at the time of Fontenot's trial persuade us to disturb the Court of Appeal's judgment. Contrary to what Fontenot contends, our previous decisions and those of the Courts of Appeal gave him sufficient reason to know he could potentially be convicted of attempted kidnapping despite being charged only with the completed offense.

he could be held liable for attempted kidnapping. He contends that attempted kidnapping is not a lesser included offense of kidnapping and therefore was not fairly included in the charges against him. He asks us to overrule our precedent holding otherwise. ( People v. Martinez (1999) 20 Cal.4th 225 , 241, 83 Cal.Rptr.2d 533 , 973 P.2d 512 ( Martinez ).)

I agree with the majority that the plain language of Penal Code section 1159 provided defendant with constitutionally sufficient notice that he could be convicted of an attempt to commit the charged offense, regardless of whether the attempt is considered to be a lesser included offense. (Maj. opn., ante , 251 Cal.Rptr.3d at pp. 344-347, 447 P.3d at pp. 255-257.) That is a complete answer to defendant's challenge, and I concur in the majority's judgment upholding defendant's conviction on that basis.

The majority, however, does not stop there. It goes on to address the underlying premise of defendant's argument-that we were wrong in Martinez to call attempted kidnapping a lesser included offense of kidnapping-and to agree with it. (Maj. opn., ante , part II.B.1.) I do not join this portion of the majority's opinion for two reasons.

Much of the confusion stems from the parties' reading of our decision in People v. Bailey (2012) 54 Cal.4th 740 , 143 Cal.Rptr.3d 647 , 279 P.3d 1120 ( Bailey ). In that case, we considered whether, after finding that the defendant inmate's escape from his cell was insufficient to support a conviction for escape from state prison, the appellate court could reduce the defendant's conviction to attempted escape on the ground that the latter is a lesser included offense of the former. We answered no, explaining that the latter is not a lesser included offense of the former: Escape has been described as requiring only general criminal intent while, under Penal Code section 21a, an attempt involves the specific intent to commit the crime. We concluded that "[u]nder the elements test, attempt to escape is not a lesser included offense of escape since it requires additional proof that the prisoner actually intended to escape." ( Bailey , at p. 749, 143 Cal.Rptr.3d 647 , 279 P.3d 1120 .) The parties here largely follow this lead; relying on Bailey , defendant argues, and the Attorney General concedes, that attempted kidnapping is not a lesser included offense of kidnapping because it requires proof that the defendant intended to kidnap.

This reliance is misplaced, in my view. Unlike this case, Bailey was not a case about whether the defendant had adequate notice of the charges; the question was whether it was permissible on appeal to reduce an invalidated

the principle altogether. ( Bailey , supra , 54 Cal.4th at p. 753, 143 Cal.Rptr.3d 647 , 279 P.3d 1120 .)

In many cases, the general principle only makes sense. Many criminal statutes define the actus reus, or prohibited conduct, in terms of committing a particular unlawful act (for example, striking another person)-as opposed to, for example, producing a particular harmful result (for example, causing serious injuries to another person). For such act-based offenses, the "general" criminal intent to do the specified act, as required for the completed offense, will generally be indistinguishable from the "specific" intent to do the specified act, as required for an attempt. In other words, when an offense requires commission of act X, the general criminal intent needed is simply the intent to do X. To convict of the attempted crime, the jury would also need to find the defendant intended to do X. We call this "specific" intent because it refers to an act the defendant has not yet performed. (See People v. Hood (1969) 1 Cal.3d 444 , 456-457, 82 Cal.Rptr. 618 , 462 P.2d 370 .) This

particular criminal act ( People v. Hood , supra , 1 Cal.3d at p. 456, 82 Cal.Rptr. 618 , 462 P.2d 370 ) and specific intent as the "intent to do some further act or achieve some additional consequence" ( id. at p. 457, 82 Cal.Rptr. 618 , 462 P.2d 370 ), he noted: "There is no real difference, however, only a linguistic one, between an intent to do an act already performed and an intent to do that same act in the future." ( Ibid. ; accord, People v. Hering (1999) 20 Cal.4th 440 , 445, 84 Cal.Rptr.2d 839 , 976 P.2d 210 .) From the sometimes "chimerical" nature of the specific or general intent distinction in the context of the crime of assault, the Hood court took the lesson that the question of whether

failure to appreciate the victim's unwillingness would not be enough.

I express no firm views on these issues here; I raise these points only to explain why the matter is more complex than the majority opinion suggests. If we are to answer the lesser included offense question by focusing on the role of victim consent-overturning our own precedent in the process (maj. opn., ante , 251 Cal.Rptr.3d at p. 352, 447 P.3d at pp. 261-262)-these are important issues we ought to grapple with.

But ultimately there is no reason for us to resolve these issues in this case, because, as I

fear to be established? ( Michele D. , supra , 29 Cal.4th at p. 606, 128 Cal.Rptr.2d 92 , 59 P.3d 164 .) Although Oliver had expressly addressed only consent, we held the logic of that decision required that the standard of force or fear (which typically functions as the inverse of consent) should also be modified for kidnapping of a small child: "We formulate that standard as follows: the amount of force required to kidnap an unresisting infant or child is simply the amount of physical force required to take and carry the child away a substantial distance for an illegal purpose or with an illegal intent." ( Michele D. , at p. 610, 128 Cal.Rptr.2d 92 , 59 P.3d 164 .) The Legislature later codified this force standard in Penal Code section 207, subdivision (e). Although the holdings of Oliver and Michele D. are related, they are distinct, as the Michele D. opinion itself makes clear: the opinion first articulates the standard of force applicable to kidnap of an unresisting child ( Michele D. , at p. 610, 128 Cal.Rptr.2d 92 , 59 P.3d 164 ) and then, separately, reaffirms Oliver 's illegal purpose holding ( Michele D. , at p. 612, 128 Cal.Rptr.2d 92 , 59 P.3d 164 ).

Oliver 's requirement that the asportation be made with an illegal purpose or intent makes kidnapping of a small child a specific intent crime, not a crime of general intent. It would seem to follow that there was no substantive difference between the intent element of the kidnapping charged and the specific intent element of the attempt offense.

The majority acknowledges the point, but sets it aside; it asserts this theory of kidnapping is not before us because the People have not relied on

The majority expresses concern that the parties have not briefed the special intent requirement that applies in child kidnapping cases. This is true, and unfortunate-as is the fact they have not briefed the substantive differences between the mental state required for attempted kidnapping and for the offense with which defendant was charged. But if we are going to venture beyond the bounds of the parties' briefing, as the majority already does, I see no reason why we shouldn't also acknowledge the direct relevance of the Oliver line of cases-particularly before undertaking to overrule Martinez . Martinez , after all, was also a case involving the taking of a child; it held that the kidnapping charge there at issue encompassed "the lesser included offense of attempted kidnapping of a person under the age of 14 (§§ 664/207, 208) ...." ( Martinez , supra, 20 Cal.4th at p. 241, 83 Cal.Rptr.2d 533 , 973 P.2d 512 .) Because Oliver establishes that kidnapping is a specific intent crime when the victim is a small child, it seems to me Martinez 's description of the relationship between attempted kidnapping and the completed crime likely remains correct, at least as to a child the age of the victim here.

not to give credence to statements that we had affirmed, reaffirmed, and re-reaffirmed over the years. This seems quite unfair. I would reverse Fontenot's conviction for attempted kidnapping on the ground that he was not adequately "informed of the nature and cause of the accusation." ( U.S. Const., 6th Amend.; see People v. Thomas (1987) 43 Cal.3d 818 , 823, 239 Cal.Rptr. 307 , 740 P.2d 419 .)

"[R]etroactive application of a decision disapproving prior authority on which a person may reasonably rely" in preparing a defense or in determining

Fontenot with sufficient notice of a possible conviction for attempted kidnapping when he was

recited with approval the language from Reed quoted above. ( Sloan , at p. 116, 64 Cal.Rptr.3d 137 , 164 P.3d 568 , quoting Reed , supra , 45 Cal.4th at p. 1227, 45 Cal.Rptr.3d 353 , 137 P.3d 184 .)

Most recently, in People v. Bailey (2012) 54 Cal.4th 740 , 143 Cal.Rptr.3d 647 , 279 P.3d 1120 ( Bailey ), we expressly recognized that a literal construction of section 1159 was inconsistent with our prior cases. The Attorney General argued in Bailey that section 1159 's language authorizing conviction of any uncharged offense necessarily included in the charged offense " ' or of an attempt to commit the offense ' " ( Bailey, at p. 752, 143 Cal.Rptr.3d 647 , 279 P.3d 1120 , quoting § 1159, italics added by Bailey ) meant that " 'a conviction of attempt to commit the substantive crime is deemed a lesser included

the decision. (See Sonic-Calabasas A, Inc. v. Moreno (2013) 57 Cal.4th 1109 , 1158, 163 Cal.Rptr.3d 269 , 311 P.3d 184 [" 'Dicta consists of observations and statements unnecessary to the appellate court's resolution of the case.' "].)

In any event, it is a non sequitur to say that "[j]ust as our dicta in Bailey and other decisions do not control our decision today, Fontenot could not reasonably rely on those statements in preparing for trial in the face of section 1159 's unambiguous and clearly relevant language, and the nearly ubiquitous charging practice it establishes." (Maj. opn., ante , 251 Cal.Rptr.3d at p. 355, 447 P.3d at p. 264.) Even if our past statements "do not control our decision today," it does not follow that "Fontenot could not reasonably rely on those statements." Indeed, it was "in the face of section 1159 's unambiguous and clearly relevant language" ( ibid. ) that our own decisions nevertheless stated, again and again, that a defendant may be convicted of an uncharged crime only if it is necessarily included in the charged crime.

In fact, People v. Braslaw (2015) 233 Cal.App.4th 1239 , 183 Cal.Rptr.3d 575 and People v. Hamernik (2016) 1 Cal.App.5th 412 , 204 Cal.Rptr.3d 649 adopted exactly the position that Fontenot urges here. Those cases held that a defendant may not be convicted of an uncharged attempt unless it is necessarily included in the charged crime, and Braslaw , which predated Fontenot's trial,

Readers of today's opinion will no doubt detect a dark irony here. On one hand, the court faults Fontenot for failing to anticipate a change in the law - namely, today's rejection of the qualification of section 1159 repeatedly stated in Bailey and prior cases. On the other hand, the court faults Fontenot for correctly discerning a change in the law - namely, the holding and reasoning of Bailey that plainly undermined Martinez 's treatment of attempted kidnapping as a lesser included offense of kidnapping. It is problematic enough that each of the court's rationales for finding sufficient notice is unpersuasive on its own. But the damned-if-you-do-and-damned-if-you-don't quality of the two rationales together puts an especially fine point on the unfairness of today's decision.

I would reverse Fontenot's conviction because at the time of his trial the kidnapping charge did not provide him adequate notice that he could be convicted of attempted kidnapping. In all other respects, I join the opinion of the court.

I Concur:

GROBAN, J.