I didn't like the overall tone of this case, which I thought was fairly relentlessly results-oriented. I'll nonetheless only mention one substantive point about the Court of Appeal's holding.
Justice Ardaiz (properly) reverses defendant's conviction for attempted kidnapping during the commission of a carjacking because the text of Section 209.5(a) of the Penal Code requires an actual carjacking (not merely an attempt), and there was no actual carjacking here. So far, that's fine (and the Legislature can, and probably should, amend the statute to cover attempts). But then Justice Ardaiz decides that he'll replace this reversal of Count Six (the Section 209.5 conviction) by entering -- on appeal -- a new conviction not only to one lesser-included offense, but to two such offenses. In other words, the price that defendant pays for his appeal is that he obtains a reversal of one felony conviction at the cost of the appellate court sentencing him to two felony offenses.
That ain't right. I don't have a real problem with an appellate court replacing one defective conviction with one lesser-included offense. But you can't replace one conviction with two. It's just wrong, and I don't know of any other case that's ever allowed it. Plus, even beyond its propriety, I think there are serious due process and double jeopardy problems that attend such a result. This is especially true in California, since under the Three Strikes law, the Court of Appeals' entry of two "replacement" convictions means that Navarro now has two strikes instead of one. Justice Ardaiz holds that this appellate-imposed sentence doesn't violate double jeopardy because as long as Navarro never commits another crime, he'll still serve less time, and so it doesn't "currently" violate double jeopardy. But you don't wait to decide whether there's a double jeopardy problem. The sentence is either permissible or impermissible, and its validity doesn't vary depending upon what in fact happens in the future. A sentence on appeal that says "We'll reverse your 5-year conviction and sentence you to 4 years and 364 days, plus 50 years if you ever commit another crime" is impermissible now, not just if and when the defendant reoffends.
Plus, wholly apart from the consitutional problems, there's no principled end to the "multiple sentences on appeal" approach adopted by Justice Ardaiz. Why just two lesser included offense? Why not three? Or six? Or fifty? There are almost always a plethora of lesser-included offenses, and there's no principled basis for deciding how many replacement sentences should be imposed. By contrast, the time-honored principle of one-for-one both makes sense and is eminently fair. There's simply no substantial justification for the novel approach to appellate resentencing articulated and adopted by Justice Ardaiz here. It's wrong.
