People v. Melody

THE PEOPLE, Plaintiff and Respondent, v. SEAN PATRICK MELODY, Defendant and Appellant.

H047978, H048612, H048638

California Court of Appeals, Sixth District

September 19, 2022

NOT TO BE PUBLISHED

Monterey County Super. Ct. No. SS121692A

BAMATTRE-MANOUKIAN, ACTING P.J.

I. INTRODUCTION

Defendant Sean Patrick Melody appeals after a jury found him guilty of two counts of aggravated kidnapping to commit extortion or to exact money or something valuable (Pen. Code, § 209 subd. (a); counts 1-2),^[1] three counts of grand theft of a firearm (§ 487, subd. (d)(2); counts 3-5), and one count of grand theft of personal property (§ 487, subd. (a); count 6). The jury also found various firearm and great bodily injury sentence enhancement allegations true. The trial court sentenced defendant to life without the possibility of parole (LWOP) on count 1 consecutive to a life term on count 2. The court imposed a consecutive term of 19 years for the sentence enhancements on counts 1 and 2 and concurrent terms on counts 3 through 6.^[2] After a restitution hearing, the court awarded victim restitution.

Defendant contends that the trial court erred when it failed to discharge a seated juror for cause; there is insufficient evidence to support the aggravated kidnapping convictions; the court failed to properly instruct the jury on aggravated kidnapping; the court erred when it refused to give a pinpoint instruction on robbery; he suffered cumulative prejudice from the instructional errors; the court erroneously admitted uncharged act evidence; the grand theft convictions were not filed within the statute of limitations; he could properly be convicted of only one grand theft; the punishment imposed on the grand theft conviction in count 6 must be stayed; his LWOP sentence is cruel and unusual; the determinate term is unlawful; he is entitled to additional custody credits for actual time in custody; the abstract of judgment must be corrected; and the restitution amount must be reduced.

The Attorney General agrees that the trial court erred in its imposition of the determinate term and that the restitution amount should be reduced; contends that remand for resentencing is necessary; and identifies errors in the abstract of judgment that should be corrected following resentencing. Regarding defendant's remaining claims, the Attorney General asserts that there was neither error nor prejudice.

For reasons that we will explain, we will reverse the judgment and remand the matter with directions to (1) strike the convictions on counts 4, 5, and 6 for grand theft; (2) correct the restitution order to $26,358.77; and (3) resentence defendant consistent with this opinion, including regarding selecting principal and subordinate terms and regarding concurrent and consecutive sentencing.^[3]

II. FACTUAL AND PROCEDURAL BACKGROUND

A. Trial Evidence

1. Background

Nathan Smith and Danny Barcinas were roommates in Marina. Smith worked in construction and Barcinas was a cashier at Save Mart. Smith and Barcinas kept drugs and guns in the house they shared. Barcinas also grew marijuana at a house down the street and sold marijuana, hash, and psilocybin. Smith helped set up the marijuana grow, and their mutual friend Jeff Lewis assisted with the grow.

Jerome Mantanona was related to Barcinas and had been to Barcinas's house. "[B]ad blood" developed between them when Barcinas caught Mantanona and another man robbing his house in 2005. The men took jewelry and marijuana. Barcinas reported the incident to the police. Afterwards, Mantanona went to the Save Mart and harassed Barcinas at work. Barcinas got a restraining order against Mantanona.

2. Current Incident

On the evening of May 21, 2009, Smith, Barcinas, and Lewis had plans to go bowling. Sometime between 7:37 p.m. and 7:43 p.m., Barcinas noticed a male customer looking at him funny. The man was bald, stocky, and really tall. The man stared at Barcinas, turned away, and then stared again. Barcinas had never seen him before. The man used the self-checkout and left. Barcinas later identified the man as defendant.

At some point that night on May 21, 2009, Smith was at home and eating dinner alone when he heard noises in the front yard. Smith saw two men approaching. The men called out to ask if Smith's truck was for sale. Smith had never seen the men before.

Smith later identified the taller of the two men as defendant.

Smith went out through the garage to talk to the men. The shorter of the two men came toward Smith, pointed a gun at him, and told him to get inside. Smith went into the garage with the two men following him. The men put Smith on the floor, closed the garage door, and tied Smith's hands with a dog leash that was at the house. The men took Smith inside.

The men said that they knew Barcinas was at work and that they were waiting for him. They also asked Smith where the guns were. The men brought Smith to his bedroom, put him on the floor, took his shotgun, and told him to stay there.

Sometime later, Lewis arrived at Smith's and Barcinas's house just as Barcinas got home. Barcinas opened the garage door and noticed several boxes had been moved. Barcinas and Lewis went inside the house. Barcinas called out for Smith, but there was no response.

Lewis looked down the hallway and saw that Smith's feet were positioned as if he were face down on the floor. Barcinas approached Smith's room. As Barcinas got near the hallway, the man who was with defendant confronted Barcinas with Barcinas's shotgun. The man pointed the gun at Barcinas's face. Barcinas pushed the gun away and began fighting the man. Barcinas punched the man a couple of times, put him in a bear hug, and pushed him toward a bathroom next to Smith's room.

Lewis entered the hallway. Defendant smacked Lewis in the face with the barrel of a gun, busting his lip open. Defendant told Lewis to back up. Lewis backed into the living room while defendant kept the gun in his face. Defendant told Lewis to cooperate or he was going to shoot him. Defendant tied Lewis's wrists behind his back with a dog leash, had Lewis lie on the ground face down, and tied his ankles with another leash. Lewis was "hogtied on the living room floor."

Barcinas and the other man fought violently in the bathroom, breaking the toilet seat and some bathroom tile. They landed in the shower, with the other man beneath Barcinas. Barcinas bit the man and tried to knock him out by head butting him. When the man yelled for help, Barcinas felt a whack on the side of his head with a heavy object. Barcinas was struck three more times.

By this point, Smith had untied himself and saw defendant hitting Barcinas with a baseball bat. Smith got a different bat and tried to hit defendant. Defendant struck Smith on the top of his skull with the bat, knocking him unconscious.

Barcinas felt a gun placed to the back of his head. Defendant told Barcinas, " 'Either give up or I'm going to shoot you.'" Barcinas relented. Defendant brought Barcinas to the living room, where the other man and Lewis were located. Lewis was on the floor.

Defendant ordered Barcinas by gunpoint to go to the safe and open it. Barcinas walked toward the garage with defendant following him. Barcinas had blood gushing down the side of his head. When they got to the safe, defendant said," 'No fun and games or I'm going to shoot your roommate,' [¶] . . . [¶] 'Or your friends.' " Defendant also said," 'Open the safe for the first time or you're going to get it.' "^[4] Defendant was pointing the gun at Barcinas. Barcinas opened the safe on the first try.

Defendant brought Barcinas to the living room by gunpoint and told him to get on the floor. The men tied Barcinas's hands behind his back with a dog leash. Barcinas asked for his medication because he thought he was having a heart attack. Defendant got Barcinas's pills and a glass of water. The other man kicked Barcinas two to three times on the side of his stomach. A few minutes passed and the men left, telling Barcinas, Smith, and Lewis to stay put or they would shoot them.

After a couple of minutes, Lewis untied himself. Lewis checked on Barcinas and Smith. Smith was not moving and had a big pool of blood around his head. Lewis called 911 and untied Barcinas.

Smith and Barcinas were taken by ambulance to the hospital. Smith had surgery for a fractured skull. Barcinas received staples to the top of his head. Barcinas had hair stuck in his teeth from when he bit the shorter man during the struggle in the bathroom. Barcinas gave the hair to the police.

Smith's .357 Ruger revolver was missing from the safe inside the garage. Barcinas's Desert Eagle handgun, jewelry, and approximately $5,000 in cash were taken from the safe. Another shotgun belonging to Barcinas that was kept in a hallway closet was also taken.

3. Police Investigation

The DNA from the hair stuck in Barcinas's teeth matched Brian Zumbado's DNA. Zumbado was arrested in Los Angeles County in October 2012. Zumbado and defendant were placed in the same jail cell at the Huntington Beach Police Department.

Defendant and Zumbado were recorded talking in the jail cell. Defendant's first words to Zumbado were, "Oh man." Zumbado responded, "What the fuck's going on?" The men conveyed that they had each been arrested that day and had not talked to the police. Defendant stated that he was told that he was brought in for something that happened in Huntington Beach in 2007. Defendant said that he asked for a lawyer when he was told that they were charging him with attempted murder for something "up north."

During a police interview, defendant admitted that he knew someone named "Jerome," which was Mantanona's first name. Defendant denied that he had ever been to Marina. When the police...