Filed 9/19/22 P. v. Melody CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

SEAN PATRICK MELODY,

Defendant and Appellant.

 H047978, H048612, H048638

 (Monterey County

 Super. Ct. No. SS121692A)

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),1three 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.

1 All further statutory references are to the Penal Code unless otherwise indicated.

2 As detailed below, the court also sentenced defendant to a consecutive term in an 

Orange County case.
2

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

3 Defendant’s appellate counsel has also filed a petition for writ of habeas corpus 

that this court considered with the appeal. We will dispose of the habeas corpus petition 

by separate order.
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 
4

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.
5

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 

4 During a police interview the night of the incident, Barcinas told an officer that 

he was threatened, “[O]pen that safe on the first time or I’m going to shoot you,” and, 

“[Y]ou better open this on your first try or your boys inside are going to get it.”
6

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 told defendant that he was recorded on video surveillance 

footage at a Save Mart in Marina, defendant stated that he did not think that the store was 

in Marina. Defendant acknowledged that his wife had relinquished a Desert Eagle gun to 

the police in 2012. Defendant did not know the name of the man who sold the gun to him 

in 2009, but someone named “Danny” took him to the man’s house to see it.

While investigating this incident, police found controlled substances in Barcinas’s 

and Smith’s house and located Barcinas’s marijuana grow. Barcinas and Smith were 

charged with drug sales, pleaded guilty, and completed probation.
7

4. Prior Incident

In December 2007, a couple was robbed at their residence in Huntington Beach, 

Orange County. The couple was bound with zip ties and duct tape. The duct tape was 

sent to a crime lab for analysis. Defendant’s DNA matched the DNA on the duct tape.

During a police interview, defendant stated that he got “the information on this 

guy” from someone called “Doc.” Doc told defendant that the victim was a drug dealer. 

Doc “basically told [defendant] . . . that he has that stuff in there. So, um . . . go in there. 

Pretend like you’re goin’ into [sic] buy the pot.”

Defendant stated that while Doc waited outside as a lookout, he and another man 

went to the victim’s house, waited for him to come home, and confronted him at gunpoint 

when he pulled his vehicle into the garage with a woman in the passenger seat. 

Defendant and the coperpetrator wore masks, and the coperpetrator had a gun.

Defendant stated that he and the coperpetrator indicated to the man that they 

wanted to buy drugs. When asked by the police about the victim getting hit in the head 

and bleeding, defendant indicated that he did not hit the victim, and that if his 

coperpetrator hit the victim, the coperpetrator must have used the gun to do it. Defendant 

duct taped the man’s mouth because he would not be quiet. Defendant also zip tied the 

man and duct taped the woman. Defendant demanded that the male victim “give us what 

we want.” They got $2,000 in cash. Defendant did not remember whether a laptop 

computer, a camera, and watches were also stolen.

The parties stipulated that defendant was convicted of first degree robbery in 

concert in 2017.

5. Defense Case

Defendant did not present evidence on his behalf.

B. Procedural Background

Defendant was charged by second amended information with the aggravated 

kidnapping of Smith for extortion (§ 209, subd. (a); count 1); the aggravated kidnapping 
8

of Lewis for extortion (§ 209, subd. (a); count 2); 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). Regarding counts 1 and 2, it was alleged that defendant 

personally used a firearm within the meaning of section 12022.53, subdivision (b) and 

inflicted great bodily injury on Smith and Barcinas (§ 12022.7, subd. (a)). Regarding 

counts 3 through 6, it was alleged that defendant personally used a firearm within the 

meaning of section 12022.5, subdivision (a) and inflicted great bodily injury on Smith 

and Barcinas (§ 12022.7, subd. (a)).

A jury convicted defendant of all counts and found the sentence enhancement 

allegations true.5

Defendant moved for a new trial, which was denied.

The trial court initially sentenced defendant to LWOP on count 1 plus thirteen 

years for sentence enhancements; a consecutive life term on count 2 plus six years for 

sentence enhancements; and concurrent determinate terms of three years each plus ten 

years for sentence enhancements on counts 3 through 6. The court imposed a full-term 

consecutive sentence of nine years in the Orange County case where defendant was 

convicted of first degree robbery in concert in 2017. At a resentencing hearing, the court 

modified defendant’s sentence in the Orange County case to a consecutive term of two 

years, which was one-third of the midterm.

After a restitution hearing, the court awarded $83,529.01 in restitution to Smith 

and $26,364.77 to Barcinas.

5 Zumbado was convicted in a separate case of first degree robbery (§ 212.5, 

subd. (a)) with the personal use of a firearm (§ 12022.5, subd. (a)) and assault with a 

deadly weapon (§ 245, subd. (a)(1)). Zumbado was sentenced to 14 years.
9

III. DISCUSSION

A. Failure to Discharge a Seated Juror for Cause

Defendant contends that his Sixth and Fourteenth Amendment rights to an 

impartial jury were violated when the trial court failed to discharge a seated juror for 

cause. Defendant requested that the court dismiss Juror No. 4 after he disclosed that he 

recognized Barcinas during his testimony and knew him. The Attorney General contends 

that the court did not abuse its discretion when it declined to discharge the juror.

1. Trial Court Proceedings

During a break in Danny Barcinas’s testimony on the first day of trial, the court 

informed the parties that it had received a note from Juror No. 4. The note stated, “ ‘I 

know Danny is a checker at our Lucky store in PG. We have a mutual friend who was 

our UPS driver who passed away from cancer. I never knew Danny’s last name until 

now. And we do not and have not met socially. I do not feel my very casual relationship 

with Danny will affect my ability to serve.’ ”

With the prosecution and the defense present, the court questioned Juror No. 4 

outside the presence of the other jurors, asking him if the only time he had seen Barcinas 

was at the Lucky store. Juror No. 4 stated that he only saw Barcinas at the Lucky store’s 

checkout, and that “the only additional connection” he had with Barcinas was that they

both knew a man who died of cancer about a year and half ago. The man was Juror 

No. 4’s UPS driver who he “became very friendly with.” Juror No. 4 believed that the 

man had been Barcinas’s high school roommate. Juror No. 4 stated, “So Danny and I had 

conversations in the checkout line about Brian’s passing and our relationship with Brian.”

The court asked Juror No. 4 whether his contacts with Barcinas “mean he has any 

greater or lesser credibility than any other witness who’s testifying here.” Juror No. 4 

responded, “Not at all.” The court asked, “Due to the nature of his role in this case, being 

the alleged victim, do you feel that you will, perhaps, be more likely to vote guilty . . . 
10

because you know [him]?” Juror No. 4 answered, “No, your Honor, I wouldn’t. I’ll 

weigh the facts as if I had never met Danny.”

The court conferred with counsel off the record at the bench. The court then 

asked Juror No. 4, “Do you feel in any way you could be slightly biased towards this 

witness?” Juror No. 4 responded, “No. I don’t feel that would be the case at all.” The 

court inquired, “Do you feel you can be completely impartial and fair in this case?” 

Juror No. 4 answered, “Yes, I do.” The court thanked Juror No. 4 and he left the 

courtroom. The court observed that the parties had not requested additional questioning 

of Juror No. 4.

Defendant stated that he had concerns about Juror No. 4 because “he’s had 

multiple experiences with Danny Barcinas . . . [that] all appear to be favorable.” The 

court responded, “Well, as favorable as going through a checkout in a grocery store can 

be. . . . [W]e’ve all had that experience.” Defendant stated, “I would say it’s actually a 

bit more than that, considering they bonded over another topic.” Defendant continued, 

“The fact that they’ve talked about a mutual acquaintance, shared stories about that 

acquaintance, or whatever the case may be, I do have concern that he’s not recognizing 

that he does have a more favorable opinion of [Barcinas,] who is a significant witness in 

this case, who is one of the main victims in the case. So I do actually have concerns 

about that.”

The prosecution stated, “[T]he juror was credible in his description. He repeatedly 

insisted that it would not affect his decision, he would not be biased even a little bit. So I 

don’t think there’s any cause for removal.”

The court took the matter under submission.

The court conducted follow-up questioning of Juror No. 4 at the start of the second 

day of trial. After the court confirmed that Juror No. 4 did not know Barcinas’s last name 

before trial started, the court asked when he had last seen Barcinas. Juror No. 4 

responded, “[O]ne day last week,” and that he thought it was after jury selection had 
11

begun but before he was seated as a juror. The court asked how long Juror No. 4 had 

been seeing Barcinas at the store. Juror No. 4 stated, “I want to say that . . . we first met 

when our mutual friend, Brian, was diagnosed with cancer. And I did not know Danny 

prior to that point. And I think the only reason I actually met him . . . , we actually heard 

him talk with [sic] my wife in line of . . . Lucky, and we actually heard him talk about 

Brian to another customer that was in front of us checking out. So prior to that, I didn’t 

know Danny at all.” Juror No. 4 explained that his wife told Barcinas that they knew 

Brian about a year to a year and a half ago. Juror No. 4 stated that he saw Barcinas “on a 

pretty regular basis” and would “run into him” approximately once a week. Juror No. 4 

continued, “And then after Brian, pas[sed] our conversation[s] were simply, Thanks for 

the groceries, and that was it. And I, again, never socially met Danny outside of the 

store. We did not have a relationship in that way.” Juror No. 4 stated that he had not 

seen Barcinas outside of the store until he saw him in the courtroom.

The court asked how often Juror No. 4 spoke with Barcinas after their friend’s 

diagnosis, and Juror No. 4 responded that after their friend had died, which was around 

five to six months ago, he and Barcinas had “conversations for about two to three weeks 

about Brian’s daughter. He had a younger teenage daughter. . . . [W]e would just talk 

about how she was doing with the whole thing. I want to say probably in the last four 

months or so, we haven’t spoken about that situation at all. Just been more just, you 

know, hi and bye in the store.” The court asked whether Juror No. 4 would select 

Barcinas’s checkout aisle when shopping. Juror No. 4 responded, “No. I’m all about the 

shortest line when I’m shopping.” The court inquired how long Juror No. 4 had seen 

Barcinas at the store, and the juror stated that it had been about a year and a half since he 

first met him.

The court asked, “[D]o you feel, given your contact with [Barcinas] in the past that 

you can treat him the same as any other witness? For example, not giv[e] him any greater 

or less credibility than any other witness?” Juror No. 4 answered, “With Danny, again, I 
12

thought about it, your Honor, when I was sitting out in the hallway after seeing him prior 

to having the first conversation in the courtroom here about Danny, and my only thought 

when I first saw him walk in is, first, I want to make sure I recognized him. I wasn’t [a] 

hundred percent sure. I haven’t seen him out of that environment in the store. [¶] . . . [¶] 

And once I was sure about that, my only thought about Danny was, you know, bummer 

this happened to him, things I heard happened to him in the courtroom here, but I had no 

ill thoughts or different thoughts about [defendant]. I mean, my feeling is that I just want 

to sit here and listen to the facts and make the best decision based on those facts. And as 

I mentioned to you last week, I don’t feel like my casual relationship with Danny is going 

to affect that decision-making process at all.”

The court asked Juror No. 4 whether he could follow the jury instruction “about 

the credibility of witnesses, everyone kind of starts from the same spot? Can’t have any 

biases toward or against any witnesses,” and Juror No. 4 said that he could. The court 

inquired, “[D]oes [Barcinas] start the same as every other witness who is going to testify 

here, again with no greater other lesser credibility in your mind?” Juror No. 4 responded, 

“Yes, he does.” The court asked about Juror No. 4’s statement, “Bummer, this happened 

to him,” and whether Juror No. 4 had made up his mind about defendant’s “potential guilt 

and whether . . . he is the one that did this to . . . Barcinas or if this happened the way it’s 

alleged.” Juror No. 4 answered, “No, I have not, your Honor.” When the court asked if 

he could wait until deliberations to make up his mind, he said that he could. The court 

excused Juror No. 4 from the courtroom and indicated that neither party had requested 

any additional questioning.

Defendant asked the court to discharge Juror No. 4 because Barcinas was “a 

significant witness” and “one of the three main victims . . . and frankly probably the 

main witness in terms of the whole narrative.” Defendant acknowledged that Juror 

No. 4 “feels he can be unbiased, but the fact that he even made a statement, ‘Bummer 

that happened to him,’ suggests that he’s already given [Barcinas] more credibility than 
13

he realizes . . . , which makes him, in our minds, kind of a dangerous juror as well.” 

Defendant stated that it was not Juror No. 4’s fault, but had he known this information, he 

“probably would have exercised a peremptory [challenge] on him if the [c]ourt would not 

have kicked him for cause.” Defendant asked for “an extra peremptory” to use against 

Juror No. 4 if the court was not going to dismiss him for cause.

The prosecution stated that there was no cause to discharge Juror No. 4 as he 

“repeatedly and credibly indicate[d] that he can set aside his minimal prior relationship 

with . . . Barcinas, and that he would follow all the [c]ourt’s instructions about how he 

has to wait to make up his mind and deliberate. [¶] He had the opportunity to reflect on 

this over the weekend, and he’s still just as convincing in his ability that he can follow his 

duty and responsibility.”

The court declined to discharge Juror No. 4. It began its ruling by discussing the 

case law that it had reviewed, and observed that while section 1089 vests the court with 

the authority to discharge a juror, the case law was clear that a juror’s inability to perform 

his or her duties must “ ‘appear in the record as a demonstrable reality.’ ” The court 

found that “[g]iven the short period of time that an individual would speak to a checkout 

cashier at a grocery store, certainly given Juror No. 4’s ability to follow the Court’s 

instruction, I don’t think he wavered at all in whether he could still follow the Court’s 

instruction and be fair in this case, and he had the weekend to think about it, . . . he seems

to be a straightforward, credible person, his body language, demeanor, everything else 

indicates to the Court he’s being honest, and he’s not trying to hide anything. In fact, 

he’s the one who told us he recognized . . . Barcinas. So I don’t think in this case it rises 

to the level of warranting him being excused under [section] 1089. [¶] And certainly, if 

at the time we were going through jury selection the defense had made a cause challenge, 

I don’t believe I would have excused him for cause. You may have chosen to exercise a 

peremptory. . . . That’s neither here nor there. . . . But I don’t believe I would have 
14

kicked him for cause, given the fact that he has assured us that he can follow the Court’s 

instructions, especially regarding the credibility of witnesses.”

2. Legal Principles

“An accused has a constitutional right to a trial by an impartial jury. [Citations.] 

An impartial jury is one in which no member has been improperly influenced [citations] 

and every member is ‘ “capable and willing to decide the case solely on the evidence 

before it.” ’ [Citations.]” (In re Hamilton (1999) 20 Cal.4th 273, 293-294.)

“If at any time, whether before or after the final submission of the case to the jury, 

a juror dies or becomes ill, or upon other good cause shown to the court is found to be 

unable to perform his or her duty, . . . the court may order the juror to be discharged.” 

(§ 1089.) “ ‘A sitting juror’s actual bias, which would have supported a challenge for 

cause, renders him [or her] “unable to perform his [or her] duty” and thus subject to 

discharge and substitution.’ ” (People v. Lomax (2010) 49 Cal.4th 530, 589 (Lomax); see 

also People v. Barton (2020) 56 Cal.App.5th 496, 508 [“Good cause exists to discharge a 

juror when the juror loses his or her ability to render a fair and impartial verdict based on 

the evidence presented at trial”].)

The decision whether to discharge a juror is a matter within the trial court’s 

discretion. (Lomax, supra, 49 Cal.4th at p. 589.) “ ‘ “[W]hen a trial court’s denial of a 

motion to discharge a juror is supported by substantial evidence, it will be upheld.” ’ ” 

(People v. Rangel (2016) 62 Cal.4th 1192, 1211 (Rangel).)

3. Analysis

Defendant argues that Juror No. 4’s “intimate and emotional relationship” with 

Barcinas required that he be discharged for cause. We conclude that the trial court did 

not abuse its discretion when it declined to discharge the juror.

After Juror No. 4 submitted a note signaling that he recognized Barcinas from his 

interactions with him at the Lucky supermarket where Barcinas was a cashier, the trial 

court conducted a thorough inquiry on two occasions of whether Juror No. 4 could be 
15

fair and impartial. Juror No. 4 repeatedly described his relationship with Barcinas as 

“casual,” and stated that he had never seen Barcinas outside of the store until he testified 

at trial. Juror No. 4 explained that he and Barcinas began talking in the checkout line 

when Juror No. 4 realized they had a friend in common who was diagnosed with cancer. 

Juror No. 4 stated that they spoke about their relationship with the mutual friend, the 

friend’s death, and, for two to three weeks after his death, how the friend’s teenage 

daughter was doing. By the time trial started, Juror No. 4’s weekly interactions with 

Barcinas at the store were limited to “hi and bye,” and, “[t]hanks for the groceries.” 

Juror No. 4 selected “the shortest line when . . . shopping,” not necessarily Barcinas’s 

line. Juror No. 4 and Barcinas had not spoken about their mutual friend for about four 

months.

In response to the court’s questioning, Juror No. 4 stated that he could be 

“completely fair and impartial”; he would not view Barcinas as having any more or less 

credibility than any other witness; he would not have any bias toward or against Barcinas 

or any other witness; he would weigh the facts as if he had never met Barcinas; and he 

would wait until deliberations to make up his mind. Juror No. 4 never wavered in his 

view that he could be fair.

Defendant points to Juror No. 4’s statement that once he recognized Barcinas, 

“[his] only thought about [him] was, you know, bummer this happened to him,” as 

evidence that Juror No. 4 had “sympathetic feeling” for Barcinas. But defendant did not 

contest at trial that Barcinas had been injured and robbed; defendant’s defense was that 

the prosecution had charged “the wrong crime” because there was insufficient evidence 

that he uttered a statement constituting an act of extortion and that Smith and Lewis were 

confined for the purpose of extortion. And almost all individuals would have general 

feelings of sympathy for someone who was violently robbed and attacked in his or her 

home. Moreover, immediately after Juror No. 4 stated that it was “[a] bummer this 

happened to [Barcinas],” he continued, unprompted, “but I had no ill thoughts or different 
16

thoughts about [defendant]. I mean, my feeling is that I just want to sit here and listen to 

the facts and make the best decision based on those facts. And as I mentioned to you last 

week, I don’t feel like my casual relationship with Danny is going to affect that decisionmaking process at all.” When the trial court followed up by specifically asking Juror 

No. 4 about whether his, “Bummer, this happened to him,” comment meant that he had 

made up his mind about defendant’s guilt, whether defendant was the one who 

perpetrated the offense, and whether it happened as alleged, Juror No. 4 responded, 

“No, I have not, your Honor.”

Defendant relies on United States v. Allsup (9th Cir. 1977) 566 F.2d 68 (Allsup), 

People v. Romero (2017) 14 Cal.App.5th 774 (Romero), and People v. Tidwell (1970) 

3 Cal.3d 62 (Tidwell) to demonstrate that the trial court erred when it failed to discharge 

Juror No. 4 for cause, but we find those cases distinguishable.

In Allsup, the Ninth Circuit Court of Appeals held that prospective jurors who 

worked at a different branch of the bank the defendant robbed should have been excused 

for cause. (Allsup, supra, 566 F.2d at pp. 71-72.) The court found that “[t]he potential 

for substantial emotional involvement, adversely affecting impartiality, is evident when 

the prospective jurors work for the bank that has been robbed. Persons who work in 

banks have good reason to fear bank robbery because violence, or the threat of violence, 

is a frequent concomitant of the offense. . . . The employment relationship coupled with 

a reasonable apprehension of violence by bank robbers leads us to believe that bias of 

those who work for the bank robbed should be presumed.” (Ibid., fn. omitted.)

Here, Juror No. 4 did not have an “employment relationship” with Barcinas. 

(Allsup, supra, 566 F.2d at p. 71.) Nor was there a “potential for substantial emotional 

involvement” based on “a reasonable apprehension of violence by bank robbers.” (Id. at 

pp. 71, 72.) In short, Allsup is inapposite.

In Romero, the juror had been the victim’s high school teacher approximately 

three years before trial. (Romero, supra, 14 Cal.App.5th at p. 779.) The court asked the 
17

juror whether her contact with the victim would affect her ability to be fair and impartial, 

and the juror responded, “ ‘Not really. She was a good student. I remember positives. 

But I still think I can be fair.’ ” (Ibid.) When asked if despite those “ ‘positives’ ” the 

contact would cause the juror to favor the victim’s testimony or prejudge the case, the 

juror answered, “ ‘I don’t think so.’ ” (Ibid.) The defendant requested that the juror be 

discharged for cause because the defense was mistaken identity and based on the juror’s 

positive experiences as the victim’s teacher, “ ‘there’s a good possibility she might rely 

on her past experiences in assessing whether or not [the victim] was wrong in this 

particular case.’ ” (Id. at p. 780.) The trial court declined to discharge the juror, stating 

that it would “ ‘accept [the juror’s] word’ ” regarding her ability to be fair and impartial. 

(Ibid.)

The Court of Appeal found federal constitutional error for failure to discharge the 

juror for cause. (Romero, supra, 14 Cal.App.5th at p. 780.) The court held that the juror 

should have been discharged as she “clearly knew the victim, apparently had frequent 

personal interaction with the victim in an academic environment (which is customary in 

a teacher-student relationship), and admitted a favorable impression of the victim.” (Id.

at p. 782.) “That, years later, [the] [j]uror . . . remembered this particular student and 

could recall both her performance and disposition speaks to the level and depth of the 

relationship. [The juror’s] favorable impression of her former student was especially 

critical given that the counts involving [the student] relied on [her] credibility and ability 

to recall the details of the crime.” (Id. at p. 783.) And, “[c]ritically, it does not appear 

that the [trial] court looked beyond [the juror’s] statement that she did not ‘think’ her 

favorable teacher-student relationship with [the victim] would affect how she perceived 

the evidence and participated in deliberations.” (Id. at p. 782.) Thus, the appellate court 

was “not confident that the trial court’s conclusion [wa]s manifestly supported by 

evidence on which the court actually relied.” (Ibid.)
18

This case differs from Romero in several respects. First, the interactions in 

Romero between a high school teacher juror and her former student would have been 

more intimate, in-depth, and frequent than the interactions between Juror No. 4 and 

Barcinas, whose conversations at the store checkout were limited to their mutual friend 

dying of cancer and, more recently, “hi and bye in the store.” Unlike the teacher juror in 

Romero, Juror No. 4 did not state “ ‘positives’ ” about Barcinas or have an opportunity to 

assess whether he was a “ ‘good student,’ ” which in Romero was especially important 

given the identity defense. (Romero, supra, 14 Cal.App.5th at p. 779.) Second, the juror 

in Romero was more equivocal in her ability to be fair and impartial than Juror No. 4. 

The Romero juror stated, “ ‘I remember positives. But I still think I can be fair.’ ” (Ibid.) 

Whereas when the trial court asked Juror No. 4 if he felt he could be fair and impartial, 

Juror No. 4 responded, “Yes, I do.” Finally, the trial court’s examination of Juror No. 4 

was much more thorough than the examination in Romero, where the court asked the 

juror just two questions about her ability to be fair and impartial. (Ibid.) The trial court 

here examined Juror No. 4 about his ability to be fair and impartial on two separate 

occasions. The trial court observed, “I don’t think he wavered at all in whether he could 

still follow the [c]ourt’s instruction and be fair in this case, and he had the weekend to 

think about it.” Thus, we do not find Romero dispositive here.

Lastly, the issue in Tidwell was not whether a juror should have been discharged 

due to actual bias, but whether the trial court properly denied the defendant’s motion for 

a change of venue in a triple homicide capital case. (Tidwell, supra, 3 Cal.3d at p. 64.) 

The California Supreme Court held that “[g]iven the size of Lassen County, the nature 

of the crimes, and the position of at least two of the victims in the community, the trial 

judge should have granted a change of venue when he was presented with a showing of 

pervasive news coverage of prosecution evidence and county-wide hostility toward the 

defense.” (Id. at pp. 72-73.) Put simply, Tidwell is inapplicable here because it involved 
19

a different issue. (See People v. Baker (2021) 10 Cal.5th 1044, 1109 (Baker) [“ ‘ “ ‘cases 

are not authority for propositions not considered’ ” ’ ”].)

Defendant repeatedly characterizes Juror No. 4’s relationship with Barcinas as 

“intimate” because it was a relationship between a customer and a store clerk who spoke 

at times of their mutual friend who died of cancer. But it is not our role to “reweigh the 

evidence.” (People v. Barnwell (2007) 41 Cal.4th 1038, 1053.) Rather, we assess 

whether substantial evidence supports the trial court’s denial of a motion to discharge a 

juror. (See Rangel, supra, 62 Cal.4th at p. 1211.) Juror No. 4’s responses to the trial 

court’s thorough questioning provide substantial evidence to support the court’s 

determination that he could follow the court’s instructions and be fair and impartial. Nor 

does anything in Juror No. 4’s conduct—contacting the court once he recognized 

Barcinas—or his statements reveal actual bias. (See ibid.)

For these reasons, we conclude the trial court did not abuse its discretion when it 

declined to discharge Juror No. 4 for cause.

B. Substantial Evidence to Support the Aggravated Kidnapping Convictions

Relying primarily on People v. Martinez (1984) 150 Cal.App.3d 579 (Martinez), 

disapproved on another ground in People v. Hayes (1990) 52 Cal.3d 577, 628, fn. 10, 

defendant contends that his two convictions of aggravated kidnapping must be reversed 

because there is insufficient evidence that Smith’s confinement and Lewis’s confinement 

were “not incidental to the commission of [Barcinas’s] extortion” and that the 

confinements increased Smith’s and Lewis’s risk of harm. The Attorney General 

contends that the convictions are supported by ample evidence.

1. Legal Principles and Standard of Review

Aggravated kidnapping under section 209, subdivision (a) is committed when 

“[a] person . . . seizes, confines, inveigles, entices, decoys, abducts, conceals, kidnaps, 

or carries away another person by any means whatsoever with intent to hold or detain, or 

who holds or detains, that person for ransom, reward, or to commit extortion or to exact 
20

from another person any money or valuable thing.” Despite constituting a kidnapping, 

“[f]orced movement of the victim is not a required element.” (People v. Rayford (1994) 

9 Cal.4th 1, 12, fn. 8 (Rayford).)

“Because the statute is phrased in the disjunctive, it describes four different types 

of aggravated kidnapping: (1) for ransom; (2) for reward; (3) to commit extortion; and 

(4) to exact from another person any money or valuable thing.” (People v. Ibrahim

(1993) 19 Cal.App.4th 1692, 1696 (Ibrahim).) As relevant here, extortion is “the 

obtaining of property or other consideration from another, with his or her consent, . . . 

induced by a wrongful use of force or fear.” (§ 518, subd. (a).)

In determining a sufficiency of the evidence claim, “we review the entire record 

in the light most favorable to the judgment to determine whether it contains substantial 

evidence—that is, evidence that is reasonable, credible, and of solid value—from which 

a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. 

[Citation.] We presume every fact in support of the judgment the trier of fact could have 

reasonably deduced from the evidence. [Citation.] If the circumstances reasonably 

justify the trier of fact’s findings, reversal of the judgment is not warranted simply 

because the circumstances might also reasonably be reconciled with a contrary finding. 

[Citation.] ‘A reviewing court neither reweighs evidence nor reevaluates a witness’s 

credibility.’ [Citation.]” (People v. Albillar (2010) 51 Cal.4th 47, 60.)

2. Martinez

The Court of Appeal in Martinez held that in cases where a multivictim robbery 

“is necessarily present and forms the basis” of an aggravated kidnapping for ransom or 

extortion charge, the movement, seizure, or confinement of the purported kidnap victim 

must be more than that “merely incidental to the commission of the robbery” and must 

“increase the risk of harm over and above that necessarily present in the crime of the 

robbery itself.” (Martinez, supra, 150 Cal.App.3d at pp. 595-596.) The court based its 

decision on People v. Daniels (1969) 71 Cal.2d 1119 (Daniels), superseded by statute as 
21

stated in People v. Robertson (2012) 208 Cal.App.4th 965, 980 (Robertson), which held 

that the offense of aggravated kidnapping to commit robbery did not include situations 

where “the movements of the victim are merely incidental to the commission of the 

robbery and do not substantially increase the risk of harm over and above that necessarily 

present in the crime of robbery itself.” (Daniels, supra, at p. 1139.) The Daniels court 

overturned the defendants’ aggravated kidnapping to commit robbery convictions 

because the defendants essentially did “no more than move [the] victim[s] around inside 

the premises” in which they found them. (Id. at p. 1140.)

The Martinez court extended Daniels to the offense of aggravated kidnapping for 

ransom or extortion because “according to Daniels and its progeny, the aggravated 

kidnaping statute . . . was not intended to apply to the ‘normal’ robbery situation.” 

(Martinez, supra, 150 Cal.App.3d at pp. 590-591.) Rather, “some conduct different or 

more dangerous than that incident to standard robberies must be shown in order to make 

up a kidnaping.” (Id. at p. 593.) The court determined that this “rationale applies to 

situations where the victim of a robbery is placed in fear for his [or her] restrained 

companion” and that “[t]his application should not be defeated by the arbitrary device of 

charging such conduct as a kidnaping for ransom [or extortion] unless we are to revert to 

the discredited practice of allowing the difference between robbery and aggravated 

kidnaping to hinge solely on what crime the prosecutor happens to charge.” (Ibid.)

The facts in Martinez were as follows. The defendant and his codefendant forced 

their way inside a home when the husband answered the door. (Martinez, supra, 150 

Cal.App.3d at p. 586.) The defendant held a screwdriver to the husband’s neck while 

the codefendant went into the bedroom and told the wife that “if she screamed her 

husband would be hit or shot by [the defendant].” (Ibid.) The codefendant took various 

items from the bedroom and raped the wife multiple times. (Ibid.) In the meantime, the 

defendant had tied up the husband in the living room. (Ibid.) At some point, the husband 

was able to escape and summon the police. (Ibid.) The prosecution’s theory was that 
22

“by restraining [the husband] and threatening [the wife] that he would be harmed if she 

screamed or interfered in the robbery, the defendants confined [the husband] to exact 

[the wife’s] cooperation in the robbery (a ‘valuable thing’) within the meaning of 

section 209, subdivision (a). The prosecutor acknowledged that this theory of aggravated 

kidnapping would encompass all robberies in which the robber holds a gun on two 

persons and says to one of them that he will harm the other if his demand for money is 

refused.” (Id. at p. 587.)

The court concluded that the husband’s restraint was incidental to and not more 

dangerous than that inherent in the underlying robbery. (Martinez, supra, 150 

Cal.App.3d at p. 597.) “In order to take the [couple’s] property . . . , the defendants had 

to deal with both [the husband and the wife] in some way. The movements of both of 

them had to be controlled and the resistance of both of them quelled, and whether this 

was accomplished by restraining them in one room or by marching them through the 

house makes no legally cognizable difference.” (Ibid.)

3. Analysis

We question the court’s determination in Martinez that aggravated kidnapping for 

extortion requires that the victim’s seizure or confinement be more than that “merely 

incidental to the commission of the robbery” and must “increase the risk of harm over 

and above that necessarily present in the crime of the robbery itself.” (Martinez, supra, 

150 Cal.App.3d at p. 595.)

The California Supreme Court in Daniels “recognize[d] that some brief 

movements are necessarily incidental to the crime of armed robbery” and found it 

“ ‘difficult to conceive a situation in which the victim of a robbery does not make some 

movement under the duress occasioned by force or fear.’ ” (Daniels, supra, 71 Cal.2d at 

p. 1134.) Thus, “ ‘to restrict the scope of kidnapping, as an alternative or cumulative 

treatment of behavior whose chief significance is robbery’ ” (id. at p. 1138), the court 

held that a robbery with merely incidental movement of and no substantially increased 
23

risk of harm to the victim did not constitute an aggravated kidnapping (id. at pp. 1139-

1140). Notably, the Legislature later amended the aggravated kidnapping to commit 

robbery statute to “adopt[] and codif[y] the Daniels rule.” (People v. Nguyen (2000) 

22 Cal.4th 872, 878; see § 209, subd. (b)(2) [explicitly requiring that “the movement of 

the victim is beyond that merely incidental to the commission of, and increases the risk 

of harm to the victim over and above that necessarily present in, the intended underlying 

[enumerated] offense”].)

Significantly, the Legislature has not amended the aggravated kidnapping for 

extortion statute to include Daniels’s (or, by extension, Martinez’s) more than merely 

incidental and increased risk of harm requirements. (See § 209, subd. (a); In re Greg F.

(2012) 55 Cal.4th 393, 407 [“ ‘ “The failure of the Legislature to change the law in a 

particular respect when the subject is generally before it and changes in other respects are 

made is indicative of an intent to leave the law as it stands in the aspects not amended.” 

[Citations.]’ ”].) And unlike the underlying offense of robbery where it is “ ‘difficult to 

conceive a situation in which the victim . . . does not make some movement under the 

duress occasioned by force or fear’ ” (Daniels, supra, 71 Cal.2d at p. 1134), it is easy to 

conceive a situation where a victim is extorted without any detention or movement. 

Moreover, “[i]f the ransom [or extortion] demand is made on a person other than the 

kidnap victim, there is no robbery. The [aggravated] kidnapping for ransom [or 

extortion] statute applies ‘. . . to those situations involving a primary and secondary 

victim, where one of the victims is held or taken away and the other is subjected to a 

ransom or extortion demand.’ ” (People v. Chacon (1995) 37 Cal.App.4th 52, 63 

(Chacon), quoting Martinez.)

But even assuming that Martinez was correctly decided, we conclude based on 

“the ‘scope and nature’ ” of Smith’s and Lewis’s confinements that there is sufficient 

evidence to uphold the convictions as their confinements were not merely incidental to 

the underlying offenses and increased their risk of harm. (People v. Vines (2011) 51 
24

Cal.4th 830, 870 (Vines) [considering “the ‘scope and nature’ ” of the movement in 

determining whether it was incidental to the underlying robbery], overruled on a different 

ground by People v. Hardy (2018) 5 Cal.5th 56, 104.)

a. Smith’s aggravated kidnapping

There is substantial evidence that Smith’s seizure or confinement was not merely 

incidental to the underlying offenses and that it increased his risk of harm. This was not 

a situation where “the robber [held] a gun on two persons and sa[id] to one of them that 

he will harm the other if his demand for money is refused.” (Martinez, supra, 150 

Cal.App.3d at p. 587.)

Rather, after finding Smith home alone and ordering him into the garage at 

gunpoint, defendant and Zumbado put Smith on the floor, tied his hands, took him inside 

the residence, brought him to his bedroom, again put him on the floor, and told him to 

stay there. The men knew Barcinas was at work and stated that they were waiting for 

him.6 After Barcinas later entered the residence with Lewis, and defendant and Zumbado 

subdued them, defendant ordered Barcinas by gunpoint to the safe in the garage, where 

he threatened, “ ‘No fun and games or I’m going to shoot your roommate,’ [¶] . . . [¶] ‘Or 

your friends.’ ”

7

 This evidence demonstrates that the incident “ ‘involve[ed] a primary 

and secondary victim, where one of the victims is held . . . and the other is subjected to a 

ransom or extortion demand.’ ” (Chacon, supra, 37 Cal.App.4th at p. 63.)

Importantly, defendant did not need to seize Smith and confine him in the 

bedroom, wait for Barcinas to return home, and effectively threaten Barcinas with 

Smith’s life in order to rob Smith and burglarize the residence. Unlike in Martinez, 

6 The record does not specify how much time transpired between Smith’s seizure 

and Barcinas’s arrival home. Defendant was captured on video surveillance footage 

leaving the Save Mart at 7:43 p.m. Police responded to Smith’s and Barcinas’s residence 

at 9:00 p.m.

7 Defendant also threatened, “ ‘Open the safe for the first time or you’re going to 

get it.’ ”
25

where both the husband and wife were present when the defendants forced entry such 

that they both had to be “deal[t] with” to perpetrate the robbery, Smith was home alone. 

(Martinez, supra, 150 Cal.App.3d at p. 597.) This was not “a residential robbery in 

which the robbers found multiple persons at home.” (Id. at p. 591.) Here, defendant and 

Zumbado found Smith at home when they knew Barcinas was at work, seized and 

confined Smith, told Smith they were waiting for Barcinas’s arrival, and used Smith’s 

confinement to gain Barcinas’s cooperation to open the safe. This evidence supports a 

determination that defendant “seize[d or] confine[d] . . . [Smith] by any means 

whatsoever with intent to hold or detain . . . [him] to commit extortion or to exact from 

another person any money or valuable thing.” (§ 209, subd. (a).) And “the quality of 

[Smith’s] confinement” distinguishes this case from a routine residential robbery, given 

its level of violence and length. (Martinez, supra, at p. 594, italics omitted; see also 

People v. Macinnes (1973) 30 Cal.App.3d 838, 844 [aggravated kidnapping conviction 

proper where extortion target knew that his wife and friend “would be hurt ‘if there was 

any trouble,’ and [the wife and friend] were victims of having been ‘[seized] . . . to exact 

[money]’ ”].)

In addition, a reasonable fact finder could determine that Smith’s seizure and 

confinement “increase[d] the risk of harm over and above that necessarily present in 

the crime of the robbery itself.”8 (Martinez, supra, 150 Cal.App.3d at p. 595.) The 

“ ‘ “manner of the detention [or] movement” ’ ” is “critical” to the analysis. (People v. 

John (1983) 149 Cal.App.3d 798, 806 (John); see also Vines, supra, 51 Cal.4th at p. 870 

[considering “the ‘scope and nature’ of the movement”].) In determining whether 

movement increased the risk of harm, courts have considered “ ‘ “the decreased 

8 We omit “substantially” (Martinez, supra, 150 Cal.App.3d at p. 595) from 

Martinez’s requirement that the seizure or confinement increase the risk of harm beyond 

that inherent in a robbery as section 209, subdivision (b)(2) was amended in 1997 to 

require solely an increased risk of harm, not a substantially increased risk of harm. (See 

Robertson, supra, 208 Cal.App.4th at pp. 979-980; Stats. 1997, ch. 817, § 17.)
26

likelihood of detection, the danger inherent in a victim’s foreseeable attempts to escape, 

and the attacker’s enhanced opportunity to commit additional crimes. [Citations.] The 

fact that these dangers do not in fact materialize does not, of course, mean that the risk of 

harm was not increased.” ’ ” (Vines, supra, at p. 870.)

In John, for example, “while [the victim] was initially confronted with an armed 

assailant, his subsequent treatment was not violent, he was not injured, and he was 

moved only on foot from place to place on the grounds and within his home while the 

crime was continued.” (John, supra, 149 Cal.App.3d at p. 806.) Thus, the court found 

no substantially increased risk of harm. (Id. at pp. 806-807.) Whereas in People v. 

Simmons (2015) 233 Cal.App.4th 1458, 1472 (Simmons), “[the] movement decreased the 

likelihood the defendants would be detected,” “allowed the defendants to engage in 

additional and more dangerous crimes,” and “increased the possibility of something 

going awry and somebody getting hurt.” (See ibid. [further observing that the movement 

did not only increase the risk of harm, it caused additional harm in fact].)

Here, unlike in John, Smith’s “treatment was . . . violent” after the men 

approached him and ordered him into the garage at gunpoint. (John, supra, 149 

Cal.App.3d at p. 806.) Smith was put on the floor of the garage, his hands were tied, he 

was brought to his bedroom, again put on the floor (seemingly face down), and ordered 

to stay there. Upon Barcinas’s and Lewis’s arrival at the residence, defendant and 

Zumbado were able to violently confront them with Smith tied up in the bedroom. 

Defendant “smacked [Lewis] in the face with [the] barrel of his firearm,” busting his lip 

open, and subsequently “rushed [Barcinas] from the side and forced [him] into the 

bathroom.” When Smith untied himself and tried to hit defendant with a bat, defendant 

knocked Smith unconscious, fracturing his skull. Also in the course of the violence, 

Barcinas sustained a head injury requiring staples. Based on this evidence, a reasonable 

fact finder could conclude that Smith’s seizure and confinement “allowed . . . defendant[] 

to engage in additional and more dangerous crimes,” and “increased the possibility of 
27

something going awry and somebody getting hurt,” which, in fact, occurred. (Simmons, 

supra, 233 Cal.App.4th at p. 1472.)

For these reasons, we conclude there is substantial evidence that Smith’s seizure 

or confinement was not incidental to the underlying robbery or extortion and that his 

seizure or confinement increased the risk of harm beyond that inherent in the underlying 

crimes.

b. Lewis’s Aggravated Kidnapping

We likewise conclude that there is substantial evidence that Lewis’s confinement 

was not merely incidental to the underlying robbery or extortion and that it increased his 

risk of harm. (See Martinez, supra, 150 Cal.App.3d at pp. 595-596.)

When Lewis walked into the residence’s hallway, defendant smacked him in the 

face with the barrel of a gun, busting his lip open. Defendant backed Lewis into the 

living room at gunpoint; told Lewis he would be shot if he did not cooperate; tied Lewis’s 

hands behind his back; had him lie on the floor face down; and tied his ankles. Lewis 

was “hogtied on the living room floor.” Defendant then violently subdued Barcinas; 

violently subdued Smith, again; ordered Barcinas to the garage safe at gunpoint; and 

threatened Barcinas, “ ‘No fun and games or I’m going to shoot your roommate,’ 

[¶] . . . [¶] ‘Or your friends.’ ”

Like Smith’s seizure and confinement, “the quality of [Lewis’s] confinement” 

distinguishes this case from a routine residential robbery. (Martinez, supra, 150 

Cal.App.3d at p. 594, italics omitted; see also Rayford, supra, 9 Cal.4th at p. 12 

[considering “the ‘scope and nature’ of the movement” and “the context of the 

environment in which the movement occurred” in an aggravated kidnapping to commit 

rape].) The circumstances here are appreciably different from a situation where a robber 

solely points a gun at someone and orders another’s cooperation, in part because of the 

heightened violence. (See Martinez, supra, at p. 587; see also Rayford, supra, at p. 12 

[stating that whether the movement was incidental and whether it increased the risk of 
28

harm are interrelated].) There is substantial evidence that Lewis “was subjected to . . . 

greater confinement . . . than is incident to a ‘normal’ multivictim robbery” (Martinez, 

supra, at p. 591) and that defendant “seize[d or] confine[d] . . . [Lewis] by any means 

whatsoever with intent to hold or detain . . . [him] to commit extortion or to exact from 

another person any money or valuable thing” (§ 209, subd. (a)).

In addition, there is substantial evidence that Lewis’s confinement increased his 

risk of harm. Lewis’s “treatment” continued to be violent after defendant hit him in the 

face with a gun and threatened to shoot him if he did not cooperate. (John, supra, 149 

Cal.App.3d at p. 806.) Defendant proceeded to “hogtie[]” Lewis face down on the living 

room floor. His confinement also allowed defendant to turn his attention to Smith and 

Barcinas, on whom defendant inflicted great bodily injury. Based on this evidence, a 

reasonable fact finder could conclude that Lewis’s confinement “allowed . . . defendant[] 

to engage in additional and more dangerous crimes,” and “increased the possibility of 

something going awry and somebody getting hurt.” (Simmons, supra, 233 Cal.App.4th 

at p. 1472.)

Thus, we determine that Lewis’s “restraint . . . enlarge[d] the scope of what would 

otherwise be a robbery or extortion, and expose[d] him to a greater risk than would be the 

case if [Barcinas] were simply robbed.” (Martinez, supra, 150 Cal.App.3d at p. 597.)

For all of these reasons, we conclude there is sufficient evidence to uphold the 

aggravated kidnapping to commit extortion convictions.

C. Aggravated Kidnapping Jury Instructions

Defendant raises several claims of error regarding the aggravated kidnapping 

instructions. Defendant contends that the trial court failed to sua sponte instruct that the 

victim’s confinement must have been greater than merely incidental to the underlying 

extortion and must have increased the risk of harm beyond that inherently present in the 

extortion; the court failed to instruct that defendant must have confined the victims to get 

money or something valuable from another person; and the court failed to sua sponte 
29

instruct that the taking of money or other valuable thing had to be consensual. The 

Attorney General contends that defendant’s claims have been forfeited and there was no 

instructional error.

1. Trial Court Proceedings

As relevant here, the trial court instructed the jury on aggravated kidnapping with 

CALCRIM No. 1202 as follows:

“To prove that the defendant is guilty of [kidnapping for the purpose of extortion], 

the People must prove that: [¶] l. The defendant kidnapped, abducted, seized or 

confined another person; [¶] 2. The defendant held or detained that person; [¶] 3. The 

defendant did so to commit extortion or to get money or something valuable; [¶] and [¶] 

4. The other person did not consent to being kidnapped, abducted, seized or confined. 

[¶] It is not necessary that the person be moved for any distance. [¶] Someone intends 

to commit extortion if he or she intends to: (1) obtain a person’s property with the 

person’s consent, and (2) obtain the person’s consent through the use of force or fear.”

Using an adapted version of CALCRIM No. 252, the court further instructed that 

“[t]he specific intent required for the crime of Kidnapping for Extortion is the intent to 

hold or detain an individual to commit extortion or to exact from another person any 

money or valuable thing.”

Defendant agreed to the instructions.

2. Legal Principles and Standard of Review

A trial court has the duty to sua sponte instruct “on general principles of law that 

are closely and openly connected with the facts presented at trial” and that are necessary 

for a jury’s understanding of the case. (People v. Ervin (2000) 22 Cal.4th 48, 90 (Ervin).) 

“As to pertinent matters falling outside the definition of a ‘general principle of law 

governing the case,’ it is [the] ‘defendant’s obligation to request any clarifying or 

amplifying instruction.’ [Citation.]” (People v. Estrada (1995) 11 Cal.4th 568, 574 

(Estrada).)
30

We review claims of instructional error de novo. (People v. Cole (2004) 33 

Cal.4th 1158, 1210 (Cole).) “In conducting this review, we first ascertain the relevant 

law and then ‘determine the meaning of the instructions in this regard.’ [Citation.] [¶] 

The proper test for judging the adequacy of instructions is to decide whether the trial 

court ‘fully and fairly instructed on the applicable law . . . .’ [Citation.] ‘ “In 

determining whether error has been committed in giving or not giving jury instructions, 

we must consider the instructions as a whole . . . [and] assume that the jurors are 

intelligent persons and capable of understanding and correlating all jury instructions 

which are given. [Citation.]” ’ [Citation.] ‘Instructions should be interpreted, if possible, 

so as to support the judgment rather than defeat it if they are reasonably susceptible to 

such interpretation.’ [Citation.]” (People v. Martin (2000) 78 Cal.App.4th 1107, 1111-

1112 (Martin).)

3. Failure to Instruct that Aggravated Kidnapping Requires the 

Victims’ Confinement to be Greater than Merely Incidental and to 

Increase Their Risk of Harm

Defendant contends that the trial court failed to sua sponte instruct that the 

victims’ confinement must have been greater than merely incidental to the underlying 

extortion and must have increased the risk of harm beyond that inherently present in the 

extortion. As the Attorney General points out, however, defendant did not request that 

the aggravated kidnapping instructions be modified to include that language. 

Defendant’s failure to request modification forfeited the claim as the given instructions 

adequately and correctly instructed “on [the] general principles of law . . . closely and 

openly connected with the facts” and necessary for the jury’s understanding of the case. 9 

9 Defendant asserts for the first time in his reply brief that this court should 

address the issue because the aggravated kidnapping instructions affected his substantial 

rights as they were “incorrect in law.” For the reasons stated below, we determine that 

the trial court’s failure to sua sponte include the not merely incidental to and increased 

risk of harm factors did not render the aggravated kidnapping for extortion instructions 

incorrect.
31

(Ervin, supra, 22 Cal.4th at p. 90; see People v. Geier (2007) 41 Cal.4th 555, 579

(Geier).)

“ ‘[T]he language of a statute defining a crime or defense is generally an 

appropriate and desirable basis for an instruction, and is ordinarily sufficient when the 

defendant fails to request amplification. If the jury would have no difficulty in 

understanding the statute without guidance, the court need do no more than instruct in 

statutory language.’ ” (Estrada, supra, 11 Cal.4th at p. 574.)

As relevant here, the aggravated kidnapping statute states, “A person who seizes, 

confines, . . . abducts, . . . [or] kidnaps . . . another person by any means whatsoever with 

intent to hold or detain, or who holds or detains, that person for ransom, reward, or to 

commit extortion or to exact from another person any money or valuable thing, . . . is 

guilty of a felony.” (§ 209, subd. (a).) There is no statutory requirement for the seizure 

or confinement to have been more than merely incidental to the underlying extortion or 

for it to have increased the victim’s risk of harm. The court’s instructions adequately 

informed the jury of the offense’s elements and correctly stated the law, including that 

defendant must have “held or detained” the victims “to commit extortion or to get money 

or something valuable” and that defendant must have specifically intended “to hold or 

detain an individual to commit extortion or to exact from another person any money or 

valuable thing.”

Defendant contends that People v. Bell (2009) 179 Cal.App.4th 428 (Bell) 

demonstrates that the trial court’s instructions omitted an element of the offense, but 

Bell is distinguishable in important respects. First, unlike here, the defendant in Bell

requested that the jury be instructed to consider whether his movement of the victim was 

incidental to his reckless flight from the police. (Id. at p. 434.) Second, Bell involved the 

crime of simple kidnapping, not aggravated kidnapping for extortion. (Ibid.) The court 

concluded based on the statutory language requiring asportation of the victim “ ‘into 

another country, state, or county, or into another part of the same county’ ” (id. at p. 435), 
32

that the instruction on simple kidnapping did not completely instruct on the element of 

movement for a substantial distance and constituted an incorrect instruction on the law 

(id. at pp. 435, 439). There is no comparable language in the aggravated kidnapping for 

extortion statute. (See § 209, subd. (a).)

Defendant argues that Martinez demonstrates that the trial court was required to 

instruct on “ ‘not merely incidental’ ” and “ ‘increased risk of harm’ ” as elements of the 

offense. But Martinez did not examine the jury instructions or hold that “not merely

incidental” to the underlying offense and an “increased risk of harm” were elements of 

aggravated kidnapping for extortion. Rather, the court reversed the aggravated 

kidnapping convictions based on the evidence presented in that case. (See Martinez,

supra, 150 Cal.App.3d at p. 597.)

For these reasons, we conclude that the trial court was not required to sua sponte 

instruct the jury that the victim’s seizure or confinement must have been more than 

merely incidental to the extortion and must have increased the victims’ risk of harm.

4. Failure to Instruct that the Victims’ Confinement Must Have Been 

to Exact Money or Something Valuable from Another Person

The trial court instructed the jury on two theories of aggravated kidnapping: (1) to 

commit extortion; and (2) to exact money or something valuable. Regarding the latter 

theory, defendant contends that the court erred in failing to instruct that the victims’ 

confinement must have been to exact money or something valuable from another person. 

We conclude that taken together, the instructions “ ‘fully and fairly instructed on the 

applicable law.’ ” (Martin, supra, 78 Cal.App.4th at p. 1111.)

As we stated above, section 209, subdivision (a) “describes four different types 

of aggravated kidnapping: (1) for ransom; (2) for reward; (3) to commit extortion; and 

(4) to exact from another person any money or valuable thing.” (Ibrahim, supra, 19 

Cal.App.4th at p. 1696.) “For the first three types, the kidnap victim may be the same 

person as the person who is being extorted or from whom the ransom or reward is sought. 
33

[Citations.] However, for the fourth type, there must be both a primary victim (the 

kidnap victim) and a secondary victim from whom the defendant seeks to exact money 

or something valuable.” (People v. Stringer (2019) 41 Cal.App.5th 974, 981-982

(Stringer).) Indeed, “[t]he statutory language for the fourth type of aggravated 

kidnapping is ‘to exact from another person any money or valuable thing’ (§ 209(a), 

italics added), which means there must be a primary kidnap victim and a secondary 

victim (‘another person’).” (People v. Harper (2020) 44 Cal.App.5th 172, 192.)

While element three of the trial court’s aggravated kidnapping instructions did 

not specify that the defendant must have held or detained someone to exact money or 

something valuable from another person, the instruction on the offense’s specific intent 

did, stating, “The specific intent required for the crime of Kidnapping for Extortion is 

the intent to hold or detain an individual to commit extortion or to exact from another 

person any money or valuable thing.” (Italics added.) The specific intent instruction was 

reinforced by the court’s instruction on the uncharged act evidence, which stated, “If you 

decide that the defendant committed the uncharged offense, you may, but are not required 

to, consider that evidence for the limited purpose of deciding whether: [¶] . . . The 

defendant acted with the intent to hold or detain an individual to commit extortion or to 

exact from another person any money or valuable thing.”

“ ‘ “ ‘ “[T]he correctness of jury instructions is to be determined from the entire 

charge of the court, not from a consideration of parts of an instruction or from a particular 

instruction.” ’ ” ’ ” (People v. Young (2005) 34 Cal.4th 1149, 1202.) Given that the 

instruction on the offense’s specific intent included that defendant must have intended to 

exact money or something valuable “from another person,” we determine that the court 

“ ‘fully and fairly instructed on the applicable law’ ” (Martin, supra, 78 Cal.App.4th at 

p. 1111). “ ‘ “ ‘ “[W]e must assume that jurors are intelligent persons and capable of 

understanding and correlating all jury instructions which are given.” ’ ” ’ ” (People v. 

Landry (2016) 2 Cal.5th 52, 95.)
34

5. Failure to Sua Sponte Instruct that Aggravated Kidnapping to 

Exact Money or Something Valuable Required a Consensual 

Taking

Defendant contends that the trial court failed to sua sponte instruct the jury that 

aggravated kidnapping to exact money or something valuable required that the taking be 

consensual. As with defendant’s first claim of instructional error, we determine that the 

claim has been forfeited.

Defendant did not request that the instructions be modified to include that the 

theory of aggravating kidnapping to exact money or something valuable required a taking 

to be consensual. And section 209, subdivision (a) includes no such language. Again, 

the aggravated kidnapping statute at issue here states, “A person who seizes, confines, . . . 

abducts, [or] kidnaps . . . another person by any means whatsoever with intent to hold or 

detain, or who holds or detains, that person for ransom, reward, or to commit extortion or 

to exact from another person any money or valuable thing, . . . is guilty of a felony.” 

(§ 209, subd. (a).)

There is no statutory requirement that the victim be held or detained to 

consensually exact money or something valuable, and the court’s instructions adequately 

informed the jury of the offense’s elements and correctly stated the law, including that 

defendant must have “held or detained” the victims “to get money or something 

valuable” and that defendant must have specifically intended “to hold or detain an 

individual to commit extortion or to exact from another person any money or valuable 

thing.” Thus, defendant’s failure to request modification forfeited the claim as the given 

instructions adequately and correctly instructed “on [the] general principles of law . . . 

closely and openly connected with the facts” and necessary for the jury’s understanding 

of the case. (Ervin, supra, 22 Cal.4th at p. 90; see Geier, supra, 41 Cal.4th at p. 579.)

While defendant relies on Stringer, that case involves a different issue. There, the 

defendant argued that the jury instruction “omitted necessary language indicating the 

kidnapping must be perpetrated to exact money or property from another person,” and 
35

that under the erroneous instruction, the jury could have improperly convicted him “if he 

sought to exact money or property from the kidnap victims.” (Stringer, supra, 41 

Cal.App.5th at pp. 982-983.) The case is inapposite here, as the court in Stringer did not 

consider whether an aggravated kidnapping to exact money or something valuable 

required a taking to be consensual. “ ‘ “ ‘[C]ases are not authority for propositions not 

considered.’ ” ’ ” (Baker, supra, 10 Cal.5th at p. 1109.)

In sum, we reject defendant’s claims of instructional error regarding the 

aggravated kidnapping instructions.

D. Failure to Give Requested Pinpoint Instruction on Robbery

Defendant contends that the trial court erred when it refused his request for a 

pinpoint instruction on robbery to support his defense theory. Defendant asserts that the 

error violated his federal due process, compulsory process, and confrontation clause 

rights. The Attorney General contends that the pinpoint robbery instruction was 

unwarranted because robbery is not a lesser included offense of aggravated kidnapping, 

defendant was not entitled to an instruction on a lesser related offense absent the 

prosecution’s agreement, and the denial of the pinpoint instruction did not infringe on 

defendant’s right to present a defense.

1. Trial Court Proceedings

By written motion and during a conference on jury instructions, defendant 

requested the court to give “a ‘Special Instruction’ ” on robbery because he intended to 

argue to the jury that he had committed a robbery, which was not charged, but was not 

guilty of aggravated kidnapping.

Defendant’s proposed instruction stated: “Even though, you, the Jury, are not 

being asked to consider whether [defendant] committed a Robbery, the Court is providing 

you with the elements of the crime. [¶] You may, but are not required to, use this 

information to aid in your deliberations in determining whether or not [defendant] is 

‘guilty’ or ‘not guilty’ of any of the charged offenses. [¶] You must not speculate as to 
36

why [defendant] is not being charged with Robbery. [¶] To commit a violation of Penal 

Code Section 212.5 [Residential Robbery]: [¶] 1. The Defendant took property that was 

not his own from inside of an inhabited dwelling; [¶] 2. The property was in the 

possession of another person; [¶] 3. The property was taken from the other person or his 

immediate presence; [¶] 4. The property was taken against the person’s will; [¶] 5. The 

Defendant used force or fear to take the property or to prevent the person from resisting; 

[¶] AND [¶] 6. When the defendant used force or fear, he intended to deprive the 

owner of the property permanently.”

Defendant asserted that he needed the instruction “[t]o effectively make the 

argument” that he committed robbery instead of aggravated kidnapping, but conceded 

that robbery is not a lesser included offense of aggravated kidnapping. Defendant stated 

that while he had extensively researched the issue, he “never found a case . . . where there 

was some type of special advisory instruction to this effect.” The prosecution opposed 

the request.

The trial court denied defendant’s requested pinpoint instruction because 

defendant was not charged with robbery, robbery is not a lesser included offense of 

aggravated kidnapping, and the prosecution had not agreed to a robbery instruction as a 

lesser related offense. The court also found that instructing the jury on the elements of 

robbery would be confusing. However, the court stated that it would permit defendant to 

argue this theory to the jury.

Defendant argued to the jury that the prosecution had not proven that he had 

committed aggravated kidnapping, and that what he “did on that day was go into the 

house [with] the intent to rob.” Defendant asserted that it was his “position that the crime 

that [he] actually committed is not the one that he’s being accused of,” and that the jury 

must find him not guilty because the prosecution “charged the wrong crime.”
37

2. Legal Principles and Standard of Review

“[A] criminal defendant is entitled to pinpoint instructions that relate particular 

facts to an element of the charged offense and highlight or explain a theory of the 

defense if the instructions are supported by substantial evidence.” (People v. Nelson

(2016) 1 Cal.5th 513, 542.) However, “a trial court may properly refuse an instruction 

offered by the defendant if it incorrectly states the law, is argumentative, duplicative, or 

potentially confusing [citation], or if it is not supported by substantial evidence 

[citation].” (People v. Moon (2005) 37 Cal.4th 1, 30.)

We review for an abuse of discretion a trial court’s refusal to give a pinpoint 

instruction on the basis that it was argumentative, duplicative, or potentially confusing. 

(See People v. Mora and Rangel (2018) 5 Cal.5th 442, 497.) “An abuse of discretion 

will be ‘established by “a showing the trial court exercised its discretion in an arbitrary, 

capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.” ’ 

[Citation.]” (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 390 

(Bryant).)10

3. Analysis

We conclude that the trial court did not abuse its discretion when it refused to 

give defendant’s requested pinpoint instruction on robbery. The trial court’s 

determination that it would be confusing to instruct the jury on a crime that was neither 

charged nor a lesser included offense was not “ ‘ “arbitrary, capricious, or patently 

absurd.” ’ ” (Bryant, supra, 60 Cal.4th at p. 390.)

Defendant argues that the proposed pinpoint instruction “correctly laid out the 

elements of robbery” and was “no more ‘confusing’ than any other jury instruction on 

10 Citing People v. Manriquez (2005) 37 Cal.4th 547 (Manriquez), defendant 

asserts that the standard of review is de novo. However, Manriquez pertained to a 

different issue, namely, whether the evidence was sufficient to require an instruction on 

imperfect self-defense. (Id. at pp. 581-582.)
38

the elements of an offense.” Defendant’s argument overlooks that all of the given jury 

instructions containing offense elements pertained to charged offenses or lesser included 

offenses. It is the fact that robbery was uncharged and not a lesser included offense that 

provides support for the trial court’s conclusion that the instruction would have been 

confusing.

In a similar case, the Court of Appeal upheld a trial court’s refusal to instruct on 

an uncharged offense. (See People v. Valentine (2006) 143 Cal.App.4th 1383, 1385 

(Valentine).) There, the defendant requested an instruction on receiving stolen property 

“hop[ing] to convince the jury that he committed the uncharged offense and that he 

[should] be acquitted of the charged offense [of robbery].” (Ibid.) The defendant argued 

on appeal that although receiving stolen property was not a lesser included offense, he 

was “entitled to the requested instruction because the omission amounted to a failure to 

instruct on a defense theory.” (Id. at p. 1387.) The Court of Appeal concluded 

otherwise, reasoning that allowing such an instruction would undermine the rule 

forbidding instruction on a lesser related offense absent the prosecution’s agreement. 

(Ibid.)

Defendant argues that Valentine is unpersuasive because it relied on People v. 

Birks (1998) 19 Cal.4th 108, 113, 136 (Birks), which held solely that a defendant is not 

unilaterally entitled to instruction on a lesser related offense as an alternate theory of 

liability. Defendant correctly points out that the California Supreme Court in Birks did 

not address whether a defendant is entitled to instruction on an uncharged offense to 

support the defense theory that he or she is not guilty of the charged offense—that is, to 

argue for acquittal.

As the appellate court in Valentine observed, however, “the offense of receiving 

stolen property is not a defense to robbery; rather, it is a theory of criminal liability based 

on a different offense. Thus, the failure to give the instruction did not impinge on [the 

defendant’s] right to present a defense to robbery.” (Valentine, supra, 143 Cal.App.4th 
39

at p. 1388.) Put differently, the commission of a lesser related offense does not negate 

any element of the charged offense, as would a true defense.

Lastly, the trial court’s refusal to give defendant’s pinpoint instruction on robbery 

did not preclude defendant from presenting his defense. As recounted above, defendant 

was permitted to argue that he committed robbery, not aggravated kidnapping, and made 

that argument at length to the jury. We therefore reject defendant’s federal constitutional 

claims. (See Crane v. Kentucky (1986) 476 U.S. 683, 690 [“Whether rooted directly in 

the Due Process Clause of the Fourteenth Amendment, Chambers v. Mississippi [(1973) 

410 U.S. 284], or in the Compulsory Process or Confrontation clauses of the Sixth 

Amendment, [citations], the [federal] Constitution guarantees criminal defendants 

‘a meaningful opportunity to present a complete defense’ ”].)

For these reasons, we conclude that the trial court did not err when it denied 

defendant’s requested pinpoint instruction on robbery.

E. Cumulative Prejudice

Defendant contends that the cumulative prejudice from the trial court’s 

instructional errors mandates reversal of the aggravated kidnapping convictions. (See 

People v. Hill (1998) 17 Cal.4th 800, 844 [“a series of trial errors, though independently 

harmless, may in some circumstances rise by accretion to the level of reversible and 

prejudicial error”].) However, we have rejected defendant’s claims of instructional error. 

Because there was no instructional error, there can be no cumulative prejudice.

F. Uncharged Act Evidence

Defendant contends that the trial court abused its discretion when it admitted 

pursuant to Evidence Code section 1101, subdivision (b) (Evidence Code 

section 1101(b)) evidence of his commission of a home invasion robbery in Huntington 

Beach in 2007, “given the striking lack of similarity” between the uncharged act and the 

charged incident. Defendant further contends that the admission of the evidence violated 

his federal constitutional right to due process. The Attorney General counters that the 
40

trial court did not abuse its discretion in admitting the evidence “given its striking 

similarities to the instant crimes.”

1. Trial Court Proceedings

The prosecution moved in limine to present evidence of defendant’s 2007 home 

invasion robbery. The prosecution asserted that the evidence was admissible under 

Evidence Code section 1101(b) to prove motive, intent, and common scheme or plan and 

that the probative value of the evidence was not substantially outweighed by the potential 

of undue prejudice.

Defendant opposed the motion. Defendant asserted that the uncharged act 

evidence was not admissible as evidence of intent because intent was not presently at 

issue and that the uncharged act evidence was not sufficiently similar to the charged 

offense to be admissible as evidence of common scheme or plan or identity. Defendant 

observed that unlike in the current incident, masks, zip ties, security badges, duct tape, 

and two-way radios were utilized in the 2007 incident; the coperpetrators in both 

incidents were different; the incidents occurred in different counties; and the 2007 

incident included a theft of property from the person.

At the hearing on the motion, the prosecution argued that the uncharged act was 

similar to the charged offense because in both instances, defendant had knowledge of the 

victims and their activities, including when they would arrive home and that they were 

marijuana dealers; defendant acted in concert with an armed accomplice; defendant 

received inside information about the victims from a third party; both victims were 

marijuana dealers; defendant and the accomplice forced their way into the homes at 

gunpoint, held the victims at gunpoint, ordered the victims to get down, bound the 

victims, took the victims from room to room at gunpoint, pistol whipped a victim, and 

asked where the safes were located; and defendant and the accomplice stole cash, jewelry 

and personal property.
41

Defendant referenced the differences between the incidents mentioned in his 

written opposition and disputed some of the alleged similarities noted by the prosecutor, 

including that a victim in this case was pistol whipped. Defendant argued that the 2007 

incident was sophisticated whereas the current incident was not, and asserted that the 

incidents were “sufficiently different” to exclude the uncharged act evidence.

The trial court found that intent was at issue as the prosecution had to prove the 

specific intent of kidnapping for the purpose of extorting money and that the uncharged 

act was sufficiently similar to the charged offense to be admissible as evidence of intent 

and common scheme or plan. The court agreed with the prosecution’s recitation of the 

similarities between the incidents, including that in both offenses a victim was hit in the 

head with a gun. The court found the “biggest similarity” was that in both situations, the 

victims were targeted for dealing marijuana. The court stated that the similarities showed 

“a common plan and not just spontaneous actions.”

The court further determined that the uncharged act evidence was not unduly 

prejudicial under Evidence Code section 352. The court found that the evidence would 

not confuse the jury given that the uncharged act occurred at a different place and time 

than the current incident and was not inflammatory because the uncharged act was less 

egregious than the current incident and defendant was convicted.

As we detailed above, at trial the prosecution presented evidence of defendant’s 

commission of a home invasion robbery in 2007. The evidence showed that defendant 

robbed a couple at their residence in Huntington Beach; the couple was bound with zip 

ties and duct tape during the incident; and the male victim was a marijuana dealer. 

Defendant stated in a police interview that he got the information about the male victim 

from a third party. Defendant said that while the third party waited outside as a lookout, 

he and another man went to the victim’s house, waited for him to come home, and 

confronted him at gunpoint when he pulled into the garage. Defendant and the 

coperpetrator wore masks and the coperpetrator had a gun. Defendant and the 
42

coperpetrator approached the man asking to buy drugs. Defendant was convicted of first 

degree robbery in concert in 2017.

The court instructed the jury that if it decided that defendant committed the 

uncharged offense, it could consider that evidence for the limited purpose of deciding 

whether “defendant acted with the intent to hold or detain an individual to commit 

extortion or to exact from another person any money or valuable thing” or whether 

“defendant had a plan or scheme to commit the [aggravated kidnapping] offenses charged 

in Counts 1 and 2.”

2. Legal Principles and Standard of Review

“ ‘Subdivision (a) of [Evidence Code] section 1101 prohibits admission of 

evidence of a person’s character, including evidence of character in the form of specific 

instances of uncharged misconduct, to prove the conduct of that person on a specified 

occasion. Subdivision (b) of [Evidence Code] section 1101 clarifies, however, that this 

rule does not prohibit admission of evidence of uncharged misconduct when such 

evidence is relevant to establish some fact other than the person’s character or 

disposition.’ [Citation.] ‘Evidence that a defendant committed crimes other than those 

for which he [or she] is on trial is admissible when it is logically, naturally, and by 

reasonable inference relevant to prove some fact at issue, such as motive, intent, 

preparation or identity. [Citations.]’ ” (People v. Fuiava (2012) 53 Cal.4th 622, 667 

(Fuiava).) “If an uncharged act is relevant to prove some fact other than propensity,” 

such as the perpetrator’s intent or the existence of a common plan, “the evidence is 

admissible, subject to a limiting instruction upon request.” (Bryant, supra, 60 Cal.4th at 

p. 406).)

“ ‘Evidence of uncharged crimes is admissible to prove identity, common plan, 

and intent “only if the charged and uncharged crimes are sufficiently similar to support 

a rational inference” on these issues.’ [Citation.] The degree of similarity varies 

depending on the purpose for which the evidence is offered. ‘The least degree of 
43

similarity . . . is required in order to prove intent.’ [Citation.] For this purpose, ‘the 

uncharged misconduct must be sufficiently similar to support the inference that the 

defendant “ ‘probably harbor[ed] the same intent in each instance.’ ” ’ [Citation.] A 

higher degree of similarity is required to prove the existence of a common plan: 

‘[E]vidence of uncharged misconduct must demonstrate “not merely a similarity in the 

results, but such a concurrence of common features that the various acts are naturally to 

be explained as caused by a general plan of which they are the individual 

manifestations.” ’ [Citation.] Finally, although not at issue here, ‘[t]he greatest degree 

of similarity is required for evidence of uncharged misconduct to be relevant to prove 

identity.’ [Citation.] To establish identity, the uncharged and charged crimes ‘ “ must 

be so unusual and distinctive as to be like a signature.” ’ [Citation.]” (People v. Chhoun

(2021) 11 Cal.5th 1, 25-26, fn. omitted (Chhoun).)

“Even if evidence of the uncharged conduct is sufficiently similar to the charged 

crimes to be relevant for a nonpropensity purpose, the trial court must next determine 

whether the evidence’s probative value is ‘substantially outweighed by the probability 

that its admission [would] . . . create substantial danger of undue prejudice, of confusing 

the issues, or of misleading the jury.’ (Evid. Code, § 352; [citation].)” (Chhoun, supra, 

11 Cal.5 at p. 26.)

“ ‘ “We review for abuse of discretion a trial court’s rulings on relevance and 

admission or exclusion of evidence under Evidence Code sections 1101 and 352.” 

[Citation.]’ [Citation.]” (Fuiava, supra, 53 Cal.4th at pp. 667-668, fn. omitted.)

3. Analysis

Defendant argues that the trial court erred when it admitted the uncharged act 

evidence under Evidence Code section 1101(b) as evidence of intent because the 

uncharged crime of robbery and the charged crime of aggravated kidnapping for extortion 

have different intent requirements. Defendant further argues that the offenses lacked 

sufficient similarity to be admissible as evidence of either intent or common scheme or 
44

plan. The Attorney General argues that based on the incidents’ similarities, “[e]vidence 

of the [robbery] was admissible to show that [defendant] was acting in furtherance of a 

specific and consistent criminal design or plan.”

We conclude that the trial court erred when it admitted evidence of the uncharged 

robbery as evidence of defendant’s intent in the current incident, but that it was properly 

admitted as evidence of defendant’s common scheme or plan. We further determine that 

the erroneous admission of the uncharged act as evidence of intent was harmless because 

it is not reasonably probable that defendant would have obtained a more favorable result 

had the uncharged act not been admitted as evidence of intent. (See People v. Watson

(1956) 46 Cal.2d 818, 836 (Watson).)

Regarding the admission of the uncharged act as evidence of intent, the uncharged 

act must tend to show that defendant “ ‘ “ ‘probably harbor[ed] the same intent in each 

instance.’ ” ’ ” (Chhoun, supra, 1 Cal.5th at p. 25.) In the uncharged act admitted here, 

defendant committed robbery, which “require[d] the ‘specific intent to permanently 

deprive’ the victim of his or her property.” (People v. Wilson (2021) 11 Cal.5th 259, 

301.) The charged offense, in contrast, required the specific intent to hold or detain an 

individual to commit extortion or to exact from another person any money or valuable 

thing. (§ 209, subd. (a); see People v. Greenberger (1997) 58 Cal.App.4th 298, 374; 

People v. Ordonez (1991) 226 Cal.App.3d 1207, 1235 (Ordonez).) Thus, even though 

the uncharged offense and the charged offense shared similarities in their commission, 

the uncharged robbery could not demonstrate that defendant “ ‘ “ ‘probably harbor[ed] 

the same intent’ ” ’ ” in his commission of aggravated kidnapping to commit extortion or 

to exact something of value. (Chhoun, supra, at p. 25.) It was therefore error for the trial

court to admit the uncharged act under Evidence Code section 1101(b) as evidence of 

defendant’s intent.

However, the similarities between the uncharged robbery and the charged 

aggravated kidnapping did tend to show that “ ‘the various acts are naturally to be 
45

explained as caused by a general plan of which they are the individual manifestations.’ ” 

(People v. Ewoldt (1994) 7 Cal.4th 380, 393 (Ewoldt).) “Evidence of a common design 

or plan . . . is not used to prove the defendant’s intent or identity but rather to prove that 

the defendant engaged in the conduct alleged to constitute the charged offense.” (Id. at 

p. 394, fn. omitted.) “ ‘When a defendant’s conduct in connection with the previous 

crime bears such similarity in significant respects to his conduct in connection with the 

crime charged as naturally to be explained as caused by a general plan, the similarity is 

not merely coincidental, but indicates that the conduct was directed by design.’ ” (Id. at 

p. 396.) “To establish the existence of a common design or plan, the common features 

must indicate the existence of a plan rather than a series of similar spontaneous acts, but 

the plan thus revealed need not be distinctive or unusual.” (Id. at p. 403.)

In both instances, defendant targeted a drug dealer at his home. Both offenses 

involved defendant and a cohort approaching the victims with a ruse. In the uncharged 

incident, defendant and the coperpetrator approached asking to buy drugs; in the charged 

incident, defendant and the coperpetrator approached asking if the truck in the driveway 

was for sale. Then, in each instance, defendant or his coperpetrator confronted the 

victims with a gun. The victims were bound and guns were used not just to intimidate 

but to strike one of the victims in the head in each instance. There was also evidence 

from which a reasonable fact finder could infer that defendant had received inside 

information about the drug dealer victims before the offenses and that defendant had 

waited at the residences for the drug dealer victims to arrive home. Moreover, the 

charged incident occurred only 18 months after the uncharged offense. Because of the 

similarities between the incidents, the uncharged act evidence tended to show that 

defendant’s “ ‘conduct was directed by design.’ ” (Ewoldt, supra, 7 Cal.4th at p. 396.)

Defendant asserts that “[i]nsofar as the [uncharged act] evidence had insufficient 

similarity to be admissible on the issue of intent, it necessarily follows that the evidence 

was erroneously admitted on a common plan or scheme theory.” While a higher degree 
46

of similarity is required to prove the existence of a common plan or scheme than to prove 

intent, the charged and uncharged crimes must be “ ‘ “sufficiently similar to support a 

rational inference” on these [particular] issues.’ ” (Chhoun, supra, 11 Cal.5th at p. 25; 

see People v. Sully (1991) 53 Cal.3d 1195, 1224 [courts must identify the material fact 

sought to be proved or disproved and analyze the tendency of the uncharged crime to 

prove or disprove the material fact].) In other words, the divergence of legal intents 

between the two incidents did not render the uncharged act evidence inadmissible as 

evidence of a common plan or scheme. The uncharged act evidence was sufficiently 

similar to be “ ‘admissible to show [a] general criminal plan.’ ” (Ewoldt, supra, 7 Cal.4th 

at p. 400, italics omitted; see People v. Foster (2010) 50 Cal.4th 1301, 1330 [“That the 

violent confrontation in the current case ended in death rather than a sexual assault does 

not detract significantly from the pattern reflected in the three incidents”].)

Nor did the trial court abuse its discretion in determining that the probative value 

of the uncharged act evidence as proof of common scheme or plan was not “substantially 

outweighed by the probability that its admission will (a) necessitate undue consumption 

of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of 

misleading the jury.” (Evid. Code, § 352.) The uncharged incident was not particularly 

inflammatory as it was less violent than the charged offense and resulted in a conviction. 

The evidence was limited to the brief testimony of a police detective, defendant’s police 

interview, and the parties’ stipulations regarding a DNA match to defendant and 

defendant’s conviction.

Thus, we conclude that although it was error to admit the uncharged act as 

evidence of intent, the uncharged act was properly admitted as evidence of common 

plan or scheme.
47

4. Admission of the Uncharged Act as Evidence of Intent Was 

Harmless

Defendant contends that prejudice from the erroneous admission of the uncharged 

act evidence must be assessed under Chapman v. California (1967) 386 U.S. 18 because 

the evidence violated his right to due process under the federal constitution as it was 

“irrelevant and highly prejudicial.” (See id. at p. 24 [a federal constitutional error is 

harmless if it is beyond a reasonable doubt that the error did not contribute to the 

verdict].) However, “the admission of evidence, even if erroneous under state law, 

results in a due process violation only if it makes the trial fundamentally unfair.” 

(People v. Partida (2005) 37 Cal.4th 428, 439, italics omitted (Partida).) Defendant has 

not demonstrated that the admission of the relatively brief, not particularly inflammatory 

uncharged act evidence rendered his trial fundamentally unfair, especially since the 

uncharged act was properly admitted as evidence of common plan or scheme.

“Absent fundamental unfairness, state law error in admitting evidence is subject 

to the traditional Watson test.” (Partida, supra, 37 Cal.4th at p. 439.) “ ‘Erroneous 

admission of other crimes evidence is prejudicial if it appears reasonably probable that, 

absent the error, a result more favorable to the defendant would have been reached.’ ” 

(People v. Winkler (2020) 56 Cal.App.5th 1102, 1164; see People v. Welch (1999) 20 

Cal.4th 701, 749-750 [analyzing prejudice from erroneously admitted Evid. Code 

§ 1101(b) evidence under Watson].)

We conclude that it is not reasonably probable that the results of the proceeding 

would have been more favorable to defendant had the uncharged act evidence not been 

admitted as evidence of intent. As we explained above, the uncharged act evidence was 

properly admitted under Evidence Code section 1101(b) as evidence of common plan or 

scheme. Thus, even if it had been excluded as evidence of intent, it still would have been 

admitted as evidence of common plan or scheme, which substantially diminishes any 

prejudice from the error. (See People v. Davis (2009) 46 Cal.4th 539, 603.) Moreover, 
48

defendant used the uncharged act evidence to argue that in this case he was improperly 

charged with, and not guilty of, aggravated kidnapping to commit extortion because he 

had the intent to rob, as he did during the uncharged offense. And the prosecution 

conceded during its rebuttal argument that the intent in the uncharged incident was 

different from the intent in the instant offense. Lastly, as we stated above, the uncharged 

act evidence was not particularly inflammatory compared to the current offense and the 

parties stipulated that defendant was convicted in that case.

In sum, we determine that the uncharged act was properly admitted as evidence 

of common plan or scheme and that although it was error to admit the uncharged act as 

evidence of intent, the error was harmless as it is not reasonably probable that a result 

more favorable for defendant would have been reached absent its admission for proof of 

intent. (See Watson, supra, 46 Cal.2d at p. 836.)

G. Statute of Limitations for Grand Theft

Defendant contends that the grand theft convictions must be reversed because the 

charges were not filed within the three-year statute of limitations under section 801. The 

Attorney General contends that the charges were timely filed as the four-year statute of 

limitations under sections 801.5 applied because grand theft is an offense described in 

section 803, subdivision (c).

1. Trial Court Proceedings

On September 5, 2012, the prosecution initially charged defendant with six counts 

of grand theft committed on or about May 21, 2009.11 An arrest warrant was issued on 

October 18, 2012, which was approximately three years and five months after the crimes’ 

alleged commission.12

11 As we have recited in the procedural background, defendant was ultimately 

charged by second amended information with only four counts of grand theft (counts 3, 4, 

5, and 6).

12 Section 804 provides that “prosecution for an offense is commenced when any

(continued)
49

Defendant filed a motion to dismiss claiming that the prosecution was barred by 

the three-year statute of limitations under section 801. The prosecution opposed the 

motion asserting that the four-year statute of limitations under sections 801.5 and 803, 

subdivision (c) applied.

The trial court denied the motion, relying on People v. Price (2007) 155 

Cal.App.4th 987 (Price) and finding that section 803, subdivision (c) applies to grand 

theft charges “without limitation,” thus triggering the four-year statute of limitations 

under section 801.5.

On March 5, 2018, defendant was arraigned on an amended complaint charging 

him with two counts of aggravated kidnapping and six counts of grand theft committed 

on or about May 21, 2009. Defendant filed a second motion to dismiss the grand theft 

charges based on the statute of limitations; the prosecution opposed the motion; and the 

motion was denied.

2. Standard of Review

The determination of whether grand theft is included under section 803, 

subdivision (c) such that the four-year statute of limitation under section 801.5 applies 

requires statutory interpretation, which we perform de novo. (See People v. Prunty

(2015) 62 Cal.4th 59, 71.) “We begin with the fundamental premise that the objective 

of statutory interpretation is to ascertain and effectuate legislative intent. [Citations.] To 

determine legislative intent, we turn first, to the words of the statute, giving them their 

usual and ordinary meaning. [Citations.] When the language of a statute is clear, we 

need go no further. However, when the language is susceptible of more than one 

reasonable interpretation, we look to a variety of extrinsic aids, including the ostensible 

of the following occurs: [¶] (a) An indictment or information is filed. [¶] (b) A 

complaint is filed charging a misdemeanor or infraction. [¶] (c) The defendant is 

arraigned on a complaint that charges the defendant with a felony. [¶] (d) An arrest 

warrant or bench warrant is issued . . . .”
50

objects to be achieved, the evils to be remedied, the legislative history, public policy, 

contemporaneous administrative construction, and the statutory scheme of which the 

statute is a part. [Citations.]” (People v. Flores (2003) 30 Cal.4th 1059, 1063 (Flores).)

3. Analysis

Section 799 et seq. governs the time period to commence a criminal action. 

Generally, “prosecution for an offense punishable by imprisonment in the state prison or 

pursuant to subdivision (h) of Section 1170 shall be commenced within three years after 

commission of the offense.” (§ 801.)

However, section 801.5 provides, “Notwithstanding Section 801 or any other 

provision of law, prosecution for any offense described in subdivision (c) of Section 803 

shall be commenced within four years after discovery of the commission of the offense, 

or within four years after the completion of the offense, whichever is later.” Section 803, 

subdivision (c)(1) “applies to an offense punishable by imprisonment in the state prison 

or imprisonment pursuant to subdivision (h) of Section 1170, a material element of which 

is fraud or breach of a fiduciary obligation, the commission of the crimes of theft or 

embezzlement upon an elder or dependent adult, or the basis of which is misconduct in 

office by a public officer, employee, or appointee, including, but not limited to, the 

following offenses: [¶] (1) Grand theft of any type, forgery, falsification of public 

records, or acceptance of, or asking, receiving, or agreeing to receive, a bribe, by a public 

official or a public employee. . . .”13

In Price, the Court of Appeal determined that grand theft is an offense described 

in section 803, subdivision (c) and is therefore subject to the four-year statute of 

limitations under section 801.5. (Price, supra, 155 Cal.App.4th at p. 996.) The court 

13 Section 801.5 remains unchanged since 1995. As quoted above, the only 

difference between the current version of section 803 and the version in effect at the time 

of the offenses in 2009 is the current language referencing imprisonment pursuant to 

section 1170, subdivision (h). (See Stats. 2007, ch. 579, § 41.)
51

found section 803, subdivision (c)(1)’s language ambiguous. (Price, supra, at pp. 992-

993.) After a thorough examination of the statute’s legislative history, the court 

concluded that “grand theft and forgery, without limitation, fall under it.” (Id. at p. 993; 

cf. People v. Moore (2009) 176 Cal.App.4th 687, 692, fn. omitted [“section 801.5 

provides that prosecution of certain offenses, including grand theft, fraud and perjury, 

‘shall be commenced within four years after discovery of the commission of the 

offenses’ ”]; People v. Thorbourn (2004) 121 Cal.App.4th 1083, 1086 [“The statute of 

limitations for grand theft and forgery is four years, but that period does not begin to run 

until the crimes are discovered. (§§ 801.5; 803, subd. (c)(1))”].)

Defendant asserts that Price “was wrongly decided” and that section 803, 

subdivision (c)(1) does not include “a generic ‘grand theft.’ ” Defendant argues that it 

is “readily apparent” from the plain language of section 803, subdivision (c)(1) that only 

grand thefts that contained a material element of fraud or a breach of a fiduciary 

obligation, were perpetrated on an elder or dependent adult, or involved misconduct by 

a public officer, employee, or appointee fall under the statute.

While defendant’s interpretation of section 803, subdivision (c)(1) is reasonable, 

we agree with the court’s determination in Price that the statute “can be read several 

ways.” (Price, supra, 155 Cal.App.4th at p. 993.) “It can be read as describing the 

crimes of grand theft and forgery generally and without limitation. Or it can be read 

as describing only certain types of grand theft and forgery.” (Ibid.) Thus, because 

section 803, subdivision (c)(1) “is susceptible of more than one reasonable 

interpretation,” it is appropriate to consider its legislative history. (Flores, supra, 30 

Cal.4th at p. 1063.)

Price detailed that “[b]efore section 803(c) was enacted in 1984, a three-year 

limitations period applied to most felonies. (Former § 800, subd. (a), repealed by 

Stats. 1984, ch. 1270, § 2, p. 4335.) But certain felonies, including grand theft and 

forgery, were subject to a three-year limitations period commencing with the discovery 
52

of the crime. (Former § 800, subd. (c), repealed by Stats. 1984, ch. 1270, § 2, p. 4335.) 

Grand theft and forgery were therefore subject to a discovery rule before section 803(c) 

was enacted. [¶] There is no suggestion in section 803(c)’s legislative history that the 

discovery rule theretofore applicable to grand theft and forgery was eliminated by its 

enactment. To the contrary, section 803(c) retained the discovery rule, and, moreover, 

made that rule applicable to many of the same crimes in repealed section 800, 

subdivision (c), such as grand theft. . . . ‘The substance of [former, repealed section 800] 

subdivision (c) is continued in new Sections 801 (three-year limitation period for 

felonies) and 803 (tolling of limitation period), with the exception of voluntary and 

involuntary manslaughter . . . .’ (Recommendation relating to Statutes of Limitation 

for Felonies (Jan. 1984) 17 Cal. Law Revision Com. Rep. (1984) appen. 3, p. 329.)” 

(Price, supra, 155 Cal.App.4th at pp. 993-994, fns. & italics omitted; see id. at p. 995 

[comment regarding 1985 amendment to § 803, subd. (c) to clarify the statute of 

limitations for corporate securities violations that “ ‘[s]imilar language is presently used 

to make clear that all grand thefts run from the date of discovery whether or not fraud is 

involved’ ” (italics omitted)].) In addition, “[t]he Law Revision Commission Comment 

to section 803(c) also attributes a broad meaning to the subdivision: ‘Although 

subdivision (c) generally governs crimes involving fraud or breach of fiduciary duty, all 

types of grand theft are included within subdivision (c) in order to avoid the need to 

characterize the material elements of the particular crime in every case.’ (Cal. Law 

Revision Com. com., 50 West’s Ann. Pen. Code (1985 ed.) foll. § 803, p. 203.)” (Price, 

supra, at p. 996, fn. 9.)

Based on this legislative history, we concur with the court in Price that 

section 803, subdivision (c)(1) includes “grand theft . . . without limitation.” (Price, 

supra, 155 Cal.App.4th at p. 993; see also People v. Fine (1997) 52 Cal.App.4th 1258, 

1266 [“When the criminal statute of limitations scheme was recodified in 1984, the new 

legislation included language in subdivision (c)(1) extending the tolling provision to: 
53

‘Grand theft of any type, forgery, falsification of public records, or acceptance of a bribe 

by a public official or a public employee’ ”].) Accordingly, because grand theft is an 

offense described in section 803, subdivision (c), the four-year statute of limitations 

under section 801.5 applied to the grand theft charges in this case. (See Price, supra, at 

p. 996; §§ 801.5, 803, subd. (c)(1).) As an arrest warrant was issued for defendant within 

four years of the commission of the grand theft offenses, we conclude that the charges 

were timely filed. (§ 804.)

H. Conviction of Multiple Grand Thefts

Defendant was convicted of grand theft in counts 3, 4, 5, and 6. On appeal, he 

contends that three of the four grand theft convictions (that is, counts 4, 5, and 6) must 

be reversed because the thefts occurred at the same time and place—that is, “he stole 

different items of property during a single incident.” The Attorney General contends that 

the separate grand theft convictions were proper because they involved different victims 

and because the grand theft firearm statute authorized separate convictions for the theft of 

each firearm.14

1. Trial Court Proceedings

The second amended information charged defendant with three counts of grand 

theft of a firearm and one count of grand theft committed on or about May 21, 2009. 

Count 3 alleged that defendant unlawfully took Smith’s .357 Ruger revolver in violation 

of section 487, subdivision (d)(2); count 4 alleged that defendant unlawfully took 

14 The Attorney General also contends that the claim has been forfeited by 

defendant’s failure to raise it below as “the single larceny doctrine” arises from the

federal constitutional protection against double jeopardy, a claim that must be preserved. 

However, the authority cited by the Attorney General for this proposition is inapposite. 

The federal constitutional protection against double jeopardy “affords a defendant three 

basic protections: ‘ “[It] protects against a second prosecution for the same offense after 

acquittal. It protects against a second prosecution for the same offense after conviction. 

And it protects against multiple punishments for the same offense.” ’ [Citations.]” 

(Ohio v. Johnson (1984) 467 U.S. 493, 498, italics added.) Defendant here disputes the 

propriety of his multiple grand theft convictions in the same prosecution.
54

Barcinas’s .44-caliber Magnum Research Desert Eagle semiautomatic handgun in 

violation of section 487, subdivision (d)(2); count 5 alleged that defendant unlawfully 

took Barcinas’s Mossberg 500 12-guage shotgun in violation of section 487, 

subdivision (d)(2); and count 6 alleged that defendant unlawfully took Barcinas’s 

money and personal property exceeding $950 in value in violation of section 487, 

subdivision (a). The prosecution tracked the second amended information’s descriptions 

of the counts in its argument to the jury, identifying the offense, what was stolen, and 

from whom. The verdict forms for the grand theft counts specified the offense, the date, 

and the object stolen, but did not name the victim.

2. Legal Principles and Standard of Review

“In general, a person may be convicted of, although not punished for, more than 

one crime arising out of the same act or course of conduct.” (People v. Reed (2006) 38

Cal.4th 1224, 1226; see §§ 954, 654.) However, in People v. Bailey (1961) 55 Cal.2d 

514 (Bailey), the California Supreme Court applied the following test to grand theft: 

“Whether a series of wrongful acts constitutes a single offense or multiple offenses 

depends upon the facts of each case, and a defendant may be properly convicted upon 

separate counts charging grand theft from the same person if the evidence shows that the 

offenses are separate and distinct and were not committed pursuant to one intention, one 

general impulse, and one plan. [Citation.]” (Id. at p. 519.)

The defendant in Bailey was convicted of grand theft based on evidence that she 

had unlawfully obtained a number of welfare payments by false pretenses. (Bailey, 

supra, 55 Cal.2d at pp. 515, 518.) The issue before the California Supreme Court was 

“whether [the defendant] was guilty of grand theft or of a series of petty thefts since it 

appears that she obtained a number of payments, each less than $ 200 but aggregating 

more than that sum.” (Id. at p. 518, fn. omitted.) The court concluded that the defendant 

was properly convicted of a single count of grand theft. (Id. at pp. 515, 520.)
55

“After Bailey was decided, various Court of Appeal decisions expanded Bailey

beyond its facts.” (People v. Nilsson (2015) 242 Cal.App.4th 1, 13.) Subsequently, in 

People v. Whitmer (2014) 59 Cal.4th 733 (Whitmer), the California Supreme Court 

clarified the rule of Bailey. The Whitmer court explained that Bailey involved a

defendant who had made a single misrepresentation and who had received a series of 

welfare payments as a result. (Whitmer, supra, at p. 740.) The Whitmer court explained 

that, “[o]ther than omitting to correct the misrepresentation and accepting the payments, 

the defendant [in Bailey] committed no separate and distinct fraudulent acts.” (Ibid.)

The Whitmer court contrasted Bailey with the case before it, in which the 

defendant committed separate and distinct fraudulent acts. (Whitmer, supra, 59 Cal.4th 

at p. 740.) The Whitmer court went on to hold that “a defendant may be convicted of 

multiple counts of grand theft based on separate and distinct acts of theft, even if 

committed pursuant to a single overarching scheme.” (Id. at p. 741.) Although the

Whitmer court expressed its “disapprov[al] of any interpretation of Bailey that is 

inconsistent with this conclusion,” the Whitmer court did not apply its rule to the facts 

before it. (Ibid.) The Whitmer court explained that a “long, uninterrupted series of 

Court of Appeal cases, beginning . . . in 1978, . . . have consistently held that multiple 

acts of grand theft pursuant to a single scheme cannot support more than one count of 

grand theft.” (Id. at p. 742.) Those Court of Appeal cases barred “ ‘multiple convictions 

for grand theft when the individual thefts arise from a recognizable plan or scheme, even 

though each theft is separate and distinct, and involves property or money exceeding the 

amount needed for grand theft.’ ” (Id. at p. 739.) The Whitmer court determined that due 

process precluded application of its subsequent contrary conclusion to the defendant in 

the case before it. (Id. at p. 742.)

The Whitmer court instead applied to the facts before it the earlier rule that had 

emanated from the Court of Appeal cases. In Whitmer, the defendant was the manager 

of a motorcycle dealership. He arranged for the fraudulent sale of 20 vehicles to 
56

fictitious buyers on 13 different dates, which resulted in a total loss to the dealership of 

over $250,000. (Whitmer, supra, 59 Cal.4th at p. 735.) The defendant “committed a 

series of separate and distinct, although similar, fraudulent acts in preparing separate 

paperwork and documentation for each fraudulent transaction.” (Id. at p. 740.) The 

defendant was convicted of 20 counts of grand theft, one count for each of the vehicles 

fraudulently sold. (Id. at p. 735.) The jury also found true a section 12022.6 allegation. 

(Whitmer, supra, at pp. 735-736.) The Whitmer court concluded that only one count of 

grand theft was permissible, explaining as follows: “In finding the [section 12022.6] 

enhancement allegation true that defendant took property valued at more than $200,000, 

the jury necessarily found that the grand thefts arose ‘from a common scheme or plan.’ 

(Pen. Code, § 12022.6, subd. (b).) The law as it had existed for decades before defendant 

committed his crimes permitted conviction of only one count of grand theft under those 

circumstances. Because defendant is entitled to the benefit of that law, he cannot be 

convicted of more than one count of grand theft.” (Id. at p. 742.)

“We apply the Bailey rule ‘as a matter of law only in the absence of any evidence 

from which the jury could have reasonably inferred that the defendant acted pursuant to 

more than one intention, one general impulse, or one plan.’ ” (People v. Reid (2016) 

246 Cal.App.4th 822, 831-832 (Reid).)

3. Analysis

In this case, defendant committed the offenses before Whitmer clarified the Bailey

rule. Thus, defendant is entitled to the benefit of case law barring “ ‘multiple convictions 

for grand theft when the individual thefts arise from a recognizable plan or scheme, even 

though each theft is separate and distinct, and involves property or money exceeding the 

amount needed for grand theft.’ ” (Whitmer, supra, 59 Cal.4th at p. 739; see id. at 

p. 742.)

Under the guidance of the California Supreme Court in Witmer, we conclude that 

there is an “ ‘absence of any evidence from which the jury could have reasonably inferred 
57

that . . . defendant acted pursuant to more than one intention, one general impulse, or one 

plan.’ ” (Reid, supra, 246 Cal.App.4th at pp. 831-832.) The evidence demonstrates that 

defendant confined Smith, waited for Barcinas to arrive home, confined Lewis, and then 

used Smith’s and Lewis’s confinements to extort Barcinas to open a safe in the garage, 

from which defendant took Smith’s .357 Ruger revolver, Barcinas’s Desert Eagle 

handgun, and Barcinas’s jewelry and cash. The evidence also shows that defendant 

committed a similar offense 18 months before the current incident pursuant to a common 

scheme or plan. Although defendant took another firearm in the current incident, 

described in the information as a “Mossberg 500 12-guage shotgun,” it is unclear from 

the record when the shotgun was taken and to whom it belonged. Smith testified that 

while he was tied up in his bedroom, defendant and the coperpetrator took his shotgun 

from the bedroom. But Barcinas testified that a shotgun belonging to him was taken from 

the hallway closet, and the information alleged that Barcinas owned the Mossberg 

shotgun. Regardless, even if the theft of the Mossberg shotgun was “ ‘separate and 

distinct,’ ” all of the thefts arose “ ‘from a recognizable plan or scheme.’ ” (Whitmer, 

supra, 59 Cal.4th at p. 739.)

The Attorney General argues that the single larceny doctrine does not apply to 

thefts from multiple victims, and both Bailey and Whitmer involved a single victim. 

However, the California Supreme Court observed in a case involving the receipt of stolen 

property belonging to several different owners, “Neither the legal nor moral character of 

the act is affected in any way by the fact that the stolen property may have belonged to 

several persons rather than to a single person.” (People v. Smith (1945) 26 Cal.2d 854, 

859.) In support of its holding, the court reasoned “by analogy in the authorities dealing 

with the crime of larceny, which authorities hold that the theft of several articles at one 

and the same time constitutes but one offense although such articles belong to several 

different owners.” (Ibid.) Moreover, the Courts of Appeal have disagreed about whether 

Bailey applies in a case involving multiple victims. (Compare, e.g., People v. Tabb
58

(2009) 170 Cal.App.4th 1142, 1149 [Bailey has generally been limited to thefts involving 

a single victim] and In re David D. (1997) 52 Cal.App.4th 304, 310 (David D.) [“one 

limitation of the Bailey doctrine is its inapplicability to offenses involving multiple 

victims”] with People v. Brooks (1985) 166 Cal.App.3d 24, 31 [applying Bailey to 

multiple thefts from a single fund to which multiple victims had contributed], 

disapproved on another point in Whitmer, supra, 59 Cal.4th at pp. 739-740; People v. 

Columbia Research Corp. (1980) 103 Cal.App.3d Supp. 33, 41 [concluding that multiple 

thefts from different victims could be accumulated to constitute a single felony offense]; 

and People v. Gardner (1979) 90 Cal.App.3d 42, 47 [“in the crime of larceny the 

simultaneous theft of several items of property, even from multiple owners, constitutes 

but a single offense”].)

The Attorney General relies on Reid, supra, 246 Cal.App.4th 822, In re Arthur V.

(2008) 166 Cal.App.4th 61 (Arthur V.) and David D., supra, 52 Cal.App.4th 304, but 

we find those cases distinguishable. In Reid, based on the facts, the court determined 

that the case “does not require articulation of an absolute rule regarding Bailey and a 

single victim versus multiple victims.” (Reid, supra, at p. 834, italics added.) The court 

found multiple grand theft convictions proper despite that “the nine urns were stolen 

from the mausoleum during a single crime spree.” (Ibid.) The Court observed that 

“each urn was contained in a separate niche covered by its own pane of glass. Each urn 

was heavy and required both hands to lift and carry it, with the double urns being 

sufficiently heavy to require being ‘walk[ed]’ along the floor. As a result, the theft 

required [the] defendant to break each pane of glass and remove each urn individually. 

Each urn then had to be moved out of the building and stashed one at a time. 

Additionally, the urns were purchased separately and were the property of separate 

victims, a fact that was apparent given the separate niches and the metal identification 

plaques on the urns.” (Ibid., fn. omitted.) In the case at hand, in contrast, the evidence 
59

demonstrates simply that defendant took Smith’s Ruger revolver from the safe along with 

Barcinas’s Desert Eagle handgun, jewelry, and cash.

In Arthur V., the court recognized that the Bailey rule was developed to allow the 

aggregation of multiple petty thefts into a grand theft. (Arthur V., supra, 166 Cal.App.4th 

at pp. 65-69.) The court extended the Bailey rule to vandalism, holding that aggregation 

was appropriate in the case before it because “[t]he damage to the windshield and cell 

phone occurred within a very brief time period, in the same approximate location, and 

constituted the victimization of the same person (Wasimi) who had been singled out for 

abuse by Arthur and his associates. A reasonable fact finder could conclude from these 

facts that the aggregate damage to Wasimi’s car and cell phone did not result from 

separate and distinct criminal acts, and was inflicted pursuant to a single general impulse, 

intention or plan.” (Arthur V., supra, at p. 69.) However, the court noted when 

discussing the “dividing line” between cases where aggregation was permissible and 

those where it was not, that “the existence of multiple victims will not necessarily

preclude aggregation. For example, an offense consisting of the spray painting of one’s 

name across property owned by multiple persons would clearly be properly aggregated 

into a single count, despite the presence of multiple victims. Thus, rather than creating 

some artificial dividing line, ‘the number of victims involved is only one factor to be 

considered in determining whether there is one intention, one general impulse, and one 

plan.’ ” (Id. at p. 68 & fn. 4.)

David D. is another vandalism case. (David D., supra, 52 Cal.App.4th at p. 306.) 

There, the court disallowed aggregation because the vandalism “did not arise out of the 

‘same transaction’; [it] arose out of 34 ‘transactions,’ one occurring each time [the minor] 

or a co-perpetrator sprayed an item of property. [The minor] and his friends drove 

throughout the city, tagging property they happened upon which appeared isolated and 

safe from witnesses. In our view, each tagging incident clearly represents a separate 

offense affecting a different victim.” (Id. at pp. 310-311.) Importantly, however, the 
60

court stated, “We do not intend to imply . . . that the Bailey doctrine can never be 

appropriate to a theft or thefts from multiple victims.” (Id. at p. 309, fn. 3.)

Rather than support the Attorney General’s position that Bailey does not apply 

here because multiple victims were involved, these cases establish that the essential 

inquiry is whether there is evidence from which “ ‘the jury could have reasonably 

inferred that the defendant acted pursuant to more than one intention, one general 

impulse, or one plan.’ ” (Reid, supra, 246 Cal.App.4th at pp. 831-832.)

Lastly, the Attorney General argues that “the firearm theft statute itself expressly 

authorized each theft of a firearm to be charged as a separate offense.” We are not 

persuaded.

Section 487 defines grand theft. As relevant here, the statute provides, “Grand 

theft is theft committed in any of the following cases: [¶] (a) When the money, labor, 

or real or personal property taken is of a value exceeding nine hundred fifty dollars 

($950) . . . [¶] . . . [¶] (d) When the property taken is any of the following: [¶] . . . [¶] 

(2) A firearm.” The statute does not express when multiple grand theft convictions are 

authorized; the statute defines what constitutes grand theft instead of petty theft. (See 

§§ 486, 487; cf. Whitmer, supra, 59 Cal.4th at p. 739 [observing that the appellate courts 

had interpreted Bailey as “ ‘bar[ring] multiple convictions for grand theft when the 

individual thefts arise from a recognizable plan or scheme, even though each theft is 

separate and distinct, and involves property or money exceeding the amount needed for 

grand theft’ ”].) The authority cited by the Attorney General is not to the contrary.

For these reasons, we determine that under the law at the time of the offenses and 

based on the record before us, defendant could only properly be convicted of one count 

of grand theft because there is an “ ‘absence of any evidence from which the jury could 

have reasonably inferred that the defendant acted pursuant to more than one intention, 

one general impulse, or one plan.’ ” (Reid, supra, 246 Cal.App.4th at pp. 831-832.) 
61

Accordingly, we will strike the convictions on counts 4 through 6, while allowing the 

conviction on count 3 to stand.15

I. Cruel and Unusual Punishment

Defendant contends that his LWOP sentence on count 1, aggravated kidnapping 

of Smith for extortion (§ 209, subd. (a)), is cruel and unusual punishment under the 

California Constitution. The Attorney General contends that the punishment does not 

violate the state Constitution.

1. Trial Court Proceedings

In a sentencing memorandum, defendant contended that an LWOP sentence for 

aggravated kidnapping of Smith for extortion with bodily injury (§ 209, subd. (a)) was 

cruel and unusual punishment. Among other arguments, defendant contended that he was 

not “beyond redemption” and could “reintegrate into [a] law abiding society” although he 

acknowledged that the present case and the prior Orange County case were “committed 

with some degree of forethought and planning,” were “violent in nature,” and were 

motivated by “[t]he lure of easy money.”

At sentencing, the trial court indicated that it had considered the relevant factors 

set forth by the California Supreme Court in determining whether the punishment was 

cruel and unusual. The court ruled: “I cannot state that after considering those factors 

that the punishment is grossly disproportionate to the defendant’s individual culpability. 

And I can’t get over the fact that the [L]egislature has [seen] fit to set forth the 

punishment of life without parole for this crime. As I stated before, I find it somewhat 

inconsistent with the punishment proscribed for kidnapping for robbery, which allows the 

defendant a chance at parole. . . . I don’t see any reason for the difference in punishment 

here, but the [L]egislature clearly did. [¶] . . . [¶] . . . I mean, it’s the proscribed 

15 Because we conclude that count 6 must be reversed, we do not reach 

defendant’s claim that the punishment on count 6 must be stayed.
62

statutory punishment. I don’t think there’s any way for me to get around that as long as 

I’m punishing [defendant] for the crime he’s been convicted for. That’s the sentence.

“Again, I find it strange. Even though there’s a secondary victim and a primary 

victim, I do think that [defendant], in looking at his individual circumstances, although 

the People have pointed out many aggravating factors, but given how many years he was 

law-abiding and was working at a family, appeared to be a productive member of society, 

I do not here understand the no chance at parole given all those circumstances. But I do 

find he committed the crime and should be punished for it, and that’s the appropriate 

punishment.

“You know, while the case, I assume it will be appealed, and perhaps the 

difference in the sentences will be taken care of. And certainly our [L]egislature, as all 

the attorneys here know, seem very amenable to changing the statutory scheme of 

punishment and penalties for certain crimes, especially if they think that one is too severe 

given the circumstances and the elements of the crime. So I will say that. But I must 

follow the law.” The court ultimately imposed LWOP on count 1 for aggravated 

kidnapping for extortion with bodily injury (§ 209, subd. (a)).

2. Legal Principles and Standard of Review

The California Constitution prohibits “[c]ruel or unusual punishment.” (Cal. 

Const., art. I, § 17.) “Punishment is cruel and unusual if it is so disproportionate to the 

crime committed that it shocks the conscience and offends fundamental notions of human 

dignity. [Citation.]” (People v. Mantanez (2002) 98 Cal.App.4th 354, 358 (Mantanez).)

In analyzing disproportionality, we give “great deference” to the Legislature. 

(People v. Martinez (1999) 76 Cal.App.4th 489, 494; accord, In re Palmer (2021) 10 

Cal.5th 959, 972 (Palmer).) “Fixing the penalty for crimes is the province of the 

Legislature, which is in the best position to evaluate the gravity of different crimes and to 

make judgments among different penological approaches. [Citations.] Only in the rarest 
63

of cases could a court declare that the length of a sentence mandated by the Legislature is 

unconstitutionally excessive. [Citations.]” (People v. Martinez, supra, at p. 494.)

The California Supreme Court has “distilled three analytical techniques to aid 

[a court’s] deferential review of excessiveness claims: (1) an examination of the nature 

of the offense and the offender, with particular attention to the degree of danger both pose 

to society; (2) a comparison of the punishment with the punishment California imposes 

for more serious offenses; and (3) a comparison of the punishment with that prescribed in 

other jurisdictions for the same offense. [Citations.]” (Palmer, supra, 10 Cal.5th at 

p. 973.) “Disproportionality need not be established in all three areas.” (People v. 

Norman (2003) 109 Cal.App.4th 221, 230; accord, People v. Avila (2020) 57 Cal.App.5th 

1134, 1145.)

Whether a sentence constitutes cruel and unusual punishment is a question of law. 

(People v. Hamlin (2009) 170 Cal.App.4th 1412, 1474.) A reviewing court therefore 

applies the de novo standard of review when determining whether a defendant’s sentence 

is cruel and unusual. (Ibid.) However, “the underlying disputed facts must be viewed in 

the light most favorable to the judgment. [Citations.]” (People v. Martinez, supra, 76 

Cal.App.4th at p. 496.)

3. Analysis

First, of the three analytical techniques identified by the California Supreme 

Court in reviewing an excessiveness claim, “[t]he main technique of analysis under 

California law is to consider the nature both of the offense and of the offender. 

[Citation.]” (People v. Martinez, supra, 76 Cal.App.4th at p. 494.) Regarding the 

offense, we consider it “both in the abstract and in the totality of circumstances 

surrounding its actual commission” (ibid.), including “ ‘motive, the way it was 

committed, the extent of the defendant’s involvement, and the consequences of his 

acts.’ ” (People v. Martinez (1999) 71 Cal.App.4th 1502, 1510). Regarding the offender, 

we consider “the defendant’s individual culpability, as shown by such factors as age, 
64

prior criminality, personal characteristics, and state of mind. [Citations.]” (People v. 

Martinez, supra, 76 Cal.App.4th at p. 494.)

The offense of aggravated kidnapping for extortion with bodily injury is 

punishable by LWOP. (§ 209, subd. (a).) “The Legislature has chosen to make [some] 

offenses not involving homicide punishable by life imprisonment without possibility 

of parole. . . . Such sentences have been found not to constitute cruel or unusual 

punishment because the Legislature could reasonably decide that crimes which involve 

an inherent danger to the life of the victim are particularly heinous even if no death 

occurs.” (People v. Crooks (1997) 55 Cal.App.4th 797, 807-808, fn. omitted (Crooks).)

Regarding kidnapping, there is a “long-standing, even ancient, horror of 

kidnapping.” (People v. Castillo (1991) 233 Cal.App.3d 36, 66 (Castillo).) “By 

legislatively and judicially recognized contemporary standards, kidnaping is one of the 

most serious of all crimes. [Citations.]” (In re Maston (1973) 33 Cal.App.3d 559, 563 

(Maston); accord, Ordonez, supra, 226 Cal.App.3d at p. 1228.) “By its very nature it 

involves violence or forcible restraint” (Maston, supra, at p. 563), and there is a 

recognition of the “the substantial risk to human life that it presents” (Castillo, supra, 

at p. 66).

An LWOP sentence for aggravated kidnapping is only available “where a person 

is held in order to force a payment of some kind to the perpetrator” (Ordonez, supra, 

226 Cal.App.3d at p. 1227), such as kidnapping for “ransom, reward, or to commit 

extortion” (§ 209, subd. (a)). “[K]idnap for ransom, extortion or reward has . . . features 

that heighten the danger to the victim. ‘. . . Kidnapings for ransom are coldly planned, 

deliberate schemes. They are still endemic to the American scene.’ [Citation.] . . . 

‘It has been pointed out by some that kidnapping for ransom inherently presents a 

combination of factors creating a substantial risk of bodily harm. In the ransom situation, 

“forcible control is necessary to effect secret confinement; the offense requires a 

protracted concealment; the confinement becomes more difficult to maintain when the 
65

kidnapper’s flight ultimately becomes necessary; and the victim’s release grows 

increasingly dangerous with the passage of time.” Accordingly, a demand for ransom 

generally involves an express or an implied threat of death or great bodily harm.’ 

[Citations.] A kidnap for extortion or reward presents no lesser risk.” (Ordonez, supra, 

at p. 1228.)

In addition, the severity of the penalty for kidnapping for ransom, reward, or 

extortion under section 209 is tied to the harm suffered by the victim. (See Ordonez, 

supra, 226 Cal.App.3d at p. 1226.) If the victim “suffers death or bodily harm, or is 

intentionally confined in a manner that exposes that person to a substantial likelihood of 

death,” then the offense is punishable by LWOP. (§ 209, subd. (a).) If the victim does 

not suffer death or bodily harm, then the offense is punishable by imprisonment for life 

with the possibility of parole. (Ibid.) The purpose of the more severe penalty is “ ‘to 

deter the kidnaper from harming his [or her] victim, to induce him [or her] to release the 

victim unharmed.’ [Citations.]” (Ordonez, supra, at p. 1226.) “Even if a death does not 

occur during these crimes the Legislature has determined they evidence such a flagrant 

disregard for the value of human life the perpetrator deserves a sentence of life without 

possibility of parole.” (People v. Thompson (1994) 24 Cal.App.4th 299, 307.)

Here, defendant “readily admits” that the aggravated kidnapping of Smith for 

extortion and defendant’s behavior in the commission of the offense were “serious” 

and that the offense involved the “infliction of injury.” Notwithstanding this 

acknowledgement, defendant downplays the planning, the high level of violence, and 

the significant injury inflicted upon Smith, the kidnapping victim in count 1. As we 

have set forth above, the evidence reflects that defendant surveilled Barcinas at work 

before going to Barcinas’s home with Zumbado. Defendant and Zumbado encountered 

Smith at the home when they knew Barcinas was at work. Defendant and Zumbado 

seized and confined Smith by ordering him into the garage at gunpoint. Smith was put 

on the floor of the garage, and his hands were tied. He was then brought to his bedroom, 
66

again put on the floor (seemingly face down), and ordered to stay there. Upon Barcinas’s 

and Lewis’s arrival at the residence, defendant and Zumbado were able to violently 

confront them with Smith tied up in the bedroom. Defendant “smacked [Lewis] in the 

face with [the] barrel of his firearm,” busting his lip open, and subsequently “rushed 

[Barcinas] from the side and forced [him] into the bathroom.” When Smith untied 

himself and tried to hit defendant, defendant knocked Smith unconscious with a bat, 

fracturing his skull. Also in the course of the violence, Barcinas sustained a head injury 

requiring staples. Defendant used Smith’s confinement to gain Barcinas’s cooperation to 

open the safe. Specifically, with Smith (and Lewis) restrained or otherwise incapacitated, 

defendant threatened to shoot them unless Barcinas opened the safe. Guns, jewelry, and 

cash were ultimately taken from the safe.

Regarding defendant’s individual culpability, he was 41 years old at the time of 

the incident. His prior criminal record included misdemeanor convictions and, 

significantly, a first degree robbery conviction arising out of an incident that occurred in 

late 2007, which was just a year and a half prior to the instant aggravated kidnappings 

and theft in 2009. In the earlier robbery, similar to the instant case, defendant and a 

coperpetrator confronted the victim at gunpoint when he arrived home. Defendant zip 

tied and duct taped the victim and his female companion. Defendant and the 

coperpetrator took $2,000 in cash.

Defendant contends that, in examining the nature of the offense and the offender 

(Palmer, supra, 10 Cal.5th at p. 973), this “factor neither favors nor disfavors” him 

because although he “acted in a dangerous manner in committing the instant offense, he 

is not a career criminal.” Rather, according to defendant, outside of his offenses, he “was 

a useful member of the community,” in view of his four-year service in the military and 

his employment record thereafter.

The Attorney General contends that defendant is the “most dangerous sort of 

person who deliberately creates situations with fatal potential, and then employs 
67

instruments of deadly force, kidnapping, and extreme violence as tools to achieve even 

relatively modest financial gain. And, as reflected by his commission of both the 

[instant] and [earlier] home invasion events, [defendant] preferred to practice his lifethreatening trade by invading the home sanctuaries of his victims and ambushing them 

at planned points of vulnerability. There is nothing disproportionate in a sentence that 

removes such a man from society, permanently.”

Based on “an examination of the nature of the offense and the offender, with 

particular attention to the degree of danger both pose to society” (Palmer, supra, 10 

Cal.5th at p. 973), we cannot agree with defendant that this “factor neither favors nor 

disfavors” him, and we agree with the Attorney General that “[t]here is nothing 

disproportionate” in the sentence. Defendant “was not an immature child at the time of 

the offence; rather, he was a [41]-year-old man who had some [military service] and had 

[apparently] been steadily employed in the past.” (Cole, supra, 33 Cal.4th at p. 1235.) 

Although most of defendant’s prior convictions were for misdemeanors, his most recent 

felony offenses reflect an increase in seriousness, violence, and harm to the victims. 

Specifically, the most recent incidents in 2007 and 2009 were planned home invasions 

with defendant and/or the coperpetrator having a weapon; the victims were restrained, 

incapacitated, and/or threatened with being shot; the apparent purpose of the offenses 

was material gain by defendant; and in the instant case, the victims were subjected to 

extreme violence by defendant, resulting in significant head injuries to two of the victims. 

“ ‘Fundamental notions of human dignity are not offended by the prospect of exiling 

from society those individuals who have proved themselves to be threats to the public 

safety and security.’ ” (People v. Cooper (1996) 43 Cal.App.4th 815, 826 (Cooper); see 

Chacon, supra, 37 Cal.App.4th at pp. 56, 57, 64 [LWOP sentence for aggravated 

kidnapping for ransom under § 209, subd. (a) was not cruel or unusual punishment, in 

view of the “heinous nature of the crime” and the defendants’ “individualized 

culpability,” where the defendants inflicted bodily harm on the kidnap victim and 
68

threatened to kill her]; see also People v. Martinez, supra, 76 Cal.App.4th at p. 497 [lack 

of “significant prior criminal record” is “not determinative”].) Considering the nature of 

defendant’s current offense and the offender, we cannot say that the punishment imposed 

is so disproportionate to the offense committed that it shocks the conscience and offends 

fundamental notions of human dignity. (Mantanez, supra, 98 Cal.App.4th at p. 358.)

Second, we are not persuaded by defendant’s attempt to establish 

disproportionality based on his comparison of the punishment for aggravated kidnapping 

for extortion with bodily harm on the one hand, with the punishment California imposes 

for premeditated murder and for aggravated kidnapping for robbery on the other hand. 

(See Palmer, supra, 10 Cal.5th at p. 973.) Defendant observes that, whereas his 

conviction for aggravated kidnapping for extortion with bodily harm is punishable by 

LWOP, a defendant convicted of premeditated murder may be eligible for parole after 

serving 25 years. He also observes that, unlike his offense, kidnapping for robbery is 

punishable by life with the possibility of parole. (See § 209, subd. (b).)

Defendant’s comparisons do not establish the disproportionality of his LWOP 

sentence. Regarding premeditated murder, “a person convicted of first degree murder is 

subject to the death penalty, life in prison without the possibility of parole, or a term of 

25 years to life depending on the circumstances of the offense and the offender. (§ 190, 

subd. (a).) The maximum punishment [for first degree murder] is much greater than 

[defendant’s] maximum punishment under section [209, subdivision (a) for aggravated 

kidnapping for extortion with bodily injury].” (Cooper, supra, 43 Cal.App.4th at p. 826.) 

Regarding defendant’s comparison of the punishment for aggravated kidnapping for 

extortion with bodily injury versus aggravated kidnapping for robbery, one court has 

observed that kidnappings for ransom, which is encompassed in the same Penal Code 

provision as kidnappings for extortion (§ 209, subd. (a)), “are coldly planned deliberate 

schemes” while kidnappings for robbery “often involve far less deliberation.” (Maston, 

supra, 33 Cal.App.3d at p. 563.) Another court has stated that the difference in penalty 
69

may be “rooted in the common (though not essential) involvement of multiple victims—

primary and secondary—in kidnappings for extortion.” (Ibrahim, supra, 19 Cal.App.4th 

at p. 1699.) We are therefore not persuaded by defendant’s contention that aggravated 

kidnapping for robbery is necessarily more serious than aggravated kidnapping for 

extortion. Moreover, “[t]he Legislature has chosen to make [some] offenses not 

involving homicide punishable by life imprisonment without possibility of parole: 

kidnapping for the purpose of ransom[ or] extortion . . . with bodily harm short of death 

(§ 209, subd. (a)) and attempted train wrecking (§ 218). Such sentences have been found 

not to constitute cruel or unusual punishment because the Legislature could reasonably 

decide that crimes which involve an inherent danger to the life of the victim are 

particularly heinous even if no death occurs. [Citations.]” (Crooks, supra, 55 

Cal.App.4th at pp. 807-808, fn. omitted.) An LWOP sentence in this context “serves a 

rationally conceived penal purpose. Despite anomalies in the structure of surrounding 

laws, the penalty is not disproportionate by the standards of internal California 

comparisons.” (Maston, supra, 33 Cal.App.3d at p. 565; see also Castillo, supra, 233 

Cal.App.3d at p. 66.)

Third, regarding a comparison of the punishment in California for the same 

offense in other jurisdictions (Palmer, supra, 10 Cal.5th at p. 973), defendant “concedes 

that at least three other states have comparable punishments,” including Oklahoma, 

Louisiana, and West Virginia, and that Oklahoma in particular allows for death. The 

Attorney General identifies two additional states – Georgia and Florida – with similar 

punishment as California. Moreover, even if “California’s punishment scheme [was] 

among the most extreme does not compel the conclusion that it is unconstitutionally cruel 

or unusual. This state constitutional consideration does not require California to march in 

lockstep with other states in fashioning a penal code. It does not require ‘conforming our 

Penal Code to the “majority rule” or the least common denominator of penalties 
70

nationwide.’ [Citation.] Otherwise, California could never take the toughest stance . . . .” 

(People v. Martinez, supra, 71 Cal.App.4th at p. 1516.)

Accordingly, we conclude that defendant’s LWOP sentence, imposed for 

aggravated kidnapping for extortion with bodily injury, does not violate the state 

prohibition against cruel and unusual punishment.

J. Sentencing Issues and the Abstract of Judgment

1. Sentence for the Orange County Case

Defendant was sentenced in the instant case and the Orange County robbery case 

at a combined sentencing hearing and, later, at a resentencing hearing. On appeal, 

defendant contends that the trial court intended for the determinate sentences in the 

instant case and in the Orange County case to run concurrent to the indeterminate 

sentence in the instant case. He argues that the court instead improperly designated the 

enhancements for the indeterminate terms on counts 1 and 2 in the instant case as the 

principal term and then imposed one-third the midterm for the Orange County case. 

Defendant contends that the trial court should be directed to “correct” the abstracts of 

judgment “to reflect the lawful sentence that the court intended to impose.”

The Attorney General concedes that the “the trial court should not have 

incorporated the determinate Orange County sentence into the indeterminate portion of 

the” sentence in the instant case. The Attorney General argues that “[r]emand is 

necessary, however, to permit the trial court to exercise its discretion in fashioning a 

determinate term sentence.”

On March 10, 2020, the trial court initially sentenced defendant in the instant case 

to LWOP on count 1 plus thirteen years for sentence enhancements; a consecutive life 

term on count 2 plus six years for sentence enhancements; and concurrent determinate 

terms of three years each plus ten years each for sentence enhancements on counts 3 

through 6. The court imposed a full-term consecutive sentence of nine years for the 
71

Orange County case in which defendant was convicted of first degree robbery in concert 

in 2017.

Defendant filed a motion to correct the sentence. He contended that the trial court 

was required to select thirteen years as the principal term in the instant case (apparently 

based on count 3, 4, 5, or 6) and then impose one-third the middle term, or two years, for 

the Orange County case pursuant to section 1170.1, subdivision (a).

At a resentencing hearing on November 12, 2020, the trial court stated that the 

instant case had the “longer term, so it should be the primary sentence with the [Orange 

County] case being the subordinate sentence.” The prosecutor contended the “primary 

term” in the instant case “would be 19 years” for the enhancements on counts 1 and 2, 

rather than the concurrent 13-year term imposed on each of counts 3 through 6 as 

contended by defendant. The trial court agreed with the prosecutor and purported to 

select the 19 years in enhancements on counts 1 and 2 as the principal term, and then 

modified defendant’s sentence in the Orange County case to a consecutive term of two 

years, which was one-third the midterm, for an “aggregate determinate term” of 21 years. 

The court then stated, “Everything else I did regarding concurrent sentences is going to 

remain the same. That was the only consecutive that the Court needed to address.”

Defendant’s overall sentence includes both determinate terms and indeterminate 

terms. “Indeterminate term crimes and determinate term crimes are subject to two 

different sentencing schemes.” (People v. Neely (2009) 176 Cal.App.4th 787, 797 

(Neely).) “Sentencing under these two sentencing schemes must be performed separately 

and independently of each other. [Citation.] Only after each is determined are they 

added together to form the aggregate term of imprisonment.” (Ibid.)

Regarding determinate terms, the trial court “select[s] a base term for each of the 

crimes, set[s] the crime with the greatest base term as the principal term, impose[s] the 

full base term as the sentence for the principal term crime, and impose[s] one-third of the 

middle term as a consecutive sentence for any subordinate term crimes. Should the court 
72

choose to run one or more of the determinate terms concurrently, it would impose the 

full selected base term and order it to be served concurrently with the principal term.” 

(Neely, supra, 176 Cal.App.4th at pp. 798-799; see § 1170.1, subd. (a).)

“[S]traight life sentences” are considered indeterminate sentences. (People v. 

Felix (2000) 22 Cal.4th 651, 658 (Felix).) Indeterminate sentences “are not subject to 

section 1170.1.” (Neely, supra, 176 Cal.App.4th at p. 798.) “Consequently there are no 

principal and subordinate terms to be selected. [Citation.] The court simply imposes the 

statutory term of imprisonment for the indeterminate sentence crime . . . .” (Ibid.) 

Likewise, if an enhancement is attached to more than one indeterminate term, those 

enhancements must be imposed for their full term. (Felix, supra, at p. 656.) 

“[S]ection 1170.1’s one-third limit for consecutive subordinate terms and enhancements 

does not apply.” (Ibid.)

“Life sentences, whether with or without the possibility of parole, may be imposed 

to run consecutively with one another, with any term imposed for applicable 

enhancements, or with any other term of imprisonment for a felony conviction. 

Whenever a person is committed to prison on a life sentence which is ordered to run 

consecutive to any determinate term of imprisonment, the determinate term of 

imprisonment shall be served first . . . .” (§ 669, subd. (a).)

“Once the court determines what sentence is to be imposed for the indeterminate 

term offenses and the determinate term offenses, it combines the two to reach an 

aggregate total sentence. Nothing in the sentencing for the determinate term crimes is 

affected by the sentence for the indeterminate term crime.” (Neely, supra, 176 

Cal.App.4th at p. 798.)

In this case, at the resentencing hearing, the trial court “failed to sentence 

[defendant] for crimes punishable by imposition of determinate terms separately from 

the crimes punishable by imposition of an indeterminate term.” (Neely, supra, 176 

Cal.App.4th at p. 797.) “Specifically, the court erroneously applied the principal 
73

term/subordinate term methodology set forth in section 1170.1 to all of the offenses. 

When it imposed a consecutive one-third of the middle term sentence for the [Orange 

County] robbery, the court in effect was designating the [aggravated kidnappings, which 

have indeterminate terms,] as the principal term under section 1170.1.” (Ibid.)

“To permit correction of the trial court’s errors, the case must be remanded for 

resentencing. Moreover, because the trial court misapplied the sentencing rules for 

crimes subject to different sentencing schemes, the trial court must be given the 

opportunity to revise all of its discretionary sentencing choices for the determinate term 

crimes. [Citation.]” (Neely, supra, 176 Cal.App.4th at p. 799.) The trial court’s 

discretion on remand will include “whether to impose consecutive or concurrent 

sentences for each of the crimes as permitted by law” and “whether the aggregate 

determinate term will run concurrently with or consecutively to the indeterminate term.” 

(Ibid.) In this regard, we disagree with defendant that the record clearly shows that the 

trial court intended to run the Orange County sentence concurrent to the indeterminate 

sentence in the instant case. To the contrary, the record reflects that at both the initial 

sentencing and at resentencing, the trial court sought to run the Orange County sentence 

consecutive. We will remand for resentencing to allow the trial court to properly exercise 

its discretion.

2. Prior Serious Felony Enhancement

In a footnote regarding sentencing issues, the Attorney General contends that the 

“trial court neglected to impose mandatory consecutive five-year serious felony prior 

enhancements on [c]ounts 1 and 2 in view of [defendant’s] prior robbery conviction” in 

the Orange County case. (See § 667, subd. (a).) Because the Orange County robbery 

conviction was “prove[n]” at trial, the Attorney General argues that this court “should 

order that sentencing oversight corrected on remand.”

As defendant points out in reply, however, the enhancement must be pleaded 

before it may be imposed. (§ 1170.1, subd. (e) [“All enhancements shall be alleged in 
74

the accusatory pleading and either admitted by the defendant in open court or found to 

be true by the trier of fact”].) No prior serious felony enhancement was pleaded in this 

case, and therefore the enhancement may not be imposed. (People v. Nguyen (2017) 

18 Cal.App.5th 260, 270 [concluding that “the trial court erred by imposing the 

unpleaded five-year prior serious felony conviction enhancement”]; see also People v. 

Jackson (1985) 37 Cal.3d 826, 835, fn. 12 [noting that before a prior serious felony 

enhancement under § 667 may be imposed by a trial court, the defendant must “receive 

notice of the facts the prosecution intends to prove”].)

3. Additional Custody Credits for Actual Time in Custody

Defendant contends that he is entitled to an additional 247 days of custody credit 

for actual time in custody between his initial sentencing on March 10, 2020, and the 

resentencing on November 12, 2020. The Attorney General contends that defendant is 

not entitled to presentence custody credits for this period of time. As we are remanding 

the matter for resentencing, the parties may raise this issue for the trial court to address in 

the first instance.

4. Abstract of Judgment

Defendant and the Attorney General contend that there are multiple errors in the 

abstracts of judgment for the indeterminate and determinate terms, including that count 3 

is completely missing and that the abstract containing counts 1 and 2 does not include the 

associated enhancements. Because this case must be remanded for resentencing and 

amended abstracts will need to be prepared, the parties may raise the issues with the trial 

court to consider in the first instance.

K. Restitution

Defendant contends that, due to a mathematical error, the trial court incorrectly 

awarded victim restitution to Barcinas in the amount of $26,364.77 and that the correct 

amount is $26,358.77. The Attorney General concedes the error. We find the concession 

appropriate.
75

The prosecutor submitted a written request for victim restitution for Barcinas. In 

the written request, the prosecutor explained that defendant’s coperpetrator, Zumbado, 

had been ordered to pay Barcinas $26,791.76 in victim restitution. The prosecutor 

explained that defendant should be ordered to pay the same amount of victim restitution 

to Barcinas, except that $432.99 should be subtracted from the restitution to Barcinas for 

a stolen firearm that actually belonged to victim Smith, not Barcinas. In doing this 

subtraction ($26,791.76 minus $432.99), the prosecutor incorrectly requested $26,364.77, 

instead of the mathematically correct amount of $26,791.76 in restitution for Barcinas.

At the restitution hearing, the parties and the trial court agreed that defendant 

should and would be ordered to pay the same amount of restitution that his coparticipant 

had been ordered to pay, less $432.99. Apparently relying on the incorrect figure listed 

in the prosecutor’s written request, the court ordered that defendant pay Barcinas 

$26,364.77 in restitution.

As it is apparent from the record that the mathematically correct amount of 

restitution to Barcinas is $26,358.77, we will order the restitution order corrected.

IV. DISPOSITION

The judgment is reversed, and the matter is remanded to the trial court with 

directions to (1) strike the convictions on counts 4, 5, and 6 for grand theft; (2) correct 

the restitution order to Danny Barcinas 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.
BAMATTRE-MANOUKIAN, ACTING P.J.

WE CONCUR:

DANNER, J.

WILSON, J.

People v. Melody

H047978

H048612

H048638