Appeal from a judgment of the Superior Court of Orange County, Carla Singer, Judge. Reversed. (Super. Ct. No. 05HF2101).
The opinion of the court was delivered by: Ikola, J.
CERTIFIED FOR PUBLICATION
A jury convicted defendant Reynaldo Eid, Jr., (and his co-defendant, Alaor Docarmo Oliveira, Jr.) of two counts of kidnapping for ransom for their role in handling two illegal aliens smuggled into the United States (the U.S.). (Pen. Code, § 209, subd. (a) (§ 209(a)).)*fn1 The court sentenced each defendant to concurrent terms of life in prison with the possibility of parole, the lowest possible sentence for kidnapping for ransom.
We conclude that several instructional errors took place in this case. First, CALCRIM No. 1202 on kidnapping for ransom is incomplete because it fails to inform the jury of the People's burden to prove that the victim did not consent to being confined (or another predicate act) and that the defendant did not actually and reasonably believe the victim consented. The court erred by failing to charge the jury sua sponte on the foregoing elements of kidnapping for ransom. Second, the court erred by failing to instruct the jury on the corresponding defenses requested by defendants. Third, the court erred by improperly answering a question asked by the jury during its deliberations. These errors were prejudicial. We therefore reverse the judgment and remand the case for a new trial before a properly instructed jury.
In November 2004, Jefferson Ribeiro came to Florida from Brazil. Upon the expiration of his tourist visa in 2005, he continued to live in Florida, albeit illegally. He and his wife, Ana, decided that Ana and their young son, should come to the U.S. illegally from Brazil.*fn2 Jefferson accepted the offer of an acquaintance, Mauricio Freitas, to have Ana and their son smuggled from Brazil to the U.S. in a five-day trip by plane and car for a price of $18,000. Ana agreed to the plan.
Ana and her son's actual journey from Brazil to the U.S. took about 40 days and included several stops along the way. Ana left Brazil with little or no money. A coyote*fn3 bought round-trip plane tickets from Brazil to Mexico City for Ana and her son. In Mexico City, a man picked them up at the airport and took them to a hotel where they stayed for three days.
Another man moved them to a house near the border where about 40 Brazilians waited to be crossed into the U.S. Ana was not allowed to leave the house. The house's proprietor, a man named Joao, phoned Jefferson to say that Joao had not been paid enough money and that Ana could not travel any further until he was paid. Ana was told that if her "husband didn't send money there was no money to buy food for [her] child." Nonetheless, Ana felt safe at Joao's house. She and her son stayed indoors at that house voluntarily for 10 days.
Although Jefferson had paid Freitas (his acquaintance in Florida) a total of $14,000, he did not know whether Freitas had paid Joao any money. Jefferson had lost contact with Freitas, who could not be reached by phone or located at his home in Florida.
Jefferson asked Joao to send his family back to Brazil, and Joao agreed to do so. (Ana and her son had tickets for a return flight to Brazil from Mexico City.) But when Jefferson phoned Joao one or two days later, Joao said Jefferson's family was already in the U.S. Someone phoned Jefferson and told him in Spanish that his family was in California and Jefferson should wait to be contacted by "Junior."
In the meantime, Ana and her son had been taken to another house in Mexico, smuggled across the border hidden under a truck's back seat, brought to yet another house, and then driven across a "military barrier" under the seat of another truck.
Throughout this journey, Ana stayed willingly with her various handlers and transporters because she wanted to come to the U.S. She relied on these people to help her avoid the police. She feared that the police might arrest her and separate her from her son; therefore, she and her son stayed indoors in hotel rooms and houses where they were hidden from the police. Ana willingly relied on the coyotes and accepted their restrictions on what she could and could not do.
After their arrival in the U.S., Ana and her son were taken to a house, then to a nearby gas station. There, they were picked up by Eid and Oliveira in a van driven by Eid. Ana knew Eid as "Junior."
Defendants took Ana and her son to a Travelodge in Costa Mesa, California, where the four of them initially stayed in one room. For "the first days," Ana did not want to go out, fearful the police would arrest her and take her son. She had been told they were waiting for more people to come from Mexico. After another woman (Monica Lino) arrived, the group moved into two rooms with an adjoining door. Ana, her son, and Lino stayed in one room, and defendants in the other. The door between the two rooms was kept open at all times.
Defendants treated Ana and her son well, and paid for the hotel, food, and laundry. They bought milk for the boy and took him to get a haircut. They let Ana talk with Jefferson on Eid's cell phone. There was a telephone in Ana's room. She never saw any weapons.
Jefferson received a phone call from "Junior," who demanded payment of $14,000. Jefferson proposed to pay $1,000 a month. Junior rejected the proposal, but offered to accept title to a property in Brazil. Jefferson asked his parents to transfer title to their house, but his father refused. Junior then agreed to accept $7,000 and the balance in payments. Jefferson "had no way of paying the [$7,000]."
Junior gave Jefferson the motel's phone number. By phoning the Travelodge, Jefferson learned his family was in Costa Mesa.
On Ana's third day at the Travelodge (Wednesday), Jefferson and Ana spoke to each other on Eid's cell phone. Ana asked why the trip to Florida was taking so long. Jefferson said that defendants "wanted more money so they could release" Ana. Ana became afraid because she knew that she and Jefferson had no more money. Jefferson asked Ana if she could escape. She said she could not because "there was a person with her all the time."
In her mind, Ana felt she did not want to stay with defendants, but instead wanted to go to Florida. She did not feel free to leave, but did not want to contact the police due to her fear of being arrested and separated from her son. She had no money and did not speak English.
The next day (Thursday), defendants told Ana that if Jefferson failed to pay, they would take her to New York so she could work for them to pay off the debt. Eid "grabbed" Ana's passports, and said he needed them to buy plane tickets to Florida.
That day, Jefferson met a man who knew a woman named Vanessa Silva who lived in California. At Jefferson's request, the man phoned and asked Silva and her husband to go to the motel and pick up Jefferson's family if Silva saw them there. Silva was told that Jefferson's wife and son needed a ride to the airport.
Jefferson called Ana's motel room phone and told Ana that two people would come and knock at her door to get her. Defendants knew Ana was talking on the phone to Jefferson. Jefferson never told Ana to contact the police. Silva also phoned Ana's motel room phone and told Ana they would pick her up.
When Ana heard a knock on the door that night, she got up to open it, but Oliveira "caught it and opened the door himself." A man and a woman stood outside. The woman said she had come to get Ana and Ana's son. In the other room, Eid opened the door, went outside, and spoke loudly. Oliveira closed the door of Ana's room and told her to sit and wait.
Sitting on the bed in the room with Oliveira present, Ana asked to leave.*fn4 Eid was outside "yelling."
Still outside, Eid told Silva "he was owed money and they weren't going anywhere until he got paid." Ana could hear this from inside the room. Ana felt "very afraid." In her mind, she wished she could go with the woman at the door. Eid told Silva and her husband "to stop making trouble" or he would call the police.
Eid went in the room and shut the door, saying, "See, this is what happens every time. Get your stuff ready because we're leaving." Eid screamed at Ana that they "should have never done that, that now he was going to finish with [them], that [they] were in hot water," and they were "going to have the opportunity to know who [he was] in reality, that something real bad [was] going to happen to" them. Ana's son cried. Carrying her son, Ana gathered their belongings.
Meanwhile, Silva and her husband had walked downstairs from the front of the motel where Ana's room was, past the swimming pool and down a back hallway to a side parking lot where Silva's car was parked. Due to Silva's location in the parking lot, she did not see Ana and the others leave the room. Silva called the police on her cell phone.
Inside the room, Oliveira angrily gripped the arms of Lino and Ana (who was holding her son), pushed them out of the room, down the stairs, and toward the van. Ana felt she did not want to stay with defendants. Eid went to the motel lobby to check out.
Defendants pushed Ana, her son, and Lino inside the van, told them to lay on the seat, and told the boy to stop crying. Ana was laying down on the seat as Eid drove the van quickly out of the parking lot. A ...