California Court of Appeals, Fourth District, Third Division
Appeal from a judgment of the Superior Court of Orange County No. 05HF2101, M. Marc Kelly, Judge.
Richard J. Moller, under appointment by the Court of Appeal, for Defendant and Appellant Reynaldo Junior Eid.
Siri Shetty, under appointment by the Court of Appeal, for Defendant and Appellant Alaor Docarmo Oliveira, Jr.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Melissa Mandel, Deputy Attorney General, for Plaintiff and Respondent.
In two prior opinions (People v. Eid (2010) 187 Cal.App.4th 859; People v. Oliveira, Jr. (Aug. 19, 2010, G042004) [nonpub. opn.]), we reversed the kidnapping for ransom convictions of defendants Reynaldo Junior Eid and Alaor Docarmo Oliveira, Jr., respectively, for instructional error. Defendants’ convictions arose from their joint role in handling two undocumented immigrants smuggled into the United States (the U.S.).
On retrial, the People again charged defendants with two counts each of kidnapping for ransom. (Pen. Code, § 209, subd. (a).) The jury acquitted each defendant of kidnapping for ransom, but convicted each of them, as to each count in the information, of the two lesser included offenses of felony attempted extortion (§§ 664, subd. (a), 518) and misdemeanor false imprisonment (§§ 236, 237, subd. (a)). The court sentenced each defendant on count 1 to two years for attempted extortion and a consecutive one-year term for false imprisonment, and on count 2 to a consecutive six months for attempted extortion and a consecutive one-year term for false imprisonment, resulting in a total term of four years and six months for each defendant.
On appeal, defendants contend the jury improperly convicted them of two uncharged lesser included offenses for each charge of kidnapping for ransom. We agree and therefore strike defendants’ convictions for misdemeanor false imprisonment. We reject defendants’ contentions of evidentiary error. Accordingly, we affirm the judgment as modified by the striking of the misdemeanor false imprisonment convictions.
In November 2004, Jefferson Ribeiro moved to Florida from Brazil. He had a six-month tourist visa, but planned to stay illegally in the U.S. after his visa expired. Jefferson worked at a car wash for four months for very little money and then in construction for a few months. Meanwhile, his wife, Ana, and their young son lived in Brazil.
Sometime in 2005, Jefferson decided to try to bring Ana and their son to the U.S., but realized he could not do so legally. He became acquainted with a Dunkin’ Donuts employee named Mauricio Freitas. In mid-2005, Jefferson agreed to pay Freitas $18, 000 in exchange for Freitas arranging to have Ana and their son brought into the U.S. Jefferson paid Freitas a down payment of $4, 000 and agreed to pay the balance in installments of $1, 000 per month. Jefferson told Ana of his arrangement with Freitas. Ana agreed that she and their son would come illegally to the U.S. according to the plan.
On October 16, 2005, Ana and their son flew from Brazil to Mexico City. In Mexico City, a Mexican man picked them up at the airport and took them to a hotel where they stayed for three or four days.
Another Mexican man moved them to a house where about 40 Brazilians waited to be crossed into the U.S. Ana stayed there for seven to 10 days. She stayed inside the house and felt safe. Ana did not feel threatened, even though she was told that her son would not be fed until Jefferson sent more money. Based on warnings Ana received at the house, she believed that if the police saw her, they would separate her from her son. Although she was locked in the house, she stayed there willingly and relied on Joao (the person in charge of the house) to help her stay free from the police.
Meanwhile, in Florida, Freitas kept asking Jefferson for more money because there were “problems with the trip” and things were not going “according to the plan.” Jefferson paid Freitas a total of around $13, 000 in cash from his work earnings and money he borrowed from friends. Jefferson paid the money because, if he did not, Ana and their son would remain “where they were.” At some point Jefferson lost contact with Freitas, who could not be reached at his home or by phone.
Joao (the proprietor of the house in Mexico) phoned Jefferson and said that Freitas had not paid the agreed amount (not enough “to cross them over”) and this was why Ana was still at Joao’s house. Joao told Jefferson that he (Joao) was probably going to send Ana and her son back to Brazil. In a subsequent phone call, Jefferson told Joao to put Ana and her son on a flight to Brazil because Ana had roundtrip tickets. Joao said he would do so. But when Jefferson phoned Joao a few days later, Joao said Ana was already coming to the U.S.
Several days later, a man phoned Jefferson and told him in Spanish that Ana was already in the U.S. and that a person named “Junior” would phone Jefferson.
In the meantime, Ana and her son had been taken to another house in Mexico and then smuggled across the border hidden under a truck’s seat. After arriving in the U.S., Ana and her son were brought to yet another house (transported in a truck driven by an American man) and then taken by another person to a gas station.
At the gas station, they were picked up by defendants in a van driven by Eid. Ana knew Eid as “Junior.” Defendants took Ana and her son to a restaurant to eat, then to the Costa Mesa Travelodge, where the four of them initially stayed in one motel room. By then, Ana’s journey had taken about 35 days.
Defendants treated Ana well at first. They let her use the motel Laundromat and talk with Jefferson on Eid’s cell phone. They took her son to get a haircut. Once, Ana went with Oliveira to a computer store and then to get some food. Oliveira bought a computer and let Ana use it once. Defendants paid for food, laundry, and the motel room.
Defendants said they were waiting for more people to arrive from Mexico. After the second day at the motel, another woman (Monica Lino) arrived. The group then moved into two rooms with an adjoining door. Ana, her son, and Lino stayed in one room, and defendants in the other. Defendants ordered Ana to never close the door between the two rooms.
One or two days later (which was a few days before Thanksgiving), Jefferson received a phone call from “Junior.” Junior said he was with Ana and her son and that Jefferson should pay $14, 000 for their release. Jefferson offered to pay $1, 000 a month. Junior rejected the proposal, but offered to accept title to real property in Brazil instead. Jefferson’s father owned property in Brazil, but was unwilling to help Jefferson. Junior, who had given Jefferson his cell phone number and also the motel’s phone ...