California Court of Appeals, Fourth District, Third Division
Ordered Date Filed 6/12/13
ORDER MODIFYING OPINION AND DENYING PETITION FOR REHEARING; NO CHANGE IN JUDGMENT
It is ordered that the opinion filed herein on May 22, 2013, be modified as follows: At the end of the last paragraph on page 12, delete the following:
(See People v. Powell (2013) 214 Cal.App.4th 106, 109 [“error was prejudicial because it allowed the jury to convict Powell of an offense of which he had no reasonable notice”].)
There is no change in the judgment.
The petition for rehearing is DENIED
Appeal from a judgment of the Superior Court of Orange County, Super. Ct. No. 05HF2101 M. Marc Kelly, Judge. Reversed in part and affirmed in part with modifications.
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 ...