P. v. Galdames

Filed 9/13/07 P. v. Galdames CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. J. Thompson Hanks, Judge. Affirmed with directions.

Jean F. Matulis, under appointment by the Court of Appeal, for Defendant and Appellant Rosa Salguero Galdames.

E. Thomas Dunn, Jr., for Defendant and Appellant Similiano Rojas Flores.

Brett Harding Duxbury, under appointment by the Court of Appeal, for Defendant and Appellant Elmer Andres Salguero Rivas.

Edmund G. Brown Jr, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Lilia E. Garcia, Supervising Deputy Attorney General, Raquel M. Gonzales and Meagan Beale, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted Rosa Galdames, Similiano Rojas Flores^[1]and Elmer Rivas of kidnapping for ransom (Pen. Code, 209, subd. (a)), conspiring to kidnap for ransom (Pen. Code, 182, subd. (a)(1)) and false imprisonment by menace (Pen. Code, 236). Each was sentenced to life in prison. They appeal, claiming their pretrial motion to dismiss should have been granted, the evidence was insufficient to support the verdicts and jury misinstruction occurred. We reject their contentions and affirm, while directing the trial court to correct an error in Rivass abstract of judgment.

I.

Facts

The defendants conspired to have the 16-year-old victim, who had been illegally brought into the United States by people in their organization, held against his will until an amount of money acceptable to someone in their organization was paid. As part of that conspiracy, the victim was taken against his will from a parking lot in Corona, where his aunt was to have picked him up after she paid for him. On May 8, 2004, the victim was taken by his kidnapper to a residence in Long Beach, where Galdames, her husband, Rojas and her son, Rivas, lived. For $200 per month, Galdames allowed the kidnapper to use a converted garage on the premises which locked from the outside to imprison illegal aliens until family or friends in the United States paid a certain amount of money for their release. Rojas was paid by the kidnapper for keeping people in the converted garage and the day after the victim had been imprisoned there, he followed the kidnappers directions and took the victim to a fast food restaurant where the victims aunt was to meet them and pay for her nephews release. Unfortunately for the defendants, the aunt had alerted police, who were also present at the restaurant, and arrested Rojas. Rivas had taken possession of the victim from the kidnapper when the victim had arrived at the Long Beach residence and had escorted the victim to the converted garage, where the victim was locked inside overnight, without food or water. Rivas acknowledged knowing that the kidnapper was holding illegal aliens in the converted garage.

II.

Issues and Discussion

1. Motion to Dismiss

Before trial began, the defendants moved to have the Information dismissed due to the deportation of, inter alia, the aunts 10-year-old son and 8-year-old daughter,^[2]who were assertedly in their mothers car when the victim entered it at the Corona parking lot and was later forcibly removed from it by a kidnapper. The defense expected them to testify that no such kidnapping occurred. During the hearing on the motion, defense counsel stated that according to the police report of the incident, neither of the children told the reporting officer that the victim got into their mothers car at the Corona parking lot and was then removed from it by anyone. However, the boy confirmed that they were there to pick up their cousin,^[3]a man whispering into a walkie-talkie entered his mothers car from another car, asked his mother for $2,000 and his mother gave the man an envelope containing jewelry, which the man took before driving away and going towards the freeway. A year and a half before the hearing, the People had written immigration authorities requesting that the aunt, whom they described as the key witness in this case in which the defendants were facing life sentences, not be deported. Additionally, while the case was pending, the prosecutor made several calls to immigration, reiterating the request, but was surprised to learn of the aunts eventual deportation and hence, the absence of her children . The trial court denied the motion, finding that the People had made efforts to keep the aunt and her children in the country, but immigration had unilaterally deported them.

The defendants here overstate, just as they did below, the importance of the childrens presence at this trial. Neither child stated that he/she did not see their cousin inside their mothers car or being removed from it. Rather, neither reported the presence/removal to police. Given that their mother was participating in an illegal venture, their silence on the details of the encounter is understandable. Additionally, their stories conflicted with each other, and with the stories given by the two more mature witnesses present, i.e., their mother and the victim. Finally, as the trial court found, the People had taken steps to secure their mothers presence in the country, and, thus, theirs.

The defendants attack the trial courts ruling by addressing this last point, i.e., that the Peoples efforts were directed at the childrens mother, not them. However, there would have been little point to the People trying to prevent their deportation without also tying to prevent their mothers. If she stayed in the country, so did they. If she left, so did they. Moreover, at the time the efforts were made, and still, now, the mother was, by far, the more important witness because she had a greater awareness of what was going on than did her children and she had less of an reason not to talk about it than they did. Additionally, we are not convinced, as the defendants here assert, that the children would have supplied exculpatory evidence. According to testimony admitted at trial for a non-hearsay purpose, the aunt admitted, against her own penal interest, that she had gone to the Corona parking lot to pay for her nephews delivery as part of plan to bring him illegally into the country. She went on to say that he was sitting in her car when the kidnapper pulled him out, placed him in his car and drove off. This was identical to the version given by the victim at trial. Therefore, we cannot agree with the defendants that the trial court erred in denying the motion to dismiss and that err requires reversal of their convictions.

2. Insufficiency of the Evidence

a. Lack of Consent

The victim, who was sixteen when the crimes were committed and did not speak English, testified that starting in his home country of El Salvador, he came, in the company of a succession of three coyotes, to the United States, where he was turned over to a fourth coyote named Moises, who was to deliver him to his aunt. The victim, Moises and a third man went in Moises truck to a parking lot for the rendezvous with the victims aunt. This turned out to be in Corona. The third man talked to the victims aunt, then returned to Moises truck. Moises got out of his truck and approached the aunts vehicle. The victim then got out of Moises truck and got to his aunts vehicle before Moises did and was entering it when Moises grabbed him by the arm and pulled him out, telling him to get back in the truck. The victim testified that he did not want to get back into Moises truck and he wanted to be with his aunt. Moises pulled the victim two feet and the victim walked the rest of the way back to the truck. As the victim approached it, the third man grabbed him by the arm, opened the back door of the truck and pushed the victim inside. Moises returned to the truck, angry, saying the aunt had lied to him and she had not given him the money. Moises threatened the victim as he drove on the freeway. He and the third man said they were owed $1000. Moises asked the victim about other family members the latter had in the United States because the aunt had not given him all the money and she had no more. He opened the glove box and the victim saw the butt of a pistol. The victim was afraid of Moises. Moises had told him that he had no problem killing anyone. Moises also told the victim to get on the floor of his truck, as immigration authorities were coming. During the trip, Moises talked on his cell phone to a person at the house when they later arrived. The house turned out to be in Long Beach. When they got there, Rivas came outside and met them. Moises told Rivas that the victim was the one and Rivas should not do anything to him. Rivas escorted the victim to one of two bedrooms that had been converted from a garage and locked him inside. The room had a window with bars on it and locked from the outside. It was not possible to get out of the room without someone on the outside unlocking the lock.^[4] The victim remained in the room, without food or water, until the next morning. The previous afternoon, another person had been put into the room with him. The victim was afraid the entire time he was there. The victim testified that he did not want to be locked up in that room. He also stated that he did not know if his aunt had given Moises any money.

During cross examination of the victim, who was then 17, the following colloquy occurred,

Q [DEFENSE COUNSEL]: What was the deal that was made with the coyote in El Salvador?

A [VICTIM]: Just that he was going to bring me over here.

Q [DEFENSE COUNSEL]: You knew that until the money was paid, you were in his custody, right?

A [VICTIM]: Yes.

Q [DEFENSE COUNSEL]: You couldnt leave?

A [VICTIM]: Yes.

Q [DEFENSE COUNSEL]: That coyote took you from El Salvador to Tijuana?

A [VICTIM]: It was a female coyote from Guatemala to Tijuana . . . .

[]  . . .  []

Q [DEFENSE COUNSEL]: Did you tell [Moises] that your aunt was to pay him money?

A [VICTIM]: Yes.

Q [DEFENSE COUNSEL]: You knew as part of the deal that, as long as he wasnt paid, you had to stay with him and follow his instructions?

A [VICTIM]: Yes.

The initial issue in a discussion of the insufficiency of the evidence is a determination of the significance of the victims testimony regarding consent. It is clear that the kidnapping for ransom and false imprisonment began when the victim was forced from his aunts vehicle in Corona and taken to Long Beach, where he was imprisoned overnight. As stated above, the victim testified that all of this was against his will. On cross examination, he acknowledged knowing that he was in the custody of and could not leave the first coyote, who had brought him to Tijuana. This had nothing whatsoever to do with what happened in Corona and Long Beach.^[5] As to that, the victim testified knowing that part of the deal (to which he arguably agreed by coming to the United States) was that as long as Moises was not paid, he had to stay with him and follow his instructions. However, the victim also testified that he was unaware whether his aunt had given Moises any money.^[6] Therefore, that portion of the victims testimony does not establish that he consented to being taken from his aunts vehicle in Corona, transported to Long Beach and held at the house there overnight without food or water. Certainly, the evidence establishes that the victims expectation was that he would be released to his aunt when he first met up with her.

We will never know whether the victims aunt performed her duties under the contract to bring her nephew to the United States. Certainly, there was no testimony that the victim was aware of the specifics of his aunts agreement with the coyotes. Had there been evidence he was aware that a certain amount had been agreed upon, and it had not yet been paid,^[7]therefore his reasonable expectation was that he would be held until it was, defendants consent argument would be more persuasive.^[8] However, this was not the case. Defendants argument also necessitates the conclusion that any illegal alien who consents to being brought into the United States by coyotes in exchange for a certain payment can be held in captivity for as long as the coyotes make demands for more and more money from the aliens family or friends here, and be treated any way the coyotes choose, regardless of whether the amount demanded was the one originally agreed upon.

The issue of consent was hotly contested by both sides below. The jurors were instructed on it. They had been presented with evidence that the 16-year-old victim was unfamiliar with the United States and unable to communicate in English. He was in this country illegally, and, in fear of immigration authorities, therefore, probably feeling unable to enlist the help of law enforcement or anyone else. He was apart from family or friends. This, then, was a reasonable basis for the jury to conclude that the victim did not freely consent to being drug away from the reunion with his aunt in Corona that he expected, and locked up in a converted garage in a faraway place without food or water.

b. Knowledge of the Defendants

The victim testified that on the second day of his captivity in the Long Beach converted garage, Rojas told him that he was going to deliver the victim and the victims aunt had the money. After giving the victim two hamburgers and unlocking the door to the bathroom so the victim could shower, Rojas drove the victim to the Long Beach fast food restaurant for the second rendezvous with the aunt. On the way, Rojas talked on his cell phone. Once there, he approached the aunts car, with his cell phone in his hand, before being interrupted by a police officer who twice motioned for him to get on the ground. Rojas failed to comply and had to be hit in the face by the officer and restrained on the ground before being arrested. There was $200 in cash in the car he was driving. He later admitted that he lived at the Long Beach house. He said that his friend had dropped off two people for Rojas to deliver to their families in the United States. He had received a phone call to take the victim to the fast food restaurant in Long Beach. He said his friend in Mexico had called him and told him to deliver two people, who had been brought to the friend, to the United States. He dropped these two off at his cousins house for four days, then picked them up and took them to the Long Beach house, where they stayed for two days. Then, Moises, who was a friend of Rojas friend in Mexico, called and told him where and when to deliver the victim. Moises paid him $40 for each person Rojas cared for in the converted garage. He gave conflicting accounts about his initial activity with the victim first he said he picked the victim up, then he said he was not present when the victim arrived at the Long Beach house. The victim told the police that about four hours after arriving at the Long Beach house, Rojas asked him why he had not yet been delivered to his ultimate destination. Rojas knew the locks on the converted garage had been reversed and the springs removed from the car door to the garage, to prevent it from being opened.

Rivas and his mother, Galdames, arrived at the Long Beach home while officers were there following the arrest of Rojas at the fast food restaurant. Rivas later admitted he lived at the Long Beach house. His room was inside the house and was the first one after coming through the door towards the garage. He had a set of keys to the back door of the house and to his room, which was locked. He admitted that he knew Moises was housing illegal aliens in the locked converted garage of the house and these people were being held there. He was aware that the locks on the two doors in the converted garage had been reversed to prevent people inside the structure from getting outside. He also knew that the window in the converted garage had bars on it. He knew that three weeks previously, people who were in the garage had cut the bars and escaped. He said that most of the time, after leaving the garage, he would lock the door. He knew that Moises put the victim in the garage between 12:00 noon and 1:00 p.m. on May 8th. The victim told Rivas that he was waiting for Moises. Rivas knew that Moises always had someone at the house to take care of the people that were inside the garage.

Galdames had $1,000 and two cell phones in her purse when the police encountered her at the Long Beach home. She admitted living there. She said she rented the garage to Moises for $200 per month. She knew that Moises was bringing over illegal aliens from Mexico, El Salvador and Guatemala. He was getting between $1,000 and $1,500 per person for smuggling. She did not want people in the garage leaving and she knew the locks on the garage were locked all the time. She saw the victim sleeping in the converted garage around 10:00 p.m. on May 8th. The victim testified that he saw her at the Long Beach house when he got there on May 8th.

An ICE agent testified that one is smuggled into the United States by contacting a smuggler in ones home country. A fee is negotiated, and at times, the money is paid up front. The smuggled person is placed with smugglers, who lead the former through Central America and Mexico to the U.S. border. The smuggled person is then brought across the border and taken to a load house where they are kept until they are sold to family members or friends in the United States. The smuggled are commonly held against their will and are not free to leave. It is common for smuggled people to be held in a house where there are bars on the windows and many doors. The smuggled person knows when he is brought to the U.S. that he will be held until someone pays.

When officers entered the converted garage room where the victim had been held, there was a man confined inside.

The defendants contend there was insufficient evidence that they joined the conspiracy knowing it was intended to obtain ransom that the victim would be held against his will after the failed rendezvous in Corona.^[9] We disagree. If the defendants could not anticipate that the people smuggled by their organization would have to be held against their will, there would have been no bars on the window or locks on the doors of the converted garage. The evidence established that all three defendants were aware of these measures and knew they were being used on this victim, in particular.

The defendants contend that there was insufficient evidence they were even aware of the victims existence when he was kidnapped in Corona. They also maintain that there was no evidence any had the specific intent that the victim be kidnapped. Therefore, they assert, they cannot be guilty of the kidnapping or a conspiracy to kidnap him. However, there was sufficient evidence that the defendants were active participants in a conspiracy to imprison illegal aliens until an amount of money determined by someone in their organization was paid. Therefore, the fact that the defendants may have been unaware at the time of the kidnapping that this victim in particular had been caught in the web of their conspiracy was irrelevant. They knew that whatever illegal alien was victimized by their conspiracy would be kidnapped and held against the latters will until enough money determined by some other co-conspirator had been paid. This was sufficient.

The defendants also contend that there was insufficient evidence they knowingly or intentionally participated in detaining the victim in the Long Beach home. We disagree. As before, defendants posit a faulty premise that the victim being locked into the converted garage was something he consented to as part and parcel of his plan to come to the United States. However, we have already concluded that the jury was reasonable in concluding that he consented neither to being kidnapped from Corona nor being locked up overnight in Long Beach without food or water. The defendants also contend that there was no evidence that the false imprisonment of the victim was affected by violence, menace, fraud or deceit. However, the victim testified that he was afraid of Moises, he and his aunt had been threatened by him, he had seen a pistol in the glove compartment of Moises truck, he had been handed off by Moises to Rivas at the house and he was afraid the entire time he was in the converted garage. This was sufficient evidence the crime was committed by violence or menace. Contrary to the defendants claim, it was not necessary for any of them to personally threaten the victim it was sufficient that co-conspirator Moises had done so.

3. Jury Instructions

a. Natural and Probable Consequences

The defendants were charged with conspiring to commit the crime of kidnapping the victim for ransom and reward. The instructions required the jury to find that the defendants had the specific intent to agree to commit kidnapping for ransom. The jury was told, as part of the instruction about joint responsibility of conspirators,

A member of a conspiracy is not only guilty of the particular crime that to his or her knowledge his or her confederates agreed to and did commit, but is also liable for the natural and probable consequences of any crime of the co-conspirator to further the object of the conspiracy, even though that crime was not intended as part of the agreed-upon objective and even though he or she was not present at the time of the commission of that crime. [] You must determine whether the defendant is guilty as a member of the conspiracy to commit the originally agreed-upon crime or crimes and, if so, whether [kidnapping the victim for ransom, conspiring to kidnap the victim for ransom and falsely imprisoning the victim by violence or menace] were perpetrated by co-conspirators in furtherance of that conspiracy and was a natural and probable consequence of the agreed-upon criminal objective of that conspiracy.

The defendants here criticize this instruction on a number of grounds. However, they requested it.^[10] Therefore, they waived any errors in it. (People vWoods (1950) 35 Cal.2d 504, 510.) Moreover, the defendants misread the instruction in contending that it did not limit their liability to the natural and probable consequences of a conspiracy to kidnap for ransom. As stated, other instructions made clear that the conspiracy was one to kidnap for ransom. It was, contrary to defendants contentions, not a conspiracy to smuggle illegal aliens. The only problem we see with the way the instruction was worded was that it included within the natural and probable consequences of a conspiracy to kidnap for ransom the crime of conspiring to commit for ransom. While this was unnecessary and redundant, we remind the defendants that they requested this instruction. Moreover, we do not believe the jury was confused by it.

We also do not believe the jury was confused by the words of the prosecutor during argument, to which none of them objected. The prosecutor said, People like [the victim] and the other fellow in th[e converted garage when the police arrived], . . . would not be free until their family . . . paid, and we know that [the defendants] here knew that. . . .  They knew full well that they were responsible [to prevent the escape] of these [victims]. . . .  How do you know there was financial cost [to the defendants] if these [victims] were lost? Why in the world do you cage people up like that? . . .  Because you dont want them to get away. Why do they care if the [victims] get away?  . . .  The network falls apart. . . .  [] [If]  . . . the family doesnt pay the money in full [t]he conspiracy crumbles . . . . They are part of this network, this railroad.  . . . They know full well that the consequences, naturally and probably . . . are that, if money is not paid, the person doesnt go free. . . .  []  . . .  [] People would be brought in [to] the [United S]tates in exchange for money. This is one crime. Thats not what the state law focuses on. You are not here to decide what federal statute is that. Thats not what you are here for. You are here to say, . . . you dont get to lock up people until you get paid. . . . []  . . .  The conspiracy . . . involves knowing that their role is to hold people until the money is paid out.  . . .  []  . . .  They [are] required to know when the call came[,] they had to . . . hold this person until they got the go sign.  . . .  []  . . .  []  . . . I suspect the defense will . . . say . . . , . . . The [defendants] didnt know what happened in Corona. I want to explain to you legally why they are responsible for what happened in Corona. They know exactly what this network does. It brings people, holds people until money is paid . . . . The natural and probable consequence of each and every one of these circumstance [sic] is that people will not be free until the money is exchanged. [] The natural and probable consequence is realized by their very own actions because . . . they are the ones that were holding [the victim] until money is exchanged. So not knowing [whoever was demanding the money from the aunt], it doesnt matter. It doesnt even really matter if they didnt know Moises face-to-face. What matters is they were aware that this was an enterprise that they had engaged in[] . . . . []  . . .  [N]ot just here in Corona, each and every time a person is brought across and held in confinement and not allowedto be free until money is paid, [the defendants] are responsible.  . . .  []  . . .  Is it reasonable for the average person who is engaged in this enterprise to foresee if the family doesnt pay, that that person will be taken away and locked up[?] Of course, its reasonable to surmise that. Especially when yours, as in the case of [the defendants], is the house that serves as the jail until the money is paid. The prosecutor made clear that the conspiracy he was talking about was not one to smuggle aliens. Rather, the conspiracy was, once the victim and all others smuggled had arrived in the United States, to detain them until ransom could be paid for their freedom.^[11]

b. Consent

The jury was instructed that kidnapping for ransom required that the victim be seized, confined, abduct[ed], concealed, kidnapped or carried away, held, [or] detained  . . .  []  . . . with the specific intent to hold or detain that person for ransom . . . . As part of the instructions on simple kidnapping, which was denoted a lesser crime to the charged kidnapping for ransom, the jury was told, Every person who unlawfully and with physical force or by any other means of instilling fear steals or takes or holds, detains, or arrests another person and carries that person without his consent and compels any other person without his consent and because of a reasonable apprehension of harm, to move for a distance that is substantial in character, is guilty of . . . kidnapping . . . []  . . .  [] It is a defense to the crime of simple kidnapping that a defendant lacked general criminal intent. There is no general criminal intent if a defendant entertained a reasonable and good faith belief that the person alleged to have been kidnapped voluntarily consented to accompany the defendant and to the movement involved in the purported kidnapping. Finally, the jury was told, When one consents to accompany another, there is no kidnapping as long as the condition of consent exists. [] To consent, a person must: (1) Act freely and voluntarily and not under the influence of threats, force, or duress; (2) Have knowledge that [he] was being physically moved; and (3) Possess sufficient mental capacity to make an intelligent choice whether to be physically moved by the other person [or persons]. [] [Being passive does not amount to consent.] Consent requires a free will and positive cooperation in act or attitude.

The defendants for the first time on appeal object to the instructions on consent. However, they, themselves, requested them^[12]and are therefore foreclosed from challenging them here. Moreover, their assertion is incorrect on the merits. They contend that the last instruction on consent offered an objective definition while the one before it was subjective and the jury was precluded from applying the latter to kidnapping for ransom. First, the so-called objective definition of consent set forth the parameters of consent, i.e., that the victim had to act freely and voluntarily and not under force, threats or duress and that he had to know that he was being moved and have sufficient mental capacity to make an intelligent choice about his movement. However, the so-called subjective test provided that if the defendant reasonably believed in good faith that the victim was acting freely and voluntarily and not under force, threats or duress, knew he was being moved and had sufficient mental capacity to make an intelligent choice about his movement, there was no kidnapping. If, as is most likely,^[13]the jury relied upon the theory that the victim was kidnapped as the basis for the kidnapping for ransom,^[14]its finding that the defendants reasonably and in good faith believed that the victim consented to the kidnapping would have precluded a finding that he had actually been kidnapped, which would have precluded a finding of kidnapping for ransom. The attorneys argued to the jury that the victims consent applied to the charged kidnapping for ransom. The jury was notprecluded by the consent instructions requested by the defendants from applying the latters reasonable and good faith belief in consent to the kidnapping for ransom. Under the circumstances here, the jury could not possibly have believed that it was inapplicable.

The defendants concede that the burden and standard of proof for subjective consent was provided to the jury,^[15]but they argue it was not for objective consent. However, one of the elements of kidnapping, which the prosecution had the burden to prove beyond a reasonable doubt, was that the movement of the victim was without the victims consent. Thus, the burden of showing an absence of the victims consent was on the People and the standard was proof beyond a reasonable doubt. Given the arguments of counsel, it was unlikely that the jury relied on any theory of kidnapping for ransom other than that the victim had been kidnapped. As before, if there was no kidnapping because the People failed to demonstrate beyond a reasonable doubt that the victim did not consent to being moved from Corona to Long Beach, the jury could not possibly have convicted the defendants of kidnapping for ransom.

III.

Disposition

The trial court is directed to amend Rivass abstract of judgment to show that he was convicted by the jury of kidnapping and conspiracy (counts 1 and 2) not that he pled

guilty to these offenses, as the abstract currently states. In all other respects, the judgments are affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P.J.

We concur:

McKINSTER

J.

MILLER

J.

Publication courtesy of San Diego pro bono legal advice.

Analysis and review provided by Poway Property line attorney.

^[1] Although the defendants legal name is Similiano Rojas Flores, the record refers to him as Rojas. For clarity purposes, we will do so as well.

^[2] They were ten and seven when the crimes occurred.

^[3] The girl reported that they were there to meet her father for lunch and she saw a man get in her mothers car. She provided no other information.

^[4] Someone had attempted to break out of the room in which the victim was placed previously, by cutting the bars on the windows.

^[5] Equally irrelevant is the fact that after the victim crossed the border and was alone when the others he entered with were caught (presumably by the border patrol), he allowed himself to be picked up by another coyote. First, he was in the mountains and had no idea where he was. Second, it is apparent that this coyote, a female, was part of the plan to get the victim to his aunt, as this coyote was the one who delivered him to Moises. Therefore, the victim had no reason to run from her. Finally, the victim, himself, testified that he did not part company with her because she was going to take him to the next coyote and he was not otherwise familiar where to go.

^[6] The fact that the first day of his captivity in the Long Beach house, the victim told Rojas that he was still there because there was a money problem does not alter our conclusion. There was a money problem the network that smuggled the victim into the United States either wanted what had originally been charged for his delivery to his aunt or wanted more than this amount. The victim had no way of knowing which was the case, and frankly, neither do we.

^[7] The defendants point to the aunts statement to a police officer that she had not paid Moises in full, shorting him $100. However, these statements were not introduced to establish the truth of the matter asserted therein, which would have rendered them inadmissible hearsay. Rather, they were introduced for the sole purpose of showing why the officer did what he did in response to them. Moreover, there was no testimony that the victim was aware of this. The fact that on the way to the Long Beach home, Moises first said that the aunt had not delivered the money to him, then said that she had not given him all of the money and she had no more, and he and the third man said that they were owed $1,000 does not mean that the victim believed them and thereby could be considered to have consented to remain in their custody. Finally, the fact that the victim walked into the Long Beach house without having to be drug, kicking and screaming, does not mean he did so consensually. He (and his aunt) had just been threatened with death by Moises in the car, where he saw a pistol in the glove box. He testified he was afraid of Moises. Moreover, he was met and escorted into the house by Rojas, a fully grown man. The victim was a 16 year old, in this country illegally, with no allies anywhere nearby. It is apparent from his testimony that he did not even know where he was. What he could have been expected to do at that moment to further demonstrate his unwillingness to be taken into the house, other than later testify that he did not want to be there, is beyond us.

^[8] The expert testimony of the Immigration Customs Enforcement Service (hereafter, ICE) agent does not alter our conclusion. He testified that illegal aliens kn[o]w when [t]he[y] enter into this deal [(to be smuggled into the United States by coyotes)], that [t]he[y] would be . . . held until someone paid for it[.] First, this victim was a minor. Second, as already stated, he was unaware of the terms of his release to his aunt and was unaware whether those terms had been met. Finally, as already stated, he believed when he saw her in Corona that he would be released to her.

The People cite People v. Serrano (1992) 11 Cal.App.4th 1672, for the proposition that even if a debt is owing, it cannot be collected by the reprehensible and dangerous means of abducting and holding a person to be ransomed by payment of the debt. However, the issue in Serrano was whether the defendant could rely on a claim of right defense to a kidnapping for ransom charge. The Serrano court explained that while a good faith claim of right could negate the specific intent required for theft, holding a victim for ransom is a form of attempted extortion, not of theft. The issue here is whether the victim consented to being pulled from his aunts vehicle, forced back into Moises truck, driven to Long Beach and held at the house there overnight, not any good faith belief on the part of the defendants to be entitled to the money that would be paid for the victims release.

^[9] In making this contention, the defendants, once again, discuss facts that were not admitted at trial for the truth of the matters asserted therein. As such, these facts cannot be considered by this court.

^[10] There is some confusion in the record as to whether Rivas requested the instruction. His attorney filled out a request form which did not include this instruction however, the form upon which it was requested noted it was being done so by defense. Unfortunately the discussion between the trial court and counsel concerning the instructions were not placed on the record. If Rivas did not request this instruction, we refer him to our rejection of the augument the instruction was erroneous on the merits.

^[11] Because we conclude that the natural and probable consequences theory was not based on a conspiracy to smuggle illegal aliens, we need not address the defendants argument that kidnapping for ransom and false imprisonment are not natural and probable consequences of such a conspiracy.

We also reject the defendants contention that their post verdict motion to dismiss due to lack of subject matter jurisdiction was improperly denied. The basis for their motion was the faulty premise that the prosecutor was alleging that kidnapping for ransom was a natural and probable consequence of alien smuggling, which was a federal matter.

^[12] See footnote 10, ante.

^[13] This is certainly the theory that the attorneys argued to the jury.

^[14] Under the instructions given, the jury could also have relied on the fact that the victim was seized, confined, abducted, concealed, carried away, held or detained in order to convict the defendants of kidnapping for ransom. The defendants cite no authority and make no argument that their reasonable and good faith belief that the victim consented to be seized, confined, abducted, concealed, carried away, held or detained would preclude a finding of kidnapping for ransom based on any of these theories. In fact, most of these words preclude the notion of consent by the victim. In connection with the charge of false imprisonment, the jury was told that an element was that the victim did not consent to being restrained, confined or detained.

^[15] It was that if from all the evidence the jury had a reasonable doubt that the defendants had general criminal intent, which did not exist if they had a reasonable and good faith belief the victim was consenting, it should find the defendants not guilty.