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Name: People v. Eid
Case #: G041759
Court: CA Court of Appeal
District 4 DCA
Division: 3
Opinion Date: 08/19/2010

CALCRIM No. 1202 (kidnapping for ransom) fails to inform the jury that the People must prove the victim did not consent to the predicate act and defendant did not actually and reasonably believe that victim consented. Eid and Geier were involved in smuggling a woman and her son into the United States from South America. When the woman’s husband, also here illegally, contacted Eid and Geier to arrange for the transportation of his wife and child from California to Florida, where the husband resided, Eid and Geier demanded more money. Eventually, police became involved and appellants were arrested, charged with, and convicted of kidnap for ransom (Pen. Code, sec. 209, subd. (a)). Kidnap for ransom involves a primary victim, who is seized, confined or otherwise subjected to a predicate act, and a secondary victim who is subjected to the ransom or extortion demand. The offense does not require that the defendant move the victim. The primary victim’s lack of consent is an element of kidnapping for ransom and a defendant’s reasonable belief in consent is a defense to the crime. Here, the court instructed the jury with CALCRIM No. 1202 and failed to provide sua sponte instructions as to the defense. Because CALCRIM No. 1202, itself, never mentions the word consent with respect to the primary victim, it was fatally flawed in the circumstances of this case and under either the Chapman or Watson standard, the error in giving it was prejudicial. Judgment was reversed and remanded for a new trial.