Metropolitan News-Enterprise


Wednesday, December 5, 2007


Page 1


C.A.: Conspiracy Charge Cannot Be Based on Federal Crime




A conspiracy prosecution in a California court cannot be based on a target offense that is a federal crime, the Fourth District Court of Appeal ruled yesterday.

Div. One, in an opinion by Justice Patricia Benke, ordered a new trial for Gabriel Alonzo Zacarias, an alleged alien smuggler serving a life sentence on two counts of kidnapping for financial gain and sentenced. Benke said prosecutors were erroneously allowed to prosecute Zacarias on a theory that he conspired to smuggle aliens in violation of federal law, in addition to the two theories on which the prosecution was properly based.

Since it could not be determined which theory or theories the jury convicted on, reversal is required, the justice said.

The kidnapping charges arose from a 2004 incident in which Zacarias and his partner allegedly drove two undocumented aliens to Riverside, where an argument regarding money ensued with one of the aliens’ relatives, Manuel Jaco. With the aliens still in his van, Zacarias drove away, but with Jaco and another man in pursuit, the van stalled two miles away before Jaco approached the van and shot Zacarias’ accomplice, killing him.

An expert witness testified that in alien smuggling, a substantial down payment is given the smuggler before the alien is brought to the United States. Once here, aliens are kept in “load houses,” from which they call relatives to arrange payment of the remainder of the fee.

At times, the witness testified, the smuggler will suddenly increase the fee. If the relatives do not have enough money to cover the additional amount, the expert told jurors, violence may result.

Prosecutors tied Zacarias to the smuggling operation, citing evidence found in a search of his bedroom, including Mexican and Guatemalan cash, 10 cell phones, and a “pollo list” bearing the names of smuggled aliens, with fee amounts and relatives’ phone numbers.

The defense argued that the aliens were not held against their will, that Zacarias drove away only to escape Jaco, and that the defense of necessity applied.

Prosecutors contended that Zacarias could be convicted of kidnapping for financial gain on any of three theories—that he intentionally held the victims against their will in the van in order to gain more money from the relatives, that he aided and abetted his late partner in doing so, or that the aliens were held captive as a natural and probable consequence of a conspiracy to smuggle them in violation of a federal statute. Riverside Superior Court Judge Edward D. Webster so instructed the jury, which found the defendant guilty on both counts.

Benke rejected the prosecution’s contention that the conspiracy theory was correct under Penal Code Sec. 182(a)(1), which says that a criminal conspiracy exists when two or more persons combine to “commit any crime.” The justice concluded that “any crime,” as used in that provision, means a crime under California law.

“It would be odd, we think, for a defendant to be vicariously liable for a serious California crime based on an agreement that is not criminal under California law,” the justice wrote, with Justices Cynthia Aaron and Gilbert Nares concurring.

The case is People v. Zacarias, 07 S.O.S. 7031.


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