Zacarias

Gabriel Alonzo Zacarías was convicted of two counts of kidnapping for financial gain. (Pen. Code, § 209, subd. (a).) He was sentenced to two concurrent terms of life imprisonment. Zacarías appeals, arguing instructional error concerning the theories of liability.

FACTS

A. Prosecution Case

Appellant and Nicholas Trujillo were in the business of transporting undocumented aliens. On March 16, 2004, appellant picked up Trujillo and two undocumented aliens in Temecula for delivery to their relatives at a restaurant in Riverside. At the restaurant parking lot, Trujillo and one of the persons’ relatives, Manuel Jaco, argued about the amount of money owed for the delivery. Appellant, still in the driver’s seat of his van, was grabbed and punched. Appellant, with Trujillo and the two persons they were transporting still in the van, put the vehicle in reverse and drove backwards into another car. He then drove away with Jaco and another man in pursuit.

After approximately two miles, appellant’s van stalled. Jaco approached the van and shot Trujillo once in the head. The two persons being transported got out of the van and left with Jaco. Trujillo died from his wound.

An expert…