(Super. Ct. No. CRF05-5458)
The opinion of the court was delivered by: Butz, J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury convicted defendant Heriberto Castro Gutierrez of an assortment of offenses, the most prominent of which were kidnapping, forcible spousal rape and carjacking. The criminal escapade encompassed a terrifying drive from Portland, Oregon to Woodland, California and its victims were defendant's estranged wife, E.C., and their young son, A.C.
Sentenced under the one strike law to an indeterminate term of 25 years to life, as well as to a determinate term of just over 12 years in state prison, defendant appeals. (Pen. Code, § 667.61.)*fn1 He raises issues of jurisdiction, venue, instructions, duplicative convictions, sentencing, and the sufficiency of the evidence on a particular one strike finding. While we agree with some of defendant's points, aside from jurisdiction and venue, this does not affect defendant's sentence and we shall affirm the judgment with certain modifications.
Defendant and E.C. had a stormy and physically abusive relationship, punctuated by a restraining order against defendant and a legal separation--both in effect at the time of the incident here. The couple also had a son, A.C., who was nearly three years old at this time.
The incident unfolded on September 2, 2005 (E.C.'s birthdate), beginning in Portland. On that day, E.C. buckled A.C. into his car seat in the front passenger seat of her neighbor's van, which she had been driving because defendant had obtained a key to E.C.'s car. E.C. planned to drop the boy off at day care and go on to work.
Shortly after E.C. drove off, however, defendant, who had been lying in wait in the van, pounced, putting his arm around her neck. When E.C., frozen with shock, failed to comply with defendant's order to keep driving, he unbuckled her seatbelt and threw her to the floor of the van. Now, defendant was in the driver's seat. He disabled E.C.'s cell phone and drove away.
Defendant repeatedly threatened to shoot E.C. twice in the head if she tried anything, saying he had a gun in the back of the van. Defendant hit E.C. and tried to hit her again, prompting A.C. to say, "daddy, no."
Shortly thereafter, defendant stopped the van on a dead-end street, taped E.C.'s hands together behind her back using red duct tape (a type of tape he used in his insulation work), and called E.C. an ungrateful whore.
Then defendant drove onto Interstate 5, after similarly threatening E.C. once again. Defendant said that he was going to Mexico, and that he just wanted to be with A.C.; he did not want E.C. anymore and would get rid of her.
Between Corvallis and Medford, E.C. convinced defendant that it would look less suspicious if she were sitting on the back seat instead of on the floor (A.C. was still in his car seat in the front passenger seat). Defendant also removed the tape from E.C.'s arms, after she said her arms hurt.
Defendant then demanded to know whether E.C. had had sex with various male co-workers that he named; he hit and tried to hit her when she said no and asked her if his "dick" was not enough for her.
This led to defendant's demand that E.C. "suck his dick." E.C. hesitated because A.C. would have to watch and she disliked this activity. She eventually relented and performed the deed, which was made all the more humiliating when defendant told her not to spit out the ejaculate and told A.C. that this is how bitches are treated (A.C. repeating the Spanish word defendant had used, "putas"). Unable to swallow the ejaculate, E.C. spit it onto defendant's leg and shirt which she quickly wiped off with the sleeve of her sweater.
The trio stopped in Medford and again in Ashland, near the California border, for supplies and bathroom breaks. During these as well as other stops, defendant threatened to kill E.C. if she tried anything, and he held A.C.
On they drove. Somewhere near Mt. Shasta, defendant pulled onto an isolated dirt road and changed a tire. E.C. was somewhat relieved when she did not see a gun in the back of the van. It was also at this point that defendant had sexual intercourse with an unwilling E.C., who said she would do whatever he wanted as long as he stopped hitting her. She was really scared and did not want to upset him.
They stopped next in Redding, where gas was purchased and E.C. threw away some paperwork and the used red duct tape.
The ordeal finally came to an end at a Chevron gas station in Woodland, when the three entered the station's store, with defendant holding A.C. E.C. silently mouthed "help me, please help me" to a female clerk who met E.C. in the bathroom while defendant was gazing at products. The police were summoned and defendant was arrested.
Defendant testified. He acknowledged the trip and the sexual acts, but claimed they were consensual and prompted by E.C.'s birthday on September 2.
Among other evidence, the investigation disclosed the following. The sweater that E.C. had used to wipe the semen and saliva off defendant tested consistent with those two substances. The police retrieved the paperwork and the red duct tape that E.C. had thrown out at the Redding gas station. A roll of red duct tape was found in the van behind the driver's seat; the torn ends of that roll matched the torn ends of the red duct tape E.C. had thrown away. A sexual assault exam disclosed tape marks on E.C.'s wrists, multiple bruises, tenderness in her neck, and vaginal and cervical redness and tenderness. And, E.C.'s mother had reported her missing on the day of the incident.
Defendant was acquitted of kidnapping for rape (§ 209, subd. (b)(1)--count 1), but convicted of forcible spousal rape (§ 262, subd. (a)(1)--count 2); two counts of kidnapping (§ 207, subd. (a)--counts 4 & 5; E.C. and A.C., respectively); carjacking (§ 215, subd. (a)--count 6); misdemeanor child endangerment (§ 273a, subd. (b)--count 7); parental corporal injury (§ 273.5, subd. (a)--count 8); and criminal threats (§ 422--count 9). Furthermore, defendant was convicted of the following lesser included offenses to the count 1 charge (kidnapping for rape): kidnapping, forcible spousal rape, felony and ...