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The People v. Heriberto Castro Gutierrez

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Yolo)


April 15, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
HERIBERTO CASTRO GUTIERREZ, DEFENDANT AND APPELLANT.

(Super. Ct. No. CRF05-5458)

The opinion of the court was delivered by: Butz, J.

P. v. Gutierrez

CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COPY

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.

FACTUAL BACKGROUND

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.

PROCEDURAL BACKGROUND

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 misdemeanor false imprisonment, and misdemeanor battery and assault. A charge of oral copulation (count 3) had been previously dismissed because it occurred in Oregon.

The jury also found that the forcible spousal rape conviction (count 2) came within the one strike law (§ 667.61, subds. (a), (c)(2)) on two independent grounds: (1) Defendant kidnapped E.C. and that movement substantially increased the risk of harm to her above that inherent in rape (§ 667.61, subd. (d)(2)); and (2) defendant kidnapped E.C. and tied or bound her in the commission of the rape (§ 667.61, subd. (e)(1) & former subd. (e)(6) (now (e)(5)).

Under the one strike law, defendant was sentenced to an indeterminate term of 25 years to life for the forcible spousal rape (count 2) on ground number (1) above (kidnap and risky movement). (§ 667.61, subds. (a), (d)(2).)

Defendant was sentenced to an unstayed determinate term of 12 years four months, comprised as follows: a principal term of nine years for the carjacking (count 6) and the following three subordinate consecutive terms--one year eight months for A.C.'s kidnapping (count 5); one year for the parental corporal injury (count 8); and eight months for the criminal threats (count 9).

DISCUSSION

I. California Had Territorial Jurisdiction Over the Criminal Threats Charge

Defendant contends that his criminal threats conviction (count 9) must be reversed because the evidence is insufficient that California had territorial jurisdiction over this charge. We disagree.

The question of California's territorial jurisdiction over a criminal charge is a question for the trial court rather than the jury. (People v. Betts (2005) 34 Cal.4th 1039, 1044 (Betts).) The prosecution has the burden of proving such jurisdiction by a preponderance of the evidence. (Id. at p. 1055.) We uphold the trial court's factual determinations if supported by substantial evidence, but we review its legal determinations independently. (Ibid.; see People v. Cromer (2001) 24 Cal.4th 889, 894.)

Under section 27, "[a]ll persons who commit, in whole or in part, any crime within this state" are subject to California's territorial jurisdiction for that charge. (§ 27, subd. (a)(1).) A state may exercise jurisdiction over criminal acts that take place outside of the state if the results of the crime are intended to, and do, cause harm within the state. (Betts, supra, 34 Cal.4th at p. 1046.) "The ultimate question [concerning territorial jurisdiction] is whether . . . there is a sufficient connection between that crime [charged] and the interests of the State of California such that it is reasonable and appropriate for California to prosecute the offense." (People v. Renteria (2008) 165 Cal.App.4th 1108, 1118 (Renteria).)

We conclude that California had territorial jurisdiction over the criminal threats charge in two respects.

First, it is true, as defendant notes, that the evidence of explicit threats was centered in Oregon. The gist of the threats was that defendant would shoot E.C. twice in the head if she tried anything. However, evidence also showed that defendant threatened E.C. throughout the ordeal, including most pointedly when they made stops for gas, supplies or bathroom breaks. Defendant and E.C. made such stops in California. The record shows as well that defendant threatened E.C. explicitly just before entering California, while they were in Ashland. And because E.C. was still afraid that defendant was going to kill her, she asked the Woodland police at the journey's end, while still trembling, not to let defendant go.

Second, one of the elements of the criminal threat offense is that the threat actually caused the victim to be in "sustained fear" for her own safety. (§ 422; People v. Fierro (2010) 180 Cal.App.4th 1342, 1348.) Given the evidence just described, that element was certainly present in California. Again, a state may exercise jurisdiction over criminal acts which take place outside of the state if the results of the crime are intended to, and do, cause harm within the state. (Betts, supra, 34 Cal.4th at p. 1046.)

We conclude, based on substantial evidence, that there was a sufficient connection between the offense of criminal threats and the interests of California such that it was reasonable and appropriate for California to prosecute this offense. (Renteria, supra, 165 Cal.App.4th at p. 1118; § 27.)

II. Yolo County Was a Proper Venue for the Spousal Rape Offense

Defendant contends that Yolo County was an improper venue for the forcible spousal rape charge (count 2) because that offense occurred in Siskiyou County or Shasta County. We disagree.

Section 783, a venue statute, states as pertinent:

"When a public offense is committed in this State, . . . on a . . . motor vehicle, . . . the jurisdiction [venue] is in any competent court, through, on, or over the jurisdictional territory of which the . . . motor vehicle . . . passes in the course of its voyage or trip, or in the jurisdictional territory of which the voyage or trip terminates."

Defendant committed the spousal rape in the motor vehicle in either Siskiyou County or Shasta County, and the trip ended in Yolo County. Under section 783, venue was proper in Yolo County.

Defendant disagrees, citing People v. Bradford (1976) 17 Cal.3d 8. Bradford found section 783 inapplicable in a situation in which the offenses were committed outside a stopped vehicle at an identifiable place along the highway. (Bradford, at p. 15.) That is not the situation here. Here, the rape occurred in the vehicle, and, as even defendant concedes, in either Siskiyou County or Shasta County.

Defendant also contends that, to the extent California law authorizes venue in Yolo County, that law runs afoul of the federal Constitution's Sixth Amendment right to an impartial jury drawn from the area in which the crime occurred (i.e., the vicinage right). Defendant, however, recognizes that there is a state Supreme Court decision--which binds us--that has rejected a federal constitutional vicinage right as applied to the states. (Price v. Superior Court (2001) 25 Cal.4th 1046, 1059.) Consequently, no foul, no harm.

III. There Is Not a Reasonable Likelihood that the Jury Was Misled by the Trial Court's Response to a Jury Question

During deliberations, the jury asked the trial court: "Can we please receive instruction on how evidence/actions which occurred in Oregon should be used to determine our verdict in the California[] charges?"

The trial court responded with two instructions; nothing more is in the record.

The first instruction, which defendant does not challenge, concerned how to use evidence of an uncharged offense (the oral copulation in Oregon). This instruction told the jurors that they could use this evidence, if proved by the People, only to show whether defendant had an intent, motive, or plan to commit the kidnap for rape charge. The jury acquitted defendant of kidnap for rape.

The second instruction, which defendant does challenge, had two parts. The first part quoted section 207, subdivision (d) verbatim, which states in full: "Every person who, being out of this state, abducts or takes by force or fraud any person contrary to the law of the place where that act is committed, and brings, sends, or conveys that person within the limits of this state, and is afterwards found within the limits thereof is guilty of Kidnapping." The second part added: "The attorneys stipulate that the defendant's actions, if found by you to be true beyond a reasonable doubt, are contrary to the law of the State of Oregon."

Defendant argues that this second instruction (1) permitted him to be convicted of an uncharged offense (i.e., a § 207, subd. (d) kidnapping, rather than the charged § 207, subd. (a) kidnapping); (2) confused the jury with contradictory kidnapping instructions; and (3) was tantamount to a directed verdict or guilty plea. Defendant claims his kidnapping convictions and kidnapping-based one strike findings must be reversed on this basis. We disagree.

In reviewing an ambiguous instruction like the instruction challenged here, we determine whether there is "a reasonable likelihood" that the jury understood the instruction as defendant asserts. (People v. Cain (1995) 10 Cal.4th 1, 35-36; Estelle v. McGuire (1991) 502 U.S. 62, 72 [116 L.Ed.2d 385, 398-399].) In making this determination, we examine the instructions as a whole and the jury's findings. (Cain, supra, at p. 36.) As we shall explain, we see no "reasonable likelihood" of misunderstanding on the three grounds set forth by defendant.

First, there is not a reasonable likelihood that the jury used the challenged instruction to convict defendant of the uncharged offense of kidnapping under section 207, subdivision (d), rather than the charged offense of kidnapping under section 207, subdivision (a). The trial court properly instructed the jury with the elements of section 207, subdivision (a) kidnapping. (CALCRIM No. 1215 (new Jan. 2006).) The trial court also properly instructed on the one strike kidnapping allegations for the rape charge (§ 667.61, subds. (d), (e)), which repeated the section 207, subdivision (a) kidnapping elements already instructed upon and required the jury to find them to sustain the one strike allegations. (CALCRIM Nos. 3175, 3179 (new Jan. 2006).) The basic elements of these instructed-upon kidnapping charges comprised: the defendant takes and moves the victim a substantial distance by force or fear without the victim's consent, and the defendant does not reasonably believe the victim consented. In its verdict, the jury convicted defendant of kidnapping under section 207, subdivision (a), not subdivision (d); and also found true the one strike kidnapping allegations accompanying the rape charge, which, it bears repeating, required the jury to again find these elements of a section 207, subdivision (a) kidnapping.

In this instructional and verdict milieu, there is simply no reasonable likelihood that the jury ignored the full kidnapping instructions properly given by the trial court (§ 207, subd. (a)-based kidnapping), and instead convicted defendant of kidnapping pursuant to a cryptic instruction that the trial court gave only in response to the jury's question of what to do with the Oregon evidence/actions (§ 207, subd. (d)-based kidnapping). Such an approach would have made no sense: Why would the trial court instruct the jurors at length on all the elements of the charged kidnap, only to give them the "real" abridged instruction on that offense when they fortuitously happened to ask a tangential question on the subject? In this milieu, it is not surprising there is no showing the jury was confused by the challenged instruction.

Second, defendant contends the challenged instruction of section 207, subdivision (d) kidnapping confused the jury by contradicting the kidnapping instruction of section 207, subdivision (a). As defendant argues, the challenged instruction told the jurors they could find kidnapping based on force or fraud (§ 207, subd. (d)), and the instruction failed to include the consent defense upon which defendant relied. By contrast, the section 207, subdivision (a) kidnapping instruction the trial court gave required force or fear, and included defendant's defense: The alleged victims (his estranged wife and their three-year-old son) consented to the movement, and he reasonably believed they had consented.

We reject defendant's second contention for the same reasons we rejected his first. Furthermore, the prosecutor argued to the jury that defendant had used force or fear in the kidnappings, that the victims did not consent to the movement, and that defendant did not reasonably believe the victims had consented. Nor is this a case of contradictory instructions as in People v. Rhoden (1972) 6 Cal.3d 519, as defendant maintains. In Rhoden, the jury was instructed, as to the charged crime of kidnapping for robbery, that it both required movement and did not require movement. (Id. at pp. 525-526.)

Defendant's third contention centers on the stipulation part of the challenged instruction--"that the defendant's actions, if found by you to be true beyond a reasonable doubt, are contrary to the law of the State of Oregon." Defendant raises two concerns. First, defendant questions whether the term "actions" refers to the "actions" in the prosecution's case-in-chief or the "actions" defendant testified to in his own defense. There is not a reasonable likelihood, however, that the jury believed that the "actions" it found true beyond a reasonable doubt, and therefore contrary to law, amounted to defendant's defense to the charges. Defendant's second concern is that this stipulation amounted to a directed verdict tantamount to a guilty plea. If such were the case, though, the jury may well have wondered why it was deciding the kidnapping charges since defendant was conceding he was guilty of kidnapping. We agree with the Attorney General that the jury, instead, reasonably would have interpreted this stipulation to mean only "that the attorneys had agreed that if the jury found [defendant] guilty beyond a reasonable doubt of kidnapping under the previously given California law he would then be guilty under Oregon law" too. And viewed in this reasonable way, defense counsel did not render ineffective assistance in entering into the stipulation.

We conclude there is not a "reasonable likelihood" that the jury misunderstood the challenged instruction as defendant asserts.

IV. The Trial Court's Failure to Instruct on the Kidnapping of an Unresisting Child Was Harmless Beyond a Reasonable Doubt

Because a young child in A.C.'s position may not resist being physically taken in a kidnapping so as to meet kidnapping's force or fear element, the kidnapping of an unresisting child requires a distinct element: The defendant moved the child with an illegal intent or for an illegal purpose. (See CALCRIM No. 1201 (new Jan. 2006).)

The trial court failed to instruct the jury, on its own motion, on this distinct element concerning A.C.'s kidnapping. However, we agree with the Attorney General that this failure to instruct was harmless beyond a reasonable doubt based upon another finding by the jury. (Neder v. United States (1999) 527 U.S. 1, 7, 9-10 [144 L.Ed.2d 35, 45-48] [setting forth this standard of error under Chapman v. California (1967) 386 U.S. 18, 23-24 [17 L.Ed.2d 705] [failure to instruct on an element of a charged offense].)

The jury found beyond a reasonable doubt that defendant had abused or endangered the health of A.C. (§ 273a, subd. (b), a misdemeanor.) The only basis in the record for this abuse or endangerment arose out of the abduction. Since it was defendant's movement of A.C. that endangered the child, defendant moved A.C. with an illegal intent or for an illegal purpose, necessarily meeting this element that was not instructed upon (CALCRIM No. 1201).

V. Duplicative and Necessarily Included Offenses

The jury acquitted defendant of kidnapping for rape involving E.C. (count 1), but convicted him of several lesser included offenses to count 1: kidnapping (§ 207, subd. (a)); forcible spousal rape (§ 262, subd. (a)(1)); felony and misdemeanor false imprisonment (§§ 236, 237, subd. (a)); misdemeanor battery (§ 242); and misdemeanor assault (§ 240). In separate counts, the jury additionally convicted defendant of kidnapping E.C. and forcibly raping her (§§ 207, subd. (a) & 262, subd. (a)(1)--counts 4 & 2, respectively).

As for the duplicative offenses, there was one act of kidnapping E.C. and there was one act of forcibly raping E.C.; therefore, there is one conviction for kidnapping E.C. (§ 207, subd. (a)) and one conviction for forcibly raping her (§ 262, subd. (a)(1)). (People v. Coyle (2009) 178 Cal.App.4th 209, 217.) We will vacate the lesser included convictions to count 1 of kidnapping and forcible spousal rape (designated in the abstract of judgment as counts 1b & 1a).

As for the necessarily included offenses, false imprisonment is a necessarily included offense of kidnapping (People v. Morrison (1964) 228 Cal.App.2d 707, 713); and battery is a necessarily included offense of forcible rape (People v. Hughes (2002) 27 Cal.4th 287, 366), as is assault, by being a necessarily included offense of battery (People v. Colantuono (1994) 7 Cal.4th 206, 216-217). Consequently, we will also vacate the convictions for false imprisonment, battery and assault. (People v. Pearson (1986) 42 Cal.3d 351, 355 ["multiple convictions may not be based on necessarily included offenses"].)

VI. Section 654--Child Endangerment, Criminal Threats, Carjacking

Defendant contends that the sentences on these three convictions must be stayed under section 654. We disagree with respect to criminal threats and carjacking.

Section 654 prohibits multiple punishment for a single act that is punishable under multiple statutes. Judicial interpretation has expanded section 654 to apply to an indivisible course of conduct where all the offenses are incident to a single intent and objective. (People v. Latimer (1993) 5 Cal.4th 1203, 1207-1208, 1211.) We uphold a trial court's factual finding, express or implied, that a defendant had multiple independent criminal objectives, if that finding is supported by substantial evidence. (People v. Herrera (1999) 70 Cal.App.4th 1456, 1466.)

We agree with defendant, as does the Attorney General, that defendant's child endangerment sentence (a one-year concurrent sentence as a misdemeanor; § 273a, subd. (b)--count 7) must be stayed under section 654. As we explained in part IV above, the child endangerment offense was part and parcel of A.C.'s kidnapping.

We part ways with defendant, though, on the criminal threats and carjacking sentences (§§ 422, 215, subd. (a)--counts 9 & 6; respectively, eight months consecutive and nine years consecutive).

As for the criminal threats, their nature was gruesome (shooting E.C. twice in the head) and their utterance pervasive (repeated throughout the ordeal). Defendant's relationship with E.C. was a physically abusive one, which had prompted E.C. to obtain a restraining order and a legal separation, both in effect at the time of the present offenses. In line with his abusive pattern, defendant threw E.C. to the floor of the van when she failed to comply with his initial abduction demand to continue driving. During the abduction, defendant humiliated E.C. by having her orally copulate him in front of their son, demeaned her by calling her vulgar names, and pointedly told her that all he wanted was to be with A.C. and not her. This substantial evidence supports an implied factual finding that defendant's criminal threats were uttered, not simply to carry out the kidnapping, but to threaten E.C. independently as well.

Substantial evidence also supports an implied factual finding that the carjacking was undertaken, not simply to carry out the kidnapping, but for an independent reason too. During the abduction, defendant told E.C. that all he wanted was to be with A.C., and this was the "only way." Later, defendant reiterated to E.C. that he just wanted his son, not her; and he stated he was going to Mexico. The van supplied a "way" to Mexico without E.C. Furthermore, the van was not E.C.'s, but one she had been borrowing from a neighbor for some time; this could have helped avoid detection.

VII. Section 667.61 Rape Enhancements--One Strike Law

Section 667.61 sets forth California's one strike law. As relevant here, pursuant to that section, any person who is convicted of a sexual offense listed therein (forcible spousal rape is listed), under one or more of the circumstances specified in the section's subdivision (d), or under two or more of the circumstances specified in its subdivision (e), must be sentenced to a state prison term of 25 years to life. (§ 667.61, subds. (a), (c)(2); People v. Alvarado (2001) 87 Cal.App.4th 178, 186 (Alvarado).)

Pursuant to the single circumstance specified in section 667.61, subdivision (d)(2), the jury found that defendant committed the spousal rape by kidnapping E.C., which substantially increased her risk of harm above that inherent in the rape.

Pursuant to the two circumstances specified in section 667.61, subdivision (e)(1) and former subdivision (e)(6), respectively, the jury found that defendant committed the spousal rape by kidnapping E.C., and that defendant "engaged in the tying or binding of [E.C.] in the commission of the [spousal rape]."

The trial court used the single circumstance of kidnapping/increased risk found under section 667.61, subdivision (d)(2), to sentence defendant on the forcible spousal rape to 25 years to life. The two circumstances found under section 667.61, subdivision (e)(1) and former subdivision (e)(6) were not relied upon at sentencing, but were noted in a minute order as an additional basis for the one strike sentence under section 667.61.

Defendant contends the evidence is insufficient that he tied or bound E.C. in the commission of the rape (§ 667.61, former subd. (e)(6)), and therefore the jury's finding under section 667.61, subdivision (e), must be stricken. We agree.

The purpose of the one strike law is to provide an increased punishment for those sexual assaults carried out under circumstances that render the victim particularly vulnerable. (People v. Campbell (2000) 82 Cal.App.4th 71, 77-79; see Alvarado, supra, 87 Cal.App.4th at p. 186.) In applying this purpose of particular vulnerability to the former subdivision (e)(6) circumstance of tying or binding the victim in the commission of the offense, the tying or binding must facilitate the offense by further disabling the victim, impairing the victim's ability, for example, to flee or resist or summon help. (Campbell, supra, 82 Cal.App.4th at pp. 78-79.)

The evidence of the binding here does not meet this legal standard. That evidence shows that defendant taped E.C.'s hands behind her back with duct tape shortly after the abduction began, while in the Portland area. Defendant removed this restraint in Oregon somewhere between Corvallis and Medford. The parties stopped in Medford and in Ashland, with E.C. not bound. The rape did not occur until the parties were in California, somewhere near Mt. Shasta. E.C. was not bound at this point, and had not been since the restraint was removed in Oregon. The Attorney General's argument that E.C. was effectively under the influence of the binding when she was raped is inconsistent with the legal standard of binding in the commission of the rape, as described above.

We will strike the jury's finding of the circumstance of tying or binding under section 667.61, former subdivision (e)(6). Without this finding, any one strike sentence under section 667.61, subdivision (e) falls as well, because such a sentence requires two circumstances (§ 667.61, subd. (a)). Accordingly, the reference in the minute order stating that defendant was sentenced to 25 years to life under section 667.61, subdivision (e) is deleted.

None of this, however, affects defendant's indeterminate sentence of 25 years to life, which was properly imposed based on the single circumstance finding under section 667.61, subdivision (d)(2). (§ 667.61, subds. (a), (d).)

DISPOSITION

The following duplicative and lesser included convictions are vacated: forcible spousal rape (§ 262, subd. (a)(1)--count 1a); kidnapping (§ 207, subd. (a)--count 1b); felony false imprisonment (§ 236 & 237, subd. (a)--count 1c); misdemeanor false imprisonment (§ 236 & 237, subd. (a)); misdemeanor battery (§ 242); and misdemeanor assault (§ 240). The finding of tying or binding under section 667.61, former subdivision (e)(6) is stricken. The reference in the minute order to sentence under section 667.61, subdivision (e) is deleted. The one-year concurrent sentence for the misdemeanor child endangerment conviction (§ 273a, subd. (b)--count 7) is stayed under section 654. As so modified, the judgment is affirmed.

The trial court is directed to prepare an amended abstract of judgment (covering the vacated felony convictions of forcible spousal rape, kidnapping and false imprisonment) and an amended minute order (covering the vacated misdemeanor convictions of false imprisonment, battery and assault; the stricken finding of § 667.61, former subd. (e)(6); the deletion of § 667.61, subd. (e), as a basis to sentence under the one strike law; and the concurrent sentence for misdemeanor child endangerment stayed under § 654). The trial court is further directed to send a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.*fn2

We concur: NICHOLSON, Acting P. J. ROBIE, J.


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