People v. Ramirez CA1/5

Filed 2/19/14 P. v. Ramirez CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, Plaintiff and Respondent, A134597

v. JOSE ESTRADA RAMIREZ, (San Mateo County Super. Ct. No. SC072500A) Defendant and Appellant.

A jury convicted appellant Jose Estrada Ramirez of two counts of kidnapping and two counts of rape. On appeal, he contends (1) the trial court erred by restricting the substance of defense counsel’s closing argument, and (2) one of the kidnapping convictions is not supported by substantial evidence. We agree with appellant’s second contention, reverse one of his kidnapping convictions, and otherwise affirm. BACKGROUND Appellant was charged by information with one count of kidnapping (Pen. Code, § 207, subd. (a)1; count 1), one count of kidnapping to commit another crime (§ 209, subd. (b)(1); count 2), and two counts of forcible rape (§ 261, subd. (a)(2); counts 3 & 4) with the special circumstance allegation that appellant kidnapped the victim of the rapes (§ 667.61, subd. (e)(1)).

1 All further statutory references are to the Penal Code.

1

The victim, referred to at trial and herein as Maria Doe, testified as follows.2 Doe and appellant dated for approximately two to three years. Eventually, Doe informed appellant she was ending the relationship. The break up was not mutual. Shortly after Doe ended the relationship, she went to a party in Redwood City. Appellant came to the party and wanted to talk to Doe. Doe approached appellant as he stood next to a truck and, after a brief conversation, appellant physically forced Doe into the truck. Appellant told the driver, Daniel Moreno, to “take off fast.”3 In the truck, Doe and appellant argued and he refused to tell her where they were going. He hit her on the mouth and pulled her hair. They drove for about two hours, finally stopping in a secluded, rural location near Pleasanton. The area was wooded with no lights or houses nearby and no other cars on the road. It was approximately 10:00 p.m. and very dark. Appellant and Doe got out of the truck, and appellant told Moreno to leave. Appellant dragged Doe out of sight of the road, said she was going to pay for what she was doing to him, and raped her. Appellant then called Moreno and, about an hour later, Moreno returned in the truck. Doe got back in the truck because she was afraid of being left alone in the remote area. Moreno drove them to his house in Palo Alto. During the drive, Doe was bent down in the back seat, crying. In response to her cries, Moreno and appellant laughed and turned up the volume on the music. Appellant told Moreno Doe was paying for what she was doing to him. When they reached Moreno’s house, Moreno left the truck and appellant moved to the driver’s seat. Doe remained in the back seat and did not try to leave the truck because she was afraid. Appellant told her he would take her back home. At a certain point, Doe realized they were not on the way to her house. She tried to get out of the truck but appellant prevented her. After several hours in the truck, appellant raped Doe again. Eventually, the truck ran out of gas. Doe asked appellant to