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People v. Moranchel5/21/2003
NOT TO BE PUBLISHED
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
A jury convicted defendant Gontran Vivaldo Moranchel of kidnapping to commit rape. He was sentenced to state prison for life with possibility of parole. (Pen. Code, § 209, subd. (b)(1).)
On appeal, defendant contends the prosecutor committed prejudicial misconduct in his closing summation. We shall affirm the judgment.
FACTS
On June 17, 2001, at approximately 7:30 a.m., Julie Questa and Tanya Valdez were on the porch of Questa's residence. Both women saw defendant walking on a nearby sidewalk. Valdez then saw Norma D. staggering on the street and walking toward defendant. As soon as she met up with him, she fell to the ground, and he tried unsuccessfully to pick her up. Stepping behind her with her back to his chest, he put his arms under her armpits and dragged her backwards down a driveway, behind a vacant neighboring residence, and out of Valdez's sight.
Valdez followed defendant's path and found Norma and him behind the neighboring residence. Valdez could see only a little part of Norma's legs and feet. She was lying on her back, and defendant was right on top of her, straddling her. His pants appeared to be loosened, and his boxer shorts were visible.
Concerned for Norma's safety, Valdez approached three men on a nearby sidewalk. She told them what she had observed and opined that Norma was being raped. The foursome then proceeded to the back of the residence where Norma had been dragged. As they approached, defendant had his pants down around his knees and his boxer shorts down past the top of his buttocks. Defendant was on top of Norma, with his pelvic area making a "humping motion" into her body. Norma was lying under defendant with her pants and underwear pulled down and her buttocks exposed.
Two of the men pulled defendant off of Norma. Defendant tried to flee, but the men detained him until the police arrived. During the struggle, the men saw a knife on the ground next to defendant's leg. They believed the knife had fallen from defendant's pocket.
While defendant was being detained, Questa arrived on the scene and attempted to assist Norma, who appeared unconscious. Questa pulled up Norma's pants.
Norma was taken to a hospital at 11:00 a.m. The physician on duty was unable to awaken her until approximately 2:49 p.m. Her blood- alcohol level at the hospital was 0.27.
Norma did not know defendant. She had too much to drink the night before, and the next thing she remembered was waking up in the hospital.
The defense rested without presenting any evidence or testimony.
DISCUSSION
Defendant contends the prosecutor committed prejudicial misconduct on two occasions during his closing summation. Neither claim has merit.
I. Polly Klass and Onion Field Cases
Background
The jury was instructed that " idnapping is the unlawful movement by physical force of a person without that person's consent for a substantial distance where the movement is not merely incidental to the commission of the [rape] and where movement substantially increases the risk of harm to the person moved over and above that necessarily present in the crime of rape itself." (CALJIC No. 9.54 (2001 rev.); see Pen. Code, § 209.)
Defense counsel argued in his summation that kidnapping for rap
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