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People v. Ramirez

California Court of Appeals, Fifth District

December 17, 2019

The PEOPLE, Plaintiff and Respondent,
v.
Kimberly Daisy RAMIREZ, Defendant and Appellant.

         [CERTIFIED FOR PARTIAL PUBLICATION] [*]

Page 539

         [256 Cal.Rptr.3d 734] APPEAL from a judgment of the Superior Court of Tuolumne County. Kevin M. Seibert, Judge. (Super. Ct. No. CRF51684)

         COUNSEL

         Joshua L. Siegel, Santa Monica, under appointment by the Court of Appeal, for Defendant and Appellant.

         Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lewis A. Martinez and Ian Whitney, Deputy Attorneys General, for Plaintiff and Respondent.

          OPINION

         SNAUFFER, J.

Page 540

          Defendant Kimberly Daisy Ramirez was convicted by a jury of several offenses stemming from a sexual relationship she had with a 16-year-old boy, namely: three counts of unlawful sexual intercourse with a minor, and one count each of oral copulation with a minor, contacting a minor with the intent to commit a sexual offense, arranging a meeting with a minor for lewd purposes, and meeting with a minor for lewd purposes.

         She raises five contentions on appeal: (1) The prosecutor committed prejudicial misconduct by misstating the burden of proof during closing argument; (2) the trial court prejudicially erred by giving conflicting jury instructions on the element of motive for two of the crimes; (3) even if individually insufficient to warrant reversal, the cumulative effect of the errors in claims (1) and (2) requires reversal; (4) her conviction for arranging a meeting with a minor for lewd purposes should be reversed as a lesser included offense of meeting with a minor for lewd purposes; and (5) the sentences imposed in three of the counts should be stayed under Penal Code section 654.[1]

         We agree with Ramirez’s fourth and fifth contentions only. We accordingly reverse her conviction for arranging a meeting with a minor for lewd purposes, and remand for resentencing. On remand, the trial court shall stay

Page 541

the imposition of sentence on her convictions for contacting a minor for lewd purposes and meeting with a minor for lewd purposes.[2] In all other respects, we affirm.

         [256 Cal.Rptr.3d 735] STATEMENT OF THE CASE

          On December 16, 2016, the Tuolumne County District Attorney filed an information charging Ramirez with 10 counts of unlawful sexual intercourse with a minor (� 261.5, subd. (c); counts 1-10); sodomy with a minor (� 286, subd. (b)(1); count 11), oral copulation with a minor (� 288a, subd. (b)(1); count 12); contacting a minor with intent to commit a sexual offense (� 288.3, subd. (a); count 13); meeting with a minor for lewd purposes (� 288.4, subd. (b); count 14); and arranging a meeting with a minor for lewd purposes (� 288.4, subd. (a); count 15).

          The jury found Ramirez guilty on counts 5, 6, 10, and 12 through 15. The jury found Ramirez not guilty on counts 7, 9, and 11. The prosecution did not submit counts 1 through 4 or count 8 to the jury, and those counts were dismissed following the verdict.

          On November 29, 2017, Ramirez was sentenced to an aggregate term of six years in state prison as follows: three years on count 14 (the principal term for sentencing purposes), eight months on count 5, eight months on count 6, eight months on count 10, eight months on count 12, and four months on count 13. She was also sentenced to a term of 180 days on count 15 to run concurrently with the term on count 14.

          On January 25, 2018, Ramirez filed a timely notice of appeal.

          FACTS

          Prosecution’s Evidence

         In June 2016, 16-year-old John Doe moved to Sonora with his mother, E.N.[3] They initially moved in with family friends, then moved into a house of their own in August 2016. Doe’s parents had recently divorced, and the divorce negatively impacted him; he was struggling with depression, had experienced thoughts of suicide, and had been receiving counseling. Doe had

Page 542

been home schooled and told his mother he would prefer to remain home schooled rather than enroll in the local high school.

         In the summer of 2016, Doe got an iPhone. Around August 15, 2016,[4] Doe downloaded an application called "Whisper," a social media platform that allows users to communicate anonymously. He started communicating with several "random people" on the app on August 15, including Ramirez. Although he was only ...


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