CERTIFIED
FOR PARTIAL PUBLICATION[*]
APPEAL
from a judgment of the Superior Court of Tuolumne County No.
CRF51684, Kevin M. Seibert, Judge.
Joshua
L. Siegel, 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.
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 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.
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 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 16 years old, he told
people he communicated with on Whisper he was 17.
Doe and
Ramirez communicated for approximately three hours that day
on Whisper. Doe told Ramirez he was 17, and Ramirez told Doe
she was 38. The conversation became sexual after the first
hour and they began exchanging nude photographs of each
other. Ramirez suggested they continue their conversation on
a different app called “Snapchat, ” which is a
social media platform that allows users to exchange messages
and photographs.
During
the conversation, Ramirez suggested Doe come over to her
residence that night to have sex and sent him her address.
Doe told his mother he was going out for a run. Towards the
end of his run, he went to Ramirez's apartment, which was
close to his house.
Doe
knocked on Ramirez's door, and she let him in and led him
to her bedroom. They sat on Ramirez's bed and talked for
a while. Ramirez said she had two sons, one of whom was home
in his bedroom and had just built a new computer. Ramirez
also said she was a corrections officer at the prison, and
that she recognized the sweatshirt Doe was wearing, which was
for the shooting team he was on. She said she worked with one
of the team's coaches who also worked at the prison.
After
about 20 minutes, Ramirez and Doe began kissing and
“grabbing” each other. They then took their
clothes off and Ramirez orally copulated Doe and had vaginal
intercourse with him. After they finished, Doe put his
clothes back on and went home. Doe and Ramirez exchanged
messages later that night and joked about Doe not being a
virgin anymore. Doe went to Ramirez's apartment again the
next evening where Ramirez orally copulated him and had
intercourse with him again.
Between
August 15 and October 31, Ramirez and Doe had sex between 10
and 15 times. Ramirez's son was home about five of those
times. Doe and Ramirez also watched pornography together on
Ramirez's phone about three times. They continued to
exchange messages and photographs-Doe sent Ramirez sexual
photographs, and Ramirez sent him videos of her masturbating.
Once while they were having sex, Ramirez's son knocked on
the bedroom door and asked about dinner, and she told him it
was in the refrigerator and then continued having sex with
Doe. Another time, Doe's mother texted him while Ramirez
and he were having sex.
Two or
three times, Ramirez and Doe discussed how what they were
doing was illegal because Doe was a minor. Ramirez said she
could get into a lot of trouble if anyone found out. Ramirez
one time told Doe that she could be his “birthday
present” when he turned 18.
Doe
started ignoring Ramirez when he started school in early
September 2016 but eventually reinitiated contact with her.
He only saw her once or twice after that, including the last
time, which was on the evening of October 31.
Around
this time period, E.N. noticed Doe had apparently taken a new
interest in running, as he would go out running each morning
and then would often run again in the evening. However, E.N.
grew suspicious as this amount of running seemed excessive to
her. She eventually told Doe he could not run anymore without
a running partner. E.N. also attended night classes on
Mondays and Wednesdays from 6:00 p.m. to 9:00 p.m, and she
began dropping Doe off at the home of family friends on her
way to class due to her mistrust. Doe's best friend,
Steven, lived at this house.
On
October 31, E.N. dropped Doe off at Steven's house. E.N.
told Steven's mother that Doe had been disappearing. Doe
contacted Ramirez that evening and asked if he could come
over. Ramirez said he could come over once her son was in his
room. Once Doe got the message from Ramirez that he could
come over, Doe left his phone and house keys with Steven and
went to Ramirez's apartment and had sex with her.
Meanwhile,
E.N. arrived at her class and learned it had been canceled,
so she went home. While she was home, Steven walked into her
house alone. E.N. asked Steven where Doe was, and Steven said
Doe went jogging. Steven said his mother dropped him and Doe
off at Doe's house, and Doe gave his cell phone and house
keys to Steven. E.N. was suspicious. She drove around
Doe's usual running route but could not find him. She
returned home, took Doe's phone from Steven, and saw a
message from a person named “Kimmy” that said,
“The kids are gone, you can come over.” She sent
a message with Doe's phone to “Kimmy” asking,
“Where is my son?” She told Steven to get in the
car with her and Steven directed her to the apartment complex
where Doe had said he was going.
Ramirez
saw the message from Doe's mother while Doe was still in
her apartment. She asked Doe if the message was from
Doe's mother or his friend, and Doe said he did not know.
This is when Ramirez said, “I could get in a lot of
trouble for this.” Doe left and began running home.
When he was about half way, he saw his mother driving with
Steven in the car. Doe got in the car and eventually admitted
he had been having sex with a 38-year-old woman.
E.N.
went to Ramirez's apartment complex and tried
unsuccessfully to locate her before calling the police. An
officer arrived and spoke with Doe and E.N. Doe described
Ramirez's height, hair color, and two of her tattoos. Doe
said Ramirez had a third tattoo, but he could not describe
it. He never mentioned Ramirez having a scar. Doe then led
the officer to Ramirez's apartment. The officer made
contact with Ramirez after Doe left the scene.
The
officer testified Ramirez was “visibly nervous”
when answering questions and at times seemed at a loss for an
answer. Ramirez told the officer she did not know anyone with
Doe's name or matching his description. When asked if she
had recently had sex with anyone, she said she had been
conversing with three different men online and had recently
had sex with only one of them but denied any of these men
matched Doe's description. Ramirez had tattoos matching
what Doe had described. Ramirez was placed under arrest.
The
officer conducted a second interview with Doe the next day.
While Doe originally told the officer on October 31 that he
had started having sex with Ramirez in June, he later said it
started in August. The officer also had Doe draw a crude map
of Ramirez's apartment, which the officer later testified
was generally accurate.[5] The officer went to Ramirez's
apartment a day or two later to take pictures and seize her
cell phone. Ramirez's phone had the Whisper app
installed.
The
officer reviewed Doe's phone and saw messages exchanged
in August 2016 between Doe and someone named
“Kimmy.” The officer took photographs of these
messages, and Doe later testified these messages were between
him and Ramirez. Doe estimated these messages comprised about
60 percent of the messages he had exchanged with Ramirez.
In
these messages, Doe told Ramirez, “I do have a mom and
it's going to be interesting.” Ramirez messaged
Doe, “Here is my address, ” followed by the
address where the officer contacted Ramirez on October 31.
Later, Ramirez messaged Doe, “I think you want to do
everything.” Doe responded, “We did.”
Ramirez replied, “Maybe too much too soon.” After
that, Doe said, “Your ass was too tight.” Ramirez
said, “If you're going to fuck my ass, we need
lubricant and you have to go slow.”
Police
obtained a search warrant for Doe's Snapchat account. The
information received from Snapchat showed 30 logged
communications between Doe's account and an account named
“Kim.daisy78.” These communications occurred
between October 27 and November 1, 2016 UTC (Coordinated
Universal Time).
Defense
Evidence
Ramirez
testified in her own defense and denied having sex with Doe.
She had recently been divorced and had been using dating apps
but did not recognize Doe from any photographs she had ever
exchanged and did not remember interacting with him. She was
having a sexual relationship with a 25-year-old man named
Kevin, but never had a man over for sex while her son was
home.
Ramirez
testified she had an IUD implanted into her uterus on October
9, which caused pain and heavy bleeding that prevented her
from having sex for a month following the procedure.
Ramirez
had a total of five tattoos, a few of which would be visible
depending on what type of clothing she was wearing, as well
as a two-inch long scar on her labia.
Ramirez
worked as a corrections officer at a prison about a half hour
drive from her home. She said she had been working extra
shifts two or three times per week between August and
November 2016. Her work schedule showing the hours she had
worked during this period was admitted into evidence.
She
explained the diagram Doe drew of her apartment was not
accurate as it was missing one of the rooms. She also said
she had posted on her Facebook page about her son building a
computer.
She
testified she no longer locked her apartment because one time
she accidentally locked her son out. She also had sometimes
used the swimming pool at her apartment complex, during which
times her tattoos would have been visible.
Ramirez's
13-year-old son also testified on her behalf. He testified he
had never seen Doe before and said he had never seen his
mother bring any men ...