FOR PARTIAL PUBLICATION] [*]
Cal.Rptr.3d 734] APPEAL from a judgment of the Superior Court
of Tuolumne County. Kevin M. Seibert, Judge. (Super. Ct. No.
L. Siegel, Santa Monica, under appointment by the Court of
Appeal, for Defendant and Appellant.
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.
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
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.
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. In all other respects, we affirm.
Cal.Rptr.3d 735] STATEMENT OF THE
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).
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
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.
January 25, 2018, Ramirez filed a timely notice of appeal.
2016, 16-year-old John Doe moved to Sonora with his mother,
E.N. 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
summer of 2016, Doe got an iPhone. Around August 15,
2016, 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 ...