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The PEOPLE, Plaintiff and Respondent, v. Kimberly Daisy RAMIREZ, Defendant and Appellant.
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 (former § 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.
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. When 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 halfway, 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's 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).
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 home and had never heard his mother having sex.
The arresting officer testified that when he was driving Ramirez to jail, Ramirez spontaneously said, “What if he's lying? Will he get in trouble?” She also said, “What if I didn't know his age?” And she said, “What if he lied to me?”
I.-III.** [NOT CERTIFIED FOR PUBLICATION]
IV. Lesser Included Offense
Ramirez argues her conviction for arranging a meeting with a minor for lewd purposes under section 288.4, subdivision (a) (count 15) must be reversed because it is a lesser included offense of the crime of meeting with a minor for lewd purposes under section 288.4, subdivision (b) (count 14). The People concede, and we agree.
A defendant cannot be convicted of both a greater offense and a lesser included offense. (People v. Reed (2006) 38 Cal.4th 1224, 1227, 45 Cal.Rptr.3d 353, 137 P.3d 184; People v. Cole (1982) 31 Cal.3d 568, 582, 183 Cal.Rptr. 350, 645 P.2d 1182.) “Under California law, a lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser.” (People v. Birks (1998) 19 Cal.4th 108, 117, 77 Cal.Rptr.2d 848, 960 P.2d 1073.) In deciding whether a defendant may be convicted of multiple charged crimes, courts use only the “statutory elements test;” the “accusatory pleading test” is not applicable in this context. (Reed, at p. 1231, 45 Cal.Rptr.3d 353, 137 P.3d 184.)
Section 288.4, subdivision (a)(1) provides:
“Every person who, motivated by an unnatural or abnormal sexual interest in children, arranges a meeting with a minor or a person he or she believes to be a minor for the purpose of exposing his or her genitals or pubic or rectal area, having the child expose his or her genitals or pubic or rectal area, or engaging in lewd or lascivious behavior, shall be punished by a fine not exceeding five thousand dollars ($5,000), by imprisonment in a county jail not exceeding one year, or by both the fine and imprisonment.”
Section 288.4, subdivision (b) provides:
“Every person described in paragraph (1) of subdivision (a) who goes to the arranged meeting place at or about the arranged time, shall be punished by imprisonment in the state prison for two, three, or four years.”
As the parties acknowledge, section 288.4, subdivision (b) incorporates all of the elements of subdivision (a)(1), and therefore a person who violates subdivision (b) necessarily violates subdivision (a)(1) as well. Thus, subdivision (a)(1) is necessarily an included offense of subdivision (b).
CALCRIM No. 1126
We publish this part IV of our discussion to clarify a point of uncertainty presently found in the Bench Notes of CALCRIM No. 1126, which is the instruction given for charged violations of section 288.4, subdivision (b). The Bench Notes observe:
“It is unclear how violations of Pen. Code, § 288.4(b), which involve actually going to an arranged meeting, correlate to violations of Pen. Code, § 288.4(a) (cf. CALCRIM No. 1125, Arranging Meeting With Minor for Lewd Purpose). Violations of section 288.4(a) may be lesser included offenses of violations of section 288.4(b). In the alternative, a violation of section 288.4(b) could be characterized as sentence enhancement of a violation of section 288.4(a). This matter must be left to the trial court's discretion until courts of review provide guidance.” (CALCRIM No. 1126.)
We conclude violations of section 288.4, subdivision (b) are not sentence enhancements of violations of section 288.4, subdivision (a), but rather that violations of section 288.4, subdivision (a) are lesser included offenses of violations of section 288.4, subdivision (b).
By definition, “[a] sentence enhancement is ‘an additional term of imprisonment added to the base term.’ [Citation.] An example would be subdivision (a) of section 12022.7, which provides that any person who personally inflicts great bodily injury in the commission of a felony shall ‘be punished by an additional term of three years ․’ (Italics added.) As this court has explained, enhancements ‘ “focus on an element of the commission of the crime or the criminal history of the defendant which is not present for all such crimes and perpetrators and which justifies a higher penalty than that prescribed for the offenses themselves.” ’ ” (People v. Jefferson (1999) 21 Cal.4th 86, 101, 86 Cal.Rptr.2d 893, 980 P.2d 441.)
As Ramirez observes, section 288.4, subdivision (b) makes no reference to the sentence provided in subdivision (a)(1). For example, subdivision (b) does not provide for an additional term of imprisonment if the defendant goes to the arranged meeting place at or about the arranged time. Rather, violators of subdivision (b) are sentenced under a triad—two, three, or four years in state prison—that is independent of the possible sentence for violation of subdivision (a)(1)—imprisonment in county jail for up to one year, a fine, or both the fine and imprisonment. We hold that a violation of section 288.4, subdivision (a) is a lesser included offense of section 288.4, subdivision (b).
V. Section 654 *** [NOT CERTIFIED FOR PUBLICATION]
The conviction on count 15 is reversed as a lesser included offense of count 14. The matter is remanded for resentencing. On remand, the trial court is to choose a new principal term and stay the sentences on counts 13 and 14 under section 654. In all other respects, the judgment is affirmed.
Appellant's petition for review by the Supreme Court was denied February 19, 2020, S260203.
1. Undesignated statutory references are to the Penal Code.
2. The conviction for arranging a meeting with a minor for lewd purposes would be the third sentence stayed under section 654 but for the fact it is otherwise being reversed as a lesser included offense.
3. John Doe was 16 years old at the time of the crimes.
4. References to dates are in 2016 unless otherwise noted.
5. At trial, Doe drew another diagram of her apartment that was more consistent with how he remembered her apartment.
Franson, Acting P. J., and Meehan, J., concurred.
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Docket No: F076911
Decided: December 17, 2019
Court: Court of Appeal, Fifth District, California.
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