Opinion
C082061
05-04-2020
THE PEOPLE, Plaintiff and Respondent, v. MIGUEL A. RAMIREZ, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 14F05783)
Defendant Miguel A. Ramirez appeals his conviction for continuous sexual abuse of a child under the age of 14 years. He argues the trial court incorrectly instructed that the offense charged was a general intent crime and only required one improper act. He also contends the cumulative effect of the errors was prejudicial. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
This matter concerns defendant's sexual abuse of E. Doe. Defendant lived with his partner and her children, including Doe. Though defendant and Doe's mom were not married, the family treated them as married and Doe considered defendant her stepdad.
The abuse began when she was 12 years old, in "5th, probably going into the 6th grade." It started with defendant touching Doe's breasts and thighs over her clothes, which he did again a couple of days later. Doe said it "would go like a couple of days after he would touch me and then it was -- days went by and he would touch me again." The abuse progressed to defendant touching Doe's vagina when she was in the sixth grade and defendant attempting to put his penis in Doe's vagina in sixth or seventh grade. Defendant first penetrated Doe when she was in the seventh grade. After the first time, defendant and Doe had sex upwards of two or three times a week through her 14th birthday. They continued to regularly have sex through eighth and ninth grade.
Doe was held back in first grade so she turned 13 years old in sixth grade (December 2010) and turned 14 years old in seventh grade (December 2011).
Defendant continued to have sex with Doe until August 16, 2014, when Doe's mother walked in on the two having sex. Doe's mother called the police and defendant was arrested. Doe originally lied to the police and a doctor, telling them she never had sex with defendant before August 16, 2014.
Defendant denied any sexual relationship with Doe. He said he never had oral sex with Doe, never touched her vagina, and never touched her breasts. He admitted to having sex with Doe on August 16, 2014, but said Doe initiated the sex while he was asleep and he thought Doe was her mother because he had his eyes closed. Doe and her mother have similar physical builds.
Defendant was charged with 12 counts related to his sexual conduct with Doe. The only charge at issue on this appeal was for continuous sexual abuse of a child under 14 years old. (Pen. Code, § 288.5, subd. (a).)
All further section references are to the Penal Code unless otherwise specified.
The trial court instructed the jury with CALCRIM No. 1120 describing continuous sexual abuse, requiring the prosecution to establish defendant "engaged in three or more acts of lewd or lascivious conduct with the child" before she turned 14 years old, with "lewd or lascivious" defined as "willful touching of a child accomplished with the intent to sexually arouse the perpetrator or the child." The instruction added, "You cannot convict the defendant unless all of you agree that he committed three or more acts over a period of at least three months, but you do not all need to agree on which three acts were committed."
The court provided a CALCRIM No. 252 intent instruction stating the "following crimes require general criminal intent: 1) Violation of Section 288.5(a) of the Penal Code (continuous sexual abuse of a child)." The court also gave the CALCRIM No. 3051 unanimity jury instruction, which stated:
"The defendant is charged with: [¶] Continuous sexual abuse in Count One sometime during the period of December 23, 2009 to December 21, 2011; [¶] . . . [¶] "The People have presented evidence of more than one act to prove that the defendant committed these offenses. You must not find the defendant guilty unless: [¶] 1. You all agree that the People have proved that the defendant committed at least one of these acts and you all agree on which act he committed for each offense; [¶] OR [¶] 2. You all agree that the People have proved that the defendant committed all the acts alleged to have occurred during this time period and have proved that the defendant committed at least the number of offenses charged."
The prosecutor explained in his closing argument for continuous sexual abuse the jury must find defendant had the "intent to sexually arouse himself . . . it's not just the touching, but you got to have that intent." He added, "You do not need to agree which acts were committed. You just all need to agree that three were committed."
The jury found defendant guilty on all counts. Defendant timely appealed.
DISCUSSION
Defendant contends the court made two errors in its jury instructions for continuous sexual abuse. First, defendant argues the court prejudicially erred by instructing the jury continuous sexual abuse was a general intent crime. Second, defendant contends the court also prejudicially erred by instructing the jury it needed unanimous agreement as to only one act for continuous sexual abuse. Defendant also argues these errors are cumulatively prejudicial.
I
Instructional Error
We review claims of instructional error de novo. (People v. Manriquez (2005) 37 Cal.4th 547, 581.) "When considering a claim of instructional error, we review the challenged instruction in the context of the instructions as a whole and the trial record to determine whether there is a reasonable likelihood the jury applied the instruction in an impermissible manner." (People v. Houston (2012) 54 Cal.4th 1186, 1229.) "Where two inconsistent instructions are given and one is correct and the other is wrong, an appellate court cannot speculate which one the jury followed." (People v. Dollar (1991) 228 Cal.App.3d 1335, 1342.) " '[A]ny theoretical possibility of confusion [may be] diminished by the parties' closing arguments.' " (People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1220, abrogated on other grounds by People v. Rangel (2016) 62 Cal.4th 1192.)
A
Intent Instructions
Reviewing the instructions and the record as a whole, the intent instruction is incorrect, but this error was harmless.
Section 288.5, subdivision (a), may be violated by three or more acts of either "substantial sexual conduct" or "lewd or lascivious conduct." (§ 288.5, subd. (a).) The former requires general intent and the latter requires the specific intent of "arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child." (§ 288, subd. (a).) The charge here was based on "lewd or lascivious" acts. Therefore, the CALCRIM No. 252 instruction incorrectly stated the offense was a general intent offense.
Giving conflicting intent instructions for a specific intent crime is instructional error. (People v. Dollar, supra, 228 Cal.App.3d at p. 1342; People v. Hood (1969) 1 Cal.3d 444, 452.) Thus, although the CALCRIM No. 1120 instruction correctly required defendant to have had the specific intent to "sexually arouse the perpetrator or the child," this instruction did not remedy the error.
This error, however, did not prejudice defendant. "If conflicting instructions on the mental state element of an alleged offense can act to remove that element from the jury's consideration, the instructions constitute a denial of federal due process and invoke the Chapman 'beyond a reasonable doubt' standard for assessing prejudice." (People v. Maurer (1995) 32 Cal.App.4th 1121, 1128; Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710-711].) "[S]uch an error is deemed harmless when a reviewing court, after conducting a thorough review of the record, 'concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence.' " (People v. Aranda (2012) 55 Cal.4th 342, 367.)
There is no reasonable possibility the jury could have found defendant lacked the requisite intent. Defendant's acts towards Doe before she turned 14 years old were touching her breasts, touching her vagina, attempting to put his penis in her vagina, having intercourse, and a combination of these acts at the same time. In only very limited circumstances, not present here, would these inherently sexual acts be committed without the intent of sexual arousal. Defendant provided no explanation for any acts before Doe turned 14, instead denying they occurred at all. There is no evidence from which the jury could have found defendant had any intent for these acts other than for his own sexual arousal. (See People v. Ngo (2014) 225 Cal.App.4th 126, 163 [concluding evidence of sexual penetration without an explanation from the defendant enough to conclude the jury must have found the defendant did so with the specific intent for sexual arousal].) The correct specific intent instruction in CALCRIM No. 1120 and the prosecutor's correct statements on specific intent make it all the more certain that the jury found defendant committed continuous sexual abuse with the necessary intent. Accordingly, the conflicting intent instructions did not prejudice defendant.
Defendant provided an explanation for the intercourse with Doe on August 16, 2014, but this occurred after Doe turned 14 so could not be considered for the continuous sexual abuse charge. --------
B
Unanimity Instruction
Reviewing the instructions and record as a whole, there was no instructional error relating to the unanimity of acts. Initially, the trial court did not even need to provide a unanimity instruction for continuous sexual abuse because it is a course of conduct crime. (People v. Cissna (2010) 182 Cal.App.4th 1105, 1124.) The issue is whether the trial court's unanimity instruction permitted the jurors to find violation of section 288.5, subdivision (a), on only one act.
The CALCRIM No. 3501 unanimity instruction, which specifically included continuous sexual abuse, specified the jury could "not find the defendant guilty unless" they agreed defendant "committed at least one of these acts and you all agree on which act he committed for each offense." (Italics added.) This was not erroneous, however, because continuous sexual abuse was listed in the CALCRIM No. 3501 instruction as "[c]ontinuous sexual abuse." This means the "act" the jury had to find defendant committed was "continuous" abuse, which was properly defined in the CALCRIM No. 1120 instruction as three or more lewd or lascivious acts. Conversely, the other counts listed in the unanimity instruction only had one "act" listed, such as "Lewd act with a child age 14-15" and "Unlawful sexual intercourse with a minor." The instructions necessarily instructed the jury that it could not find one lewd or lascivious act sufficient for continuous sexual abuse. This was also reaffirmed in the prosecutor's closing argument. Accordingly, there is no reasonable likelihood the jury applied the instruction in an impermissible manner.
II
Cumulative Instructional Error
Defendant finally contends the instructional errors were cumulatively prejudicial even if individually harmless. We have found just one instructional error: mischaracterizing continuous sexual abuse as a general intent crime when it is, in fact, a specific intent crime. We found the error harmless. (See section IA, ante) As there are no other instructional errors, the contention the instructional errors are cumulatively prejudicial necessarily fails. (See People v. Rogers (2006) 39 Cal.4th 826, 890 ["Because this error standing alone did not render the trial fundamentally unfair, reversal is not required"].)
DISPOSITION
The judgment is affirmed.
/s/_________
RAYE, P. J. We concur: /s/_________
MURRAY, J. /s/_________
KRAUSE, J.