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People v. Ruiz

California Court of Appeals, Fifth District
Feb 9, 2011
No. F059188 (Cal. Ct. App. Feb. 9, 2011)

Opinion

NOT TO BE PUBLISHED

Appeal from a judgment of the Superior Court of Kern County, No. BF125253A, Michael E. Dellostritto, Judge.

Jerome P. Wallingford, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and J. Robert Jibson, Deputy Attorneys General, for Plaintiff and Respondent.


OPINION

Gomes, Acting P.J.

A jury found Ricardo Ruiz guilty of one count each of continuous sexual abuse and lewd or lascivious conduct involving his former stepdaughter. On appeal, he argues instructional issues and cumulative prejudice. We reverse as to the continuous sexual abuse but otherwise affirm the judgment.

PROCEDURAL BACKGROUND

On December 4, 2008, an information charged Ruiz with continuous sexual abuse (count 1; Pen. Code, § 288.5, subd. (a)) and lewd and lascivious acts (count 2; § 288, subd. (c)(1)). On September 1, 2009, a jury found him guilty as charged. On October 30, 2009, the court sentenced him to the 12-year midterm on the continuous sexual abuse and to a consecutive eight-month term (one-third the midterm) on the lewd and lascivious acts.

Later statutory references are to the Penal Code.

FACTUAL BACKGROUND

For brevity, not from disrespect, later references to appellant Ricardo Ruiz, his former wife Martha Ruiz, his daughter Johanna Ruiz, and his son Jose Ruiz, all of whom testified, are by first name only.

1. Police Testimony

Bakersfield Police Officer Blake Brown testified he interviewed D.G., Ricardo’s former stepdaughter, on September 16, 2008, about her allegations of “potential sexual misconduct.” Before he began the interview, D.G. said, “I’m almost 18 years old now, and if nothing is going to happen to him, I don’t want to do this.” She said things got “cloudy” and she forgot “some details” after she initially told her mother a couple of weeks before the interview. She said Ricardo put his hand beneath her underwear and touched her vagina at age five and touched her “on her butt and chest” on and off for the next 10 years but the touching stopped two years ago. She did not complain about any other kind of behavior.

As the prosecutor argued to the jury, the evidence of the “incident that occurred when [D.G.] was five years old … in Los Angeles County” was admitted only to help the jury “determin[e] the timeline” and “understand [her] ability to recall things.”

Bakersfield Police Detective Lance O’Nesky testified he interviewed D.G. on September 29, 2008. She said Ricardo reached under her pants and rubbed the skin of his hand against the skin of her buttocks at age five. He asked if he touched any other part of her at that time. She said he did not. She said he rubbed her breasts on the outside of her clothes on “more than ten occasions” and that he rubbed her breasts underneath her clothes on “about three occasions” from about age 10 or 11 to about age 13. She said he rubbed his erect penis against her vaginal area while they were both wearing their clothes on “at least four occasions” from about age 13 to about age 15. She said he sometimes pinned her against the bed or the wall while doing that. She said he kissed her on the mouth with his tongue “somewhere between 1 and 50 times” from about age 12 to about age 15. He told her not to tell anyone after he touched her. The last time he tried to touch her, at about age 15, she tried to punch him.

2. Pretext Call

On September 29, 2008, D.G. placed a pretext call to Ricardo at Detective O’Nesky’s request. The jury received transcripts of the call and listened to a recording of the call.

At the outset, D.G. told Ricardo, “I wanted to know … why you did what you did when I was little.” He said, “I don’t remember what I did.” He told her, “But I’m sorry if I bothered you or something I did wrong to you.” She asked him, “What are you sorry about?” He answered, “I don’t know.” She told him, “You would always grab my breasts when mom wasn’t around.” “And you’d always … rub your penis … up against me, ” she added. He said, “I just wanted … to hug you and all that. Like if you were my daughter, you know.” She told him, “You would always kiss me with your tongue in my mouth.” He answered, “I never did that.” She insisted he did. He told her he did not remember doing that.

“Do you remember the first time you … ever touched me … inappropriately?, ” D.G. asked Ricardo. “Not that I can remember, ” he replied. “You stuck your hands in my … pajamas. And you started rubbing my butt. You can’t tell me you can’t remember all that, ” she said. “I don’t, ” he told her. She said, “I was only like around five years old.” He insisted he did not remember but said he was “sorry, ” “confused, ” and “hurt, ” adding, “I don’t know... what’s wrong with my head.” She said, “Your … penis was always hard when you’d rub against me.” He replied, “I don’t know what to say.” Shortly afterward, he said, “I’m real sorry, ” and, “I just don’t remember.” She asked him, “So then you’re sorry for nothing?”

D.G. asked Ricardo how he could forget grabbing her breasts under her shirt “all these times.” He said he did not remember. “Why are you denying the truth?, ” she asked. “I ain’t denying no truth, ” he replied. “Why, are you recording me or what?” “No, ” she said, telling him she was at home. “I wish … I could tell you something, ” he said. “I just want to be … somebody there that can... watch for everybody.” “You didn’t do a good job at that, ” she replied. “I know, ” he acknowledged. “You could fix it if you just say all the things you did, ” she said, adding, “So I can just … move on with my life.”

Ricardo asked D.G., “When can I talk to you in person?” She told him she did not want to do that. “You should have talked to me that day … when I left, ” he said. “What did mom tell you?, ” she asked. “She just told me I had to leave, ” he said. “She had to give you a reason why, ” she replied. He said she told him D.G. said “this and that” to her mother but he said he did not remember. “If something wrong happened, ” he said, “maybe it’s true.”

3. D.G.’s and Mother’s Testimony

D.G. testified Ricardo put his hands in her pants and touched and rubbed her butt with skin-to-skin contact on one night when she was about five or six. Before she told Detective O’Nesky that Ricardo touched her butt she might have told a uniformed police officer that he touched her vagina. He did not touch her again for a while.

At about age eight, nine, or 10, Ricardo put his hands on her breasts (sometimes on her skin and sometimes over her shirt), put his hands on her butt, and kissed her on the mouth whenever her mother was not around. When she was in the fifth and sixth grade, he touched her breasts and kissed her with his tongue in her mouth, although he no longer touched her butt. The touching stopped for a while. More than once or twice, at about age 15, he pushed her onto her bed or against the wall and pressed his erect penis against her. Afterward he told her not to tell anyone and even gave her money to stay quiet.

Once at about age eight, D.G. told her mother about the things Ricardo was doing. Afterward, two people visited her at her school, asked her to circle on a paper with an outline of a body the parts she thought were inappropriate for a person to touch a child, and asked her if anyone ever touched her inappropriately. She remembered circling the inappropriate places but did not remember talking with those people. The second time she told her mother about those things, just before she was 18, she “decided to let it out.”

D.G.’s mother Martha testified she told Ricardo to move out, and he did, after D.G. told her when she was about five that Ricardo kissed her. Child Protective Services (CPS) conducted an investigation, but nothing came to pass. Later, Ricardo moved back in with them. On August 24, 2008, D.G. told Martha, “Your fucking husband has been molesting me.” Martha confronted Ricardo, who said, “I don’t know, ” “It’s my kid, ” and “I never penetrated.” She told him to move out and said she would call the police if he did not leave. He said he would leave if she did not call anyone. He moved out. She called the police.

D.G. testified that Ricardo’s children Johanna and Jose visited on holidays, weekends, and special occasions, that Johanna spent the nights in her bedroom with her, and that she was like a sister to her. Martha testified that she regarded Johanna and Jose, who came to visit on weekends and other occasions even if D.G. was not there, “like they were my kids, too.”

4. Ruiz Children’s and CPS Worker’s Testimony

Johanna testified that since she was two or three she was “very, very close” to D.G. She shared D.G.’s bedroom whenever she visited the Ruiz family. She never saw, and D.G. never said anything to her about, sexually inappropriate conduct by her father toward D.G. Likewise, Jose testified he never saw, and D.G. never said anything to him about, sexually inappropriate conduct by his father toward D.G.

When D.G. was eight years old, CPS worker Carolyn Woolfolk interviewed D.G. and Martha about an allegation of sexual abuse by Ricardo. She filed a report noting D.G.’s denial of sexual abuse by Ricardo and D.G.’s statement that if anyone were to touch her inappropriately she would tell her mother and her grandmother. D.G. denied she was ever left alone with Ricardo. Woolfolk concluded the allegations were “unfounded” and proceeded no further.

DISCUSSION

Ricardo argues that conflicting instructions – one authorizing the jury to find him guilty of continuous sexual abuse if he had general criminal intent, the other defining the lewd-or-lascivious-conduct element of the crime to require the specific intent to sexually arouse the perpetrator or the child – created a reasonable likelihood that the jury found him guilty of continuous sexual abuse even if he lacked the requisite specific intent. The Attorney General argues that the court committed “no prejudicial error.”

Continuous sexual abuse is a disjunctive crime. A jury can find a person guilty if he or she “engages in three or more acts of substantial sexual conduct with a child under the age of 14 years at the time of the commission of the offense, as defined in subdivision (b) of Section 1203.066, or three or more acts of lewd or lascivious conduct, as defined in Section 288, with a child under the age of 14 years at the time of the commission of the offense.” (§ 288.5, subd. (a), italics added.) Just as the disjunctive acts differ, so do the concomitant intents. The “‘lewd or lascivious conduct’ aspect of section 288.5 requires the specific intent of sexual gratification, but the ‘substantial sexual conduct’ aspect does not.” (People v. Whitham (1995) 38 Cal.App.4th 1282, 1293.)

Without designating intent, count one of the information charged disjunctively that Ricardo “engaged in three or more acts of substantial sexual conduct as defined in Penal Code section 1203.066(b), or three or more acts of lewd or lascivious conduct under Penal Code section 288, in violation of Penal Code section 288.5(a), a felony.” (Italics added.) Congruently, the verdict, without designating intent, shows that the jury found him guilty of continuous sexual abuse, “in violation of Section 288.5(a) of the Penal Code, as charged in the first count of the information.” The issue before us is the constitutional adequacy of the court’s charge to the jury on intent.

The parties agree that two instructions are at issue. The first, CALCRIM No. 252, defined continuous sexual abuse as a general intent crime:

“The crimes charged in this case require proof of the union or joint operation of act and wrongful intent. The following crimes require general criminal intent:

“Continuous sexual abuse of a child, as charged in Count 1; and

“The lesser included offenses of battery and simple assault.

“For you to find a person guilty of these crimes, that person must, not only commit the prohibited act, but must do so with [a] wrongful intent. A person acts with wrongful intent when he intentionally does a prohibited act on purpose. However, it is not required that he intend to break the law. The act required is explained in the instructions for those crimes.

“The following crime requires a specific intent and mental state:

“Lewd act with a child 15 years old and at least 10 years younger than the defendant as charged in Count 2.

“For you to find a person guilty of this crime, that person must, not only intentionally commit the prohibited act, but must do so with a specific intent or mental state. The act and the specific intent or mental state required are explained in the instruction for that crime.”

The court modified the second instruction, CALCRIM No. 1120, to instruct on only the “lewd or lascivious conduct” aspect of the crime of continuous sexual abuse:

“The defendant is charged in Count 1 with continuous sexual abuse of a child under the age of 14 years, in violation of Penal Code section 288.5(a).

“To prove that the defendant is guilty of this crime, the People must prove that:

“1. The defendant lived in the same home with, or had recurring access to, a minor child;

“2. The defendant engaged in three or more acts of lewd or lascivious conduct with the child;

“3. Three or more months past [sic] between the first and last acts;

“4. The child was under the age of 14 years at the time of the acts.

“Lewd or lascivious conduct is any willful touching of a child accomplished with the intent to sexually arouse the perpetrator or the child.

“The touching need not be done in a lewd or sexual manner. Contact with the child’s bare skin or private parts is not required. Any part of the child’s body or the clothes the child is wearing may be touched.

“Lewd or lascivious conduct also includes causing a child to touch his, or her own body or someone else’s body, at the instigation of a perpetrator who has a required intent.

“Someone commits an act willfully when he or she does it willingly or on purpose. It is not requires [sic]that he or she intended to break the law, hurt someone else, or gain any advantage.

“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.

“Actually arousing, appealing to, or gratifying the lust, passions, or sexual desires of the perpetrator or the child is not required for lewd or lascivious conduct. It is not a defense that the child may have consented to the act.”

The Attorney General argues that “the explanation of ‘willful’” in CALCRIM No. 1120 “essentially echoed the language” of CALCRIM No. 252 and, in “all likelihood, the jury viewed the nearly identical language as pertaining to the element of willfulness, not that it rendered the specific intent element a nullity.” For that argument, he relies on a comment in People v. Johnson (1998) 67 Cal.App.4th 67 that even though, as “a general rule, a statute proscribing willful behavior is a general intent offense, ” a statute including “‘willfully’ language may nevertheless define a specific intent offense if the statute includes other language requiring a specific intent.” (Id. at p. 72.) The issue in Johnson, however, was simply whether the court correctly instructed that failure to register was a general intent offense. (Id. at pp. 72-73.) The issue here is whether the court’s incorrect instruction that continuous sexual abuse is a general intent offense, even though the requisite “three or more acts of lewd or lascivious conduct” all require specific intent, was prejudicial. Johnson is inapposite.

On the basis of the court’s modification of CALCRIM No. 1120 to instruct exclusively on the specific-intent “lewd or lascivious conduct” aspect of continuous sexual abuse, Ricardo argues that the definition of continuous sexual abuse as a general intent crime in CALCRIM No. 252 was erroneous. Arguing that “no prejudicial error was committed” (italics added), the Attorney General seeks solace in language from cases like People v. Guerra (2006) 37 Cal.4th 1067 that “‘the jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given’” (id. at p. 1148) and People v. Musselwhite (1998) 17 Cal.4th 1216 (Musselwhite) that the “‘correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction’” (id. at p. 1248).

“The jury instructions as a whole, ” Musselwhite wrote about the charge to the jury in that case, “adequately informed the jury” about the law. (Musselwhite, supra, 17 Cal.4that p. 1249). Here, however, the definition in CALCRIM No. 252 of continuous sexual abuse as a general intent crime was irreconcilable with the prosecutor’s theory of the case, the evidence at trial, and CALCRIM No. 1120. In short, the jury instructions as a whole did not adequately inform the jury about the law. The court erred by instructing with CALCRIM No. 252 that continuous sexual abuse was a general intent crime.

Incorrect instruction on an element of an offense constitutes federal constitutional error that requires reversal of the judgment unless it appears “‘beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.’” (Neder v. United States (1999) 527 U.S. 1, 15, quoting Chapman v. California (1967) 386 U.S. 18, 24; Pope v. Illinois (1987) 481 U.S. 497, 502-504.) Relying on People v. Dollar (1991) 228 Cal.App.3d 1335, the Attorney General argues, “Even assuming the instructions were inconsistent, there was no prejudice under the circumstances of this case.” The perpetrator in Dollar grabbed the victim of his own sexual molestation prior “so forcibly that he tore her garment” and yelled, “I’ll get you soon, bitch.” (Id. at pp. 1338, 1344.) The instruction that witness intimidation was both a general intent and a specific intent crime was a “critical” error, we lamented, but harmless beyond a reasonable doubt since the evidence was “very strong, ” the threat “was not equivocal or ambiguous, ” and the prosecutor’s argument to the jury carefully paraphrased the specific intent element of the crime. (Id. at pp. 1338-1339, 1343-1344; cf. former § 139, subd. (b).)

Here, the record is dissimilar. D.G. acknowledged that her reports to Officer Brown and Detective O’Nesky were inconsistent as to the critical fact of the area of her body that was allegedly molested. She acknowledged that her memory was “cloudy” about “some details” she told her mother. Ricardo admitted nothing in the pretext call, but the jury could have construed his statements like, “I’m sorry if I bothered you or something I did wrong to you, ” and, “If something happened … maybe it’s true, ” as admissions of guilt of a general intent crime. In his argument to the jury the prosecutor made no reference at all to the jury’s duty to find specific intent as to the three or more acts of lewd or lascivious conduct necessary to find Ricardo guilty of continuous sexual abuse.

A fundamental and historic precept of our judicial system is that jurors are restricted to the determination of factual questions, are bound by the law as given them by the court, and are not allowed either to determine what the law is or what the law should be. (People v. Williams (2001) 25 Cal.4th 441, 455, disapproved on another ground by People v. Barnwell (2007) 41 Cal.4th 103, 1052.) “At best, [the jurors] are well meaning but temporary visitors in a foreign country attempting to comprehend a foreign language.” (People v. Thompkins (1987) 195 Cal.App.3d 244, 250.) Here, the court’s critical error of instructing with CALCRIM No. 252 that continuous sexual abuse was a general intent crime denied the jurors the legal guidance that is indispensable to due process.

Our holding moots Ricardo’s arguments about the absence of sua sponte instructions that define lewd and lascivious acts as a lesser included offense and that require jury unanimity on the acts constituting continuous sexual abuse. The doctrine of stare decisis obliges us to follow People v. Gammage (1992) 2 Cal.4th 693 and to reject his argument that CALCRIM No. 301 and 1190 denied him due process. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) With no other cognizable errors in the record, our holding moots his cumulative prejudice argument as well. (See People v. Heard (2003) 31 Cal.4th 946, 982.)

DISPOSITION

The judgment is reversed as to the continuous sexual abuse on which the matter is remanded for a new trial or other proceedings in accordance with law. Otherwise the judgment is affirmed.

We Concur: Dawson, J., Franson, J.


Summaries of

People v. Ruiz

California Court of Appeals, Fifth District
Feb 9, 2011
No. F059188 (Cal. Ct. App. Feb. 9, 2011)
Case details for

People v. Ruiz

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. RICARDO RUIZ, Defendant and…

Court:California Court of Appeals, Fifth District

Date published: Feb 9, 2011

Citations

No. F059188 (Cal. Ct. App. Feb. 9, 2011)