People v. Ruiz ( 2020 )

Filed 10/27/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
A153135
v. (San Mateo County Super.
BENJAMIN RAMIREZ RUIZ, Ct. No. 16SF011617)
Defendant and Appellant.
Defendant Benjamin Ramirez Ruiz was convicted after a jury trial on
three counts of sex crimes he committed against his minor daughter (Minor)
and sentenced to 44 years to life. On appeal, he challenges the trial court’s
admission into evidence of Minor’s incriminating out-of-court statements to a
social worker as violating his confrontation clause rights. He also challenges
the trial court’s rulings that the prosecution presented sufficient evidence to
satisfy the corpus delicti rule, which rule requires, when a defendant makes
extrajudicial incriminating statements, that there also be independent
evidence of the corpus delicti, meaning of the body of the crime itself, in order
to convict. We affirm in part and reverse in part. We affirm the convictions
on count 3 (continuous sexual abuse of a child under 14, § 288.5) and count 5
(forcible rape of a child under 14, § 261, subd.(a)(1)). We reverse the
conviction on count 2 (oral copulation or sexual penetration of a child 10 or
1
younger, § 288.7) only because we agree with defendant that the corpus
delicti rule was not satisfied regarding that count.1
BACKGROUND
In December 2016, the San Mateo County District Attorney filed an
information charging Ramirez Ruiz with sex crimes he allegedly committed
against Minor. These were: sexual intercourse or sodomy with a child 10
years old or younger (Pen. Code, § 288.7, subd.(a),2 count 1); oral copulation
or sexual penetration with a child 10 years old or younger (§ 288.7, subd.(b),
count 2); continuous sexual abuse of a child under 14 years old (§ 288.5,
subd. (a), count 3); two counts of forcible rape of a child under 14 years old
(§ 261, subd. (a)(2), counts 4 and 5); five counts of forcible oral copulation of a
minor under 14 years old (§ 288A, subd. (c)(2)(B), counts 6 through 10); and
sexual penetration by foreign object of a child under 14 years old (§ 289,
subd. (a)(1)(B), count 11).
A jury trial followed. We summarize the evidence relevant to our
resolution of Ramirez Ruiz’s appeal.
I.
Testimony of Minor’s School Counselor
A counselor at a Redwood City school where Minor was in sixth grade
testified that Minor was born in January 2005, and was a straight A student,
and that Minor’s mother (Mother) volunteered often at the school. On
September 20, 2016, Mother knocked on the counselor’s office door and,
1 During the pendency of this appeal, this court ordered that the
petition for a writ of habeas corpus also filed by Ramirez Ruiz be considered
with this appeal. We are issuing an order summarily denying that petition
concurrent with this opinion.
2 All statutory references are to the Penal Code unless otherwise
stated.
2
appearing “[s]haky and” “worried,” and with “a sense of urgency,” insisted
that she needed to see the counselor. After speaking with Mother,3 the
counselor called for Minor, who soon arrived and talked with the counselor.
Minor became “very, very upset” when the counselor said she would have to
report what Minor had told her. Minor said repeatedly that “she didn’t want
her father to go to jail, that she wanted her family to be together, but she
wanted it to stop.” She left the office “[t]earful; quiet; very, very upset.”
The counselor further testified that her relationship with Minor and
her Mother changed over time: “We would have really frequent interactions
after this for many different reasons. And, lately, there has been a definite
shift. Mom isn’t interacting with me. [Minor] doesn’t seem happy to see me
anymore and seems uncomfortable around me.”
II.
Minor’s Statements to a Social Worker
Dana Donnelly, a San Mateo County social worker, testified that on the
evening of September 20, 2016, she conducted “a check” of Minor at Minor’s
home after a receiving a report that Minor had been sexually abused.4 Both
parents were present but, as we will discuss, Donnelly interviewed Minor
privately in a bedroom with only a co-worker and a deputy sheriff present. In
the interview, Minor was “calm and polite” and “seemed relaxed” at first.
Her demeanor changed, however, toward the end when she became “visibly
3 The school counselor did not testify about what Mother said.
4We discuss other aspects of Donnell’s testimony in our discussion of
Ramirez Ruiz’s confrontation clause claim post.
3
upset,” her voice “tremble[d] a little bit, and she started crying.” She rested
her head on Donnelly’s shoulder with Donnelly’s encouragement.
Unbeknownst to Donnelly, the deputy sheriff present recorded the
interview. The recording was played for the jury but is not contained in the
record; however, two transcripts are, one presented by the prosecution at trial
and one presented by the defense to the court as part of its motion for a new
trial.5
Both transcripts indicate that Donnelly alone interviewed Minor for a
relatively short period of time (each is only five pages long). Donnelly first
inquired about the language Minor preferred to converse in (which was
English), explained she was a social worker and asked about Minor’s home
life. She asked Minor if anything had happened that morning and Minor said
no. Donnelly then asked, “[H]as anyone ever touched you in a way that made
you feel uncomfortable?” Minor said, “Yes,” and indicated her father had
touched her the previous Friday. The prosecution’s transcript states that
Minor said her father had touched her “[i]n my private part” with his “private
part,” and Ramirez Ruiz’s transcript indicates she only said her father had
touched her “[i]n my pants.” In both transcripts, Minor, when asked when
was “the first time” it happened, answered, “[l]ike, three months” before, and
that “then” she told him she was going to her Mother but he had threatened
to hit her if she did. The prosecution’s transcript has Minor saying she and
her Mother made a deal not to tell Ramirez Ruiz that Donnelly and the
others were coming to the house; the defense transcript has her saying she
The jury was provided with the prosecution’s transcript and was
5
instructed that the recording, not the transcript, was the evidence.
4
and Ramirez Ruiz made a deal “that we weren’t gonna tell or you guys would
come.”
III.
Detective Lopez’s Interrogation of Ramirez Ruiz
On September 21, 2016, the day after Donnelly’s interview of Minor,
Detective Lisandro Lopez of the San Mateo County Sheriff’s Office
interrogated Ramirez Ruiz at a county jail. A video (which is not in the
record) and an English-language transcript of the interrogation (which
apparently occurred in Spanish) were provided to the jury.
According to the transcript, Ramirez Ruiz, after receiving notice of his
rights under Miranda v. Arizona (1966) 384 U.S. 436, said he had been
arrested the previous day because of an outstanding warrant and the
suspicion that he had “harassed” Minor. He lived with his wife and Minor in
a one-bedroom apartment and had a “normal” relationship with Minor. After
a recent change, his wife and Minor slept in the bedroom and he slept in the
living room, but they slept in the bedroom together sometimes. He worked
some small jobs but did not have steady job, and his wife worked from 8 a.m.
until 2 p.m.
Ruiz denied having sex with Minor. The three of them sometimes
wrestled on the bed, during which he may have accidentally grabbed Minor’s
breasts two or three times and perhaps her vagina, and she might have
grabbed his penis a couple of times. He was “hardly alone” with Minor
because he was the last one to wake up and the last one to get home most of
the time. However, one or two times he might have accidentally grabbed her
breasts as they played alone. He denied touching Minor’s breasts or vagina
in the morning after his wife left for work. He never had put his hands inside
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Minor’s underwear or put his hands inside her bra. He never had kissed her
vagina or put his penis in it, and she had never sucked his penis.
Lopez testified that he then used a “rouse,”6 meaning a common police
tactic in which the interrogator said something that was not necessarily true
to try to “elicit a response” and get the subject to “open up and tell . . . what
happened.” That is, the transcript of the interrogation indicates that Lopez
intimated, with no actual knowledge, that DNA collected from Minor had
been found to be Ramirez Ruiz’s. In response, Ramirez Ruiz said he had the
right to remain silent, to which Lopez responded, “since you . . . don’t want to
provide your statement, we will have to bring your daughter to court to
explain everything,” and asked, “Would you . . . be willing to have your
daughter there in court explaining, testifying in front of everybody?” Upon
further questioning, Ramirez Ruiz said he did not think Minor was a liar and
agreed that, as Lopez put it, “things escalated and they started to be more
and more.” He still denied “penetrating” Minor, but said, “I may have” tried.
He said he had put his “hard” penis next to Minor’s vagina in an “explosion”
of excitement two or three times. He could not recall the first time he had
done this. He had wanted to penetrate Minor only once, on a morning less
than a month ago. He said he was now telling the truth.
Ramirez Ruiz did not recall anything happening the previous Friday.
He thought that his wife once went to shower, leaving him alone on the sofa
with Minor, but he said he did not ejaculate. Asked again about the previous
Friday, he said he and Minor, who was dressed in shorts, were on the sofa
while his wife showered. He touched Minor on her “private part” but did not
put his finger inside her. Asked if he had “sucked . . . or licked [Minor’s]
6
The reporter’s transcript refers to a “rouse,” which may have been
meant by Lopez as a “ruse.”
6
vagina,” Ramirez Ruiz gave a confusing answer, added that Minor “grew up
very, too fast,” and said that she once “did want to, she did grab my penis”
and had grabbed his hand and put it close to her buttock, which he had
touched. He had touched her vagina, which he was surprised to find “was a
woman’s vagina” “with a lot of hair” and “wet.” Minor’s vagina “ended up
being very small for” him and he had an erection, but nothing else occurred
on that occasion. Ruiz said he had moved Minor’s shorts to the side to see her
vagina and that, “[h]onestly,” he had licked it, but it is unclear if he meant he
did so on that same occasion. Asked when he had licked Minor’s vagina, he
said it was “one of the first times,” and thought it had occurred “[a] few
months ago.”
Ruiz said he was “trying to tell the truth” and that, rather than being a
good father, “maybe, well, I’m one of the worst.” He had acted because of
“stupidity,” and added, “I do know that there’s something that I can’t, I can’t
control, I don’t know. Well, . . . I don’t want to say that it can’t be done. . . .
It’s something that is really hard for me to control.” He repeated that he had
“never penetrated” Minor or put his fingers inside of her vagina, but said he
had touched it, perhaps six months ago. Lopez said Minor said it had started
the previous year and Ramirez Ruiz said, “Ah, well, then it might be.” He
agreed that he had kissed Minor’s vagina “at the beginning,” just one time.
He also agreed with Lopez that it had occurred “last year” and added, “And
then after that, all that stopped.” When Lopez said that it had stopped
“when [Minor] went on Christmas vacation,” Ramirez Ruiz said, “Well, yes,
all that stopped for a long time” and only started again when they played
some “games” again.
Questioned further, Ramirez Ruiz said that Minor had tried to suck his
penis once, but that he had prevented it by getting up. He said it was
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“possible” that he had put his penis in her mouth but he did not remember.
He had touched her breasts under her bra and could have put his penis next
to her vagina one or two times. He asserted that there had been “just a few
times” when they had “passed the limit.”
Ramirez Ruiz said that on one occasion he had had “sex” with Minor.
When Lopez said that would include penetration, Ramirez Ruiz denied ever
penetrating Minor or having sex with her and said Lopez was trying to
confuse him. When Lopez said, “Ok. So . . . I know that you’ve had sexual
relations with your daughter. But was it five times or was it only two?”
Ramirez Ruiz responded, “Well, it could have been, it could have been two or
three times,” but then again said he had never penetrated her. Lopez and
Ramirez Ruiz argued about what it meant to have sexual relations and what
Ramirez Ruiz had said, during which Ramirez Ruiz maintained that he had
not had sexual relations or sex with Minor.
IV.
Ramirez Ruiz’s Trial Testimony
At trial, Ramirez Ruiz said he never had deliberately tried to touch
Minor’s breasts or vagina or seen her vagina. He testified that he had lied in
the interrogation to protect her from having to be questioned in court. He
suggested his DNA on Minor’s bra came from the family’s shared laundry
hamper.
V.
Forensic and Scientific Evidence
A family nurse practitioner testified that she conducted a SART7
examination of Minor on September 21, 2016 the day after the Donnelly
7 “SART” stands for Sexual Assault Response Team. (E.g., People v.
Uribe (2011) 199 Cal.App.4th 836, 840.)
8
interview. She identified a “deep notch” in the lower part of Minor’s hymen,
which was consistent with, but did not conclusively establish, sexual abuse.
Evidence was presented of the scientific testing of swabs of Minor’s
vagina, her vestibular, vulvar and anal areas, and of her bra. No sperm was
found on the swabs of Minor’s vagina or vestibular, vulvar and anal areas. A
stained area of the bra tested positive for acid phosphatase, an enzyme found
in high concentrations in semen and in low concentrations in other bodily
fluids. Semen was not detected in a microscope search of the stain. However,
further testing of a cutting from this stain indicated a “faint positive” for the
protein component in seminal fluid, in which semen travels, thereby
confirming the presence of seminal fluid.
The cutting from the bra was further tested by a DNA specialist, who
determined that the DNA found on it was a mixture of at least two
individuals, which could have included Minor’s DNA, and that the mixture
included a small amount of male DNA. A swab from Minor’s right breast was
also tested. It was found to have a mixture of DNA from at least two
individuals that also could have included Minor’s DNA, and included a
possible low-level amount of male DNA. There was no male DNA detected on
the vaginal swabs. Another specialist conducted further testing on the DNA
found on the bra cutting and right breast swab. A male profile matched to
Ramirez Ruiz was determined for the DNA on the right breast swab. Three
male profiles were determined to exist for the DNA found on the bra cutting,
and Ramirez Ruiz was identified as the major contributor.
VI.
Other Evidence
The prosecution introduced Spanish-language recordings of jail calls
between Ramirez Ruiz and his brothers in which Ramirez Ruiz referred to
9
“washing the stone” and discussed his brothers’ contacting family members,
although the parties disagree over which family members were discussed.
The prosecution contended these calls were evidence of Ramirez Ruiz’s efforts
to discourage his wife and daughter from cooperating with authorities and
testifying at trial. The defense denied these contentions. Ramirez Ruiz’s
brother, Victor Ruiz, testified that Ramirez Ruiz did not ask him to talk to
Mother or Minor. Ramirez Ruiz testified that he did not tell his brothers to
ask Mother or Minor to change their accounts or refuse to testify.
Also, the prosecution presented the testimony of a Child Sexual Abuse
Accommodation Syndrome (“CSAAS”) expert, who testified about the
behaviors of child victims of sexual abuse.
VII.
Verdict, Sentencing and Appeal
After the close of evidence, the court dismissed eight of the eleven
counts filed against Ramirez Ruiz. The jury considered only whether to
convict Ramirez Ruiz of one count each of oral copulation or sexual
penetration with a child 10 years old or younger (§ 288.7, subd.(b), count 2);
continuous sexual abuse of a child under 14 years old (§ 288.5, subd. (a),
count 3); and forcible rape of a child under 14 years old on or about
September 16, 2016 (§ 261, subd. (a)(2), count 5). It convicted Ramirez Ruiz
of all three counts.
The court sentenced Ramirez Ruiz to 44 years to life in state prison.
This consisted of 15 years to life for count 2, an upper term of 16 years for
count 3 and an upper term of 13 years for count 5.
Ramirez Ruiz filed a timely notice of appeal. His notice lists as the
date of the order or judgment appealed from the date the court both denied
his motion for a new trial and sentenced him, but also indicates in
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section 2(b) that his appeal, rather than being “after” “a jury or court trial” or
“a contested violation of probation, is “Other,” after which is written, “denial
of new trial motion.” He asserts he is appealing from his conviction, and the
People do not argue otherwise. Because Ramirez Ruiz may well have been
merely indicating in his notice of appeal that he was appealing after his
motion for a new trial (the term used in the other two subsections of
section 2(b)), we liberally construe the notice as from his convictions. (In re
Joshua S. (2007) 41 Cal.4th 261, 272 [“ ‘notices of appeal are to be liberally
construed so as to protect the right of appeal if it is reasonably clear what
[the] appellant was trying to appeal from, and where the respondent could
not possibly have been misled or prejudiced’ ”].) Whatever the scope of his
notice, he raised his confrontation clause and corpus delicti rule claims in his
new trial motion.
DISCUSSION
We now address Ramirez Ruiz’s appellate claims.
I.
Ramirez Ruiz’s Confrontation Clause Claim
Ramirez Ruiz argues we must reverse his convictions because the trial
court violated his confrontation clause rights by admitting into evidence
Minor’s out-of-court statements to Donnelly and, related to this, by denying
his motions for a mistrial and a new trial, which he based on this same
violation. He contends the court violated his confrontation clause rights
because Minor’s statements were testimonial, she was unavailable to testify
at trial and was never subject to cross-examination, and admission of her
statements to Donnelly violated his Sixth Amendment rights under Crawford
v. Washington (2004) 541 U.S. 36 (Crawford) and its progeny. We conclude
11
the trial court did not err because Minor’s out-of-court statements to
Donnelly were not testimonial.
A. Additional Proceedings Below
1. Events on the Eve of Trial
Minor initially made out-of-court statements, including to San Mateo
County social worker Dana Donnelly, indicating that Ramirez Ruiz had
committed certain sex acts with her. According to a defense motion in limine
regarding Minor’s out-of-court statements, she later told a defense
investigator that she had lied to police when she had said Ramirez Ruiz had
molested her. On the eve of trial, after an in-chambers discussion with Minor
and counsel in which Minor said nothing had happened, that her previous
statements in a forensic interview were not true, that she did not want to
testify in front of people about her family issues and that no one was asking
her not to testify, the trial court found she was refusing to testify and ruled
that she was unavailable to testify. The court also ruled separately that
Mother had a privilege not to testify.
The record does not contain a written motion by the defense to
specifically exclude Minor’s statements to Donnelly,8 but the relevant hearing
transcript indicates that defense counsel moved to exclude it and the court
reviewed a transcript of Minor’s statements to Donnelly (presumably the
transcript that was admitted at trial) and a “police report” prior to the
hearing. At the hearing, the court commented that the reporting officer
indicated the visit to Minor’s home was a welfare check. The court ruled that
Doe’s statements to Donnelly would be admitted under Evidence Code
section 1360 as a statement describing child abuse made by a child under the
8 Ramirez Ruiz contends he sought to exclude Minor’s statements to
Donnelly in the defense motion in limine on her out-of-court statements, but
it does not refer to those statements.
12
age of 12. These and the statements to her school counselor that we have
summarized were the only out of court statements by Minor that were
admitted into evidence at trial.
2. Donnelly’s and Piper’s Testimony About Minor’s
Statements
Donnelly testified that she worked with “all sorts of clients, mainly
mothers, and fathers, and their children.” Asked what she did for work on a
“day-to-day basis,” she replied, “So I have to respond to emergency reports
that we receive. I have to go out and investigate to see if child abuse or
neglect has occurred.” She further explained, “I typically meet with the child
first, and I complete what we call a comprehensive interview. I kind of
gauge—get to know the child a little bit and ask them specific questions.
And, from there, after meeting with the child, I meet with the parents. And,
if needed, we safety plan . . . .”
Donnelly further testified that on the night of September 20, 2016, she
conducted “a check” of Minor after receiving a report that Minor had been
sexually abused. She arrived at Minor’s home, a second-story apartment in
Redwood City, California, at approximately 10:15 p.m., accompanied by a co-
worker serving as a Spanish translator, a sergeant from the sheriff’s
department and a sheriff’s deputy, Judson Piper. They knocked on the
home’s door and Ramirez Ruiz opened it. Donnelly explained who she was,
her role and that “we had received a report.” She asked permission to enter
the home and meet with Minor “to assess her safety.” Ramirez Ruiz allowed
entry, and Donnelly, her co-worker and Deputy Piper went inside, where they
found Ramirez Ruiz’s wife and Minor.
Donnelly received permission to speak to Minor privately. She
introduced herself to Minor, explained Minor was not in trouble and asked to
see her room. Minor took Donnelly, the co-worker and Deputy Piper to her
13
bedroom. Donnelly, with Minor’s permission, sat on the left side of the bed
with Minor, the co-worker sat on the right side and Deputy Piper stood
“closer to the door.” Minor’s co-worker did not participate in the interview
after Minor indicated she would prefer to talk in English and Deputy Piper
did not ask questions. Donnelly said she interviewed Minor “[t]o assess her
safety and to determine whether she was currently safe or not,” and that she
thought there “[a]bsolutely” was a safety risk to Minor at that time. She had
no idea the interview was being recorded.
Deputy Piper testified that he recorded Donnelly’s interview of Minor
with a digital recorder he kept in his pocket, which began recording when
Ramirez Ruiz opened the apartment door. Asked why he recorded, he said,
“Just to record the welfare check itself, because I wasn’t sure what was going
to come of it . . . .” Asked to explain further, he said, “In case something came
of it because welfare checks sometimes turn into something else,” and agreed
that an example would be a “court case.” He said he did not tell anyone, and
did not believe Minor knew, that he was recording.
3. Ramirez Ruiz’s Motion for a Mistrial
After Donnelly and Piper testified, Ramirez Ruiz’s counsel moved for a
mistrial, arguing that Piper’s reason for recording included because “these
things sometimes get into something further,” “such as prosecution.” Defense
counsel contended Piper’s intent made Minor’s statements testamentary,
renewed an objection to the admission of Minor’s recorded statements to
Donnelly and moved for a mistrial. The court overruled the objection and
denied the motion, stating, “There were a number of factors that went into
my findings that it was not testimonial. That is relevant to one of those
factors, but there are so many other factors that make it clear to me that it is
not that my ruling will stand on that.”
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4. Ramirez Ruiz’s Motion for New Trial
After trial and before sentencing, Ramirez Ruiz filed a motion for a new
trial, in part on the ground that the court’s admission into evidence of Minor’s
recorded statements to Donnelly violated Crawford and its progeny (he also
moved for a new trial based on the corpus delicti doctrine, which we discuss
post). Ramirez Ruiz submitted to the court a transcript of Minor’s statements
prepared by defense counsel that differed with the transcript submitted to
the jury, which differences we have already discussed. In his supporting
brief, he contended that another talk with Minor was conducted by Deputy
Piper, with Donnelly helping, after Donnelly interviewed Minor and talked to
Mother. Ramirez Ruiz stated, “Piper instructed Donnelly to ‘ask [Minor] if
she has any of the clothing that she was wearing . . . and if it’s been washed
or not, and if not, ask where is it, so we can collect it.’ Donnelly then asked
[Minor] about clothing. [Minor] said that she was wearing a pink shirt and
blue shorts but that they had washed them already. Donnelly asked Piper if
he still wanted the clothes if they had been washed. Piper replied ‘no.’
Donnelly asked [Minor] what part of the living room the incident had taken
place and [Minor] said the couch. Piper then took over the interview and
asked [Minor] which part of the couch the incident occurred, and [Minor]
identified the corresponding [part] of the couch. Donnelly then explained to
[Minor] that they were going to take her to the hospital for an examination.
Piper then instructed Donnelly to ask [Minor] whether defendant was clothed
during the incident. In response to Donnelly’s questioning, [Minor] replied
that she and defendant were clothed, that defendant had his ‘private area’
outside of his clothes, and that defendant took off her shorts while she was
sitting on the couch. Piper directly asked some of the questions as well.”
15
After hearing oral argument, the court denied Ramirez Ruiz’s motion
for a new trial. It stated, “[W]e did exhaustively litigate this matter during
the course of the trial. I made findings at the time that I still believe are
accurate. I believe that things like the recording being on is certainly not
determinative. Recordings are used in all different types of cases now. . . . [¶]
I think the questions that were asked by [Donnelly] were non-testimonial. I
think she was asking questions to determine the level of danger. This was to
a child. This was in a home. This was not a law enforcement officer asking
the questions. [¶] My conclusion at the time that I admitted this evidence was
that it was non-testimonial. That is still my conclusion.” The court added
that the recording of Minor’s statements, not any transcript, was the evidence
and that the defense transcript did “not reflect the defendant’s interpretation
of the language used in answer to the questions by [Donnelly].”
B. Legal Standards
In Crawford, the United States Supreme Court held that the admission
into evidence at trial of an otherwise admissible “testimonial” hearsay
statement of a declarant who is unavailable to testify violates the
confrontation clause of the federal Constitution unless the defendant has had
a prior opportunity to cross-examine the declarant. (Crawford, supra,541 U.S. at pp. 59, 68.) The Crawford court declined to give a comprehensive
definition of “testimonial,” stating only that it “applies at a minimum to prior
testimony at a preliminary hearing, before a grand jury, or at a former trial;
and to police interrogations.” (Id. at p. 68.)
The Supreme Court revisited what was “testimonial” in Davis v.
Washington (2006) 547 U.S. 813 (Davis), which addressed two cases, Davis v.
Washington and Hammon v. Indiana. The court differentiated between
statements made to respond to an ongoing emergency and statements made
16
to establish or prove past events relevant to a later criminal prosecution (id.
at p. 822); among other things, it considered the formality of the
circumstances, or lack thereof, to be “essential.” (Id. at p. 830, fn. 5.)
Regarding Davis v. Washington, the court held that a recording of an
alleged domestic violence victim’s 911 call, in which she reported events as
they were actually happening, was non-testimonial because she faced an
“ongoing emergency” at the time and her “frantic” call “in an environment
that was not tranquil” was “plainly . . . for help against a bona fide physical
threat.” (Davis, supra, 547 U.S. at p. 827.) The 911 operator’s questioning
“elicited statements [that] were necessary to be able to resolve the present
emergency,” including learning the identity of the suspect, “so that the
dispatched officers might know whether they would be encountering a violent
felon.” (Ibid.) Under these circumstances, the declarant “simply was not
acting as a witness; she was not testifying.” (Id. at p. 828.)
As for Hammon v. Indiana, the court held that an alleged domestic
violence victim’s statements to a police officer in her living room while a
second officer confined the suspect in the kitchen were testimonial. The court
noted that the officers had responded to a domestic disturbance report to find
the alleged victim alone on her front porch, where she told them nothing was
wrong. (Davis, supra, 547 U.S. at p. 819.) During the subsequent interview
in her living room, she said the suspect had physically abused her, and the
interviewing officer had her fill out and sign a battery affidavit. (Id. at
p. 820.) In holding that the alleged victim’s oral and written statements were
testimonial, the court noted she made them when “there was no immediate
threat to [her] person,” and that the questioning officer was not seeking to
determine “ ‘what is happening,’ ” but rather “ ‘what happened.’ ” (Id. at
pp. 829-830.) The court considered the declarant’s statements were “formal
17
enough” because she and the suspect were physically separated, the police
questioned the declarant about past events and the interview “took place
some time after the events described were over.” (Id. at p. 830.)
The Supreme Court further clarified what constituted “testimonial”
statements in subsequent cases. In Michigan v. Bryant (2011) 562 U.S. 344,
police responding to a report of a shooting found a man shot in the abdomen
lying on the ground by his car in a gas station parking lot around 3:25 a.m.,
in great pain and able to speak only with difficulty. (Id. at p. 349.) The
officers asked him what had happened, who had shot him, and where the
shooting had occurred. (Ibid.) The victim answered their questions in a
conversation that ended in 5 to 10 minutes when medical services arrived.
(Ibid.) He died within hours. (Ibid.) The court concluded his statements
were not testimonial because he made them during an ongoing emergency,
speaking “within the first few minutes of the police officers’ arrival and well
before they secured the scene of the shooting—the shooter’s last known
location.” (Id. at p. 374.) Furthermore, the shooter’s whereabouts and motive
were unknown and, thus, the officers had “no reason to think that the shooter
would not shoot again if he arrived on the scene” (id. at p. 377), and the
victim’s physical distress suggested he did not give his statement with the
primary purpose of establishing or proving past events potentially relevant to
later criminal prosecution (id. at p. 375). Also, “the questioning . . . occurred
in an exposed, public area, prior to the arrival of emergency medical services,
and in a disorganized fashion” (id. at p. 366), and the questions the officers
asked “were the exact type of questions necessary to allow the police ‘ “to
18
assess the situation, the threat to their own safety, and possible danger to the
potential victim” ’ and to the public” (id. at p. 376).
In Ohio v. Clark (2015) 576 U.S. 237 (Clark), the Supreme Court held
that statements by a three-year-old child to his preschool teachers identifying
the defendant as his abuser were not testimonial because the primary
purpose of these discussions was to determine if it was safe to return the
child to his guardian. (Id. at pp. 246-247.) The court instructed that whether
or not a statement is made to quell an immediate emergency is relevant, but
not necessarily determinative; rather, the focus should be on whether the
statement’s “primary purpose” is testimonial. (Id. at pp. 244-246.) It
concluded the child’s statements, occurring “in the context of an ongoing
emergency involving suspected child abuse,” and to teachers, not officers,
“clearly were not made with the primary purposes of creating evidence for
[the defendant’s] prosecution.” (Id. at p. 246.) “On the contrary, it is clear
that the first objective was to protect” the child, and “the conversation . . .
was informal and spontaneous. The teachers asked [the child] about his
injuries immediately upon discovering them, in the informal setting of a
preschool lunchroom and classroom . . . .” (Id. at p. 247.)
The California Supreme Court, based on Crawford and related cases,
has given guidance to our courts regarding how to determine whether a
statement is testimonial. When police are involved, the court has instructed
that we must evaluate the circumstances and the statements and actions of
the parties to determine “the primary purpose of both officer and declarant”
based objectively on “ ‘the purpose that reasonable participants would have
had.’ ” (People v. Blacksher (2011) 52 Cal.4th 769, 813-814 (Blacksher).)
Furthermore, we “should consider whether an ‘ “ongoing emergency” ’ exists,
or appears to exist, when the statement was made,” even “if hindsight reveals
19
that an emergency did not, in fact, exist.” (Id. at p. 814.) “Whether an
ongoing emergency exists is a ‘highly context-dependent inquiry’ ” that may
take into account whether the victim, first responders, or the public remain
at risk. (Ibid.) Also, “regardless of the existence of an emergency, the
informality of the statement and the circumstances of its acquisition are
important considerations.” (Id. at p. 815; see also People v. Sanchez (2016)
63 Cal.4th 665, 689 [“[t]estimonial statements are those made primarily to
memorialize facts relating to past criminal activity, which could be used like
trial testimony” while nontestimonial statements “are those whose primary
purpose is to deal with an ongoing emergency or some other purpose
unrelated to preserving facts for later use at trial”].)
Where, as here, the defendant made contemporaneous objections
during trial, the prosecution, “as the proponent of the evidence, . . . had the
burden to show the challenged testimony did not relate testimonial hearsay.”
(People v. Ochoa (2017) 7 Cal.App.5th 575, 584, citing United States v.
Jackson (5th Cir. 2011) 636 F.3d 687, 695 [“the government bears the burden
of defeating [defendant’s] properly raised Confrontation Clause objection by
establishing that its evidence is nontestimonial”].)
On appeal, we independently review whether a statement was
testimonial, implicating the constitutional right of confrontation. (People v.
Nelson (2010) 190 Cal.App.4th 1453, 1466.) We review a court’s ruling on a
motion for a new trial “under a deferential abuse of discretion standard,”
which, regarding a constitutional claim, means “the asserted abuse of
discretion is the asserted failure of the trial court to recognize violations of
defendant’s constitutional rights.” (People v. Hoyos (2007) 41 Cal.4th 872,
917, fn. 27, overruled in part on another ground in People v. Black (2014)
58 Cal.4th 912, 919-920.)
20
C. Analysis
We conclude that the trial court did not violate Ramirez Ruiz’s
confrontation clause rights by admitting Minor’s statements to Donnelly
because, as in Clark, Donnelly’s primary purpose in interviewing Minor was
to assess the child’s safety and Minor’s primary purpose in responding was to
stop the abuse she was experiencing.
Donnelly was a social worker, not a law enforcement officer or trained
forensic interviewer, and her daily responsibilities included responding to
emergencies to assess the safety of possible victims of abuse. In her
unchallenged testimony, she said she visited Minor’s home late in the
evening on the day she received a report of possible abuse, and that she did
so to assess Minor’s safety. Donnelly explained to Minor at the beginning of
the interview that her purpose was to assess Minor’s safety. Minor had
earlier in the day told her school counselor that she wanted “it” to stop and
that she did not want her father to go to jail. Considered objectively, her
statements that day, including to Donnelly were consistent with her desire
for safety and inconsistent with a purpose of providing evidence to prosecute
her father.
Furthermore, the interview was informal and brief, consistent with a
welfare check and not with a criminal investigation. Donnelly talked with
Minor while sitting on her bed with her, asked a few questions about possible
abuse, did not ask about or probe for information regarding all the abuse
Minor might have suffered and comforted Minor when she became upset.
Donnelly ended the interview as soon as Minor told her about continued
abuse (Minor’s indication that Ramirez Ruiz had repeatedly raped her),
saying “I think we have enough.” Under the circumstances, Donnelly’s
statement did not mean she was there to pursue a criminal prosecution, as
21
Ramirez Ruiz implies. Rather, interpreted in the context of this very brief
interchange, the statement can only reasonably be understood as indicating
they had enough to conclude that Minor was not in a safe situation.
Further indicating the purpose of Donnelly’s interview was to assess
Minor’s safety was the fact that only she asked questions of Minor in that
part of the interview. The law enforcement officer present, Deputy Piper, did
not play any active role at that point, and his placement nearer to the
bedroom door indicates his role was to protect Donnelly and Minor as they
talked. As the Supreme Court observed in Clark regarding teachers’
inquiries to a possibly abused child, “This was nothing like the formalized
station-house questioning in Crawford or the police interrogation and battery
affidavit in Hammon.” (Clark, supra, 576 U.S. at p. 247.) As in Clark, this
evidence indicates that Donnelly was responding as soon as possible to a
situation in which Minor was at risk of continued sexual abuse. A further
indication that Donnelly’s interview of Minor was not in preparation for a
criminal prosecution is that Minor was interviewed the next day by a forensic
interviewer (her statements to that interviewer were not admitted into
evidence).
We are troubled by the fact that Deputy Piper recorded Donnelly’s
interview of Minor and we do not condone such conduct on the part of law
enforcement officials accompanying child welfare workers on a welfare check.
Recording an interview tends to indicate the interview has a testimonial
purpose and, in many circumstances, will result in exclusion of the recorded
statements. If the social worker had understood in advance that the deputy
planned to record the interview or even had she been aware he was recording
while she was interviewing the Minor, the outcome might be different. If the
circumstances otherwise indicate an implicit agreement between child
22
welfare workers and law enforcement officials to conduct an interview for
dual purposes, admission of such an interview would implicate a defendant’s
Sixth Amendment rights.
Under the specific facts presented here, however, Deputy Piper’s
surreptitious recording does not change our objective determination of the
primary purpose of Donnelly’s initial and brief interview of Minor and
Minor’s participation in it. Our Supreme Court has instructed that we
consider the primary purposes of the questioner and the alleged victim in
evaluating the purpose of their statements. (Blacksher, supra, 52 Cal.4th at
pp. 813-814.) The possibly different purpose of another witness is, to be sure,
a part of the context in which we must evaluate whether the statements are
testimonial. Here, the officer’s recording of the interview does not tip the
balance to render Minor’s statements testimonial. We so conclude because
the other evidence shows that the questioner, Donnelly, and the Minor were
engaged in an interview for purposes that did not involve creating a record
for any kind of trial and that they were unaware of the recording. As far as
they knew, Piper was simply standing near the door so they could safely
engage in a private conversation. Piper’s presence, which in context
reasonably would have been understood as ensuring the safety and security
of the social worker and the Minor, did not convert Donnelly’s brief interview
of the Minor into a criminal investigation.
Ramirez Ruiz contends that Donnelly’s interview was more like the
home interview discussed in the Hammon part of Davis, which the Supreme
Court held was testimonial. We disagree. There, police only interviewed the
victim after she told them there was nothing wrong as she sat alone on her
porch, which could be reasonably viewed as indicating there was no ongoing
emergency. Furthermore, although the interview occurred in her home with
23
the defendant present, it was conducted by law enforcement officers who had
her complete and sign a battery affidavit. These factual circumstances
matter greatly; the Davis court emphasized that its holding regarding
Hammon did not establish a blanket rule regarding statements to police
called to investigate a potential crime scene. (Davis, supra, 547 U.S. at
p. 832.) Indeed, the court noted, “exigencies,” such as officers’ “ ‘need to know
whom they are dealing with in order to assess the situation, the threat to
their own safety, and possible danger to the potential victim’ ” “may often
mean that ‘initial inquiries’ produce nontestimonial statements.” (Ibid.)
Such exigencies existed when Donnelly interviewed Minor.
Ramirez Ruiz also relies on People v. Sisavath (2004)
118 Cal.App.4th 1396 to argue that Minor’s statements to Donnelly were
testimonial. There, the appellate court held it was reasonable to conclude
that the alleged victim’s statements to a “ ‘forensic interview specialist’ ”
would be available for use in a criminal prosecution. (Id. at p. 1402.) The
case is not on point. It involved an interview similar to the forensic interview
of Minor conducted at the Keller Center the day after Minor spoke with
Donnelly, not the kind of initial safety-related interview at issue here.
In short, here, a nighttime welfare check of a Minor in the custody of a
father who, it was reported earlier that day, could be sexually abusing her,
conducted by a social worker charged with responding to emergency reports
to assess potential victims’ safety, is a much different circumstance than
those discussed in the cases cited by Ramirez Ruiz. There are no objective
indications in the record that Donnelly was conducting an investigation for a
potential criminal prosecution or that Minor spoke to Donnelly with that
24
purpose in mind. The court did not err by admitting Minor’s recorded
statements and denying Ramirez Ruiz’s motion for a mistrial.
Ramirez Ruiz’s motion for new trial was similarly unpersuasive.
Although his counsel contended in a supporting brief that Deputy Piper took
the lead in a second interview with Minor some minutes after the Donnelly
interview, counsel did not present evidence of that later interview, so the
contention added nothing to the argument. (In re Zeth S. (2003) 31 Cal.4th
396, 413, fn. 11 [stating, “the unsworn statements of counsel are not
evidence” regarding facts asserted in a brief].) Regardless, that Donnelly’s
interview might have led to further questioning by Deputy Piper after
Donnelly had concluded she had enough information to evaluate whether
Minor was safe does not alter our conclusion. “A nontestimonial encounter
addressing an emergency may evolve, converting subsequent statements into
testimonial ones.” (Blacksher, supra, 52 Cal.4th at p. 814; see also People v.
Saracoglu (2007) 152 Cal.App.4th 1584, 1593 [“ ‘a conversation which begins
as an interrogation to determine the need for emergency assistance’ can
“ ‘ “evolve into testimonial statements” ’ ”], quoting Davis, supra, 547 U.S. at
p. 828].) The trial court did not abuse its discretion in denying the part of
Ramirez Ruiz’s motion for a new trial that was based on Crawford.9
II.
Ramirez Ruiz’s Corpus Delicti Claim
“In every criminal trial, the prosecution must prove the corpus delicti,
or the body of the crime itself—i.e., the fact of injury, loss, or harm, and the
existence of a criminal agency as its cause. In California, it has traditionally
been held, the prosecution cannot satisfy this burden by relying exclusively
9Having concluded that Ramirez Ruiz’s claims are meritless, we do not
address the parties’ arguments regarding whether any error was prejudicial.
25
upon the extrajudicial statements, confessions, or admissions of the
defendant”; “some independent proof of the corpus delicti” is required.
(People v. Alvarez (2002) 27 Cal.4th 1161, 1168-1169 (Alvarez).) Ramirez
Ruiz argues that, even if Minor’s statements to Donnelly were properly
admitted, there was insufficient evidence of the corpus delicti to support any
of his convictions and that the court’s arbitrary disregard of the corpus delicti
requirement violated his due process rights under the federal Constitution.
We disagree that there was insufficient independent evidence to support his
convictions on counts 3 and 5 for continuous sexual abuse and forcible rape,
respectively, of a minor under 14 years old (§§ 288.5, subd. (a), 261,
subd. (a)(2)). However, we agree there was insufficient independent evidence
to support his conviction on count 2, for oral copulation or sexual intercourse
with a child 10 years old or younger (§ 288.7, subd. (a)). We therefore reverse
the latter conviction.
A. Additional Proceedings Below
Near the end of the trial, Ramirez Ruiz filed a motion for judgment of
acquittal under section 1118.110 regarding counts one and two, which the
prosecution opposed. After the parties finished presenting evidence, defense
counsel orally moved in chambers for the dismissal of all counts. The court
indicated it was going to dismiss all but counts 2, 3 and 5. Thereafter, in
open court, outside the presence of the jury, defense counsel argued there was
no proof of the corpus delicti independent of Ramirez Ruiz’s statements to
10 Section 1118.1 states in relevant part, “In a case tried before a jury,
the court on motion of the defendant . . . , at the close of the evidence on
either side . . . shall order the entry of a judgment of acquittal of one or more
of the offenses charged . . . if the evidence then before the court is insufficient
to sustain a conviction of such offense or offenses on appeal.”
26
Detective Lopez regarding count 2. The prosecution argued there was
sufficient evidence.
The trial court denied the motion regarding count 2. It stated, “We
certainly did discuss this at length and in chambers. Based on the case cited
by counsel as well as other cases that were before the court, in this context of
sexual assault, corpus is broadly defined in terms of the physical act. And all
elements of . . . a crime do not have to be shown in the evidence apart from
defendant’s confession. [¶] So I am finding corpus sufficient. I did not find
corpus sufficient for count 1. But I did find corpus sufficient for count 2.”
In his closing argument, defense counsel argued the jury should acquit
Ramirez Ruiz for lack of evidence independent of Ramirez Ruiz’s own
statements that supported certain elements of the charged offenses. On
rebuttal, the prosecutor contended there was additional evidence, such as
Minor’s recorded statement to Donnelly, the medical exam showing a deep
notch in Minor’s hymen consistent with sexual abuse, and the evidence of
Ramirez Ruiz’s seminal fluid on Minor’s bra and his DNA on a swab of
Minor’s breast.
The trial court instructed the jury with CALCRIM No. 359, which
states in relevant part, “The defendant may not be convicted of any crime
based on his out-of-court statements alone. You may rely on the defendant’s
out-of-court statements to convict him only if you first conclude that other
evidence shows that the charged crime or a lesser included offense was
committed. [¶] That other evidence may be slight and need only be enough to
support a reasonable inference that a crime was committed. [¶] This
requirement of other evidence does not apply to proving the identity of the
person who committed the crime. If other evidence shows that the charged
27
crime or a lesser included offense was committed, the identity of the person
who committed it may be proved by the defendant’s statements alone.”
Ramirez Ruiz raised his corpus delicti claims again in his motion for
new trial (in addition to his Crawford claim). After hearing argument, the
trial court again rejected these claims, finding “sufficient, independent
evidence of corpus to support each of the offenses.”
B. Legal Standards
As we have discussed, “the prosecution must prove the corpus delicti, or
the body of the crime itself—i.e., the fact of injury, loss, or harm, and the
existence of a criminal agency as its cause,” and “cannot satisfy this burden
by relying exclusively upon the extrajudicial statements, confessions, or
admissions of the defendant”; “some independent proof of the corpus delicti”
is required. (Alvarez, supra, 27 Cal.4th at pp. 1168-1169.) Although the part
of the common law corpus delicti rule excluding unsupported extrajudicial
statements from evidence was abrogated by article I, section 28,
subdivision (d) of the California Constitution, the part requiring some
independent proof of the corpus delicti to convict a defendant who makes an
incriminating statement remains in force “to ensure that one will not be
falsely convicted, by his or her untested words alone, of a crime that never
happened.” (Alvarez, at pp. 1165, 1169.) In other words, as a result of this
partial abrogation, the evidence of unsupported extrajudicial statements is
now admissible, but conviction still requires independent proof of the corpus
delicti.
As reflected in CALCRIM No. 359, “ ‘ “[a] slight or prima facie showing,
permitting the reasonable inference that a crime was committed, is
sufficient” ’ ” to satisfy the corpus delicti rule. (People v. Gutierrez (2002)
28 Cal.4th 1083, 1127-1128.) “The independent proof may be circumstantial
28
and need not be beyond a reasonable doubt, but is sufficient if it permits an
inference of criminal conduct, even if a noncriminal explanation is also
plausible. [Citations.] There is no requirement of independent evidence ‘of
every physical act constituting an element of an offense,’ so long as there is
some slight or prima facie showing of injury, loss, or harm by a criminal
agency.” (Alvarez, supra, 27 Cal.4th at p. 1171; see also People v. Sanchez
(2016) 246 Cal.App.4th 167 [circumstantial evidence of criminal activity
satisfies the corpus delicti rule].)
We review the evidence to determine if this “‘slight or prima facie
standard” has been met. (People v. Jennings (1991) 53 Cal.3d 334, 368
(Jennings).) As we have discussed, we generally review the court’s ruling on
a motion for a new trial under a deferential abuse of discretion standard, but
we independently review for legal error. (Aguilar v. Atlantic Richfield Co.
(2001) 25 Cal.4th 826, 859-860.)
B. Analysis
We agree with the People that there was sufficient evidence of the
corpus delicti to convict Ramirez Ruiz of counts 3 and 5.
Regarding count 3, continuous sexual abuse of a minor under 14 years
old, section 288.5, subdivision (a) states, “Any person who . . . resides in the
same home with the minor child . . . , who over a period of time, not less than
three months in duration, 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 is
guilty of the offense of continuous sexual abuse of a child . . . .”
29
Regarding count 5, forcible rape of a child under 14 years old on or
about September 16, 2016, section 261, subdivision (a)(2) defines rape as “an
act of sexual intercourse accomplished with a person not the spouse of the
perpetrator . . . against a person’s will by means of force, violence, duress,
menace, or fear of immediate and unlawful bodily injury on the person of
another.”
According to the evidence presented to the jury, Minor, who was 11
years old at all relevant times, told Donnelly that Ramirez Ruiz had put his
“private part” in her “private part” the previous Friday and, when asked
when was the first time it happened, answered, “[l]ike, three months” before,
and that “then” she told him she was going to her Mother but he had
threatened to hit her if she did. Furthermore, a medical examination found a
“deep notch” in Minor’s hymen, the presence of which was consistent with
sexual abuse, even though this notch did not establish conclusively that
sexual abuse had occurred. Also, Ramirez Ruiz’s seminal fluid was found on
Minor’s bra. This evidence was sufficient to establish the corpus delicti
regarding both counts three and five. Certainly, it was evidence that
Ramirez Ruiz had forcibly raped Minor the previous Friday under threat of
physically harming her, satisfying the requirements of count 5. The evidence
was not as clear regarding count 3 because Minor specifically referred to only
two incidents of abuse in her statements to Donnelly, not the three required
by section 288.5, subdivision (a). However, as the People point out, two
California Supreme Court cases show how slight the evidence may be and
still satisfy the corpus delicti rule.
In People v. Jones (1998) 17 Cal.4th 279, the court considered whether
there was corpus delicti evidence that supported an oral copulation charge.
(Id. at p. 302.) The victim was found dying from a gunshot wound to the
30
head. (Ibid.) Medical experts “found bruises on her thighs, knees, legs, and
perineal area,” injuries on her hands, and semen inside her vagina, on her
external genitalia, and in her rectal area. (Ibid.) “No trace of semen was
found in [the victim’s] mouth; an expert testified, however, that negative test
results were not inconsistent with oral copulation because the mouth’s
natural rinsing processes eliminate semen.” (Ibid.) Also, the victim was not
wearing underpants or a brassiere, which she customarily wore. (Ibid.) Our
Supreme Court rejected the defendant’s claim that there was insufficient
corpus delicti evidence because the corpus delicti rule does not require
“independent evidence of every physical act constituting an element of an
offense . . . . Instead, there need only be independent evidence establishing a
slight or prima facie showing of some injury, loss or harm, and that a
criminal agency was involved.” (Id. at p. 303.)
In Jennings, supra, 53 Cal.3d 334, our Supreme Court rejected the
defendant’s argument that the prosecution had failed to establish the corpus
delicti of rape although “the evidence of rape was not strong.” (Id. at p. 367.)
No seminal fluids were found on the victim’s body, no evidence of penetration
existed, and there was “no evidence that the victim’s clothes were arranged in
such a manner as to suggest a sexual assault.” (Ibid.) Nonetheless, the court
held the corpus delicti of rape was established based on evidence that the
victim’s body was found unclothed in a remote site with a broken jaw. (Id. at
pp. 367-368.) The court reasoned that the location and condition of the body
gave rise to an inference “that some sexual activity occurred” and “whatever
sexual activity occurred, it occurred against the victim’s will.” (Ibid.)
Based on these cases, we conclude it can be reasonably inferred from
evidence independent of his confession that Ramirez Ruiz had committed at
least three acts of sexual abuse, as defined under section 288.5,
31
subdivision (a), in the previous three months. Specifically, Minor’s
statements that Ramirez Ruiz had penetrated her private part with his own
the previous Friday and had first done so three months earlier, coupled with
the evidence of seminal fluid and semen found on Minor and her clothing,
some of which could be identified as that of Ramirez Ruiz, is sufficient
evidence of the corpus delicti of the crime of continuous sexual abuse of a
child under 14. Therefore, the court did not err in denying the motion to
dismiss or the new trial motion in regard to count 3 and count 5.
However, we agree with Ramirez Ruiz that there was insufficient
corpus delicti evidence to support count two, which alleged that Ramirez Ruiz
had engaged in oral copulation or sexual penetration with a child 10 years old
or younger in violation of section 288.7, subd.(b). Minor turned 11 in January
2016. In September 2016, she told Donnelly her father had first penetrated
her private part with his own “[l]ike, three months” before, meaning
sometime around June 20, 2016. This date was almost five months after her
11th birthday. Neither Minor’s testimony nor any other evidence
independent of Ramirez Ruiz’s confession indicates that Ramirez Ruiz
engaged in any sex act with Minor before her 11th birthday. The only
evidence that he did so consisted of his own statements to Detective Lopez
indicating that he had kissed Minor’s vagina “at the beginning,” just one
time, and agreed with Lopez that it had occurred “last year” and stopped
“when [Minor] went on Christmas vacation.”
Although, as we have discussed, corpus delicti evidence can be quite
slight, we think it a bridge too far to hold that corpus delicti evidence of
sexual abuse identified by the victim as beginning around a particular time
supports the inference that a sexual assault of a different kind occurred more
than five months earlier. None of the cases cited by the People support such
32
a holding. (See People v. Jones, supra, 17 Cal.4th 279; Jennings, supra,53 Cal.3d 334; People v. Tompkins (2010) 185 Cal.App.4th 1253, 1260
[“separate evidence is not required as to each individual count to establish
the corpus delicti”]; People v. Culton (1992) 11 Cal.App.4th 363, 372-373
[pediatrician’s testimony regarding abnormalities consistent with sexual
abuse sufficient to support 10 lewd act charges].) We conclude that we must
reverse count two for failure of the prosecution to present any evidence of the
corpus delicti. The trial court erred when it concluded otherwise and abused
its discretion when it denied Ramirez Ruiz’s motion for a new trial on this
issue.
DISPOSITION
The rulings appealed from are affirmed, except that we reverse
Ramirez Ruiz’s conviction for count two, for oral copulation or sexual
intercourse with a child 10 years old or younger (§ 288.7, subd. (a)). We
remand with instructions to the trial court to prepare an amended abstract of
judgment and send a copy of it to the California Department of Corrections
and Rehabilitation.
33
STEWART, J.
We concur.
KLINE, P.J.
RICHMAN, J.
People v. Ramirez Ruiz (A153135)
34
Trial Court:San Mateo County Superior Court
Trial Judge: Hon. John L. Grandsaert
Counsel:
Law Offices of Beles & Beles, Robert J. Beles, Paul G. McCarthy, and Joseph
L. Ryan for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Jeffrey M. Laurence, Assistant Attorney General, Eric D.
Share and Leif M. Dautch, Deputy Attorneys General for Plaintiff and
Respondent.
35