People v. Ruiz CA6

Filed 6/28/16 P. v. Ruiz CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, H042398 (Monterey County Plaintiff and Respondent, Super. Ct. No. SS142919A)

v.

PEDRO L. RUIZ,

Defendant and Appellant.

STATEMENT OF THE CASE An information charged defendant Pedro L. Ruiz with four counts of lewd acts upon a child under the age of 14 (Pen. Code, § 288, subd. (a); count 1 [describing lewd act as “inserting his penis into her vagina”], count 2 [describing lewd act as “touching” vagina], count five [describing lewd act as “rubbing her vagina with his hand”], and count 6 [describing lewd act as “kissing”]), one count of contacting a minor with intent to commit a sexual offense (Pen. Code, § 288.3, subd. (a); count 3), and one count of meeting a minor for lewd purposes (Pen. Code, § 288.4, subd. (b); count 4). The information alleged that counts 1, 2, 3, and 4 were committed on November 16, 2014, and it alleged that counts 5 and 6 were committed between July 15, 2014 and November 16, 2014. The named victim in all six counts was Jane Doe. A jury convicted defendant on all counts. The trial court sentenced defendant to 12 years in prison as follows: eight years for count 1, two years for count 5, two years

for count 6, a concurrent eight-year term for count 2, a concurrent three-year term for count 3, and a concurrent four-year term for count 4. Defendant now appeals from the judgment of conviction. He contends that the trial court prejudicially erred in providing conflicting instructions regarding motive for count 4. He additionally contends that the prison terms for counts 3 and 4 must be stayed pursuant to Penal Code section 654. As set forth below, we will stay the prison terms for counts 3 and 4, and we will affirm the judgment in all other respects. STATEMENT OF THE FACTS Family Members Discover Defendant Engaged in Lewd Conduct with Jane Doe In November 2014, Jane Doe’s brother played in a band with 24-year-old defendant. Jane Doe, who was 12 years old, had watched the band practice. On the evening of November 16, 2014, Jane Doe’s parents and brother went to a party at their apartment complex. Jane Doe was supposed to attend the party. When her family members left for the party, she was using the family computer and said she would be at the party in a few minutes. After they arrived at the party, Jane Doe’s father and brother saw defendant’s car drive into the apartment complex. After a few minutes, defendant’s car exited the apartment complex. Jane Doe’s family members noticed that Jane Doe had not joined them at the party. Jane Doe’s mother went to the family’s apartment to get Jane Doe, but Jane Doe was not there. Jane Doe’s brother checked the family computer, and he saw Facebook messages that defendant and Jane Doe had exchanged. In the messages, defendant said he wanted to see Jane Doe and would meet her in 10 minutes. Jane Doe’s father, mother, and brother got into the family car and looked for Jane Doe. They eventually saw defendant’s car parked in a parking lot. Jane Doe’s father opened defendant’s car door. Defendant was lying on top of Jane Doe in the reclined passenger seat, and he and Jane Doe were both naked. Defendant was positioned “in