Filed 6/28/16 P. v. R uiz CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent,

v. PEDRO L. RUIZ, Defendant and Appellant. H042398 (Monterey County Super. Ct. No. SS142919A)

S TATEMENT O F T HE C ASE 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 h er 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 an d 6 were committed bet ween July 15, 2014 and
November 16, 2014. The named victim in all six counts was Jane Doe. A jury conv icted defendant on all counts. The trial court sentenced defendant to 12 years in prison as follows: eight years for count 1, t wo years for count 5, two years2

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

tr ial court prejudicially erred in providing conflicting instructions regarding motive for count 4. He additionally contends that the prison terms for count s 3 and 4 must be stayed pursuant to Penal Code section 654. As set forth below, we will stay the pr ison terms for counts 3 and 4, and we will affirm the judgment in all other respects.
S TATEMENT OF THE F ACTS Fa mily 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 wa tched 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 member s left for the party, she was using the family computer and said she would be at the pa rty 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,
defenda nt ’ 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 D oe ’ 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. The y 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 s eat, and he and Jane Doe were both naked. Defendant was positioned “in3

between” Jane Doe ’ s legs. Jane Doe ’ s father grabbed and held defendant. Defendant was sweaty and slippery, and defendant said that “she wanted it .” Jane Doe ’ s brother saw a police car and fla gged it down. Jane Doe ’ s brothe r told the police officer inside the car that his sister was being “raped.” The police officer arrested defendant and took him to the police station

. Jane Doe refused to speak with the police or her family members about what had happened with defendant . She did not testify at trial. Defendant ’

s Confession A police officer interviewed defendant at the police station. The interview was videotaped, and the video was played for the jury at trial. During the interview, defendant said that he knew Jan e Doe was 12 years old. Defendant said that he and Jane Doe had been in a boyfriend

- girlfriend relationship fo r about four months. He admitted that his relationship with J ane Doe was wrong.
Defendant said that he an d Jane Doe arranged to meet on Novembe r 16, 2014. He
admitted that he rubbed Jane Doe ’ s vagina and had sex with her on November 16, 2014.
He explained that he inserted his penis inside her vagina five or six times, but he did it “slowly” because she was a “c hild.” In the interview, defend ant admitted that he had rubbed Jane Doe ’ s vagina before November 16, 2014. He admitted that he had kissed Jane Doe before
November 16, 2014. He also said that he sent Jane Doe a picture of his penis through
Facebook. Defendant told the interviewing officer, “I ’ ve never gone in wit h a child like that.” Defendant also said, “I have never gone out with little girls.”4

Defendant ’

s Online Communications with Jane Doe Between November 14, 2014 and November 16 , 2014, d efendant and Jane Doe engaged in ma ny conversations through Facebook

. The prosecution introduced those
Facebook messages into evidence.
In a Facebook conversation on November 14, defendant asked Jane Doe when she would turn 13 years old and when she could have a boyfriend. Jane Doe inf ormed defendant that she would not turn 13 years old until June.
In other Facebook conversations on November 14, defendant and Jane Doe arranged to meet lat e that night. Defendant expressed fear that they would be caught meeting, stating that he could be put “in jail for 15 years for being with a minor girl.” At
12: 29 a.m. on November 15, defendant informed Jane Doe that he was at her house. At 12:37 a.m. on November 15, Jane Doe responded, “Okay.” In the next message, sent at 1:46 a.m. on November 1 5, d efendant said to Jane Doe, “Until tomorrow , beautiful girl.” Later on November 15, defendant sent Jane Doe the following message through
Facebook : “ How I wish you were older. . . . You are very beautiful. I like your tasty thing.” Jane Doe replie d with a smiley face image. Defendant then asked, “Will you let
me touch i t well next time?” In other Facebook conversations on November 15, defendant and Jane Doe expressed their love for each other, and defendant said Jane Doe caused him “damage” becau se she was “prohibited.”
In the morning on November 16, defendant sent Jane Doe Facebook messages in which he said he was going to take a shower and in which he invited her to shower with
him. Later on November 16, defendant and Jane Doe sent Facebook messages expressing their love for each other, and defendant told Jane Doe, “I want you.” In
another Facebook message sent on Novembe r 16, defendant told Jane Doe, “[Y]ou make

me want to m ake love to you.” Defendant also told Jane Doe that he was “afraid ” because she was “very young.”5

In the evening on November 16, defendant used Facebook to arrange a meeting
with Jane Doe. Defendant sent Jane Doe the following message: “Can you come out so I can see you?” Jane Doe responded, “Yes.” Defendant infor med Jane Doe: “I will wait for you where we were last night.” Defendant told Jane Doe he would be there in 10 minutes, and she replied, “Okay.” Defendant then sent Jane Doe the following message:
“I am here. Come.”
D ISCUSSION I. Conflicting Instruc t ions Regarding Motive
Defendant contends that we must reverse his conviction on count 4, a violation of Penal Code section 288.4, because the trial court gave conflicting instructions on the
motive element of that crime. As explained below, the trial co urt committed instructional

error , but defendant did not suffer prejudice necessitating reversal.
A. Background Count 4 charged defendant with meeting a minor for lewd purposes, in violation of Penal Code section 288.4, subdivision (b), on November 1 6, 2014. For count 4, t he trial court instructed the jury with CALCRIM No. 1126, the pattern instruction for Penal Code section 288.4, subdivision (b). That instruction required the prosecutor to prove that defendant “ was motivated by an unnatural or abnormal sexual interest in children .” The trial court also instructed the jury with CALCRIM No. 370, the pattern instruction regarding motive

. That instruction informed the jury that the prosecutor was “not required to prove that the defendant had a mo tive to commit any of the crimes charged.” During closing arguments, the prosecutor informed the jury that “one of the elements for 288.4 [is] that it was motivated by an abnormal or unnatural int erest in a child.” The prosecutor argued that the motivat ion element was satisfied because the6

evidence showed that defendant wanted to have sexual contact with Jane Doe and “[a]ny
interest in a child is abnorm al and unnatural.” In her closing argument, defense counsel conceded that defendant was guilty of violating Penal Code sections 288.3 and 288.4, as charged in counts 3 and 4. At the beginning of her closing argument, defense counsel informed the jury: “I ’ m telling you, for those two charges I think you are very easily going to be able to check off th e elements of those two charges. I ’ ll give you those. You ’ re easily going to find him guilty of those two charges. My focus is on the other four [charges].” Later in her closing argument, defense counsel stated: “Now, again, remember, counts 3 or 4, t his is the contacting a minor to meet and actually following through with the meeting. Got to go through the check mark. [The prosecutor] has to prove it. But I ’ m pretty sure you ’ re going to find real quickly that all those boxes are checked. That ’ s no t going to be an issue, I don ’ t believe.”
B. The Trial Court Erred
Defendant contends that the trial court committed instructional error because CALCRIM No. 1126 “told the jury the People must prove [defendant ’ s] motivation” for
count 4 and CALCRIM No . 370 “told the jury that the People did not have to prove it.” (Italics in original.) Defendant emphasizes that the conflicting instructions “relieved the prosecutor of the burden of proving that [defendant] was motivated by an unnatural or
abnormal inte rest in children.” The Attorney General concedes that the trial court erred: “[T]he jury was effectively instructed both that a [Penal Code] section 288.4 violation has a motive element and that none of the crimes charged against [defendant] had motive

e lements . . . . [T]he trial court here should have modified CALCRIM No. 370 to clarify that it was inapplicable to the [Penal C ode] section 288.4 violation.” We agree that the trial court committed instructional error. “ Motive is not generally an element of a criminal offense. But when it is an element, the trial court errs7

by giving an unmodi fied version of CALCRIM No. 370. . . .” ( People v. Valenti (2016) 243 Cal.App.4th 1140, 1165 ( Valenti ) , italics in original .) Mo tive is an element of Penal
Code section 288.4. To convict defendant on count 4 , the jury had to find that defendant
was “ motivated by an unnatural or abnormal sexual interest in children. ” (Pen. Code , § 288.4, subd. (a)(1) ; Pen. Code , § 288.4, subd. (b) .) The trial court should have modified CALCRIM No. 370 to specify that it was inapplicable to the Penal Code section 288.4 violation charged in count 4. The issue is whether the trial court ’ s error

necess itates reversal of count 4.
C. Defendant Did Not Suffer Prejudice Necessitating Reversal of Count 4 The parties agree that the instructional error here must be reviewed for prejudice under the “harmless beyond a reasonable doubt” standard articulated in People v. Chapman ( 1967) 386 U.S. 18 , 24 ( Chap man ). The parties also agree that we should
utilize the particularized Chapman analysis employed by the United States Supreme
Court in Neder v. United States (1999) 527 U.S. 1 ( Neder ). We look to Neder to determine whether defendant suffered prejudice necessitating reversal. (See Valenti,

supra, 243 Cal.App.4th at pp. 1165

- 1167 [treating conflicting instructions on motive as “a failure to instruct on an element of the offense” and applying Neder analysi s to the error].)
In Neder , the Supreme Court concluded that an erroneous instruction that omits an element of an offense is subject to harmless error analysis under Chapman

. ( Neder,

supra, 527 U.S. at p. 15; see also People v. Gonzalez (2012) 54 Cal. 4t h 643, 663 .) When
the trial court ’ s instructions omit an element of an offense, Neder prescribes the following variation of the Chapman test : “ Is it clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the err or? ” ( Neder, supra, 527 U.S. at p. 18.) Neder held that “ where a reviewing court concludes beyond a reasonable doubt that the omitted element was uncontested and supported by8

overwhelming evidence, such that the jury verdict would have been the same abse nt the error, the erroneous instruction is properly found to be harmless.” ( Id. at p. 17

. ) Here, the motive element for count 4 was uncontested. We have reviewed the
entire record, and defendant presented no evidence to contest the motive element of the Penal Code section 288.4 violation charged in count 4. Indeed, all of the elements of the
Penal Code section 288.4 violation were uncontested. In closing argument , defense counsel conceded that defendant was guilty of violating Pena l Code secti on 288.4 as charged in count 4. We thus must conclude that the motive element of count 4 was
uncontested. Overwhelming evidence supported the motive element of count 4

. A defendant is guilty of violating Penal Code section 288.4 only if he was “ motivated by an unnatural or
abnormal sexual interest in children. ” (Pen. Code , § 288.4, subd s . (a)(1) & (b).) This motive element is satisfied by any sexual interest in a child “ because there can be no
normal sexual interest in any child.” ( Peopl e v. Shaw (2009) 177 Cal.App.4th 92, 103, italics in original.) Overwhelming evidence demonstrated that defendant was motiv ated by sexual interest in a child when he arranged to meet Jane Doe on November 16, 2014. The evidence showed that defendant recog nized that Jane Doe was a child. Defendant admitted that he knew Jane Doe was 12 years old, he referred to Jane Doe as a “child” in the police interview, and he described Jane Doe as “very young” in a Facebook message.
The evidence also showed that defen dant arranged the November 16, 2014 meeting in order to engage in sexual activity with Jane Doe

. Bef ore the meeting on
November 16, 20 14, defendant had sexual contact with Jane Doe

— he admitted that he
had rubbed Jane Doe ’ s vagina and kissed her before November 16, 2014. On
November 16, 2014, defendant expressed his desire to engage in further sexual activity with Jane Doe, stating his wish to “make love to” Jane Doe in a Facebook message

. Defendant did in fact have sexua l intercourse with Jane Doe at the November 16, 20149

meeting ; family members discovered defendant and Jane Doe naked toget her, and
defendant confessed that he had sex with Jane Doe on November 16, 2014. On this evidentiary record, we must conclude that th e motive element of count 4 was supported by overwhelming evidence. In light of the aforementioned circumstances, w e are satisfied beyond a reasonable
doubt that the motive element of count 4 was uncontested and supported by overwhelming evidence , such that the verdict would have been the same absent the
instructional error . We therefore must conclude that reversal of count 4 is unwarranted.
Defendant contends that reversal of count 4 is required because a review of the
entire record reveals that a “rational juror could have determined . . . that [ his ] conduct in arranging the meeting was motivated by a misguided romantic interest in Jane Doe, rather
than a sexual interes t in children.” Defendant correctly points out that Neder requires a reviewing court to “conduct a thorough examination of the record.” ( Neder, supra, 527 U.S. at p. 19.) Defendant also correctly points out that Neder requires a reviewing court to determine “whether the record contains evidence that could rationally lead to a

contr ary finding with respect to the omitted element.” ( I bid .) We have thoroughly reviewed the record, and we have found no evidence that could rationally lead to a contrary finding on the motive element of count 4. Although, as defendant points out, the
eviden ce showed that he and Jane Doe declared their love for each other , those
declarations in no way negate d the overwhelming evidence demonstrating defendant ’ s sexual interest in 12

- year

- old Jane Doe. Any sort of “ misguided romantic interest ” felt by de fendant coexisted with defendant ’ s sexual interest in Jane Doe. Defendant ’ s argument in favor of reversal is not persuasive.
II. Penal Code Section 654
Defendant contends that the concurrent prison terms imposed for count 3 , contacting a minor with i ntent to commit a sexual offense, and count 4 , meeting a minor10

for lewd purposes, should have been stayed pursuant to Penal Code section 654 because
those offenses “ were incident to ” the lewd acts convictions in counts 1 and 2

. Defendant emphasizes that h is “sole criminal objective in contacting Jane Doe and in arranging and going to a meeting with her was to commit lewd acts u pon her.” The Attorney General concedes that the prison terms for counts 3 and 4 must be stayed , noting that defendant “contacted and arranged a meeting with Jane on November 16, 2014 as a means of facilitating and accomplishing the sexual gratification he experienced when he committed
lewd acts on her that evening.” Penal Code section 654 provides, in relevant part: “An act or omi ssion that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision .” (Pen. Code, § 654, subd. (a).) Penal Code section 654 “ bars multiple punishment when a defendant is convicted of two or more offenses that are incident to one objective. ” ( People v. Casica (2014) 223 Cal.App.4th 320, 323.) Penal Code section 654 “does not allow any multiple punishment, including either concurrent or consecutive sentences.” ( People v. Deloza (1998) 18 Cal.4th 585, 592.) We accept the Attorney General ’ s concession. We accordingly will modify the judgment to stay the prison terms imposed for counts 3 and 4 pursuant to Penal Code
section 654.
D ISPOSITION The j udgment is modified to stay the prison terms imposed for counts 3 and 4 pursuant to Penal Code section 654 . As so modified, the judgment is affirmed.11 _________ _____________________________

RUSHING , P.J.

WE CONCUR:

____________________________________

PREMO, J

.

____________________________________

MÁRQUEZ, J.