1

Filed 10/27/20; Opinion following rehearing

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, 

 Plaintiff and Respondent,

v.

BENJAMIN RAMIREZ RUIZ,

 Defendant and Appellant.

 A153135

 (San Mateo County Super.

 Ct. No. 16SF011617)

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 
2

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.
3

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. 

4 We discuss other aspects of Donnell’s testimony in our discussion of 

Ramirez Ruiz’s confrontation clause claim post. 
4

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 

5 The jury was provided with the prosecution’s transcript and was 

instructed that the recording, not the transcript, was the evidence. 
5

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 
6

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.”
7

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 
8

“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.) 
9

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 
10

“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 
11

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 
12

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. 
13

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 coworker 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 
14

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.” 
15

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.” 
16

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 
17

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 
18

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 
19

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 
20

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.) 
21

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 
22

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 
23

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 
24

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 
25

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

9 Having concluded that Ramirez Ruiz’s claims are meritless, we do not 

address the parties’ arguments regarding whether any error was prejudicial.
26

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.”
27

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 
28

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 
29

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 . . . .” 
30

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 
31

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, 
32

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 
33

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. 
34

STEWART, J.

We concur.

KLINE, P.J.

RICHMAN, J.

People v. Ramirez Ruiz (A153135)
35

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.