P. v. Ramirez

Filed 4/17/09 P. v. Ramirez CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

A jury convicted appellant Francisco Ramirez of unlawful sexual intercourse with a minor and two counts of oral copulation with a minor. (Pen. Code,[1]  261.5, subd. (d), 288a, subd. (b)(2).) He was sentenced to two years in state prison. Ramirez appeals, contending that his due process right to a fair trial was violated by the trial courts instructional errors and by improper prosecutorial argument. We affirm the judgment.

I. FACTS

In the summer of 2006, Jane Doe was 14 years old, soon to begin ninth grade at a Concord high school. She first saw appellant Francisco Ramirez when she was at a Clayton store with her parents. She smiled at Ramirez to get his attention and later, when her parents were elsewhere, he approached her. They spoke until her mother approached and Jane Doe left the store.

A week later, Jane Doe saw Ramirez again near her Bay Point home. While her mother was out of sight, he drove up to her in his car. He gave her his telephone number and asked her to call him. By the time her mother returned, Ramirez had left. Soon, Jane Doe began telephoning Ramirez. She told him that her parents would not allow her to have a boyfriend until she had graduated from high school.

Jane Doe asked Ramirez to meet her at a Concord store she was planning to go to with her mother. He did so, presenting her with a rose while her mother was occupied elsewhere in the store. They kissed and hugged each other. He told her that he missed her and wanted to be with her. The two of them were embracing when Jane Does mother saw them. The mother yelled at Ramirez angrily, asking him who he was and what he was doing with her daughter. He ran off.[2]

Jane Does parents took away her cell phone until school started, so she could not call Ramirez for a while. She was out walking one day and he drove by. Her mother was nearby, so Jane Doe went home and called his cell phone from the house phone. She explained that she had not been calling Ramirez because she had gotten into trouble.

Once school started a few weeks later, Jane Does cell phone was returned to her and she began calling Ramirez again. They sent text messages to each other, too. When Ramirez asked Jane Doe how old she was, she said that she was 16, although she was really still 14 years old. He said that he thought she was older. He admitted that he was 26.

The next time Jane Doe saw Ramirez, she was at school. When he invited her to come to his apartment, she went with him. The first time she was at his apartment, they kissed, but did not have intercourse. She stayed with him all day until school let out. She kept her relationship with Ramirez a secret from her parents, even if it meant lying to them.

A week later, Jane Doe came to his apartment again. This time, she invited two of her friends to come with her, but Ramirez was angryhe only wanted to be with her. They left her friends in the living room watching television while she and Ramirez had vaginal intercourse in his bedroom. He used condoms that she had asked him to buy. As before, Jane Doe returned to school that day in time for her mother to pick her up.

Ramirez and Jane Doe began meeting at school on days when he was not working. He picked her up at school and brought her to his apartment. At some point in their relationship, he began calling her school, impersonating her father, and telling school officials that Jane Doe was ill and could not come to school. When he called the school, Ramirez told attendance officials that Jane Doe was in the ninth grade. More than 10 times, Ramirez and Jane Doe had vaginal intercourse at his apartment.[3] Each time, she was back at school in time for her mother to pick her up at the end of the school day. On her birthday in February 2007, Jane Doe had sex with Ramirez for the last time. Besides their usual vaginal intercourse, they orally copulated each other.

In March 2007, Jane Does parents discovered that she had not been attending school. They learned that a man had called the school and arranged to have her to be excused from classes. They confiscated Jane Does cell phone and soon discovered text messages of a suggestive nature on it, which they showed to Concord Police Officer Beth Long.

Officer Long called the number listed on Jane Does cell phone to which the text messages had gone out, and Ramirez answered. She identified herself as a police officer. He identified himself and said that he was born in December 1980. When asked, he denied knowing Jane Doe. When Officer Long told Ramirez that they had a photograph of him with her, he said that she was just my friend. He denied that they had a sexual relationship. Told that Jane Doe was 15 years old, Ramirez told Officer Long that he thought that the girl was older. The officer warned him to stay away from Jane Doe and he agreed, saying he did not want anything to do with her.

Jane Doe was also interviewed by Officer Long. Eventually, Jane Doe admitted that Ramirez was her boyfriend, but she denied missing school to be with him. She told Officer Long that she had only known him since February. When presented with an earlier photograph of him, she stated that they met earlier, but she had only begun dating him in February. Jane Doe told the officer that she had told Ramirez that she was 16[4] and he had told her that he was 20. She denied having a sexual relationship with him and said that only once had she left school to go to his apartment. When asked about the suggestive text messages, Jane Doe said they had only held hands and kissed. She complained that people were making too much of the relationship. When Officer Long told Jane Doe that Ramirez was actually 26, the girl did not seem surprised. Based on the denials of both Ramirez and Jane Doe that any sexual relationship had occurred, Officer Long found insufficient grounds for any criminal charges.

Still, Jane Doe was angry and upset with the police and with her parents. She threatened to kill them and herself if Ramirez went to jail. The next day, Officer Long learned that Jane Doe had threatened to commit suicide. She called Ramirezs cell phone number, which was no longer in service. When the officer learned that Jane Does parents had her hospitalized, she interviewed a hospital psychiatrist who had spoken with the girl. The psychiatrist reported that Jane Doe had admitted to having intercourse once with Ramirez. After speaking again with Jane Doe, Officer Long arrested Ramirez at his apartment.

After he waived his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436), Ramirez gave a statement to Officer Long. He described his initial encounters with Jane Doe in the fall of 2006 and said that she told him she was 18. She looked 18, so he believed her. He thought it was strange when Jane Doe told him that her parents did not allow her to have a boyfriend since she was 18 and dating should be her decision. When he mentioned this to her, Jane Doe said that she had to graduate from high school before her parents would let her date. That sounded reasonable, so Ramirez believed her explanation. As a person who did not go to school in this country, he was uncertain whether she was in the ninth or 11th grade or exactly how old people were in those grades.

When asked if he had a sexual relationship with Jane Doe, Ramirez initially said that it wasnt fair because he thought she was 18. Told that Jane Doe had reported that they had a sexual relationship, Ramirez admitted that they did. He recounted an instance in February when he and Jane Doe orally copulated each other and then had intercourse. He told Officer Long that this was the only time that they had had sex. Ramirez said that he had strong feelings for Jane Doe but that he could not see her anymore because he knew that she was 15. He apologized because he did not know that she was 15.[5]

In April 2007, Ramirez was charged by information with 11 counts of unlawful sexual intercourse with Jane Doe10 alleged to have occurred during the period from August 2006 through March 2007, and one alleged to have occurred on a specific date in February 2007. He was also charged with two counts of oral copulation involving the minor, allegedly occurring on that same date in February 2007. ( 261.5, subd. (d), 288a, subd. (b)(2).) The information alleged that Jane Doe was under age 16 and Ramirez was over 21 years old at the pertinent times. In May 2007, he pled not guilty to all charges.

In June 2007, Ramirez moved to dismiss all but three counts of unlawful sexual intercourse and both oral copulation charges. The count of unlawful sexual intercourse specifically charged to have occurred in February 2007 was dismissed. (See  995.) In all other respects, the motion was denied.

By the time of trial, Jane Doe had turned 15. The key issue at trial was whether Ramirez had a reasonable, good faith belief that she was at least 18 years old when the sexual acts occurred. She told the jury that before they began having sexual intercourse, she told Ramirez that her parents would not let her have a boyfriend until she had finished high school, because she was too young to have one. She did not recall if Ramirez made any comment about this conversation. She told him that she was in the ninth grade. Jane Doe told the jury that sometimes, she and Ramirez argued because he wanted her to spend more time with him. She explained that her parents would not let her go out. When he asked her why she could not have a boyfriend if she was 18, she explained that her father wanted her to finish school first.

Jane Doe also testified that on her birthday in February 2007, she told Ramirez that she was 18 years old. Under questioning, she admitted that this testimony was her first assertion that she had told Ramirez that she was 18, rather than 16 as she had told the police. She told the jury that she was still in love with Ramirez and that she hoped to protect him.

During cross-examination, Jane Doe testified that missing school to be with Ramirez was her idea. She asked him to meet her at school and she gave him directions on how to get there. She asked him to pick her up and take her to his home. She liked the idea that she had a boyfriend who was older, who had a car and an apartment. She told the police that she had only seen Ramirez three or four times. Jane Doe testified that she was worried that if her parents found out that she told Ramirez that she was 18, they would blame her. She denied telling either a prosecution investigator[6] or a hospital psychiatrist that when she first met Ramirez, she told him she was 18.

When Jane Doe threatened to kill herself, her parents had her admitted to a mental hospital for observation. She told a hospital psychiatrist that she welcomed her relationship with Ramirez, that he never forced her to do anything, and that he treated her well. She reported that she had been dating Ramirez for three or four months and that they had had intercourse once at his apartment. She said that she had told him that she was 18 and that she knew he was 26 years old.[7] She also told the psychiatrist that her parents were physically abusive to her when the subject of her relationship with Ramirez arose.[8]

The 26-year-old Ramirez testified in his own defense. He told the jury about his initial meeting with Jane Doe at the store, which was interrupted when her mother noticed them and made the girl nervous. He saw her again a month later and gave her his phone number. She called him a few days later. When Jane Doe invited him to meet her at a store, he did so. She hugged and kissed him. When her mother found them, she was very angry. She phoned him a month later and he met her near her school. He testified that he first had sexual relations with Jane Doe at his apartment in November or December 2006. He admitted having sexual relations with her at least 10 times.

When he asked how old she was, Jane Doe told him that she was 18 years old. She never said that she was 16 years old. He told her that he was 25, which was then accurate. He knew that she was in the ninth grade, but he did not understand what this meant. She told him that she would graduate the following year and that her parents would not allow her to have a boyfriend until then. He was suspicious about some of this, but ultimately accepted what Jane Doe had told him. On her birthday in February 2007, he assumed that she was turning 19, which would have been consistent with what she told him. About this time, when Ramirez tried to figure out the difference between their ages, Jane Doe told him that she was born in 1987, which would mean that she would have turned 20 on that birthday. At trial, Ramirez variously testified that she looked young to him and that she looked older than 18.

Ramirez also testified that he initially denied knowing Jane Doe when Officer Long called him, because he received the call at a noisy location and did not know the caller. He explained that he first learned that Jane Doe was 15 years old when Officer Long told him so. He terminated his cell phone service that same day, so that he would not be able to talk with Jane Doe any longer. By the time he was arrested, he knew that Jane Doe was underage, so he tried to minimize past events when he gave his statement to police.

Ramirez told the jury that at Jane Does request, he called her school to excuse her absences. He did so because she asked him to and because he did not want her to get into trouble with her parents. He loved Jane Doe then and he told the jury that he still loved her at the time of trial. Other defense witnesses testified that Ramirez had a reputation for being honest and hard working.

During deliberations, the jury asked questions focusing on what Jane Doe told Ramirez about her age, whether he was suspicious about her report, and other circumstances relating to his actual and reasonable belief about her age. Ultimately, the jury convicted Ramirez of two counts of oral copulation and one count of unlawful sexual intercourse. (See  261.5, subd. (d), 288a, subd. (b)(2).) It was unable to reach a verdict on the nine remaining charges of unlawful sexual intercourse. The trial court declared a mistrial as to these counts, which were later dismissed on the prosecutions motion.

Ramirez sought a grant of probation, supported by the probation departments recommendation. The prosecution asked for a 16-month prison sentence. The trial court imposed a mitigated term of two years for the unlawful sexual intercourse conviction, with two concurrent mitigated two-year terms for the oral copulation convictions.

II. JURY INSTRUCTIONS

A. Standard of Review

First, Ramirez contends that by failing to instruct the jury that the People were required to prove beyond a reasonable doubt that he did not have an honest, reasonable belief that Jane Doe was age 18 or older, the trial court violated his due process right to have the jury correctly instructed on his defense. He reasons that this instructional error relieved the People of the burden of proving beyond a reasonable doubt all elements of the crime of which he was convicted. (See U.S. Const., 5th & 14th Amends.; Cal. Const., art. I,  7, 15.) He seeks reversal of all three counts of which the jury convicted him.

At trial, Ramirez requested that the trial court give CALCRIM No. 1070[9] on unlawful sexual intercourse with a minor and its companion instruction, CALCRIM No. 1081 on oral copulation with a minor.[10] He argued that these instructions correctly placed on the prosecution the burden of proving beyond a reasonable doubt that he did not have an honest, reasonable belief about Jane Does age. The trial court rejected the proposed CALCRIM instructions, concluding that they were legally incorrect about who bore the burden of proof of the mistake of fact defense. Instead, it chose to instruct the jury with CALJIC No. 10.67,[11] which it found to state the correct law on the burden of

proof of the defense.[12]

This appeal turns on the legal correctness of the jury instructions given and rejected. We determine de novo whether a jury instruction correctly states the law, applying our independent judgment. (People v.Posey (2004) 32 Cal.4th 193, 218; People v.Ramos (2008) 163 Cal.App.4th 1082, 1088.) When doing so, we consider the instructions given as a whole, not in isolation. (People v. Ramos, supra, 163 Cal.App.4that p. 1088; see Estelle v. McGuire (1991) 502 U.S. 62, 72; Francis v. Franklin (1985) 471 U.S. 307, 318-319.) We assume that the jurors are intelligent persons capable of understanding and correlating all the jury instructions they are given. (People v.Ramos, supra, 163 Cal.App.4that p. 1088; People v. Ayers (2005) 125 Cal.App.4th 988, 997.)

At a criminal trial, due process requires that the prosecution prove each element of the charged offense beyond a reasonable doubt. (People v. Thompson (2000) 79 Cal.App.4th 40, 59-60.) A trial court must instruct the jury that the prosecution must prove every required element of a crime before the jury can reach a guilty verdict. (People v. Beeson (2002) 99 Cal.App.4th 1393, 1401.) Jury instructions that relieve the prosecution of the burden of proving each element of the charged offense beyond a reasonable doubt violate the defendants due process rights. (Sullivan v. Louisiana (1993) 508 U.S. 275, 277-278.)

B. Mistake of Fact of Victims Age

Every crime requires proof of a joint operation of act and wrongful intent. ( 20; People v.Mayberry (1975) 15 Cal.3d 143, 154 (Mayberry); see In re Jennings (2004) 34 Cal.4th 254, 279-280 [interpreting statutory language to require some showing of criminal intent, rather than imposing strict liability for criminal offenses] (Jennings).) A person who commits an act as the result of a mistake of fact disproving criminal intent is incapable of committing a crime. (Former  26, subd. Three [as amended by Stats. 1981, ch. 404,  3, p. 1592];[13]Jennings, supra, 34 Cal.4th at pp. 276-277; Mayberry, supra, 15 Cal.3d at p. 153.) A mistake of fact defense may apply if a defendants mistake of fact was reasonable and was made in good faith, because the mistake negates the element of criminal intent. (People v. Hernandez (1964) 61 Cal.2d 529, 535-536 (Hernandez); see Mayberry, supra, 15 Cal.3d at p. 155; see also Jennings, supra, 34 Cal.4th at pp. 276-277.)

Ramirez was convicted of one count of unlawful sexual intercourse with a minor under age 16 and two counts of oral copulation with a minor. The offense of unlawful sexual intercourse with a minor does not require proof that the defendant knew the victims age. (Jennings, supra, 34 Cal.4th at p. 279; see  261.5.) However, the defendant charged with this offense may raise a defense of mistake of fact that he had a reasonable and good faith belief that the victim was age 18 or older, because that beliefif establishedwould counter the criminal intent required to establish the charge. (Jennings, supra, 34 Cal.4th at pp. 279-280; Hernandez, supra, 61 Cal.2d at pp. 535-536; People v.Zeihm (1974) 40 Cal.App.3d 1085, 1089, disapproved on another ground in People v. Freeman (1988) 46 Cal.3d 419, 428 fn. 6; see 2 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Sex Offenses and Crimes Against Decency,  23, pp. 334-335.)

On appeal, Ramirez and the prosecution disagree about who bears the burden of proof related to the mistake of fact defense. Ramirez reasons that the instructions given were incorrect and the ones he sought properly placed the burden of proof of his lack of a mistake of fact on the prosecution.[14] The People counter that the trial court properly required Ramirez to bear the burden of proof of his defense. As we shall explain, we agree with the People that the trial court properly instructed the jury on the mistake of fact defense.

Issues related to the burden of proof of an affirmative defense to a criminal charge have recently been analyzed by the California Supreme Court. Our states high court has held that, while the prosecution has the burden of proof beyond a reasonable doubt of every element of a criminal offense, it is constitutionally permissible to require a defendant to bear the burden of proving an affirmative defense, as long as the defendant is not required to negate an element of the offense. (People v. Neidinger (2006) 40 Cal.4th 67, 72 [defense by preponderance of evidence] (Neidinger).) Within limits, the issues of the definitions of the offense and the burden of producing evidence and of persuasion presented questions of state law. (Id.at pp. 73-74.) The court explained that due process does not require the state to prove the nonexistence of a constitutionally permissive affirmative defense. (Id. at p. 74; see Jennings, supra, 34 Cal.4th at pp. 279-280 [although tradition and due process require People to bear burden of proof of intent, shifting burden of proof to require defendant to prove lack of intent is also permissible].)

This inquiry involves two related but distinct issues. The first is whether the prosecution or the defense bears the burden of proof of facts underlying the defense. Unless it is unduly harsh or unfair, the burden of proving an exonerating fact may be imposed on the defense if its existence is peculiarly within the defendants personal knowledge and to require the prosecution to prove its nonexistence would be relatively difficult or inconvenient. (Neidinger, supra, 40 Cal.4th at p. 74; People v. Mower (2002) 28 Cal.4th 457, 476-477 (Mower).) In two recent cases, the California Supreme Court held that the defense was properly required to bear the burden of proof of the facts underlying the affirmative defenses to both crimes.[15] (Neidinger, supra, 40 Cal.4th at pp. 74-75 [good faith, reasonable belief of harm defense to child concealment]; Mower, supra, 28 Cal.4th at pp. 476-477 [medical use defense to possession and cultivation of marijuana].) This reasoning satisfies us that Ramirez was properly required to bear the burden of proving his mistake of fact defense. (Neidinger, supra, 40 Cal.4th at pp. 74-75; Jennings, supra, 34 Cal.4th at p. 280; Mower, supra, 28 Cal.4th at pp. 476-477; People v.Dewberry (1992) 8 Cal.App.4th 1017, 1021; see 2 Witkin & Epstein, Cal. Criminal Law, supra, Sex Offenses and Crimes Against Decency,  23, pp. 334-335.)

Having determined that the burden of proof is properly placed on the defense, the second issue ariseshow heavy that burden is. (Neidinger, supra, 40 Cal.4th at p. 75.) The resolution of this second question depends on the degree to which the defense relates to an element of the offense. A defense relates to the defendants guilt or innocence if it relates to an element of the crime, and not merely to a fact collateral to guilt or innocence. (Id. at p. 76; see Mower, supra, 28 Cal.4th at pp. 479-482; People v. Tewksbury (1976) 15 Cal.3d 953, 964-965 [collateral issue].) If a defense and an element of the underlying offense are so intertwined, then the defendant need only raise a reasonable doubt in order to establish the defense to the crime. (See Neidinger, supra, 40 Cal.4th at p. 79; Mower, supra, 28 Cal.4th at p. 479 fn. 7 [listing defenses about which defendant need only raise reasonable doubt].)

The California Supreme Court has held that a defendant need only raise a reasonable doubt to establish a good faith, reasonable belief defense because that defense is intertwined with the intent element of the underlying offense. (Neidinger, supra, 40 Cal.4th at pp. 75-79; see Mower, supra, 28 Cal.4th at pp. 478-482.) Ramirezs defense of reasonable good faith belief that Jane Doe was age 18 or older relates to his guilt or innocence, because it relates to the element of general criminal intent. (See  20, 26, subd. Three, 261.5; see also CALJIC No. 10.67.) Thus, the trial court was required to instruct the jury that the defendant bore the burden of raising a reasonable doubt about his mistake of fact defense, which would negate the intent element of the sexual offense charges.

Turning to the instructions that were actually given in this case, we find that the trial court properly instructed Ramirezs jurors when it admonished them that it was required to acquit him if it had a reasonable doubt about whether he had the required criminal intent because of a reasonable, good faith mistake of fact about Jane Does age. The jury was instructed that it is not enough to commit a prohibited actRamirez must have done so intentionally or on purpose. (CALCRIM No. 250.) In order to be found guilty of the charged offenses, the jury was specifically instructed that Ramirez had to have had a general criminal intent at the time that he committed the charged acts. (See  20, 261.5, subd. (d); see also Jennings, supra, 34 Cal.4th at pp. 279-280 [interpreting statutory language to require some showing of criminal intent, rather than imposing strict liability for criminal offenses].) The jury was instructed that this general criminal intent could not exist if Ramirez had a reasonable, good faith belief that Jane Doe was 18 years of age or older at the time of the commission of the act. Such a reasonable, good faith belief of age was a defense to the charges, the jury was admonished. If the jury had a reasonable doubt about whether Ramirez had a general criminal intent at the time of the sex act, it was required to acquit him. (See Hernandez, supra, 61 Cal.2d at pp. 535-536; see also Mayberry, supra, 15 Cal.3d at p. 154; CALJIC No. 10.67.)

C. Conclusion

When a burden of proof is allocated to the defendant on any fact relating to the issue of guilt, the defendant need only raise a reasonable doubt about that fact. (Neidinger, supra, 40 Cal.4th at pp. 75-76; Mower, supra, 28 Cal.4th at p. 479; Mayberry, supra, 15 Cal.3d at p. 157; see Evid. Code,  501;  1096.) The CALJIC No. 10.67 instruction given in this matter correctly instructed the jury on the law applicable to the mistake of fact defense.[16] A trial courts obligation is to state the law correctly when instructing the jury. (People v.Runnion (1994) 30 Cal.App.4th 852, 858.) We find that CALJIC No. 10.67 and the other instructions given, taken as a whole, adequately informed the jury that Ramirez had the burden of raising a reasonable doubt about his general criminal intent by means of his mistake of fact defense.[17] (See People v. Ramos, supra, 163 Cal.App.4th at pp. 1088-1089.)

III. CLOSING AND REBUTTAL ARGUMENT

A. Testifying

Ramirez also contends that errors made by the prosecutor during closing and rebuttal argument violated his due process right to a fair trial. He asserts that the prosecutor testified during argument, effectively placing extrinsic evidence before the jury. He also complains that the prosecutor offered her personal opinion on his guilt. The error was so prejudicial that his convictions must be reversed, he asserts.

Ramirez contends that the prosecutor committed misconduct by testifying during her initial closing argument. The prosecutor was reciting the evidence in support of her argument that Ramirez must have known that Jane Doe was underage. She argued that Jane Doe admitted that she told Ramirez she was 16, except for when she testified in court that she was 18 and when she told the hospital psychiatrist the same thing. The prosecutor argued: This is the first time she said it to anybody else. Everybody else, including the police officer, including [the prosecution investigator] and myself . . . . Ramirezs counsel objected that the prosecutor had misstated the testimony. The trial court agreed that she had, striking this argument and admonishing the jury that statements made by the prosecutor were not in evidence.

The prosecutor then reminded the jury that she and her investigator had interviewed Jane Doe at her home. The prosecutor noted that she was present with the prosecution investigator when Jane Doe said that she had always told Ramirez that she was 16. Again, defense counsel objected that the prosecutor committed misconduct by misstating the testimony and attempting to testify. The trial court noted that the argument was crossing into difficult territory. He recalled that the prosecutor had been present at the interview, but limited her to recounting what her witnessthe prosecution investigatorhad said in his testimony.

Then, the prosecutor argued that the investigator had testified that he heard Jane Doe say that she told Ramirez that she was 18. The investigator testified the prosecutor asked him to check this after she reviewed his report. This prompted another objection that counsel was referring to facts that were not in evidence and that the prosecutor was attempting to testify. However, the trial court overruled this objection. The prosecutor concluded this part of her argument by reminding the jury that the defense investigator had testified that she had asked him to clarify the report and that after he called Jane Doe about it, she told the investigator that she had told Ramirez that she was 16.

On appeal, Ramirez contends that the prosecutors argument constituted misconduct and violated his federal due process right to a fair trial. A prosecutor violates a defendants federal due process rights if he or she engages in a pattern of conduct so egregious that it renders the trial unfair. (People v.Samayoa (1997) 15 Cal.4th 795, 841; People v. Gionis (1995) 9 Cal.4th 1196, 1214.) Under state law, only the use of deceptive or reprehensible methods to attempt to persuade the jury or the court constitutes prosecutorial misconduct. (People v. Hill (1998) 17 Cal.4th 800, 819; People v. Espinoza (1992) 3 Cal.4th 806, 819-820.)

Misstating the evidence or referring to facts not in evidence constitutes misconduct. (People v.Hill, supra, 17 Cal.4th at pp. 823, 827-828.) In such circumstances, the prosecutor appears to be offering his or her own unsworn testimony that is not subject to cross-examination. (Id. at p. 828.) In this matter, the trial court sustained Ramirezs objection to the prosecutors argument, agreeing that the prosecutor had misstated the evidence. It struck that argument and reminded the juryas it had already instructed them earlierthat the prosecutors statements were not evidence. When the prosecutor veered a second time toward argument that could be construed as an attempt to offer her own testimony, the trial court again reminded her to limit her argument to the evidence before the jurythat is, the testimony of her investigator.

By its rulings, the trial court informed the jury of the proper limits of the evidence that it was entitled to consider, specifically excluding it from considering as evidence the argument that was found objectionable. No reasonable juror could have been confused about what was in evidence as a result of this aspect of the closing argument, because as soon as the prosecutor made it, the trial court clearly set out that the prosecutors argument was not evidence, but that the testimony given by her investigator was. In her remaining argument, the prosecutor kept within these appropriate limits.

The trial court also formally instructed the jurors that the sworn testimony of witnesses was evidence, but that the attorneys arguments were not. (See CALCRIM No. 222.) The jurors had written copies of this instruction available to them during deliberations. Given these instructions, there is no reasonable likelihood that the prosecutors argument misled the jury. (See, e.g., People v. Mayfield (1993) 5 Cal.4th 142, 179; People v.Nguyen (1995) 40 Cal.App.4th 28, 36-37.) As such, we conclude that Ramirezs fearthat the challenged argument contributed to jury confusion about what was in evidence and what was notis unfounded.

A new trial is an appropriate remedy if prejudice occurs that cannot be cured by admonition. (People v. Hines (1997) 15 Cal.4th 997, 1038 [mistrial sought after inappropriate testimony given]; People v. Haskett (1982) 30 Cal.3d 841, 854.) Although the prosecutor improperly attempted to argue about matters not in evidence, the trial courts ruling and admonition cured the error. In all but an unusual case, the prejudicial effect of improperly admitted evidence will be cured by admonishment. (People v. Prather (1901) 134 Cal. 436, 439; People v. Allen (1978) 77 Cal.App.3d 924, 935.) In light of the trial courts prompt and accurate rulings limiting prosecutorial argument to the evidence properly before the jury, we find that the misconduct in this case was not so egregious that the admonition could not cure it. (See People v. Barnett (1998) 17 Cal.4th 1044, 1157; People v. Lucas (1995) 12 Cal.4th 415, 473; see also People v.McDermott (2002)28 Cal.4th 946, 1001.)

B. Personal Opinion

Ramirez also complains of prosecutorial misconduct committed during rebuttal argument. During her final argument, the prosecutor recounted the circumstances of Ramirezs relationship with Jane Doe that made it unreasonable for him to think that the girl was at least 18 years old. She spoke of what the jury should do if it found that it had two reasonable interpretations of the evidence. Then, she argued that if you feel that one is not reasonable, if you feel the Peoples case is reasonable and his case is just, you know, Ive listened to him, hes really good, hes smooth, but he had to have known. He knew. Im not buying what hes saying. When Ramirez objected to this argument, the trial court advised the jury that the prosecutors personal belief was irrelevant and admonished the jury to disregard it. The prosecutor continued with her argument, focusing on what the evidence would show to the jurors.

A prosecutor commits misconduct by expressing a personal opinion or belief in a defendant's guilt, if there is a substantial danger that jurors will interpret this as being based on information known to the prosecutor but not adduced at trial. (People v.Bain (1971) 5 Cal.3d 839, 848; People v.Kirkes (1952) 39 Cal.2d 719, 723-724; People v.Edgar (1917) 34 Cal.App. 459, 467-468 [no trial court admonishment, despite objection].) For the same reasons that we find no prejudicial prosecutorial misconduct resulted from the closing argument, we reject Ramirezs claim of prejudicial error stemming from the prosecutors rebuttal argument. (See pt. III.A., ante.) The jury was put on notice by his objection and the trial courts immediate and correct response to it that the jurors were not to give that argument any credence, but to limit themselves to a consideration of the evidence. Under these circumstances, there is no reasonable likelihood that the prosecutors argument misled the jury. (See, e.g., People v. Mayfield, supra, 5 Cal.4th at p. 179; People v.Nguyen, supra, 40 Cal.App.4th at pp. 36-37.) The prosecutorial misconduct error was cured by the trial court. (See People v. Prather, supra, 134 Cal. at p. 439; People v. Allen, supra, 77 Cal.App.3d at p. 935.) We are satisfied that the trial courts admonishments were sufficient to dispel any inappropriate inferences that the jurors could have drawn from the prosecutors argument.[18] (See People v. Barnett, supra, 17 Cal.4th at p. 1157.)

The judgment is affirmed.

_________________________

Reardon, J.

We concur:

_________________________

Ruvolo, P.J.

_________________________

Sepulveda, J.

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[1] All statutory references are to the Penal Code unless otherwise indicated.

[2] Jane Does mother testified that Ramirez ran off when she approached the couple. Jane Doe testified that he did notthat he stayed there while her mother yelled at him.

[3] Jane Doe testified that if she was not with Ramirez or at home, she was in school. She missed all or part of 79 school days between late August 2006 and early April 2007. Most of these days, she was with Ramirez. Jane Doe told the jury that most of the days that she skipped school to be with himon at least 10 occasionsshe and Ramirez had vaginal intercourse in his apartment.

[4] Officer Long testified that Jane Does reports to her were consistentthe girl always said that she had told Ramirez that she was 16.

[5] The foregoing facts are based primarily on the prosecutions case-in-chief at trial.

[6] The prosecution investigator later testified that when he and defense counsel interviewed Jane Doe, he understood her to say initially that she told Ramirez that she was 18 when they first started getting together. Later, she reported that she told him that she was 16. When he asked Jane Doe about the discrepancy later, she told the investigator that she never told Ramirez that she was 18she told him she was 16. He supplemented his report to clarify this.

[7] At various times, Jane Doe offered contradictory testimony at trial about whether she told a hospital psychiatrist that she told Ramirez that she was 18.

[8] Her father denied most of the allegations of abusive behavior.

[9] At the time of trial, CALCRIM No. 1070 offered this instruction about the relevant defense: The defendant is not guilty of this crime if (he/she) reasonably and actually believed that the other person was age 18 or older. The People must prove beyond a reasonable doubt that the defendant did not reasonably and actually believe that the other person was at least 18 years old. If the People have not met this burden, you must find the defendant not guilty of this crime. (CALCRIM No. 1070 (2006).) The last two sentences of this aspect of the instruction were modified in April 2008. The current version of the jury instruction now states: In order for reasonable and actual belief to excuse the defendants behavior, there must be evidence tending to show that (he/she) reasonably and actually believed that the other person was age 18 or older. If you have a reasonable doubt about whether the defendant reasonably and actually believed that the other person was age 18 or older, you must find (him/her) not guilty. (CALCRIM No. 1070 (2008).)

[10] CALCRIM No. 1081the companion instruction for oral copulation with a minorparrots the language of the 2006 version of CALCRIM No. 1070. It was not revised when CALCRIM No. 1070 was modified in April 2008. Thus, it still contains the language in the superseded version of CALCRIM No. 1070 on the burden of proof of the defense of a good faith belief that the victim was age 18 years or older. (Compare CALCRIM No. 1070 (2006) with CALCRIM No. 1081 (2006).) The defense Ramirez offered is the same, whether the underlying offense is unlawful sexual intercourse with a minor or oral copulation with a minor. (See People v. Peterson (1981) 126 Cal.App.3d 396, 397.)

[11] The court instructed the jury as follows: In the crimes charged herein, unlawful sexual intercourse and oral copulation, general criminal intent must exist at the time of the commission of the act of sexual intercourse and/or oral copulation. There is no general criminal intent if the defendant had a reasonable and good faith belief that the other person was 18 years of age or older at the time that person engaged in the act of sexual intercourse and/or oral copulation. [] Therefore, a reasonable and good faith belief of such age is a defense to unlawful sexual intercourse and/or oral copulation. If after consideration of all the evidence, you have a reasonable doubt that the defendant had general criminal intent at the time of the act of sexual intercourse and/or oral copulation, you must find him not guilty of the crime. (CALJIC No. 10.67.)

[12] The prosecution also sought to have the jury instructed that if Ramirez did not really believe that Jane Doe was over 18, or if his belief was not reasonable, he could be convicted of the charges. The trial court denied this request.

[13] The current version of this subdivision of section 26 is identical to the one in effect on the date of the charged crimes. (See  26, subd. Three [as amended by Stats. 2007, ch. 31,  3].)

[14] In Ramirezs October 2008 opening brief, his counsel on appeal cited an appellate case in which the California Supreme Court had granted review. (See People v.Neidinger (2005) 127 Cal.App.4th 1120, review granted July 13, 2005, S133798.) Once review is granted, the appellate case is no longer deemed published and it is improper for a party to cite the unpublished appellate case. (Cal. Rules of Court, rules 8.1105(e), 8.1115(a).)

[15] As the trial court noted, Ramirezs claim is based on language in a 1966 appellate case characterizing the Supreme Courts decision in Hernandez as requiring the People to prove that the defendant did not reasonably believe that the victim was over 18 years old. (People v. Winters (1966) 242 Cal.App.2d 711, 716.) However, the court in Hernandez did not require the People to bear the burden of proof on this issue. Hernandez held only that the charge of sexual conduct with a minor is defensible if it can be shown that criminal intent is lacking. (Hernandez,supra, 61 Cal.2d at p. 536; see People v.Zeihm, supra, 40 Cal.App.3d at p. 1089.) As the courts language does not support it, we decline to apply the Winters language, opting instead to apply other more recent California Supreme Court authority making it clear that Ramirez had the burden of proving his asserted mistake of fact claim by raising a reasonable doubt that went to his intent to commit the charged offenses.

[16] In their briefs, the parties debate the significance of the April 2008 modification of CALCRIM No. 1070. As our analysis focuses on the correctness of the instruction given, we need not address this argument. Accordingly, we find that the matter brought before us for judicial notice on this subject is not relevant to our decision.

[17] As we find the instructions given were correct, we necessarily reject Ramirezs due process and statutory violation claims. (See U.S. Const., 5th & 14th Amends.; Cal. Const., art. I,  7, 15; Evid. Code,  502.)

[18] In light of our conclusion that no error occurred in the trial court, we necessarily reject Ramirezs remaining argument that cumulative errors and cumulative prejudice denied him a fair trial in violation of his due process rights.