State of Arizona v. Richard D. Villegas

FILED BY CLERK
IN THE COURT OF APPEALS MAY 25 2011
STATE OF ARIZONA
COURT OF APPEALS
DIVISION TWO
DIVISION TWO
THE STATE OF ARIZONA, ) 2 CA-CR 2010-0266
) DEPARTMENT A
Appellee, )
) OPINION
v. )
)
RICHARD D. VILLEGAS, )
)
Appellant. )
)
APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY
Cause No. CR20094776001
Honorable John S. Leonardo, Judge
AFFIRMED IN PART; REVERSED IN PART
Thomas C. Horne, Arizona Attorney General
By Kent E. Cattani and Kathryn A. Damstra Tucson
Attorneys for Appellee
Robert J. Hirsh, Pima County Public Defender
By Lisa M. Hise Tucson
Attorneys for Appellant
E S P I N O S A, Judge.
¶1 Appellant Richard Villegas was charged and convicted after a jury trial of
luring a minor for sexual exploitation in violation of A.R.S. § 13-3554. Villegas’s
conviction stems from his correspondence, primarily via text message and electronic
mail, with a Tucson Police Department detective posing as a fourteen-year-old girl. After
the detective responded to an internet posting by Villegas, they agreed to meet, smoke
marijuana, and engage in sexual acts. Police officers arrested him at the arranged
meeting location.
¶2 The state alleged Villegas’s conduct constituted a dangerous crime against
children (DCAC) pursuant to A.R.S. § 13-705. The trial court denied his motion to
dismiss that allegation, and the jury found Villegas “knew or had reason to know that the
victim was under fifteen years of age at the time he committed the offense.” The court,
first noting that the conviction fell within § 13-705, suspended the imposition of sentence
and placed Villegas on a four-year term of probation. Villegas argues on appeal, and the
state concedes, that the court erred in denying his motion to dismiss the DCAC
allegation. We review a trial court’s denial of a motion to dismiss for an abuse of
discretion but, to the extent it presents a question of statutory interpretation, our review is
de novo. State v. Mangum, 214 Ariz. 165, ¶ 6, 150 P.3d 252, 254 (App. 2007).
¶3 Villegas asserts that, because there was no victim under the age of fifteen,
the DCAC statute does not apply. We agree. Section 13-705 provides for enhanced
sentences for certain crimes, including luring a minor for sexual exploitation, that are
“committed against a minor who is under fifteen years of age.” § 13-705(E), (P)(1)(s). A
person commits luring a minor for sexual exploitation “by offering or soliciting sexual
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conduct with another person knowing or having reason to know that the other person is a
minor.” § 13-3554(A). The statute additionally states, however, that “[i]t is not a
defense . . . that the other person is not a minor.” § 13-3554(B). The statute further
provides that a conviction is punishable under § 13-705 “if the minor is under fifteen
years of age.” § 13-3554(C). Thus, the plain language of §§ 13-705 and 13-3554
precludes application of the DCAC sentence enhancement when, as here, the victim is
not under the age of fifteen. See State v. Williams, 175 Ariz. 98, 101, 854 P.2d 131, 134
(1993) (“[A] dangerous crime against a child is a crime against a child qua child.”); see
also 2008 Ariz. Sess. Laws, ch. 301, § 17 (renumbering former A.R.S. § 13-604.01 to
§ 13-705). Our supreme court has made clear that a defendant’s knowledge or subjective
belief of the victim’s age is irrelevant in determining whether the enhancement should
apply—the only germane consideration is whether the defendant directed his or her
conduct at a person under the age of fifteen. See State v. Sepahi, 206 Ariz. 321, ¶¶ 17,
19, 78 P.3d 732, 735 (2003). Thus, it is immaterial that Villegas believed he was
targeting a fourteen-year-old girl.
¶4 We recognize that, in State v. Carlisle, 198 Ariz. 203, ¶¶ 17-18, 8 P.3d 391,
395-96 (App. 2000), Division One of this court determined that DCAC sentence
enhancement applied to attempted sexual conduct with a minor under the age of fifteen
where the defendant “intentionally took steps to lure his intended victim into prohibited
sexual conduct,” even though the intended victim was not, despite the defendant’s belief,
under the age of fifteen. Assuming, arguendo, the vitality of that holding in light of
Sepahi, Carlisle is distinguishable. The Carlisle court reasoned in part that, because
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factual impossibility is not a defense to an attempted crime, it also was not a defense to a
DCAC sentence enhancement based on an attempted offense. 198 Ariz. 203, ¶ 17, 8 P.3d
at 395-96. That reasoning, however, is inapplicable to a completed crime like the one at
issue here. Cf. Mejak v. Granville, 212 Ariz. 555, ¶¶ 12-15, 136 P.3d 874, 876-77 (2006)
(irrespective of defendant’s subjective belief, under previous version of luring statute,
defendant cannot be charged with completed offense if victim neither child nor peace
officer), superseded by statute, 2007 Ariz. Sess. Laws, ch. 248, § 8.
¶5 For the reasons stated, the trial court’s denial of Villegas’s motion to
dismiss the DCAC allegation is reversed. In all other respects, Villegas’s conviction and
term of probation are affirmed.
/s/ Philip G. Espinosa
PHILIP G. ESPINOSA, Judge
CONCURRING:
/s/ J. William Brammer, Jr.
J. WILLIAM BRAMMER, JR., Presiding Judge
/s/ Joseph W. Howard
JOSEPH W. HOWARD, Chief Judge
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