People v. Cruz Villagran

Filed 11/18/16
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
A143768
v.
JUAN PABLO CRUZ VILLAGRAN, (Contra Costa County
Super. Ct. No. 051405711)
Defendant and Appellant.
Using a text messaging application, appellant Juan Pablo Cruz Villagran1
communicated with a number of girls under 14 years of age, sending them sexually
explicit photographs of himself and asking them to send him nude photographs of
themselves in return. Based on these text messages, the Contra Costa County District
Attorney charged Cruz with multiple counts of attempted violation of Penal Code
section 288, subdivision (a) (section 288(a)).2 The jury returned guilty verdicts on these
counts, and Cruz now appeals.
In this court, Cruz challenges the sufficiency of the evidence supporting his
convictions. He contends conviction under section 288(a) requires either a physical
encounter with the victim or a constructive touching in which the defendant induces the
victims to touch themselves or another, with a concurrent sexual intent at the time of the
*
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of part II.
1
Appellant’s full surname is Cruz Villagran, but he is referred to as “Juan Cruz” in the
record. We will therefore use the shorter form of his name in this opinion.
2
All statutory references are to the Penal Code.
1
touching. Cruz also contends the trial court erred in instructing the jury on the elements
of the section 288(a) offense and in responding to a question from the jury. Finally, he
contends his prosecution for attempted violation of section 288(a) violates the rule
against prosecution under a more general statute when the conduct at issue is prohibited
under section 288.3, a later, more specific statute.
We reject Cruz’s contentions and will accordingly affirm the judgment. In the
published portion of our opinion, we hold that a defendant may commit the crime of
attempted lewd and lascivious acts on a child under 14 by communicating with the victim
via text messaging. We further hold that the sexual intent and the touching required by
section 288(a) need not occur simultaneously. In the final portion of this opinion, we
conclude Cruz’s convictions under section 288(a) are not prohibited under the special
versus general doctrine, because section 288(a) contains an element not contained on the
face of section 288.3. In the unpublished portion of the opinion, we reject Cruz’s claim
of instructional error.
FACTUAL AND PROCEDURAL BACKGROUND
Cruz was convicted of 21 separate offenses arising out of his contacts with five
different victims. According to his opening brief, however, “[t]his appeal focuses solely
on three counts of conviction for attempted lewd and lascivious contact with a minor
under fourteen[.]” We will therefore set forth only the facts pertaining to those three
counts.
Jane Doe I
Jane Doe I was 14 years old and in the ninth grade at the time of trial. On
September 10, 2011, when she was 11 years old, Jane Doe I met Cruz at her sister’s
quinceañera, a celebration for girls on their 15th birthday. Cruz was then 23 years old.
When Jane Doe I was 13 years old, Cruz posted a comment on her Instagram page
telling her she had a pretty smile. She thanked Cruz, and he asked her to add him as a
contact on Kik, a social text messaging application. Jane Doe I did so and started
communicating with Cruz using Kik. She told Cruz she was 13 years old.
2
Over the next three days, the two sent each other messages. At that time, they
“were just like talking as friends.” On the third day, Cruz sent Jane Doe I a photograph
he had taken of himself in the bathroom mirror. The photograph showed Cruz’s face and
upper body. He was shirtless and wearing a gold necklace. Jane Doe I responded with,
“okay,” and they continued texting messages. She did not ask Cruz to send more
photographs.
About 10 minutes after sending the first photograph, Cruz sent a second. This one
showed a close-up of his erect penis. Jane Doe I was surprised and uncomfortable. She
could not believe Cruz would send her such a photograph. She replied, “That’s not you,”
and Cruz responded, “Yes, it is. Look at my necklace.” The same necklace was visible
in both photos.
Within a few minutes of sending the photo of his penis, or almost simultaneously,
Cruz asked Jane Doe I, “Send me one.” He said, “It’s just going to be between me and
you.” Jane Doe I understood Cruz to be requesting a nude photograph of herself. She
refused, telling Cruz, “No. I’m having a sleepover with my friend.” Cruz asked her
twice for nude photographs, but she told him, “I can’t send them. Sorry[.]” Jane Doe I
blocked Cruz so that he could no longer contact her. She deleted the photos he had sent
her.
Later, Jane Doe I talked to a classmate about the incident. A teacher overheard
them and told the school principal. Perhaps two days later, Jane Doe I spoke to a police
detective about the incident.
Jane Doe III
At the time of trial, Jane Doe III was 13 years old and in the eighth grade. When
she was 12 years old and in the seventh grade, Cruz, whom she did not know, commented
on a “selfie” photograph she had posted on her Instagram page. Cruz said, “cute smile.”
Jane Doe III thanked Cruz, and he asked for her Kik contact information, which she
provided.
Jane Doe III talked to Cruz on Kik for a day. She told him she was 12 years old.
Using Kik, he asked her, “Can you send me a picture of you?” Cruz asked her to send
3
him pictures of her naked body. Jane Doe III did not send any pictures and instead
blocked Cruz from communicating with her. His request for pictures made her feel “kind
of scared.”
Jane Doe V
Jane Doe V was 14 years old at the time of trial. She lived in Brentwood and
attended high school.
Between November and December 2014, when Jane Doe V was 13 years old and
in the seventh grade, Cruz commented on a picture she had posted on Instagram. He told
her she was beautiful, and she thanked him. When Jane Doe V told Cruz she was 13
years old, he said he was 19. They exchanged Kik contact information and
communicated for three days.
For the first two days, Jane Doe V and Cruz “got to know each other” and “were
talking like friends.” Cruz sent her pictures of his drawings of the Virgin Mary and a
tiger. Jane Doe V told Cruz he was a “good drawer,” and he asked if she wanted to see
more of his drawings. After she said yes, Cruz sent her a picture of his penis. The
picture showed him holding his penis with his left hand. Immediately thereafter, Cruz
sent a second photograph of his penis. The second photo was shot in an upward direction
and showed his face, his chest, and his penis, which he was holding.
Cruz told Jane Doe V, “I’m hard for you.” He said she should send “nude”
pictures of herself and asked for “pictures of [her] boobs.” Cruz told her to “take some
[pictures] and just send them real quick[.]” Jane Doe V refused. Cruz also told her he
had “morning wood” every day. He told her he lived close to the middle school and
asked her to come to his house. Jane Doe V felt very uncomfortable with the
conversation, and she was annoyed he kept asking her to send pictures. She blocked
Cruz on Kik and Instagram.
Information, Trial, and Sentence
On March 28, 2014, the Contra Costa County District Attorney filed an amended
information charging Cruz with 25 counts of sexual offenses against minors. As relevant
here, the information charged Cruz with three attempts to commit lewd acts upon Jane
4
Doe I, Jane Doe III, and Jane Doe V, all of whom were children under the age of 14
(§§ 288, subd. (a), 664; counts 6, 9, 22).3
Trial was by jury. At the close of the prosecution’s case, Cruz’s trial counsel
moved to dismiss counts 6, 9, 16, and 22. (§ 1118.1.) She argued “[t]here was no request
to touch herself, to take off her clothes or to touch her body in any way, and that’s what is
required under the People’s theory of a 288, attempted 288.” Counsel contended there
was insufficient evidence to prove either that Cruz intended the victims to touch
themselves or that he asked them to remove their clothing. Counsel opined the evidence
showed “just a desire to receive a picture . . . .” The trial court disagreed, explaining,
“The defendant intended the child to take a photograph of herself naked at that time, and
therefore he intended that they remove their clothing to do so during the conversation.”
The court denied the motion to dismiss.
On September 24, 2014, the jury returned its verdicts. Because of the number of
victims and counts, we set forth the verdicts in tabular form:
Jane Doe I
Count Charge Verdict
1 § 228.2, subd. (a): distributing lewd
matter to a minor NG4
G
Lesser § 313.1, subd. (a): distributing harmful
matter to a minor
3
The remaining counts of the information charged Cruz with distributing lewd matter to
a minor (§ 288.2, subd. (a); counts 1, 19, 24), contacting a minor for the purpose of
engaging in lewd and lascivious behavior (§ 288.3, subd. (a); counts 2, 12, 14, 25),
annoying or molesting a minor (§ 647.6, subd. (a)(1); counts 3, 7, 8, 20), attempted
exploitation of a child (§ 311.3, subd. (a); counts 4, 10, 18, 23), attempted possession or
control of matter depicting a person under 18 years of age in sexual conduct (§§ 311.11,
subd. (a), 664; counts 5, 11, 15, 21), attempted distributing/exhibiting lewd matter to a
minor (§ 288.2, subd. (a), 664; counts 13, 17), and attempt to commit a lewd act upon a
child under age 14 (§§ 288, subd. (a), 664; count 16).
4
In this chart, “NG” indicates a not guilty verdict and “G” indicates a guilty verdict.
5
2 § 288.3, subd. (a): contacting a minor to G
engage in lewd or lascivious behavior
3 § 647.6, subd. (a)(1): annoying or G
molesting a minor, a misdemeanor
4 §§ 311.3, subd. (a)/664: attempted NG
exploitation of a child
5 §§ 311.1, subd. (a)/664: attempted G
possession of child pornography
6 §§ 288, subd. (a)/664: attempt to commit G
a lewd act on a minor under 14
Jane Doe II
Count Charge under Penal Code Verdict
7 § 647.6, subd. (a)(1): annoying or G
molesting a minor, a misdemeanor
8 § 647.6, subd. (a)(1): annoying or G
molesting a minor, a misdemeanor
Jane Doe III
Count Charge under Penal Code Verdict
9 §§ 288, subd. (a)/664: attempt to commit G
a lewd act on a minor under 14
10 §§ 311.3, subd. (a)/664: attempted NG
exploitation of a child
11 §§ 311.11, subd. (a)/664: attempted G
possession of child pornography
6
12 § 288.3, subd. (a): contacting minor to G
engage in lewd or lascivious behavior
Jane Doe IV5
Count Charge under Penal Code Verdict
13 §§ 288.2/664: attempted distribution of G
lewd matter to a minor
14 § 288.3, subd. (a): contacting a minor to G
engage in lewd or lascivious behavior
15 §§ 311.11, subd. (a)/664: attempted G
possession of child pornography
16 §§ 288, subd. (a)/664: attempt to commit G
a lewd act on a minor under 14
17 §§ 288.2/664: attempted distribution of G
lewd matter to a minor
18 §§ 311.3, subd.(a)/664: attempted NG
exploitation of a minor
Jane Doe V
Count Charge under Penal Code Verdict
19 § 288.2, subd. (a): exhibiting lewd matter NG
to a minor
G
Lesser § 313.1, subd. (a): distributing harmful
material to a minor
5
“Jane Doe IV” was not a minor but instead the investigating officer who posed as a 12-
year-old girl and sent messages to Cruz in a sting operation to obtain evidence against
him.
7
20 § 647.6, subd. (a)(1): annoying or G
molesting a minor, a misdemeanor
21 §§ 311.11, subd. (a)/664: attempted NG
possession of child pornography
22 §§ 288, subd. (a)/664: attempt to commit G
a lewd act on a minor under 14
23 §§ 311.3, subd. (a)/664: attempted NG
exploitation of a minor
Lesser § 313.1, subd. (a): distributing harmful G
material to a minor
24 § 288.2, subd. (a): exhibiting lewd matter G
to a minor
25 § 288.3, subd. (a): contacting a minor to G
engage in lewd behavior
On November 24, 2014, the trial court sentenced Cruz to five years in prison. It
suspended execution of the sentence and placed him on probation for five years in return
for a waiver of all custody credits. The court ordered Cruz to serve 364 days in county
jail.
Cruz filed a timely notice of appeal on December 12, 2014.
DISCUSSION
Cruz challenges his convictions on counts 6, 9, and 22 for attempting to commit a
lewd act on a child under 14 years of age.6 (§§ 288(a), 664.) First, he contends
violations of section 288(a) require more than virtual communications, even if those
communications are obscene. To sustain a conviction under this statute, he argues,
“some kind of attempt to make physical contact with the victim is required and here there
was none.” Second, Cruz argues the trial court erred in giving an instruction on the
elements of the section 288(a) offense and in responding to a jury question. Third , Cruz
6
Although Cruz was charged with the same offense in count 16, he concedes the
evidence was sufficient with respect to that count.
8
contends his prosecution under section 288(a) violates the proscription against
prosecution under a general statute when the conduct at issue is prohibited under a more
specific one. We will address these arguments in turn.
I. The Convictions on Counts 6, 9, and 22 Are Supported by Sufficient Evidence.
Cruz contends his convictions on counts 6, 9, and 22 are unsupported by
substantial evidence. He argues he simply asked for nude photos of the victims, “without
any directions on how or when the girls should photograph themselves in revealing
manners.”7 What is lacking in this case, Cruz asserts, is a “showing that [he] had a sexual
intent that these young girls touch themselves . . . in the taking of these photographs[.]”
He argues he “did not ask the girls to touch themselves in any manner but only to reveal
their intimate parts to him in . . . photographs.” Thus, he asserts, without evidence to
support a finding he harbored a sexual intent that the girls engage in some kind of sexual
touching or conduct when they took the requested nude photographs of themselves, the
convictions for these counts cannot be sustained.
A. Standard of Review
This court’s role in reviewing any claim of insufficiency of the evidence is limited.
(People v. Veale (2008) 160 Cal. App. 4th 40, 45.) On appeal of a conviction under
section 288(a), “[t]he proper test for determining a claim of insufficiency of evidence . . .
is whether, on the entire record, a rational trier of fact could find the defendant guilty
beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the
light most favorable to the People and must presume in support of the judgment the
existence of every fact the trier could reasonably deduce from the evidence. [Citation.]”
(People v. Jones (1990) 51 Cal. 3d 294, 314.)
B. Elements of the Section 288(a) Offense
In counts 6, 9, and 22, Cruz was charged with and convicted of attempted
violations of section 288(a). “To sustain a conviction of attempted violation of section
288(a), the prosecution has the burden of demonstrating (1) the defendant intended to
7
Cruz acknowledges these were illegal communications but contends they were
prohibited under sections 288.3 and 311.3, not section 288(a).
9
commit a lewd and lascivious act with a child under 14 years of age, and (2) the
defendant took a direct but ineffectual step toward committing a lewd and lascivious act
with a child under 14 years of age.” (People v. Singh (2011) 198 Cal. App. 4th 364, 368.)
Cruz contends the People failed to prove the first of these two elements. In analyzing this
contention we examine first the relevant statutory text and the case law interpreting it.
Section 288(a) provides in relevant part: “Except as provided in subdivision (i),
any person who willfully and lewdly commits any lewd or lascivious act . . . upon or with
the body, or any part or member thereof, of a child who is under the age of 14 years, with
the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of
that person or the child, is guilty of a felony . . . .” The statute is violated if there is
“ ‘any touching’ of an underage child accomplished with the intent of arousing the sexual
desires of either the perpetrator or the child.” (People v. Martinez (1995) 11 Cal. 4th 434,
452 (Martinez).) Thus, the offense described by section 288(a) has two elements: “ ‘(a)
the touching of an underage child’s body (b) with a sexual intent.’ [Citation.]” (United
States v. Farmer (9th Cir. 2010) 627 F.3d 416, 419.)
The touching required by section 288(a) may be constructive. (People v.
Meacham (1984) 152 Cal. App. 3d 142, 153 (Meacham), abrogated on another ground by
People v. Brown (1994) 8 Cal. 4th 746, 756.) That is, “a defendant need not touch the
victim in order to violate section 288.” (People v. Lopez (2010) 185 Cal. App. 4th 1220,
1229 (Lopez).) The required touching may be done by the child on his or her own person
provided it was caused or instigated by a perpetrator having the requisite specific intent.
(People v. Austin (1980) 111 Cal. App. 3d 110, 114-115 (Austin); accord, People v. Mickle
(1991) 54 Cal. 3d 140, 176 [“Where committed for a sexually exploitative purpose, [the
actual or constructive disrobing of a child by the accused] is presumptively harmful and
prohibited by section 288(a).”]; People v. Roberts (1972) 26 Cal. App. 3d 385, 387-388
[defendant charged as aider and abettor of violation of § 288 need not have physical
contact with victim].)
In addition to an actual or constructive touching, section 288(a) “requires ‘the
specific intent of arousing, appealing to, or gratifying the lust of the child or the accused.’
10
[Citation.]” (People v. Warner (2006) 39 Cal. 4th 548, 557.) “Because intent for
purposes of . . . section 288 can seldom be proven by direct evidence, it may be inferred
from the circumstances.” (In re Mariah T. (2008) 159 Cal. App. 4th 428, 440.) In
determining whether the defendant acted with the required specific intent, the jury
therefore looks to all the circumstances, including the charged act. (Martinez, supra, 11
Cal.4th at p. 445.) “Other relevant factors can include the defendant’s extrajudicial
statements [citation], other acts of lewd conduct admitted or charged in the case
[citations], the relationship of the parties [citation], and any coercion, bribery, or deceit
used to obtain the victim’s cooperation or to avoid detection [citation].” (Ibid.)
C. An Attempted Violation of Section 288(a) May Be Committed Via Text
Messaging.
Cruz contends “[t]here was no proof of the required concurrence of the sexual
intent of a touching with the requested production of nude self-portraits from these girls.”
He first argues he never tried to meet Jane Does I, III, or V, and he did not attempt to be
physically present when the photographs were taken. Cruz’s argument fails.
A defendant may violate section 288(a) even if he is not physically present when
the touching occurs. For example, in People v. Imler (1992) 9 Cal. App. 4th 1178 (Imler),
the court held “that one can commit the crime of attempted child molestation by speaking
to the victim over the telephone.” (Id. at p. 1179.) In Imler, the defendant, Imler, called
the home of a 12-year-old boy and told him he was holding the boy’s father as a hostage.
(Id. at p. 1180.) Imler demanded ransom and then “ordered [the boy] to disrobe and
touch his penis.” (Ibid.) The boy did not touch himself, even though Imler repeatedly
told him to do so. The boy falsely told Imler he had complied, and Imler hung up. (Ibid.)
On appeal, Imler contended the evidence was insufficient to establish the crime of
attempt. (Imler, supra, 9 Cal.App.4th at p. 1179.) The court disagreed, concluding,
“Whether the victim complied or not is beside the point. [Citation.] Imler’s acts could
have resulted in a violation of . . . section 288.” (Id. at p. 1182.) In addition, the court
explained: “It matters not that Imler could not touch his victim. ‘The touching necessary
to violate . . . section 288 may be done by the child victim on its own person providing
11
such touching was at the instigation of a person who had the required specific intent.’
[Citation.] The accused does not have to commit the lewd act. The defendant’s intent
may be inferred from his conduct which was to order the victim to commit a lewd act
upon himself. [Citation.]” (Ibid.)
Under Imler, it does not matter that Cruz made no effort to meet Jane Does I, III,
and V or to be present when they took the photographs he requested. As was true in
Imler, the touching required by section 288(a) may be constructive. If the girls had
complied with Cruz’s request and touched themselves to take nude photos, those acts of
touching would have been “imputable to appellant as if the touching had been actually
done by his own hands.” (Meacham, supra, 152 Cal.App.3d at p. 154.) And if “one can
commit the crime of attempted child molestation by speaking to the victim over the
telephone” (Imler, supra, 9 Cal.App.4th at p. 1179), it logically follows that one can
commit the offense by communicating with a minor under 14 using a text messaging
application such as Kik. Thus, we hold that a defendant may commit the crime of
attempt to commit a lewd act on a minor under 14 through the medium of text messaging.
(See People v. Hanna (2013) 218 Cal. App. 4th 455, 457-460 [defendant convicted of
violation of § 288(a) based on communications by email and instant messaging]; People
v. Crabtree (2009) 169 Cal. App. 4th 1293, 1322 [defendant properly convicted of
attempted violation of § 288(a) after “sexually-charged online chats” with child].)
D. The Intent Requirement of Section 288(a) Is Satisfied if the Perpetrator
Acts With the Intent of Arousing or Gratifying His Own or the Child’s
Sexual Desires.
Cruz also argues the concurrence of sexual intent and act was missing because
“[h]e did not direct the girls to touch themselves, or anyone else, in any particular manner
for his sexual gratification[.]” (Italics added.) Cruz misapprehends the nature of the
intent section 288(a) requires. The intent element of the statute is satisfied if the People
prove Cruz acted “with the intent of arousing, appealing to, or gratifying the lust,
passions, or sexual desires of that person or the child[.]” (§ 288(a), italics added.) Cruz’s
opening brief tells us “[h]e tried to sexually stimulate [the girls] through sending
photographs of his penis[.]” He therefore admits he acted with the intent of arousing or
12
appealing to the girls’ “lust, passions, or sexual desires.” While the People did not have
to prove Cruz also acted with the intent of arousing or gratifying his own lust, passions,
or sexual desires, the jury could certainly have found he acted with that intent because he
requested the nude photographs after sending each girl one or more photos of his erect
penis. (See Martinez, supra, 11 Cal.4th at p. 450 [defendant’s intent is “inferred from all
the circumstances”].) As Cruz himself says, he “wanted to see naked photographs.” The
jury could reasonably conclude he wanted the photographs for purposes of his own
sexual gratification.
E. The Sexual Intent and Touching Need Not Occur at the Same Time.
Cruz appears to argue the sexual intent and touchings had to occur at the same
time. He argues, “[w]ithout additional evidence to support the finding that appellant
harbored a sexual intent to include some kind of sexual touching or conduct at the time
the girls took their ‘selfies,’ the convictions . . . in counts six, nine, and twenty-two must
be reversed.” Lopez, supra, 185 Cal. App. 4th 1220 addressed and rejected a similar
argument. In that case, the defendant was convicted of two counts of violating section
288(a) involving his two stepdaughters. They “testified that defendant played ‘the money
game’ with them. He directed them to dress in lingerie or bathing suits, and look for
money blindfolded.” (Id. at p. 1227.) On appeal, the defendant argued there was
insufficient evidence to support those two counts “because defendant did not touch the
girls, he was not present when they changed their clothes, and there was no evidence he
harbored any lewd intent when the girls touched themselves while changing their
clothes.” (Id. at p. 1230.) Like Cruz, the defendant claimed “the requisite concurrence of
act and intent is lacking.” (Ibid.)
The court disagreed. It first held the evidence supported a finding that there was a
touching concurrent with lewd intent. (Lopez, supra, 185 Cal.App.4th at p. 1230.)
“[T]he touching occurred when, at defendant’s direction, the girls removed their clothing
and dressed in clothing defendant told them to wear.” (Ibid.) As a matter of first
impression, the court also rejected the defendant’s contention that there could be no
concurrence of the act and his lewd intent because he was not present when the girls
13
changed their clothing. (Id. at pp. 1231-1233.) It explained: “Because of the apparent
legislative intent to apply section 288 expansively to any sexually motivated touching,
including touchings by the victim at the defendant’s direction, we conclude section 288
encompasses defendant’s act in the instant case of directing the victims to change into
provocative clothing for the sexually motivated purpose of watching the girls search for
money in the provocative clothing. Defendant committed the touching acts
constructively, through the victims as conduits, for the purpose of sexual arousal. Even
though defendant may not have experienced sexual arousal at the moment the victims
touched themselves when putting on the provocative clothing, defendant’s intent when
instigating or causing the touchings was lewd and lascivious within the meaning of
section 288, since the touchings were sexually motivated and committed for the purpose
of defendant’s sexual gratification.” (Id. at p. 1233.)
The same is true here. Although Cruz perhaps would not have experienced sexual
arousal at the time the girls took the requested nude photographs, the jury could find he
instigated or encouraged the girls to undress and take the photographs to satisfy his
sexual desires. As Lopez makes clear, the statute does not require that defendant’s intent
and the victim’s touching occur simultaneously.
We therefore conclude a reasonable jury could find Cruz guilty beyond a
reasonable doubt of attempt to commit a lewd or lascivious act on a minor. Sufficient
evidence supports the convictions on counts 6, 9, and 22.
II. Neither the Trial Court’s Jury Instruction on Section 288(a) nor its Response to
the Jury’s Question Was Erroneous.
Cruz next raises a claim of instructional error that is tied to his substantial
evidence challenge. He argues the trial court improperly instructed the jury on the
elements of the section 288(a) offense, an error exacerbated by the court’s allegedly
incorrect response to a question from the jury. We examine this argument in its factual
context.
14
A. Factual Background
Over defense counsel’s objection, the trial court gave a modified version of a
special jury instruction requested by the prosecutor.8 The special instruction was read at
the end of CALCRIM No. 1110. Regarding the offenses charged in counts 6, 9, 16, and
22, the court instructed the jury as follows:
“The defendant is charged in Count Six, Nine, 16 and 22 with attempting to
commit a lewd or lascivious act on a child under the age of 14 years in violation of Penal
Code Section 288(a).
“To prove that the defendant is guilty of this crime, the People must prove that:
“One, the defendant willfully caused a child to touch her own body, the
defendant’s body, or the body of someone else either on the bare skin or through the
clothing;
“Two, the defendant committed the act with the intent of arousing, appealing to, or
gratifying the lust, passions, or sexual desires of himself and the child—or excuse me—
or the child;
“And three, the child was under the age of 14 years at the time of the act.
“Someone commits an act willfully when he or she does it willingly or on purpose.
It is not required that he or she intend to break the law, hurt someone else, or gain any
advantage.
“Actually arousing, appealing to, or gratifying the lust, passions, or sexual desires
of the perpetrator or the child is not required.
“It is not a defense that the child may have consented to the act.
“Under the law, a person becomes one year older as soon as the first minute of his
or her birthday has begun.
8
The prosecutor proposed the following instruction: “A jury may, but is not required to
find a defendant guilty of a violation of Penal Code Section 288(a) when he instigates
touching by the minor of the minor’s own body when she is requested to remove her own
clothing.”
15
“The People must prove this crime by proving that the defendant caused a child to
touch her own body by asking her to remove her clothing.”9 (Italics added.)
Before giving the foregoing instruction, the court had also given the jury
CALCRIM No. 251, instructing the jurors that “[t]he crimes charged in this case require
proof of the union or joint operation of act and wrongful intent. For you to find a person
guilty of the crimes in this case, that person must not only intentionally commit the
prohibited act but must do so with a specific intent or mental state. [¶] The act and the
specific intent or mental state required are explained in the instructions for each crime.”
During deliberations, the jury made a number of requests. Relevant here was a
note the jury sent the court asking, “On Count 9, is asking for witness to remove her
clothes sufficient to prove 288A or is asking sufficient under 664. We are confused by
jury instructions and jury verdict form. Do we go by form or instructions?” The
following day, the trial court discussed the jury’s note with counsel. The court explained
it had drafted a proposed response that it had shared with the parties. The court noted
that defense counsel objected to the third paragraph of its proposed response.
The court overruled the defense objection and responded in writing to the jury as
follows: “Penal Code Section 664 defines an attempt to commit any crime. Penal Code
Section 288(a) defines the crime of Lewd and Lascivious Act upon a Child under 14.
Therefore, an attempt to commit a Lewd Act upon a Child under Age 14 is a violation of
Penal Code Sections 288(a)/664. The verdict form for Count 9 is correct. [¶] CALCRIM
instruction no. 460 describes the elements for all of the attempted crimes charged.
CALCRIM instruction no. 1110 describes the elements for the crime of Lewd Act upon a
Child under 14 in violation of Penal Code Section 288(a). For Count 9, please read
9
The clerk’s transcript reflects a somewhat different version of the final paragraph of the
instruction. In the clerk’s transcript, the instruction reads: “The People may prove this
crime by proving that the defendant caused a child to touch her own body by asking her
to remove her own clothing, if the defendant did so with the intent of arousing, appealing
to, or gratifying the lust, passions, or sexual desires of himself or the child.” (Italics
added.) As quoted in the text, when it orally instructed the jury, the trial court used the
verb “must” instead of “may.”
16
CALCRIM instructions numbered 460 and 1110 together for the elements of the charged
crime of Attempted Lewd Act upon a Child under 14. [¶] The People can prove the
crime of Attempted Lewd Act upon a Child under Age 14 by proving that the defendant
attempted to cause a child to touch her own body by asking her to remove her clothing, if
the defendant did so with the intent of arousing, appealing to, or gratifying the lust,
passions, or sexual desires of himself or the child. [¶] Please consider all of these
responses in connection with all of the jury instructions I gave you.”
B. The Trial Court Was Not Required to Instruct the Jury that Defendant’s
Sexual Intent Had to be Concurrent With the Victims’ Touching.
Cruz contends the trial court erred in giving the final paragraph of the modified
CALCRIM No. 1110 instruction. He argues it was “incorrect in that it failed to inform
the jury that there had to be a concurrence of the act of the girl touching herself while she
removed her clothing with appellant’s sexual intent which was simply to get the
photograph not witness its production.” Cruz further contends this error was
“compounded” by the trial court’s response to the jury’s question, which instructed the
jury that “[t]he People can prove the crime of Attempted Lewd Act upon a Child under
Age 14 by proving that the defendant attempted to cause a child to touch her own body
by asking to remove her clothing, if the defendant did so with the intent of arousing,
appealing to, or gratifying the lust, passions, or sexual desires of himself or the child.”
While Cruz recognizes the trial court also instructed the jury with CALCRIM No. 251 on
the union of act and intent, he argues “there was no further instruction to the jury that
would lead them to believe the sexual intent had to exist at the time of the photography,
not upon the receipt of the same.”
We find no merit in Cruz’s claim of instructional error. To begin with, Cruz
acknowledges this claim is tied to his argument that there was insufficient evidence of the
required concurrence of sexual intent with a touching, an argument we have already
rejected. Although he presents this argument in the guise of instructional error, it
essentially reiterates the contention we found meritless in part I, ante. The argument is
no more persuasive warmed over than it was when freshly served.
17
Cruz contends “[t]he jury was not properly instructed that either the appellant or
victim must experience sexual gratification at the time of the touching, not sometime in
the distant [future] when appellant hoped to receive the nude ‘selfies.’” But the very case
upon which he relies, Lopez, refutes his argument. In Lopez, the defendant contended “it
is not sufficient for defendant’s lewd intent to occur in some proximity to the touching
act. The act and lewd intent must occur simultaneously.” (Lopez, supra, 185
Cal.App.4th at p. 1230.) The court disagreed, explaining, “Even though defendant may
not have experienced sexual arousal at the moment the victims touched themselves when
putting on the provocative clothing, defendant’s intent when instigating or causing the
touchings was lewd and lascivious within the meaning of section 288, since the touchings
were sexually motivated and committed for the purpose of defendant’s sexual
gratification.” (Id. at p. 1233.) Far from supporting Cruz’s claim, Lopez refutes it. We
discern no error in the trial court’s instruction on this point.10
III. Cruz’s Prosecution Under Section 288(a) Does Not Violate the Williamson Rule.
Finally, Cruz contends his convictions for attempted violations of section 288(a)
violate the prohibition against prosecution under a general statute when the specific
conduct at issue is prohibited under section 288.3, subdivision (a).11 According to Cruz,
the specific conduct at issue here is “sexting.” He contends “the Legislature intended this
conduct be governed by the more narrow section instead of . . . [the] more general and
severe statute of section 288, subdivision (a).” As we will explain, we disagree.
A. Cruz’s Conduct Went Beyond “Sexting.”
Before we assess the legal merits of Cruz’s argument, we pause to note our
disagreement with his characterization of his conduct in this case. He describes his
10
Because we conclude the instruction was not erroneous, we need not address Cruz’s
contentions that the instruction violated his due process rights and prejudiced him.
11
Section 288.3, subdivision (a) provides: “Every person who contacts or communicates
with a minor, or attempts to contact or communicate with a minor, who knows or
reasonably should know that the person is a minor, with intent to commit an offense
specified in Section 207, 209, 261, 264.1, 273a, 286, 288, 288a, 288.2, 289, 311.1, 311.2,
311.4 or 311.11 involving the minor shall be punished by imprisonment in the state
prison for the term prescribed for an attempt to commit the intended offense.”
18
actions as “sexting,” but that term has been defined as “the exchange of sexually explicit
text messages, including photographs, via cell phone.” (United States v. Broxmeyer (2d
Cir. 2010) 616 F.3d 120, 123; see People v. Gonzalez (2012) 211 Cal. App. 4th 132, 139
[referring to “the special case of ‘self-produced’ pornography (e.g., sexting)”].) As the
People point out, however, Cruz’s conduct went beyond merely sending sexually explicit
text messages. Crucially, “[h]e asked each of the victims, girls under the age of 14, to
send sexually explicit photos of themselves to him.” It is this aspect of appellant’s
conduct that forms the basis of the offenses of which he was convicted.
It is certainly true that Cruz sent sexually explicit messages to the girls, messages
that included photographs of his erect penis. But here we are focused on his efforts to
persuade three girls under the age of 14 to disrobe, photograph themselves, and then send
the nude photographs to him. As the California Supreme Court has explained, it is “the
defendant’s intent to sexually exploit a child” that forms “the ‘gist’ of the offense”
described in section 288(a). (Martinez, supra, 11 Cal.4th at p. 444.) Cruz’s description
of his actions simply omits the key element of the crimes of which he was convicted.
B. Governing Law – The Williamson Rule
Cruz’s argument is based on what is often referred to as the “Williamson rule.”
(People v. Murphy (2011) 52 Cal. 4th 81, 86 (Murphy), citing In re Williamson (1954) 43
Cal. 2d 651.) “Under the Williamson rule, if a general statute includes the same conduct
as a special statute, the court infers that the Legislature intended that conduct to be
prosecuted exclusively under the special statute. In effect, the special statute is
interpreted as creating an exception to the general statute for conduct that otherwise could
be prosecuted under either statute.” (Murphy, supra, 52 Cal.4th at p. 86.) The doctrine is
“designed to ascertain and carry out legislative intent.” (People v. Jenkins (1980) 28
Cal. 3d 494, 505, fn. omitted.)
The Williamson rule applies “if ‘(1) “each element of the general statute
corresponds to an element on the face of the special statute” or (2) . . . “it appears from
the statutory context that a violation of the special statute will necessarily or commonly
result in a violation of the general statute.” [Citation.]’ [Citation.] It does not apply ‘if
19
the more general statute contains an element that is not contained in the special statute
and that element would not commonly occur in the context of a violation of the special
statute.’ [Citation.]” (People v. Medelez (2016) 2 Cal.App.5th 659, 662 (Medelez).)
Cruz contends the second of these tests applies in this case.
C. A Violation of Section 288.3 Will Not Necessarily Result in a Violation of
Section 288(a).
To determine whether the second test is met, we ask whether a violation of the
special statute, section 288.3, will necessarily result in a violation of the more general
one, section 288(a). (See People v. Jones (2003) 108 Cal. App. 4th 455, 464.) Section
288.3 prohibits “contact or communication with a minor or an attempt to do so with the
specific intent to commit an enumerated sex offense.” (People v. Keister (2011) 198
Cal. App. 4th 442, 448.) A violation of this statute will not necessarily result in a violation
of section 288. For example, if Cruz had contacted the victims in this case by text
messaging for the purpose of arranging a meeting with them with the intent to commit a
violation of section 288(a), he would have violated section 288.3. But he would not
necessarily have violated section 288(a). As explained earlier, that section requires a
touching, whether actual or constructive, of a child under age 14, coupled with the
requisite sexual intent.
Here, the general statute, section 288(a), contains an element—an actual or
constructive touching—that is not contained on the face of the more recently enacted
special statute, section 288.3. (See Medelez, supra, 2 Cal.App.5th at p. 662.) This
distinction makes it apparent that “the statutes cover different conduct,” and so the
Williamson rule does not apply. (Ibid.) Indeed, “because the general statute
contemplates more culpable conduct, it is reasonable to infer that the Legislature intended
to punish such conduct more severely.” (Murphy, supra, 52 Cal.4th at p. 87.) We
therefore hold that Cruz’s convictions for attempted lewd and lascivious acts do not
violate the Williamson rule.
DISPOSITION
The judgment is affirmed.
20
_________________________
Jones, P.J.
We concur:
_________________________
Needham, J.
_________________________
Bruiniers, J.
21
A143768
Superior Court of the County of Contra Costa, No. 051405711, John William Kennedy,
Judge.
Marylou Elin Hillberg, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Jeffrey M. Laurence, Senior Assistant Attorney General, Eric D. Share,
Supervising Deputy Attorney General, Violet M. Lee, Deputy Attorney General for
Plaintiff and Respondent.
A143768
22