People v. Cruz Villagran
2016 Cal. App. LEXIS 1003
Cal. Ct. App.2016Background
- Defendant Juan Pablo Cruz Villagran (then 19–23) messaged multiple girls under 14 via Instagram/Kik, sending photos of his erect penis and asking them to send nude photos of themselves. Three counts at issue involve Jane Does I, III, and V (ages 11–13 at relevant times).
- Victims refused and blocked Cruz; some reported the contacts to school/police. Charges included attempted lewd and lascivious acts on a child under 14 (Pen. Code §§ 288(a), 664) among many other counts.
- Trial court denied a motion to dismiss attempted § 288(a) counts; jury convicted on the counts at issue. Cruz was sentenced (probation with county jail time) and appealed.
- On appeal Cruz argued (1) § 288(a) requires physical contact or an instruction to touch contemporaneous with sexual intent, so virtual requests for nude photos are insufficient; (2) jury instructions/response were erroneous regarding concurrence of intent and touching; and (3) prosecution under § 288(a) is barred by the Williamson rule because sexting is governed by the more specific § 288.3.
- The Court of Appeal affirmed: (a) attempted lewd acts under § 288(a) may be committed via text messaging; (b) sexual intent need not coincide temporally with the victim’s touching; and (c) Williamson rule did not bar prosecution because § 288(a) contains an element (actual or constructive touching) not on the face of § 288.3.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether attempted violation of § 288(a) can be committed via text messaging | People: virtual communications that try to induce a minor to touch/disrobe can constitute attempt under § 288(a) | Cruz: § 288(a) requires a physical encounter or direct effort to make physical contact; mere requests for photos are insufficient | Held: Yes. Attempt may be committed via text; constructive touching through victim at defendant's instigation suffices (Imler precedent) |
| Whether the People proved the required sexual intent element for § 288(a) | People: intent can be inferred from circumstances (sending penis photos and requesting nudes) | Cruz: lacked evidence he intended girls to touch themselves when taking selfies; intent to merely receive photos is insufficient | Held: Intent satisfied — requesting nudes after sending explicit images supports inference of intent to arouse/gratify (statutory language allows intent to be directed at child or perpetrator) |
| Whether intent and touching must be concurrent | People: concurrence need not be simultaneous; instigating touch with lewd intent suffices | Cruz: sexual intent must exist at the moment of the victim’s touching/photography | Held: Not required to be simultaneous; prior lewd intent when instigating touching is sufficient (Lopez cited) |
| Whether prosecution under § 288(a) is barred by Williamson rule in favor of § 288.3 (special statute for contacting minors) | People: § 288(a) includes an element (touching) absent from § 288.3, so Williamson rule does not apply | Cruz: conduct (sexting/communicating to minors) is governed by the more specific § 288.3 and thus § 288(a) conviction is improper | Held: Williamson rule inapplicable — statutes cover different conduct; § 288(a) contemplates more culpable conduct (actual/constructive touching) |
Key Cases Cited
- People v. Martinez, 11 Cal.4th 434 (statute requires touching with sexual intent; intent may be inferred from circumstances)
- People v. Imler, 9 Cal.App.4th 1178 (one can commit attempted child molestation by telephone; constructive touching via victim at instigation)
- People v. Lopez, 185 Cal.App.4th 1220 (lewd intent need not be experienced at the precise moment of the victim’s touching; instigated touchings satisfy § 288)
- People v. Meacham, 152 Cal.App.3d 142 (touching may be constructive; victim’s touching imputable to instigator)
- People v. Hanna, 218 Cal.App.4th 455 (electronic communications can support § 288(a) conviction)
- People v. Mickle, 54 Cal.3d 140 (discussing constructive disrobing/sexual exploitation under § 288)