37 Cal.App.5th 32
Cal. Ct. App.2019Background
- From 2013–2015 Jacobo used a fake Facebook persona "Marlissa" to recruit seven minors to become escorts, arranged "dates," paid them, and on several occasions photographed, videotaped, and engaged in sexual acts with them.
- Two victims reported the Facebook contacts after a school human-trafficking presentation; investigation linked the Marlissa account to Jacobo and recovered explicit photos/videos on his laptop.
- Charged with 60 sex-related counts including seven counts of aggravated human trafficking (Pen. Code § 236.1(c)(2) — pandering theory), multiple counts under §§ 288.2 and 288.3, and numerous § 311.4 counts for using minors to pose for sexual images.
- Jury convicted on 60 counts; trial court sentenced Jacobo to seven consecutive terms of 15 years-to-life (aggregate 105 years-to-life) plus determinate terms totaling 14 years 4 months.
- On appeal Jacobo raised sufficiency challenges to the trafficking, § 311.4, § 288.2, and § 288.3 convictions, constitutional challenges to §§ 288.2 and 288.3 (Commerce Clause, First Amendment, vagueness/overbreadth), and a section 654 multiple-punishment claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether pandering theory (§ 236.1(c)(2) via § 266i(a)(2)) requires a third-party client | People: § 266i(a)(2) punishes persuading a person to become a prostitute; plain language does not require a third person | Jacobo: pandering requires procuring the victim for another person (i.e., a third-party client) | Held: § 266i(a)(2) does not require a third person; convictions supported by substantial evidence. |
| Whether fraud/deceit element requires lack of consent or "fraud in fact" (for aggravated trafficking) | People: statute requires deceit/fraud as aggravating circumstances; consent is not an element of § 236.1(c)(2) | Jacobo: only fraud-in-fact (vitiating consent), not mere fraud-in-inducement, supports aggravated finding | Held: victim consent is not an element; deceit (misrepresentation/concealment via false persona) sufficed; evidence supported deceit findings. |
| Sufficiency of evidence for multiple § 311.4(c) convictions (posing/modeling) where minors may not have known they were photographed | People: "use" to pose or model does not require the minor's conscious direction or awareness; temporal/positional control can constitute "use" | Jacobo: must knowingly pose or be directed to pose; surreptitious filming cannot satisfy statute | Held: statute does not require the minor to knowingly pose; substantial evidence supported the convictions (including two challenged photographs under Kongs factors). |
| Constitutionality and application of §§ 288.2(a) and 288.3(a) (Commerce Clause, First Amendment, vagueness/overbreadth) and related counting errors | People: statutes are valid, narrowly tailored to protect minors, and have been upheld in prior appellate authority; challenged counts meet statutory elements | Jacobo: §§ 288.2 and § 288.3 are facially invalid (interfere with interstate commerce, regulate protected speech, are vague/overbroad) | Held: upheld §§ 288.2 and 288.3 against Commerce Clause, First Amendment, vagueness/overbreadth challenges; but six § 288.2(a)(1) convictions reduced where the record did not show the depicted persons were minors (remanded for resentencing on those counts). |
| Application of § 654 to preclude cumulative punishment for trafficking plus later sex offenses | People: trafficking and subsequent sexual acts were temporally and factually separable; multiple punishments permissible | Jacobo: trafficking objective and sex acts were part of same indivisible course of conduct; § 654 bars multiple punishments | Held: trial court reasonably found multiple intents/objectives and temporal separation; § 654 does not bar the imposed punishments. |
Key Cases Cited
- People v. Vines, 51 Cal.4th 830 (supports substantial-evidence review standard)
- People v. Johnson, 26 Cal.3d 557 (same)
- People v. Zambia, 51 Cal.4th 965 (interpreting § 266i context; distinguished)
- People v. Kongs, 30 Cal.App.4th 1741 (lists factors for determining whether an image is a lewd exhibition of genitals/pubic area)
- People v. Hobbs, 152 Cal.App.4th 1 (holds § 311.4(c) does not require defendant to personally direct posing)
- People v. Haraszewski, 203 Cal.App.4th 924 (adopts Hobbs reasoning)
- People v. Keister, 198 Cal.App.4th 442 (rejects vagueness and First Amendment challenges to § 288.3)
- Hatch v. Superior Court, 80 Cal.App.4th 170 (rejects Commerce Clause and First Amendment challenges to § 288.2)
- People v. Britt, 32 Cal.4th 944 (explains § 654 multiple-punishment test focusing on intent/objective)
Disposition: All convictions affirmed except six § 288.2(a)(1) counts reduced to § 288.2(a)(2) convictions; remanded for resentencing on those counts.