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.

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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.