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Name: People v. Villagran
Case #: A143768
Court: CA Court of Appeal
District 1 DCA
Division: 5
Opinion Date: 11/18/2016

Sufficient evidence supported defendant’s convictions for attempted lewd acts on a minor where he sent text messages containing sexually explicit photographs of himself to underage girls and asked them to send him nude photos of themselves in return. Defendant located a number of girls under 14 years of age on social networking websites. He texted them, sending them sexually explicit photos of himself, and asked them to send nude photos of themselves in return. Based on these (and other) acts, defendant was convicted of 21 offenses with five different victims. On appeal defendant challenged the sufficiency of the evidence to support three of the convictions for attempted lewd acts on a child under 14 years of age (Pen. Code, § 288, subd. (a)), because he did not have a physical encounter with any of the girls nor induce them to touch themselves or another with the required sexual intent. Held: Affirmed. Section 288, subdivision (a) requires a touching of an underage child’s body with sexual intent. Attempting to commit that offense requires proof the defendant intended to commit a lewd and lascivious act with an underage child, and proof of a direct but ineffectual step towards doing so. The required touching may be constructive, and may be done by the child on her own person provided it was instigated by the defendant having the requisite “specific intent of arousing, appealing to, or gratifying the lust of the child or the accused.” It does not matter that defendant made no effort to meet the girls or be present when they took off their clothes to take the nude photos he requested. Had the girls complied with his request and touched themselves to take nude photos, those acts of touching would be imputed to him. Thus, a defendant may attempt a lewd act on a child via a text message.

Penal Code section 288, subdivision (a) does not require that the defendant’s intent and the victim’s touching occur simultaneously. Defendant argued the evidence was insufficient to support three of the convictions for attempted lewd act on a minor because it failed to show that the required sexual intent and touching occurred simultaneously. However, even though defendant “would not have experienced sexual arousal at the time the girls took the requested nude photographs, the jury could find he instigated and encouraged the girls to undress and take the photographs to satisfy his sexual desires. . . . [T]he statute does not require that defendant’s intent and the victim’s touching occur simultaneously.”

Defendant’s prosecution under Penal Code section 288, subdivision (a) instead of section 288.3 does not violate the Williamson rule, because his conduct went beyond “sexting.” The Williamson rule provides that if a general statute includes the same conduct as a special statute, it can be inferred that the Legislature intended the conduct to be prosecuted exclusively under the specific statute. (See People v. Murphy (2011) 52 Cal.4th 81, citing In re Williamson (1954) 43 Cal.2d 651.) The rule applies if each element of the general statute corresponds to an element on the face of the specific statute, or a violation of the specific statute will necessarily result in a violation of the general statute. Defendant argued that his specific conduct was prohibited by section 288.3, subdivision (a), which prohibits “sexting” (contact with a minor with the specific intent to commit an enumerated sex offense). However, defendant’s conduct went beyond “sexting” when he asked the girls to send him sexually explicit photos of themselves. Further, a violation of section 288.3 will not necessarily violate section 288, as section 288 requires a touching, coupled with the requisite sexual intent.

The full opinion is on the court’s website here: