1

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,

v.

JUAN PABLO CRUZ VILLAGRAN,

Defendant and Appellant.

 A143768

 (Contra Costa County

 Super. Ct. No. 051405711)

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.
2

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. 
3

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 
4

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 
5

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

Lesser

§ 228.2, subd. (a): distributing lewd

matter to a minor

§ 313.1, subd. (a): distributing harmful

matter to a minor

NG4

G

 

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.
6

2 § 288.3, subd. (a): contacting a minor to

engage in lewd or lascivious behavior

G

3 § 647.6, subd. (a)(1): annoying or

molesting a minor, a misdemeanor

G

4 §§ 311.3, subd. (a)/664: attempted

exploitation of a child

NG

5 §§ 311.1, subd. (a)/664: attempted

possession of child pornography

G

6 §§ 288, subd. (a)/664: attempt to commit

a lewd act on a minor under 14

G

Jane Doe II

Count Charge under Penal Code Verdict

7 § 647.6, subd. (a)(1): annoying or

molesting a minor, a misdemeanor

G

8 § 647.6, subd. (a)(1): annoying or

molesting a minor, a misdemeanor

G

Jane Doe III

Count Charge under Penal Code Verdict

9 §§ 288, subd. (a)/664: attempt to commit

a lewd act on a minor under 14

G

10 §§ 311.3, subd. (a)/664: attempted

exploitation of a child

NG

11 §§ 311.11, subd. (a)/664: attempted

possession of child pornography

G
7

12 § 288.3, subd. (a): contacting minor to

engage in lewd or lascivious behavior

G

Jane Doe IV5

Count Charge under Penal Code Verdict

13 §§ 288.2/664: attempted distribution of

lewd matter to a minor

G

14 § 288.3, subd. (a): contacting a minor to

engage in lewd or lascivious behavior

G

15 §§ 311.11, subd. (a)/664: attempted

possession of child pornography

G

16 §§ 288, subd. (a)/664: attempt to commit

a lewd act on a minor under 14

G

17 §§ 288.2/664: attempted distribution of

lewd matter to a minor

G

18 §§ 311.3, subd.(a)/664: attempted

exploitation of a minor

NG

Jane Doe V

Count Charge under Penal Code Verdict

19

Lesser

§ 288.2, subd. (a): exhibiting lewd matter

to a minor

§ 313.1, subd. (a): distributing harmful

material to a minor

NG

G

 

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. 
8

20 § 647.6, subd. (a)(1): annoying or

molesting a minor, a misdemeanor

G

21 §§ 311.11, subd. (a)/664: attempted

possession of child pornography

NG

22 §§ 288, subd. (a)/664: attempt to commit

a lewd act on a minor under 14

G

23

Lesser

§§ 311.3, subd. (a)/664: attempted

exploitation of a minor

§ 313.1, subd. (a): distributing harmful

material to a minor

NG

G

24 § 288.2, subd. (a): exhibiting lewd matter

to a minor

G

25 § 288.3, subd. (a): contacting a minor to

engage in lewd behavior

G

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. 
9

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). 
10

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.’ 
11

[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 
12

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 
13

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 
14

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.
15

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.” 
16

“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.” 
17

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.
18

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.”
19

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 
20

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.
21

_________________________

Jones, P.J.

We concur:

_________________________

Needham, J.

_________________________

Bruiniers, J.
22

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