STATE OF ARIZONA v. RICHARD D. VILLEGAS
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FILED BY CLERK IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION TWO THE STATE OF ARIZONA, Appellee, v. RICHARD D. VILLEGAS, Appellant. ) ) ) ) ) ) ) ) ) ) MAY 19 2011 COURT OF APPEALS DIVISION TWO 2 CA-CR 2010-0266 DEPARTMENT A OPINION APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY Cause No. CR20094776001 Honorable John S. Leonardo, Judge AFFIRMED IN PART; REVERSED IN PART Thomas C. Horne, Arizona Attorney General By Kent E. Cattani and Kathryn A. Damstra Robert J. Hirsh, Pima County Public Defender By Lisa M. Hise E S P I N O S A, Judge. Tucson Attorneys for Appellee Tucson Attorneys for Appellant ¶1 Appellant Richard Villegas was charged and convicted after a jury trial of luring a minor for sexual exploitation in violation of A.R.S. § 13-3554. Villegas s conviction stems from his correspondence, primarily via text message and electronic mail, with a Tucson Police Department detective posing as a fourteen-year-old girl. After the detective responded to an internet posting by Villegas, they agreed to meet, smoke marijuana, and engage in sexual acts. Police officers arrested him at the arranged meeting location. ¶2 The state alleged Villegas s conduct constituted a dangerous crime against children (DCAC) pursuant to A.R.S. § 13-705. The trial court denied his motion to dismiss that allegation, and the jury found Villegas knew or had reason to know that the victim was under fifteen years of age at the time he committed the offense. The court, first noting that the conviction fell within § 13-705, suspended the imposition of sentence and placed Villegas on a four-year term of probation. Villegas argues on appeal, and the state concedes, that the court erred in denying his motion to dismiss the DCAC allegation. We review a trial court s denial of a motion to dismiss for an abuse of discretion but, to the extent it presents a question of statutory interpretation, our review is de novo. State v. Mangum, 214 Ariz. 165, ¶ 6, 150 P.3d 252, 254 (App. 2007). ¶3 Villegas asserts that, because there was no victim under the age of fifteen, the DCAC statute does not apply. We agree. Section 13-705 provides for enhanced sentences for certain crimes, including luring a minor for sexual exploitation, that are committed against a minor who is under fifteen years of age. § 13-705(E), (P)(1)(s). A person commits luring a minor for sexual exploitation by offering or soliciting sexual 2 conduct with another person knowing or having reason to know that the other person is a minor. § 13-3554(A). The statute additionally states, however, that [i]t is not a defense . . . that the other person is not a minor. § 13-3554(B). The statute further provides that a conviction is punishable under § 13-705 if the minor is under fifteen years of age. § 13-3554(C). Thus, the plain language of §§ 13-705 and 13-3554 precludes application of the DCAC sentence enhancement when, as here, the victim is not under the age of fifteen. See State v. Williams, 175 Ariz. 98, 101, 854 P.2d 131, 134 (1993) ( [A] dangerous crime against a child is a crime against a child qua child. ); see also 2008 Ariz. Sess. Laws, ch. 301, § 17 (renumbering former A.R.S. § 13-604.01 to § 13-705). Our supreme court has made clear that a defendant s knowledge or subjective belief of the victim s age is irrelevant in determining whether the enhancement should apply the only germane consideration is whether the defendant directed his or her conduct at a person under the age of fifteen. See State v. Sepahi, 206 Ariz. 321, ¶¶ 17, 19, 78 P.3d 732, 735 (2003). Thus, it is immaterial that Villegas believed he was targeting a fourteen-year-old girl. ¶4 We recognize that, in State v. Carlisle, 198 Ariz. 203, ¶ 18, 8 P.3d 391, 396 (App. 2000), Division One of this court determined that DCAC sentence enhancement would apply to attempted luring of a minor for sexual exploitation even if the intended victim was not, despite the defendant s belief, under the age of fifteen. Assuming, arguendo, the vitality of that holding in light of Sepahi, Carlisle is distinguishable. The Carlisle court reasoned in part that, because factual impossibility is not a defense to an attempted crime, it also was not a defense to a DCAC sentence enhancement based on an 3 attempted offense. 198 Ariz. 203, ¶ 17, 8 P.3d at 395-96. That reasoning, however, is inapplicable to a completed crime like the one at issue here. Cf. Mejak v. Granville, 212 Ariz. 555, ¶¶ 12-15, 136 P.3d 874, 876-77 (2006) (irrespective of defendant s subjective belief, under previous version of luring statute, defendant cannot be charged with completed offense if victim neither child nor peace officer), superseded by statute, 2007 Ariz. Sess. Laws, ch. 248, § 8. ¶5 For the reasons stated, the trial court s denial of Villegas s motion to dismiss the DCAC allegation is reversed. In all other respects, Villegas s conviction and term of probation are affirmed. /s/ Philip G. Espinosa PHILIP G. ESPINOSA, Judge CONCURRING: /s/ J. William Brammer, Jr. J. WILLIAM BRAMMER, JR., Presiding Judge /s/ Joseph W. Howard JOSEPH W. HOWARD, Chief Judge 4
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