                                                              FILED BY CLERK
                          IN THE COURT OF APPEALS              MAY 25 2011
                              STATE OF ARIZONA
                                                                 COURT OF APPEALS
                                DIVISION TWO
                                                                   DIVISION TWO




THE STATE OF ARIZONA,                          )    2 CA-CR 2010-0266
                                               )    DEPARTMENT A
                                 Appellee,     )
                                               )    OPINION
             v.                                )
                                               )
RICHARD D. VILLEGAS,                           )
                                               )
                                Appellant.     )
                                               )


           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                                    Tucson
                                                               Attorneys for Appellee

Robert J. Hirsh, Pima County Public Defender
 By Lisa M. Hise                                                               Tucson
                                                               Attorneys for Appellant


E S P I N O S A, Judge.
¶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

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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, ¶¶ 17-18, 8 P.3d 391,

395-96 (App. 2000), Division One of this court determined that DCAC sentence

enhancement applied to attempted sexual conduct with a minor under the age of fifteen

where the defendant “intentionally took steps to lure his intended victim into prohibited

sexual conduct,” even though 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

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factual impossibility is not a defense to an attempted crime, it also was not a defense to a

DCAC sentence enhancement based on an 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




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