People v. Jacobo

• Decision Date: 02 July 2019
• Docket Number: D074887
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Eliberto Cruz JACOBO, Defendant and Appellant.

37 Cal.App.5th 32

249 Cal.Rptr.3d 236

The PEOPLE, Plaintiff and Respondent,

v.Eliberto Cruz JACOBO, Defendant and Appellant.

D074887

Court of Appeal, Fourth District, Division 1, California.

Filed July 2, 2019

Certified for Partial Publication.^*

Edward J. Haggerty, Rowland Heights, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Alana Butler and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.

HALLER, J.

From 2013 through 2015, defendant Eliberto Cruz Jacobo, a middle-aged male, used a Facebook account with the fictional female persona of "Marlissa" to send "friend requests" to seven females under age 18, each of whom accepted Marlissa's request. Marlissa's Facebook profile page contained photographs of a scantily clad woman holding money. Using private messages through Facebook, Marlissa encouraged each of the minors to become prostitutes. Four of them eventually agreed and Marlissa arranged for each minor to have a "date" with Jacobo in exchange for money. At those dates, Jacobo took photographs and/or videos of the minors, had vaginal intercourse with them, and performed other sexual acts with them. Following a presentation on human trafficking at high school, two of the minors reported to their teachers their Facebook communications with Marlissa. A subsequent investigation by law enforcement officers showed Jacobo had used the Marlissa persona on Facebook to communicate with the seven minors and encourage them to become prostitutes. His laptop computer contained the photographs and videos he had taken of some of them. Jacobo was arrested and charged with various sex offenses.

At trial, the jury found Jacobo guilty of 60 sex offenses, including aggravated human trafficking ( Pen. Code, § 236.1, subd. (c)(2) ),¹ contacting a minor with intent to commit a sexual offense (§ 288.3, subd. (a)), sending harmful matter to a minor (§ 288.2, subd. (a)), oral copulation with a person under age 18 (former § 288a, subd. (b)(1)), unlawful intercourse with a minor more than three years younger (§ 261.5, subd. (c)), sexual penetration with a person under age 18 (§ 289, subd. (h)), using a minor to perform posing or modeling of sexual conduct (§ 311.4, subd. (c)), and unlawful intercourse with a minor under age 18 by a person over age 21 (§ 261.5, subd. (d)). The trial court sentenced him to an aggregate indeterminate term of 105 years to life in prison and a determinate term of 14 years 4 months.

On appeal, Jacobo contends:

(1) there is insufficient evidence to support his convictions for aggravated human trafficking ( § 236.1, subd. (c)(2) ) under a pandering theory because the evidence shows he intended to be the minors' sole client;

(2) there is insufficient evidence to support his convictions for aggravated human trafficking ( § 236.1, subd. (c)(2) ) under a pandering theory because the evidence does not show he used fraud or deceit; (3) there is insufficient evidence to support two of his convictions for using a minor to perform posing or modeling of sexual conduct (§ 311.4, subd. (c)) because the photographs do not depict the required sexual conduct;

(4) there is insufficient evidence to support the remainder of his convictions for using a minor to perform posing or modeling of sexual conduct (§ 311.4, subd. (c)) because he did not direct them to pose or model;

(5) his convictions for sending harmful matter to a minor (§ 288.2, subd. (a)) must be reversed because section 288.2, subdivision (a) violates the commerce clause of the United States Constitution;

(6) his convictions for sending harmful matter to a minor (§ 288.2, subd. (a)) must be reversed because section 288.2, subdivision (a) is overbroad and violates the First Amendment to the United States Constitution;

(7) six of his convictions for sending harmful material depicting a minor engaged in sexual conduct to a minor (§ 288.2, subd. (a)(1)) should be reduced to convictions for sending harmful material to a minor (§ 288.2, subd. (a)(2));

(8) his convictions for contacting a minor with intent to commit a sexual offense (§ 288.3, subd. (a)) must be reversed because section 288.3, subdivision (a) is unconstitutionally vague;

(9) his convictions for contacting a minor with intent to commit a sexual offense (§ 288.3, subd. (a)) must be reversed because section 288.3, subdivision (a) is overbroad and violates the First Amendment to the United States Constitution; and

(10) section 654 precludes his punishment for both his aggravated human trafficking offenses and his other offenses.

As we shall explain, we conclude six of his convictions for sending harmful material depicting a minor engaged in sexual conduct to a minor (§ 288.2, subd. (a)(1)) must be reduced to convictions for sending harmful material to a minor (§ 288.2, subd. (a)(2)). In all other respects, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In November 2013, Jacobo, using the fictional female persona of Marlissa, sent K.C., then 16 years old, a friend request on Facebook, which request K.C. then accepted. Through Facebook private messages, Marlissa asked K.C. how old she was and whether she wanted to make easy money. K.C. replied she was 17 years old. Marlissa explained to K.C. that she was not talking about a regular job, but instead a job as an escort. Marlissa stated that K.C. could make $150 "tak[ing] care of a guy in bed." K.C. replied, "No thanks." Marlissa told K.C. to check her "timeline" on Facebook. K.C. did so and saw photographs of a scantily clad woman holding money. Marlissa continued to try to contact K.C. for several months, but K.C. did not respond except for a short reply in November 2014 stating that she was not doing much and asking what Marlissa was doing.

From June through August 2014, Jacobo, using the fictional persona of Marlissa, similarly communicated with 13-year-old A.M. through Facebook and attempted, albeit unsuccessfully, to persuade her to become a prostitute.² From April through July 2015, Jacobo, using the fictional persona of Marlissa, similarly communicated with 16-year-old Y.V. through Facebook and attempted, albeit unsuccessfully, to persuade her to become a prostitute.

In December 2013, Jacobo, using the fictional persona of Marlissa, similarly communicated with 16-year-old S.M. through Facebook and attempted to persuade her to become a prostitute. Marlissa stated that she was an escort, explaining that an escort "takes care of a guy in bed," and asked S.M. whether she wanted to be "hooked up" and make $150. After further prodding by Marlissa the following day, S.M. agreed. Marlissa told her, "Just be down boo. We only live once and nobody is going to know or find out." In January 2014, Marlissa asked S.M. if she would like to do the "hustle" before school for $150. S.M. told Marlissa to give the client her number and have him call her. Marlissa replied, "Go for it boo. We only live once and hustles are fun. Client and I are driving to hotel." Marlissa sent S.M. a photograph of Jacobo and told her that he lived nearby, would pay $150, and could be a steady customer.

Jacobo picked up S.M. in front of her school and took her to a motel room. He took a photograph of her there. Jacobo and S.M. had intercourse and then she orally copulated him and he orally copulated her.³ Afterward, Jacobo paid S.M. $150. A few months later, Marlissa sent a message to S.M. stating, "[y]our client hit me up. He said for you to text him." S.M. never again met with Jacobo or any other client.

From June 2014 through August 2014, Jacobo, using the fictional persona of Marlissa, similarly communicated with 16-year-old G.M. through Facebook and attempted to persuade her to become a prostitute. After initially declining, G.M. ultimately agreed after additional prodding by Marlissa. Jacobo picked up G.M. at her home, took her to a motel room, paid her $150, and had sexual intercourse with her. He took sexually explicit photographs of G.M. and two video recordings of them engaging in oral copulation and vaginal intercourse. After that "date," Marlissa continued to ask G.M. whether she wanted to do another trick with Jacobo, but G.M. declined.

From June 2013 through July 2014, Jacobo, using the fictional persona of Marlissa, similarly communicated with 14-year-old Y.C. through Facebook and attempted to persuade her to become a prostitute. Y.C. agreed because her parents were "broke" and she was taking care of herself. Marlissa arranged a "date" with Jacobo, who picked her up and took her to a motel room where they had sexual intercourse. Jacobo took sexually explicit photographs of Y.C. and video recordings of them engaging in sexual intercourse. In the following months, Marlissa sent Y.C. messages encouraging her to contact Jacobo again, but Y.C. replied that she was no longer interested.

From May 2014 through February 2015, Jacobo, using the fictional persona of Marlissa, similarly communicated with 16-year-old A.C. through Facebook and attempted to persuade her to become a prostitute. Marlissa arranged for Jacobo to pick up A.C. at her high school. He took her to a motel room, but, rather than having sex with him, A.C. robbed him at knife point and walked home. Thereafter, Marlissa complained to A.C. about her robbing Jacobo and told her she should finish the trick, promising her a lucrative trip to San Diego. After A.C. agreed, Jacobo took her to a motel room where they had sexual intercourse and he took sexually explicit photographs of her and video recordings of them. Thereafter, A.C. met with Jacobo an additional time, but Marlissa never arranged any additional clients for her.

After attending high school presentations on human trafficking, K.C. and Y.V. each spoke with their teachers about communications they had with Marlissa through Facebook. Thereafter, they spoke with Riverside County...