People v. Vega Dominguez.
2024 COA 32. No. 21CA1144. Colorado Constitution—Equal Protection—Attempted Patronizing a Prostituted Child—Attempted Inducement of Child Prostitution—Mens Rea—Jury Instructions.
April 4, 2024
Vega Dominguez was convicted of soliciting for child prostitution, sexual exploitation of a child, attempted patronizing a prostituted child, and attempted inducement of child prostitution. The trial court sentenced Vega Dominguez to six years in the custody of the Department of Corrections (DOC) for soliciting for child prostitution, six years to life under the Colorado Sex Offender Lifetime Supervision Act for attempted patronizing a prostituted child, six years in DOC custody for sexual exploitation of a child, and four years in DOC custody for attempted inducement of child prostitution.
On appeal, Vega Dominguez argued that the mens rea for the crime of soliciting for child prostitution is “intentionally,” so the trial court erred by instructing the jury that it was “knowingly.” However, the court of appeals decided to follow People v. Randolph, 2023 COA 7, ¶ 21 (cert. granted Sept. 25, 2023), which concluded that the mens rea is “knowingly.” Vega Dominguez contended that the elemental instruction for soliciting for child prostitution was nevertheless erroneous under Randolph because it failed to include any mens rea. Here, while the elemental instruction did not explicitly tell the jury that it must find that Vega Dominguez knowingly committed the offense, a different instruction informed the jury that the applicable state of mind in the case is “knowingly,” which was defined for the jury. Accordingly, a reasonable jury would likely have inferred that the knowingly mental state applied to each of the offenses in the case, so the jury was adequately informed on the governing law.
Vega Dominguez also contended that, as applied to his conduct, his conviction for attempted patronizing a prostituted child violates his equal protection rights because it prohibits essentially the same conduct, or less culpable conduct, as attempted inducement of child prostitution, but the former has a much harsher sentence. The attempted patronizing a prostituted child and attempted inducement of child prostitution charges both required the prosecution to prove that Vega Dominguez engaged in conduct constituting a substantial step toward commission of the offense, and both underlying offenses proscribed the same conduct in this case. And both crimes are class 4 felonies, but attempted patronizing a prostituted child carries the harsher penalty of an indeterminate sentence. Therefore, Vega Dominguez’s conviction for attempted patronizing a prostituted child violates his right to equal protection, and this violation was both obvious and substantial.
The conviction for attempted patronizing a prostituted child was vacated, and the case was remanded for the trial court to amend the mittimus. The judgment of conviction was otherwise affirmed.