2
Certiorari to the Colorado Court of Anneals Court of Appeals
Case No. 21CA1144.
Attorneys for Petitioner/Cross-Respondent: Philip J. Weiser,
Attorney General Jessica E. Ross, Senior Assistant Attorney
General &Assistant Solicitor General Aric Smith,
Assistant Attorney General Denver, Colorado.
Attorneys for Respondent/Cross-Petitioner: Megan A. Ring,
Public Defender Kamela Maktabi, Deputy Public Defender
Denver, Colorado.
JUSTICE GABRIEL delivered the Opinion of the Court, in which
CHIEF JUSTICE MARQUEZ, JUSTICE BOATRIGHT, JUSTICE HOOD,
JUSTICE SAMOUR, JUSTICE BERKENKOTTER, and JUSTICE BLANCO
joined.
3
OPINION
GABRIEL, JUSTICE.
¶1
We granted certiorari to consider whether (1) a division of
the court of appeals erred in concluding that defendant
Javier Vega Dominguez's conviction for attempted
patronizing a prostituted child plainly violated
Colorado's equal protection doctrine because that
conviction prohibited the same conduct as attempted
inducement of child prostitution, for which Vega Dominguez
was also convicted, but carried a higher sentence; and (2)
the trial court erred by declining to instruct the jury on
the applicable mental state for the crime of soliciting for
child prostitution, which Vega Dominguez contends is
"intentionally."[1]
¶2
As to the first issue, we conclude that any error as to
whether Vega Dominguez's conviction for attempted
patronizing a prostituted child violated Colorado's equal
protection principles was not obvious and, therefore, was not
4
plain. Accordingly, we reverse the division's contrary
judgment, and we vacate its merits analysis on that question.
¶3
As to the second issue, we conclude, in accordance with our
decision in Randolph v. People, 2025 CO 44, ¶
4, 570 P.3d 1022, 1024 ("Randolph II"),
that the culpable mental state for soliciting for child
prostitution is "knowingly," and we further
conclude, as did the division below, that the instructions
given, when read as a whole, properly instructed the jury on
that element.
¶4
Accordingly, we affirm in part, reverse in part, and vacate
in part the division's judgment.
I.
Facts and Procedural History
¶5
J.S., who was fifteen years old at the time, went to Walmart
with his father. While they were at the store, Vega Dominguez
approached J.S. and asked J.S. if he was with anyone else.
Vega Dominguez then offered J.S. money if J.S. would sell
pornographic movies and vibrators for him. Vega Dominguez
also offered J.S. money for oral sex and asked J.S. to go to
his house to have sex with him and see the pornographic
movies. J.S. declined each of these offers, and Vega
Dominguez gave J.S. his phone number.
¶6
J.S. then told his father about the encounter, and he and his
father contacted the police.
5
¶7
Law enforcement later commenced an undercover operation in
which a detective representing himself as J.S. initiated text
message exchanges with Vega Dominguez. During these
exchanges, Vega Dominguez asked J.S. how old he was, and J.S.
said that he was fifteen years old. Vega Dominguez then asked
J.S. for naked photos of himself and offered to pay J.S. for
sex.
¶8
The detective portraying J.S. subsequently arranged to meet
Vega Dominguez in person. When Vega Dominguez arrived and
stopped near the agreed location, the police arrested him and
found lubricant in his vehicle. Vega Dominguez was later
charged with (1) soliciting for child prostitution; (2)
sexual exploitation of children; (3) criminal attempt to
commit patronizing a prostituted child; and (4) criminal
attempt to commit inducement of child prostitution.
¶9
The case proceeded to trial, and, as pertinent to the issues
before us, the trial court gave the jury the following
instructions:
Instruction No. 15
A crime is committed when the defendant has committed a
voluntary act prohibited by law, together with a culpable
state of mind. ....
The culpable state of mind is as much an element of the crime
as the act itself and must be proven beyond a reasonable
doubt, either by direct or circumstantial evidence[.]
In this case, the applicable state of mind is
explained below:
A person acts "knowingly" or "willfully"
with respect to conduct or to a circumstance described by a
statute defining an offense when he
6
is aware that his conduct is of such nature or that such a
circumstance exists. A person acts "knowingly" or
"willfully", with respect to a result of his
conduct, when he/she is aware that his conduct is practically
certain to cause the result.
(Emphasis added.)
Instruction No. 16
The elements of the crime of Soliciting for Child
Prostitution are:
1. That the defendant,
2. in the State of Colorado, at or about the date and place
charged,
3. solicited another,
4. for the purpose of prostitution of a child or by a child.
¶10
The jury found Vega Dominguez guilty on all four counts, and
the trial court subsequently sentenced him to six years in
the Department of Corrections for soliciting for child
prostitution, six years for sexual exploitation of a child,
six years to life for criminal attempt to commit patronizing
a prostituted child, and four years for criminal attempt to
commit inducement of child prostitution. The sentences on the
solicitation, attempted patronizing, and attempted inducement
counts were to run concurrently with one another, and the
sentence on the exploitation count was to run consecutively
to those counts.
¶11
Vega Dominguez then appealed, arguing, as pertinent here,
that (1) as applied to him, the crime of attempted
patronizing a prostituted child prohibited the same conduct
as the crime of attempted inducement of child prostitution
but
7
the former carried a harsher sentence, and thus his attempted
patronizing conviction violated his equal protection rights;
and (2) the mens rea for the crime of soliciting for child
prostitution is "intentionally" and the trial court
therefore erred by instructing the jury that it was
"knowingly." People v. Dominguez, 2024 COA
32, ¶¶ 1, 9, 551 P.3d 1205, 1207-08. Vega Dominguez
had not preserved either of these issues for appeal.
Id. at ¶ 8, 551 P.3d at 1208.
¶12
In a unanimous, published opinion, a division of the court of
appeals vacated the conviction for attempted patronizing a
prostituted child and therefore remanded for amendment of the
mittimus but otherwise affirmed the judgment of conviction.
Id. at ¶ 2, 551 P.3d at 1207.
¶13
In support of its ruling regarding the attempted patronizing
count, the division, reviewing for plain error, id.
at ¶ 8, 551 P.3d at 1208, noted that
"Colorado's guarantee of equal protection is
violated where two criminal statutes proscribe identical
conduct, yet one punishes that conduct more harshly,"
id. at ¶ 16, 551 P.3d at 1209 (quoting Dean
v. People, 2016 CO 14, ¶ 14, 366 P.3d 593, 597).
The division further observed that, when evaluating an
as-applied equal protection challenge like the one before it,
courts consider whether, in the circumstances under which the
defendant acted, the pertinent statutes punish identical
conduct and whether a reasonable distinction may be drawn
between the conduct proscribed by the two statutes.
Id. at ¶ 17, 551 P.3d at 1209. To establish
8
such a reasonable distinction, the division noted, the
statutory classifications of the crimes at issue must be
"based on differences that are real in fact and
reasonably related to the general purposes of criminal
legislation." Id. at ¶ 18, 551 P.3d at
1209 (quoting People v. Tarr, 2022 COA 23, ¶
59, 511 P.3d 672, 684, rev'd on other grounds,
Tarr v. People, 2024 CO 37, 549 P.3d 966).
¶14
Turning to the statutes at issue, the division opined that
the crime of attempted patronizing a prostituted child
carries a harsher penalty than does the crime of attempted
inducement of child prostitution, yet, in the division's
view, on the facts presented, the respective statutes
proscribed the same conduct, thus resulting in an equal
protection violation. Id. at ¶¶ 20-21, 30,
551 P.3d at 1209-11. ¶15 The division further concluded
that this violation was obvious in light of a prior
division's decision in People v. Maloy, 2020 COA
71, 465 P.3d 146, and also substantial, thus amounting to
plain error. Dominguez, ¶ 30, 551 P.3d at 1211.
In Maloy, ¶ 22, 465 P.3d at 154, the division
had concluded that, as applied to the defendant's conduct
in that case, the defendant's conviction for patronizing
a prostituted child violated the defendant's right to
equal protection because the crimes of pandering of a child
and inducement of child prostitution penalized the same or
more culpable conduct as patronizing but carried lighter
sentences. In reaching this conclusion, the Maloy
division noted that a "critical facial difference"
between inducement and patronizing was that inducement
required proof that
9
money or another thing of value was exchanged, whereas
patronizing criminalized the same conduct but did not
necessarily require proof that money or something of value
was exchanged. Id. at ¶ 33, 465 P.3d at 155.
Because, on the facts presented, however, money was
exchanged, the Maloy division concluded that the
defendant's conduct violated both statutes in precisely
the same way. Id. at ¶ 34, 465 P.3d at 155.
¶16
Rejecting the People's argument that Maloy was
distinguishable on multiple grounds, the division below
extended the Maloy division's analysis to
conclude that Vega Dominguez's equal protection rights
had been plainly violated in this case. Dominguez,
¶¶ 2, 27-30, 551 P.3d at 1207, 1210-11.
¶17
As to the second issue, the division, following another
division's opinion in People v. Randolph, 2023
COA 7M, ¶ 31, 528 P.3d 917, 923 ("Randolph
I"), aff'd, Randolph II,
¶ 67, 570 P.3d at 1036, initially determined that the
mens rea for soliciting for child prostitution is
"knowingly," not "intentionally."
Dominguez, ¶ 10, 551 P.3d at 1208. The division
then proceeded to address Vega Dominguez's alternative
argument that even under Randolph I, the elemental
instruction for the soliciting count was erroneous because it
did not include any mens rea. Id. at ¶
11, 551 P.3d at 1208. Although the division noted that Vega
Dominguez did not raise this issue until his reply brief and
that divisions generally do not address arguments raised for
the first time at that stage of the briefing, the division
10
nonetheless addressed the issue and concluded that the
omission of the applicable mental state from the elemental
instruction for soliciting for child prostitution was not
plain error because another instruction (Instruction No. 15)
had correctly advised the jury as to the applicable mental
state. Id. at ¶¶ 11-12, 551 P.3d at 1208.
¶18
The People petitioned for certiorari, and Vega Dominguez
cross-petitioned. We granted both the petition and the
cross-petition.
II.
Analysis
¶19
We begin by addressing the applicable standard of review. We
then turn to the question of whether the division correctly
determined that the trial court had plainly erred in entering
judgment on the jury's guilty verdict for attempted
patronizing a prostituted child. We end by examining whether
the trial court plainly erred in declining to include the
applicable mental state in the elemental instruction for the
crime of soliciting for child prostitution.
A.
Standard of Review
¶20
Vega Dominguez raised both his equal protection and jury
instruction claims for the first time on appeal to the
division below, and thus, those claims were not preserved. We
review unpreserved constitutional and nonconstitutional
errors for plain error. Hagos v. People, 2012 CO 63,
¶ 14, 288 P.3d 116, 120. Plain error is both obvious and
substantial. Id. Obvious error must ordinarily
contravene a clear statutory command, a well-settled legal
principle, or Colorado
11
case law. Scott v. People, 2017 CO 16, ¶ 16,
390 P.3d 832, 835. An error is substantial when it so
undermines the fundamental fairness of a trial as to cast
serious doubt on the reliability of the judgment of
conviction. Hagos, ¶ 14, 288 P.3d at 120.
¶21
With respect to jury instructions, we have observed that a
"court's failure to instruct the jury properly does
not constitute plain error if the relevant instruction, read
in conjunction with other instructions, adequately informs
the jury of the law." People v. Miller, 113
P.3d 743, 750 (Colo. 2005). We have further opined that an
erroneous jury instruction does not ordinarily constitute
plain error when the issue is uncontested at trial or the
record contains overwhelming evidence of the defendant's
guilt. Id.
¶22
We review a statute's constitutionality, both facially
and as applied, de novo. Dean, ¶ 8, 366 P.3d at
596.
B.
The Attempted Patronizing a Prostituted Child Count
¶23
The Equal Protection Clause of the Fourteenth Amendment
provides that no state shall "deny to any person within
its jurisdiction the equal protection of the laws." U.S.
Const. amend. XIV, § 1. Although the Colorado
Constitution does not contain an equal protection clause, we
have construed our constitution's due process clause,
Colo. Const. art. II, § 25, to imply a similar
guarantee, Dean, ¶ 11, 366 P.3d at 596.
"Equal protection of the laws assures the like treatment
of all persons who are similarly situated." Id.
12
¶24
We have long held that "Colorado's guarantee of
equal protection is violated where two criminal statutes
proscribe identical conduct, yet one punishes that conduct
more harshly." People v. Lee, 2020 CO 81,
¶ 14, 476 P.3d 351, 354 (quoting Dean, ¶
14, 366 P.3d at 597). Similarly, we have said that
"separate statutes proscribing with different penalties
what ostensibly might be different acts, but offering no
intelligent standard for distinguishing the proscribed
conduct, run afoul of equal protection under state
constitutional doctrine." Id. (quoting
People v. Marcy, 628 P.2d 69, 75 (Colo. 1981)).
Accordingly, we have observed that "to overcome an equal
protection challenge, 'a person of average
intelligence' must be able to distinguish the conduct
proscribed by one offense from the conduct proscribed by
another." Id. (quoting People v.
Griego, 2018 CO 5, ¶ 36, 409 P.3d 338, 344). In
addition, "the distinction between the two offenses must
be 'sufficiently pragmatic' to 'permit an
intelligent and uniform application of the law.'"
Id. (quoting Marcy, 628 P.2d at 78).
¶25
An as-applied constitutional challenge like that at issue
asserts that a provision is unconstitutional under the
circumstances in which a party has acted or is planning to
act. People v. Hernandez, 2025 CO 13, ¶ 14, 566
P.3d 995, 998. A holding that a statute is unconstitutional
as applied prevents the statute's future application in a
similar context but does not render it completely
inoperative. Id. Accordingly, in an as-applied
challenge, a court considers whether certain actions
13
are unconstitutional applications of the law, not whether the
statute at issue should be deemed unconstitutional in all of
its possible applications. Id.
¶26
As pertinent here, section 18-7-405.5(1), C.R.S. (2025),
defines the crime of inducement of child prostitution and
provides, "Any person who by word or action, other than
conduct specified in section 18-7-403(1)(a)[, C.R.S. (2025)],
induces a child to engage in an act which is prostitution by
a child, as defined in section 18-7-401(6)[, C.R.S. (2025)],
commits inducement of child prostitution."
¶27
Section 18-7-406(1)(a), C.R.S. (2025), defines the crime of
patronizing a prostituted child and states, "Any person
who performs any of the following with a child not his spouse
commits patronizing a prostituted child: (a) Engages in an
act which is prostitution of a child or by a child, as
defined in section 18-7-401(6) or (7) . . . ."
¶28
Sections 18-7-401(6) and (7), in turn, define the relevant
statutory phrases:
(6) "Prostitution by a child" means either a child
performing or offering or agreeing to perform any act of
sexual intercourse, fellatio, cunnilingus, masturbation, or
anal intercourse with any person not the child's spouse
in exchange for money or other thing of value or any person
performing or offering or agreeing to perform any act of
sexual intercourse, fellatio, cunnilingus, masturbation, or
anal intercourse with any child not the person's spouse
in exchange for money or other thing of value.
(7) "Prostitution of a child" means either inducing
a child to perform or offer or agree to perform any act of
sexual intercourse, fellatio, cunnilingus, masturbation, or
anal intercourse with any person not the child's spouse
by coercion or by any threat or intimidation or inducing a
child, by coercion or by any threat or intimidation or in
14
exchange for money or other thing of value, to allow any
person not the child's spouse to perform or offer or
agree to perform any act of sexual intercourse, fellatio,
cunnilingus, masturbation, or anal intercourse with or upon
such child. Such coercion, threat, or intimidation need not
constitute an independent criminal offense and shall be
determined solely through its intended or its actual effect
upon the child.
¶29
Both inducement of child prostitution and patronizing a
prostituted child are class 3 felonies. § 18-7-405.5(2),
§ 18-7-406(2). Criminal attempt to commit a class 3
felony is a class 4 felony. § 18-2-101(4), C.R.S.
(2025).
¶30
In addition, criminal attempt to commit patronizing a
prostituted child is defined as a "[s]ex offense,"
§ 18-1.3-1003(5)(a)(X), (b), C.R.S. (2025), and a person
who is convicted of a sex offense is a "[s]ex
offender," § 18-1.3-1003(4). Subject to exceptions
not pertinent here, a trial court is required to sentence a
sex offender to the custody of the Department of Corrections
for an indeterminate term of at least the minimum of the
presumptive sentencing range for the level of offense
committed and a maximum of the sex offender's natural
life. § 18-1.3-1004(1)(a), C.R.S. (2025). The trial
court thus sentenced Vega Dominguez to six years to life for
the conviction of criminal attempt to commit patronizing a
prostituted child.
¶31
Criminal attempt to commit inducement of child prostitution,
however, is not defined as a "[s]ex offense" under
section 18-1.3-1003(5)(a). The trial court thus sentenced
Vega Dominguez to four years for that conviction.
15
¶32
Here, as noted above, the division concluded that the trial
court had plainly erred in entering judgment on the attempted
patronizing count because, in the division's view, on the
facts presented, the attempted patronizing count punished the
identical conduct as the attempted inducement count but
punished the conduct more harshly.
¶33
Even assuming error by the trial court in this regard,
however, we conclude that any error was not plain. As noted
above, for an error to be plain it must be obvious. See
Hagos, ¶ 14, 288 P.3d at 120. And to be obvious,
the error must ordinarily contravene a clear statutory
command, a well-settled legal principle, or Colorado case
law. Scott, ¶ 16, 390 P.3d at 835.
¶34
Here, no prior case had decided the question now before us on
identical facts. Indeed, the principal authority on which the
division relied was another division's opinion in
Maloy, but the facts of Maloy were
different from the facts presented here.
¶35
In Maloy, ¶ 21, 465 P.3d at 154, the division
determined that the evidence had established that the
defendant's conduct fell under the "prostitution of
a child" prong of the patronizing statute, which
required the prosecution to prove either that (1) the
defendant induced a child to perform certain sexual
acts with another by coercion, threats, or intimidation or
(2) the defendant induced a child by coercion,
threats, or intimidation, or in exchange for money
or another thing of
16
value, to allow another to perform sexual acts on the child.
Because money was exchanged in that case, the division
believed that the defendant's conduct violated the
patronizing and inducement statutes in the same way.
Id. at ¶ 34, 465 P.3d at 155.
¶36
Here, in contrast, substantial evidence supported Vega
Dominguez's conviction for attempted patronizing under
the prostitution "by a child" prong of the statute,
which required the prosecution to prove, not inducement of a
child to act, but that a child performed, or offered or
agreed to perform, certain sexual acts in exchange for money
or another thing of value. § 18-7-401(6), §
18-7-406(1)(a). Accordingly, the facts at issue here involved
potential distinctions between patronizing and inducing that
were not at issue in Maloy.
¶37
In addition, Maloy involved completed acts of
patronizing and inducement, see Maloy, ¶¶
3-8, 465 P.3d at 151-52, whereas the present case involved
attempted acts and therefore different statutory elements.
¶38
These distinctions demonstrate that any error by the trial
court as to the equal protection issue (and we need not and
do not opine that the trial court, in fact, erred here) did
not contravene either a clear statutory command, a
well-settled legal principle, or Colorado case law. Indeed,
this appears to explain why the division below did not
conclude that Maloy was directly on point but rather
reached its conclusion by professing to extend the
analysis in that case.
17
Dominguez, ¶ 2, 551 P.3d at 1207. Absent clear,
settled, on-point legal authority, however, by definition,
any error was not obvious and, therefore, was not plain.
See Scott, ¶ 16, 390 P.3d at 835.
¶39
For these reasons, we reverse the division's judgment on
the equal protection issue, and we vacate its analysis on the
merits of whether the entry of a judgment of conviction for
attempted patronizing a prostituted child, on the facts
presented, violated Colorado's equal protection doctrine.
C.
Jury Instruction for Soliciting for Child
Prostitution
¶40
Vega Dominguez asserts that the trial court erred by not
instructing the jury on the pertinent mental state for
soliciting for child prostitution, which he contends was
"intentionally." Because Vega Dominguez did not
preserve this issue, our review is for plain error. See
Hagos, ¶ 14, 288 P.3d at 120.
¶41
Section 18-7-402(1)(a), C.R.S. (2025), which defines the
crime of soliciting for child prostitution for which Vega
Dominguez was charged, provides, in pertinent part, "A
person commits soliciting for child prostitution if he . . .
[s]olicits another for the purpose of prostitution of a child
or by a child . . . ."
¶42
In Randolph II, ¶ 4, 570 P.3d at 1025, we held
that the culpable mental state for soliciting for child
prostitution under section 18-7-402(1)(a) and section
18-7-402(1)(b) is "knowingly," i.e., the same
mental state designated in section
18
18-7-402(1)(c). Accordingly, we reject Vega Dominguez's
contention that the applicable mental state for this crime is
"intentionally."
¶43
Vega Dominguez alternatively contends that even if the
applicable mental state is "knowingly," the trial
court erred in not including that mens rea in the elemental
instruction for soliciting for child prostitution. As noted
above, however, the trial court did instruct the
jury as to the applicable state of mind —
"knowingly"— in a separate instruction.
Specifically, Instruction No. 15 provided that Vega
Dominguez's culpable state of mind "[i]n this
case" was "knowingly" or
"willfully," terms that the instruction defined
identically, as quoted above. The instruction further
provided that "[a] crime is committed when the defendant
has committed a voluntary act prohibited by law, together
with a culpable state of mind" and that "[t]he
culpable state of mind is as much an element of the crime as
the act itself . . . ." Instruction No. 15 thus advised
the jury that to convict, it had to find that Vega Dominguez
possessed the applicable culpable state of mind as to each
crime charged, and the instruction further correctly stated
that this mens rea was "knowingly" (or the
identically defined "willfully").
¶44
In light of the foregoing, we perceive no error —much
less plain error—in the trial court's instruction
as to the appropriate mental state for the crime of
soliciting for child prostitution.
19
¶45
Accordingly, we affirm the division's judgment as to Vega
Dominguez's conviction for soliciting for child
prostitution.
III.
Conclusion
¶46
For these reasons, we conclude that the division erred when
it determined that the trial court had plainly erred in
entering a judgment of conviction on the jury's verdict
finding Vega Dominguez guilty of attempted patronizing a
prostituted child, notwithstanding what the division
perceived to be an equal protection violation. In our view,
even had the trial court erred in this regard, any error was
not obvious and therefore was not plain.
¶47
We further conclude that the trial court did not err, much
less plainly err, in the manner in which it instructed the
jury as to the applicable mental state of
"knowingly." Specifically, we conclude that when
read as a whole, the instructions properly advised the jury
as to the applicable mental state, even though that mens rea
was not included in the elemental instruction for soliciting
for child prostitution, but rather was included in a general
instruction regarding the applicable mental state.
¶48
Accordingly, we (1) reverse the portion of the division's
opinion concluding that the trial court had plainly erred in
entering a judgment of conviction on the jury's verdict
finding Vega Dominguez guilty of attempted patronizing a
prostituted child, and we vacate the division's analysis
on the merits of that issue;
20
and (2) affirm the portion of the division's judgment
upholding Vega Dominguez's conviction for soliciting for
child prostitution.
---------
Notes:
[1] Specifically, we granted certiorari to
review the following issues:
1. Whether the court of appeals improperly held that
Colorado's equal protection doctrine was plainly violated
by respondent's conviction for attempted patronizing a
prostituted child because it prohibited the same conduct as
attempted inducement of child prostitution.
2. Whether the trial court reversibly erred by failing
to instruct the jury on a required mental state for the crime
of soliciting for child prostitution, and whether the
required mental state for soliciting for child prostitution
is intentionally.