Is sexting to a minor by an adult illegal in California?

Full question:

Is sexting to a minor by an adult illegal in California?

• Category: Mobile Phones
• Subcategory: Sexting
• Date: 04/07/2025
• State: California

Answer:

In the recent case of People v. Villagran, __ Cal.Rptr.3d __, 5 Cal.App.5th 880, the California Court of Appeals, First District, Fifth Division, hear a case involving sexting. The opinion is dated November 18, 2016.

Fact of the Case Leading to the appeal.

Using a text messaging application, appellant Juan Pablo Cruz Villagran communicated with a number of girls under 14 years of age, sending them sexually explicit photographs of himself and asking them to send him nude photographs of themselves in return. Based on these text messages, the Contra Costa County District Attorney charged Cruz with multiple counts of attempted violation of Penal Code section 288, subdivision (a) (section 288(a)). The jury returned guilty verdicts on these counts, and Cruz appealed.

Defendants Arguments

Cruz contended that conviction under section 288(a) requires either a physical encounter with the victim or a constructive touching in which the defendant induces the victims to touch themselves or another, with a concurrent sexual intent at the time of the touching. He also contends his prosecution for attempted violation of section 288(a) violates the rule against prosecution under a more general statute when the conduct at issue is prohibited under section 288.3, a later, more specific statute.

Court Holding

The Court held that a defendant may commit the crime of attempted lewd and lascivious acts on a child under 14 by communicating with the victim via text messaging. The Court also held that the sexual intent and the touching required by section 288(a) need not occur simultaneously.

Section 288.3 of the Penal Code of California includes communication by a phone:

(a) Every person who contacts or communicates with a minor, or attempts to contact or communicate with a minor, who knows or reasonably should know that the person is a minor, with intent to commit an offense specified in Section 207, 209, 261, 264.1, 273a, 286, 288, 288a, 288.2, 289, 311.1, 311.2, 311.4 or 311.11 involving the minor shall be punished by imprisonment in the state prison for the term prescribed for an attempt to commit the intended offense.

(b) As used in this section, “contacts or communicates with” shall include direct and indirect contact or communication that may be achieved personally or by use of an agent or agency, any print medium, any postal service, a common carrier or communication common carrier, any electronic communications system, or any telecommunications, wire, computer, or radio communications device or system.

(c) A person convicted of a violation of subdivision (a) who has previously been convicted of a violation of subdivision (a) shall be punished by an additional and consecutive term of imprisonment in the state prison for five years.