Petitioner/Cross-Respondent: The People of the State of Colorado, v. Respondent/Cross-Petitioner: Javier Vega Dominguez. (2026)

Judgment Affirmed in Part, Reversed in Part, and Vacated in Part, and Case Remanded with Directions

¶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 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, and we remand this case to allow the division to consider the issues that Vega Dominguez raised below but that the division did not reach in light of its disposition.

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.

¶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 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 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 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 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 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 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.

¶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 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 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.

¶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, any error did not contravene a clear statutory command, a well-settled legal principle, or Colorado case law. Although to conclude otherwise, the division principally relied on another division's opinion in Maloy, Maloy is distinguishable.

¶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 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 reached its conclusion by professing to extend Maloy’s analysis here. Dominguez, ¶ 2, 551 P.3d at 1207. Absent a clear statutory command, a well-settled legal principle, or Colorado case law, 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 18-7-402(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.

¶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; (2) affirm the portion of the division's judgment upholding Vega Dominguez's conviction for soliciting for child prostitution; and (3) remand this case to allow the division to consider the issues that Vega Dominguez raised below but that the division did not reach in light of its disposition.

FOOTNOTES

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.

JUSTICE GABRIEL delivered the Opinion of the Court.