People v. Moses

Shields recognized that subdivision (f) of section 236.1 eliminates a perpetrator's asserted mistake of fact about a minor's age as a defense to human trafficking charges.^[5] Under subdivision (f), it is no defense that a defendant may have believed a victim was 18 or older and therefore did not actually intend to traffic a minor; even absent such intent, the conduct constitutes a violation of section 236.1(c). But, as Shields observed, while subdivision (f) eliminates a defense, it did not eliminate subdivision (c)'s specific requirement that the victim be " 'a person who is a minor.' " ( Shields, supra , 23 Cal.App.5th at p. 1250, 233 Cal.Rptr.3d 701 .)

This distinction marks a key difference between sections 21a and 236.1(c). "If there is an actual minor victim who[m] the statute [i.e., § 236.1(c) ] is expressly designed to protect, a mistake about the victim's age is not a defense to the completed crime .... If, however, there is no actual victim and therefore it is factually impossible to complete the crime, the defendant can nevertheless be guilty of an attempt [under § 21a ] to human traffic a minor, but only if he or she actually intended to ... traffic a minor." ( Shields , supra , 23 Cal.App.5th at p. 1257, 233 Cal.Rptr.3d 701 .)

The People contend Shields was wrongly decided. The Attorney General argues section 236.1(c) implicitly incorporates section 21a. Based on this incorporation, the Attorney General asserts section 236.1(c) does not require an actual minor to constitute the offense, contrary to the Shields case.

Additional reasons weigh against the Attorney General's incorporation claim. First, we do not find a historical basis for holding the electorate intended to incorporate section 21a into section 236.1. Neither party provides the ballot materials accompanying Proposition 35, but, taking judicial notice of them on our own motion, we observe that the materials make no reference to section 21a, its two elements, or to the generic crime of attempt that section 21a codifies.^[6] Indeed, the ballot materials for Proposition 35 do not use any variation of the word "attempt" in the official summary prepared by the Attorney General for the voters. Nor is the word used in the Legislative Analyst's summary, or in the ballot statements for and against the proposition.

Next, the grievous harm section 236.1(c) guards against is the human trafficking of minors for commercial sex purposes. As Shields recognized, applying the specific intent required in section 21a to section 236.1(c) would require the defendant to specifically intend, or as Shields phrased it, "actually intend[ ]" to target a minor or minors for commercial sex acts. (

DISPOSITION

Moses's conviction in count 1 for human trafficking of a minor ( § 236.1(c) ) is reversed, and the matter is remanded to the trial court for further proceedings, including resentencing on the remaining counts. The judgment is affirmed in all other respects.

I CONCUR:

FYBEL, J.

ARONSON, J., Dissenting in part, concurring in part.

Over several weeks, Antonio Moses recruited "Bella," a person whom he believed was a 17-year-old girl, to work for him as a prostitute. He exchanged numerous messages with Bella on a social network site. Bella, however, was a fictitious persona created by an adult male police detective. After Moses arranged to meet Bella at an Anaheim restaurant, police officers arrested him near the location. The prosecution charged him with, among other crimes, human trafficking of a minor ( Penal Code, § 236.1, subd. (c) ; all further statutory citations are to the Penal Code). Although a jury found Moses guilty of human trafficking a minor, the majority concludes he cannot violate section 236.1, subdivision (c), because no actual minor was the victim. I disagree. As discussed below, section 236.1, subdivision (c), penalizes both completed human trafficking acts and attempts to commit the proscribed human trafficking acts. Because "factual impossibility is not a defense to a charge of attempt" ( People v. Peppars (1983) 140 Cal.App.3d 677 , 688, 189 Cal.Rptr. 879 ), the jury legally could convict Moses of human trafficking under section 236.1, subdivision (c), despite the absence of an actual minor victim.

In 2012, the electorate enacted Proposition 35, the Californians Against Sexual Exploitation Act (the CASE Act), to "combat the crime of human trafficking and ensure just and effective punishment of people who promote or engage in the crime of human trafficking" and "strengthen laws regarding sexual exploitation, including sex offender registration requirements, to allow law enforcement to track and prevent online sex offenses and human trafficking." (Voter Information Guide, Gen. Elec. (Nov. 6, 2012), text of Prop. 35, § 3, at pp. 100-101 (Prop. 35).) The ballot measure also expressly found that "[w]hile the rise of the Internet has delivered great benefits to California, the predatory use of this technology by human traffickers and sex offenders has allowed such exploiters a new means to entice and prey on vulnerable individuals in our state" and that "[w]e need stronger laws to combat the threats posed by human traffickers and online predators seeking to exploit women and children for sexual purposes." ( Id. , Prop. 35, § 2, at p. 101.)

Among other provisions, the CASE Act added section 236.1, subdivision (c). Section 236.1, subdivision (c), states in part: "A person who causes, induces, or persuades, or attempts to cause, induce, or persuade, a person who is a minor at the time of the commission of the offense to engage in a commercial sex act, with the intent to effect or maintain a violation of

The majority also argues that section 236.1, subdivision (f) - which expressly precludes a mistake of age defense where the victim of human trafficking is "a minor at the time of the commission of the offense" - suggests the offense under the attempt prong in section 236.1, subdivision (c), is not an attempt offense because it removes a defense generally available to attempt offenses. (See People v. Hanna (2013) 218 Cal.App.4th 455 , 462, 160 Cal.Rptr.3d 210 ( Hanna ) [because attempt requires specific intent, mistake of fact as to age is an available defense to challenge a conviction for attempted lewd and lascivious conduct with a child under the age of 14]; but see People v. Reed (1996) 53 Cal.App.4th 389 , 397, 61 Cal.Rptr.2d 658 ( Reed ) [noting "trend toward abolition of mistake of fact as a defense to attempt crimes"].) Assuming that Hanna was properly decided, the appellate court there affirmed that public policy can bar a mistake-of-fact defense. (See Hanna , supra , 218 Cal.App.4th at p. 461, 160 Cal.Rptr.3d 210 ["The mistake-of-fact defense, as a matter of public policy, does not apply to the commission of a lewd act on a child under the age of 14 years"].)^[10]

Here, section 236.1, subdivision (f), is a statement of public policy barring the mistake of age defense in cases where there is an actual minor victim. The defense would still be available for human trafficking crimes not

The jury in count 1 convicted Moses based on language in section 236.1(c), which defines the crime of human trafficking to include the conduct of "a person who ... attempts to cause, induce, or persuade, a person who is a minor at the time of commission of the offense" to engage in a commercial sex act. In enacting section 236.1, the electorate specified that a defendant's mistaken belief that the minor was of age is not a defense to attempted human trafficking. ( § 236.1, subd. (f).) In other words, the defendant need not harbor the specific intent to traffic a minor-thus distinguishing the attempted trafficking defined in section 236.1(c) from an ordinary criminal attempt under section 21a.

Moses contends that his conviction of human trafficking in count 1 must be reversed based on the undisputed fact that the intended victim of his conduct was not actually a minor, but rather an undercover police officer. We agree. The plain terms

In a series of texts that day and the next, Moses advised Bella to frequent casinos and bars since they were lucrative prostitution venues. Barragan responded that Bella was unable to do so because she was only 17 years old. Moses expressed repeated concern over the next few days that Bella was a police agent, as well as some reluctance to pimp a minor.

Moses nevertheless engaged in phone calls and texts with a female detective who assumed Bella's role. Upon hearing Bella was in Orange County, he offered to drive to her location and pick her up, even though he acknowledged, "This is a risk." Moses also expressed some reluctance related to Bella's age when he wrote, "I want to come get you bad as a mother fucker, but if I do, I'm going to have to take you to my momma[']s house until your birthday." Several days later, when Barragan told Moses that Bella had returned to Orange County, he arranged to meet her at a restaurant, where the detective who was role-playing Bella said she would wait in a bathroom to evade her current pimp.

Moses arrived at the restaurant in a Mercedes to await Bella's exit from the bathroom but, before their meeting could occur, he apparently spotted vice officers from the Anaheim Police Department who were staking out the scene. He texted Bella, "I see you not real. That's fucked up." When he drove out of the parking lot, officers conducted a traffic stop a short distance away and arrested him.

At trial, the court modified the jury instructions in a manner that Moses argues diminished the importance of, and lowered the prosecution's burden of proof on an essential element of count 1, namely, the fact that the victim of human trafficking as defined in section 236.1(c) must be an actual minor.^[2] The jury concluded Moses intended to traffic Bella and convicted him of that offense (count 1). He was also

Moses contends his conviction on count 1 for human trafficking under section 236.1(c) must be reversed because a mandatory element of that offense is factually absent. Namely, the involvement of a minor victim. We agree.

The statute under which Moses was convicted provides, "A person who causes, induces, or persuades, or attempts to cause, induce, or persuade, a person who is a minor at the time of the commission of the offense to engage in a commercial sex act, with the intent to effect or maintain a violation of Section 266, 266h, 266i, 266j, 267, 311.1, 311.2, 311.3, 311.4, 311.5, 311.6, or 518 is guilty of human trafficking."^[3] (Italics added.)

Subdivisions (a) and (b) of section 236.1 define alternative types of human trafficking that do not require the victim to be a minor. Section 236.1, subdivision (a), defines human trafficking generally to consist of "depriv[ing] or violat[ing] the personal liberty of another with the intent to obtain forced labor or services." Subdivision (b) applies whenever the perpetrator "deprives or violates the personal liberty of" the victim with the intent to "effect or maintain" a violation of the same prostitution, pandering, and similar statutes as in subdivision (c). (See § 236.1, subd. (b).)

As explained in People v. Shields (2018) 23 Cal.App.5th 1242 , 233 Cal.Rptr.3d 701 ( Shields ),^[4] the language in section 236.1(c), which requires a "person who is a minor at the time of the commission of the offense," constitutes an essential element of a subdivision (c) violation. As Shields said, quoting CALCRIM No. 1244, "the third element of human trafficking of a minor ... requires that when the offense was committed 'the other person was under 18 years of age.' " ( Shields , at pp. 1255-1256, 233 Cal.Rptr.3d 701 .)

We find the Shields analysis persuasive concerning the distinction between a traditional "attempt" crime and the discrete crime described in section 236.1(c). Shields recognized that the general proscription against "attempt" crimes that has long been codified in section 21a and punished in section 664 consists of only two elements. Those elements are: " 'specific intent to commit the crime, and a direct but ineffectual act done toward its commission.' " ( Shields , supra , 23 Cal.App.5th at p. 1250, 233 Cal.Rptr.3d 701 .) An attempt under section 21a does not require a minor victim because, unlike section 236.1(c),

Section 4532, subdivision (a)(1), provides that any prisoner who "escapes or attempts to escape from the county or city jail, prison, ... or from the custody of the officer or person in charge of him or her ... or from the place of confinement in a home detention program ... is guilty of a felony and, if the escape or attempt to escape was not by force or violence, is punishable by imprisonment in state prison for a determinate term of one year and one day, or in a county jail not exceeding one year." In Gallegos , supra , the appellate court explained that "[a]lthough an attempt to escape is made punishable under Penal Code section 4532 and not under Penal Code section 664 [citations], ..., the essential elements of an attempt to commit a crime, so as to make the attempt itself punishable, are present in an attempt to escape as well as in those attempts made punishable under Penal Code section 664." ( Gallegos , 39 Cal.App.3d at p. 516, 114 Cal.Rptr. 166 .) The court also rejected the argument that "there is such a crime as an attempt to attempt to escape," concluding the fact that attempt to escape is a violation of section 4532 does not convert the attempt offense to "a substantive crime." ( Ibid. )

Section 288.3 and its recent interpretation in People v. Korwin (2019) 36 Cal.App.5th 682 , 248 Cal.Rptr.3d 763 ( Korwin ) is particularly persuasive.^[9] Section 288.3, subdivision (a), provides: "Every person who contacts or communicates with a minor,