People v. Whisenton CA4/1

Filed 2/3/22 P. v. Whisenton CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D078824
Plaintiff and Respondent,
v.
BILLYRAY JOHNLEE WHISENTON, (Super. Ct. No. C1911741)
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Santa Clara County,
Shelyna V. Brown, Judge. Reversed.
Julie Ann Dunger for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters and Michael P.
Farrell, Assistant Attorneys General, Carlos A. Martinez and Catherine
Tennant Nieto, Deputy Attorneys General, for the Plaintiff and Respondent.
A jury convicted Billyray Johnlee Whisenton of two counts of sex
trafficking of a minor. (Pen. Code,1 § 236.1, subd. (c); counts 1 and 2.)2 The
1 Undesignated statutory references are to the Penal Code.
2 The jury deadlocked on section 236.1, subdivision (c)(2) allegations that
counts 1 and 2 involved fear, coercion, duress, and threat of unlawful injury
to the victim or to another person, and on two counts charging Whisenton
with taking photographs of T.D. and L.D., who were “person[s] under the age
court subsequently found true allegations that Whisenton had suffered a
prior serious felony conviction under the “Three Strikes” law. It sentenced
him to 21 years four months in prison.
Whisenton contends that because the People relied upon two different
underlying crimes (pimping and pandering) to prove the specific intent
element of human trafficking of a minor, the court violated his state and
federal constitutional due process rights by failing to give a unanimity
instruction. In supplemental briefing, Whisenton argues based on the
California Supreme Court’s decision in People v. Moses (2020) 10 Cal.5th 893(Moses I) and the Court of Appeal’s decision on remand, People v. Moses
(2021) 65 Cal.App.5th 14 (Moses II), that the court erroneously instructed the
jury regarding the intent required to prove the crime of attempt to traffic a
minor under section 236.1. He also claims the instructional errors
cumulatively prejudiced him. We reverse.
FACTUAL AND PROCEDURAL BACKGROUND
When T.D. was 15 years old, she lived in a group home in Sacramento,
where she was friends with a resident, L.D.,3 who was approximately one
year younger than T.D. On June 12, 2017, both girls left the group home,
planning to engage in prostitution in Sacramento. The girls first worked for
“Big Daddy,” a pimp who drove them to San Francisco that night. There,
while the girls were on the streets trying to find customers, Whisenton
approached L.D. to recruit her to work for him. L.D. discussed that proposal
with T.D., and they both agreed to work for Whisenton.
of 18 years engaged in an act of sexual conduct” (§ 311.3, subd. (a); counts 3
and 4). The court declared a mistrial as to these charges and allegations.
3 L.D. did not testify at trial.
2
Before leaving San Francisco in the early morning, Whisenton picked
up his “main girl,” K.S., who the girls referred to as “Mama.” She was the
“boss” of the girls, and taught them “the rules.” Both girls told Whisenton
and K.S. that they were 18 years old because they were avoiding returning to
the group home. Whisenton instructed T.D. and L.D. about his rules, saying
that if they did not follow them, he would “beat [their] ass.” The girls had to
“hand him [their] money,” “follow his directions,” and work in different cities.
Whisenton set the prices they would charge their clients. He promised to
feed and shelter them and “keep [them] looking nice” by buying them “clothes
and other things.” When they arrived in Oakland, Whisenton gave T.D.
condoms. He dropped the girls off at a street intersection to work. That
morning, T.D. got one client and made $60, which she handed over to
Whisenton.
On June 13, 2017, at approximately 7:00 a.m., the group briefly slept in
Oakland. Later, K.S. gave T.D. new clothes and more condoms. Whisenton
drove K.S. and the two girls to a hotel in San Jose. Whisenton and K.S.
subsequently made the girls pose for photographs for an Internet dating
website. Whisenton told T.D. the photos needed to be “sexy,” and K.S.
showed her how to pose. T.D. told Whisenton she did not want to pose for
pictures, but he gave her a “mean look” and said she had to do it. Whisenton
directed the girls’ photo sessions.
The girls left the hotel late that night and started working on the
streets in San Jose. At one point, T.D. and L.D. had a loud public argument
because T.D. was getting more attention from potential clients. K.S. phoned
Whisenton, who arrived and told the girls to “get their asses in the car or he
would beat [their] asses.” He drove them back to the hotel.
3
On June 14, 2017, Whisenton and L.D. argued loudly at the hotel, and
T.D. worried that Whisenton would hit her or L.D. Later that day, when
Whisenton and L.D. argued again, Whisenton grabbed L.D.’s cell phone. L.D.
became angry and told T.D. she was leaving and asked T.D. to accompany
her. T.D. stayed in the hotel room because she was too scared of Whisenton.
As L.D. was leaving, Whisenton grabbed her arm and tried to pull her back
into the room. Whisenton threatened L.D., “I’m going to kill you, bitch,” and,
“I’m going to beat your ass.” He also ordered her, “Get the fuck back in the
room, or it will be worse!” L.D. ran away. Whisenton ordered K.S. and T.D.
to pack up their belongings and he drove them to Oakland.
L.D. told a hotel worker that Whisenton was selling her and her sister
in the hotel room. The worker testified L.D. “was a young girl . . . [who] was
just crying and scared.” The worker called 911. A video clip played for the
jury showed the worker’s interaction with L.D. A police officer responded to
the hotel and spoke to L.D. The officer testified L.D. was a minor who was
approximately 13 years old.
Later that day, T.D. confided her true age to K.S., saying that she
wanted to return to the group home. Whisenton eventually agreed to K.S.’s
request to let T.D. go. But he threatened T.D. to never tell anyone what had
happened or he would hurt her mother and other family members. T.D.
phoned 911 and was subsequently interviewed by a police officer. She did not
identify K.S. from a photographic lineup because she was scared Whisenton
would carry out his threats. T.D. also denied that Whisenton or K.S. had
forced her to do anything.
At trial, a police officer testified as an expert regarding human
trafficking, explaining that pandering included the pimp giving the victims
directions on how much to charge a client, providing the victims condoms and
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clothing, driving them to the work area, and protecting them. The expert
explained that pimping and/or pandering behavior also occurs when a pimp
directs a more-experienced sex worker to tutor less-experienced victims, as
that conduct facilitates prostitution and benefits the pimp financially.
The prosecution introduced cell phone tracking evidence showing
Whisenton’s cell phone moved from San Francisco to Oakland and San Jose,
corroborating T.D.’s testimony regarding their travels to those cities.
Under Evidence Code section 1108, N.D. testified she first met
Whisenton in 2016, when she was 19 years old. Whisenton acted as her pimp
for five months during a “romantic” and “business” relationship in which he
later became “abusive.” N.D.’s last encounter with Whisenton took place on
June 3, 2017, when he went to her job at a liquor store. She asked him to
leave because she did not want to speak to him. He became angry, raised his
voice, and told her, “You’re a bitch. I own you. You’re nothing but a little
punk-ass whore. You’re a prostitute. You will always be a prostitute.”
Counsels’ Arguments
The prosecutor argued to the jury that Whisenton committed two of the
predicate crimes of human trafficking. He explained the elements of
pandering under section 266i: “Pandering is taking steps to encourage or
facilitate or promote the acts of prostitution by giving [the victims] supplies,
clothing, driving them, doing security. [¶] It just doesn’t require the
financial benefit. The two crimes need to overlap. And when [Whisenton] did
so, the other person was under 18 years of age. [T.D.] gave us her age, she’s
15.” The prosecutor also argued that Whisenton had committed pimping: “So
the predicate crimes [sic] of 266h is pimping. And this is essentially the
instruction for pimping and the elements for pimping and that [Whisenton]
knew that [T.D.] and [L.D.] were engaged in prostitution, that the money
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earned while engaging in prostitution supported [Whisenton]. [T.D.]
describes she turned the money over to [Whisenton], but you don’t even need
that. [¶] [Whisenton] asked for payment or received payment for soliciting
prostitution customers. The deal was, they go out, they walk the streets, they
make money, they give the money back. [¶] Even though [L.D.] didn’t make
any money, there was still the understanding that they were out there to
make money and that she was supposed to provide money if she made it.
And [T.D.] and [L.D.] were minors under the age of 16. [¶] Prostitution is
synonymous with commercial sex.”
The prosecutor argued that the online advertisements sufficed for the
jury to convict Whisenton for conspiring with K.S.: “When [Whisenton and
K.S.] took the pictures and they started to advertise [T.D. and L.D.], they
were pimping them out. They were putting them on the market. They were
looking for customers. They were engaging in pandering and pimping.”
The prosecutor pursued a conspiracy theory, arguing to the jury: “We
have two people. We have [K.S.] and we have [Whisenton] and they were
both sort of working together to traffic these two young ladies. And they
committed acts in furtherance of that conspiracy. [¶] And those are the acts
. . . about the defendant driving [T.D.] and [L.D.] to [Oakland]; or driving
them to [San Jose]; or directing [them] to pose for photographs [ ]; these are
all acts that occurred during the commission of the two and a half day
conspiracy to traffic these two young women. [¶] All you have to agree is one
of those acts occurred, and that they had an agreement to commit the crime,
and you can convict the defendant under a conspiracy theory.”
Defense counsel argued his theory of the case to the jury, challenging
the victims’ credibility, and claiming they were biased against Whisenton.
Defense counsel also argued Whisenton’s identification was an issue because
6
the prosecution did not perform a DNA analysis of Whisenton or obtain his
fingerprints. Defense counsel added: “In this case there was no force and no
fear to compel [L.D.] and [T.D.] to get on that street and prostitute. . . .
[W]hen they went out on the street, they were intending to do it. Everything
they expected to do when they left that group home, turn tricks and make
money, happened.”
The prosecutor argued in rebuttal that the human trafficking crimes
were continuous: “So when the victims in this case got in the car and
[Whisenton] began to school them on how it works, as him being their pimp
and their being—them being the hoes or the bitches, he makes threats. He
continues to make threats. And they’re still his property. They’re still—
they’re sex workers or prostitutes until he lets them go. And so as these
threats go on . . . . They’re still being marketing [sic] as property . . . . [¶]
This is a continuing crime until the victims are free. And when—when L.D.
is getting beat; she’s being held; he’s threatening her; [Whisenton is]
threatening to kill her, she is still his prostitute. He is still trafficking her.
She is not free to leave. . . . [¶] Now, what would have happened if [L.D.]
didn’t break free that day and he pulled her back in the room? She would
have been out on dates that night. And so this crime is ongoing.”
During jury deliberations, the jury sought clarification as to how “the
alleged assault on L.D. in hotel room” fit into the case. The court replied to
the jury: “The alleged assault on [L.D.] is considered to have occurred during
the time frame that is alleged. However it is not alleged as a separate or
distinct crime. It is part and parcel [of] what is portrayed as her experience
during those two days.” The court added: “[Y]ou are the finders of fact. You
have all of the evidence, and you are the finders, whatever you find the facts
to be.” The court also referred the jury to two jury instructions, including one
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on the elements of an uncharged conspiracy. The court subsequently denied
the prosecution’s request to reopen closing arguments to tell the jury that
human trafficking is a “continuous course of conduct crime,” because the
prosecution had already argued that point.
DISCUSSION
I. Unanimity Instruction
Whisenton contends that by failing to instruct the jury regarding
unanimity, the court violated his constitutional right to a verdict proved
beyond a reasonable doubt, as the court had lowered the prosecution’s burden
of proof.4
The People argue the court did not err because no unanimity
instruction was required as the human trafficking statute contemplates a
continuous course of conduct; moreover, the prosecutor alleged a conspiracy
and the jurors were not required to agree on which act Whisenton committed.
A. Background
The parties discussed the unanimity instruction in the context of
CALCRIM No. 416 regarding evidence of an uncharged conspiracy, which the
defense requested be given in its entirety, including this portion: “Counts 1
through 4. [¶] You may not find the defendant guilty under a conspiracy
theory unless all of you agree that the People have proved that the defendant
4 CALCRIM No. 3500 on unanimity states: “The defendant is charged
with [in Count ___] [sometime during
the period of ___ to ___].
“The People have presented evidence of more than one act to prove that
the defendant committed this offense. You must not find the defendant
guilty unless you all agree that the People have proved that the defendant
committed at least one of these acts and you all agree on which act (he/she)
committed.”
8
conspired to commit at least one of these crimes and you all agree which
crime he conspired to commit.”
The prosecutor countered that this portion of the instruction should be
excluded: “I don’t think it’s necessary because there’s only one conspiracy.
There’s several crimes, but all of those crimes are subsumed into the
uncharged conspiracy and that is to engage in human trafficking.”
The court excluded that portion of the instruction: “I’m concerned
about this paragraph, because it seems to lessen the People’s burden. It
seems to say that if you find there’s a conspiracy, [Whisenton] is guilty . . . of
Counts 1, 2, 3 and 4. [¶] And I want to make sure that the jury goes through
the analysis of: [‘]Did the People meet their burden for each element of
Count 1? Did they make their burden for each element of Count 2 and so
forth?[’] [¶] This [challenged portion of the instruction] seems to suggest
that if they find that there is a conspiracy that they can just find him guilty
of all of the counts the way that it’s worded. So I have a concern about
that.”5
5 The court instructed the jury regarding pimping in section 266h: “To
prove that the defendant is guilty of pimping the People must prove: [¶] 1.
The defendant knew that [T.D.] as charged in Count 1, and [L.D.], as charged
in Count 2, were engaging in prostitution; [¶] 2. The money that [T.D.], as
charged in Count 1, and [L.D.], as charged in Count 2, . . . earned while
engaging in prostitution supported the defendant in whole or in part; and/or
the defendant asked for payment or received payment for soliciting
prostitution customers for [T.D.], as charged in Count 1, and [L.D.], as
charged in Count 2; and, [¶] 3. [T.D.], as charged in Count 1, and [L.D.], as
charged in Count 2, were minors under the age of 16 years when they
engaged in prostitution.”
The court instructed the jury regarding pandering in section 266i: “To
prove that the defendant is guilty of pandering, the People must prove: [¶] 1.
The defendant successfully persuaded or procured [T.D.], as charged in Count
1, and [L.D.], as charged in Count 2, to engage in prostitution; [¶] 2. The
defendant used promises, threats, violence, or to cause, persuade, encourage
9
B. Applicable Law
Under the California Constitution, a unanimous jury verdict is
required to convict a person of a crime. (Cal. Const., art. I, § 16; People v.
Russo (2001) 25 Cal.4th 1124, 1132.) In particular, the jury must agree
unanimously that the defendant is guilty of a specific crime. (People v.
Diedrich (1982) 31 Cal.3d 263, 281.) When a defendant is charged with a
criminal offense but the evidence suggests more than one discreet crime,
either the People must elect among the crimes or the trial court must instruct
the jurors that they must all agree on the same criminal act. (People v.
Russo, supra, 25 Cal.4th at p. 1132; accord, People v. Jennings (2010) 50
Cal.4th 616, 679 [“when violation of a criminal statute is charged and the
evidence establishes several acts, any one of which could constitute the crime
charged, either the state must select the particular act upon which it relied
for the allegation of the information, or the jury must be instructed that it
must agree unanimously upon which act to base a verdict of guilty”]; People v.
Riel (2000) 22 Cal.4th 1153, 1199.)
However, the court has no sua sponte duty to instruct on unanimity if
the offense constitutes a “continuous course of conduct.” (People v. Maury
(2003) 30 Cal.4th 342, 423.) “ ‘ “This exception arises in two contexts. The
first is when the acts are so closely connected that they form part of one and
the same transaction, and thus one offense. The second is when . . . the
statute contemplates a continuous course of conduct of a series of acts over a
or induce [sic] [T.D.], as charged in Count 1, and [L.D.], as charged in Count
2, to engage in prostitution, although the defendant’s efforts need not have
been successful; [¶] 3. The defendant intended to influence [T.D.], as
charged in Count 1, and [L.D.], as charged in Count 2, to engage in
prostitution; and, [¶] 4. [T.D.], as charged in Count 1, and [L.D.], as charged
in Count 2, were under the age of 16 at the time the defendant acted.”
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period of time.” ’ ” (People v. Napoles (2002) 104 Cal.App.4th 108, 115-116,
quoting People v. Avina (1993) 14 Cal.App.4th 1303, 1309.) The court should
carefully examine the statute under which the defendant is charged, the
pleadings, and the evidence presented to determine whether the offense
constitutes a continuous course of conduct. (Napoles, supra, at pp. 115-116
[noting that child abuse may be a continuous course of conduct or a single,
isolated incident]; People v. Wolfe (2003) 114 Cal.App.4th 177, 185 [unanimity
instruction required where acts are fragmented in time or space]; People v.
Rae (2002) 102 Cal.App.4th 116, 123 [elder abuse offense constituted
continuous course of conduct]; People v. Cortez (1992) 6 Cal.App.4th 1202,
1209 [kidnapping is inherently a continuous course of conduct, eliminating
need for unanimity instruction].)
In addition, “ ‘[w]here the acts were substantially identical in nature, so
that any juror believing one act took place would inexorably believe all acts
took place, the [unanimity] instruction is not necessary to the jury’s
understanding of the case.’ ” (People v. Beardslee (1991) 53 Cal.3d 68, 93; see
also People v. Champion (1995) 9 Cal.4th 879, 932, questioned on other
grounds in People v. Ray (1996) 13 Cal.4th 313, 369, fn. 2.)
“When considering a claim of instructional error, we view the
challenged instruction in the context of the instructions as a whole and the
trial record to determine whether there is a reasonable likelihood the jury
applied the instruction in an impermissible manner.” (People v. Houston
(2012) 54 Cal.4th 1186, 1229.) “ ‘[A]ny theoretical possibility of confusion
[may be] diminished by the parties’ closing arguments.’ ” (People v. Hajek
and Vo (2014) 58 Cal.4th 1144, 1220, overruled in part on another ground in
People v. Rangel (2016) 62 Cal.4th 1192, 1216.) We will assume the more
exacting harmless beyond a reasonable doubt standard applies to the
11
omission of a unanimity instruction. (Chapman v. California (1967) 386 U.S.
18, 24; People v. Hernandez (2013) 217 Cal.App.4th 559, 576 [“There is a split
of opinion in the appellate courts as to whether the Chapman standard or
Watson standard for harmless error applies in a unanimity instruction case”;
court held alleged error was harmless under either standard].)
C. Analysis
The two underlying statutes on which the prosecution based the human
trafficking charge in this case, pandering and pimping, have been held to be
continuous crimes not requiring unanimity instructions: “[S]ection 266i (the
pandering statute) is somewhat similar to [ ] section 266h (the pimping
statute). Under [ ] section 266h, the offense is one ongoing offense—a
defendant deriving support or maintenance from the earnings of a prostitute.
[Citation.] [S]ection 266i, subdivision (c), is similar to section 266h since,
once the female is procured for a house of prostitution, the one offense
becomes ongoing as long as the female plies her trade in such house. ‘The
pandering statute and [ ] section 266h (pimping) are both designed to
discourage prostitution by discouraging persons other than the prostitute
from augmenting and expanding a prostitute’s operation, or increasing the
supply of available prostitutes.’ ” (People v. White (1979) 89 Cal.App.3d 143,
151-152.) As this court pointed out in a case involving pandering and
pimping, “The language of the charging document, specifying that the acts
. . . took place over a specified period of time, reflects that the prosecution
intended to charge [the defendant] in this manner.” [Citation.] ‘This
language alerts the jury that the charge consists of a continuous course of
conduct, to be proved by evidence of more than one individual act.” (People v.
Leonard (2014) 228 Cal.App.4th 465, 491-492.)
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Here, the People charged Whisenton with human trafficking as a
continuous course of conduct that occurred “[o]n or about and between June
12, 2017[,] and June 14, 2017, in the Counties of Santa Clara, San Francisco
and Alameda, State of California[.]” Likewise, the trial evidence showed
Whisenton’s ongoing efforts to induce or persuade the minors to engage in
commercial sex acts from the moment he recruited them in San Francisco,
and spanning the time when he transported them to Oakland, San Francisco
and San Jose. Accordingly, there is no reasonable likelihood the jury applied
the instruction in an impermissible manner. We point out that Whisenton
had the same defenses to both counts, which is that the biased victims were
not credible, and he did not use force or fear to induce them to commit
prostitution.
II. Instruction Regarding Human Trafficking
Relying on Moses I, supra, 10 Cal.5th 893 and Moses II, supra, 65
Cal.App.5th 14, Whisenton contends the trial court misinstructed the jury
with CALCRIM No. 12446 regarding the required intent element of the
6 Whisenton acknowledges his trial counsel did not object to the giving of
this version of CALCRIM No. 1244: “To prove that the defendant is guilty of
this crime, the People must prove three elements: [¶] 1. The defendant
caused or induced or persuaded or attempted to cause or induce or persuade
another person to engage in a commercial sex act. [¶] 2. When the defendant
acted, he intended to commit a felony, in violation of [s]ections 266h or 266i
. . . ; and, [¶] 3. When the defendant did so, the other person was under the
age of 18 years of age. [¶] A commercial sex act is defined as sexual conduct
that takes place in exchange for anything of value. [¶] When you decide
whether the defendant caused or induced or persuaded the other person to
engage in a commercial sex act, please consider all of the circumstances
including the age of the person, the relationship to the defendant, and/or the
defendant’s agent, [K.S.] [¶] Under the law, a person becomes one year older
as soon as the first minute of his or her birthday has begun. [¶] The other
person’s consent is not a defense to this crime. [¶] Being mistaken about the
other person’s age is not a defense to this crime.”
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attempted human trafficking crime, thus violating his constitutional rights to
present a valid defense and due process, as the instruction reduced the
prosecution’s burden of proof on the critical issue of his state of mind. He
specifically argues the prosecutor relied on the attempt prong of section
236.1, subdivision (c): “The same reasoning which led to reversal in [Moses
II] is applicable here because the same flawed jury instructions were and still
are being used. The omission of correct instruction on the specific intent
required for an attempt and the inclusion of the instruction that ‘being
mistaken about the other person’s age is not a defense to this crime’,
affirmatively misdirected the jury in this . . . case on an essential element
and ‘was plainly wrong’ when the prosecution relied on an attempt theory.”
Whisenton also argues the instructional error was prejudicial because
the jury “did not necessarily believe the heavily impeached testimony of
[T.D.], the State’s sole eye witness.” He points out the jury deadlocked on the
force, violence, duress, coercion allegations as to counts 1 and 2 and also on
counts 3 and 4. As to those counts, the defense argued that “the State had
not proved that [he] knew the two victims were minors because (1) [he] first
met them in the early morning hours engaged in sex work in San Francisco,
(2) they lied about their ages, and (3) [N.D.] was a petite adult who looked
young.”
The People counter that the court committed no instructional error
because Whisenton “was prosecuted for actual, not attempted human
trafficking of a minor,” and they disclaim that the prosecutor pursued an
alternative theory that Whisenton attempted to induce a minor to engage in a
commercial sex act. They also contend any instructional error was harmless
beyond a reasonable doubt “[b]ased on the strong evidence of [Whisenton’s]
guilt of the completed crime of human trafficking of a minor.”
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A. Background
As we set forth below, the prosecutor argued to the jury that Whisenton
committed human trafficking under both the completed acts prong and the
attempt prong of section 236.1, subdivision (c).7
The prosecutor created a timeline using T.D.’s statements and
Whisenton’s location based on his phone records, and in closing arguments
stated: “[Whisenton is] at all the same cities, all the same locations that
[T.D.] describes almost down to the hour. And we know that the areas that
they’re in are known prostitution areas. And we have the [Internet] ads that
are also time stamped that confirm the timeline, and that they’re marketing
these kids like meat. This is sex trafficking, ladies and gentlemen.” The
prosecutor also argued his goal was to show the jury Whisenton was “guilty of
trafficking two minors, 15-year-old [T.D.], and 13-year-old [L.D.], between
June 12th and June 14th of 2017.” The prosecutor showed the jury
photographs of T.D. and L.D. at the time of the incident to emphasize how
young the girls were: “That’s who they are. That’s how they looked. They’re
not 18. They’re not 20. They’re kids. [¶] Even [the hotel employee], who
came in and testified, when she described [L.D.], she said [L.D.] looked really
young. [¶] There’s no mistaking who they are. There’s no mistaking how old
they are, not that the age is even an issue in this case, because as the judge
read you on the instructions—and I’ll talk about more in a minute—mistake
as to how old they are is not a defense to this crime.” The Prosecutor
7 Section 236.1, subdivision (c) states: “A person who causes, induces, or
persuades, or 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,
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.”
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elaborated: “But [Whisenton is] looking for people like [N.D., who are] small,
meager, meek; looking for people like [T.D.]; looking for people like [L.D.];
people who he can exploit, people he can use, people he can dominate, people
he can control.”
However, the prosecutor also argued to the jury an alternative theory of
attempt as follows: “So now I want to talk to you a little bit about the law.
And we’re going to talk about how the facts fit in with some of the elements of
the crime. [¶] Counts 1 and 2 refer to [s]ection 236.1[,subdivision] (c). And
these are the elements that the Judge read to you. [¶] It establishes that in
order to prove this crime, [the People] have to prove that the defendant
caused, or induced, or persuaded, or even attempted to [sic]. We don’t even
have to have completed acts of commercial sex or prostitution, but that the
defendant tried to commercially sex traffic these young girls with the intent
to do that. [¶] And when the defendant acted he intended to commit a felony
violation of [s]ection 266h or 266i.”
In rebuttal, the People argued to the jury: “And ladies and gentlemen,
you look at . . . the timeline that is established, there's only one reasonable
interpretation of this evidence, and that is these victims were sex trafficked
and that there was an atmosphere of coercion, force, and duress, that
effectuated that during the period of time they were with the defendant.”
The prosecutor concluded his rebuttal arguments: “At the end of the day, all
of this evidence that’s been presented to you, it establishes one
uncontroverted conclusion and that is the defendant is a pimp. He's a human
trafficker. [¶] And he did traffic [L.D.] and [T.D.] between June 12th and
June 14th of 2017. And during that period of time, while they choose to get
in that car, they were threatened, there was violence used against them. It
was apparent and it was used in order to effectuate their continued
16
involvement in commercial sex. And you know what the defendant is capable
of. And at the end of the day, that's what is important in terms of making
sure that the defendant, as an abusive pimp, is held responsible for the
trafficking that he effectuated.”
B. Applicable Law
We discuss Moses I and Moses II at length because Whisenton relies on
those cases for his arguments. A police detective, in targeting child sexual
abuse, created a user profile for a fictitious 21-year-old female named “Bella
B.” (Bella) on a social network Internet site. (Moses II, supra, 65 Cal.App.5th
at p. 19.) Assuming the role of Bella, the detective responded to the initial
messages of the defendant, Antonio Chavez Moses III, by indicating she was
working as a prostitute. In a series of texts that day and the next, the
detective eventually responded that Bella was only 17 years old. Moses
repeatedly expressed concern that Bella was a police agent, as well as some
reluctance to pimp a minor. (Ibid.) Moses nevertheless engaged in phone
calls and texts with a different detective who assumed Bella’s role. Upon
hearing Bella was in Orange County, Moses offered to drive to her location
and pick her up, even though he acknowledged that was risky. Several days
later, when the first detective told Moses that Bella had returned to Orange
County, Moses arranged to meet Bella at a restaurant, where the detective
who was role-playing Bella said she would wait in a bathroom to evade her
current pimp. Bella had told Moses that she wanted to escape from the man
because he was beating her. Moses arrived at the restaurant but before their
meeting could occur, he spotted vice officers who were staking out the scene.
When Moses drove out of the parking lot, police officers conducted a traffic
stop and arrested him. (Ibid.) The jury convicted Moses of human trafficking
17
of a minor (§ 236.1, subd. (c)(1)), attempted pimping of a minor (§§ 664, subd.
(a), 266h, subd. (b)(1)), and pandering (§ 266i, subd. (a)). (Moses II, at p. 19.)
The Court of Appeal reversed Moses’s human trafficking conviction,
holding that he could not be convicted of human trafficking under section
236.1, but only under the general law of attempt. (Moses I, supra, 10 Cal.5th
at p. 898.)
Moses appealed to the California Supreme Court, which reversed the
judgment and remanded the matter to the Court of Appeal with directions
that it address Moses’s instructional error claims. (Moses I, supra, 10 Cal.5th
p. 914.) The Supreme Court began its discussion with an analysis of section
21a, which states, “ ‘An attempt to commit a crime consists of two elements: a
specific intent to commit the crime, and a direct but ineffectual act done
toward its commission.’ ” (Moses I, at p. 899.) It pointed out that the
substantive law of attempt was found in the common law (ibid.), and cited
several cases supporting its conclusion that “[p]revious cases have
consistently looked to section 21a to define the elements of an attempt that
has been incorporated into a statute defining the substantive crime.” (Id. at
p. 903) It also explained that “[o]ther cases have rejected arguments when
the People have sought to evade the application of section 21a for statutes
that incorporate an attempt into the definition of a substantive offense.” (Id.
at p. 904.)
Turning to section 236.1, subdivision (c), the Moses I court pointed out
that its language “defining human trafficking was ‘chosen by the electorate in
2012, some 26 years after the enactment of the statutory definition of
“attempt” [citation] and the even earlier adoption of similar language at
common law.’ ” (Moses I, supra, 10 Cal.5th at p. 907.)
18
The Supreme Court explained the section 236.1 statutory scheme: “The
first two subdivisions of section 236.1 define human trafficking as ‘depriv[ing]
or violat[ing] the personal liberty of another with the intent to obtain forced
labor or services,’ ([§ 236.1, subd. (a)]), or with ‘the intent to effect or
maintain . . . violation[s] of’ various laws regulating prostitution, pimping
and pandering, pornography, and extortion ([§ 236.1, subd. (b)]). Subdivision
(c) does not speak of violating a victim’s personal liberty. Instead it defines
human trafficking another way: the inducement of a minor to engage in
commercial sex acts. Subsequent provisions make clear that neither a
minor’s consent ([§ 236.1, subdivision (e)]), nor a mistake of fact as to a
victim’s age ([§ 236.1, subd. (f)]), is a defense. Subdivision (c) specifically
targets trafficking minors. A completed violation of subdivision (c) will,
obviously, involve the inducement of a particular person, and that person
must be a minor. By contrast, to violate subdivision (c) as an attempt, the
defendant must intend to induce a minor, but the target of that inducement
need not be an actual minor. This understanding of the statute supports a
conclusion that, as long as the defendant has attempted to induce a person
and intends that the object of his inducement be a minor, the elements of the
attempt provision are satisfied. This understanding honors the general law
of attempt that punishes a criminal intent coupled with an ineffectual act
done towards its commission.” (Moses I, supra, 10 Cal.5th at pp. 907-908, fn.
omitted.)
The Moses I court clarified that section 236.1, subdivision (c)’s sentence
structure “does not reflect an intent by voters to deviate from the established
law of attempt. Instead, it conveys the voters’ intent that human trafficking
of a minor, whether successfully completed or merely attempted, is to be
punished in a uniform way.” (Moses I, supra, 10 Cal.5th at p. 908.)
19
The Supreme Court rejected the People’s argument that a defendant
need not intend to induce a minor to commit an attempt under section 236.1,
subdivision (c): “[A]n attempt under section 236.1[, subdivision] (c) does
require as an element that the defendant intend to target a minor, at least
where the victim is not in fact a minor. The People would have us reject
factual impossibility as a defense to the crime of attempt under section
236.1[, subdivision] (c) while simultaneously refusing to apply another
established requirement of that doctrine. We reject the People's argument
that Moses could be convicted not only in the absence of an actual minor
victim, but also without intent to induce a minor victim.” (Moses I, supra, 10
Cal.5th at p. 912.)
After reviewing the ballot materials of section 236.1, subdivision (c)’s
voter initiative, the Supreme Court concluded that statute operates as
follows: “To be convicted of the completed crime of inducing a minor to
engage in a commercial sex act, the person induced must be a minor. To
commit the crime of attempting to induce a minor, the defendant must act
with the ‘ “specific intent to commit the [completed] crime” ’ [citation], i.e., the
intent to cause, induce, or persuade a minor to engage in a commercial sex
act, at least when no actual minor victim is involved [citation]. The
defendant must act with the additional intent to effect or maintain a
violation of one of the offenses enumerated in the statute. If these elements
are met, the fact that the particular target of his efforts is not actually a
minor is not a defense. Under both theories the defendant is guilty of
“human trafficking” (§ 236.1[,subd.] (c)) and subject to the same punishment.”
(Moses I, supra, 10 Cal.5th at pp. 912-913, footnote omitted.)
The Supreme Court concluded that section 236.1, subdivision (f), which
states, “ ‘Mistake of fact as to the age of a victim of human trafficking who is
20
a minor at the time of the commission of the offense is not a defense to a
criminal prosecution under this section,’ ” does not apply when there is no
actual minor victim: “The statute eliminates a mistake of age defense if the
defendant successfully induces a minor, even if acting under a mistake of
fact. It does not speak to the converse situation, when the defendant
attempts to induce a person the defendant actually believes to be a minor but
who is in fact an adult. Under the provisions of subdivision (c) and the law of
attempt, such conduct is punishable as human trafficking so long as the
defendant intended to induce a minor to engage in such conduct. There is no
inconsistency between disallowing a mistake of age defense when the victim
is an actual minor and requiring a specific intent to induce a minor when the
defendant unwittingly targets a police decoy. Nothing in subdivision (f)
speaks to the latter intent requirement.” (Moses I, supra, 10 Cal.5th at p.
909.)
On remand, the Court of Appeal framed Moses’s instructional error
claim as follows: “[T]he jury was never instructed that to commit the offense
of attempted human trafficking [Moses] had to know or believe that his
alleged victim, ‘Bella,’ was underage. The court’s instructions on counts 2
and 3, related to pandering and pimping, similarly did not require knowledge
or belief that the victim was a minor.” (Moses II, supra, 65 Cal.App.5th at p.
18.)
The Moses II court held the trial court had erroneously instructed the
jury that a mistake about the victim’s age was not a defense: “Because the
[Moses I court] concluded intent to induce a minor victim is required (at least
when there is no actual minor victim), the trial court’s mistake of age
instruction was erroneous; it should not have been given because a mistake
related to the age of the victim may undermine or contradict the requisite
21
intent to target a minor. The defendant’s mental state regarding the victim’s
age is critical to the offense under the [Moses I] analysis; the jury should not
be inhibited by a mistake of age preclusion from fully considering and
determining the defendant’s actual intent. The instruction therefore should
not be given in the circumstances here, where there is no actual minor victim
involved.” (Moses II, supra, 65 Cal.App.5th at p. 23.)
The Moses II court added: “Compounding the inclusion of the
erroneous mistake of age language is the fact that the trial court’s human
trafficking instruction did not tell the jury it had to find Moses intentionally
targeted someone he believed was a minor before it could return a guilty
verdict.” (Moses II, supra, 65 Cal.App.5th at p. 23.) It added that the trial
court’s instructions on pimping (CALCRIM No. 1150) and pandering
(CALCRIM No. 1151) included no requirement that Moses intended to target
a minor. (Moses II, supra, at p. 24.) Accordingly, the Court of Appeal
reversed Moses’s conviction for human trafficking of a minor under section
236.1, subdivision (c)(1)). (Moses II, at p. 29.)
B. Analysis
Based on the prosecutor’s closing argument set forth above, we agree
with Whisenton that the prosecutor argued an attempt theory to the jury by
stating that under section 236.1, subdivision (c) the People did not have to
prove that Whisenton completed the crime of trafficking the minors; rather, it
sufficed that they prove Whisenton attempted to do so as to both victims.
This case involves actual minor victims, the prosecutor’s use of an
attempt theory as to both victims, and a victim (L.D.) who did not engage in
commercial sex. Under these circumstances, we treat this case as addressing
the question left open by Moses I, that is the determination of “the interplay
between subdivision (f) and the specific intent required for the attempt prong
22
of section 236.1[, subdivision] (c) when the defendant attempts, but fails, to
induce an actual minor to engage in a commercial sex act.” (Moses I, supra,
10 Cal.5th at p. 913, and fn. 10.)
Here, the trial court did not provide the jury with an instruction
regarding the specific intent for the attempt prong of section 236.1,
subdivision (c). By way of comparison, in a different attempt case brought
under section 236.1, subdivision (c), involving a police decoy, the Court of
Appeal approved this modified version of CALCRIM No. 1244: “The
defendant is charged in count one with attempting to cause, induce, or
persuade a minor to engage in a commercial sex act. [¶] To prove that the
defendant is guilty of this crime, the People must prove that: [¶] 1. The
defendant attempted to cause, induce, or persuade a minor to engage in a
commercial sex act; [¶] And [¶] 2. When the defendant acted, he intended to
commit a violation of pimping or pandering.” “To prove that the defendant
attempted to cause, induce, or persuade a minor to engage in a commercial sex
act, the People must prove that: [¶] 1. The defendant took a direct but
ineffective step toward causing, inducing, or persuading a minor to engage in
a commercial sex act; [¶] And [¶] 2. When the defendant acted, the defendant
intended to cause, induce, or persuade the minor to engage in a commercial
sex act.” (People v. Clark (2019) 43 Cal.App.5th 270, 286; italics added.)
Under the long-settled law of attempt set forth in Moses I, a
defendant’s guilt or innocence must be determined based on whether he had
a specific intent to commit the crimes. “When . . . ‘ “a person commits an act
based on a mistake of fact, his guilt or innocence is determined as if the facts
were as he perceived them.” (People v. Reed (1996) 53 Cal.App.4th 389, 396.)
Following Moses I, we are compelled to conclude that the trial court here
erred by failing to instruct the jury regarding the specific intent required for
23
an attempt under section 1236.1, subdivision (c). Whisenton was therefore
deprived of an opportunity to argue as to counts 1 and 2 that he was
mistaken as to the victims’ ages.
We acknowledge the Moses I court’s language that the requirement the
defendant act with a specific intent as to the attempt prong of section 236.1,
subdivision (c) applies “at least when no actual minor victim is involved.”
(Moses I, supra, 10 Cal.5th at p. 913.) However, in light of the court’s
discussion of the established nature of a specific intent requirement for
attempts (id. at p. 908 [law “does not reflect an intent by voters to deviate
from the established law of attempt”]), we see no analytic way to avoid
applying that standard when an actual minor is involved.
We conclude the trial court’s instructional error was not harmless in
light of the prosecutor’s argument that he did not have to prove a completed
crime. On this record, we have no way of knowing whether, as to both
victims, the jury convicted Whisenton of completed acts or of attempts to
traffic a minor. As Whisenton argues, the uncertainty regarding the basis of
the jury’s finding is exacerbated by the fact the jury deadlocked on two other
counts as to which Whisenton was allowed to rely on the mistake of age
defense.
We recognize that a specific intent instruction for an attempt under
section 236.1 subdivision (c) would appear to vitiate subdivision (f)’s mistake
of age defense for the crime of trafficking a minor, although that latter
provision shows the electorate clearly intended to target those who traffic
minors regardless of whether the defendant knew the age of the victim.
However, under AutoEquity Sales, Inc. v. Superior Court (1962) 57 Cal.2d
450, 455-456, we must follow the Moses I court’s decision to interpret section
236.1, subdivision (c) to require a specific intent instruction when the
24
prosecutor relies on an attempt theory. Accordingly, we reverse the
judgment.
DISPOSITION
The judgment is reversed.
O’ROURKE, Acting P. J.
WE CONCUR:
AARON, J.
IRION, J.
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