People v. Moses

Filed 8/14/19
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
G055621
Plaintiff and Respondent,
(Super. Ct. No. 16NF1413)
v.
OPINION
ANTONIO CHAVEZ MOSES III,
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County, Julian W.
Bailey, Judge. Affirmed in part, reversed in part, and remanded.
Mark Alan Hart, under appointment by the Court of Appeal, for Defendant
and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Steve T. Oetting, Deputy
Attorney General, for Plaintiff and Respondent.
* * *
A jury convicted Antonio Moses, III, of human trafficking of a minor
1
(count 1, Pen. Code, § 236.1, subd. (c)(1) [hereafter, § 236.1(c)]; attempted pimping of a
minor (count 2; §§ 664, subd. (a); 266h, subd. (b)(1)), and pandering (count 3, § 266i,
subd. (a)). In bifurcated proceedings, the trial court found Moses previously suffered a
strike conviction (§§ 667, subds. (b)-(e); 1170.12, subds. (b), (c)(1)), but dismissed four
prior prison term allegations (§ 667.5, subd. (b)) for lack of evidence. The court then
imposed the high term of 12 years on count 1, doubled to 24 years based on the prior
strike, and stayed under section 654 the imposition of midterm sentences for counts 2
and 3.
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 of
section 236.1(c) include as a required element that the victim must be “a person who is a
minor at the time of commission of the offense.” As we explain, this requirement further
distinguishes attempted human trafficking as defined by section 236.1(c) from an
ordinary criminal attempt defined in section 21a. Because there was no evidence here of
1
All statutory references are to the Penal Code.
2
any involvement of an actual minor victim as required by the human trafficking statute
under which Moses was convicted, we reverse the judgment as to count 1 and remand the
matter to the trial court for further proceedings, including resentencing on counts 2 and 3.
FACTUAL AND PROCEDURAL BACKGROUND
The relevant facts are undisputed. Detective Luis Barragan of the Santa
Ana Police Department created a user profile for a fictitious 21-year-old female named
“Bella B.” on a social network site known as Tagged.com. The site required its users to
be 18 or older. The prosecutor introduced evidence at trial aimed at proving Moses
contacted Bella and other Tagged.com users to recruit them to engage in prostitution.
Assuming the role of Bella, Barragan responded to Moses’s initial messages by stating
she was in Vallejo “chasing the paper”—a phrase used in the pimping subculture to refer
to working as a prostitute.
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.
3
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
2
defined in section 236.1(c) must be an actual minor. The jury concluded Moses intended
to traffic Bella and convicted him of that offense (count 1). He was also convicted of
attempted pimping (count 2) and pandering (count 3). He now appeals.
DISCUSSION
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
2
On appeal, Moses also asserts he preserved an argument that, by including
language stating that mistake of age is not a defense in a case where the victim was an
adult law enforcement decoy, a juror would assume the human trafficking offense
defined in section 236.1(c) does not require a minor victim. As we explain, we need not
reach the specifics of Moses’s instructional claims where the evidence does not establish
a required element of the offense.
4
the intent to effect or maintain a violation of Section 266, 266h, 266i, 266j, 267, 311.1,
3
311.2, 311.3, 311.4, 311.5, 311.6, or 518 is guilty of human trafficking.” (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).)
4
As explained in People v. Shields (2018) 23 Cal.App.5th 1242 (Shields),
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.)
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.) An attempt under
3
The enumerated sections (§§ 266 through 518) refer to various sex crimes
including prostitution, pimping, pandering, child pornography, child sexual exploitation,
obscene live acts, and extortion.
4
Shields was decided after the trial in this case, and after Moses filed his
opening brief, but before the Attorney General filed its responsive brief.
5
section 21a does not require a minor victim because, unlike section 236.1(c), section 21a
does not require that “a person who is a minor at the time” be the victim of the crime. As
Shields observed, “the elements of an attempt to commit a crime are materially different
from the elements of human trafficking of a minor under the attempt prong of
section 236.1(c), which explicitly requires that the victim must be under the age of 18
when the crime is committed.” (Shields, at p. 1257.)
An attempt under section 21a is nevertheless a punishable offense. As
discussed in Shields, “‘[a]n attempt to commit a crime is itself a crime and subject to
punishment that bears some relation to the completed offense.’” (Shields, supra,
23 Cal.App.5th at p. 1250.) That punishment is usually half the prescribed term for the
actual offense. (§ 664, subd. (a).) Shields explained “[t]he fact that a criminal
defendant’s intended victim is an imaginary person or a law enforcement officer posing
as a minor does not mean th[e] defendant committed no crime . . . [b]ut the crime is an
attempt” under section 21a. (Shields, at p. 1256.) As Shields explained, “This outcome is
consistent with the broader principle that factual impossibility is not a defense to a charge
of attempt” under section 21a. (Shields, at p. 1256.)
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
5
trafficking charges. 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
5
Subdivision (f) provides: “Mistake of fact as to the age of a victim of
human trafficking who is a minor at the time of the commission of the offense is not a
defense to a criminal prosecution under this section.” (§ 236.1, subd. (f).)
6
subdivision (c)’s specific requirement that the victim be ‘“a person who is a minor.”’
(Shields, supra, 23 Cal.App.5th at p. 1250.)
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.)
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.
The Attorney General’s incorporation analysis relies heavily on the
presence of the word “attempts” in section 236.1(c). But as the Supreme Court has
explained, “the meaning of ‘attempt’ can vary with the criminal context.” (People v.
Colantuono (1994) 7 Cal. 4th 206, 216, abrogated by statute on another ground as stated
in People v. Conley (2016) 63 Cal. 4th 646, 660 fn. 4.) An attempt under section 21a does
not require a victim. Instead such an attempt requires two inchoate elements: 1) criminal
intent; and 2) an ineffectual act toward committing the crime. In contrast, the specific
language of section 236.1(c) requires an additional element: the necessity that the victim
be a minor. The “context” of the two statutes is therefore different because the language
of each is different: section 236.1(c) includes an element that section 21a does not.
The Attorney General argues that by “bisect[ing]” or “compartmentalizing
the ‘attempt’ language from the ‘minor’ requirement, rather than reading the two together
as a single unit” in section 236.1(c), Shields required “an additional element (an actual
minor) that is not required for an attempt” under section 21a. We agree. But contrary to
7
the Attorney General’s argument, Shields did not add the “person who is a minor at the
time of the commission of the offense” language to section 236.1(c). Nor did we. The
electorate did that when it approved Proposition 35, the Californians Against Sexual
Exploitation Act. (See Shields, supra, 23 Cal.App.5th at p. 1249.)
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
6
generic crime of attempt that section 21a codifies. 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. (Shields, supra, 23 Cal.App.5th at p. 1257.) But as
Shields also pointed out, the electorate in enacting subdivision (f) of section 236.1 gave
broader protection to minors by specifying that a perpetrator’s claim he or she mistook a
minor for an adult “is not a defense to a criminal prosecution under this section.” (Italics
added.) The purported engraftment the Attorney General advocates would negate this
protection. If a perpetrator targeted a person who was actually a minor, but the jury
6
See Voter Information Guide, Gen. Elec. (Nov. 6, 2012) initiative text and
accompanying materials at [as of July 24, 2019], archived at .
8
believed he intended to traffic an adult, and therefore his conduct did not meet
section 21a’s specific intent threshold, such a mistake would be a defense to prosecution
under section 236.1(c)’s attempt prong—contrary to the electorate’s express direction.
By expressly foreclosing this defense, the electorate closed the door on the Attorney
General’s argument.
The plain words of section 236.1, subdivision (f), also undercut the
Attorney General’s effort to label as a logical absurdity “[t]he notion that there could be a
crime of attempting to attempt to induce a minor” into commercial sex acts. To the
contrary, the plain language of subdivision (f) establishes that the electorate intended a
different meaning for “attempts” in section 236.1(c) than for an “attempt” under
section 21(a) because the mens rea for the two crimes are different. Under
subdivision (f), the perpetrator need not harbor any specific mental state regarding the
age of his intended victim. He may give no thought at all to the question. Instead, he
bears the risk, regardless of whether he believed the minor was of age or not, that his
trafficking target is a minor. As the Supreme Court explained, where the mistake of fact
defense regarding a victim’s age is inapplicable, the defendant commits an offense
involving a minor “at his or her peril.” (People v. Olsen (1984) 36 Cal. 3d 638, 649.)
Under subdivision (f), the defendant’s mental state regarding the victim’s minority or
majority is immaterial.
The electorate could reasonably conclude in stating that a mistake of fact
regarding a minor’s age is not a defense “under this section”—namely, section 236.1—
that the same section nevertheless provides minors broad, overlapping protection by
operating alongside other Penal Code sections, including section 21a. That is, cases
involving actual minors yield the harshest penalties under section 236.1(c). The
defendant—not the minor—bears the risk that the victim of attempted trafficking activity
may be a minor, even if the defendant has reason to believe the child is of age. And
under section 21a, defendants who attempt to traffic police decoys posing as minors are
9
still subject to punishment—and therefore to sex offender registration and monitoring
under section 290—when the evidence reveals they specifically intended to target a
minor.
The Attorney General lamented during oral argument that, pursuant to
Shields, a defendant could not be convicted of violating section 236.1(c) if he targeted a
victim he believed to be a young child, but the purported victim was actually an
undercover police officer posing as a minor on the Internet. Surely, he argued, the voters
did not intend such a result. As this court has observed, however, a defendant’s culpable
intent is not the sole criterion by which lawmakers craft potential sentences; to the
contrary, “the consequences of a petitioner’s actions reflect on his or her culpability and,
in turn, serve as some measure for the harshness of the sentence imposed.” (In re Nunez
(2009) 173 Cal. App. 4th 709, 736.) Consequently, it is “‘generally recognized that
attempts are less serious’” than crimes carried through to completion. (Ibid.) Moreover,
apart from scrutinizing potential cruel or unusual punishment issues, courts play no role
in prescribing punishment. That responsibility rests with the Legislature (In re Nunez,
supra, 173 Cal.App.4th at pp. 724-725, 730), and the electorate. “In California, there are
no common law crimes.” (People v. Jacobo (2019) 37 Cal.App.5th 32, 46.)
We must then turn to the words actually used in Proposition 35 to
determine its meaning since “[t]he fundamental task of statutory construction is to
‘ascertain the intent of the lawmakers so as to effectuate the purpose of the law.’”
(People v. Cruz (1996) 13 Cal. 4th 764, 775.) The words chosen by the enacting body
“‘are the best indicators of its intent.’” (People v. Ramirez (2010) 184 Cal. App. 4th 1233,
1238.) ‘“In interpreting statutes, we follow the [enactor]’s intent, as exhibited by the
plain meaning of the actual words of the law.’” (People v. Loeun (1997) 17 Cal. 4th 1, 9.)
A reviewing court may not add language to a statute (e.g., People v. Buena
Vista Mines, Inc. (1996) 48 Cal. App. 4th 1030, 1034). So too we cannot subtract
language from section 236.1(c). Its elementary language requires the victim to be “a
10
person who is a minor at the time of commission of the offense.” While the Attorney
General may argue this is an unacceptable result, “Each time the judiciary utilizes the
‘absurd result’ rule, a little piece is stripped from the written rule of law and confidence
in legislative enactments is lessened.” (Unzueta v. Ocean View School Dist. (1992)
6 Cal. App. 4th 1689, 1699.) There is nothing ambiguous about section 236.1(c)’s
language requiring that the victim be “a minor at the time of commission of the offense.”
Therefore, the statute’s plain meaning controls.
The use of police decoys in cases like this is neither new nor novel. If the
electorate had intended such cases to fall within section 236.1(c), instead of section 21a,
it would have been a simple matter to say so. For example, changing the third element of
section 236.1(c) from “a person who is a minor” to “a person who is a minor or is
reasonably believed to be a minor” would have indicated such a purpose. It is generally
the responsibility of elected bodies rather than the courts to rewrite the law. (Christina C.
v. County of Orange (2013) 220 Cal. App. 4th 1371, 1382.)
The Attorney General misconstrues as “analogous” authority cases that
interpret section 136.1. Section 136.1, subdivision (a)(2), proscribes any person from
“[k]nowingly and maliciously attempt[ing] to prevent or dissuade any witness or victim
from attending or giving testimony at any trial” or similar proceeding. In support of the
People’s argument that factual details about a victim—such as whether he or she is a
police decoy—are unimportant, the Attorney General observes that an attempt to
dissuade a witness “is completed once the defendant takes an immediate step” to commit
the crime, even by recruiting a third party (People v. Kirvin (2014) 231 Cal. App. 4th
1507, 1519), such that the victim need not be contacted or made aware of the attempt.
(People v. Foster (2007) 155 Cal. App. 4th 331, 335.)
But this argument by analogy falls short since section 236.1(c) on its face
requires the victim maintain a specified status at the moment the crime is committed—
that of a minor—while section 136.1 does not. In effect, the Attorney General’s
11
argument deletes “a person who is a minor at the time of commission of the offense”
from section 236.1(c). Such an interpretation here would be akin to paring from statutes
designed to protect peace officers the element that the victim must be a peace officer.
(Cf. §§ 241, subd. (c), 243, subd. (b).)
In sum, we agree with the conclusion reached by the Shields court:
Section 236.1(c), including its attempt prong, “defines the completed offense of human
trafficking; the conduct described in that statute constitutes actual human trafficking; not
attempted human trafficking. Thus, the intent required to commit this crime is stated in
the statute itself.” (Shields, supra, 23 Cal.App.5th at p. 1250.) As discussed, that intent
includes attempts to traffic minors in commercial sex acts even when the defendant does
not know the victim is a minor, but does not extend to attempting to traffic adults who are
not minors.
Finally, before concluding reversal was required, the Shields court
considered reducing the defendant’s conviction for violating section 236.1(c) to an
attempt under section 21a, as a lesser included offense of section 236.1(c). (Shields,
supra, 23 Cal.App.5th at pp. 1257-1258.) The court concluded that alternative was not
available—assuming a section 21a violation is a lesser included offense—because under
the instructions given, “we cannot conclude that the jury necessarily found that appellant
actually intended to traffic a minor,” as required by section 21a. (Shields, at p. 1257.)
We reach the same conclusion here because the instructions provided by the trial court as
to count 1 did not require the jury to determine whether Moses specifically intended to
target a minor, as would be required if a violation of section 21a were a lesser included
offense of section 236.1(c). Without assurance from the instructions given that the jury
determined Moses specifically harbored the required intent for a violation of section 21a,
12
we cannot reduce the section 236.1(c) conviction to that lesser attempt conviction.
7
Reversal of count 1 is therefore required.
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.
GOETHALS, J.
I CONCUR:
FYBEL, J.
7
We recognize that a specific intent attempt crime is not a lesser included
offense when “the attempted offense includes a particularized intent that goes beyond
what is required by the completed offense.” (People v. Bailey (2012) 54 Cal. 4th 740,
753; see, e.g., People v. Mendoza (2015) 240 Cal. App. 4th 72, 83 [specific intent attempt
crime is not a lesser included offense of a completed general intent crime].) That is the
case here, where in light of subdivision (f), section 236.1(c) does not require the intent to
traffic a minor, as an attempt under section 21a would. As in Shields, however, we
simply reject the possibility—under the instructions given—that Moses’s conviction
could be reduced to a lesser attempt offense.
13
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), the jury legally could convict Moses of human trafficking
under section 236.1, subdivision (c), despite the absence of an actual minor victim.
The majority’s contrary conclusion is inconsistent with how our Supreme
Court and other appellate courts have interpreted similar criminal statutes penalizing
attempts. Moreover, under the majority’s construction of section 236.1, subdivision (c),
Moses’s wrongful conduct would constitute an attempt to attempt to human traffick a
minor. Besides leading to “a logical merry-go-round,” (People v. Gallegos (1974)
39 Cal. App. 3d 512, 516 (Gallegos)), the majority’s construction would result in Moses
receiving one-half the punishment of section 236.1, subdivision (c). This result would be
inconsistent with the stated purposes underlying section 236.1, subdivision (c). As a
federal appellate court has stated with respect to a similar criminal statute, “It would be
contrary to the purpose of the statute to distinguish the defendant who attempts to induce
an individual who turns out to be a minor from the defendant who, through dumb luck,
1
mistakes an adult for a minor. To hold otherwise would bestow a windfall to one
defendant when both are equally culpable.” (U.S. v. Meek (9th Cir. 2004) 366 F.3d 705,
718 [concluding that an actual minor victim is not required for an attempt conviction
1
under 18 U.S.C. § 2422(b)].) Therefore, I respectfully dissent from the reversal of the
section 236.1, subdivision (c), conviction.
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
1
18 U.S.C. § 2422(b), provides: “Whoever, using the mail or any facility or means of
interstate or foreign commerce, or within the special maritime and territorial jurisdiction
of the United States, knowingly persuades, induces, entices, or coerces any individual
who has not attained the age of 18 years, to engage in prostitution or any sexual activity
for which any person can be charged with a criminal offense, or attempts to do so, shall
be fined under this title and imprisoned not less than 10 years or for life.” (Italics added.)
2
of the commission of the offense to engage in a commercial sex act, with the intent to
effect or maintain a violation of [enumerated sex offenses] is guilty of human
trafficking.” By its express terms, section 236.1, subdivision (c), penalizes a defendant
who (1) causes, induces or persuades 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 certain
enumerated sex offenses, or (2) attempts to commit the criminal conduct proscribed in
(1). Under section 21a, “[a]n 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.” Thus, the elements for the crime set forth in prong 2 (the attempt prong) of
section 236.1, subdivision (c), are: A specific intent to commit the conduct proscribed
under prong 1; and Commission of a direct, but ineffectual act toward the completion of
the conduct proscribed in prong 1. Other than forming the requisite criminal intent,
“commission of an element of the crime is not necessary” to subject a defendant to
liability for the attempt offense. (People v. Medina (2007) 41 Cal. 4th 685, 694.) Thus,
even if a minor victim is an essential element of the crime proscribed in prong 1 of
section 326.1, subdivision (c), Moses can be convicted of human trafficking under the
attempt prong of section 236.1, subdivision (c), despite the absence of a victim who is an
actual minor.
In reaching a contrary conclusion, the majority relies on People v. Shields
(2018) 23 Cal.App.5th 1242 (Shields), a case involving similar facts. In Shields, the
appellate court concluded that a defendant, such as Moses, could not be convicted under
the attempt prong of section 236.1, subdivision (c), because that crime “explicitly
requires that the victim must be under the age of 18 when the crime is committed.”
(Shields, 23 Cal.App.5th at p. 1257.) The court determined that the elements of the crime
proscribed under the attempt prong of section 236.1, subdivision (c), are: (1) The
defendant attempted to cause, induce or persuade another person to engage in a
3
commercial sex act; (2) When the defendant acted, he intended to commit a violation of
an enumerated crime; and (3) When the defendant did so, the other person was under 18
years of age. (Id. at pp. 1253-1256.) It concluded that a defendant did not violate section
236.1, subdivision (c), if “the third element of that offense cannot be proven.” (Id. at
p. 1256.) Rather, Shields found the defendant would be guilty of an attempt to commit
the offense proscribed in the attempt prong of section 236.1, subdivision (c), which
would result in lesser punishment. (Ibid.) In other words, an attempt to commit an
attempt. Thus, under the Shields court’s construction of section 236.1, subdivision (c),
Moses cannot be convicted of violating section 236.1, subdivision (c), because there was
no minor victim.
The Shields court’s interpretation of section 236.1, subdivision (c),
construes the term “attempt” in a manner inconsistent with how “attempt” and its
attendant legal principles have been used in California law. As the California Supreme
Court has stated: “‘“It is a well-recognized rule of construction that after the courts have
construed the meaning of any particular word, or expression, and the legislature
subsequently undertakes to use these exact words in the same connection, the
presumption is almost irresistible that it used them in the precise and technical sense
which had been placed upon them by the courts.”‘“ (People v. Lopez (2005) 34 Cal. 4th
1002, 1007 (Lopez).) “‘“This principle applies to legislation adopted through the
initiative process.”‘“ (People v. Lawrence (2000) 24 Cal. 4th 219, 231.)
Although the attempt prong of section 236.1, subdivision (c), uses the term
“attempt” to describe the prohibited conduct, the Shields court determined that crime is a
nonattempt offense. (Shields, 23 Cal.App.5th at p. 1256.) As a result, it concluded that
factual impossibility is a defense to the crime of human trafficking under the attempt
prong of section 236.1, subdivision (c). (Ibid.) Essentially, the Shields court decided that
“attempt” as used in section 236.1, subdivision (c), means something different from
4
“attempt” as used in section 21a and case law. This violates the basic tenet of statutory
construction that when the same term is used, it retains the same exact meaning. (Lopez,
supra, 34 Cal.4th at p. 1007.)
The Shields court also suggests it is unreasonable to interpret the offense
described in prong 2 of section 236.1, subdivision (c), as an attempt offense because the
Attorney General failed to identity any other criminal statute that “punishes an attempt
and a completed offense identically.” (Shields, 23 Cal.App.5th at p. 1257.) However, in
this case, the Attorney General has identified several criminal statutes that provide
identical punishment for the completed target offense and the attempt to commit the
target offense. More important, California courts have applied general attempt principles
when interpreting those statutes.
For example, section 136.1, subdivision (a), states: “any person who does
any of the following is guilty of a public offense and shall be punished by imprisonment
in a county jail for not more than one year or in the state prison: [¶] (1) Knowingly and
maliciously prevents or dissuades any witness or victim from attending or giving
testimony at any trial, proceeding, or inquiry authorized by law. [¶] (2) Knowingly and
maliciously attempts to prevent or dissuade any witness or victim from attending or
giving testimony at any trial, proceeding, or inquiry authorized by law.” In People v.
Foster (2007) 155 Cal. App. 4th 331 (Foster), the appellate court foreclosed a factual
impossibility defense, concluding the defendant’s call to a third party to deliver a warning
to a witness not to testify violated section 136.1, subdivision (a)(2), even if the third party
never passed the message to the witness. (Foster, at pp. 333 & 334-337.)
Section 4530, subdivision (a), provides that “[e]very prisoner confined in a
state prison who, by force or violence, escapes or attempts to escape therefrom and every
prisoner committed to a state prison who, by force or violence, escapes or attempts to
escape while being conveyed to or from that prison or any other state prison, . . . is
5
punishable by imprisonment in the state prison for a term of two, four, or six years.” In
People v. Bailey (2012) 54 Cal. 4th 740 (Bailey), the California Supreme Court applied
section 21a to interpret the meaning of “attempt to escape” in section 4530. (Bailey,
54 Cal.4th at p. 749.) The Supreme Court concluded it is “‘error not to instruct that the
crime of attempt to escape require[s] a specific intent on the part of [the defendant] to
escape from the jail, plus a direct, unequivocal act to effect that purpose.’ [Citation.]”
(Ibid.) In doing so, the high court rejected the argument that “because section 4530
codifies the offense of attempt to escape . . . section 21a is inapplicable.” (Bailey at
p. 750.)
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.) 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.)
6
Section 288.3 and its recent interpretation in People v. Korwin (2019)
2
36 Cal.App.5th 682 (Korwin) is particularly persuasive. Section 288.3, subdivision (a),
provides: “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, 287, 288, 288.2, 289, 311.1, 311.2, 311.4 or 311.11, or former Section
288a, involving the minor shall be punished by imprisonment in the state prison for the
term prescribed for an attempt to commit the intended offense.” In Korwin, the defendant
“exchanged sexually explicit messages over the course of nearly five months with a law
enforcement agent who Korwin believed was a 13- or 14-year-old girl.” (Korwin,
36 Cal.App.5th at p. 684.) After a jury convicted the defendant of violating section
288.3, he challenged his conviction on the ground that the agent was not a minor. (Id. at
p. 685.)
The appellate court rejected the challenge, concluding that “section 288.3,
subdivision (a), incorporates attempt into the crime itself” and does not require an actual
minor victim. (Id. at p. 688.) The court stated that its “interpretation is consistent with
cases holding the lack of an actual minor is not a defense to an attempt to commit a sex
offense against a minor.” (Id. at p. 689.) It also rejected defendant’s suggestion that “a
separate charge of attempt under section 664 would be necessary for undercover
operations where there is no minor victim,” concluding the suggestion would be contrary
to section 664, which allows for a separate attempt charge “only when no other provision
is made by law for such an attempt. Additionally, requiring a separate attempt charge
where the statutory language of section 288.3, subdivision (a) makes an attempt to
2
Section 288.3 was adopted by voters in November 2006, but Korwin was published
after oral argument in this matter.
7
communicate with a minor with the requisite intent a completed crime would lead to ‘a
logical merry-go-round.’” (Ibid., quoting Gallegos, supra, 39 Cal.App.3d at p. 516.)
Similarly, section 236.1, subdivision (c), incorporates “attempt into the
crime itself” (Korwin, supra, 36 Cal.App.5th at p. 688), because it punishes 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.” (§ 236.1, subd. (c), italics added; see also Shields, supra, 23 Cal.App.5th at p. 1257
[section 236.1, subdivision (c), “does define human trafficking to include an attempt to
engage a minor in a commercial sex act for an illicit purpose”].) Because attempts are
punished under section 236.1, subdivision (c), no separate attempt charge is required.
Stated differently, there is no such crime as an attempt to attempt to human traffic a
minor. Moses actually committed the conduct proscribed in the attempt prong of section
236.1, subdivision (c); he did not attempt to do so (see § 21a [“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.”]).
The majority argues the offense set forth in the attempt prong of section
236.1, subdivision (c), is materially different from the general attempt offense set forth in
section 21a because the former defines an offense consisting of three elements –
including a minor victim – whereas the latter only has two different elements (specific
intent and commission of a direct but ineffectual act). I disagree because as noted, the
elements of the attempt offense in section 236.1, subdivision (c), has only two elements:
(1) the specific intent to commit the offense proscribed in prong 1 of the statute, and (2)
the commission of a direct but ineffectual act towards its completion.
In any event, even under the majority’s construction of the attempt prong of
section 236.1, subdivision (c), a minor victim is not required because factual
impossibility is not a defense to even that type of attempt offense. Korwin is illustrative.
8
There, the court also determined a section 288.3 violation under the attempt prong has
three elements, but applied general attempt principles to preclude a factual impossibility
defense based on the lack of an actual minor victim. (See Korwin, 36 Cal.App.5th at
pp. 687-688 [defining elements] & 689 [“defendant may be found guilty under section
288.3, subdivision (a) if he or she ‘attempts to contact or communicate with a minor’
with the requisite mental state of having reason to know the individual is a minor”].)
Thus, the majority’s construction of the attempt offense in section 236.1, subdivision (c),
as a tripartite offense does not foreclose the applicability of general attempt principles to
interpret the statute.
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 (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 (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 [“The mistake-of-fact defense, as a matter of public
9
policy, does not apply to the commission of a lewd act on a child under the age of 14
3
years”].)
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 involving actual minors, unless
precluded on other grounds. (See, e.g., Reed, supra, 53 Cal.App.4th at pp. 396-397
[mistake of fact about existence of minor victims not a defense to crime of attempting to
molest them because although the victims were fictional and created by undercover
detectives, “if the circumstances had been as defendant believed them to be, he would
have found in the room he entered two girls under fourteen available for him to engage in
lewd and lascivious conduct with them”].) Thus, it is not necessary to interpret the
offense described in the second prong of section 236.1, subdivision (c), as a nonattempt
offense to harmonize it with section 236.1, subdivision (f), and Hanna.
Finally, the Shields court’s interpretation of the attempt offense in section
236.1, subdivision (c), as requiring an actual minor victim, contradicts the stated findings
and purposes of the CASE Act. As noted, the stated purposes of the CASE Act included
“ensur[ing] just and effective punishment of people who promote or engage in the crime
of human trafficking” and “strengthen[ing] laws regarding sexual exploitation . . . to
allow law enforcement to track and prevent online sex offenses and human trafficking.”
(Prop. 35, § 3, at pp. 100-101.) The findings and declarations observed 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
3
The Hanna court never explained why the public policy that bars a mistake of age
defense to the commission of a lewd act on a child under age 14 would not apply to bar
the defense to the attempted commission of the same offense. Mistake of fact is a
defense to both general intent and specific intent crimes. (People v. Givan (2015)
233 Cal. App. 4th 335, 343.)
10
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.” (Prop. 35, § 2, at p. 100.)
Punishing a defendant who uses the Internet to attempt to lure a person he believes is a
minor to engage in a commercial sex act for an illicit purpose in the same manner as a
defendant who lures an actual minor would protect actual minors because it would deter
criminals who expressly target minors. Under the majority’s construction, however,
police preventative measures to ferret out online human traffickers such as the sting
operation conducted here would come at the cost of either securing a conviction for a
lesser crime (attempt to attempt human trafficking) or putting an actual child in harm’s
way (by using an actual minor as the decoy). We should not discourage “proper police
activities in trying to locate and punish those bent on perpetrating sex crimes against
children.” (Reed, supra, 53 Cal.App.4th at p. 399.) In short, construing section 236.1 as
not requiring an actual minor victim “advances the statutory purpose of supporting law
enforcement officers who use undercover measures to identify, deter, and punish Internet
predators who attempt to sexually victimize children before they reach minor victims.”
(Korwin, supra, 36 Cal.App.5th at p. 690.)
In summary, a defendant violates section 236.1, subdivision (c), if he or she
(1) “causes, induces, or persuades . . . 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 [an
enumerated sex offense]” or (2) attempts to do so. Because factual impossibility is not a
defense to an attempt offense, a defendant may violate section 236.1, subdivision (c),
even if there is no minor victim. The contrary construction of the attempt offense in
section 236.1, subdivision (c), set forth in Shields, supra, 23 Cal.App.5th 1242, is
inconsistent with how the California Supreme Court and appellate courts have interpreted
similar criminal statutes punishing completed attempts and with the stated purposes of the
11
CASE Act. Because the majority relies on Shields to reverse Moses’s conviction for
violating section 236.1, subdivision (c), I respectfully dissent and would affirm the
conviction.
ARONSON, ACTING P. J.
12