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Name: In re M.D.
Case #: A139888
Court: CA Court of Appeal
District 1 DCA
Division: 3
Opinion Date: 11/24/2014

Evidence Code section 1161, which prohibits introduction of evidence of commercial sexual acts by a victim of human trafficking to prove a criminal offense, does not reallocate the accused’s burden of proving foundational facts. The juvenile court found the minor committed the offense of loitering with the intent to commit prostitution (Pen. Code, § 653.22). She appealed the denial of her motion to exclude evidence on the ground she was a victim of human trafficking. Held: Affirmed. Section 1161 was enacted in 2012 as part of the Californians Against Sexual Exploitation (CASE) Act, which protects victims of human trafficking. Here, the trial court found the minor had the burden of establishing she was such a victim, but failed to do so. This was not error. Under section 405, the court determines who has the burden of proof on a disputed issue. Once the foundational evidence is received, the court either admits or excludes the evidence as required by the applicable rule of law. Typically, the party seeking to exclude otherwise admissible evidence (in this case based on public policy), has the burden of proof on the foundational issues of fact. The public policy reflected in the CASE Act and section 1161 do not require reallocation of the burden of proof that the minor was a victim of human trafficking. It does not create a presumption that all minors charged with commercial sexual activity are victims of human trafficking, nor does it create an affirmative defense. The facts required to establish the minor was a victim of human trafficking are peculiarly within her knowledge. The court correctly placed the burden of proof on the minor.

The minor did not present sufficient evidence that she was the victim of human trafficking to warrant the exclusion of evidence under section 1161. Evidence the minor was with an adult female prostitute who was schooling her on the trade and who was arrested for pimping, while supporting an inference the minor was a human trafficking victim, do not establish this fact as a matter of law. Therefore minor’s motion was properly denied.

The minor’s trial attorney was not ineffective in failing to persuade the trial court the minor was a human trafficking victim. The additional evidence the minor faults trial counsel for not introducing—that the adult prostitute purchased a BART ticket for the minor to go to Concord to engage in prostitution and told the minor she could make more money as a prostitute than with a regular job—would not likely have resulted in the granting of the minor’s motion. Thus, no prejudice resulted from any alleged ineffective assistance of counsel.