Instructions on human trafficking of minors adequately conveyed to the jury the requirement that the defendant know the other person is a minor. Hicks was convicted of three counts of human trafficking of a minor (Pen. Code, § 236.1, subd. (c)(1)) and other offenses, based on his acts with three teenaged girls, including paying them in exchange for sex and naked photos. On appeal Hicks challenged the sex trafficking instruction given because it referred to using a minor to perform a prohibited act (Pen. Code, § 311.4) as the act constituting the trafficking offense and stated that mistake of age was not a defense. Held: Affirmed. Section 236.1 prohibits the human trafficking of a minor, making it a felony to induce a minor to engage in a commercial sex act with the intent to violate enumerated statutes, including section 311.4. Mistake of fact as to the victim’s age is not a defense to human trafficking (Pen. Code, § 236.1, subd. (f)). Here, Hicks argued the instruction given on human trafficking (CALCRIM No. 1244), which stated that mistake as to the other person’s age is not a defense to the crime, was confusing because the instruction given on the enumerated statute violated (CALCRIM No. 1144; Pen. Code, § 311.4), required knowledge the person is a minor. Hicks argued that together these instructions directed the jury to disregard the knowledge requirement of section 311.4. However, the instruction on the enumerated felony was only definitional in the context of a human trafficking charge. The jury knew it was deciding the human trafficking charge, not the offense of inducing a minor to simulate sex acts. In any event, any possible error was harmless because the evidence showed Hicks knew the girls were minors and the jury was instructed it was a defense if Hicks actually believed they were over 18 years old.

The trial court did not err by failing to instruct the jury that the crime of using a minor to perform a prohibited act (Pen. Code, § 311.4, subd. (c)) is a lesser included offense of human trafficking (Pen. Code, § 236.1, subd. (c)). Defendant also argued that the trial court erred by failing to sua sponte instruct the jury on the crime of using a minor to perform a prohibited act as a lesser included offense of human trafficking. The Court of Appeal disagreed. “The crime of human trafficking of a minor can be committed without necessarily committing the crime of using a minor to perform a prohibited act.” In order to commit human trafficking, a defendant must have the intent to violate enumerated statutes, including section 311.4, but there is no requirement that defendant actually commit the offense. The intent to commit the prohibited act is enough. Thus, under the statutory elements test, using a minor to commit a prohibited act is not a lesser included offense of human trafficking. Under the accusatory pleading test, the crime as charged did not include all of the elements of the lesser offense, so no lesser included offense instruction was required.

There was substantial evidence to support the human trafficking conviction related to one minor even if there was no evidence establishing that defendant took nude photographs of her after learning her true age. As to one of the minors, Hicks argued there was no evidence he took sexually explicit photos of her after he learned she was a minor. The Court of Appeal concluded there was still sufficient evidence to support defendant’s conviction for human trafficking as to that minor. Section 236.1, subdivision (c) prohibits the human trafficking of a minor for a sex act and mistake of fact as to the age of the minor is not a defense. It is a felony to use the minor to engage in a commercial sex act, with an intent to violate an enumerated statute, including section 311.4. There was sufficient evidence that Hicks paid the minor for sex and for taking naked photographs of the minor. All that is required to sustain Hicks’ human trafficking conviction is that he had the requisite intent to violate section 311.4 (which prohibits using a minor to perform a prohibited act) at the time he took naked photos of the minor, actual commission of the offense was not required. “It is immaterial whether he learned of her true age before or after he took the photos.” Further, the evidence reflected Hicks was aware of the minor’s age.

The trial court did not err by refusing to give accomplice instructions. Hicks asked the trial court to give accomplice instructions on the theory that one of the minors brought the other girls to his house, so the accomplice’s testimony required corroboration. An accomplice is one who is liable to prosecution for the identical offense charged against the defendant (Pen. Code, § 1111). However, the human trafficking statute was expressly designed to protect minors. Thus, a minor who is a victim of the proscribed conduct is not an accomplice. The same reasoning applies to Hicks’ convictions for unlawful sexual intercourse with a minor (Pen. Code, § 261.5, subd. (c)) and furnishing a controlled substance to a minor (Health & Saf. Code, § 11380, subd. (a)).

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/G052778.PDF