A defendant violates Penal Code section 236.1(c) when the defendant attempts, but fails, to traffic an actual minor, even if the defendant lacks specific intent regarding the victim’s age, and mistake of fact as to age is not a defense. Middleton was convicted of human trafficking of a minor for a commercial sex act under the attempt prong of section 236.1(c), and other related offenses. On appeal, she argued the trial court erred by not instructing the jury that the People had to prove specific intent as to age, and by instructing the jury that mistake of fact as to age is not a defense to the attempt charge. Held: Affirmed. In People v. Moses (2020) 10 Cal.5th 893, the Supreme Court declined to decide the issue presented in this case: the specific intent required for the attempt prong of section 236.1(c) when there is an actual minor victim. After analyzing section 236.1, subdivisions (c) and (f) (which provides that 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) and Moses, the Court of Appeal concluded subdivision (f) “necessarily eliminates the specific intent element regarding age when a defendant attempts, but fails, to induce a person who is actually a minor to engage in commercial sex acts, even if the defendant believes the victim is an adult.” As a result, there was no instructional error on the human trafficking charge. [Editor’s Notes: (1) The court also concluded there was no instructional error related to the rape-in-concert jury instructions. The court declined to decide whether all forms of rape under Penal Code section 261(a)(2), would constitute rape by “force or violence” under Penal Code section 264.1 (rape in concert) and encouraged the Legislature to consider clarifying the language in section 264.1 to eliminate any possible ambiguity. (2) Additionally, the court concluded there was sufficient evidence to support Middleton’s section 236.1(c) conviction and her section 264.1(a) conviction.]

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/documents/B312583.PDF