Penal Code section 236.1, subdivision (c) does not violate due process by authorizing a conviction for human trafficking of a minor under the attempt prong of the statute without requiring proof that the defendant knew the victim was a minor. A detective created a fake Facebook account for a fictional 17-year-old prostitute and contacted Shields. His communications with the detective led to his arrest and conviction by a jury of human trafficking of a minor (Pen. Code, § 236.1, subd. (c)(1)), pandering by encouraging another person to become a prostitute (Pen. Code, § 266i, subd. (a)(2)), and attempted pimping of a minor (Pen. Code, § 664/266h, subd. (b)(1)). Shields appealed, raising a number of issues, including a due process challenge to section 236.1, subdivision (c) because it punishes an attempt to commit the crime without requiring proof the defendant specifically intended to cause a minor to engage in a commercial sex act. Held: Affirmed on this point, but section 236.1, subdivision (c)(1) conviction reversed based on instructional error. Section 236.1, subdivision (c) provides that “[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” specified Penal Code provisions is guilty of human trafficking. 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. (Pen. Code, § 236.1, subd. (f).) After analyzing the statute, the Court of Appeal concluded that the attempt prong of section 236.1, subdivision (c) deems an attempt to be a completed offense when the victim is a minor. The intent required to commit this crime is stated in the statute itself, and does not derive from the general attempt law. (See Pen. Code, § 21a.) The victim must be a minor, but the statute does not require that the defendant specifically intend or know that the victim is a minor. Eliminating the mistake of age defense for this crime furthers the Legislature’s legitimate goal of protecting children from sexual exploitation. The statute does not violate due process.

Trial court prejudicially erred when it instructed the jury with modified instructions that allowed the jury to convict defendant of the completed offense of human trafficking of a minor where there was no minor victim. Shields’ primary theory at trial was that a defendant cannot be convicted of the completed offense of human trafficking of a minor when no minor exists, and he objected to a modified jury instruction stating it did not matter whether the person was an undercover police officer. On appeal, the Court of Appeal agreed with Shields. The trial court gave the jury erroneous and conflicting guidance regarding this offense. Shields was charged with the completed offense of human trafficking under the attempt prong of the statute, and the prosecution was required to prove that the other person was under the age of 18 when the offense was committed. However, the trial court instructed the jury with modified versions of the attempt instruction (CALCRIM No. 460) and standard jury instruction for human trafficking of a minor (CALCRIM No. 1244), “which erroneously stated or implied that the jury could convict appellant of the completed offense of human trafficking of a minor if the prosecutor proved only that appellant attempted to commit that offense, and even if the prosecutor could not establish” the other person was under 18 years of age when the offense was committed. There was no dispute in this case that there was no person under 18 years of age. Where a defendant’s intended victim is an imaginary person or law enforcement officer posing as a minor, the crime is an attempt to violate of section 236.1, subdivision (c), rather than the completed offense. Because the Court of Appeal could not conclude that the jury necessarily found that Shields actually intended to traffic a minor, it could not modify his conviction by reducing it to an attempt to violate section 236.1, subdivision (c), and instead reversed the conviction.

Assuming the trial court erred by instructing the jury that mistake of age was not a defense to attempted pimping of a minor, the error was harmless. Shields also argued that the jury was erroneously instructed that mistake of age was not a defense to the charge of attempted pimping of a minor. The Court of Appeal concluded any error was harmless. Pimping in all its forms is not a specific intent crime. However, an attempt to commit a crime requires a specific intent to commit the crime. People v. Hanna (2013) 218 Cal.App.4th 455 “supports the proposition that a mistake of fact defense should be available if it would establish that the defendant lacked the specific intent required to attempt to violate a criminal statute.” Here, the court assumed for purposes of argument that a mistake of age defense could be made with respect to a charge of attempted pimping of a minor when there is no actual minor victim. But the defense would not have been available to Shields under the facts of his case. There was undisputed evidence that the officer, posing as the minor, told Shields she was 17 and he expressly acknowledged that she was 17. Thus, Shields committed the crimes believing that she was 17. [Editor’s Note: The court distinguished People v. Branch (2010) 184 Cal.App.4th 516, which affirmed the denial of the defense’s request to instruct the jury that a reasonable belief the victim was 18 was a defense to the charges of attempted pimping and attempted pandering of a minor under the age of 16, where the jury was instead instructed that the victim had to be under 16.]

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/A149037.PDF