Did the Court of Appeal err in reversing defendant’s conviction for human trafficking of a minor (Pen. Code, § 236.1, subd. (c)(1)) on the ground that defendant was communicating with an adult police officer posing as a minor rather than an actual minor?
Opinion By: Justice Corrigan (unanimous decision)
A defendant may be convicted of human trafficking of a minor under the attempt prong of the statute (Pen. Code, § 236.1, subd. (c)), rather than the general law of attempt (Pen. Code, §§ 21a, 664), even if the target of his recruitment efforts is an undercover detective. Moses unwittingly targeted a police decoy over the Internet and tried to recruit her to work as a prostitute. He was told she was 17 years old. Based on his conduct with a fictitious minor, Moses was convicted of human trafficking and other offenses. The Court of Appeal reversed the conviction for human trafficking (Pen. Code, § 236.1, subd. (c)) and concluded Moses could only be convicted under the general law of attempt. The California Supreme Court ordered review on its own motion. Held: Reversed and remanded. “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.” (Pen. Code, § 21a.) Factual impossibility is not a defense to the crime of attempt. Generally, the punishment for an attempted crime is one half the term imposed for the completed offense. (Pen. Code, § 664, subds. (a) & (b).) Section 236.1, subdivision (c) “is violated in two circumstances: when a person, acting with the requisite intent, (1) induces a minor to engage in a commercial sex act; or (2) attempts to induce a minor to engage in such an act.” An attempt to commit trafficking of a minor is part of the definition of the substantive offense and the punishment is the same as the completed crime. After analyzing the relevant statutes, case law, and ballot materials, the court concluded a defendant who attempts to induce a police decoy posing as a minor to commit a commercial sex act can be convicted of human trafficking under the attempt prong of section 236.1, subdivision (c). In order to violate section 236.1, subdivision (c) based on an attempt, the defendant must intend to induce a minor to engage in a commercial sex act (at least when no actual minor victim is involved). But the target of that inducement need not be an actual minor. [Editor’s Notes: (1) The court did not decide whether a mistake of fact as to the victim’s age would be a defense when the defendant attempts, but fails, to induce an actual minor to engage in a commercial sex act. (2) The court disapproved People v. Shields (2018) 23 Cal.App.5th 1242 to the extent it is inconsistent with the opinion in this case.]
Remand is required so the Court of Appeal may determine whether the trial court erred in failing to instruct the jury on the intent required for attempted human trafficking. “In the Court of Appeal, Moses argued that the instructions did not require the jury to find that he specifically intended to traffic a minor. Because the court reversed for lack of sufficient evidence of an actual minor victim, it did not reach this claim.” The Court of Appeal had noted that the instructions provided by the trial court as to the human trafficking count did not require the jury to determine whether Moses specifically intended to target a minor. The Court of Appeal also did not address several of the People’s counterarguments to Moses’s challenge to the jury instructions. The Supreme Court remanded the case to the Court of Appeal to address Moses’s instructional challenge in the first instance. [Editor’s Note: On remand, the Court of Appeal concluded the instructions did not require the jury to find that Moses specifically intended to traffic a minor, which was a critical element of the human trafficking offense. The court found the error was not harmless beyond a reasonable doubt, reversed the judgment, and remanded the case for a new trial. (People v. Moses (2021) 65 Cal.App.5th 14.)] This case was decided on December 28, 2020.