People v. Moses

• Decision Date: 14 August 2019
• Docket Number: G055621
• Citation: 251 Cal.Rptr.3d 462,38 Cal.App.5th 757
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Antonio Chavez MOSES III, Defendant and Appellant.

38 Cal.App.5th 757

251 Cal.Rptr.3d 462

The PEOPLE, Plaintiff and Respondent,

v.Antonio Chavez MOSES III, Defendant and Appellant.

G055621

Court of Appeal, Fourth District, Division 3, California.

Filed August 14, 2019

OPINION

GOETHALS, J.

A jury convicted Antonio Moses, III, of human trafficking of a minor (count 1, Pen. Code, § 236.1, subd. (c)(1) [hereafter, § 236.1(c) ];¹ attempted pimping of a minor (count 2; §§ 664, subd. (a); 266h, subd. (b)(1)), and pandering (count 3, § 266i, subd. (a)). In bifurcated proceedings, the trial court found Moses previously suffered a strike conviction (§§ 667, subds. (b)-(e); 1170.12, subds. (b), (c)(1)), but dismissed four prior prison term allegations (§ 667.5, subd. (b)) for lack of evidence. The court then imposed the high term of 12 years on count 1, doubled to 24 years based on the prior strike, and stayed under section 654 the imposition of midterm sentences for counts 2 and 3.

The jury in count 1 convicted Moses based on language in section 236.1(c), which defines the crime of human trafficking to include the conduct of "a person who ... 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. In enacting section 236.1, the electorate specified that a defendant's mistaken belief that the minor was of age is not a defense to attempted human trafficking. ( § 236.1, subd. (f).) In other words, the defendant need not harbor the specific intent to traffic a minor—thus distinguishing the attempted trafficking defined in section 236.1(c) from an ordinary criminal attempt under section 21a.

Moses contends that his conviction of human trafficking in count 1 must be reversed based on the undisputed fact that the intended victim of his conduct was not actually a minor, but rather an undercover police officer. We agree. The plain terms of section 236.1(c) include as a required element that the victim must be "a person who is a minor at the time of commission of the offense." As we explain, this requirement further distinguishes attempted human trafficking as defined by section 236.1(c) from an ordinary criminal attempt defined in section 21a. Because there was no evidence here of any involvement of an actual minor victim as required by the human trafficking statute under which Moses was convicted, we reverse the judgment as to count 1 and remand the matter to the trial court for further proceedings, including resentencing on counts 2 and 3.

FACTUAL AND PROCEDURAL BACKGROUND

The relevant facts are undisputed. Detective Luis Barragan of the Santa Ana Police Department created a user profile for a fictitious 21-year-old female named "Bella B." on a social network site known as Tagged.com. The site required its users to be 18 or older. The prosecutor introduced evidence at trial aimed at proving Moses contacted Bella and other Tagged.com users to recruit them to engage in prostitution. Assuming the role of Bella, Barragan responded to Moses's initial messages by stating she was in Vallejo "chasing the paper"—a phrase used in the pimping subculture to refer to working as a prostitute.

In a series of texts that day and the next, Moses advised Bella to frequent casinos and bars since they were lucrative prostitution venues. Barragan responded that Bella was unable to do so because she was only 17 years old. Moses expressed repeated concern over the next few days that Bella was a police agent, as well as some reluctance to pimp a minor.

Moses nevertheless engaged in phone calls and texts with a female detective who assumed Bella's role. Upon hearing Bella was in Orange County, he offered to drive to her location and pick her up, even though he acknowledged, "This is a risk." Moses also expressed some reluctance related to Bella's age when he wrote, "I want to come get you bad as a mother fucker, but if I do, I'm going to have to take you to my momma[']s house until your birthday." Several days later, when Barragan told Moses that Bella had returned to Orange County, he arranged to meet her at a restaurant, where the detective who was role-playing Bella said she would wait in a bathroom to evade her current pimp.

Moses arrived at the restaurant in a Mercedes to await Bella's exit from the bathroom but, before their meeting could occur, he apparently spotted vice officers from the Anaheim Police Department who were staking out the scene. He texted Bella, "I see you not real. That's fucked up." When he drove out of the parking lot, officers conducted a traffic stop a short distance away and arrested him.

At trial, the court modified the jury instructions in a manner that Moses argues diminished the importance of, and lowered the prosecution's burden of proof on an essential element of count 1, namely, the fact that the victim of human trafficking as defined in section 236.1(c) must be an actual minor.² The jury concluded Moses intended to traffic Bella and convicted him of that offense (count 1). He was also convicted of attempted pimping (count 2) and pandering (count 3). He now appeals.

DISCUSSION

Moses contends his conviction on count 1 for human trafficking under section 236.1(c) must be reversed because a mandatory element of that offense is factually absent. Namely, the involvement of a minor victim. We agree.

The statute under which Moses was convicted provides, "A person who causes, induces, or persuades, or attempts to cause, induce, or persuade, a person who is a minor at the time of the commission of the offense to engage in a commercial sex act, with the intent to effect or maintain a violation of Section 266, 266h, 266i, 266j, 267, 311.1, 311.2, 311.3, 311.4, 311.5, 311.6, or 518 is guilty of human trafficking."³ (Italics added.)

Subdivisions (a) and (b) of section 236.1 define alternative types of human trafficking that do not require the victim to be a minor. Section 236.1, subdivision (a), defines human trafficking generally to consist of "depriv[ing] or violat[ing] the personal liberty of another with the intent to obtain forced labor or services." Subdivision (b) applies whenever the perpetrator "deprives or violates the personal liberty of" the victim with the intent to "effect or maintain" a violation of the same prostitution, pandering, and similar statutes as in subdivision (c). (See § 236.1, subd. (b).)

As explained in People v. Shields (2018) 23 Cal.App.5th 1242, 233 Cal.Rptr.3d 701 ( Shields ),⁴ the language in section 236.1(c), which requires a "person who is a minor at the time of the commission of the offense," constitutes an essential element of a subdivision (c) violation. As Shields said, quoting CALCRIM No. 1244, "the third element of human trafficking of a minor ... requires that when the offense was committed ‘the other person was under 18 years of age.’ " ( Shields , at pp. 1255-1256, 233 Cal.Rptr.3d 701.)

We find the Shields analysis persuasive concerning the distinction between a traditional "attempt" crime and the discrete crime described in section 236.1(c). Shields recognized that the general proscription against "attempt" crimes that has long been codified in section 21a and punished in section 664 consists of only two elements. Those elements are: " ‘specific intent to commit the crime, and a direct but ineffectual act done toward its commission.’ " ( Shields , supra , 23 Cal.App.5th at p. 1250, 233 Cal.Rptr.3d 701.) An attempt under section 21a does not require a minor victim because, unlike section 236.1(c), section 21a does not require that "a person who is a minor at the time" be the victim of the crime. As Shields observed, "the elements of an attempt to commit a crime are materially different from the elements of human trafficking of a minor under the attempt prong of section 236.1(c), which explicitly requires that the victim must be under the age of 18 when the crime is committed." ( Shields , at p. 1257, 233 Cal.Rptr.3d 701.)

An attempt under section 21a is nevertheless a punishable offense. As discussed in Shields , " ‘[a]n attempt to commit a crime is itself a crime and subject to punishment that bears some relation to the completed offense.’ " ( Shields, supra , 23 Cal.App.5th at p. 1250, 233 Cal.Rptr.3d 701.) That punishment is usually half the prescribed term for the actual offense. (§ 664, subd. (a).) Shields explained "[t]he fact that a criminal defendant's intended victim is an imaginary person or a law enforcement officer posing as a minor does not mean th[e] defendant committed no crime ... [b]ut the crime is an attempt" under section 21a. ( Shields , at p. 1256, 233 Cal.Rptr.3d 701.) As Shields explained, "This outcome is consistent with the broader principle that factual impossibility is not a defense to a charge of attempt" under section 21a. ( Shields , at p. 1256, 233 Cal.Rptr.3d 701.)

Shields recognized that subdivision (f) of section 236.1 eliminates a perpetrator's asserted mistake of fact about a minor's age as a defense to human trafficking charges.⁵ Under subdivision (f), it is no defense that a defendant may have believed a victim was 18 or older and therefore did not actually intend to traffic a minor; even absent such intent, the conduct constitutes a violation of section 236.1(c). But, as Shields observed, while subdivision (f) eliminates a defense, it did not eliminate subdivision (c)'s specific requirement that the victim be " ‘a person who is a minor.’ " ( Shields, supra , 23 Cal.App.5th at p. 1250, 233 Cal.Rptr.3d 701.)

This distinction marks a key difference between sections 21a and 236.1(c). "If there is an actual minor victim who[m] the statute [i.e., § 236.1(c) ] is expressly designed to protect, a mistake about the victim's age is not a defense to the completed crime .... If, however, there is no actual victim and therefore it is factually impossible to complete the crime, the defendant can nevertheless be guilty of an attempt [under § 21a ] to human traffic a minor, but only if he or she actually intended to ... traffic a...