People v. Moses

Decision Date02 June 2021
Docket NumberG055621
Citation65 Cal.App.5th 14,279 Cal.Rptr.3d 475
CourtCalifornia Court of Appeals Court of Appeals
Parties The PEOPLE, Plaintiff and Respondent, v. Antonio Chavez MOSES III, Defendant and Appellant.

Mark Alan Hart, Northridge, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve T. Oetting, Deputy Attorney General, for Plaintiff and Respondent.

OPINION

GOETHALS, J.

Antonio Moses, III, was convicted by a jury of violating Penal Code sections 236.1, subdivision (c)(1) (count 1, human trafficking of a minor); 664, subdivision (a), 266h, subdivision (b)(1) (count 2, attempted pimping of a minor); and 266i, subdivision (a) (count 3, pandering).1 The district attorney sought review of our decision, which the Supreme Court granted. ( People v. Moses (2019) 38 Cal.App.5th 757, review granted Nov. 26, 2019, S258143.)

The case now returns to us on remand from the Supreme Court. In People v. Moses (2020) 10 Cal.5th 893, 272 Cal.Rptr.3d 862, 477 P.3d 579 ( Moses ), the high court reversed our ruling as to count 1. In its decision, the Supreme Court interpreted the statutory proscription against human trafficking of a minor codified in section 236.1, subdivisions (c) and (f). Subdivision (c) proscribes both completed and attempted sex trafficking of a victim "who is a minor at the time of commission of the offense." Subdivision (f) also provides that "[m]istake 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 to a criminal prosecution under this section."

The Supreme Court determined that this mistake of fact language is inapplicable to prosecutions for attempted human trafficking under section 236.1(c)"at least where" the supposed minor victim is an adult police decoy. ( Moses, supra , 10 Cal.5th at p. 912, 272 Cal.Rptr.3d 862, 477 P.3d 579 ; see id. at p. 909, fn. 10, 272 Cal.Rptr.3d 862, 477 P.3d 579 [declining to address whether subdivision (f)'s preclusive language regarding mistake of age is similarly inoperative when a defendant's attempted sex trafficking victim "who is a minor at the time of the commission of the offense" (subds. (c) & (f)) is "an actual minor "].)

Accordingly, pursuant to the Supreme Court's ruling, in this case mistake of fact as to the age of the alleged victim remains a potential defense under the attempt prong because here count 1 involved an adult decoy, not an actual minor. Under these circumstances, Moses must have specifically intended to target for commercial sex acts a person he thought was a minor. During a retrial, the prosecution must establish this element of the offense beyond a reasonable doubt. ( Moses, supra , 10 Cal.5th at pp. 912-913, 272 Cal.Rptr.3d 862, 477 P.3d 579.) The jury here was instructed to the contrary when the trial court included in its instructions the language of subdivision (f), which states mistake of fact as to age "is not a defense to this crime." The use of such an instruction here constituted error.

Our review confirms Moses's contention that the jury was never instructed that to commit the offense of attempted human trafficking he had to know or believe that his alleged victim, "Bella," was underage. The court's instructions on counts 2 and 3, related to pandering and pimping, similarly did not require knowledge or belief that the victim was a minor.

In view of the foregoing, Moses correctly argues that "the instructions did not require the jury to find that he specifically intended to traffic a minor." ( Moses, supra , 10 Cal.5th at p. 913, 272 Cal.Rptr.3d 862, 477 P.3d 579.) It is our task on remand to address the effect of this omission. In doing so, we consider, pursuant to the direction of the Supreme Court, whether: "(1) Moses forfeited his challenge to the [count 1] instruction by failing to object below; (2) the instructions, viewed as a whole and in light of the trial record, were not reasonably likely to mislead the jury about the required specific intent; and (3) any error was harmless beyond a reasonable doubt given the evidence and the jury's other findings." ( Ibid. )

The record demonstrates the trial court's failure to instruct the jury on a critical element of the human trafficking offense—intent to target a minor.

Omitting an element of the offense is scrutinized under the strictest standard (see Moses, supra , 10 Cal.5th at p. 913, 272 Cal.Rptr.3d 862, 477 P.3d 579 ). We find the error here was not harmless beyond a reasonable doubt; we therefore reverse the judgment and remand the case for a new trial with proper instructions.

FACTUAL AND PROCEDURAL BACKGROUND

We set out the facts briefly below, with additional detail provided as relevant in the discussion that follows.

Detective Luis Barragan of the Santa Ana Police Department created a user profile for a fictitious 21-year-old female named "Bella B." (Bella) 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 eventually 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. Bella had told Moses that she wanted to escape from the man because he was beating her.

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 who were staking out the scene. He texted Bella, "I see you not real. That's fucked up." He texted Bella, "I [k]new better" and "Ur the police." When he drove out of the parking lot, officers conducted a traffic stop and arrested him.

As noted at the outset, the jury convicted Moses in count 1 of human trafficking of a minor ( § 236.1(c)(1) ), in count 2 of attempted pimping of a minor ( §§ 664, subd. (a), 266h, subd. (b)(1) ), and in count 3 of pandering ( § 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.

DISCUSSION
I. Preliminary Issue: No Forfeiture

As indicated in our introduction, the instruction the trial court gave the jury on "Human Trafficking of a Minor" was flawed. We note, however, that a change the trial court made to the standard CALCRIM instruction regarding the offense correctly anticipated the Supreme Court's holding in Moses. The trial court modified CALCRIM No. 1244 to delete an enumerated element requiring that when the defendant attempted to commit the trafficking offense: "3.... the other person [i.e., the victim] was under 18 years of age." ( CALCRIM No. 1244.)

At trial Moses objected to the modification, arguing that the separate element was not "an oversight by [the] Judicial Council" in crafting the instruction, but rather was "there for a reason." Defense counsel argued, "We do not take elements away. We do not let a jury go back to the jury room with [fewer] requirements for proving up a charge."

The trial court explained that it had "merged" the age requirement with the attempt language of the instruction so that the instruction read as follows: "The defendant attempted to cause, induce or persuade a person who is a minor to engage in a commercial sex act." Defense counsel was correct that this amounted to deleting what had been a separate element requiring an actual minor as a victim of the offense, as the Judicial Council had concluded. The Court of Appeal in People v. Shields (2018) 23 Cal.App.5th 1242, 233 Cal.Rptr.3d 701 reached the same conclusion as the Judicial Council, as did a majority of this panel. The Supreme Court disagreed when it disapproved Shields and reversed our decision. ( Moses, supra , 10 Cal.5th at p. 913, fn. 13, & p. 914, 272 Cal.Rptr.3d 862, 477 P.3d 579.)

On remand the initial question before us is whether Moses forfeited his instructional challenge. We find no forfeiture for several reasons. First, Moses has consistently argued the trial court's human trafficking instruction diminished any "requirement that the crime be directed at a minor." (Bold typeface omitted.) Defense counsel objected at trial that the court's modified instruction "lessens the burden for the prosecution" by "allowing the prosecution to gloss over that component," i.e., the victim's minority, "and the jury to do the same." Counsel's comments...

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2 cases
  • People v. Johnson
    • United States
    • California Court of Appeals Court of Appeals
    • December 29, 2022
    ...the defense renders the defendant's mental state regarding the victim's minority or majority immaterial." (People v. Moses (2021) 65 Cal.App.5th 14, 22.) 79 Williams advances no reason why this analysis would not apply equally to an aider and abettor as to a direct perpetrator. As did the C......
  • People v. Towner
    • United States
    • California Court of Appeals Court of Appeals
    • February 16, 2023
    ...that omitted an essential element of the charged offense. (People v. Hillhouse (2002) 27 Cal.4th 469, 503; People v. Moses (2021) 65 Cal.App.5th 14, 22.) As relevant here, section 236.1, subdivision (c) prohibits attempts to cause, induce or persuade a minor to engage in a commercial sex ac......
2 books & journal articles
  • Submission to jury and deliberations
    • United States
    • James Publishing Practical Law Books California Objections
    • March 29, 2023
    ...1469. An instruction that misstates the elements of an offense affects the substantial rights of the defendant. People v. Moses (2021) 65 Cal. App. 5th 14, 22, 279 Cal. Rptr. 3d 475. A defendant’s substantial rights are affected if an instruction results in a miscarriage of justice, making ......
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    • United States
    • James Publishing Practical Law Books California Objections
    • March 29, 2023
    ...21 Cal. Rptr. 3d 682, §8:10 Morrison, People v. (2011) 199 Cal. App. 4th 158, 131 Cal. Rptr. 3d 26, §7:150 Moses, People v. (2021) 65 Cal. App. 5th 14, 279 Cal. Rptr. 3d 475, §22:10 Mosesian v. Pennwalt Corp. (1987) 191 Cal. App. 3d 851, 236 Cal. Rptr. 778, §17:40 Mosher, People v. (1969) 1......

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