Much to the chagrin of criminal defense attorneys in California, the California Supreme Court has resolved a lingering ambiguity in human trafficking law that historically has allowed plea bargaining around prison time.
Gone is the defense that the police decoy was not truly a minor although defendant believed she was because she said she was.
In People v. Shields (2018) 23 Cal.App.5th 1242, for example, Penal Code § 236.1(c)’s attempt “to cause, induce or persuade a person who is a minor” cannot be violated by defendant interacting with a person who is not a minor, i.e., a police decoy. Shields, p. 257. This law, however, was reversed in the following case.
In a Nutshell: To be convicted of human trafficking of a minor (Penal Code § 236.1(c)), the target human must be a minor (not a police decoy over age 18). However, defendant could be convicted of attempted human trafficking of a minor when a police decoy involved who was over 18.
Penal Code § 236.1(c) prohibits the human trafficking of a minor. Section 236.1(c) criminalizes both actual trafficking and the attempt to traffic a minor. Our office has handled several human trafficking cases, which were more about prostitution within California, but pled as human trafficking.
The following case summary concerns an Orange County Superior Court case from 2016 that went up on appeal to the Fourth Appellate District court and then up to the California Supreme Court.
As part of an undercover investigation to identify potential pimps, Detective Luis Barragan of the Santa Ana Police Department created a fictitious user profile for “Bella B.” on a social network site used by pimps to recruit women and children for prostitution. He identified Bella B. as 21 years old and from Santa Ana and attached a photograph he found on the Internet.
On April 16, 2016, Bella received a message from Antonio Chavez Moses, III, “FM Da Prince,” saying “Good morning, Gorgeous.” Moses’s profile included a picture of Moses and a meme composed of $100 bills with the words, “Everybody wants love. I just want money and someone to get it with.”
Moses asked Bella where she was and Detective Barragan responded, “In Vallejo, chasing the paper,” a phrase used by prostitutes to mean she was engaging in sex for money.
Moses replied, “You need to find your way to Daddy, your prince. I will make your life a whole lot easier, bet that.” In phrases used by prostitutes, a Daddy means a pimp.
California Supreme Court San Francisco
Bella then complained that business was slow and Moses responded, “Just get here, Boo. We can take it from here” and told her he could make her rich. Moses responded he would “step up her game to at least $1,000 a night.” He then said she would go to bars and casinos to work.
Bella responded that she could not do that because she was only 17.
Moses responded, “Damm. You not the police? This Internet shit got niggas knocked off. I’m not trying to go out like a sucka. When’s your birthday?” Bella then told him a date that made her 17.
Moses then said he could not work with her, but Bella persisted on him, asking him for his help. They finally agreed to meet at a McDonald’s restaurant in Anaheim and Moses was arrested.
The prosecution theory was that Moses was in the early recruitment phase of the relationship. A jury in Orange County convicted Moses of human trafficking of a minor, attempted pimping of a minor, and pandering. The court separately found that Moses had suffered a prior strike conviction for manslaughter with the personal use of a firearm, and imposed a sentence of 24 years in state prison.
The Fourth Appellate District reversed Moses’ human trafficking conviction, holding that he could not be convicted under that provision, but only under the general law of attempt. People v. Moses (2019) 38 Cal.App.5th 757, 764, 766-767. The reason was because the decoy was not a minor.
The California Supreme Court then ordered review on its own motion following an invitation from the Orange County District Attorney’s office to do so. Subsequently, another panel of the same Court of Appeal upheld a human trafficking conviction based on that defendant’s conduct toward a fictitious minor, creating a conflict in the appellate courts on that issue. People v. Clark (2019) 43 Cal.App.5th 270, 274.
The California Supreme Court first reminded the reader that the general law regarding attempt, at Penal Code § 21(a) state, “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 the commission.” Penal Code § 664, which sets forth the punishment for an attempt.
The Supreme Court then reversed the Fourth Appellate District, upholding the original conviction by citing to People v. Korwin (2019) 36 Cal.App.5th 682, wherein the Court of Appeal rejected defendant’s argument that 288.3 required an actual minor victim. Korwin urged, as did Moses here, that at most he could be convicted under Penal Code § 21(a) and 664, but not the sex offense. The Korwin court held that the lack of an actual minor is not a defense to an attempt to commit a sex offense against a minor.” Id. at 689.
We present this summary as a cautionary tale to erase what is a common misunderstanding of a valid defense. The actual age of the decoy is not a defense to a charge of attempted human trafficking of a minor.
The citation for the California Supreme Court ruling discussed above is People v. Antonio Chavez Moses (2020) 10 Cal. 5th 893, 272 Cal. Rptr. 3d 862, 477 P. 3d 579.
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