Friday, August 16, 2019
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Court of Appeal:
Statute Aimed at Thwarting Sexual Exploitation Results in Reversal
Law Created by Ballot Measure Bars Conviction of Man for Human Trafficking Where 17-Year-Old Girl He Tried to Enlist as Prostitute Was Fictional Person Created by Police, Majority Declares
By a MetNews Staff Writer
Wording in Proposition 35, the Californians Against Sexual Exploitation Act, enacted by voters on Nov. 6, 2012 as a crack-down measure, has resulted in the reversal of a man’s conviction for human trafficking of a minor, under a 2-1 decision of the Fourth District Court of Appeal’s Div. Three.
Defendant Antonio Moses III—who thought he was recruiting a 17-year-old as a prostitute—can’t be convicted of violating Penal Code §236.1, the majority held, because that statute requires a victim who was a minor—and the police decoys with whom the defendant was dealing, a male officer who corresponded by email and a female officer who spoke to him on the phone, were adults. The officers posed as “Bella,” who was fictional.
Justice Thomas M. Goethals wrote for the majority, joined by Justice Richard D. Fybel. Acting Presiding Justice Richard M. Aronson concurred and dissented.
Reversal Explained
Goethals said, in an opinion filed Wednesday:
“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….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.’ ”
Different Wording Suggested
The jurist counseled:
“The use of police decoys in cases like this is neither new nor novel. If the electorate had intended such cases to fall within section 236.1(c), instead of section 21a, it would have been a simple matter to say so. For example, changing the third element of section 236.1(c) from ‘a person who is a minor’ to ‘a person who is a minor or is reasonably believed to be a minor” would have indicated such a purpose. It is generally the responsibility of elected bodies rather than the courts to rewrite the law.”
Moses could have been charged, Goethals suggested, under the general attempt statute, §21a.
The majority’s opinion does not affect the defendant’s conviction on other counts.
Aaronson’s Dissent
In his opinion concurring in the affirmance of the conviction on other counts but dissenting as to the reversal of the conviction on count 1, Aaronson asserted:
“Because factual impossibility is not a defense to an attempt offense, a defendant may violate section 236.1, subdivision (c), even if there is no minor victim.”
Goethals agreed with Aaronson that, as a general proposition, factual impossibility is not a defense in an attempt case but sided with the First District Court of Appeal in holding last year in People v. Shields that the rule does not apply to prosecutions under §236.1(c) because one of the elements is the existence of a victim under the age of 18.
Aaronson noted that stated purposes of Proposition 35 were to “combat the crime of human trafficking and ensure just and effective punishment of people who promote or engage in the crime of human trafficking” and “strengthen laws regarding sexual exploitation, including sex offender registration requirements, to allow law enforcement to track and prevent online sex offenses and human trafficking.”
He asserted that the majority’s interpretation is “inconsistent with…the stated purposes” of the ballot measure and conflicts with “how the California Supreme Court and appellate courts have interpreted similar criminal statutes punishing completed attempts.”
The dissenting justice faulted the majority’s approach of prosecuting a person who attempts to lure a minor into prostitution where no actual minor exists under §21a because the penalty for an attempt is, under §664, generally one-half of that for a completed offense. Under §236.1(c), he noted, where a person “attempts” to “cause, induce, or persuade” a minor “to engage in a commercial sex act” there is a completed offense.
Aaronson commented:
“Punishing a defendant who uses the Internet to attempt to lure a person he believes is a minor to engage in a commercial sex act for an illicit purpose in the same manner as a defendant who lures an actual minor would protect actual minors because it would deter criminals who expressly target minors. Under the majority’s construction, however, police preventative measures to ferret out online human traffickers such as the sting operation conducted here would come at the cost of either securing a conviction for a lesser crime (attempt to attempt human trafficking) or putting an actual child in harm’s way (by using an actual minor as the decoy).”
The case is People v. Moses, 2019 S.O.S. 4009.
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