43 Cal.App.5th 270
Cal. Ct. App.2019Background
- Defendant Donald Levan Clark communicated on Facebook with an undercover Anaheim police investigator posing as a fictional 17‑year‑old prostitute (“Jessica”), negotiated a "choose up" fee and travel/meeting plans, and provided a phone number tied to prostitution advertising; an undercover wire was sent and Clark was arrested before meeting.
- Clark was tried by jury and convicted of human trafficking of a minor (Pen. Code § 236.1(c) — prosecuted under the attempted‑act prong), attempted pimping of a minor (§§ 664/266h), and pandering (§ 266i); sentence effectively 16 years in state prison. Counts 2 and 3 stayed under § 654. Court ordered sex‑offender registration and assessed fines/fees.
- Trial court admitted defendant’s third‑party text messages, social‑media posts, select photos/videos from his phone, and expert testimony from Detective Happy Medina after redactions and § 352 balancing.
- Central legal dispute on appeal: whether the attempted‑act prong of § 236.1(c) requires an actual minor (i.e., whether factual impossibility is a defense when the “victim” is a fictional decoy), and related challenges to sufficiency of attempt evidence, admission of other‑acts evidence, expert testimony, and confrontation/due process claims.
- The Court of Appeal affirmed in full, holding the attempt prong incorporates the statutory concept of attempt (Pen. Code § 21a) so an actual minor is not required and factual impossibility is not a defense; it also upheld evidentiary rulings and found any expert testimony error harmless.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether conviction under § 236.1(c) (attempt prong) requires an actual minor | The statute punishes both "attempt" and completed acts; the attempt prong incorporates the ordinary Penal Code definition of attempt (§ 21a), so an actual minor is not required and factual impossibility is no defense | Jessica was fictitious; Shields and Moses support that an actual minor is an element and attempt prong cannot be satisfied without a real minor | Held: Attempt prong does not require an actual minor; § 21a definition applies and factual impossibility is not a defense; conviction affirmed. |
| Sufficiency of evidence for attempted pimping (overt‑act requirement) | Communications, negotiated fee, specific payment and travel instructions, arranged meeting, and linked phone number show direct but ineffectual acts beyond mere preparation | Defendant argues only preparatory steps were taken (no pick‑up, no physical meeting) | Held: Evidence was sufficient — acts went beyond mere preparation; substantial evidence supported attempt conviction. |
| Admissibility of other‑acts/social‑media evidence (Evid. Code § 1101, § 352) | Evidence of defendant’s texts/posts/photos was probative of intent, plan, knowledge and context for communications with the fictitious minor | Evidence was impermissible character/propensity proof and unduly prejudicial under § 352 | Held: Admission was within trial court’s discretion as probative of intent/plan; redactions and exclusions addressed prejudice; no abuse of discretion shown. |
| Expert opinion, confrontation, and due process claims (Medina) | Detective’s expertise and opinion testimony assisted the jury; general background testimony is admissible and did not usurp jury | Medina impermissibly opined on guilt, relied on undisclosed materials, and defendant lacked adequate means to cross‑examine | Held: Even assuming some testimony overstepped, error was harmless given overwhelming evidence and limiting instructions; confrontation/due process claims fail. |
Key Cases Cited
- People v. Shields, 23 Cal. App. 5th 1242 (Cal. Ct. App. 2018) (held attempted prong requires an actual minor; majority opinion the panel departs from)
- People v. Moses, 38 Cal. App. 5th 757 (Cal. Ct. App. 2019) (majority held Shields‑style rule; conflicting panel opinions and review granted)
- People v. Korwin, 36 Cal. App. 5th 682 (Cal. Ct. App. 2019) (construed § 288.3 attempted‑contact prong — attempt prong can be violated by communications with fictitious minor portrayed by police)
- People v. Reed, 53 Cal. App. 4th 389 (Cal. Ct. App. 1997) (factual impossibility is not a defense to attempt in child‑molestation context where victim was a decoy)
- People v. Colantuono, 7 Cal. 4th 206 (Cal. 1994) (discusses statutory definitions of attempt and intent issues relevant to interpretation)
- People v. Scally, 243 Cal. App. 4th 285 (Cal. Ct. App. 2015) (admitted third‑party text messages as probative of intent in pimping/pandering prosecution)
- People v. Garton, 4 Cal. 5th 485 (Cal. 2018) (Supreme Court on overt‑act proximity in attempted murder cases; distinguished on facts here)