36 Cal.App.5th 682
Cal. Ct. App.2019Background
- Over ~5 months Korwin exchanged sexually explicit messages with an undercover law‑enforcement agent posing as a 13–14 year‑old girl after responding to his online ad seeking a younger female.
- Messages included detailed sexual discussion, requests for age‑regressed photos, instructions on masturbation/oral sex, and planning to meet for photos and sexual contact.
- Korwin arranged an in‑person meeting at a restaurant; when he arrived police arrested him and seized phones, cameras, condoms, female underwear, and an age‑regressed photo on one phone.
- A jury convicted Korwin of (1) attempted lewd act on a child (§ 288(c)(1)), (2) contacting a minor with knowledge/intent to commit a sexual offense (§ 288.3(a)), and (3) meeting with a minor for lewd purposes (§ 288.4(b)); sentence imposed on count 3 and other terms stayed under § 654.
- On appeal Korwin challenged only the § 288.3(a) conviction, arguing insufficient evidence because the person he contacted was not actually a minor (undercover agent).
- The Court of Appeal affirmed, holding § 288.3(a) penalizes attempts to contact a minor when the defendant knows or reasonably should know the person is a minor, and does not require an actual minor victim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 288.3(a) requires an actual minor victim or may be violated when defendant believes person is a minor (undercover agent) | People: Statute criminalizes contacting/attempting to contact a person who the defendant knows or reasonably should know is a minor; conviction valid where defendant had reason to know the person was a minor even if undercover | Korwin: The statute's knowledge element requires the person actually be a minor; a mere erroneous belief cannot substitute for that requirement | The court held § 288.3(a) encompasses attempts to contact a minor when the defendant knows or reasonably should know the person is a minor; actual minor not required for conviction in undercover stings |
Key Cases Cited
- People v. Rojas, 55 Cal.2d 252 (distinguishable; statute there required actual condition of property for conviction but attempt liability still recognized)
- People v. Shields, 23 Cal.App.5th 1242 (discussed human‑trafficking statute lacking state‑of‑mind element and limits of attempt in that context)
- People v. Brooks, 3 Cal.5th 1 (standards for reviewing sufficiency of the evidence)
- Hatch v. Superior Court, 80 Cal.App.4th 170 (lack of actual minor is not a defense to attempt to commit sex offense against a minor)
- People v. Reed, 53 Cal.App.4th 389 (defendant guilty of attempted lewd conduct where intended child victims were imaginary; factual impossibility not a defense)