38 Cal.App.5th 757
Cal. Ct. App.2019Background
- Defendant Antonio Moses exchanged messages and arranged to meet “Bella,” an online persona he believed was a 17‑year‑old, to recruit her for prostitution; Bella was an undercover adult detective.
- Moses was arrested before meeting Bella and was convicted by a jury of human trafficking of a minor (Pen. Code § 236.1(c)), attempted pimping (§§ 664/266h(b)(1)), and pandering (§ 266i(a)).
- The trial court found a prior strike and imposed the high term on the § 236.1(c) count (doubled for the strike); sentences on other counts were stayed under § 654.
- Section 236.1(c) makes it a crime to "cause, induce, or persuade, or attempt to cause, induce, or persuade, a person who is a minor at the time of the commission of the offense" to engage in commercial sex; subdivision (f) eliminates mistake‑of‑age as a defense when the victim is actually a minor.
- The key legal question: whether § 236.1(c)’s attempt language requires an actual minor victim (so undercover‑decoy cases fall outside § 236.1(c) and are punishable only as an attempt under § 21a/§ 664) or whether § 236.1(c) itself criminalizes attempts even when no actual minor exists.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 236.1(c) requires an actual minor victim for conviction under its attempt prong | § 236.1(c)’s plain language requires the victim be “a person who is a minor”; attempt under § 236.1(c) therefore requires an actual minor and does not incorporate § 21a | Convicting under § 236.1(c) is proper because the statute punishes attempts in‑text; factual impossibility (decoy) is no defense and § 21a principles apply | Reversed conviction under § 236.1(c); the court holds § 236.1(c) expressly requires an actual minor and cannot be read to incorporate § 21a so as to permit conviction when no minor was involved |
| Whether the § 236.1(c) conviction may be reduced to an attempt under § 21a as a lesser included offense | N/A (People sought to sustain conviction) | Even if § 236.1(c) cannot be sustained, the conviction cannot be reduced because the jury instructions did not require a finding that defendant specifically intended to traffic a minor as § 21a would | Remand for further proceedings and resentencing on remaining counts; conviction on § 236.1(c) reversed and not reduced to a § 21a attempt because jury was not instructed on that specific intent |
Key Cases Cited
- People v. Shields, 23 Cal.App.5th 1242 (Cal. Ct. App. 2018) (§ 236.1(c) requires an actual minor; attempt prong does not incorporate § 21a)
- People v. Colantuono, 7 Cal.4th 206 (Cal. 1994) (meaning of “attempt” depends on statutory context)
- People v. Bailey, 54 Cal.4th 740 (Cal. 2012) (courts apply § 21a attempt principles when statutes use attempt language)
- People v. Korwin, 36 Cal.App.5th 682 (Cal. Ct. App. 2019) (statute punishing contact or attempt to contact a minor incorporates attempt principles and decoy defense rejected)
- People v. Gallegos, 39 Cal.App.3d 512 (Cal. Ct. App. 1974) (rejecting concept of an "attempt to attempt" and applying attempt doctrine to statutes that proscribe attempts)