IN THE SUPREME COURT OF CALIFORNIA
S258143
Fourth Appellate District, Division Three, G055621, Orange County Superior Court, 16NF1413
December 28, 2020
THE PEOPLE,
Plaintiff and Respondent,
v.
ANTONIO CHAVEZ MOSES III,
Defendant and Appellant.
S258143
Fourth Appellate District, Division Three
G055621
Orange County Superior Court
16NF1413
December 28, 2020
Justice Corrigan authored the opinion of the Court, in which
PEOPLE v. MOSES
S258143
Opinion of the Court by Corrigan, J.
PEOPLE v. MOSES
Opinion of the Court by Corrigan, J.
S258143
Opinion of the Court by Corrigan, J.
Penal Code section 236.1, subdivision (c)1 prohibits the human trafficking of a minor. It includes an attempt to commit trafficking as part of the definition of the substantive offense. Here we consider the attempt
I. BACKGROUND
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
All further undesignated statutory references are to the Penal Code.
for prostitution. He identified Bella as a 21-year-old female from Santa Ana and attached a photo he took from the Internet.
On April 16, 2016, Bella received a message from “FM Da Prince,” saying “Good morning, Gorgeous.” “Prince’s” profile contained a picture of Moses and a meme composed of a photo of one hundred dollar bills with the words, “Everybody wants love. I just want money and someone to get it with.”
Moses asked Bella where she was posting from. Barragan responded as Bella, saying she was 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 Barragan’s experience, the word “daddy” referred to a pimp. After Bella complained that business was slow, Moses responded, “Just get here, Boo. We can take it from there. Come as is. I’m a real one, not hard up for cash. I need loyalty, trust, and understanding [followed by a dollar sign emoji]. Going to come. I got enough game in this brain to make us all rich.” Barragan considered this text to mark the beginning of a relationship between pimp and prostitute. Moses also wrote, “I’m not a gorilla [a pimp who is violent toward his prostitutes], nor am I what they call a pimp nowadays. I’m a true gentlemen [sic], baby, best believe and known all over the universe, real international.”
Moses gave his phone number and urged Bella to call. He also sent her a text inviting her to “fuck with me,” meaning to work for him, and to “come today.” Bella responded that she would be in Southern California the following Monday and was “looking for a new start with someone who’s smart.” Moses
replied that she should “get to Daddy,” and he would “step [her] game up” to “at least $1,000 a night.”
On April 27, Moses called Detective Sonia Rojo, who was posing as Bella. He again asked when her birthday was, and Rojo responded, “in November.” Moses suggested that Bella come work for him after she turned 18, and said he was “scared
as shit” because he knew a “homie in jail right now fighting life for that shit.” Rojo responded that she needed someone to be there for her. Moses replied, “Yeah but I’m saying Bella, you got 7 months before you grown. Why don’t we just wait like that?” Moses asked Bella to send him some pictures and commented that he might come to get her.
Moses and Rojo exchanged 13 text messages over the next week, and Moses again asked her to come to Los Angeles.
Moses and Rojo spoke on May 5th. Moses mentioned coming to get Bella, but complained that the traffic was bad and suggested she come to Los Angeles by train. He asked again when Bella’s birthday was, and Rojo responded that it was in November. Moses commented, “Yup. I’m just making sure you ain’t telling me no lies, bitch. This is a risk.” He mused that Bella might be working with the “po-po.” Moses urged Bella to stay with her pimp until her birthday, but Rojo responded she was “done” with him. Moses said, “Yeah but baby I don’t wanna [sic] do the minor thing. That shit scares the fuck out of me,” referencing his “homeboy” who had been “knocked at for the same shit.” He commented, “I want to come get you bad as a mother
On May 10, Moses and Rojo spoke on the phone. Rojo told him that she was in Orange County and asked if Moses would pick her up. They agreed to meet at a McDonald’s restaurant in Anaheim. When he drove into the parking lot, vice officers were waiting, and Moses spotted them. He texted Bella, “I see you
not real. That’s fucked up,” and “You’re the police, LMAO [laughing my ass off].” Moses drove away but was detained nearby with a cell phone in his car. When Rojo sent a text to the number she had been using for Moses, the phone vibrated. Detective Barragan then called the phone number Moses had given Bella during their text exchanges and the seized phone displayed Barragan’s phone number.
At trial, the prosecution introduced evidence of text messages Moses had sent to other users on the networking site. In these messages, Moses identified himself as a pimp and advertised his services, claiming an ability to increase earnings. He sought to recruit others to his “team,” which he claimed numbered five women.
The defense presented an expert on human trafficking. He reviewed the exchanges between Moses and Bella and saw no evidence that Moses was trying to target a minor. He opined that Moses’s interactions with Bella did not rise to the level of human trafficking. Moses did not ask Bella for sex or money, and did not attempt to manipulate, isolate, or control her. He acknowledged, however, that Moses was in the very early recruitment phase of the relationship.
A jury convicted Moses of human trafficking of a minor, attempted pimping of a minor, and pandering.2 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 prison.3
The Court of Appeal reversed Moses’s human trafficking conviction. The majority held 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 (Moses).) We ordered review on our own
II. DISCUSSION
The general law governing attempt is found in
added to codify the well-established definition of attempt. (Stats. 1986, ch. 519, § 1, p. 1859; People v. Williams (2001) 26 Cal.4th 779, 789 (Williams)).
As we noted in People v. Dillon (1983) 34 Cal.3d 441, 453 (Dillon): “ ‘One of the purposes of the criminal law is to protect society from those who intend to injure it. When it is established that the defendant intended to commit a specific crime and that in carrying out this intention he committed an act that caused harm or sufficient danger of harm, it is immaterial that for some collateral reason he could not complete the intended crime.’ [Citation.] Accordingly, the requisite overt act ‘need not be the last proximate or ultimate step towards commission of the substantive crime . . . . [¶] Applying criminal culpability to acts directly moving toward commission of crime . . . is an obvious safeguard to society because it makes it unnecessary for police to wait before intervening until the actor has done the substantive evil sought to be prevented. It allows such criminal conduct to be stopped or intercepted when it becomes clear what the actor’s intention is and when the acts done show that the perpetrator is actually putting his plan into action.’ [Citations.]”
Liability for an attempt does not require that any element of the underlying offense actually be accomplished. (People v. Chandler (2014) 60 Cal.4th 508, 517 (Chandler).) “[A] person may be convicted of an attempt to commit a crime he never could have completed under the circumstances.” (Ibid; accord, People v. Peppars (1983) 140 Cal.App.3d 677, 688.)
For example, a person who intends to kill and shoots at the victim can be guilty of attempted murder, even if it is later discovered that the gun contained only blank rounds. The shooter’s effort to kill, coupled with the requisite intent, completes the crime of attempted murder, even if the means employed turn out to be ineffectual. A thief who intends to steal a valuable vase from a museum and takes the vase from a display can be convicted of attempted grand theft, even if the museum had placed an inexpensive duplicate in the showcase. The thief’s act of taking the object, with the intent to steal the more valuable original, completes the crime of attempted grand theft, even if the aim is unachieved because the copy had been substituted. (See Chandler, supra, 60 Cal.4th at p. 517; id. at p. 528 (conc. & dis. opn. of Corrigan, J.) [citing examples]; People v. Hickman (1939) 31 Cal.App.2d 4, 12; see generally 1 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Elements, §§ 65–70, pp. 356–363.)
In Reed, supra, 53 Cal.App.4th 389, the defendant was convicted of attempted molestation of a child under the age of fourteen. (
....” (Id. at p. 396.) The nonexistence of an essential object, such as a defined victim, is not a defense to the crime of attempt. (Id. at p. 397.) “[I]f the circumstances had been as defendant believed them to be, he would have found in the room he entered two girls under fourteen available for him to engage in lewd and lascivious conduct with them. Defendant’s failure to foresee that there would be no children waiting does not excuse him from the attempt to molest.” (Ibid.)
The law of attempt is replete with such examples. People v. Rojas (1961) 55 Cal.2d 252 upheld a conviction for attempting to receive stolen property when the defendants took possession of items they believed to be stolen, but which had already been recovered by police. (Id. at pp. 254, 256–258.) In re Ryan N. (2001) 92 Cal.App.4th 1359 upheld a conviction for attempting to assist a suicide after the defendant encouraged the victim to take pills which were not, in
Another aspect of the law of attempt involves its punishment.
on the nature of the crime attempted. Subdivisions (a) and (b) generally provide that the punishment for an attempted crime is one half the term imposed for the completed offense.4 The penalties listed in
The human trafficking statute (
human trafficking.” (
As noted, the general rule is that factual impossibility is not a defense to attempt. Therefore, Moses’s argument hinges on whether
A. Statutory Language
The parties initially debate the meaning of the statutory language.
punishes actual inducement and attempted inducement in the same way.
Moses argues that the word “attempts” modifies only the language “to cause, induce, or persuade.” (
On the other hand, the People urge that the word “attempts” modifies all elements of
As the divergent views of the Courts of Appeal reflect, read in the abstract the language of the statute is susceptible to differing interpretations. However, the electorate’s decision to include “attempts” in the definition of human trafficking is significant because of another statutory provision.
section, unless otherwise apparent from the context.” (Ibid.) Subdivision (16), the substance of which has appeared in the statute since its enactment as subdivision (25) in 1872, now reads: “Words and phrases must be construed according to the context and approved usage of the language; but technical words and phrases, and such others as may have acquired a peculiar and appropriate meaning in law, must be construed according to such peculiar and appropriate meaning.” (
Previous cases have consistently looked to
by imprisonment . . . .”7 In People v. Korwin (2019) 36 Cal.App.5th 682 (Korwin) the Court of Appeal rejected the defendant’s argument that
Other cases have rejected arguments when the People have sought to evade the application of
Similarly, People v. Gallegos (1974) 39 Cal.App.3d 512 (Gallegos) dealt with a separate statute embodying an attempt.
Here the Court of Appeal majority concluded the attempt language in the statutory definition of this crime functions differently from the general law of attempt: “An attempt under
Because defendant did not direct his efforts at a person who was actually a minor, the majority reversed his conviction. (Id. at pp. 759, 761, 767.) In doing so the majority embraced the holding of Shields, supra, 23 Cal.App.5th at pages 1255–1257, which also reversed a
The dissenting justice would have held that
The majority’s analysis missed the mark for two reasons. First, it discerned the creation of a new element, untethered to the settled understanding of attempt law. Second it concluded that the language of
The Court of Appeal majority cited People v. Colantuono (1994) 7 Cal.4th 206 for the proposition that the “ ‘meaning of “attempt” can vary with the criminal context.’ ” (Moses, supra, 38 Cal.App.5th at p. 763, quoting Colantuono, at p. 216.) Its reliance was misplaced. That case dealt with a specific and historical understanding of the offense of assault, which had been defined in the common law. In examining the statutory definition of assault, which codified the common law understanding (see People v. Yslas (1865) 27 Cal. 630, 632; Hinkley, Assault-Related Conduct under the Proposed California Criminal Code (1974) 25 Hastings L.J. 657, 658), we observed that an assault is defined as “ ‘an unlawful attempt, coupled with the present ability, to commit a violent injury on the person of another.’ ” (Colantuono, at p. 214.) We then held that, unlike other attempted crimes, an assault is a general intent offense. (Id. at pp. 216–217.) In reaching this conclusion, we specifically noted that the crime of assault was statutorily defined by the Legislature of 1872 and the reference to attempt was used “only in its ordinary sense, not as the term of art we currently conceptualize.” (Id. at p. 216.) We also observed that “ ‘[t]he original concept of criminal assault developed at an earlier day than the doctrine of criminal attempt in general . . . .’ ” (Ibid.) Accordingly, we concluded that assault “is not simply an adjunct of some underlying offense [like criminal attempt], but an independent crime statutorily delineated in
terms of certain unlawful conduct immediately antecedent to battery.” (Ibid.) “[O]ur criminal code has long recognized this fundamental distinction between criminal attempt and assault by treating these offenses as separate and independent crimes. (Compare
Moses relies on the grammatical structure of
The phrase “a person who is a minor” cannot be artificially isolated from the transitive verb to create a separate element of the offense. The People’s reading of the statute appears the more logical. The entire phrase “a person who is a minor at the time of the commission of the offense to engage in a commercial sex act, with the intent to effect or maintain a violation of [certain enumerated crimes]” (ibid.) applies both to the completed act and an attempt to complete that act. However, repeating the entire phrase with respect to both prongs would be overly cumbersome. It is reasonable to conclude that the drafting goal was to achieve word economy, not to set out “a person who is a minor” as a stand-alone element. Under this view, the word “attempts” operates to modify all of the elements of the statute, making it unnecessary to prove that the defendant targeted an actual minor victim. Moses’s contrary argument results in an artificial parsing of the sentence’s structure.
Subdivision (c) must be understood in the context of the human trafficking statute of which it is a part. The first two subdivisions of section 236.1 define human trafficking as “depriv[ing] or violat[ing] the personal liberty of another with the intent to obtain forced labor or services,” (id., subd. (a)), or with “the intent to effect or maintain . . . violation[s] of” various laws regulating prostitution, pimping and pandering, pornography, and extortion (id., subd. (b)). Subdivision (c) does not speak of violating a victim’s
completed violation of subdivision (c) will, obviously, involve the inducement of a particular person, and that person must be a minor. By contrast, to violate subdivision (c) as an attempt, the defendant must intend to induce a minor, but the target of that inducement need not be an actual minor. This understanding of the statute supports a conclusion that, as long as the defendant has attempted to induce a person and intends that the object of his inducement be a minor, the elements of the attempt provision are satisfied. This understanding honors the general law of attempt that punishes a criminal intent coupled with an ineffectual act done towards its commission.9
The sentence structure of section 236.1(c) does not reflect an intent by voters to deviate from the established law of attempt. Instead it conveys the voters’ intent that human trafficking of a minor, whether successfully completed or merely attempted, is to be punished in a uniform way. As the court observed in Clark, supra, 43 Cal.App.5th 270, review granted, “[t]he only difference between Reed and cases like it [involving prosecutions under section 664], and the instant case is that here the crime of attempt is made part of section 236.1(c), making the attempted act equally blameworthy to the completed act and making equal the punishment for both the attempted act and the completed act. The difference does not lie in a ‘plain reading’ of the statute. It lies instead in the electorate’s choice to punish both the attempted act and the completed act equally.” (Id. at p. 284.)
The Court of Appeal majority reasoned that punishing an attempt under section 236.1(c) without an actual minor victim is inconsistent with the provisions of subdivision (f) of the statute. (Moses, supra, 38 Cal.App.5th at pp. 762, 764.) That subdivision provides: “Mistake of fact as to the age of a victim of human trafficking who is a minor at the time of the commission of the offense is not a defense to a criminal prosecution under this section.” (
The logical flaw here is the assumption that subdivision (f) applies when there is no actual minor victim. By its terms it does not. The statute eliminates a mistake of age defense if the defendant successfully induces a minor, even if acting under a mistake of fact. It does not speak to the converse situation, when the defendant attempts to induce a person the defendant actually believes to be a minor but who is in fact an adult. Under
the provisions of subdivision (c) and the law of attempt, such conduct is punishable as human trafficking so long as the defendant intended to induce a minor to engage in such conduct. There is no inconsistency between disallowing a mistake of age defense when the victim is an actual minor and requiring a specific intent to induce a minor when the defendant unwittingly targets a police decoy. Nothing in subdivision (f) speaks to the latter intent requirement.10
Moses observes that the drafters of the initiative could have expressly prohibited acts “ ‘directed towards a minor, or a person who the defendant subjectively believes is a minor.’ ” (Quoting Clark, supra, 43 Cal.App.5th at p. 300 (dis. opn. of O’Leary, P. J.), review granted.) It is often possible to craft more explicit language after the fact, but there is no question that the voters incorporated attempts into the substantive definition of section 236.1(c). We apply the settled rule of statutory construction that the electorate used the word “attempts” in the “ ‘ “precise and technical sense” ’ ” ascribed to it by statute and case law. (Lopez, supra, 34 Cal.4th at p. 1007; accord,
Although the statutory language discussed above suggests an intent to incorporate traditional attempt principles into section 236.1(c), the specific textual formulation alone does not definitively answer the question. Accordingly, we consider the ballot materials and the aims to be achieved by the enactment. (Robert L. v. Superior Court (2003) 30 Cal.4th 894, 901.) That exercise reveals that voters did not intend the result defendant urges.
The ballot materials make clear that a primary goal of Proposition 35 was to stop the exploitation of children by online predators. (Voter Information Guide, Gen. Elec. (Nov. 6, 2012) argument in favor of Prop. 35, p. 46 (hereafter Voter Information Guide).) The findings and declarations adopted by the electorate in support of the law provide: (1) “Protecting every person in our state, particularly our children, from all forms of sexual exploitation is of paramount importance”; (2) “[T]he predatory use of [internet] technology by human traffickers and sex offenders has allowed such exploiters a new means to entice and prey on vulnerable individuals in our state”; and (3) “We need stronger laws to combat the threats posed by human traffickers and online predators seeking to exploit women and children for sexual purposes.” (Voter Information Guide, supra, text of Prop. 35, § 2, p. 101.) The stated purpose of the law was to “ensure just and effective punishment of people who promote or engage in the crime of human trafficking.” (Id., § 3, p. 101.) To that end, the measure increased the punishment for human trafficking of minors from four, six, or eight years in prison (former § 236.1(c), added by Stats. 2005, ch. 240, § 7, p. 2507), to five, eight, or 12 years for nonforcible trafficking, and 15 years to life when the offense involves force, fear, fraud, or other
enumerated factors. (
The measure’s reference to identifying and punishing online child predators is relevant here. Sting operations are a common and effective method of identifying such offenders before they victimize an actual child. (See Korwin, supra, 36 Cal.App.5th at p. 690; U.S. v. Meek (9th Cir. 2004) 366 F.3d 705, 719.) But Moses’s interpretation of section 236.1(c) forces law enforcement to choose between traditional sting operations and maximum punishment for criminal offenders. As the defense acknowledged at oral argument, its reading of the statute means a predator could be convicted under the attempt prong
Again, this approach is consistent with the long-held foundation for criminalizing attempts. “ ‘Applying criminal
culpability to acts directly moving toward commission of crime . . . is an obvious safeguard to society because it makes it unnecessary for police to wait before intervening until the actor has done the substantive evil sought to be prevented. It allows such criminal conduct to be stopped or intercepted when it becomes clear what the actor‘s intention is and when the acts done show that the perpetrator is actually putting his plan into action.’ [Citations.]” (Dillon, supra, 34 Cal.3d at p. 453.)
In resisting this conclusion, the Court of Appeal noted that generally attempts may be considered “ ‘ “less serious” ’ than crimes carried through to completion.” (Moses, supra, 38 Cal.App.5th at p. 765, quoting In re Nuñez (2009) 173 Cal.App.4th 709, 736.) It is often true that attempt offenses are considered less serious and statutes may reflect that policy choice. However, it is also true that legislators and the electorate may consider the harm occasioned by some attempts to be on a par with a completed crime. It is their prerogative to enact statutes that reflect that determination. (People v. Flores (1986) 178 Cal.App.3d 74, 84–89, cited with approval in People v. Wilkinson (2004) 33 Cal.4th 821, 838, 840.)12
The electorate’s intent to ensure just and effective punishment of child predators is demonstrated by section 236.1, subdivision (f), which holds the defendant liable for targeting an actual minor victim even if the defendant
In an argument reminiscent of that in Bailey and Gallegos, the People urge that a defendant need not intend to induce a minor to commit an attempt under section 236.1(c). Rather, they contend the necessary specific intent is only the intent to violate one of the criminal statutes listed in that subdivision. They rely on People v. Branch (2010) 184 Cal.App.4th 516. That case involved a conviction for attempted pimping of a minor under the age of 16 (
Assuming without deciding that Branch’s interpretation of
In sum, section 236.1(c) operates as follows. To be convicted of the completed crime of inducing a minor to engage in a commercial sex act, the person induced must be a minor. To commit the crime of attempting to induce
defense. Under both theories the defendant is guilty of “human trafficking” (
C. Remand Is Required
In the Court of Appeal, Moses argued that the instructions did not require the jury to find that he specifically intended to traffic a minor. Because the court reversed for lack of sufficient evidence of an actual minor victim, it did not reach this claim. The court did discuss the adequacy of the instructions in deciding that it could not reduce the offense from a violation of section 236.1(c) to an attempted violation of section 236.1(c), 664: “[T]he instructions provided by the trial court as to count 1 did not require the jury to determine whether Moses specifically intended to target a minor, as would be required if a violation of
The court’s comments on the jury instructions were made in the context of its power to reduce the offense under
the People, including that (1) Moses forfeited his challenge to the instruction by failing to object below; (2) the instructions, viewed as a whole and in light of the trial record, were not reasonably likely to mislead the jury about the required specific intent; and (3) any error was harmless beyond a reasonable doubt given the evidence and the jury’s other findings. Accordingly, we remand the case to the Court of Appeal to address Moses’s instructional challenge in the first instance.
We reverse the judgment of the Court of Appeal and remand the case for further proceedings consistent with this opinion.
CORRIGAN, J.
We Concur:
CANTIL-SAKAUYE, C. J.
LIU, J.
CUÉLLAR, J.
KRUGER, J.
GROBAN, J.
HOCH, J.*
* Associate Justice of the Court of Appeal, Third Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.