People v. ShieldsPeople v. Shields
Shаwn Shields (appellant) became the subject of a police investigation after he accepted a request to become a friend on Facebook with a fictional 17-year-old prostitute created by a Solano County detective. The relationship appellant formed with this fictional person led to his arrest and conviction by a jury of three felony offenses: human trafficking of a minor for a commercial sex act (
Appellant seeks reversal of his conviction for human trafficking of a minor on two related grounds. First, he contends that
Appellant also seeks reversal of his conviction for attempted pimping of a minor over the age of 16, contending that the trial court erred by instructing the jury that a mistake about the victim's age was not a defense to this charge. We conclude that any error in giving this instruction was not prejudicial. Therefore, we affirm the attempted pimping conviction along with the pandering conviction, which is not challenged on appeal. However, we reverse the human trafficking conviction and remand for further proceedings.
II. STATEMENT OF FACTS
In January 2015, Detective Jarrett Tonn was assigned to a crime reduction team responsible for addressing the pervasive problem of "sex and human trafficking within the City of Vallejo." In November 2015, Tonn created a Facebook account for a fictional prostitute named Rachel Irving. Tonn sent friend requests on behalf of Irving to people he found on various public fan-based Web sites. Appellant accepted one such request and, on November 12, he sent Irving the following message: "I would love to see what you look like." Irving responded in kind, which led to an ongoing exchange of messages culminating in appellant's arrest on November 15, 2015. Here, we briefly summarize the interactions between appellant and Irving.
After appellant sent his first message to Irving on the afternoon of November 12, the two engaged in banter, and shared details about themselves for about an hour. Irving said she was working for "$," that she was not in the Bay Area but had a sick aunt in Vallejo who she planned to visit, and that she was contacting appellant from a coffee shop because her phone only worked on Wi-Fi. She told appellant she needed to get back to work but would stay in touch. Appellant gave Irving his phone number, encouraged her to get a phone, and said he was available if she needed him.
Shortly after 4:00 p.m., Irving messaged that she was on a five-minute break. Appellant asked if Irving had a significant other, Irving responded that she did not and that she was new to the area. Appellant offered to speak for Irving and said she should "come my way and let our аctions take ova." Irving said she was used to doing her own thing and she did not even know how much money she could make "up there." Appellant replied, "More than out there but see how you like it and
At around 7:30 p.m., appellant checked in with Irving, who said she was working hard and "gonna get a rack." Appellant gave Irving advice about what to charge and how to develop clients. Appellant also said, "you'll be my bottom to the Top!!!#." Irving shared that she used to work with another person but he got arrested. She said she was "in it for $ $ $ $ $," and asked what she should do. Appellant advised her to create a brand and said that "your networking becomes your net worth$ $." Irving wanted to know if appellant was going to be her "daddy." Appellant said he would be, as soon as she sent him a "cf" or a "choosing fee." Irving said she was going to Vallejo to visit her aunt the following week and appellant agreed to pick her up even if she did not yet have the money to pay his fee.
On the morning of November 13, 2015, appellant сontacted Irving, who responded that she hated Fresno and needed to get out. Appellant asked how much money Irving had made the night before and said he would meet her whenever she was ready. Irving said she was scared to meet appellant, explaining she did not want to bring problems on him, but she was only 17 and had a warrant. Appellant responded, "youngsta huh okay I appreciate your honesty and IL grow you up when you turn 18." Irving apologized, suggested appellant no longer wanted her, and said she would not bother him again. Appellant said that he was not saying no, just that "we gotta do this a different way baby." He told her to go get a phone, and to focus on her safety until she got together with him, saying "I'm here baby ... my 'from the bottom to the Top queen'."
Throughout the day on November 13, appellant checked in with Irving, asking whether she had a phone yet, encouraging her to put mоney aside, and discussing their prospective relationship. Appellant told Irving to send the "cf" by money gram and asked if she could drive, explaining that "I got an I d for you to help you stay unda so you can last til you turn 18." That night,
On the morning of November 14, 2015, Irving sent a message that her aunt was in the hospital in Vallejo and her grandmother had sent her a ticket so she could visit. Appellant responded with words of comfort, and the two arranged to meet after the visit. They exchanged messages throughout that day and the following day. On November 15 at around 7:30 p.m., Irving sent a message with an address where she wanted to be picked up. Less than an hour later, appellant messaged that he was outside the gate and described his car.
Whеn Detective Tonn received the message that appellant was outside, he contacted
Appellant was arrested, waived his Miranda rights and participated in a videotaped interview with Detective Tonn. Appellant denied that his plan was to pick up Irving so she could be a prostitute in Oakland. Initially, he claimed he was just trying to be helpful аnd was going to give Irving a ride wherever she wanted to go. Then he said that he thought someone was playing a joke on him and he was just playing along. Later appellant said that he started out thinking the entire thing was a joke, but when he heard about Irving's sick aunt, he felt sorry for her, thought she needed someone to look out for her and wanted to be that person. Finally, appellant offered this explanation: "I'm gonna be totally honest with you .... I was gonna get the money and drop her off and I wasn't gonna see her again. You know 'cause I needed the money ... I was gonna get the money and I was gonna drop her off and I wasn't gonna see her again." After hearing this statement, Tonn asked, "You were just gonna steal money from a 17-year-old?" Appellant responded that it would not be stealing because she was going to give it to him. He insisted that although he wanted the money, he did not intеnd to become Irving's pimp.
Appellant's jury trial was held in January 2016. Detective Tonn testified as a percipient witness and as an expert regarding the "relationships that occur in the business of prostitution, as well as the nomenclature and verbiage associated there with." Tonn explained for the jury the significance of many
The jury returned guilty verdicts as to the three counts charged against appellant: human trafficking of a minor for a sex act, pandering, and attempted pimping of a minor over the age of 16. In July 2016, the court sentenced appellant to a midterm eight-year sentence for the human trafficking conviction and stayed sentencing as to the other convictions pursuant to section 654.
III. DISCUSSION
A.
Appellant contends his conviction for human trafficking of a minor must be reversed because
1. The Statute
Under California law, the crime of human trafficking is comprised of three distinct offenses, which are codified in
In this case, we are concerned with
2. Analysis
Appellant's due process challenge targets language in
Appellant reasons as follows: First,
Our first problem with this argument is its false premise that
A second problem with appellant's claim is that, although he seeks to invalidate the attempt language in
Appellant contends that People v. Hanna (2013)
Hanna illustrates why appellant's constitutional challenge fails. The Hanna defendant was not charged with committing lewd acts on a child but rather of attempting to do so. Here, appellant challenges the validity of a statute that deems an attempt to be a completed offense when the victim is a minor, and also expressly precludes a defendant from presenting a mistake of age defense. (
Count 1 of the amended information charged appellant with human trafficking of a minor for a sex act in violation of
Appellant argues that his count 1 conviction must be reversed because the jury was instructed that "[b]eing mistaken about the other person's age is not a defense to this crime." Appellant acknowledges that this directive appears in CALCRIM No. 1244, the official standard instruction regarding the elements of human trafficking. Nevertheless, he contends that the instruction precluding a mistake of age defense had the effect of omitting an element of the crime he was charged with committing because it permitted a guilty verdict for an attempt
Appellant's argument is based on the same flawed reasoning underlying his constitutional сhallenge to
C. Human Trafficking of a Minor Requires a Minor
During the trial court proceedings, appellant's primary theory was that a defendant cannot be convicted of the completed offense of human trafficking of a minor when no minor exists. However, appellant's current counsel did nоt pursue this claim on appeal.
1. Background
The trial court gave two substantive jury instructions about the count 1 charge of human trafficking of a minor. First, the court instructed the jury regarding the "meaning of attempt " with a version of CALCRIM No. 460, which stated, in part:
"In counts 1 and 3, it is alleged that defendant attempted to commit those offenses. In Count 1 it is alleged that defendant attempted to cause, induce, or persuade a minor to engage in a commercial sex act in violation of Penal Code
"Before I define each of those three [sic ] substantive crimes, let me define the legal meaning of attempt. [¶] To prove that the defendant is guilty of attempting to commit a crime, the People must prove that: [¶] 1. The defendant took a direct but ineffective step toward committing the crime; [¶] AND [¶] 2. The defendant intended to commit the crime.
"[¶] ... [¶]
"A person who attempts to commit a crime is guilty of attempting to commit that crime even if, after taking a direct step towards committing the crime, he or she abandons further efforts to complete the crime or if his or her attempt failed or was interrupted by someone or something beyond his or her control. On the other hand, if a person freely or voluntarily abandons his or her plans before taking a direct step toward committing the crime,
"To decide whether the defendant intended to commit the specific crime, please refer to the separate instructions that I will give you on that crime." (Italics omitted.)
Second, immediately following this attempt instruction, the trial court instructed the jury regarding the prosecutor's burden of proving the count 1 charge by giving a modified version of CALCRIM No. 1244, which stated:
"The defendant is charged in Count 1 with attempting to cause, induce, or persuade a minor to engage in a commercial sex act in violation of Penal Code
"A commercial sex act is sexual conduct that takes place in exchange for anything of value. [¶] When you decide whether thе defendant caused, induced or persuaded the other person engage in a commercial sex act, consider all of the circumstances, including the age of the other person, his or her relationship to the defendant, and the other person's handicap or disability, if any.
"It does not matter whether the person was already a prostitute or an undercover police officer. [¶] Under the law, a person becomes one year older as soon as the first minute of his or her birthday has begun. [¶] The other person's consent is not a defense to this crime. [¶] Being mistaken about the other person's age is not a defense to this crime."
2. Analysis
When considered together, the two instructions discussed above gave the jury erroneous and conflicting guidance regarding the count 1 charge.
First, CALCRIM No. 460 was relevant because the first element of a
Second, the court added language to CALCRIM No. 460, which stated that the prosecution could prove appellant was guilty of count 1 by establishing the two elements of an attempt to commit a crime, i.e., a direct but ineffective step toward committing the crime, and the requisite intent to commit the completed offense. This instruction was also wrong. The definition of an attempt was relevant to the count 1 charge because the prosecution alleged a violation of the attempt prong of the statute. But this jury instruction erroneously suggested that the jury could convict appellant of the completed offense of human trafficking if the elements of an attempt were satisfied even if the prosecution did not prove all of the elements of the completed offense.
Appellant's trial counsel made this exact point at the hearing on jury instructions when he objected to the prosecutor's request to modify CALCRIM No. 1244 to state that "it doesn't matter if it was an undercover officer." Appellant's trial counsel insisted that this fact did matter, arguing: "My point is that what [the] prosecutor's asking for is for the Court to retool ... the Cal Crim instruction to lower the burden so that they don't have to prove element three of Count 1. And I think that's preposterous. I've been saying this over and over again. There isn't anybody here under age 18. They can't prove that." The trial judge opined that this would be a good case to "litigate" this issue because the record was clear that "we do not have a child here." The court described the issue as interesting, but deferred ruling until after the presentation of evidence.
After the prosecution rested its case, appellant's trial counsel made a motion under section 1118 to dismiss count 1, arguing that the third element of
We disagree with the trial court's reasoning. It was not up to the jury to decide what the law requires. Appellant was charged with the completed offense of human trafficking and received correct instruction regarding that crime, including that the victim had to be a person under the age of 18. However, they also received instructions which erroneously stated or implied that the jury could convict appellant of the completed offense of human trafficking of a minor if the prosecutor proved only that appellant attempted to commit that offense, and even if the prosecutor could not establish the third
These conflicting directives were highlighted during closing arguments. When appellant's trial counsel argued to the jury that the People could not prove the third element of the human trafficking charge because there was "no person here under the age of 18," the prosecutor made the following objection: "He's misstating the law. An 18 year old is not required, it's been made clear by the instructions." Defense counsel disagreed with this objection. Then the court gave the jury the following advice: "Let me say a couple things here. One, again, the instructions I gave are the law and if the lawyers make an argument that [is] inconsistent with what I instructed you, then you follow those instructions. There's a number of instructions that sometimes you have to read together. I
Again, we disagree with the trial court's approach. The referenced instructions could not be read together because they were inconsistent, and it was not up to the jury to "weigh" these conflicting directives and come to its own conclusion about what the prosecutor did or did not have to prove.
There is no dispute in this case that Rachel Irving was not a real person and thus at the time appellant engaged in conduct that satisfied the first two elements of this crime, there was no other person under 18 years of age. This undisputed fact compels the conclusion that appellant did not violate
The fact that a criminal defendant's intended victim is an imaginary person or a law enforcement officer posing as a minor does not mean that defendant committed no crime. But the crime is an attempt rather than the completed offense. ( Hatch v. Superior Court (2000)
In response to our request for supplemental briefing on this issue, the People summarily argue that
Although
Unfortunately, in the present case, the two distinct offenses were conflated and thus the jury was asked to decide if appellant committed a crime that it was impossible for him to complete. Furthermore, although the jury received instruction regarding the elements of an attempt, the specific instruction on the count 1 charge told them that a mistake about the victim's age was not a defense to the charge. Because we cannot conclude that the jury necessarily found that appellant actually intended to traffic a minor, we cannot modify
D. The Attempted Pimping Jury Instruction Was Not Prejudicial
Appellant contends that the jury was instructed erroneously that mistake of age was not a defense to the count 3 charge of attempted pimping of a minor.
Count 3 charged appellant with attempting to violate section 266h, subdivision (b)(1), which provides in part: "(b) Any person who, knowing another person is a prostitute, lives or derives support or maintenance in whole or in part from the earnings or proceeds of the person's prostitution, or from money loaned or advanced to or charged against that person by any keeper or manager or inmate of a house or other place where prostitution is practiced or allowed, or who solicits or receives compensation for soliciting for the person, when the prostitute is a minor, is guilty of pimping a minor, a felony, and shall be punishable as follows: [¶] (1) If the person engaged in prostitution is a minor 16 years of age or older, the offense is punishable by imprisonment in the state prison for three, four, or six years."
The jury received two substantive instructions pertaining specifically to this charge. First, the court instructed regarding the definition of attempt and its elements with the modified version of CALCRIM No. 460 quoted earlier in this opinion. Second, the court gave a modified version of CALCRIM No. 1550, which stated in part:
" [¶] ... [¶]
"It does not matter whether the person was already a prostitute or an undercover police officer. [¶] Under the law, a person becomes one year older as soon as the first minute of his or her birthday has begun. [¶] The other person's consent is not a defense to this crime. [¶] Being mistaken about the other person's age is not a defеnse to this crime."
Notably, the last sentence of this instruction, which states that a mistake about the victim's is age is not a defense to this crime, is not in the official version of CALCRIM No. 1150. Appellant contends that the trial court committed reversible by adding this directive to the instruction. He reasons that eliminating a mistake of fact defense had the effect of omitting an element of the crime by authorizing a conviction for an attempt even if appellant reasonably believed that his victim was not a minor and thus did not specifically intend to pimp a minor.
"Pimping in all its forms is not a specific intent crime." ( People v. McNulty (1988)
In People v. Branch (2010)
The Branch court began its analysis of the jury instruction issue by finding that ignorance as to the age of the victim would not be a good defense to the completed crimes of pimping or pandering a minor because the defendant's conduct would be criminal regardless of the victim's age. ( Branch , supra ,
In this case, the People contend that Branch is squarely on point and authorizes the instruction given here telling the jury
Branch addressed a materially different factual and legal issue than we face here. In that case, the trial court deniеd a request to instruct the jury that a reasonable belief the victim was 18 was a defense to the charge and instead instructed the jury that the victim had to be under 16. Here, by contrast, the court expressly told the jury not to consider whether appellant believed his victim was a minor without instructing them that the victim actually had to be a minor. Indeed, the jury was told that it did not matter if the victim was a real person.
The Branch court did find that "the criminal intent for the crimes of attempted pimping and pandering of a minor is the attempt to pimp and pander" ( Branch , supra ,
We are willing to assume for purposes of argument that a mistake of age defense could be made with respect to a charge of attempted pimping of a minor when there is no actual minor victim. However, that defense would not have been available to appellant under the facts presented here. As our factual summary reflects, there was undisputed evidence that Irving told appellant she was only 17, that appellant expressly acknowledged that Irving was 17, and that appellant committed his crimes believing that Irving was 17. Thus, any error in instructing the jury that mistake of age is never a defense was harmless. It is not reasonably probable that the jury would have reached a different verdict on this charge if the instruction had not been given. (See Hanna , supra , 218 Cal.App.4th at pp. 462-463,
The conviction for the completed offense of human trafficking a minor is reversed, appellant's other convictions are affirmed, and this case is remanded to the trial court for further proceedings, including resentencing.
We concur:
STREETER, Acting P. J.
REARDON, J.
Notes
Judge of the Superior Court of California, County of Alameda, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Unless otherwise indicated, all statutory references are to the Penal Code.
The messages exchanged between appellant and Rachel Irving were recorded in an 88-page transcript that was admitted into evidence at appellant's trial. We use Irving's name when referring to the fictional character that Tonn created with the understanding that Irving is not an actual person.
Tonn also deciphered phrases for the jury, such as: a "daddy" is a pimp; a "cf" or "choosing fee" is the fee a prostitute pays someone to be her pimp; and a "rack" is $1,000.
Appellant concedes he did not raise this issue below, but contends that it is a meritorious issue of lаw, and that the failure to raise it below constituted ineffective assistance of counsel. We exercise our discretion to address this new claim because it involves a constitutional issue and pertains to the enforcement of a penal statute. (People v. Marchand (2002)
Appellant's trial counsel repeatedly claimed that the absence of an actual minor person precluded a conviction under
The only case involving a section 326.1(c) conviction that the People cite is People v. Hicks (2017)
Count 3 charged appellant with attempted pimping a minor over the age of 16 in violation of sections 664 and 266h, subdivision (b)(1), in that he "did unlawfully, and knowing, JANE DOE, a minor over the age of 16 years, to be a prostitute, ATTEMPTED [to] live and derive support and maintenance in whole and in part from the earnings and proceeds of said person's prostitution and from money loaned and advanced to and charged against said prostitute by a keeper, manager, and inmate of a house and other place where prostitution was practiced and allowed."