Filed 5/30/18
                             CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                FIRST APPELLATE DISTRICT

                                         DIVISION FOUR


 THE PEOPLE,
            Plaintiff and Respondent,                 A149037

 v.                                                   (Solano County
 SHAWN SHIELDS,                                       Super. Ct. No. VCR225185)
            Defendant and Appellant.


                                        I. INTRODUCTION
        Shawn 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 (Pen. Code, § 236.1, subd. (c)(1))1;
pandering by encouraging another person to become a prostitute (§ 266i, subd. (a)(2));
and attempted pimping a minor over the age of 16 (§§ 664, 266h, subd. (b)(1)).
        Appellant seeks reversal of his conviction for human trafficking of a minor on two
related grounds. First, he contends that section 236.1, subdivision (c) (section 236.1(c))
is unconstitutional because it punishes an attempt to commit a crime without requiring
proof of specific intent to commit the crime. Second, appellant contends that the trial
court committed prejudicial error by instructing the jury at his trial that a defendant’s
mistake about the age of his victim is not a defense to human trafficking of a minor.
Although we reject these contentions, we will reverse this conviction on another ground,


        1
            Unless otherwise indicated, all statutory references are to the Penal Code.

                                                1
which was appellant’s primary defense in the trial court. Appellant did not commit the
completed offense of human trafficking of a minor because the alleged victim of this
crime was not a person under the age of 18.
       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.2
       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


       2
         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.

                                              2
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 actions 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 let me know they just are real
thirsty out there so put them in they place and you’ll be fine out there I’m from Oakland
but its, money in the south Bay baby let’s get it.” Irving asked “how much for just
straight sex,” and said that if she came there she would need somebody to buy her a ticket
because she did not have an “id.” Appellant said Irving was “doing too much on this
messenger baby,” but also asked for a picture and told Irving she could set her own price
and said she should make “them pay for every min.” Irving asked how appellant wanted
things to work between them, explaining that she had not had “a daddy for a minute,” but
that she would work hard and be loyal. Also, Irving expressed concern that Oakland was
a rough area. Appellant said that the area was not rough for him because he was settled
there and that it would be good “training” for Irving.
       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.



                                             3
       On the morning of November 13, 2015, appellant contacted 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 money 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, Irving said she was going on a “date.” Later, she
wrote that she could not stop crying. Appellant responded that he was going to come
pick her up the next day.
       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.
       When Detective Tonn received the message that appellant was outside, he
contacted officers who were conducting surveillance at the meeting place. The officers
made an investigative stop of the car appellant had described to Irving, found appellant
and another male occupant, and retrieved appellant’s cell phone. Tonn arrived at the
scene, told appellant that Irving was a runaway, and obtained his consent to search the


                                             4
phone. On it Tonn found a Facebook application that linked to the profile appellant had
used to communicate with Rachel Irving.
        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 and 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 intend 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 of the statements appellant exchanged
with Irving. For example, when appellant told Irving, “you’ll be my bottom to the top,”
he was telling her that she would be his number one prostitute. After Irving disclosed she
was only 17 and had a warrant, appellant’s response that “IL grow you up when you turn
18,” meant that appellant would guide Irving into prostitution. And, when appellant told




                                             5
Irving he would give her an ID “to help you stay unda so you can last til you turn 18,” he
was offering her a fake ID that would help her stay under the radar.3
       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. Section 236.1(c) Does Not Violate Due Process
       Appellant contends his conviction for human trafficking of a minor must be
reversed because section 236.1(c) violates the due process clause requirement that “the
prosecution [must] prove beyond a reasonable doubt all of the elements included in the
definition of the offense of which the defendant is charged.” (Patterson v. New York
(1977) 432 U.S. 197, 210.) He argues that section 236.1(c) violates this requirement by
authorizing a conviction for attempted human trafficking of a minor without requiring the
prosecution to prove the defendant specifically intended to commit this crime.4
           1. The Statute
       Under California law, the crime of human trafficking is comprised of three distinct
offenses, which are codified in section 236.1: (1) the deprivation or violation of the
personal liberty of another with the intent to obtain forced labor or services (§ 236.1,
subd. (a)); (2) the deprivation or violation of the personal liberty of another with the
intent to violate one of several specified Penal Code provisions (§ 236.1, subd. (b)); and


       3
        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.
       4
         Appellant concedes he did not raise this issue below, but contends that it is a
meritorious issue of law, 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) 98 Cal.App.4th 1056, 1061.)

                                              6
(3) causing or attempting to cause a person who is a minor to engage in a commercial sex
act with the intent to violate one of several specified Penal Code provisions (§ 236.1,
subd. (c)).
       In this case, we are concerned with section 236.1(c), the third statutory definition
of human trafficking, which applies when the victim of the alleged offense is a minor.
Section 236.1(c) was added to the human trafficking statute in 2012, following voter
approval of Proposition 35, the Californians Against Sexual Exploitation Act (the CASE
Act). (In re M.D. (2014) 231 Cal.App.4th 993, 998–999.) An important purpose of the
CASE Act is to “protect trafficked minors by treating them as victims, not criminals, and
ensuring they receive services to protect them from exploitation. [Citation.]” (People
v. Brown (2017) 14 Cal.App.5th 320, 324.) In approving Proposition 35, California
voters found and declared, among other things: “ ‘Upwards of 300,000 American
children are at risk of commercial sexual exploitation, according to a United States
Department of Justice study. Most are enticed into the sex trade at the age of 12 to
14 years old, but some are trafficked as young as four years old. Because minors are
legally incapable of consenting to sexual activity, these minors are victims of human
trafficking whether or not force is used.’ ” (In re Aarica S. (2014) 223 Cal.App.4th 1480,
1485–1486.)
       Section 236.1(c) states in part: “A person who causes, induces, or persuades, or
attempts to cause, induce, or persuade, a person who is a minor at the time of commission
of the offense to engage in a commercial sex act, with the intent to effect or maintain a
violation of Section 266, 266h, 266i, 266j, 267, 311.1, 311.2, 311.3, 311.4, 311.5, 311.6,
or 518 is guilty of human trafficking.” A commercial sex act is “sexual conduct on
account of which anything of value is given or received by a person.” (§ 236.1,
subd. (h)(2).) “Trafficking a minor triggers a punishment triad of five, eight, or twelve
years and a fine up to $500,000. [Citation.] If force or fear is used, the punishment is
15 years to life and a fine of up to $500,000. [Citation.]” (People v. Brown (2017)
14 Cal.App.5th 320, 337.)



                                             7
       Section 236.1 precludes a defendant charged with violating section 236.1(c) from
presenting two defenses. First, consent by the victim is not a defense to this crime.
(§ 236.1, subd. (e).) Second, “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.” (§ 236.1, subd. (f) (§ 236.1(f)).)
           2. Analysis
       Appellant’s due process challenge targets language in section 236.1(c) authorizing
a conviction based on an attempt to cause, induce, or persuade another person to engage
in a commercial sex act with the intent to commit one of the specified sex offenses.
       Appellant reasons as follows: First, section 236.1(c) criminalizes an attempt to
commit the crime of human trafficking of a minor. Second, an essential element of any
attempt crime is that the defendant must specifically intend to commit that offense.
Third, when section 236.1(c) is construed in conjunction with section 236.1(f), it
authorizes a conviction for attempted human trafficking even if the defendant did not
specifically intend that his victim was a minor. Fourth, section 236.1(c) omits an
essential element of attempted human trafficking because a defendant who did not
specifically intend to cause a minor to engage in a commercial sex act did not specifically
intend to commit the offense of human trafficking a minor.
       Our first problem with this argument is its false premise that section 236.1(c)
criminalizes an attempt to commit a crime. “An attempt to commit a crime is itself a
crime and subject to punishment that bears some relation to the completed offense.”
(1 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Elements, § 56, pp. 341–342.)
“An attempt to commit a crime consists of two elements: a specific intent to commit the
crime, and a direct but ineffectual act done toward its commission.” (§ 21a.) However,
“[a]n attempt to commit a crime can be distinguished from those crimes where the
attempt is the offense.” (1 Witkin & Epstein, Cal. Criminal Law, supra, § 56, p. 342,
italics omitted.) Section 236.1(c) defines the completed offense of human trafficking; the
conduct described in that statute constitutes actual human trafficking, not attempted



                                             8
human trafficking. Thus, the intent required to commit this crime is stated in the statute
itself.
          Section 236.1(c) provides that human trafficking of a minor includes attempting to
cause, induce, or persuade “a person who is a minor” to engage in a commercial sex act
with the intent to commit one of the target offenses listed in the statute. Under this prong
of the statute, the prohibited conduct is attempting (i.e., specifically intending) to cause,
induce, or persuade another person to engage in a commercial sex act with the intent to
commit one of the target offenses. The statute requires that the other person must be a
minor under the age of 18, but it does not require that the defendant specifically intend or
even know that his victim is a minor.
          A second problem with appellant’s claim is that, although he seeks to invalidate
the attempt language in section 236.1(c), what he is really complaining about is the fact
that a mistake of age defense is not available to a defendant charged with this crime.
However, appellant does not question the validity of section 236.1(f), which is the
provision that bars the mistake of age defense. As discussed above, section 236.1(c) was
enacted for the protection of children who are incapable of consenting to sexual activity.
(In re Aarica S., supra, 223 Cal.App.4th at pp. 1485–1486.) Section 236.1(f) furthers this
legitimate legislative goal. In other similar contexts, courts have recognized that public
policy justifies eliminating mistake of age defenses to sex crimes committed against
children. (See People v. Olsen (1984) 36 Cal.3d 638, 647–648.)
          Appellant contends that People v. Hanna (2013) 218 Cal.App.4th 455 (Hanna)
supports his position. The Hanna defendant was convicted of attempted lewd and
lascivious conduct with a child under the age of 14. On appeal, he argued the trial court
erred by denying his request to instruct the jury on the defense of mistake of fact as to the
victim’s age. (Id. at p. 457.) The Hanna court agreed, reasoning as follows: “The
mistake-of-fact defense, as a matter of public policy, does not apply to the commission of
a lewd act on a child under the age of 14 years. [Citation.] Defendant, however, was not
charged with committing a lewd act. He was charged with attempting to commit a lewd
act.” (Id. at p. 461, italics omitted.) The Hanna court went on to explain that, because an


                                               9
attempt to commit any crime requires a specific intent to commit that particular offense,
“[t]o attempt a violation of section 288, subdivision (a), the defendant must have
specifically intended to commit a lewd act on a child under 14 years of age.” (Id. at
p. 462.) Thus, the court found that, a mistake of age defense was available to the
defendant because if his intent was to commit lewd acts on an 18-year-old, as he had
alleged, then he lacked the specific intent required to attempt to commit lewd acts on a
child under the age of 14. (Ibid.)
       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. (§ 236.1, subds. (c) & (f).) The elements of
this completed offense (including the intent element) derive from the statute itself, not
from collateral authority pertaining to attempts to commit other crimes. As discussed, a
plain reading of the statutory language indicates that a person violates section 236.1(c) by
attempting to cause, induce, or persuade another person to engage in a commercial sex
act, with the intent to commit one of the specified sex offenses listed in the statute. The
other person—who the offender attempts to cause, induce, or persuade—must be a minor,
but the offender need not specifically intend to have targeted a minor as his victim.
       B. Mistake About a Victim’s Age Is Not a Defense to Human Trafficking
       Count 1 of the amended information charged appellant with human trafficking of a
minor for a sex act in violation of section 236.1(c) in that he “did willfully and
unlawfully attempt to cause, induce, and /or persuade, JANE DOE, who was less than
18 years of age, to engage in a commercial sex act, with the intent to effect and/or
maintain a violation of Penal Code section 266i.”
       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,


                                             10
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 crime without proof that appellant specifically intended to
cause, induce, or persuade a minor to engage in a commercial sex act.
       Appellant’s argument is based on the same flawed reasoning underlying his
constitutional challenge to section 236.1(c). As explained above, attempting to cause,
induce, or persuade another person to engage in a commercial sex act for one of the
specified purposes listed in this statute constitutes the completed offense of human
trafficking provided that the other person is a minor, whether or not the defendant was
aware of that fact. (§ 236.1, subd. (c).) Furthermore, section 236.1(f) expressly
precludes a defendant charged with this crime from presenting a mistake of age defense.
Thus, the jury was instructed correctly that a defendant’s mistaken belief about the age of
his victim was not a defense to this charge.
       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 not pursue this claim on appeal.5
Accordingly we requested and have considered supplemental briefs from the parties,
which address this issue. (See People v. Alice (2007) 41 Cal.4th 668, 674; Gov. Code,
§ 68081.) For reasons we discuss below, we conclude that the absence of an actual
victim precludes a conviction for the completed offense of human trafficking of a minor.




       5
        Appellant’s trial counsel repeatedly claimed that the absence of an actual minor
person precluded a conviction under section 236.1(c). The defense brought a motion
under section 995 to set aside the information on the ground that human trafficking of a
minor is factually impossible when a police officer was posing as that minor. Defense
counsel raised the issue again during the hearing on jury instructions, and a third time
pursuant to a section 1118 motion to dismiss the count 1 charge.

                                               11
            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 section 236.1(c). And in
Count 3, defendant is charged with attempted pimping, in violation of 664/266h(b)(1).
       “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, then that person is not guilty of the attempted 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
section 236.1(c).



                                              12
       “To prove that the defendant is guilty of this crime, the People must prove that:
[¶] 1. The defendant attempted to cause, induce or persuade another person to engage in a
commercial sex act; [¶] 2. When the defendant acted, he intended to commit a felony
violation of PANDERING, a violation of Penal Code section 266i; [¶] AND [¶] 3. When
the defendant did so, the other person was under 18 years of age.
       “A commercial sex act is sexual conduct that takes place in exchange for anything
of value. [¶] When you decide whether the 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
section 236.1(c) violation requires an attempt to cause, induce, or persuade another
person to engage in a commercial sex act. However, the trial court modified this model
instruction by telling the jury that the count 1 charge was for attempting to violate section
236.1(c). This statement was erroneous. Appellant was charged with the completed
offense of violating section 236.1(c) by attempting to cause, induce, or persuade a person
who is a minor at the time of the commission of the offense to engage in a commercial
sex act.
       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


                                             13
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.
       Third, and crucially, the trial court modified CALCRIM No. 1244, the official
standard instruction for the completed offense of human trafficking of a minor, by adding
the following statement: “It does not matter whether the person was already a prostitute
or an undercover police officer.” On its face, this modification conflicts with the third
element of section 236.1(c), which requires that when the offense was committed “the
other person was under 18 years of age.” (CALCRIM No. 1244.)
       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 section 236.1(c) could
not be proven because the undisputed evidence established that there was no person
under the age of 18 at the time that the crime was allegedly committed. The prosecutor
disagreed, arguing that the key point was that appellant was charged under the attempt
prong of section 236.1(c) and, thereof, all rules pertaining to attempt crimes applied,
including that factual impossibility was not a defense, and that it did not matter whether


                                              14
the alleged victim was an undercover officer. After extensive discussion, the trial court
denied the section 1118 motion, finding that the fact that this case involved “a sting
operation and not a real minor [was] not dispositive,” and, although defense counsel had
some “compelling arguments,” it was up to the jury to “decide these things.”
       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
element of human trafficking of a minor, which requires that when the offense was
committed “the other person was under 18 years of age.” (CALCRIM No. 1244).
       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 gave you an instruction that you have to establish facts beyond a
reasonable doubt. So, any of the three elements [defense counsel] just made reference to,
they have to be proven beyond a reasonable doubt. [¶] I also gave you a couple
instructions that said, in the context of this particular issue [of having] a minor that it can
be: A, mistake of age is not a defense. Secondly, it can be an undercover police person.
You have to weigh all of those together, apply the appropriate . . . standard which is
reasonable doubt, beyond a reasonable doubt, and come to your conclusion.”


                                              15
       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 section 236.1(c) because the third element of that
offense cannot be proven.
       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) 80 Cal.App.4th 170, 185–187; People v. Reed (1996) 53 Cal.App.4th 389,
396–397.) This outcome is consistent with the broader principle that factual
impossibility is not a defense to a charge of attempt. (People v. Reed, at pp. 396–397.)
However, this principle does not apply here, where appellant was charged with and
convicted of the completed offense of human trafficking of a minor. In this context, the
fact that there was no actual minor victim compels the conclusion that appellant did not
violate section 236.1(c) because the third element of that offense cannot be proven.
       In response to our request for supplemental briefing on this issue, the People
summarily argue that section 236.1(c) “is one of very few statutes which punish
completions and attempts identically.” First, the People do not identify any statute that
punishes an attempt and a completed offense identically. Second, the People ignore the
statutory language of section 236.1(c) and the elements of this offense. As we have
discussed, the elements of an attempt to commit a crime are materially different from the
elements of human trafficking of a minor under the attempt prong of section 236.1(c),




                                             16
which explicitly requires that the victim must be under the age of 18 when the crime is
committed. Appellant does not cite any authority supportive of its contrary position. 6
       Although section 236.1(c) does not punish completions and attempts identically, it
does define human trafficking to include an attempt to engage a minor in a commercial
sex act for an illicit purpose, and that is the source of confusion. However, the attempt
prong of the statute is distinct from the separate crime of attempt because a completed
violation of the statute requires a person under the age of 18 while an attempt to violate
the statute does not. This outcome is logical and fair. If there is an actual minor victim
who the statute is expressly designed to protect, a mistake about the victim’s age is not a
defense to the completed crime, even under the attempt prong of the statute. If, however,
there is no actual victim and therefore it is factually impossible to complete the crime, the
defendant can nevertheless be guilty of an attempt to human traffic a minor, but only if he
or she actually intended to human traffic a minor.
       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 this conviction by reducing it to an attempt to violate
section 236.1(c). (See People v. Robinson (2016) 63 Cal.4th 200, 211 [“[W]hen a
reviewing court modifies a conviction to reflect a lesser included offense, it is not



       6
         The only case involving a section 326.1(c) conviction that the People cite is
People v. Hicks (2017) 17 Cal.App.5th 496 (Hicks). Hicks generally supports our
conclusion that mistake of fact is not a defense to human trafficking of a minor.
However, Hicks does not support the People’s argument that the attempt prong of
section 236.1(c) can be violated when there is no actual minor victim because, among
other things: (1) the Hicks defendant was convicted of violating the actual conduct prong
of section 236.1(c) not the attempt prong; and (2) the victims in that case were not only
real people, they were minors.

                                             17
empowered to make additional factual findings. It may only conform the verdict to the
facts as found by the jury.”].)
       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.7
       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:
       “The defendant is charged in Count 3 with attempted pimping, a violation of penal
code sections 664 / 266(h)(b)(1). [¶] To prove that the defendant is guilty of pimping, the
People must prove that: [¶] 1. The defendant knew that a person was a prostitute;
[¶] 2. The money that the person earned as a prostitute supported the defendant, in whole


       7
          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.”

                                             18
or in part; OR defendant asked for payment or received payment for soliciting
prostitution customers for the person. [¶] AND [¶] 3. The person was a minor over the
age of 16 years when she engaged in the prostitution.
       “ [¶] . . . [¶]
       “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.”
       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) 202 Cal.App.3d 624, 630–631.) Thus, appellant would not have to have intended
to pimp a minor to commit the completed offense. However, an attempt to commit a
crime requires a specific intent to commit that crime. (§ 21a.) As discussed above,
Hanna, supra, 218 Cal.App.4th 455, supports the proposition that a mistake of fact
defense should be available if it would establish that the defendant lacked the specific
intent required to attempt to violate a criminal statute.
       In People v. Branch (2010) 184 Cal.App.4th 516, 518, 521–522 (Branch), the
defendant was charged with multiple sex offenses against two victims, including
attempted pimping and attempted pandering of a minor under the age of 16. He
requested a jury instruction that his good faith, reasonable belief that this victim was
18 was a defense to the charges. The trial court denied this request and “[i]nstead, . . .



                                              19
instructed the jury that to convict, it must find [the victim] was under the age of 16 at the
time of the crimes alleged.” (Id. at p. 520.) This ruling was affirmed on appeal.
       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, 184 Cal.App.4th at p. 522.) By a
parity of reasoning, the court concluded that “the criminal intent for the crimes of
attempted pimping and pandering of a minor is the attempt to pimp and pander; the age of
the victim only affects the severity of the sentence, not the criminality of the conduct.”
(Ibid.) Thus, the court found that regardless of the defendant’s belief about his victim’s
age, he acted with criminal intent. (Ibid.)
       In this case, the People contend that Branch is squarely on point and authorizes the
instruction given here telling the jury that “[b]eing mistaken about the other person’s age
is not a defense” to attempted pimping a minor. Appellant contends that Branch was
wrongly decided because it failed to “distinguish the intent necessary to commit a
substantive offense from that required for an attempt to commit that offense.” We
disagree with both arguments.
       Branch addressed a materially different factual and legal issue than we face here.
In that case, the trial court denied 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,
184 Cal.App.4th at p. 522), which would make a mistake of age defense irrelevant.
However, because the Branch jury was also required to find that the victim was actually



                                              20
under 16 in order to convict the defendant of attempted pimping of a minor under the age
of 16, that case is not controlling here.
       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.)
                                    IV. DISPOSITION
       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.




                                             21
                                               _________________________
                                               SMITH, J.*



We concur:


_________________________
STREETER, Acting P. J.


_________________________
REARDON, J.




*
 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.

A149037, People v. Shields


                                          22
Trial Court:                 Solano County Superior Court

Trial Judge:                 Hon. Daniel J. Healy

Counsel for Appellant:       Robert Bryzman, under appointment by the
                             Court of Appeal under the First District
                             Appellate Project Independent Case System

Counsel for Respondent:      Xavier Becerra
                             Attorney General of California

                             Gerald E. Engler
                             Chief Assistant Attorney General

                             Jeffrey M. Laurence
                             Senior Assistant Attorney General

                             Catherine A. Rivlin
                             Supervising Deputy Attorney General

                             Sara Turner
                             Deputy Attorney General




A149037, People v. Shields


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