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People v. Shields

California Court of Appeals, First District, Fourth Division

May 30, 2018

THE PEOPLE, Plaintiff and Respondent,
v.
SHAWN SHIELDS, Defendant and Appellant.

          Superior Court Solano County, Ct. No. VCR225185 Hon. Daniel J. Healy Judge

          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

          SMITH, J. [*]

         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, 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 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.

         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 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 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) 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.)

         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 ...


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