Minor trafficking conviction in police sting upheld

Criminal liability for an attempt to traffic a minor does not require that the offense be accomplished, the state Supreme Court ruled Monday.

Sending the case back to lower courts, the California high court justices found that a defendant can be convicted of attempting to traffic a minor even though the victim was actually an adult, undercover police officer.

"'The overarching principle is that, when a person intends to commit a crime and takes a direct but unsuccessful step towards achieving that end, he has committed an attempt," wrote Justice Carol A. Corrigan. "He cannot find safe harbor in his own ineptitude."

Defense attorney Mark Hart maintained that the offense "require[s] an underage victim, even for an attempt."

"The Supreme Court disagreed although the Courts of Appeal are divided on this issue," he said.

Orange County District Attorney Todd Spitzer emphasized in a statement that California voters intended to maximize penalties for human trafficking involving minors.

"The California Supreme Court unanimously interpreted a voter initiative in the way it was intended -- to allow law enforcement to continue to have the strongest tools possible to combat child predators," the statement read.

Spitzer appealed for the high court review when Attorney General Xavier Beccera did not contest an appellate ruling in favor of the convict.

In August 2019, the 4th District Court of Appeal overturned the conviction of Antonio Moses for human trafficking of a minor, which is defined to include attempts to commit the crime. It found that the victim must actually be a minor, remanding the case to trial court.

The issue was limited to whether the appellate court erred in reversing the conviction on the ground that the defendant was communicating with an adult police officer posing as a minor as part of a sting operation. People v. Moses, 2020 DJDAR 132630 (Dec. 28, 2020).

Corrigan compared the crime to a thief who intends to steal a valuable vase from a museum. She said the offender can still be convicted of attempted grand theft even if the museum placed an inexpensive duplicate in its place.

"The thief's act of taking the object, with the intent to steal the more valuable original, completes the crime ... even if the aim is unachieved because the copy had been substituted," she wrote.

Appellate courts are divided on whether convictions on failed attempts to commit crimes can be upheld depending on the nature of the offense.

The Supreme Court cited several cases in which convictions of attempted molestation of minors were sustained despite the offenders being baited by police officers posing as the victims. In one case, a defendant argued that an "attempt to molest an imaginary child [is] not a crime."

The court rejected the defense, explaining that the offender cannot escape liability based on an "impossibility they did not foresee."

Corrigan also acknowledged precedent going the other way. In a 1974 case she referred to in which a defendant was accused of attempting to escape prison, an appellate court found that intent is insufficient to substantiate the charge.

"The argument, in opening the possibility that there is such a crime as an attempt to attempt to escape, leads onto a logical merry-go-round," she wrote.

The panel settled the appellate courts' split on the issue based on the state Legislature's intent to pass the "Californians Against Sexual Exploitation Act."

If the defense's interpretation of the initiative were correct, the court found, law enforcement would have to choose between traditional sting operations and maximum punishment for offenders.

"As the defense acknowledged at oral argument, its reading of the statute means a predator could be convicted under the attempt prong only if an actual minor was used in the sting operation, something officers would obviously be reluctant to do," Corrigan wrote.