People v. Moses

IN THE SUPREME COURT OF
CALIFORNIA

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
Chief Justice Cantil-Sakauye and Justices Liu, Cuéllar,
Kruger, Groban, and Hoch* concurred.

*
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.
 PEOPLE v. MOSES
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 aspect of the definition.
Defendant Antonio Chavez Moses III was convicted of
attempting to recruit “Bella” as a prostitute. Bella had
identified herself to Moses as a 17-year-old girl, but was, in fact,
an undercover detective. The question here is whether, in light
of the statutory language, he can be convicted of an attempt
under the trafficking statute. We conclude that he can, based
on this state’s long-standing application of attempt law.
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

1
Hereafter section 236.1(c). The provision reads, in
relevant 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 [certain enumerated crimes] is guilty of human
trafficking.” (Ibid.)
All further undesignated statutory references are to the
Penal Code.

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Opinion of the Court by Corrigan, J.

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

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Opinion of the Court by Corrigan, J.

replied that she should “get to Daddy,” and he would “step [her]
game up” to “at least $1,000 a night.”
The next day Moses messaged Bella promising to show her
how to increase her income by soliciting customers at bars and
casinos. He explained, “See, it’s not all on a bitch. It’s on me to
guide you, show you, and protect you, but also lead you to the
money in a manner that we get the most for our labor.” The
following day Bella responded that she could not work in bars
and casinos because she was only 17 years old. She said: “I
want to keep it 100 with you. I feel a strong connection, good
vibe from you. I’m struggling bad at this game maybe because
I’m a youngster, too. Daddy, just know that I’m 17. Don’t want
to lie to you because you have been 100 with me from the get.”
Moses commented, “Damn, Boo, Damn,” and asked when Bella’s
birthday was. Bella responded that her birthday was in
November. Moses replied, “I never fucked around like that. You
not the police[?] This Internet shit got niggas knocked off. I’m
not trying to go out like a sucka. When’s your birthday?” When
Bella said her birthday was November 27, 1998, Moses replied,
“Oh, you about to be 18. Cool, SMH [shake my head].” Bella
said, “I don’t expect you to stick around. I get it, but just had to
be true.” Moses replied, “I got you as long as you keep it 100
always.” Bella said she was on a train to Anaheim, but Moses
invited her to get off in Los Angeles. She did not respond to this
message. Over the course of the next several days, both Bella
and Moses confirmed they were not giving up on each other.
Moses repeated his urging that Bella call and talk to him.
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

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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 fucker, but if I do, I’m going to have to take you to my
momma[’]s house until your birthday.” Moses offered to drive
over to get Bella, but Rojo said that she had to go and would call
him later. In all, Bella and Moses communicated by text and
telephone for just over three weeks, often several times a day.
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

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Opinion of the Court by Corrigan, J.

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

2
Sections 236.1(c)(1), 266h, subdivision (b)(1), 664, 266i,
subdivision (a)(2).

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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 motion following an
invitation from the Orange County District Attorney’s Office to
do so. Subsequently, another panel of the same Court of Appeal
upheld a human trafficking conviction based on that defendant’s
conduct toward a fictitious minor, creating a conflict in the
appellate courts on this issue. (People v. Clark (2019) 43
Cal.App.5th 270, 274, review granted Mar. 11, 2020, S260202
(Clark).)
II. DISCUSSION
The general law governing attempt is found in section 21a,
which states, “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.” Section 664, which
sets out the punishment for an attempt, was enacted in 1872 as
part of California’s original Penal Code. The substantive law of
attempt was found in the common law. (See People v. Miller
(1935) 2 Cal.2d 527, 530, and cases cited therein, including
People v. Mize (1889) 80 Cal. 41, 43 and People v. Murray (1859)
14 Cal. 159; see generally 2 LaFave, Substantive Criminal Law
(3d ed. 2018) § 11.2(a), pp. 285–288.) In 1986, Section 21a was

3
Sections 667, subdivisions (b)–(i), 1170.12. The court
imposed the upper term for human trafficking, doubled based
on the prior strike. Punishment for the other offenses was
imposed but stayed under section 654.

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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.)
As a result, factual impossibility is not a defense to the
crime of attempt. The defendant’s “ ‘ “guilt or innocence is
determined as if the facts were as he perceived them.” ’ ” (People
v. Reed (1996) 53 Cal.App.4th 389, 396 (Reed); accord, People v.

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Opinion of the Court by Corrigan, J.

Beardslee (1991) 53 Cal.3d 68, 87.) 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. (§§ 288, subd. (a), 664.) He had written to an
undercover detective who was posing as a woman named
“Helen,” the mother of two young girls. (Reed, at p. 393.) Reed
said he would give Helen’s daughters a sexual education and it
was agreed he would meet the children at a motel. He was
arrested when he arrived at the location having brought along
sex toys and lubricating jelly. (Id. at pp. 394–395.) He argued
on appeal that the attempt to molest an imaginary child was not
a crime. Rejecting that assertion the court explained: Those
“charged with attempting to commit a crime cannot escape
liability because the criminal act they attempted was not
completed due to an impossibility which they did not foresee

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. . . .” (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 fact, lethal. (Id. at pp. 1380–1384.)
In People v. Thompson (1993) 12 Cal.App.4th 195 the defendant
was held properly convicted of attempted rape when,
unbeknownst to him, the victim had expired before the act of
intercourse. (Id. at pp. 201–203; see also People v. Meyer (1985)
169 Cal.App.3d 496, 503–506 [attempt to furnish material for
the manufacture of a controlled substance]; People v. Parker
(1963) 217 Cal.App.2d 422, 426–428 [attempted receipt of stolen
property]; People v. Siu (1954) 126 Cal.App.2d 41, 43–44
[attempted possession of narcotics].) 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. He cannot find safe harbor in his own
ineptitude.
Another aspect of the law of attempt involves its
punishment. Section 664 sets out different penalties depending

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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 section 664 apply when “no [other] provision
is made by law for the punishment of those attempts.” The
general punishment statute, then, explicitly contemplates that
other statutes may impose a different punishment for an
attempt to commit them. A few statutes, like the one at issue
here, punish attempts as stringently as the completed crime.
(See discussion, post, at pp. 13–15.) Notably, section 664 is
solely a sentencing provision. It does not change the definition
of attempt set out in section 21a. The question of how Moses’s
conduct can be punished lies at the heart of this dispute.
The human trafficking statute (§ 236.1) was modified in
2012 by Proposition 35, the Californians Against Sexual
Exploitation Act (CASE Act). (Prop. 35, § 6, as approved by
voters, Gen. Elec. (Nov. 6, 2012), eff. Nov. 7, 2012.) The measure
added subdivision (c), which provides: 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 [certain enumerated crimes5] is guilty of

4
Other portions of section 664 address attempts to commit
murder.
5
The enumerated statutes are sections 266, 266h, 266i,
266j, 267, 311.1, 311.2, 311.3, 311.4, 311.5, 311.6, and 518. They
define various crimes including pimping; pandering; procuring
a minor for prostitution or lewd acts; abduction of a minor for
prostitution; sale, distribution, or advertising of obscene matter;
exploiting or employing a minor to produce obscene matter;
obscene live conduct in public; and extortion.

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Opinion of the Court by Corrigan, J.

human trafficking.” (§ 236.1(c), italics added.) For brevity, we
will use the verb “induce” to encompass the phrase “causes,
induces, or persuades.”
The parties agree that attempting to induce a police decoy
posing as a minor to commit a commercial sex act is a
punishable offense. They disagree whether the crime falls
under the provisions of section 236.1(c), or the traditional
attempt statutes, sections 21a and 664. The competing positions
reflect squarely on punishment. If defendant’s crime falls under
section 236.1(c)(1), the penalty is five, eight, or 12 years in state
prison.6 By contrast, the penalty for attempt under section 664
would be one half the term imposed for the completed offense,
with limited exceptions not applicable here. (§ 664, subd. (a).)
As noted, the general rule is that factual impossibility is
not a defense to attempt. Therefore, Moses’s argument hinges
on whether section 236.1(c) defines attempted trafficking of a
minor in a way that abrogates the general impossibility rule.
A. Statutory Language
The parties initially debate the meaning of the statutory
language. Section 236.1(c) is violated in two circumstances:
when a person, acting with the requisite intent, (1) induces a
minor to engage in a commercial sex act; or (2) attempts to
induce a minor to engage in such an act. The statute codifies
the crime of attempted human trafficking of a minor and

6
The statute provides a penalty of 15 years to life if the
offense involves force, fear, fraud, or other enumerated
circumstances. (§ 236.1(c)(2).) None of those circumstances
were alleged here.

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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.” (§ 236.1(c).) He urges
the next phrase, “a person who is a minor,” (ibid.) creates a
distinct statutory element that must be proved whether the
crime is completed or merely attempted. He cites People v.
Shields (2018) 23 Cal.App.5th 1242 (Shields) for the proposition
that the attempt provision of subdivision (c) “is distinct from the
separate crime of attempt [defined under section 21a] because a
completed violation of the statute requires a person under the
age of 18 while an attempt to violate the statute does not.”
(Shields, at p. 1257.)
On the other hand, the People urge that the word
“attempts” modifies all elements of section 236.1(c), including
the requirement of “a person who is a minor.” Because the
longstanding law of attempt does not require completion of any
other element, aside from specific intent, they urge the targeted
victim need not, in fact, be a minor. Stated another way, factual
impossibility is not a defense to section 236.1(c), just as it is not
a defense under the general law of attempt. This is the position
taken by the majority in Clark, supra, 43 Cal.App.5th at pages
274, 279–285, review granted.
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 7
defines words and phrases. It notes that the “following words
have in this code the signification attached to them in this

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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.” (§ 7, subd. (16).)
“ ‘ “[A]fter the courts have construed the meaning of any
particular word, or expression, and the [electorate]
subsequently undertakes to use these exact words in the same
connection, the presumption is almost irresistible that it used
them in the precise and technical sense which had been placed
upon them by the courts.” ’ ” (People v. Lopez (2005) 34 Cal.4th
1002, 1007 (Lopez); accord, People v. Lawrence (2000) 24 Cal.4th
219, 231 [principle applies to legislation adopted through
initiative].) Because the term “attempt” has acquired a
“peculiar and appropriate meaning in law,” it “must be
construed” according to that meaning. (§ 7, subd. (16); accord,
Arnett v. Dal Cielo (1996) 14 Cal.4th 4, 19.)
Previous cases have consistently looked to section 21a to
define the elements of an attempt that has been incorporated
into a statute defining the substantive crime. For example,
section 288.3, subdivision (a) provides that “[e]very person who
contacts or communicates with a minor, or attempts to contact
or communicate with a minor, who knows or reasonably should
know that the person is a minor, with intent to commit [certain
enumerated sex offenses] involving the minor shall be punished

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by imprisonment . . . .”7 In People v. Korwin (2019) 36
Cal.App.5th 682 (Korwin) the Court of Appeal rejected the
defendant’s argument that section 288.3 required an actual
minor victim. Korwin urged, as Moses does here, that at most,
he could be convicted and sentenced under sections 21a and 664.
The court held instead that “section 288.3, subdivision (a),
incorporates attempt into the crime itself,” (Korwin, at p. 688),
and that “lack of an actual minor is not a defense to an attempt
to commit a sex offense against a minor” (id. at p. 689).
Other cases have rejected arguments when the People
have sought to evade the application of section 21a for statutes
that incorporate an attempt into the definition of a substantive
offense. People v. Bailey (2012) 54 Cal.4th 740 (Bailey) involved
section 4530, subdivision (a) which provides: “Every prisoner
confined in a state prison who, by force or violence, escapes or
attempts to escape therefrom” is punishable by imprisonment in
the state prison for a term of two, four, or six years. The People
acknowledged that section 21a requires a specific intent to
commit the crime attempted. However, they argued, “because
section 4530 codifies the offense of escape in a different
provision, section 21a is inapplicable,” and only a general intent
was required. (Bailey, at p. 750.) We rejected that argument
and looked to section 21a to define the required elements for the
attempt provision. (Bailey, at p. 749.)
Similarly, People v. Gallegos (1974) 39 Cal.App.3d 512
(Gallegos) dealt with a separate statute embodying an attempt.

7
Punishment for both the completed offense and the
attempted offense is identical: “imprisonment . . . for the term
prescribed for an attempt to commit the intended offense.”
(§ 288.3, subd. (a).)

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Section 4532, subdivision (b)(1) prohibits escape “or attempts to
escape” from a county jail.8 Trial evidence showed that Gallegos
walked beyond a county jail perimeter. The question was
whether the People were required to show that, when he did so,
he had the specific intent to escape, or whether a general intent
to do an act which would have effected his escape was sufficient.
In arguing for general intent the People urged that, because
attempted escape was included in section 4532, the specific
intent element of section 21a did not apply. (Gallegos, at pp.
515–516.) The People’s argument was rejected: “Although an
attempt to escape is made punishable under Penal Code section
4532 and not under Penal Code section 664 [citations], . . . the
essential elements of an attempt to commit a crime, so as to
make the attempt itself punishable, are present in an attempt
to escape as well as in those attempts made punishable under
Penal Code section 664. [¶] The argument is unsound that
because the punishment for attempted escape is specifically
provided for in section 4532, the crime is moved out of the class
of attempts of which a specific intent is an element, to the status
of a substantive crime that requires only a general intent to
commit the act . . . . 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.” (Id. at p. 516.)

8
The statute provides in part that a prisoner arrested for,
charged with, or convicted of a felony, who “escapes or attempts
to escape” from the county jail or other places of custody or
confinement without the use of force or violence, is subject to
imprisonment for 16 months, two years, or three years, or to a
county jail sentence not to exceed one year. (§ 4532, subd.
(b)(1).)

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The above statutes all differ in some respects from the
language of section 236.1(c). Korwin, for example, emphasized
the language in section 288.3, subdivision (a), requiring that the
defendant “knows or reasonably should know that the person is
a minor,” and distinguished section 236.1(c) and Shields, supra,
23 Cal.App.5th 1242, on that basis. (Korwin, supra, 36
Cal.App.5th at pp. 688–689.) Bailey and Gallegos looked to
section 21a to define the requisite specific intent for attempt
under sections 4530, subdivision (a) and 4532, subdivision (b)(1).
(Bailey, supra, 54 Cal.4th at pp. 749–750; Gallegos, supra, 39
Cal.App.3d at p. 516.) But neither escape statute includes
language raising an issue of factual impossibility similar to
section 236.1(c)’s mention of a minor victim. Nonetheless, there
is a consistent theme in this precedent: Courts have looked to
section 21a to define the elements of attempt where that offense
is incorporated into the substantive crime, at least in the
absence of a more specific definition in the statute itself. Section
236.1, subdivision (h) does define several key terms, but it
contains no alternative definition of “attempts” to replace the
general definition given in section 21a.
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
section 21a does not require a victim. Instead such an attempt
requires two inchoate elements: (1) criminal intent; and (2) an
ineffectual act toward committing the crime. In contrast, the
specific language of section 236.1(c) requires an additional
element: the necessity that the victim be a minor. The ‘context’
of the two statutes is therefore different because the language of
each is different: section 236.1(c) includes an element that
section 21a does not.” (Moses, supra, 38 Cal.App.5th at p. 763.)

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Opinion of the Court by Corrigan, J.

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 section 236.1(c) conviction under similar
circumstances. (Moses, at pp. 761–762, 766.)
The dissenting justice would have held that section
236.1(c) “penalizes both completed human trafficking acts and
attempts to commit the proscribed human trafficking acts.
Because ‘factual impossibility is not a defense to a charge of
attempt’ [citation], the jury legally could convict Moses of
human trafficking under [the statute] despite the absence of an
actual minor victim.” (Moses, supra, 38 Cal.App.5th at p. 767
(conc. & dis. opn. of Aronson, Acting P. J.).) The dissent
reasoned that the purpose of the statute was to strengthen the
laws against human traffickers and online predators who would
sexually exploit women and children. (Id. at p. 768; see
discussion, post, at pp. 24–27.) Basic tenets of statutory
interpretation presume that the electorate intended to
incorporate the traditional definition of attempt into the human
trafficking statute. (Moses, at pp. 769–770 (conc. & dis. opn. of
Aronson, Acting P. J.).) A counter interpretation, the dissent
noted, would create “an attempt to commit an attempt.” (Id. at
p. 769.) The dissent reasoned that the law recognizes no such
creature.
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 section 21a and section 236.1(c) is
significantly different. In fact, the operative language
employing the technical word “attempt” is the same. Section

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 PEOPLE v. MOSES
Opinion of the Court by Corrigan, J.

236.1(c) is not different because it creates an altered
understanding of attempt. It is different because, unlike some
other attempt provisions, it expresses the electorate’s intent to
punish both the trafficking of a minor and the attempt to do so
in the same way. The ability to make this sentencing choice is
explicitly recognized in section 664.
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

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 PEOPLE v. MOSES
Opinion of the Court by Corrigan, J.

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 § 240 with §§ 663, 664.)” (Williams, supra, 26 Cal.4th
at p. 786.) The majority’s reliance on this fundamentally
distinct provision led it astray.
As the court in Clark has pointed out, section 236.1(c) is
distinguishable from the provision defining assault. Unlike
assault, the crime of human trafficking of a minor is not “a
historical anomaly ‘developed at an earlier day than the doctrine
of criminal attempt in general.’ ” (Clark, supra, 43 Cal.App.5th
at p. 282, review granted.) Instead, the language of section
236.1(c) defining human trafficking was “chosen by the
electorate in 2012, some 26 years after the enactment of the
statutory definition of ‘attempt’ (Stats. 1986, ch. 519, § 1, p.
1859), and the even earlier adoption of similar language at
common law.” (Clark, at p. 282.) Accordingly, “ ‘ “the
presumption is almost irresistible” ’ ” that the word “attempt” in
section 236.1(c) is used in the “ ‘ “precise and technical sense” ’ ”
provided by section 21a. (Lopez, supra, 34 Cal.4th at p. 1007.)
The authorities summarized above demonstrate that, aside from
the requisite intent, no other element of the completed offense is
required to prove human trafficking of a minor under the
attempt provision of the statute.
Moses relies on the grammatical structure of section
236.1(c). In his view, the word “attempts” modifies the operative
verbs “cause, induce, or persuade,” making the age of the
inducee a distinct statutory element. The People counter that
the word “attempts” is a transitive verb that modifies the entire
phrase “to cause, induce, or persuade, a person who is a minor.”

19
 PEOPLE v. MOSES
Opinion of the Court by Corrigan, J.

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 personal liberty. Instead it
defines human trafficking another way: the inducement of a
minor to engage in commercial sex acts. Subsequent provisions
make clear that neither a minor’s consent (id., subd. (e)), nor a
mistake of fact as to a victim’s age (id., subd. (f)), is a defense.
Subdivision (c) specifically targets trafficking minors. A

20
 PEOPLE v. MOSES
Opinion of the Court by Corrigan, J.

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.)

9
For an analysis of when the planning or preparation of a
crime ripens into an attempt, see generally People v. Johnson
(2013) 57 Cal.4th 250, 258 & fn. 4 and People v. Watkins (2012)
55 Cal.4th 999, 1021.

21
 PEOPLE v. MOSES
Opinion of the Court by Corrigan, J.

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.” (§ 236.1, subd. (f), italics
added.) The Court of Appeal reasoned that “[u]nder subdivision
(f), it is no defense that a defendant may have believed a victim
was 18 or older and therefore did not actually intend to traffic a
minor; even absent such intent, the conduct constitutes a
violation of section 236.1(c).” (Moses, at p. 762.) The defendant
“bears the risk, regardless of whether he believed the minor was
of age or not, that his trafficking target is a minor.” (Id. at p.
764.) The majority acknowledged that if “ ‘there is no actual
victim and therefore it is factually impossible to complete the
crime,’ ” traditional attempt principles would hold the defendant
liable only if he or she actually intended to traffic a minor. (Id.
at p. 762, quoting Shields, supra, 23 Cal.App.5th at p. 1257.)
Because subdivision (f) precludes a mistake of fact as to the
victim’s age, the majority concluded that the attempt provision
of the statute necessarily must require an actual minor in order
to harmonize the two subdivisions. (Moses, at pp. 762, 764.)
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

22
 PEOPLE v. MOSES
Opinion of the Court by Corrigan, J.

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, § 7,
subd. (16).) The well-established law at the time of the
initiative’s passage was that “the commission of an attempt does
not require proof of any particular element of the completed
crime” other than intent (Chandler, supra, 60 Cal.4th at p. 517,
and cases cited), nor did it allow for a defense of factual
impossibility.

10
We are not called upon here to determine the interplay
between subdivision (f) and the specific intent required for the
attempt prong of section 236.1(c) when the defendant attempts,
but fails, to induce an actual minor to engage in a commercial
sex act. We offer no view on whether a mistake of fact as to the
victim’s age would be a defense in that situation.

23
 PEOPLE v. MOSES
Opinion of the Court by Corrigan, J.

B. Ballot Materials and Statutory Aim
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

24
 PEOPLE v. MOSES
Opinion of the Court by Corrigan, J.

enumerated factors. (§ 236.1(c)(1) & (2), as amended by Prop.
35, § 6, Gen Elec. (Nov. 6, 2012).)11
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 only if an
actual minor was used in the sting operation, something officers
would obviously be reluctant to do. (See U.S. v. Gagliardi (2d
Cir. 2007) 506 F.3d 140, 146–147.) Use of an undercover officer
posing as a minor would result in lesser punishment under the
provisions of section 664. By contrast, interpreting the attempt
provision of section 236.1(c) so as not to require an actual minor
victim furthers Proposition 35’s stated purposes. It enhances
law enforcement investigatory efforts while at the same time
furthering the measure’s objective to “increase[] the current
criminal penalties for human trafficking under state law.”
(Voter Information Guide, supra, analysis of Prop. 35 by Legis.
Analyst, at p. 43.)
Again, this approach is consistent with the long-held
foundation for criminalizing attempts. “ ‘Applying criminal

11
Former section 236.1(c) was purely an enhanced
sentencing provision related to trafficking based on a violation
of personal liberty. It was removed and replaced with the new
subdivision (c) by the initiative’s enactment.

25
 PEOPLE v. MOSES
Opinion of the Court by Corrigan, J.

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

12
We note that the Court of Appeal’s reliance on In re Nuñez,
supra, 173 Cal.App.4th at page 736, and the case it quoted,
Solem v. Helm (1983) 463 U.S. 277, 293, is somewhat strained.
Both cases involved a cruel and unusual punishment challenge,
and neither involved an attempt. Nuñez was convicted of
kidnapping for ransom (Nuñez, at p. 714) and Helm for uttering
a “ ‘no account’ ” check for $100 (Solem, at p. 281). Those cases
quoted the general observation from Blackstone’s
Commentaries as part of their analysis of the magnitude of
harm the defendant caused in evaluating a constitutionally
acceptable punishment.

26
 PEOPLE v. MOSES
Opinion of the Court by Corrigan, J.

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 believes the victim is
an adult. There is no reason to conclude from the ballot
materials that the electorate intended to impose lesser
punishment on a defendant who intentionally targets a minor
but fails in the attempt because the target is actually an adult.
Given the initiative’s stated purpose, it is more reasonable to
conclude that section 236.1(c) operates as a one-way ratchet to
increase punishment for both such offenders.
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 (§§ 266h, subd. (b)(2), 664) against J.V., a
15-year-old victim. The court refused the defense request to
instruct the jury that his good faith, reasonable belief J.V. was
18 was a defense to the attempt crime. Instead, the court
instructed that to convict, the jury must find J.V. was under the
age of 16 at the time of the charged crimes. (Branch, at p. 520.)
On appeal, the court found no instructional error. It reasoned:
“[T]he 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. Regardless of his belief as to J.V.’s
age, defendant acted with criminal intent.” (Id. at p. 522.)

27
 PEOPLE v. MOSES
Opinion of the Court by Corrigan, J.

Assuming without deciding that Branch’s interpretation
of section 266h is correct, the case is distinguishable because it
did not involve an issue of factual impossibility. The victim in
that case was 15 years old and the jury was instructed that it
must find the victim was under the age of 16 in order to convict.
Moses, on the other hand, could not be convicted of human
trafficking under the completed prong of the statute because the
target of his conduct was not a minor. Rather, his guilt or
innocence must be determined “ “as if the facts were as he
perceived them.” ’ ” (Reed, supra, 53 Cal.App.4th at p. 396.) It
follows that an attempt under section 236.1(c) does require as
an element that the defendant intend to target a minor, at least
where the victim is not in fact a minor. The People would have
us reject factual impossibility as a defense to the crime of
attempt under section 236.1(c) while simultaneously refusing to
apply another established requirement of that doctrine. We
reject the People’s argument that Moses could be convicted not
only in the absence of an actual minor victim, but also without
intent to induce a minor victim.
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 a minor, the defendant
must act with the “ ‘specific intent to commit the [completed]
crime’ ” (Williams, supra, 26 Cal.4th at p. 786), i.e., the intent to
cause, induce, or persuade a minor to engage in a commercial
sex act, at least when no actual minor victim is involved (see fn.
10, ante). The defendant must act with the additional intent to
effect or maintain a violation of one of the offenses enumerated
in the statute. If these elements are met, the fact that the
particular target of his efforts is not actually a minor is not a

28
 PEOPLE v. MOSES
Opinion of the Court by Corrigan, J.

defense. Under both theories the defendant is guilty of “human
trafficking” (§ 236.1(c)) and subject to the same punishment.13
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 section 21a were a lesser included offense of section
236.1(c). Without assurance from the instructions given that
the jury determined Moses specifically harbored the required
intent for a violation of section 21a, we cannot reduce the section
236.1(c) conviction to that lesser attempt conviction.” (Moses,
supra, 38 Cal.App.5th at p. 767.)
The court’s comments on the jury instructions were made
in the context of its power to reduce the offense under sections
1181, subdivision 6 and 1260 upon a finding of evidentiary
insufficiency. The court can only reduce an offense to a lesser
offense that was necessarily found by the trier of fact. (Bailey,
supra, 54 Cal.4th at p. 752.) Moses’s claim of instructional error
is governed by different standards. Specifically, the Court of
Appeal did not address several counterarguments advanced by

13
We disapprove People v. Shields, supra, 23 Cal.App.5th
1242, to the extent that it is inconsistent with this opinion.

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 PEOPLE v. MOSES
Opinion of the Court by Corrigan, J.

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.
III. DISPOSITION
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.

30
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Moses
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 38 Cal.App.5th 757
Rehearing Granted

__________________________________________________________________________________

Opinion No. S258143
Date Filed: December 28, 2020
__________________________________________________________________________________

Court: Superior
County: Orange
Judge: Julian W. Bailey

__________________________________________________________________________________

Counsel:

Mark Alan Hart, under appointment by the Supreme Court, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler and Lance E. Winters, Chief Assistant Attorneys
General, Julie L. Garland, Assistant Attorney General, Steve T. Oetting and Michael Pulos, Deputy
Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Mark Alan Hart
Attorney at Law
9420 Reseda Blvd.
Northridge, CA 91324
(818) 363-0419

Steve Oetting
Deputy Attorney General
600 West Broadway, Suite 1800
San Diego, CA 92101
(619) 738-9207