When you're charged with soliciting a minor, you're not guilty if you thought the person was actually old enough to consent. Moreover, since it's a crime with mens rea, your mistake of fact doesn't necessarily have to be reasonable. Even if most people would think that she was only 16, for example, if you in fact thought she was 19, that's a defense. In this opinion, the trial court gave an erroneous instruction that the defendant's mistake had to be reasonable, the prosecutor harped on this issue at closing argument, and so Mr. Ismaeil gets a new trial. That's the rule.
At the same time, I'm not sure that the reversal is going to help Mr. Ismaeil that much. He was only sentenced to two years of probation. Now he's going to have to endure a new trial. Moreover, I strongly doubt the result of that trial is going to be any different than the earlier one at which he was convicted. Here's are the basic facts:
"In April 2018, Senior Inspector Darryl Holcombe of the Contra Costa County District Attorney’s Office was conducting an investigation through the Internet Crimes Against Children Task Force. In that role, Holcombe had a profile on Whisper, a smartphone application. Holcombe set up a Whisper profile in which his persona was a female user between the ages of 15 and 17 (the only age category for minors). He pretended to be a 14-year-old girl named Lizzy, who was a sexually inexperienced high school freshman with separated parents. . . . Appellant—as a Whisper user calling himself Eddy— contacted “Iconsborn” through a direct message. After some initial back and forth, “Iconsborn” identified herself as Lizzy and asked appellant how old he was; appellant responded that he was 28. Lizzy said she was 14; appellant responded, “Ah lol.” . . .
After appellant sent Iconsborn a photo of his cat, Iconsborn responded by sending a photo she identified as herself with her dog. The photo was actually of a Homeland Security agent from New York when she was 14. Appellant complained about having to drive to Modesto the next day and Iconsborn responded, “I can’t wait to drive.” Appellant said he taught his sister how to drive, and Iconsborn said, “I wanna learn.” Appellant said that he could teach Iconsborn but added, “You’re supposed to have a permit before you get trained though.”
Iconsborn asked appellant, “Do u have a gf,” and he responded, “Nope,” and asked, “You have a bf?” Iconsborn said, “No,” and added, “I’m not really allowed to.” She explained that her mom was “weird about it” and, in response to appellant’s questions, denied that it was “like one of those arranged marriage things” or “a religious thing.” She continued, “I mean I’ve liked guys and hung out with them she just is protective.” Iconsborn said she had gone out on a couple dates and to a “school dance” with a guy. Appellant asked, “Anything after that?” and Iconsborn responded, “Kissing.” Appellant said, “That’s it?” and Iconsborn said, “Yeah that’s all I’ve done.” Appellant questioned further, asking, “Is it because you didn’t want to?” Iconsborn responded, “I do I just got nervous.” Appellant then said, “You’re missing out,” and “It’s the best thing ever lol.” Iconsborn responded, “Lol. Probably. Plus he would just tell everyone at school.” Appellant said, “So you need it to be a secret,” and added, “I can keep secrets.” Iconsborn wrote, “That cause u r older,” and appellant responded, “That’s true[.] . . . Things are more private when you’re older.”
Iconsborn asked appellant what he looked like and he sent her two photos—in one, he had a bare torso and a towel on the lower half of his body. Iconsborn responded, “Wow. Hot.” Appellant wrote that he had “other gifts too” and that he was “much more well equipped than most guys lol.” Iconsborn sent another photo, again of a law enforcement officer when she was 14. Appellant responded, “You’re on fire,” “You woke up my other half,” “Down below,” and “You better take responsibility for waking him up.”
Appellant then asked Iconsborn if she was “allowed to leave the house whenever you want or does your parents not let you?” She answered, “I live with my mom she usually works until 8,” and added that she and her sister sometimes had dinner with her dad. Appellant then wrote, “[I]f you want we can mess around this week.” Iconsborn answered, “Let me see if I can ditch my sister in the afternoon,” and appellant said he would get a “[h]otel room” so they could “mess around.”
The next morning, appellant sent Iconsborn two photos with the camera pointed at his groin area; in one, he was wearing only underwear. Iconsborn said she was going to the “mall with mom for a bit.” Appellant asked about meeting up in the afternoon, offering again to give a driving lesson and adding, “Then we can have fun after.” Appellant commented, “But it’s your first time,” and Iconsborn wrote, “I might not be good at it,” and “I don’t wanna get preggo cause yeah that would sux.” Appellant responded, “You won’t trust me lol,” and “I have very good self control and I know when to pull out.” Appellant offered to pick Iconsborn up but she said not at her house “[c]aus my older sis may be there.”
Appellant and Iconsborn continued to text and made plans to meet up in downtown Pleasant Hill. Appellant promised to have her home by 8:00 p.m. The final text in the thread is appellant announcing his arrival at the meeting place. He was met by law enforcement and detained. A search of his car revealed a brown bag containing a box of condoms and a container of lubricant, purchased about 30 minutes earlier."
Yeah. You're pretty much 100% getting found guilty again, dude.
I would just plead guilty and get it over with, personally.
