CALIFORNIA PENAL CODE 288(A) PC – LEWD ACTS WITH A MINOR CHILD

California Penal Code 288(a) PC defines a “lewd and lascivious acts with a minor child” as any lewd or lascivious act committed upon the body of a child under the age of 14, with the intent to arouse or gratify the desires of the perpetrator or the child, or another person. This offense can occur when someone willfully touches any part of a child’s body, or causes a child to touch their own body, the defendant’s body, or the body of another person.

If convicted under PC 288(a), penalties can include up to eight years of imprisonment, a fine of up to $10,000, or both imprisonment and a fine. Additionally, an extra fine of up to $10,000, paid into a victim’s relief fund, may be imposed. Those convicted will also be required to register as a Sex Offender for life.

288 PC: (a) Except as provided in subdivision (i), a person who willfully and lewdly commits any lewd or lascivious act, including any of the acts constituting other crimes provided for in Part 1, upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony and shall be punished by imprisonment in the state prison for three, six, or eight years.

Source: https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=288.&lawCode=PEN

ELEMENTS – PENAL CODE 288(A) CALIFORNIA

Proving intent in a criminal case can indeed be challenging. Whether a defendant acted with the necessary intent is a factual determination that is typically left to the jury. The jury considers all the circumstances surrounding the case to determine whether the defendant had the requisite intent as required by the law.

Under California Penal Code 288a, an individual can be found guilty of committing Lewd Acts on a Child if the prosecution successfully proves that:

• You willfully touched any part of a child’s body, or caused a child to touch their own body or that of someone else;
• The touching involved bare skin or clothing;
• The touching was done with the intent to satisfy sexual desires of themselves, the child, or another person; and
• The child involved was under the age of fourteen.

EXAMPLES

Examples of cases in which California courts upheld a conviction under Penal Code 288(a) include:

• A babysitter who touched the victim’s lower back, stomach, and thigh, with lewd intent inferred from additional charges involving sexual intercourse and genital contact with other victims.
• An armed stranger who pushed the victim to a secluded area and compelled her to lower her pants.
• A stranger inserted his hand inside the victim’s pants and proceeded to touch her stomach and genital area.

PENALTIES, PUNISHMENT, AND SENTENCING

Punishments for lewd acts against a child under California Penal Code 288(a) vary depending on several factors.

• If a child under the age of 14 is involved and no force or threats were used, the offense is charged as a felony crime under PC 288(a). The possible punishment includes 3, 6, or 8 years in state prison (or probation) and a fine of up to $10,000. However, if force or threats were used, the offense is charged under PC 288(b)(1), which can result in 5, 8, or 10 years in state prison (with no probation) and a fine of up to $10,000.
• The punishment can increase dramatically if the lewd act results in bodily harm to the victim under 14. Several statutes apply, including California’s “One Strike” law (Penal Code 667.61(d)(7)) that imposes a sentence of 25 years to life for personally inflicting bodily harm. Penal Code 288(i) can lead to a life sentence for personally inflicting bodily harm, and Penal Code 12022.8 imposes a 5-year sentencing enhancement for the infliction of great bodily injury.
• If the child involved in the lewd act is 14 or 15, it can be charged as a misdemeanor or a felony under PC 288(c)(1). A misdemeanor crime conviction can result in up to one year in county jail, while a felony conviction may lead to 16 months, 2 years, or 3 years in state prison, or felony probation including a maximum of 1 year in county jail.
• For minors aged 16 or 17, lewd acts would generally be prosecuted under California’s statutory rape law (Penal Code 261.5) or sexual battery law (Penal Code 243.4(a)).
• A defendant with a prior sex crime conviction can face increased sentencing under California’s habitual sexual offender law (Penal Code 667.71(b)), which carries a sentence of 25 years to life in state prison.
• Additionally, a conviction for a lewd act against a minor under 14 is considered a serious felony crimes under California’s “Three Strikes” Law (Penal Code 667). A second strike offense would result in double penalties, and a third strike offense carries a sentence of 25 years to life.

It’s important to note that each case is unique, and penalties can vary. It’s advisable to consult with an attorney for personalized legal advice tailored to your specific situation.

SEX OFFENDER REGISTRATION (CPC §290(C))

If convicted under CPC 288(a) for lewd acts, individuals are required to register as sex offenders, according to current law. As of 2021, there will be a change in the registration requirements. Those who are convicted once of lewd acts on a child will be classified as “Tier 2” offenders and must register as sex offenders for a minimum of twenty years. Subsequent convictions will result in a “Tier 3” designation, which requires lifetime sex offender registration.

DEFENSES

Here are some defenses that have been effective in cases of lewd acts with a minor:

• Challenging the child’s statement: An experienced defense attorney may investigate the child’s background, interview their family and friends, and review medical records and social accounts to determine if the child may be lying or mistaken about the allegations.
• Arguing mistaken identity: In cases where a child has experienced inappropriate touching and is uncertain about the identity of the perpetrator, there are certain factors that can contribute to this confusion. These factors may include the defendant being unknown to the child, the incident occurring in a dark or unfamiliar location, the perpetrator being of a different race than the defendant, or the child being very young. A competent defense team will examine the available evidence in order to challenge the child’s identification of the defendant as the perpetrator. They will seek to cast doubt on the accuracy and reliability of the identification in order to build a strong defense strategy.
• Claiming the touching was accidental: If the defendant can show that the touching was unintentional and not done with the purpose of sexually arousing themselves or the minor, it may be a valid defense.
• Lack of intent to arouse: The offense of lewd acts with a minor requires intent to sexually arouse or gratify. If the defendant can prove that there was no such intent, it can be a defense.
• Age criteria: California Penal Code 288(a) PC prohibits two specific forms of child molestation. The first involves engaging in a lewd act with a child under 14 years of age, while the second pertains to engaging in a lewd act with a minor who is 14 or 15 years old, as long as they are at least 10 years younger than the defendant. If the minor is 14 or 15 but is not at least 10 years younger than the defendant, or if the minor is older than 15, the defendant would not be found guilty under PC 288(a). However, it is important to note that even if a defendant is not guilty under PC 288(a), they may still face charges under other sections of the California Penal Code, such as Penal Code 261 (“statutory rape”) or Penal Code 243.4 (“sexual battery”). These additional charges may apply depending on the specific circumstances and evidence presented in the case.
• Police misconduct: Sexual offenses against children are aggressively prosecuted in California, but sometimes there can be instances of overzealous prosecution. It is important to be aware of the ways in which a defendant’s rights can be violated by the police or prosecutor. These violations may include illegal search and seizure, coerced confessions, entrapment, or other forms of police misconduct such as false testimony or planted evidence. If evidence in a PC 288(a) prosecution is obtained in violation of California law or the defendant’s constitutional rights, a skilled California sex crimes lawyer can often work towards having such evidence excluded from the case.
• Insanity defense: Insanity can be used as a defense to any criminal charge if the defendant can demonstrate that they either did not understand the nature of their criminal act or did not comprehend that their actions were morally wrong. However, it is challenging to convince juries of this defense, particularly in child sex cases. Defense attorneys typically rely on expert witnesses to demonstrate that the defendant’s actions were beyond their control.
• Intoxication defense: Intoxication, whether through alcohol or drugs, can potentially be used as a defense to lewd acts if the defendant can prove that their intoxication prevented them from having the intent to gratify sexual desire. However, similar to the insanity defense, it is challenging to successfully argue this defense in child sex cases before juries. In cases where the defendant can demonstrate that they were drugged without their knowledge or against their will, the defense of intoxication may be more effective. Juries often show more leniency towards individuals who commit criminal acts while involuntarily intoxicated.

ADDITIONAL CONSEQUENCES

Individuals who are convicted of a lewd act involving a minor may face additional repercussions beyond serving time in prison or paying a fine. These consequences include mandatory registration as a California sex offender, as well as the loss of their right to possess a firearm. Conviction of a lewd act with a minor may also lead to immigration consequences, resulting in possible removal or denial of entry into the United States. Additionally, defendants may be required to pay victim restitution, including covering the cost of the victim’s medical or psychological treatment. Finally, individuals may also face the loss of their professional license, such as a license to practice law or medicine.

RELATED CRIMES

• Penal Code 288.2 | Sending Harmful Matter to Seduce Minor
• Penal Code 288.3 | Contacting a Minor to Commit a Felony
• Penal Code 288.4 | Arranging a Meeting with a Child for Lewd Purposes
• Penal Code 288.5 PC | Continuous Sexual Abuse of a Child
• Penal Code 288.7 | Sex with a Child Under 10
• Penal Code 287 | Oral Copulation with a Minor
• Penal Code 311 | Child Pornography
• Penal Code 243.4 PC │ Sexual battery
• Penal Code 207 PC │ Kidnapping
• Penal Code 647.6 │ “Annoying” or “Molesting” a Child Under 18
• Penal Code 269 | Aggravated Sexual Assault of a Child

SPEAK WITH CRIMINAL DEFENSE LAWYER FROM TABIBNIA LAW FIRM

Please be aware that sex crimes such as lewd acts on a child are considered very serious offenses in the state of California. If you find yourself charged with such a crime, contact an experienced and dedicated criminal defense attorney promptly. Your rights, freedom, and livelihood are at stake.

A competent Los Angeles criminal defense attorney may be able to assist you in various ways such as negotiating a lesser charge through a plea bargain, potentially reducing your sentence, or even working towards getting the charges dismissed entirely.

At the Tabibnia Law firm in Southern California, our Los Angeles sex crime attorney, Cyrus Tabibnia, possesses a comprehensive understanding of the local courts and a deep knowledge of California’s criminal justice system. He is ready to represent you in any Southern California city.

If you or someone you know has been arrested or charged with lewd acts on a child, attorney Cyrus Tabibnia can carefully analyze the facts of your case and develop a defense strategy aimed at achieving the best possible outcome. To request a case evaluation, please call our office at 866-713-2159. It is crucial to consult with an attorney who can provide personalized advice in light of your specific circumstances.

Sources:

Related Issues,” California Criminal Jury Instructions 1110 (CALCRIM) (2017)

California Criminal Jury Instructions 1110 (CALCRIM) (2017)

CPC §288 (c) (1).

CPC §288 (e) (1).

CPC §288.1.

CPC §288 (b) (1).

CPC §288 (b) (2).