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California Penal Code § [Section] 288.3(a) – Contacting Minor With Intent To Commit Certain Felonies

California Penal Code § [Section] 288.3(a) – Contacting Minor With Intent To Commit Certain Felonies

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California Penal Code [CPC] §288.3(a)Contacting Minor With Intent To Commit Certain Felonies – The State of California makes it illegal to communicate with a minor if, at the time of contact, you intend on committing with that minor any one of the fifteen felonies listed in the statute. Section §288.3(a) makes it a crime to contact someone you should reasonably believe to be a minor, unlike similar offenses, and even criminalizes mere attempts at communicating with a minor in order to commit certain felonies.

CPC §288.3 punishes all illegal communications as attempts at committing the intended felony. If you attempt a crime that has a specific sentence and/or fine associated with it, the sentence and/or penalty stated will apply to you. You are otherwise eligible to receive up to three years in a state prison and pay as much as $10,000 in fines for violation of this Code section.

If you're convicted under CPC §288.3(a) after a prior conviction for the offense, you face an additional five years in prison. You'll also face a separate sentence and/or fines for the underlying offense, since CPC §288.3(a) is its own crime. Conviction under California Penal Code §288.3(a) will require state Sex Offender registration in any case.

What Does California Penal Code §288.3(a) [Contacting Minor With Intent To Commit Certain Felonies] Prohibit?

In sum, to be guilty of Contacting Minor With Intent To Commit Certain Felonies under CPC §288.3(a), the prosecution must prove that:    

  • You at least attempted to contact a minor; AND,
  • You intended on committing a listed felony with the minor; AND,
  • You knew, or should've known, that person was a minor.

Defining “Contacting Minor With Intent To Commit Certain Felonies” Under California Penal Code §288.3(a)

To convict you under CPC §288.3(a), the prosecution must prove the following beyond a reasonable doubt:

  • Contact Or Communicate With Minor: You contacted, communicated with, or attempted to contact or communicate[1] with a minor;[2] AND,
  • Intent: You intended on committing with the minor one of the offenses enumerated in the statute; AND,
  • Enumerated Offense: You intended on Kidnapping,[3] Kidnapping For Ransom Or Reward,[4] Rape,[5] Gang Rape,[6] Child Abuse Likely To Cause Great Bodily Harm Or Death,[7] Sodomy,[8] Illegal Oral Copulation,[9] Lewd Acts On A Child,[10] Showing Or Sending Harmful Material To Seduce A Minor,[11] Sexual Penetration By Force, Fear Or Threats,[12] Distributing Obscene Matter Showing Sexual Conduct By A Minor,[13] Distributing Or Intending To Distribute Obscene Material,[14] Using A Minor To Perform Prohibited Acts,[15] Possession Or Distribution Of Obscene Matter Showing Sexual Conduct By A Minor,[16] or Oral Copulation With A Person Under Eighteen;[17] AND,
  • Person Was A Minor: You knew or reasonably should've known the other person was a minor.[18]

Note: “The court has a… duty to instruct on the good faith belief that the victim was not a minor as a defense for certain sex crimes with minors[ ] […] when that defense is supported by evidence.”[19]

Example:  Defendant Douglas, aged eighteen, uses a social media app (phone application) to make the acquaintance of sixteen-year-old Victim Valentina because he wants to have sex with her. Douglas knows Valentina's age because she tells it to him. He eventually convinces Valentina to meet with him in person. They have sex. This fact is discovered soon after by Valentina's Parents, who report Douglas for Statutory Rape.[20] Douglas, after his arrest, is also charged under CPC §288.3(a) for contacting Valentina before the sex act. Should Douglas be convicted of contacting a minor to commit a certain felony?

Conclusion: Douglas wanted to have sex with a girl he knew was a minor when he contacted Valentina. Douglas also knew, or reasonably should've known, based on her statements that Valentina wasn't eighteen. Douglas didn't have the intent to commit one of the felonies listed in the statute when he contacted Valentina, however, because CPC §288.3(a) doesn't include Statutory Rape. He actually didn't commit any of the enumerated crimes with Valentina. Thus, while he can be convicted of Statutory Rape, Douglas can't be convicted under §288.3(a) because that Code section doesn't prohibit his act.  

Penalties For “Contacting Minor With Intent To Commit Certain Felonies” Under CPC §288.3(a)

As noted previously, CPC §288.3(a) punishes every effort to contact a minor to commit an enumerated felony as an attempt at committing that felony. If the crime you're accused of calls for a specific Attempt[21] penalty, you should expect to receive that sentence and/or any associated fine if you're convicted under this section. If the crime you allegedly intended on committing has no Attempt penalty, however, you can receive up to three (3) years in a state prison,[22] a fine of up to $10,000 (ten-thousand dollars), or both imprisonment and a fine.[23] If you're convicted of violating any form of §288.3(a) after a previous conviction under the same section, however, your sentence will be enhanced by five years.[24]

If you're convicted of violating CPC §288.3(a), furthermore, you will be required to register as a Sex Offender.[25] Current law defines a person convicted under this Code Section as a “Tier Three” offender, meaning that you'll have to register, and update your movements, if any, for the rest of your life. There are, however, exceptions provided if you intended on violating sections of §§286, 287, 288a and 289.[26]    

 

 

Defenses To Contacting Minor With Intent To Commit Certain Felonies Under CPC §288.3(a)

Three of the more common defenses against a charge of Contacting Minor With Intent To Commit Certain Felonies under Section 288.3(a) are:

You Didn't Know You'd Contacted A Minor

Example: Defendant Derrick uses an Internet dating site that claims to screen all applicants to ensure that they're at least eighteen years of age. The site matches Derrick with Victim Vanya, both of whom created accounts for people seeking a sexual relationship. They agree to meet at a bar. Vanya orders alcohol at the meeting. Vanya also tells Derrick stories about working in a cocktail bar and about her Ex-Husband. They adjourn to Derrick's apartment and have oral sex. Derrick doesn't realize that Vanya, seventeen, has fabricated her stories. He's arrested and charged under §288.3(a) for intending on violating §288a when he contacted Vanya. Derrick claims he can't be convicted because he always thought Vanya was an adult. Should Derrick be convicted or acquitted under these circumstances?

Conclusion: Derrick contacted a minor when he communicated with Vanya, who was seventeen at the time, and intended on having a sexual relationship with Vanya. The act he committed with Vanya is listed under CPC §288.3(a) [namely, Oral Copulation With A Person Under Eighteen, §288a]. These are all elements of the offense. But Derrick neither knew nor, it could be argued, should reasonably have known that Vanya was a minor. Vanya was on a dating site that purported to serve legal adults only; she ordered alcohol when they met; Vanya told Derrick stories about working in a cocktail bar (something she could only do in California if she were twenty-one) and even told him a story about having an Ex-Husband. These facts could easily create reasonable doubt in Derrick's mind regarding Vanya's age. Therefore, given that reasonable doubts must be resolved in the defendant's favor in this country, Derrick should be acquitted because it's reasonable to believe he didn't know he'd contacted a minor.   

You Didn't Commit One Of The Enumerated Felonies

Example: Defendant Donna uses her Internet connection to peruse images posted on teen dating sites. She even has a false profile she's created for herself in which she claims to be fifteen. This is how she gets in contact with fifteen-year-old Victim Vinnie. She solicits Vinnie to meet her for sex. He arrives at her home only to tricked, tied up, and molested by Donna. He protests all the while. Later, when Vinnie tells Police Officer what Donna did, Donna is arrested for committing Sexual Battery[27] and charged under CPC §288.3(a). Should Donna be convicted of contacting Vinnie in order to commit a felony?

Conclusion: Donna contacted a minor with the intent to commit a sex act with that minor. Donna knew, or reasonably should've known, that she was in contact with a minor; she was using a teen dating site at the time and had even gone as far as creating a sham account to use on the website. (This is how she met Vinnie.) But Donna didn't commit one of the enumerated offenses with Vinnie. While Sexual Battery is a serious offense, if is not listed in §288.3(a). Therefore, while Donna is criminally liable, she can't be convicted under CPC §288.3(a) because she didn't commit one of the enumerated felonies.     

You Were Entrapped

Example: Defendant Dean has a conviction on his record for violating CPC §288.3 (a). Police, who learn that he's living in their neighborhood, decide that he's an “easy mark” and focus on getting Dean to violate the section again. They have Police Volunteer, a sixteen-year-old girl, approach Dean on the street and ask Dean to go out with her. He declines. Then Police Volunteer is made to call Dean and leave sexually suggestive messages on his voice mail system. Dean ignores these as well. Finally, desperate to make him concede, police leave a stack of nude pictures in Dean's mailbox alongside a note that purports to be Police Volunteer's phone number and a request that he send nudes to her. Dean finally surrenders to the pressure. He calls the number, gets an address from Police Volunteer, and sends Police Volunteer several photos of himself simulating a sex act along with a request that they “meet for more.” Police then arrest Dean and charge him with violating §288.3(a) by sending harmful material to seduce a minor (a violation of CPC §288.2). Should Dean be convicted of the accusation?    

Conclusion: Dean sent what would normally be considered obscene material to a minor in the hopes of arranging a sexual encounter with that minor. Sending the pictures violated one of the offenses listed in CPC §288.3(a). He likely would've known, having met Police Volunteer face-to-face, that he was dealing with a minor as well. These elements establish the prima facie case against Dean. However, the defense of Entrapment prevents law enforcement from engaging “in conduct that would cause a normally law-abiding person to commit [a] crime.” This sort of conduct includes “badgering, persuasion by flattery or coaxing, repeated and insistent requests, or an appeal to friendship or sympathy.”[28] On these facts, Dean was subject to repeated and insistent efforts to convince him to contact Police Volunteer for some sort of sexual encounter. Police badgered him through Police Volunteer, their agent, both on the street and over the telephone. They even went as far as leaving nudes for Dean to find along with an invitation to send sexual material to the sixteen-year-old. This sort of conduct could easily be interpreted by a jury as constituting illegal police Entrapment. Thus Dean shouldn't be convicted because he was entrapped.

Related Offenses

Note: The crimes below are described as “related” because they're frequently charged with §288.3(a) and/or have common elements that the prosecutor must prove beyond a reasonable doubt.

The California Penal Code contains several offenses related to Contacting Minor With Intent To Commit Certain Felonies: Lewd Acts On A Child (CPC §288(a)), Statutory Rape (CPC §§261.5(a),(b)), Showing Or Sending Harmful Material To Seduce A Minor (CPC §288.2(a)(1)), Arranging Meeting With Minor For Lewd Purpose (CPC §288.4(a)(1)), Distributing Obscene Matter Showing Sexual Conduct By A Minor   (CPC §311.1(a)), Lewd Conduct In Public (CPC §647(a)), Indecent Exposure (CPC §314(1)), Rape (CPC §261(a)), and Sexual Battery (CPC §243.4(a)).

Lewd Acts On A Child

The crime of Lewd Acts On A Child (CPC §288(a)) occurs when an adult engages in a sex act with a minor under fourteen.  The act must occur “with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires”[29] of yourself or the child.

Section 288(a) is written to so that prosecutors can charge differently, depending on the ages of the victim and defendant, so Lewd Acts On A Child is a “wobbler”[30] offense in California. The crime is related to Contacting Minor With Intent To Commit Certain Felonies because both offenses can involve sexual conduct between adults and minor children, resulting in charges for both in the same trial.

If you're convicted of Lewd Acts On A Child under CPC §288(a), the penalty may be:

  • A term of up to eight (8) years in a state prison;[31] OR,
  • A fine of up to $10,000 (ten-thousand) dollars; OR,
  • Both a fine and imprisonment;[32] AND,
  • The duty to register as a Sex Offender.[33]

Note: Section 288(a) also requires some kind of touching “with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of [the adult] or the child” for the law to be broken - but actual arousal isn't required. Additionally, it is not a defense that the minor consented to the act.[34]

More information can be found in the Sex Offense Lawyer section of the Kann California Defense Group's website. If you have questions, contact any of the Kann Defense Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your call will always go directly to a lawyer – and we guarantee it.

California Criminal Jury Instructions – Lewd Acts On A Child

To convict you under §288(a), the prosecutor must prove the following beyond a reasonable doubt:

You willfully touched a part of a child's body on the bare skin or through the clothing or you got a child to touch your body, the child's own body, or someone else's body on bare skin or through the clothing. The prosecutor must also show that you acted intending to gratify your sexual desires or the desire of the child. Finally, the prosecutor must prove the child was under age fourteen at the time of the act.

Example: A professional child photographer, Defendant Deena, takes advantage of a photo session to touch the bare feet of six-year-old Victim Vanna. Then Deena takes photos of Vanna, fully clothed, as scheduled. Vanna tells Mother about the touching. Mother has Deena arrested. The photographs she took of Vanna are seized during the arrest. Deena is charged under CPC §288(a). While Deena admits she was sexually aroused by touching Vanna's feet she also notes that the subsequent photos were completely innocent and professional in nature. Should Deena be convicted or acquitted of the crime?  

Conclusion: Deena touched Vanna's body on Vanna's bare skin. Admitting that she was sexually aroused by the touching satisfies the second element of the crime of Lewd Acts On A Child. Vanna, finally, was well under the age of fourteen at the time of the act. Deena's defense indicates that she has confused the crime of Using A Minor To Perform Prohibited Acts[35] with Lewd Acts On A Child. But Deena needed to do nothing more than touch Vanna as she did to violate CPC §288(a). Deena should be convicted.

Statutory Rape

Statutory Rape (CPC §§261.5(a),(b)) occurs in California whenever an adult has “[u]nlawful sexual intercourse[36] […] with a [minor] who is not the spouse of the perpetrator[.]”[37] For purposes of the law, “adult” means a person eighteen years of age or older, while a “minor” is under eighteen.[38]

Section 261.5 is written to so that prosecutors can charge differently, depending on the ages of the victim and defendant.[39]  However, without aggravating facts, you won't be required to register as a Sex Offender for violating §261.5.[40] The crime of Statutory Rape is related to Contacting Minor With Intent To Commit Certain Felonies because both offenses may involve sex acts between adults and minor children, resulting in charges for both in the same trial.

If you're convicted of Statutory Rape Of A Minor Within Three Years of your age, the penalty may be:

  • Imprisonment for up to six (6) months in a county jail; OR,
  • A fine of up to $1,000 (one-thousand dollars); OR,
  • Both imprisonment and a fine.[41]

Note:  The minor's consent is not a defense to a charge of violating CPC §261.5. However, it is a defense that you reasonably believed the other person was eighteen or older. The prosecutor must prove that you didn't reasonably (and actually) believe the other person was at least eighteen.[42]

More information can be found in the Statutory Rape section of the Kann California Defense Group's website. If you have questions, contact any of the Kann Defense Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. We guarantee your call will go directly to a lawyer.

California Criminal Jury Instructions – Statutory Rape

To convict you under CPC § §261.5(a),(b), Statutory Rape Of A Minor Within Three Years Of Your Age, the prosecutor must prove the following beyond a reasonable doubt:

You had sex with another person. You and the other person were not married to each other at the time. Finally, at the time of the sex, the other person was under the age of eighteen but not more than three years younger or older than you were.

Example: Defendant Devon is eighteen when he has sex with his sixteen-year-old girlfriend Victim Viola.  Almost two years later, a month before Viola's eighteenth birthday, Devon proposes marriage to Viola. She accepts and that night tells Parents about the arrangement. Parents protest. Viola tells Parents they should accept the situation because she's already been having sex with Devon for more than a year and even had sex with him the night before. Parents have Devon arrested and charged under §§261.5 (a) and (b). Devon protests that Viola is going to be his wife. Should Devon be acquitted on these facts?

Conclusion: Devon had sex with Viola approximately one month shy of her eighteenth birthday. Viola was only two years younger than Devon. These are elements of the charged offense. The only question is whether an engagement changes the legal situation. The answer is that it's irrelevant. Being married to Viola would've absolved Devon of responsibility for violating CPC §§261.5 (a) and (b). In that case, an element of the offense couldn't be proved in court by the prosecution. The defendant would have to be acquitted. However, since Devon wasn't actually married to Viola at the time they had sex (and since all the other elements of the crime are present), Devon should be convicted of Statutory Rape.      

Showing Or Sending Harmful Material To Seduce A Minor

Showing Or Sending Harmful Material To Seduce A Minor (CPC §288.2(a)(1)) occurs whenever anyone “sends, causes to be sent, exhibits, or offers to distribute or exhibit” material featuring minors engaged in sexual conduct. The material must be “harmful,”[43] it must sent or exhibited to sexually arouse the sender or recipient, and some sort of sexual contact must be intended to violate if the Code section. The crime is related to Contacting Minor With Intent To Commit Certain Felonies because both Showing Or Sending Harmful Material To Seduce A Minor and Contacting Minor With Intent To Commit Certain Felonies involve adults and minors in sex acts or attempted sex acts.

Since CPC §288.2(a)(1) can be prosecuted as either Misdemeanor or a Felony, depending on the facts of your case, Showing Or Sending Harmful Material To Seduce A Minor is a “wobbler” crime[44] in California.   

If you're convicted of the Felony form of the offense, the penalty may be:

  • A term of up to five (5) years in a state prison;[45] OR,
  • A fine of up to $10,000 (ten-thousand dollars); OR,
  • Both imprisonment and a fine;[46] AND,
  • The duty to register as a Sex Offender.[47]

Note: The depiction of nudity or sexual activity doesn't necessarily make material harmful. While the prosecution must prove that you knew the character of the material, however, it doesn't have to prove you knew the material met the definition of “harmful.”[48]

More information can be found in the California Sex Offense Lawyers section of the Kann California Defense Group's website. If you have questions, contact any of the Kann Defense Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your call will go directly to a lawyer –   and that's always guaranteed.

California Criminal Jury Instructions - Showing Or Sending Harmful Material To Seduce A Minor

To convict you under CPC §288.2(a)(1), the prosecution must prove the following beyond a reasonable doubt:

You exhibited, sent, distributed or offered to a minor material depicting at least one minor engaging in   sex acts.  When you acted, you knew the character of the material, and knew, should've known, or should've believed the other person was a minor. You intended to gratify the sexual desires of yourself or the other person. Finally, you intended on having sexual intercourse, sodomy, or oral sex, or to have anyone involved with the material touch an intimate body part.

Example: Defendant Devlin stores several intimate photographs on his telephone. These include nude pictures that he sent to Ex-Girlfriend. A Hacker gets access to Devlin's phone and his personal contacts. Hacker sends Devlin's nude images to every person on Devlin's contact list. This includes Devlin's thirteen-year-old niece, Victim Vera. Vera tells Father about the picture. Father has Devlin arrested for violating §288.2(a)(1). Devlin insists the charge is baseless. Should he be convicted on these facts?    

Conclusion: Devlin did nothing illegal in this fact pattern. He neither knowingly nor willingly sent anything to Vera; that was all Hacker's doing. Thus it follows that Devlin didn't know anything about Vera, a minor, being the recipient of his nude photo and couldn't have intended on gratifying his sexual desires when the photo was sent. He also didn't intend on engaging in sexual activity with Vera. Finally the image sent depicted Devlin, an adult, in the nude. Since several elements of CPC §288.2(a)(1) can't be demonstrated in court, Devlin must be acquitted of the charge.  

Arranging Meeting With Minor For Lewd Purpose

Arranging Meeting With Minor For Lewd Purpose (CPC §288.4(a)(1)) makes it illegal to arrange to meet with a minor in order to expose your genitals, pubic area or your anus, or to meet in order to engage in lewd and lascivious conduct. Unlike similar offenses, CPC §288.4(a)(1) makes it a crime to arrange a meeting with someone you only assume “to be a minor.”[49]

If you're convicted of Arranging Meeting With Minor For Lewd Purpose, the penalty may be:

  • A term of up to one (1) year in a state prison; OR,
  • A fine of up to $5,000 (five-thousand dollars); OR,
  • Both a fine and imprisonment;[50] AND,
  • The duty to register as a Sex Offender.[51]

Note: If you arrange to meet with a minor and actually arrive at the location at or near the arranged time, you can receive up to four (4) years in a state prison[52] and a fine of up to $10,000 (ten-thousand dollars).[53] The same is true if you violate §288.4(a)(1) after a previous conviction of one of the crimes listed in CPC §290(c), a subpart of the statute establishing Sex Offender registration rules and crimes.

More information can be found in the California Sex Offense Lawyers section of the Kann California Defense Group's website. If you have questions, contact any of the Kann Defense Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your call will go directly to a lawyer –   and we always guarantee it.

California Criminal Jury Instructions - Arranging Meeting With Minor For Lewd Purpose

To convict you under CPC §288.4(a)(1), the prosecution must prove the following beyond a reasonable doubt:

You arranged a meeting with a minor or a person you believed to be a minor. You were motivated by an unnatural or abnormal sexual interest in children when you arranged the meeting. Finally, you intended to expose your genitals, or your pubic or rectal area, or to have the minor expose these, or you intended to engage in lewd or lascivious behavior at the meeting.

Example:  Defendant Donna is invited to the birthday party of Victim Vail, Neighbor's eight-year-old daughter, and sexually molests Vail at the event. Donna later admits to police that she went to the party intending on committing lewd acts. She also admits that she's sexually attracted to children. She admits, finally, that she knew Vail, her neighbor, was a minor. But Donna, who's been charged under CPC §288.4(a)(1), insists that she can't be convicted on these facts. Should she be convicted or acquitted?    

Conclusion: Donna molested a person she knew to be a minor. She went to the party intending on committing lewd conduct. She was motivated by an attraction to children when she went to the party. Each of these facts establishes an element of the charged offense. However, while Donna went to the birthday party, we can assume that the party was arranged by Neighbor. Thus Donna didn't actually arrange a meeting with a minor; she went to a party where a minor, Vail, was in attendance. Therefore, while Donna can be convicted of a sex offense,[54] she should be acquitted of violating CPC §288.4(a)(1).

Distributing Obscene Matter Showing Sexual Conduct By A Minor

Distributing Obscene Matter Showing Sexual Conduct By A Minor (CPC §311.1(a)) involves sending, bringing, or causing obscene matter to be sent or brought into the state. An alternative form involves

possessing, preparing, publishing, producing, developing, duplicating, or printing obscene matter. The law is broken if you offer to distribute obscene matter to someone else, or if you offer to distribute, show or exchange obscene matter with someone else. You must also know the nature of material and that it shows someone under eighteen participating in, or simulating, a sex act.

CPC §311.1(a) is a “wobbler”[55] offense in this state, meaning that it can be charged as Misdemeanor or a Felony, depending on the facts.  The crime is related to Contacting Minor With Intent To Commit Certain Felonies because both obscene material involving minors and contacting a minor for a lewd purpose involve minors and sex acts.

If you're convicted of the Felony form of Distributing Obscene Matter Showing Sexual Conduct By A Minor, the penalty may be:

  • A term of up to three (3) years in a state prison[56]; OR,
  • A fine of up to $10,000 (ten-thousand dollars); OR,
  • Both imprisonment and a fine;[57] AND,
  • The duty to register as a Sex Offender.[58]

Note: To be obscene, material must show sexual activity and meet the requirements for obscenity. A person who possesses obscene matter for his or her own personal use is not guilty of violating CPC §311.1(a) and material isn't considered “obscene” if all the persons under eighteen in the material are legally emancipated or if it only shows lawful conduct between spouses.[59]

More information can be found in the Child Pornography section of the Kann California Defense Group's website. If you have questions, contact any of the Kann Defense Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your call goes directly to a lawyer. Guaranteed.

California Criminal Jury Instructions – Distributing Obscene Matter Showing Sexual Conduct By A Minor

To convict you under CPC §311.1(a), the prosecution must prove the following beyond a reasonable doubt:

You sent, brought, or caused obscene matter to be sent or brought into the state or you possessed, prepared, published, produced, developed, duplicated, or printed obscene matter. You offered to distribute obscene matter to someone or you distributed, or showed, or exchanged obscene matter to, or with, someone. Finally, you knew the sexual nature of material, and you knew the material showed a person under eighteen personally participating in, or simulating, sex acts.

Example:  Defendant Dino sells used videos at a small store that he stocks by ordering films, by genre, in gross from an out-of-state supplier. This is why he isn't sure exactly what titles he'll receive at any time. One day Dino decides to add stock to his adult video section. He orders a gross of 500 used videos to be imported to his California location. He leaves them to be sold in a bin beneath a sign that reads “$3” when they arrive. This is how Undercover Officer, who's perusing the stock, comes across a title that he knows is illegal because it features an underage performer having sex. Dino is charged under §311.1(a). Should he be convicted of the crime?

Conclusion: Dino, as the facts state, made available for sale a video that featured an underage person having sex. This qualifies as offering to distribute material that is obscene and illegal in California. Dino also caused the video to enter the state by ordering it and having it sent to his location. Given that Dino was making it available in his adult section, furthermore, Dino would've known the sexual nature of the material. However, as the facts also state, Dino's unusual business arrangement ensured that he didn't know what titles he'd ordered or what he would receive. He simply purchased videos in gross based on genre - nothing more. Dino didn't even individually price the merchandise; he just left the videos in a bin with a generic sign advertising a cost. Thus Dino shouldn't be convicted under CPC §311.1(a) because Dino didn't know that the video in question showed a person under eighteen performing a sex act.

Lewd Conduct In Public

 

The crime of Lewd Conduct In Public (CPC §647(a)) occurs in California whenever a person touches him- or herself (or someone else) sexually in public. The touching must involve genitals, breasts, or buttocks. There must be someone who could be offended present and the defendant must know or suspect this.   You can be charged with both Contacting Minor With Intent To Commit Certain Felonies and Lewd Conduct In Public, if the facts are right, but actual touching is required to violate CPC §647(a).

If you're convicted of violating Lewd Conduct In Public under Section (a), the penalty may be:

  • A term of up to six (6) months in the county jail; OR,
  • A fine of up to $1,000 (one-thousand dollars); OR,
  • Both a fine and imprisonment.[60]

Note: California Penal Code §647(a) does not require Sex Offender registration.[61]

More information can be found in the California Sex Offense Lawyers section of the Kann California Defense Group's website. If you have questions, contact any of the Kann Defense Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your call will go directly to a lawyer – and it's always guaranteed.

California Jury Instructions – Lewd Conduct In Public

To convict you under §647(a), the prosecution must prove the following beyond a reasonable doubt:

You willfully touched your, or another person's, genitals, buttocks, or (female) breast. You intended to sexually gratify yourself, or someone else, or to annoy or offend another. You were in a public place or a place open to public view at the time you did it and someone who might've been offended was present. Finally, you knew or should've known that another person who might've been offended was present.

Example:  A sorority member, Defendant Diamante, is fond of playing offensive pranks on the sorority's elderly next door Neighbors. She calls the couple and tells them that a strange woman is in their front yard. But when Neighbors look they find Diamante, her pants down, exposing her bare buttocks and spanking herself in the yard. Neighbors call police and have Diamante arrested for violating CPC §647(a). Diamante insists that she did nothing lewd because she had no sexual intent. Should she be convicted?     

Conclusion: Diamante, as the facts state, willfully touched her bare buttocks in order to expose and spank herself in front of Neighbors. She also did so while in their front yard, which, we can assume, is open to the public, since most front yards are publicly visible. She anticipated that Neighbors would be present to see the display; this is why she called and told them to look in the yard. This is why Neighbors were present to see her. These are all elements of the crime. Lastly, although Diamante seems to believe that Lewd Conduct In Public requires a sexual motivation, Diamante touched her buttocks to annoy or offend Neighbors. This is a sufficient motive for conviction under the statute; she doesn't have to intend on sexual gratification at the time of the touching. Diamante, therefore, should be convicted.

Indecent Exposure

In California, the crime of Indecent Exposure (CPC §314(1)) occurs when a person exposes his or her naked body or genitals in front of anyone who could be annoyed or offended by it. While most people think it only happens in public, Indecent Exposure can happen in just about any environment. The exposure, however, must be willful and lewd.

Penalties for Indecent Exposure vary. Section 314(1) may permit the prosecutor to charge you with a Felony if you expose yourself inside a home or “inhabited” building.[62] This makes §314(1) a “wobbler”[63]  offense: the prosecution can charge you with a Felony or a Misdemeanor, depending on the facts. You will be charged with a Felony if you're convicted of violating §314 more than once or if you're convicted of violating Section 314 after you've been convicted of Lewd Acts With A Minor, a violation of CPC §288.

If you're convicted of the Felony form of Indecent Exposure, the penalty may be:

  • A term of up to three (3) years in a state prison;[64] OR,
  • A fine of up to $10,000 (ten-thousand dollars); OR,
  • Both imprisonment and a fine;[65] AND,
  • The duty to register as a Sex Offender.[66]

More information can be found in the Indecent Exposure section of the Kann California Defense Group's website. If you have questions, contact any of the Kann Defense Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your call goes directly to a lawyer. Guaranteed.

California Criminal Jury Instructions – Indecent Exposure

To convict you under §314(1), the prosecutor must prove the following beyond a reasonable doubt:

You intended to expose your naked body or genitals near a person who might be offended or annoyed by it. You believed you would be seen, even if no one actually saw the exposure. Finally, you exposed yourself for your own sexual gratification, or someone else's, or to sexually offend someone else.

Example:  Defendant Devin has been arrested for, and convicted of, a Misdemeanor violation of CPC §314(1). He accepts the result because he exposed his genitals to an adult at a public park. But Devin refuses to register as a Sex Offender because, as he claims on appeal, the offense isn't as much a threat to society as it would be if he'd exposed himself in an inhabited dwelling. He also claims the sentence is disproportionate because there are sex offenses that don't require registration even though they're more serious than what he did. Finally he says that a simple look at similar charges in other states will show that requiring him to register is out of proportion.[67] Should Devin win on any of these arguments?

Conclusion:  While there is Sex Offender registration required for Felony convictions under CPC §314(1), California courts have held for almost thirty-five years that it's unlawful to require a misdemeanant to register as a Sex Offender for committing Indecent Exposure. Our courts have held that the actual harm to society posed by a Misdemeanor violating §314(1) doesn't warrant the severe remedy of required registration. Other states take a similar approach. It's also true that sex offenses arguably more serious than Indecent Exposure don't require registration under CPC §290(c). Since Devon is citing California law when using these factors in his appeal, California courts would likely order that Devon doesn't have to register as a Sex Offender.

Rape

 

California's law against Rape (CPC §261(a)) applies when anyone has sexual intercourse with someone who's not his or her spouse without that person's consent. Absence of consent can be overcome in a number of illegal ways, including use of force or threats.

The statute lists several circumstances in which sexual intercourse is considered rape, such as sexual intercourse with someone who's unconscious owing to alcohol or drug intoxication. Rape is related to Contacting Minor With Intent To Commit Certain Felonies because a minor isn't legally considered capable of consenting to sex, although sexual intercourse may be intended in meeting with a minor.         

If you're convicted of Rape, a Felony, the penalty may be:

  • A term of up to eight (8) years in a state prison;[68] OR,
  • A fine of up to $10,000 (ten-thousand dollars); OR,
  • Both a fine and imprisonment;[69] AND,
  • The duty to register as a Sex Offender.[70]

Note: A Rape conviction counts as a violent felony for purposes of California's “Three Strikes” system.[71]

More information can be found in the California Rape Attorneys section of the Kann California Defense Group's website. If you have questions, contact any of the Kann Defense Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your calls go directly to a lawyer.

California Criminal Jury Instructions – Rape

To convict you under CPC §261(a)(2), the prosecution must prove the following beyond a reasonable doubt:

You had sexual intercourse with someone who wasn't your wife or husband.[72] The other person didn't consent and you accomplished the intercourse using threats, fear, or force directed at the other person or at someone else.

Example:  Defendant Damien meets Victim Verna at a party. He escorts Verna to her apartment at the end of the evening. Damien learns along the way that Verna has a young Son. He threatens to hurt Son   if Verna doesn't have sex with him. Verna consents but calls police as soon as Damien leaves. She has him arrested and charged for committing Rape under §261(a)(2). Damien says he's innocent because Verna consented to sex. “Besides,” he says, “I never even hit her!” Is Damien correct about the charge?         

Conclusion:  Damien had sex with a woman who wasn't his wife. He only accomplished the sex act with Verna using a threat to hurt Son - meaning that Verna only had sex with Damien to protect her child. This is known as coercion and it does not produce effective legal consent. If Damien were correct in believing he can't rape Verna under these circumstances, every person who obtains consent through threats would be forgiven. But, given that she had sex with Damien for reasons completely unrelated to personal desire, concluding that Verna consented sex in this situation would make no sense. Damien, therefore, should be convicted under §261(a)(2).

Sexual Battery

Sexual Battery (CPC §243.4(a)) occurs whenever anyone “touches an intimate part of another person while that person is unlawfully restrained.” The restraint can originate with you or an accomplice but it can only violate this Section “if the touching is against the will of the person touched and is for the purpose of sexual arousal, sexual gratification, or sexual abuse.”[73]

Since the prosecution can charge you with a Felony or a Misdemeanor, depending on the facts of your case, Sexual Battery is a “wobbler”[74] offense in California. The crime is related to Contacting Minor To Commit Certain Felonies because you can intend on committing Sexual Battery when contacting a minor, which is one of the felonies listed in the statute.

If you're charged with the Felony form of Sexual Battery, the penalty may be:

  • A term of up to four (4) years in a state prison; OR,
  • A fine of up to $10,000 (ten-thousand dollars); OR,
  • Both a fine and imprisonment;[75] AND,
  • The duty to register as a Sex Offender.[76]

Note: “Unlawful restraint requires more than just the physical force necessary to accomplish the sexual touching.”[77]

More information on Sexual Battery can be found on the Kann California Defense Group's website. If you have questions, contact any of the Kann Defense Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your call will go directly to a lawyer. That's a guarantee.

California Criminal Jury Instructions – Sexual Battery

To convict you under CPC §243.4(a), the prosecution must prove the following beyond a reasonable doubt:

You or an accomplice unlawfully restrained someone and touched an intimate part of that person's body or made that person touch him- or herself or touch someone else. You touched that person against his or her will and did it for the specific purpose of sexual arousal, sexual gratification, or sexual abuse.

Example: A well-known children's TV show host, Defendant Derrick, establishes a children's hospital in his name. He often visits the disabled boys and girls who receive free care in the facility until Victim Vic, a patient, accuses Derrick of molesting him after he visits Vic's bed.[78] Vic says that Derrick closed the curtain, which separated them from Other Patients and Staff, then held one hand over Vic's mouth while sticking the other into Vic's underwear. Derrick, arrested and charged under §243.4(a), insists in his defense that he didn't use handcuffs or the like. Is Derrick, therefore, innocent of Sexual Battery?

Conclusion: Derrick has been accused of touching a child whom he knew didn't desire to be touched. This is evidenced by the statement that Derrick covered Vic's mouth before sexually battering him. It's also reasonable to assume Derrick sought to touch Vic's genitals for Derrick's own sexual gratification, or, perhaps, to sexually abuse Vic. The remaining legal issue is whether Derrick restrained Vic. Derrick seems to believe that he must use proper restraints, like handcuffs, to commit Sexual Battery. He is mistaken. Constructive restraints - such as physically isolating a disabled boy and covering his mouth so that he can't alert others to an ongoing sexual battery – qualify under the law as well. Therefore, while Derrick may not have physically bound Vic, Derrick nonetheless restrained Vic and should be convicted.

 

 

What Can I Do If I'm Charged With Contacting Minor With Intent To Commit Certain Felonies?

The State of California regards sex crimes as a serious offense. If you're charged with Contacting Minor With Intent To Commit Certain Felonies, it's essential that you retain a skilled, dedicated criminal defense attorney as soon as possible. Your rights, freedom, and livelihood are at stake.

Remember, a professional criminal defense attorney may be able to:

  • Negotiate a lesser charge in a plea bargain;
  • Reduce your sentence;
  • Or even get charges dismissed completely.

The attorneys at the Kann California Defense Group have an excellent understanding of the local courts and an extensive knowledge of California's criminal justice system. We can represent you in Ventura, Santa Clarita, Los Angeles, Encino, Pasadena and many other Southern California cities. If you or someone you know has been arrested or charged with Contacting Minor With Intent To Commit Certain Felonies, our attorneys will analyze the facts of your case and plan a defense strategy that will help you obtain the very best possible outcome.

Contact the Kann California Defense Group today to schedule your free and confidential consultation.                               

References

[1] “'[C]ontacts or communicates with' shall include direct and indirect contact or communication that may be achieved personally or by use of an agent or agency, any print medium, any postal service, a common carrier or communication common carrier, any electronic communications system, or any telecommunications, wire, computer, or radio communications device or system.” See CPC §288.3 (b).

[2] “A minor is a person under the age of 18.” See California Criminal Jury Instructions 1124 (CALCRIM) (2017).

[3] See CPC §207.

[4] See CPC §209.

[5] See CPC §261.

[6] See CPC §264.1.

[7] See CPC §273a.

[8] See CPC §286.

.

[9] See CPC §287.

[10] See CPC §288.

[11] See CPC §288.2.

[12] See CPC §289.

[13] See CPC §311.1.

[14] See CPC §311.2.

[15] See CPC §311.4.

[16] See CPC §311.11.

[17] See California Criminal Jury Instructions 1082 (CALCRIM) (2017).

[18] “Under the law, a person becomes one year older as soon as the first minute of his or her birthday has begun.” See California Criminal Jury Instructions 1124 (CALCRIM) (2017).

[19] See California Criminal Jury Instructions 1124 (CALCRIM) (2017).

[20] See CPC §261.5.

[21] See CPC §21a.

[22] See CPC §18 (a).

[23] See CPC §672.

.

[24] See CPC §288.3 (c).

[25] See CPC §290 (c) [Amended (as added by Stats. 2017, Ch. 541, Sec. 2.5) by Stats. 2018, Ch. 423, Sec. 52. (SB 1494) Effective January 1, 2019].

[26] See CPC §290 (d) (3) (C) (xi) [Amended (as added by Stats. 2017, Ch. 541, Sec. 2.5) by Stats. 2018, Ch. 423, Sec. 52. (SB 1494) Effective January 1, 2019].

[27]  See CPC §243.4.

[28] See California Criminal Jury Instructions 3408 (CALCRIM) (2017).

[29] See CPC §288 (a).

[30] See “Wobbler” definition at USLegal.com.

[31] See Endnote 29.

[32] See Endnote 23.

[33] See Endnote 25.

[34] See California Criminal Jury Instructions 1110 (CALCRIM) (2017).

[35] See Endnote 15.

[36] See California Criminal Jury Instructions 1070 (CALCRIM) (2017).

[37] See CPC §261.5 (a).

[38] See above.

[39] See CPC §§261.5 (b), (c), (d).

[40] See Endnote 25.

[41] See CPC §19.

[42] See California Criminal Jury Instructions 1072 (CALCRIM) (2017).

[43] See California Criminal Jury Instructions 1140 (CALCRIM) (2017).

[44] See Endnote 30.

[45] See CPC §288.2 (a) (1).

[46] See Endnote 23.

[47] See Endnote 25.

[48] See Endnote 43.

[49] See CPC §288.4 (a) (1).

[50] See above.

[51] See Endnote 25.

[52] See CPC §288.4 (b).

[53] See Endnote 23.

[54] Donna is eligible to be charged with Lewd Acts On A Child, among other crimes.

[55] See Endnote 30.

[56] See Endnote 22.

[57] See CPC §311.1 (a).

[58] See Endnote 25.

[59] See California Criminal Jury Instructions 1141 (CALCRIM) (2017).

[60] See Endnote 41.

[61] See Endnote 25.

[62] See CPC §314.

[63] See Endnote 30.

[64] See Endnote 22.

[65] See Endnote 23.

[66] See Endnote 25.

[67] Fact pattern based on In Re King, 157 Cal. App. 3d 556 (4th Dist.) (1984). (Defendant appealed requirement that he register as a Sex Offender after Misdemeanor conviction, claiming sentence was disproportionate to act, out-of-step with similar charges, and less than required by more serious sex offenses; Ct.App. agreed.)

[68] See CPC §264 (a).

[69] See Endnote 23.

[70] See Endnote 25.

[71] See CPC §667.5 (c) (3).

[72] “Gender-specific language is used [in the jury instructions] because rape usually occurs between a man and a woman. In keeping with plain English principles, the committee used those terms to make the instruction clear and concrete.” See ‘Commentary,' California Criminal Jury Instructions 1000 (CALCRIM) (2017).

[73] See CPC §243.4 (a).

[74] See Endnote 30.

[75] See Endnote 73.

[76] See Endnote 25.

[77] See California Criminal Jury Instructions 935 (CALCRIM) (2017).

[78] Fact pattern based on the life and crimes of onetime British celebrity Jimmy Savile. See Crimes That Shook Britain: Jimmy Savile, A & E Networks UK documentary (2014).

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