Lewd Acts with a Child
California Penal Code 288

Penal Code 288 PC is a crime committed by touching a child on his/her body for sexual purposes.¹ Justice officials sometimes refer to this "sexual assault" offense as "lewd acts on a minor under 14" or "acts of lewd or lascivious conduct." These cases often involve accusations that the child was touched or fondled on a sexual organ, or that some overt act of child molestation took place.

Unfortunately, many people are falsely accused of this very serious offense. False accusations can cause irreparable harm to one’s reputation, career, and family life. The good news is that skilled California sex crimes defense lawyers know the most effective strategies to expose false allegations...and to vindicate their clients.

In order to better understand exactly how Penal Code 288 PC is prosecuted...and, more importantly, defended...our Los Angeles "lewd acts with a minor" defense attorneys will address the following:

Overview of Penal Code 288 PC | Lewd Acts with a Child

How Do Prosecutors Prove that I am Guilty of Engaging in Lewd Acts with a Minor?

What Can I Do if I’m Falsely Accused of Engaging in Lewd Acts with a Child?

How Do I Defend Against a "Lewd Acts with a Minor" Charge?

Penalties, Punishment, and Sentencing for Penal Code 288 PC

"Lewd Acts with a Minor" and the Duty to Register as a Sex Offender

Penal Code 288 PC and Related Offenses

If, after reading this article, you have additional questions, we invite you to contact our California sex crimes defense lawyers.

You may also find helpful information in our related articles on Penal Code 261.5 Statutory Rape, Penal Code 243.4 Sexual Battery, Penal Code 288.2 Harmful Matter Sent with the Intent of Seduction of Minor, California Child Pornography Laws, and Penal Code 290 Registration as a Sex Offender.

Overview of Penal Code 288 PC | Lewd Acts with a Child

California Penal Code 288 PC is a broadly defined crime. Included within this offense are

1. lewd acts with a minor, and



2. lewd acts performed by a caretaker upon a dependant person.²

Because the most serious of the California Penal Code 288 laws involves lewd conduct with a child under 14 years old, it is the one on which this article will focus.

This offense involves touching the child or minor anywhere on the body...even on the outside of the clothing...if the touching is done "with the intent of arousing, appealing to, or gratifying the lust, passions or sexual desires of you or the child."³

Let’s look at an example.

Suppose 40-year-old Richard hugs his 6-year-old niece and kisses her on the cheek. He does this because it causes him sexual arousal. We might acknowledge that Richard has a "problem" for being sexually attracted to a young child. But we would hardly consider his actions to amount to "child molestation."

Practically speaking, this behavior would probably not be prosecuted...even if it could be proven. Yet the behavior falls within the formal definition of Penal Code 288 PC. That is, he touched the child on her body for sexual arousal.

The example shows just how broadly "lewd acts with a child" is defined.

There actually haven’t been that many substantive changes throughout the years since California’s "lewd acts with a minor" law was first enacted in 1901. It’s the potential prison sentence that has received the most revision.

In 1937, the offense called for a prison sentence of "one year to life." Then in 1976, the statute was amended to reduce the potential "life sentence" to a prison sentence of three, four, or five years. In 1978, the maximum sentence was increased to three, five, or seven years. Finally, in 1981 the code was amended to reflect today’s penalty...a three, six, or eight year state prison sentence.⁴

How Do Prosecutors Prove that I am Guilty of Engaging in Lewd Acts with a Minor?

In order to convict you of engaging in lewd acts with a minor, the prosecutor must prove the following facts (otherwise known as "elements of the crime"):⁵

1. that you willfully touched any part of a child’s body or that you willfully caused a child to touch his/her own body, your body, or another person’s body, and



2. that you did so with the intent of arousing, appealing to, or gratifying the lust, passion, or sexual desires of you or the child.

The age of the child additionally becomes relevant for sentencing purposes (which is discussed under Penalties, Punishment, and Sentencing for Penal Code 288 PC below).

Let’s take a closer look at some of these terms and phrases to better understand these elements.

• Willfully

You willfully commit an act if you do so deliberately or on purpose. It is not required that you intend to (1) break a law, (2) harm another person, or (3) gain any advantage.⁶

• Touch

To "touch" any part of a child’s body...or to have a child touch his/her or anyone else’s body...means

1. to touch bare skin, or



2. to touch the person’s body through his/her clothing.

It is important to note that even if you don’t touch the child in a lewd or sexual manner, prosecutor’s can still convict you of this charge.⁷

Referring to the example above, Richard simply hugged and kissed his niece on the cheek. Neither of those acts is considered "lewd or sexual," yet because he willfully performed those acts intending to arouse himself, he is technically guilty of Penal Code 288 PC California’s "lewd acts with a child" law.

• With the "intent" of arousing...

With respect to arousing or gratifying sexual desires, it isn’t necessary for the prosecution to prove that you or the child were actually aroused. The prosecutor must only prove that you intended to satisfy sexual desires.

Fortunately, it can be difficult to prove intent...especially if the "touch" wasn’t an overtly sexual act. This is frequently a weakness in the prosecution’s case...and one which a California sex crimes defense attorney can exploit.

What Can I Do if I’m Falsely Accused of Engaging in Lewd Acts with a Child?

False accusations of child sexual abuse occur often. Evidence suggests that many innocent adults have been arrested, prosecuted...and sadly, convicted...for alleged child molestation that never happened. Moreover, a California Penal Code 288 wrongful conviction can

• land an innocent person in the California State Prison,



• force him/her to become a registered sex offender for life, and



• ruin his career and reputation.

When a child makes an allegation of acts of lewd or lascivious conduct, police and prosecutors have a tendency to accept the child's word uncritically. The focus goes to building a criminal case against the accused, rather than scrutinizing the credibility of the accuser.

Children make up false sexual abuse accusations for a variety of reasons. Sometimes a child doesn't like a new step-parent and wants to get the unwelcome adult figure out of the home. Sometimes during a divorce or custody battle, one parent's subtle suggestions will induce a child into making false accusations of lewd acts against the other parent.

If you have been falsely accused of engaging in lewd acts with a minor...or even suspect that someone may accuse you of this offense...it is critical that you immediately consult with a California criminal defense attorney.

An experienced criminal defense attorney will team up with a private investigator. Working together, they can do wonders in fighting a wrongful accusation of Penal Code 288 PC "child molestation."

The defense team will do its best to locate evidence that corroborates your side of the story and that contradicts the accuser's allegations of lewd or lascivious conduct. This may consist of

• forensic evidence,



• witness statements,



• emails,



• texts, and



• phone records.

And if the attorney gets involved early enough...even before formal charges are filed...he/she can sometimes dissuade the prosecutor from pursuing the case to begin with. Failing that, your California "lewd acts with a child" defense lawyer will prepare the case for trial to convince the jury to return a "Not Guilty" verdict.

How Do I Defend Against a "Lewd Acts with a Minor" Charge?

Generally, the most important part of the defense investigation is examining the credibility of the accuser. Your attorney will want to

1. subpoena the accuser’s school, counseling, and medical records,



2. interview his/her family, friends, schoolmates, and those she chats with online, and



3. conduct a thorough background check on the accuser and any alleged witnesses.

As San Bernardino criminal defense attorney Robert Little explains,⁸ "Quite often, investigations reveal that the accuser has a bias and motive to harm the accused and that the accuser has a history of being untruthful and telling lies about other people as well."

But don’t despair. There are a variety of defenses that your California criminal defense lawyer can present on your behalf. Below is a sample of some of the most common.

• The "touch" was accidental

In order for prosecutors to convict you of "lewd acts with a minor," you must (1) willfully touch a minor, or (2) willfully cause the minor to touch you, him/herself, or another person.

Even if the alleged "touch" was upon a female breast, or other sexual organ, if it was an accidental encounter, you are not guilty of this charge.

• Lack of criminal intent

If you didn’t intend to sexually arouse or gratify yourself...or the minor who was involved in the alleged activity...you did not engage in child molestation. As previously stated, if (1) you didn’t "touch" the minor in an obviously sexual manner, it will be difficult for the prosecutor to prove that you intended to sexually arouse yourself or the child.

• The minor was older than 15 and less than ten years younger than you

There are two types of child molestation prohibited by California Penal Code 288 PC:

1. engaging in a lewd act with a child under 14, and



2. engaging in a lewd act with a minor who is 14 or 15 and who is at least ten years younger than you.

This means that if the minor in question is either (1) 14 or 15 years old and less than ten years younger than you, or (2) is older than 15, prosecutors can’t convict you of engaging in lewd acts with a child.

With respect to the age of the minor, there are two important facts to note. The first is that unlike a Penal Code 261 PC "statutory rape" charge,⁹ a mistaken belief in the minor’s age is not a defense to this charge.¹⁰

The second is the fact that even if the minor appeared to "consent" to the alleged activity, you will still be held criminally liable for the offense.¹¹ This is because...under California law...minors are legally incapable of giving "consent."

Penalties, Punishment, and Sentencing for Penal Code 288 PC

The penalties for violating California’s "lewd acts with a minor" law vary, depending on

1. the age of the child (and possibly the age difference between you and the minor),¹²



2. the specific facts of the case (for example, did the act involve force or violence?¹³), and



3. your criminal history.

If prosecutors charge you with California child molestation when the alleged victim is 14 or 15 years old and you are at least ten years older than the minor, the charge is what’s known as a wobbler.¹⁴ A "wobbler" can be filed as either a misdemeanor or as a felony.

The only true difference between misdemeanor and felony sentencing for a "lewd acts with a minor" charge lays in (1) the fine, and (2) the potential jail/prison sentence.

Misdemeanor child molestation subjects you to a maximum one-year county jail sentence and a maximum $1,000 fine. Felony charges subject you to one to eight years in the state prison and a maximum $10,000 fine.¹⁵

Otherwise, you face the following penalties violating any California Penal Code 288 PC "lewd acts with a minor" law:

• Penal Code 290 PC registration as a sex offender,¹⁶



• a requirement that you pay for any medical or psychological treatment that the minor incurs as a result of the offense,¹⁷ and



• an additional and consecutive five-year state prison sentence if the minor suffers great bodily injury because you use force or violence during the offense ("great bodily injury" is a significant or substantial physical injury).¹⁸

It’s also important to understand that each independent act of child molestation is a separate offense, punishable as its own violation.¹⁹ This means that if, for example, an individual were to fondle one part of the minor’s body...and were to then fondle a different part of the minor’s body...prosecutors could charge the perpetrator with two acts of "lewd acts with a child."

"Lewd Acts with a Minor" and the Duty to Register as a Sex Offender

As previously stated, one of the penalties for violating Penal Code 288 "lewd acts with a minor" is a lifetime duty to register as a sex offender, pursuant to California Penal Code 290 PC.²⁰ You must comply with this requirement regardless of which subdivision of Penal Code 288 PC prosecutors convict you.

The failure to register as a sex offender under Penal Code 290 PC will subject you to additional misdemeanor penalties as well.²¹

It must be noted that a judge has no discretion to alleviate you of your duty to register as a sex offender if you are convicted of one of the offenses listed in Penal Code 290(c). However, a skilled California sex crimes defense attorney can often negotiate a reduced charge in a plea bargain that doesn’t subject you to sex offender registration...Penal Code 242 "battery,"²² for example.

Penal Code 288 PC and Related Offenses

There are a variety of offenses that are related to Penal Code 288 "child molestation" either because they are

1. frequently charged in connection with a "lewd act with a minor" charge, or



2. are part of a Penal Code 288 PC charge.

Below are examples of some of the most common:

California Penal Code 288.2 PC | Harmful matter sent with the intent of seduction of minor

If you knowingly send or email erotic material to a minor with the intent of arousing yourself or the minor, you may be convicted of Penal Code 288.2 PC.²³ An example would include chatting online with a child you believe to be 12 years old, and then emailing him/her a nude photo.

This crime can be punished as a misdemeanor or felony, subjecting you to a county jail or state prison sentence. The law excludes parents or others who act for legitimate scientific or sex education purposes.²⁴

California Penal Code 311 PC | Child pornography laws

California child pornography laws prohibit possessing or distributing materials that depict minors engaging in sexual activity (which includes displaying the genitals).²⁵ If you show a minor these types of materials while engaging in a "lewd act" with that minor, prosecutors could charge you with possessing child pornography and child molestation.

If convicted of a child pornography offense under these circumstances, you may be sentenced to incarceration and substantial fines.²⁶

California Penal Code 288.5 PC | Continuous Sexual Abuse of a Child

This crime involves engaging in three or more "acts of lewd or lascivious conduct" over a period of three months or longer, with a child under 14 years of age. A person convicted of Penal Code 288.5 PC faces between 6 and 16 years of state prison.²⁷

California Penal Code 243.4 PC |Sexual battery

Penal Code 243.4 "sexual battery" prohibits touching the intimate part of another for sexual arousal, gratification, or abuse.²⁸ The difference between this law and Penal Code 288 "lewd acts with a minor" is that "sexual battery" makes no mention of the victim’s age.

If the minor was 14 or 15 and less than ten years younger than you or was 16 or 17, this is the offense with which prosecutors would likely charge you. A "sexual battery" charge may be filed as either a misdemeanor or as a felony.²⁹

California Penal Code 207 PC | Kidnapping

If you persuade, entice, or lure a minor to accompany you to a location so that you can engage in a "lewd act" with that child, prosecutors could charge you with kidnapping and child molestation.³⁰ Kidnapping under these circumstances subjects you to a five, eight, or eleven-year state prison sentence.³¹

If you have additional questions about California "lewd acts with a minor" laws, or you would like to discuss your case confidentially with one of our sex crimes defense attorneys, we invite you to contact us at Shouse Law Group.

We have local criminal law offices in Los Angeles, San Diego, Riverside, Orange County, San Bernardino, Ventura, San Jose, the San Francisco Bay area, and several nearby cities to conveniently serve you. Contact us at Shouselaw at 888-327-4652.

Additional Resource:

• Child Molestation Research and Prevention Institute- Offers referrals for sex-specific therapy for adults who have sexual thoughts involving children.

Legal References:

¹California Penal Code 288 -- Lewd acts with a minor. ("(a) Any 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. (b)(1) Any person who commits an act described in subdivision (a) by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, is guilty of a felony and shall be punished by imprisonment in the state prison for three, six, or eight years. (2) Any person who is a caretaker and commits an act described in subdivision (a) [lewd or lascivious acts] upon a dependent person by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, with the intent described in subdivision (a), is guilty of a felony and shall be punished by imprisonment in the state prison for three, six, or eight years. (c)(1) Any person who commits an act described in subdivision (a) with the intent described in that subdivision, and the victim is a child of 14 or 15 years, and that person is at least 10 years older than the child, is guilty of a public offense and shall be punished by imprisonment in the state prison for one, two, or three years, or by imprisonment in a county jail for not more than one year. In determining whether the person is at least 10 years older than the child, the difference in age shall be measured from the birth date of the person to the birth date of the child. (2) Any person who is a caretaker and commits an act described in subdivision (a) [lewd acts with a minor] upon a dependent person, with the intent described in subdivision (a), is guilty of a public offense and shall be punished by imprisonment in the state prison for one, two, or three years, or by imprisonment in a county jail for not more than one year. (d) In any arrest or prosecution under this section or [California Penal Code] Section 288.5, the peace officer, district attorney, and the court shall consider the needs of the child victim or dependent person and shall do whatever is necessary, within existing budgetary resources, and constitutionally permissible to prevent psychological harm to the child victim or to prevent psychological harm to the dependent person victim resulting from participation in the court process. (e) Upon the conviction of any person for a violation of subdivision (a) or (b), the court may, in addition to any other penalty or fine imposed, order the defendant to pay an additional fine not to exceed ten thousand dollars ($10,000). In setting the amount of the fine, the court shall consider any relevant factors, including, but not limited to, the seriousness and gravity of the offense, the circumstances of its commission, whether the defendant derived any economic gain as a result of the crime, and the extent to which the victim suffered economic losses as a result of the crime. Every fine imposed and collected under this section shall be deposited in the Victim-Witness Assistance Fund to be available for appropriation to fund child sexual exploitation and child sexual abuse victim counseling centers and prevention programs pursuant to Section 13837.")

²See same.

³California Penal Code 288 PC -- Lewd acts with a child. ("("(a) Any 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.")

See also Judicial Council Of California Criminal Jury Instruction (CALCRIM) 1110 -- Lewd or lascivious act: Child under 14 years. ("To prove that the defendant is guilty of this crime, the People must prove that...The defendant willfully touched any part of a child's body either on the bare skin or through the clothing; [OR]...The defendant willfully caused a child to touch (his/her) own body, the defendant's body, or the body of someone else, either on the bare skin or through the clothing...")

⁴California Penal Code 288 -- Lewd acts with a minor (Historical and statutory notes). ("The 1937 amendment defined the offense as "including any of the acts" instead of "other than the acts" constituting other crimes, etc. The amendment provided for imprisonment for a term of from one year to life instead of not less than one year. The 1976 amendment substituted at the end of the section "three, four or five years" for "from one year to life." [later designated subd. (a); see 1979 amendment note]. The 1978 amendment substituted "three five, or seven" for "three, four or five" years. [later designated subd. (a); see 1979 amendment note]. Prospective application of Stats.1978, c. 579, to crimes committed on or after Jan. 1, 1979, see Historical and Statutory Notes under Penal Code § 182. The 1979 amendment inserted subdivision designation "(a)" and added subd. (b). The 1981 amendment substituted, in subds. (a) and (b), a term of "three, six, or eight years" for "three, five, or seven years"; deleted, in subd. (b), "and against the will of the victim" following "threat of great bodily harm" (later deleted; see 1986 amendment note); and added subd. (c).")

⁵Judicial Council Of California Criminal Jury Instruction (CALCRIM) 1110 -- Lewd or lascivious act: Child under 14 years. ("To prove that the defendant is guilty of this crime, the People must prove that: <Alternative 1A—defendant touched child> [1] A The defendant willfully touched any part of a child's body either on the bare skin or through the clothing;] [OR] <Alternative 1B—child touched defendant> [1B] The defendant willfully caused a child to touch (his/her) own body, the defendant's body, or the body of someone else, either on the bare skin or through the clothing;] [2] The defendant committed the act with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of (himself/herself) or the child; AND [3] The child was under the age of 14 years at the time of the act.")

⁶ CALCRIM 1110 -- Lewd and lascivious act with a child under 14. ("Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage.")

⁷See CALCRIM 1110 -- Lewd and lascivious act with a minor, endnote 3, above. In addition, CALCRIM 1110 also reads ("The touching need not be done in a lewd or sexual manner.")

⁸San Bernardino criminal defense attorney Robert Little uses his inside knowledge as a former San Bernardino Deputy District Attorney to defend clients in the San Gabriel Valley and Inland Empire.

⁹CALJIC 10.67 -- Belief as to Age -- Unlawful Sexual Intercourse...("In the crime of unlawful sexual intercourse [otherwise known as California statutory rape, Penal Code 261 PC "statutory rape" charge], general criminal intent must exist at the time of the commission of the act of [sexual intercourse]. There is no general criminal intent if the defendant had a reasonable and good faith belief that the other person was 18 years of age or older at the time that person engaged in the act of [sexual intercourse]. Therefore, a reasonable and good faith belief of such age is a defense to unlawful [sexual intercourse]. If after consideration of all of the evidence, you have a reasonable doubt that the defendant had general criminal intent at the time of the act of [sexual intercourse], you must find [him] [her] not guilty of the crime.")

¹⁰People v. Olsen (1984) 36 Cal.3d 638, 647. ("The language in Hernandez, together with the reasoning in Tober, Toliver and Gutierrez, compel the conclusion that a reasonable mistake as to the victim's age is not a defense to a [California Penal Code] section 288 PC [lewd acts with a minor] charge. This conclusion is supported by the Legislature's enactment of [Penal Code] section 1203.066. (Stats.1981, ch. 1064, § 4, pp. 4095-4096.) Subdivision (a)(3) of that statute renders certain individuals convicted of lewd or lascivious conduct who "honestly and reasonably believed the victim was 14 years old or older" eligible for probation. The Legislature's enactment of section 1203.066, subdivision (a)(3), in the face of a corresponding failure to amend [California Penal Code] section 288 [lewd acts with a child] to provide for a reasonable mistake of age defense, strongly indicates that the Legislature did not intend such a defense to a [Penal Code] section 288 PC charge.")

¹¹People v. Cardenas (1994) 21 Cal.App.4th 927, 937. ("Consent, or a reasonable good faith belief in the age of a child to give consent, are not defenses to crimes charged under Penal Code section 288 [lewd acts with a minor]. ( People v. Olsen (1984) 36 Cal.3d 638, 647-648, 205 Cal.Rptr. 492, 685 P.2d 52.) Therefore, consent is not an issue whether it be fraudulently obtained or freely given.")

¹²California Penal Code 288 PC "lewd acts with a minor" draws a distinction between those acts that are performed on a minor who is under 14 years of age and between a minor who is 14 or 15 years of age when the perpetrator is at least ten years older than that minor. (See endnote 1, above). If the individual is under 14, the offense is an automatic felony. In the second scenario, prosecutors could charge the perpetrator with a misdemeanor or a felony.

¹³California Penal Code 288 "sexual assault on a minor" makes a distinction between lewd acts on a minor and lewd acts on a minor that involve force or violence. Even though the penalties for both are three, six, or eight years in the state prison, force or violence will act as an aggravating factor.

¹⁴See endnote 12, above.

¹⁵California Penal Code 288 -- Lewd acts with a minor. ("(a) Any 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....(c)(1) Any person who commits an act described in subdivision (a) with the intent described in that subdivision, and the victim is a child of 14 or 15 years, and that person is at least 10 years older than the child, is guilty of a public offense and shall be punished by imprisonment in the state prison for one, two, or three years, or by imprisonment in a county jail for not more than one year. In determining whether the person is at least 10 years older than the child, the difference in age shall be measured from the birth date of the person to the birth date of the child....(e) Upon the conviction of any person for a violation of subdivision (a) or (b) [of California Penal Code 288 PC "lewd acts with a child"], the court may, in addition to any other penalty or fine imposed, order the defendant to pay an additional fine not to exceed ten thousand dollars ($10,000). In setting the amount of the fine, the court shall consider any relevant factors, including, but not limited to, the seriousness and gravity of the offense, the circumstances of its commission, whether the defendant derived any economic gain as a result of the crime, and the extent to which the victim suffered economic losses as a result of the crime. Every fine imposed and collected under this section shall be deposited in the Victim-Witness Assistance Fund to be available for appropriation to fund child sexual exploitation and child sexual abuse victim counseling centers and prevention programs pursuant to Section 13837. If the court orders a fine imposed pursuant to this subdivision, the actual administrative cost of collecting that fine, not to exceed 2 percent of the total amount paid, may be paid into the general fund of the county treasury for the use and benefit of the county.")

¹⁶California Penal Code 290 -- Sex Offender Registration Act. ("(c) The following persons shall be required to register: Any person who, since July 1, 1944, has been or is hereafter convicted in any court in this state or in any federal or military court of a violation of...any act punishable under [California Penal Code] Section...288 [lewd acts with a minor]...")

¹⁷California Penal Code 1203.1g -- Sexual assault on minor; restitution for costs of medical or psychological treatment of victim; condition of probation. ("In any case in which a defendant is convicted of sexual assault on a minor, and the defendant is eligible for probation, the court, as a condition of probation, shall order him or her to make restitution for the costs of medical or psychological treatment incurred by the victim as a result of the assault and that he or she seek and maintain employment and apply that portion of his or her earnings specified by the court toward those costs. As used in this section, "sexual assault" has the meaning specified in subdivisions (a) and (b) of Section 11165.1 [which includes violations of California Penal Code 288 PC "lewd acts with a child"]. The defendant is entitled to a hearing concerning any modification of the amount of restitution based on the costs of medical and psychological treatment incurred by the victim subsequent to the issuance of the order of probation.")

¹⁸California Penal Code 12022.8 -- Infliction of great bodily injury; commission or attempted commission of certain sex offenses; additional punishment. ("Any person who inflicts great bodily injury, as defined in [Penal Code] Section 12022.7 PC, on any victim in a violation of...subdivision (b) of [California Penal Code] Section 288 PC [lewd acts with a minor]...shall receive a five-year enhancement for each violation in addition to the sentence provided for the felony conviction.")

See also California Penal Code 12022.7 -- Terms of imprisonment for persons inflicting great bodily injury while committing or attempting felony. ("(f) As used in this section, "great bodily injury" means a significant or substantial physical injury.")

¹⁹People v. Scott (1994) 9 Cal.4th 331, 347. ("Each individual act that meets the requirements of [California Penal Code] section 288 [lewd acts with a child] can result in a "new and separate" statutory violation. ( Harrison, supra, 48 Cal.3d 321, 329, 256 Cal.Rptr. 401, 768 P.2d 1078, italics omitted.) As some courts already recognize, a more lenient rule of conviction should not apply simply because more than one lewd act occurs on a single occasion. (See, e.g., People v. Bright (1991) 227 Cal.App.3d 105, 109-110, 277 Cal.Rptr. 612.) Under defendant's approach, the clever molester could violate his victim in numerous lewd ways, safe in the knowledge that he could not be convicted and punished for every act. In light of the special protection afforded underage victims, we cannot conceive that the Legislature intended this result.")

²⁰Lifetime duty to register as a sex offender, pursuant to California Penal Code 290 PC -- The Sex Offender Registration Act -- ("(a) Sections 290 to 290.023, inclusive, shall be known and may be cited as the Sex Offender Registration Act. All references to "the Act" in those sections are to the Sex Offender Registration Act. (b) Every person described in subdivision (c), for the rest of his or her life while residing in California, or while attending school or working in California, as described in Sections 290.002 and 290.01, shall be required to register with the chief of police of the city in which he or she is residing, or the sheriff of the county if he or she is residing in an unincorporated area or city that has no police department, and, additionally, with the chief of police of a campus of the University of California, the California State University, or community college if he or she is residing upon the campus or in any of its facilities, within five working days of coming into, or changing his or her residence within, any city, county, or city and county, or campus in which he or she temporarily resides, and shall be required to register thereafter in accordance with the Act. (c) The following persons shall be required to register: Any person who, since July 1, 1944, has been or is hereafter convicted in any court in this state or in any federal or military court of a violation of...any act punishable under [California Penal Code] Section...288 [lewd acts with a minor]...")

²¹An individual guilty of failure to register as a sex offender under Penal Code 290 PC faces up to one year in county jail or up to three years in the state prison. Failing to register is a "continuing" offense, which means that each time you violate one of your duties to register, you commit a separate offense. As a result, failing to register as a sex offender can result in a substantial prison sentence.

²²California Penal Code 242 "battery" -- ("Battery A battery is any willful and unlawful use of force or violence upon the person of another.")

²³California Penal Code 288.2 PC | Harmful matter sent with the intent of seduction of minor. ("(a) Every person who, with knowledge that a person is a minor, or who fails to exercise reasonable care in ascertaining the true age of a minor, knowingly distributes, sends, causes to be sent, exhibits, or offers to distribute or exhibit by any means, including, but not limited to, live or recorded telephone messages, any harmful matter, as defined in Section 313, to a minor with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of that person or of a minor, and with the intent or for the purpose of seducing a minor, is guilty of a public offense and shall be punished by imprisonment in the state prison or in a county jail.")

²⁴See same. ("(c) It shall be a defense to any prosecution under this section that a parent or guardian committed the act charged in aid of legitimate sex education. (d) It shall be a defense in any prosecution under this section that the act charged was committed in aid of legitimate scientific or educational purposes.")

²⁵California Penal Code 311 PC | Child pornography laws. California child pornography laws under California Penal Code 311 and its related sections prohibit: distributing child pornography, employing minors to participate in or help produce child porn, possessing child porn, advertising child pornography, and developing, duplicating, printing, or exchanging child porn. For purposes of California child pornography laws, a "child" is anyone under 18, unless he/she is an emancipated minor or involved in lawful conduct between spouses when either or both of the individuals are under 18.

²⁶California Penal Codes 311.1 – 311.11

²⁷California Penal Code 288.5 -- Continuous sexual abuse of a child. ("(a) Any person who either resides in the same home with the minor child or has recurring access to the child, who over a period of time, not less than three months in duration, engages in three or more acts of substantial sexual conduct with a child under the age of 14 years at the time of the commission of the offense, as defined in subdivision (b) of Section 1203.066, or three or more acts of lewd or lascivious conduct, as defined in Section 288, with a child under the age of 14 years at the time of the commission of the offense is guilty of the offense of continuous sexual abuse of a child and shall be punished by imprisonment in the state prison for a term of 6, 12, or 16 years.")

²⁸California Penal Code 243.4 PC |Sexual battery. ("(a) Any person who touches an intimate part of another person while that person is unlawfully restrained by the accused or an accomplice, and if the touching is against the will of the person touched and is for the purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of sexual battery. A violation of this subdivision is punishable by imprisonment in a county jail for not more than one year, and by a fine not exceeding two thousand dollars ($2,000); or by imprisonment in the state prison for two, three, or four years, and by a fine not exceeding ten thousand dollars ($10,000).")

²⁹See same.

³⁰California Penal Code 207 PC | Kidnapping. ("(b) Every person, who for the purpose of committing any act defined in [California Penal Code] Section 288 [lewd acts with a child], hires, persuades, entices, decoys, or seduces by false promises, misrepresentations, or the like, any child under the age of 14 years to go out of this country, state, or county, or into another part of the same county, is guilty of kidnapping.")

³¹California Penal Code 208 -- Kidnapping; punishment. ("(b) If the person kidnapped is under 14 years of age at the time of the commission of the crime, the kidnapping is punishable by imprisonment in the state prison for 5, 8, or 11 years. This subdivision is not applicable to the taking, detaining, or concealing, of a minor child by a biological parent, a natural father, as specified in Section 7611 of the Family Code, an adoptive parent, or a person who has been granted access to the minor child by a court order.")

Join us to discuss your criminal case at any of our
local offices: You can also contact us 24/7 at
888.327.4652 for a free consultation