What is “child annoyance”? A defense lawyer explains

Posted on February 14, 2022

Man placing hands on shoulders of young girl to illustrate the crime of child annoyance. — Pan placing hands on shoulders of young girl to illustrate the crime of child annoyance.

Per Penal Code 647.6 PC, child annoyance is a type of criminal conduct in California that occurs when:

a person engages in an act directed at a child (under the age of 18),
the act is motivated by sexual interest in the child, and
a normal person would have been disturbed, irritated, or injured by the act.

Annoying a child is an offense in California that can be charged as either a misdemeanor or a felony.

Fortunately for persons accused of the crime, legal defenses do exist to challenge child annoyance accusations. For example, a defendant can try to show that a child or an accuser was lying.

1. What is child annoyance in California?

Penal Code 647.6 is the California statute that makes it a crime for a person to annoy or molest a child under 18. For purposes of this law, “annoy” and “molest” mean the same thing.

A prosecutor must successfully prove the following elements to show that a defendant is guilty under this statute:

1. the defendant engaged in conduct directed at a child,
2. an average person, without hesitation, would have been disturbed, irritated, offended, or injured by the defendant’s conduct,
3. the defendant’s conduct was motivated by an unnatural or abnormal sexual interest in the child, and
4. the child was under the age of 18 years at the time of the conduct.¹

Please note that for an accused to be guilty under PC 647.6, it is not necessary that the child actually was actually irritated or disturbed. It is also not necessary that the child was actually touched. Words alone may constitute annoying or molesting behavior.²

Examples of illegal acts under this statute include:

Mark offers to perform oral sex on his girlfriend’s 10-year old son,
Arthur asks a 15-year old, in a lewd fashion, whether she likes various sexual positions, and
Joe masturbates in a car parked outside a high school when the school lets out for the day.

2. What are the penalties for annoying or molesting a child?

Child annoyance can be charged as either a misdemeanor or a felony in California, depending on the specific facts of a case.

Absent aggravating circumstances, a first offense under PC 647.6 PC is a misdemeanor. The crime is punishable by:

up to one year in county jail, and/or
a fine of up to $5,000.

If a person violates PC 647.6 after entering an inhabited dwelling without consent, the crime becomes a “wobbler” offense. A wobbler may be charged as either a misdemeanor or a felony at the prosecutor’s discretion.²

If charged as a misdemeanor, the crime is punishable by a fine and/or county jail sentence as set forth above.

If charged as a felony, a conviction carries a maximum penalty of one year in the California state prison.

Note that a violation of Penal Code 647.6, even a first offense, is charged as a felony if the defendant has a prior felony conviction for certain specified sex offenses. Such crimes include (but are not limited to):

Penal Code 261, rape, of a minor under 16,
Penal Code 288.5, continuous sexual abuse of a child, and
Penal Code 288, lewd acts with a child.⁴

If an accused has a previous felony conviction for a specified sex offense, a PC 647.6 violation is punishable by up to six years in state prison.

3. Are there legal defenses to PC 647.6 charges?

Criminal defense attorneys draw upon several legal strategies to help clients contest charges under this law. A good defense may work to reduce or even dismiss a charge.

Some common defenses to allegations under this statute include:

the child or accuser was lying,
the accused’s actions were not “directed at” a child,
the child involved was over the age of 18,
the defendant’s conduct was not motivated by sexual interests, and
the conduct involved was not disturbing, irritating, or injurious.

4. What is California Penal Code 288, lewd acts with a child?

Penal Code 288 is a law similar to child annoyance. PC 288 is the California statute that punishes the intentional touching of a child when it is done to:

sexually arouse the defendant, or
sexually arouse a child.

Any “touching,” even if done through a child’s clothing, is sufficient to result in a crime under this statute.⁵

Punishment for lewd acts with a child will vary depending on the child’s age and whether force or threats were used. Sentences range from as little as probation and a year in county jail to 10 years in state prison.

Legal References:

1. 1. 1. CALCRIM No. 1122 – Annoying or Molesting a Child, Judicial Council of California Criminal Jury Instructions (2020 edition). See also People v. Lopez (1998) 19 Cal.4th 282.
    2. See same. See also People v. Memro (1995) 11 Cal.4th 786.
    3. California Penal Code 647b.
    4. California Penal Code 647c2.
    5. People v. Martinez (1995) 11Cal.4th 434. See also People v.Diaz (1996) 41 Cal.App.4th 1424.

About the Author

Neil Shouse

A former Los Angeles prosecutor, attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT). He has been featured on CNN, Good Morning America, Dr Phil, Court TV, The Today Show and Court TV. Mr Shouse has been recognized by the National Trial Lawyers as one of the Top 100 Criminal and Top 100 Civil Attorneys.