Penal Code 288.3 PC – Contacting a Minor to Commit a Felony

Penal Code 288.3 PC makes it a crime to contact or communicate with a minor (someone under the age of 18), having reason to know that the person is a minor, with the intent to commit a sex crime or other serious felony involving that minor.

The underlying felony offenses that can support charges of “contacting a minor with intent to commit a felony” include:

• Kidnapping; ^{1 2}
• Rape;³
• Penal Code 273a PC child endangerment;⁴
• Penal Code 286 PC illegal acts of sodomy;⁵
• Lewd acts with a child under 14;⁶
• Oral copulation by force or fear;⁷
• Oral copulation with a minor;⁸
• Sending harmful material to a minor;⁹
• Forcible sexual penetration (with a foreign object);¹⁰ and
• Certain child pornography crimes.¹¹

It is important to understand that you can be convicted of “contacting a minor with intent to commit a felony” even if you never actually do anything illegal with the minor.¹²

This is because Penal Code 288.3 PC is a form of attempted crime in California criminal law —under which you can be published for merely taking steps toward the commission of a crime.

Examples

Here are some examples of situations that could give rise to charges of contacting a minor to commit a felony:

• A pedophile develops a sexual interest in an 11-year-old girl who lives on his street. He strikes up conversations with her when she is in her front yard, and he calls her on her cell phone a few times to chat. He plans to invite her over to his house and perform sexual acts with her.
• A woman is hired by an organized crime group that makes child pornography. Her job is to hang out on social media sites and then send private messages to teenagers who seem vulnerable, in the hopes of eventually recruiting them to pose for pornographic photos.

Penalties

The penalties for contacting a minor with intent to commit a felony are the same as those for actually committing the felony.¹³

For example, contacting a minor under age fourteen (14) with intent to commit Penal Code 288 lewd acts on a child would be a California felony. Like the underlying offense, it would carry a potential state prison sentence of three (3), six (6) or eight (8) years, and/or a fine of up to ten thousand dollars ($10,000).¹⁴

Plus, repeat offenders will face an additional five (5) years in state prison if they have previously been convicted of a violation of Penal Code 288.3 PC.¹⁵

And no matter what the underlying offense was, defendants convicted of contacting a minor with intent to commit a felony will be required to register as a sex offender in California. In most cases, the defendant will be required to register as a tier three offender, which requires lifetime registration. In some cases, the defendant will be required to register as a tier two offender, which requires a 20-year minimum registration requirement. Or the person may be required to register as a tier one offender, which requires a 10-year registration requirement. ¹⁶

Legal defenses

These are devastating penalties—especially considering that, in many PC 288.3 cases, no one is actually harmed by the defendant’s conduct.

In fact, in an overwhelming number of cases, the “minor” is not a real minor at all. Instead, s/he an undercover police officer trying to catch “sexual predators” on the internet.

Several common legal defenses that can help you escape a conviction for contacting a minor intending to commit a felony are:

• You did not actually intend to commit one of the underlying offenses;
• You did not know the person was a minor; and/or
• The California legal defense of entrapment.

In order to help you better understand the law, our California criminal defense attorneys will address the following:

• 1. What does it mean to contact a minor with intent to commit a felony?
  • 1.1. Underlying offenses
• 2. What are the consequences of a Penal Code 288.3 conviction?
  • 2.1. Sex offender registration requirement
• 3. How can a defense lawyer fight this charge?
• 4. PC 288.3 and Related Offenses
  • 4.1. Penal Code 288.4 arranging a meeting with a minor for lewd purposes
  • 4.2. Penal Code 261.5 statutory rape

If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.

1. What does it mean to contact a minor with intent to commit a felony?

The legal definition of contacting a minor with intent to commit a felony, California Penal Code 288.3, consists of several “elements of the crime.” These are facts that a jury in a California jury trial must find to be true—beyond a reasonable doubt—for someone to be guilty of this offense.

The elements of contacting a minor intending to commit a felony are:

1. The defendant contacted or communicated with, or attempted to contact or communicate with, a minor;
2. When the defendant did so, s/he planned to commit one of the offenses listed in Penal Code 288.3 PC involving that minor; and
3. The defendant knew or reasonably should have known that the person was a minor.¹⁷

Let’s take a closer look at these elements in order to better understand what they mean.

Contacted or communicated with

For purposes of PC 288.3, contact or communication can mean any of the following:

• Personal (in-person) contact;
• Contact through any print medium (such as a personal or “Missed Encounters” ad in a newspaper or magazine);
• Contact through the mail;
• Contact by phone;
• Contact through any wire or radio communications technology; and/or
• Contact through email or the internet.¹⁸

Example: Mortimer is a “ham radio” operator who also has a private interest in sexual sadism. Through an internet discussion group devoted to ham radios, he meets Ruth, a 16-year-old girl.

Mortimer begins to fantasize about kidnapping and raping Ruth. He initiates contact with her by ham radio almost every day. He also finds out where she lives and goes to school.

Mortimer may be guilty of contacting a minor with intent to commit a felony—with the underlying felonies being California kidnapping and Penal Code 261 PC rape.

The act of contacting or communicating with a minor includes both direct and indirect contact and communication.¹⁹

Example: Andrei is a 45-year-old man involved in the production of pornographic films involving underage girls. One night at a club, he becomes acquainted with Lily, a 16-year-old whom he thinks would make an excellent “actress” in his films.

Andrei suspects that Lily would not be receptive if he tried to make friends with her. So he asks his extremely handsome 19-year-old nephew Bob to contact Lily instead.

Andrei believes that Bob will be able to establish a close relationship with Lily and eventually persuade her to be part of the films.

Andrei could be convicted of contacting a minor with intent to commit a felony even though he only made contact with Lily indirectly (through Bob).

A minor

A minor is a person who is younger than eighteen (18) years old.²⁰

California Penal Code 288.3 makes it a crime both to contact or communicate with a minor—and to attempt to contact or communicate with a minor.²¹

This point is important because this law is often enforced through sting operations involving undercover officers (usually on the internet) who are only pretending to be minors.

So in many cases, the defendant did not actually communicate with a minor—but instead communicated with someone s/he believed to be a minor.

Example: Jeff plays multi-player fantasy role-playing games online.

In one game, he meets “Sally,” whose character behaves in a sexually-charged way toward Jeff’s character. Sally’s online profile says that she is 15.

Jeff becomes sexually interested with Sally and starts sending her emails. In one of the emails he talks about how he wants to meet up with her and engage in oral sex (this would be the crime of Penal Code 287 PC oral copulation with a minor).

It turns out that “Sally” is actually a middle-aged police detective working on a sex crimes sting operation.

But Jeff may still be guilty of attempting to contact a minor with intent to commit a felony—because he believed that he was emailing a 15-year-old girl.

Knew or reasonably should have known that s/he was a minor

You are not guilty under Penal Code 288.3 PC unless you either:

• Knew, or
• Reasonably should have known,

that the alleged “victim” was a minor.²²

This means that you should not be convicted of this offense if, for example, the minor explicitly claimed that s/he was not a minor—and you had no reason to believe otherwise.

1.1. Underlying offenses

You are only guilty of contacting a minor with intent to commit a felony if the prosecution can prove that you intended to commit one of the offenses listed in California Penal Code 288.3.²³

These underlying offenses are:

Kidnapping

The crime of California kidnapping consists of moving another person a substantial distance, without that person’s consent, and by use of force or fear.²⁴

The crime of kidnapping can also be committed without the use of force or fear—IF

1. The victim is under fourteen (14) years of age;
2. The defendant uses false promises or misrepresentations to persuade the victim to go with him/her; and
3. The defendant is kidnapping the victim in order to commit a sex crime against him/her.²⁵

Rape

Penal Code 261 PC rape is the act of sexual intercourse without the other person’s consent.

This can mean:

1. That it is accomplished through force, violence, duress, threats, or fraud; or
2. That the victim is unable to consent (e.g., because s/he is too intoxicated or has a mental or physical disability).²⁶

Example: Crystal, a 35-year-old woman, becomes friends on Facebook with Gavin, a 16-year-old boy.

Crystal is attracted to Gavin and makes plans to invite him to her house to watch a movie, then give him drugs and alcohol. While he is intoxicated, she plans to have sex with him. Crystal tells a friend about these plans.

Crystal is planning to commit a form of rape. So when she sends Gavin messages on Facebook, she is committing the crime of communicating with a minor with intent to commit rape.

Child endangerment

Penal Code 273a child endangerment is defined as causing, permitting, or inflicting unjustifiable physical pain or mental suffering on a child.²⁷

Illegal acts of sodomy

Penal Code 286 PC, California’s sodomy law, makes it a crime to:

1. Force someone to engage in sodomy (anal sex) without their consent, or
2. Engage in sodomy (anal sex) with a minor.²⁸

Lewd acts with a child under 14

Penal Code 288 lewd acts with a child is the act of touching a minor anywhere on his/her body for sexual purposes. This law only applies to lewd acts committed with a minor who is under fourteen (14) years old.²⁹

Oral copulation

Penal Code 287 makes it a crime to engage in either:

1. Non-consensual oral sex (also known as “oral copulation by force or fear”); or
2. Consensual oral sex with a minor.³⁰

Sending harmful material to a minor

California’s law against “harmful material sent with the intent to seduce a minor” makes it a crime to send “obscene” matter to anyone under 18—with the intent to sexually arouse yourself or him/her, and with the ultimate goal of engaging in sexual activity with him/her.³¹

Example: Let’s take Crystal and Gavin from our previous example.

Let’s say that Crystal decides that, before she invites Gavin to her house, she will send him sexually-explicit photos of herself in the hopes of enhancing his sexual interest in her.

So Crystal prepares prints of some of these photos and puts them in an envelope. She emails Gavin to ask for his mailing address.

Crystal is now guilty of contacting or communicating with a minor with intent to commit a felony—specifically, the crime of sending harmful material to a minor.

Forcible sexual penetration with a foreign object

Penal Code 289 PC forcible sexual penetration with a foreign object is the crime of either:

1. Nonconsensual sexual penetration with a foreign object, accomplished through force, violence, duress, fear, or threats; or
2. Consensual sexual penetration with a minor under 18.³²

Example: Mark, who is in his 50s, meets Jane, a 16-year-old girl, in an internet chat room. Mark tells Jane that he is 18.

Mark and Jane develop a close relationship and begin to engage in “cybersex.” They discuss masturbation, and Mark sends Jane an email telling her to penetrate herself with a dildo.

Penal Code 289 makes it a crime both to penetrate someone with a foreign object and to cause someone to be penetrated with a foreign object. By asking Jane to penetrate herself, Mark was attempting to do the latter.

Thus, Mark is guilty of contacting a minor with intent to commit sexual penetration with a foreign object of a minor.³³

Child pornography

The potential underlying offenses supporting a Penal Code 288.3 contacting a minor with intent to commit a felony charge include the California child pornography crimes of:

• Penal Code 311.1 and 311.2 PC sending, transporting, producing, possessing or duplicating any child pornography with intent to distribute it;
• Penal Code 311.4 PC hiring, employing, using, persuading, or coercing a minor to participate in the production of child porn; and
• Penal Code 311.11 PC possessing or controlling child pornography.³⁴

2. What are the consequences of a Penal Code 288.3 conviction?

The penalty for contacting a minor with intent to commit a felony will be the same as the potential penalty for the underlying offense you are alleged to have intended.

In most cases, these will be felony offenses. The potential penalties will include:

• Felony (formal) probation;
• A fine of up to ten thousand dollars ($10,000); and/or
• A sentence in California state prison.³⁵

The potential sentence will depend on the underlying offense. Some examples are:

• Seven (7) to thirteen (13) years for contacting a minor with intent to commit forcible sodomy on him/her;³⁶
• Three (3), six (6) or eight (8) years for contacting or communicating with a minor with intent to commit lewd acts on a child under 14;³⁷ and
• Anywhere from sixteen (16) months to eight (8) years (depending on the ages of the minor and the defendant) for contacting or communicating with a minor with intent to engage in consensual oral sex with him/her.³⁸

In addition, if you have previously been convicted of a violation of Penal Code 288.3 PC, then for any future violation your potential state prison sentence will be increased by an additional and consecutive five (5) years.³⁹

2.1. Sex offender registration requirement

A conviction for contacting or communicating with a minor with intent to commit a felony will subject you to the registration requirement of California’s Sex Offender Registration Act (Penal Code 290 PC). In the majority of cases, the defendant will be mandated to register as a tier three offender, which requires lifetime registration. In some cases, the defendant will be mandated to register as a tier two offender, which requires a 20-year minimum registration requirement. And tier one offenders have a 10 year minimum registration requirement.⁴⁰

The Sex Offender Registration Act requires any convicted sex offender who lives in California to register with the police of the city or county where they live. This registration has to be renewed:

1. Every year, within five (5) working days of the sex offender’s birthday; and
2. Every time that s/he moves.⁴¹

If you fail to fulfill these registration requirements after a felony conviction for PC 288.3, then you will be guilty of the additional felony offense of “failure to register as a sex offender.” This carries a potential state prison sentence of sixteen (16) months, two (2) years or three (3) years.⁴²

3. How can a defense lawyer fight this charge?

California’s law against contacting or communicating with a minor with intent to commit certain felonies was passed by California voters in 2006. It was part of the so-called “Sexual Predator Punishment and Control Act,” also known as Proposition 83.

According to Rancho Cucamonga sex crimes defense attorney Michael Scafiddi: ⁴³

“Prop 83 was passed in part to provide police officers with more tools to ensnare internet ‘sexual predators’ before they could actually prey on minors. Because of PC 288.3, police officers are able to go online, pretend to be under 18, and catch a ‘predator” before s/he ever commits a real crime. Of course, many of these so-called ‘predators’ have never actually committed a sex crime against a minor—but that doesn’t stop prosecutors from trying to put them away by arguing that they intended to commit a crime.”

Getting hit with sex crimes charges can be a devastating experience, and you should not try to go it alone.

An experienced and savvy sex crimes defense attorney can help. S/he can help you determine whether one or more of the following legal defenses might help:

You did not intend to commit one of the underlying offenses

Maybe you contacted or communicated with a minor. Maybe you even had a romantic or sexual interest in him/her.

You may think that this means you are guilty of Penal Code 288.3. But, in fact, you should not be convicted of contacting a minor with intent to commit a felony unless the prosecutor can prove that you actually intended to commit one of the listed sex crimes.⁴⁴

The fact that you communicated with the minor doesn’t necessarily prove that you intended to commit a crime—even if there was sexual content in your communications.

Even arranging a meeting with him/her doesn’t necessarily prove that you contacted him/her with intent to commit a crime—particularly if the meeting was supposed to be in a public place.

You did not know that the person you contacted or communicated with was a minor

If there is evidence that you actually and reasonably believed the “victim” was over 18, you and your criminal defense attorney will want to argue this legal defense.⁴⁵

Facts that may serve as a basis for this defense include:

• The so-called “victim” lied to you about his/her age;
• You met the so-called victim in a location where one does not expect to meet minors (for example, a bar or a concert restricted to people over 21); and/or
• The “victim” looked or acted unusually mature.

You were a victim of entrapment

Entrapment occurs when a police officer behaves in an overbearing way, and as a result, a defendant engages in behavior s/he otherwise would not have.⁴⁶

Entrapment can occur when law enforcement officers talk you into doing something through:

• Pressure;
• Harassment;
• Fraud;
• Flattery; or
• Threats.⁴⁷

It is very typical for defendants to be charged with contacting a minor with intent to commit a felony after being caught in an internet sting operation conducted by undercover officers. Officers pose as minors go online and flirt aggressively with potential targets.

If this happens to you, you can argue that the entrapment defense means you are not guilty of communicating with a minor with criminal intent.

4. PC 288.3 and Related Offenses

If you are charged with contacting a minor with intent to commit a felony, you may want to be aware of the following related offenses:

4.1. Penal Code 288.4 arranging a meeting with a minor for lewd purposes

Penal Code 288.4 PC “arranging a meeting with a minor for lewd purposes” is a very similar offense to Penal Code 288.3 PC.

This law, passed at the same time as PC 288.3, makes it a crime to:

1. Arrange a meeting with a minor;
2. While motivated by an unnatural or abnormal sexual interest in children;
3. With the intent to expose the defendant’s or the minor’s genitals, or engage in lewd acts with the minor, at the meeting.⁴⁸

Like communicating with a minor with the intent to commit a felony, arranging a meeting with a minor for lewd purposes is an attempted crime that may be charged even if the defendant never actually engages in sexual conduct with a minor.

In most cases, arranging a meeting with a minor for lewd purposes is a California misdemeanor, punishable by up to one (1) year in county jail and/or a five thousand dollar ($5,000) fine.⁴⁹

But PC 288.4 becomes a felony, with a maximum prison sentence of four (4) years, if:

1. The defendant is required to register as a sex offender because of a previous sex crime conviction; or
2. The defendant actually goes to the meeting with the minor.⁵⁰

In many “contacting a minor with intent to commit a felony” cases, the defendant may be able to get the charges reduced to “arranging a meeting with a minor for lewd purposes.”

Because the latter crime may be filed only as a misdemeanor, and carries lighter penalties, this could be a desirable strategy. (But it is important to note that arranging to meet with a minor for lewd purposes also carries a mandatory sex offender registration requirement.⁵¹)

4.2. Penal Code 261.5 statutory rape

Penal Code 261.5 statutory rape is the crime of engaging in consensual sexual intercourse with a minor.⁵²

One notable thing about statutory rape is that it is not on the list of underlying felonies that would support charges of contacting or communicating with a minor with intent to commit a felony.

So one potential defense to Penal Code 288.4 charges is that your intent was only to engage in consensual sexual intercourse with the minor. This would mean that you are not guilty of that crime.

The penalties for attempted statutory rape will be less severe than those for contacting a minor with intent to commit a felony. The former is either a misdemeanor or a wobbler (a crime that may be charged as either a misdemeanor or a felony), depending on the ages of the victim and the defendant.⁵³

For additional help…

For questions about the crime of Penal Code 288.3 PC contacting or communicating with a minor with intent to commit a felony, or to discuss your case confidentially with one of our California criminal and sex crime defense attorneys, do not hesitate to contact us at Shouse Law Group.

We have local criminal law offices in and around Los Angeles, San Diego, Orange County, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.

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