It is a criminal offense under Penal Code § 288.3 PC to contact or communicate with a person 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.
Five key things to know about the California crime of contacting a minor with intent to commit a felony include:
- The underlying felony offenses that can support PC 288.3 charges are: kidnapping, rape, child endangerment, sodomy, lewd acts with a child under 14, oral copulation by force or fear, oral copulation with a minor, sending harmful material to a minor, forcible sexual penetration (with a foreign object), and certain child pornography crimes.
- You face a conviction for “contacting a minor with intent to commit a felony” even if you never actually do anything illegal with the minor.
- The penalties for contacting a minor with intent to commit a felony are the same as those for actually committing the felony.
- No matter what the underlying offense was, a conviction for contacting a minor with intent to commit a felony triggers a requirement to register as a sex offender in California.
- Potential defenses to PC 288.3 charges include that: You did not actually intend to commit one of the underlying offenses; you did not know the person was a minor; and/or you were entrapped.
- 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 works for 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.
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?
- 2. What are the consequences of a Penal Code 288.3 conviction?
- 3. How can a defense lawyer fight this charge?
- 4. Related Offenses
- Additional resources
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 you to be guilty of this offense.
The elements of contacting a minor intending to commit a felony are:
- You directly or indirectly contacted or communicated with, or attempted to contact or communicate with, a child under 18 years old;
- When you did so, you planned to commit one of the offenses involving a minor that Penal Code 288.3 PC lists; and
- You knew or reasonably should have known that the person was a minor.22
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, you did not actually communicate with a minor—but instead communicated with someone you believed to be a minor.1
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 California Penal Code 288.3 lists:
|Underlying offense for PC 288.3 charge
|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.
The crime of kidnapping can also be committed without the use of force or fear—IF
|Penal Code 261 PC rape is the act of sexual intercourse without the other person’s consent. This can mean:
|Penal Code 273a child endangerment is defined as causing, permitting, or inflicting unjustifiable physical pain or mental suffering on a child.4
Illegal acts of sodomy
|Penal Code 286 PC, California’s sodomy law, makes it a crime to:
Lewd acts with a child under 14
|Penal Code 288 lewd acts with a child is the act of touching a minor anywhere on their body for sexual purposes. This law only applies to lewd acts committed with a minor who is under fourteen (14) years old.6
|Penal Code 287 makes it a crime to engage in either:
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 them, and with the ultimate goal of engaging in sexual activity with them.8
Forcible sexual penetration with a foreign object
|Penal Code 289 PC forcible sexual penetration with a foreign object is the crime of either:
|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:
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.11
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.12
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, you will be mandated to register as a tier three offender, which requires lifetime registration.
In some cases, you will be mandated to register as a tier two offender, which requires a 20-year minimum registration requirement. If you are a tier one offender, you have a 10-year minimum registration requirement.13
2.2. Example sentences
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 them;14
- 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;15 and
- Anywhere from sixteen (16) months to eight (8) years (depending on the ages of the minor and you) for contacting or communicating with a minor with intent to engage in consensual oral sex with them.16
Here at Shouse Law Group, we have represented literally thousands of people accused of crimes involving children including contacting or communicating with a minor with intent to commit certain felonies. In our experience, the following three defenses have proven very effective with prosecutors, judges, and juries.
3.1. 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 them.
The fact that you communicated with the minor does not necessarily prove that you intended to commit a crime—even if there was sexual content in your communications.18
Even arranging a meeting with them does not necessarily prove that you contacted them with intent to commit a crime—particularly if the meeting was supposed to be in a public place.
We find “lack of intent” to be the most effective defense since prosecutors have no way to definitively prove what is going on in your head. As long as we can raise a reasonable doubt, criminal charges cannot stand.
3.2. You did not know that the person you contacted or communicated with was a minor
If you actually and reasonably believed the “victim” was over 18, we would present such evidence as:
- The so-called “victim” lied to you about their 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.19
We have seen many 288.3 PC cases where minors easily passed for adults, resulting in the D.A. ultimately dismissing the charge before trial.
3.3. You were a victim of entrapment
Entrapment – which is illegal – occurs when a police officer behaves in an overbearing way, and as a result, you engage in behavior you otherwise would not have.
Entrapment can occur when law enforcement officers talk you into doing something through:
- Flattery; or
It is very typical 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 who pose as minors go online and flirt aggressively with potential targets.
In these cases, we use the police’s bodycam footage against them to show that they crossed the line from trickery to entrapment. As long as we can show that you would not have committed the crime but for the police’s pressure, the charge should be dropped.
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:
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:
- Arrange a meeting with a minor;
- While motivated by an unnatural or abnormal sexual interest in children;
- With the intent to expose your or the minor’s genitals, or engage in lewd acts with the minor, at the meeting.
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 you never actually engage in sexual conduct with a minor.21
Penal Code 261.5 statutory rape is the crime of engaging in consensual sexual intercourse with a minor.
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.22
4.3. Penal Code 243.4 sexual battery
Penal Code 243.4 sexual battery is touching another person’s intimate parts without consent, for the purpose of sexual gratification, arousal, or abuse.
Sexual battery is typically a misdemeanor but can be prosecuted as a felony in aggravated circumstances.
Common defenses are that the victim consented or you were falsely accused.
4.4. Penal Code 314 indecent exposure
Penal Code 314 indecent exposure is willfully exposing your naked body or genitals in public so as to annoy or offend others. It is typically a misdemeanor but carries a sex offender registration requirement.
4.5. Penal Code 647a lewd conduct in public
Penal Code 647a lewd conduct in public is touching your own or another person’s genitals, buttocks, or female breast for sexual gratification, and you should know that other people present would be offended by it.
Lewd conduct in public is a misdemeanor and does not require sex offender registration.
4.6. Penal Code 311.1 distributing obscene matter showing sexual conduct by a minor
Penal Code 311.1 distributing obscene matter showing sexual conduct by a minor is sending or bringing obscene materials into California that you know shows a minor having sexual relations or simulating sex acts.
A wobbler, violating PC 311.1 can be a misdemeanor or felony depending on the case.
For more information, refer to the following:
- Teaching kids to be smart about strangers – Guide for parents by kidshealth.org.
- So, you need some help Tip Sheet – Tips for speaking to a trusted adult and how to gauge their response by missingkids.org.
- Talking about Stranger Safety – Guide by Scholastic for parents of children of different ages.
- Stranger Danger and Stranger Safety – Discussion by Johns Hopkins Medicine.
- National Child Abuse Defense & Resource Center (NCADRC) – Non-profit volunteer organization with the mission of using education to preserve the rights of people falsely accused of child abuse.
- California Penal Code 288.3 PC. See also People v. May (1989) 213 Cal.App.3d 118; People v. Hughes (2002) 27 Cal.4th 287. Judicial Council of California Criminal Jury Instruction (“CALCRIM”) 1124. See also In re Harris (1993) 5 Cal.4th 813; People v. Korwin (2019) 36 Cal.App.5th 682.
- PC 207.
- PC 261.
- PC 273a.
- PC 286.
- PC 288.
- PC 287.
- PC 288.2.
- PC 298.
- PC 311.1; PC 311.4; PC 311.11.
- PC 288.
- PC 18.
- PC 288.3. PC 290. If you are a convicted sex offender, the Sex Offender Registration Act requires you to register with the police of the city or county where you live. This registration has to be renewed: Every year, within five (5) working days of your birthday; and every time that you move. 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.
- PC 286.
- PC 288.
- PC 287.
- PC 290.018.
- CALCRIM 1124.
- CALCRIM 1070.
- People v. West (1956) 139 Cal.App.2d Supp. 923, 924.
- PC 288.4. PC 290.
- PC 261.5. See also People v. Medelez (2016) 2 Cal.App.5th 659.