Penal Code § 647.6 PC – Annoying or Molesting a Child Under 18

Penal Code § 647.6 PC makes it a crime to annoy or molest a child under 18 (or an adult whom you believe to be under 18). This offense is a wobbler, meaning the prosecutor can charge it as either a misdemeanor or a felony.

The language of 647.6 PC states that:

“(a) (1) Every person who annoys or molests any child under 18 years of age shall be punished by a fine not exceeding five thousand dollars ($5,000), by imprisonment in a county jail not exceeding one year, or by both the fine and imprisonment.

(2) Every person who, motivated by an unnatural or abnormal sexual interest in children, engages in conduct with an adult whom he or she believes to be a child under 18 years of age, which conduct, if directed toward a child under 18 years of age, would be a violation of this section, shall be punished by a fine not exceeding five thousand dollars ($5,000), by imprisonment in a county jail for up to one year, or by both that fine and imprisonment.

(b) Every person who violates this section after having entered, without consent, an inhabited dwelling house, or trailer coach as defined in Section 635 of the Vehicle Code, or the inhabited portion of any other building, shall be punished by imprisonment in the state prison, or in a county jail not exceeding one year, and by a fine not exceeding five thousand dollars ($5,000).”

For purposes of this law, “annoy” and “molest” mean the same thing. They refer to conduct which is:

1. motivated by a sexual interest in a child, or in children generally, and
2. which is likely to disturb, irritate or be observed by a child or children.

Unlike Penal Code 288 PC, lewd acts with a child, Penal Code 647.6 does not require any touching whatsoever. Words alone may constitute annoying or molesting a child.

Examples:

• 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;
• Joe masturbates in a car parked outside a high school at the time that school lets out for the day.

Penalties:

Misdemeanor violations

Absent aggravating circumstances, the first offense under Penal Code 647.6 PC is a misdemeanor punishable by:

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

“Wobbler” violations

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

If charged as a misdemeanor, a wobbler violation of PC 647.6 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.

Felony violations

If you have a prior felony conviction for violation of PC 647.6, any subsequent violation is a felony. Subsequent convictions of annoying or molesting a child are punishable by up to one year in the California state prison.

However, any violation of Penal Code 647.6… even a first offense… is a felony if you have a prior felony conviction for certain specified sex offenses. Such offenses 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.

If you have a previous felony conviction for a specified sex offense, violation of Penal Code 647.6 is punishable by two, four, or six years in state prison.

Legal Defenses

Legal defenses to charges of annoying or molesting a child may include (but are not limited to):

• The accuser was mistaken;
• The accuser was lying;
• Someone else “coached” the child and manipulated him or her into making an allegation;
• The alleged conduct was not likely to disturb or irritate a child;
• The conduct, to the extent it occurred, was not motivated by sexual interest.

False accusations

Unfortunately, it’s all too easy to accuse someone of “annoying” a child. Many people get falsely accused. Sometimes such accusations are made out of genuine… if misplaced… interest in protecting a child. At other times, the child is being used as an innocent weapon in divorce proceedings or another dispute between adults.

And sometimes, the child is just plain lying.

False accusations can damage one’s

• relationships,
• career, and
• overall reputation.

But a California lawyer with experience in defending against sex crimes accusations can help.

We are a firm whose lawyers include former cops and prosecutors with considerable courtroom experience. We know how to expose false allegations and protect your reputation.

To help you better understand the law, our California criminal defense lawyers¹ discuss the following below:

• 1. What is the legal definition of “annoying or molesting a child”?
  • 1.1. Conduct likely to disturb or irritate a child under 18 years of age
  • 1.2. “Motivated by sexual interest”
• 2. How do I defend against Penal Code 647.6 charges?
  • 2.1. Attacking the credibility of the accuser or a key witness
  • 2.2. Proving that the conduct was not motivated by sexual interest
  • 2.3. Private defense polygraph examinations
• 3. What are the penalties?
  • 3.1. Misdemeanor violations
  • 3.2. “Wobbler” violations
  • 3.3. Felony violations
  • 3.4. Probation in lieu of jail or prison time
  • 3.5. Sex offender registration
• 4. How is 647.6 different from other California sex crimes?
  • 4.1. Penal Code 647(j) PC – voyeurism of a minor (“peeping Tom”)
  • 4.2. Penal Code 288.2 PC– sending harmful matter with the intent to seduce a minor
  • 4.3. Penal Code 288.3 PC — contacting a minor with the intent to commit a felony
  • 4.4. Penal Code 288 PC — lewd acts with a child

If, after reading this article, you have additional questions, we invite you to contact us at Shouse Law Group.

1. What is the legal definition of “annoying or molesting a child”?

For purposes of Penal Code 647.6, the words “annoy” and “molest” mean the same thing.

The crime of “annoying” or “molesting” a child has two basic components:

1. you engage in conduct likely to disturb or irritate a child or children under 18 years of age, and
2. your conduct is motivated by a sexual interest in the child or in children generally.

Let’s take a look at each of these elements in more depth.

1.1. Conduct likely to disturb or irritate a child under 18 years of age

The conduct prohibited by Penal Code 647.6 is that which is both:

1. motivated by a sexual interest in a child or children, and
2. which invades a child’s privacy and security.²

This offense is what is known as a “general intent crime.”  This means that you do not have to intend for your conduct to be lewd or obscene. Conduct you consider affectionate may violate the law if it “would unhesitatingly irritate a normal person.”³

You do not even have to have singled out any particular child (or group of children) in advance.⁴ You violate the law whenever your conduct arises out of an unnatural or abnormal sexual interest in:

1. a specific child, or
2. children generally.⁵

Nor does the conduct need actually to have irritated a child.⁶ Rather, it is an objective test, focused on the conduct itself, rather than the result of such conduct.⁷

If the conduct would irritate a normal person and invade a child’s privacy and security, it violates Penal Code 647.6, even if no child was actually annoyed by it.⁸

Unlike some other sex offenses, violation of Penal Code 647.6 does not require that there be contact with any part of a child’s body.⁹ Words alone may constitute the annoyance or molestation.¹⁰

Indirect conduct of a sexual nature… such as masturbation… may also violate this section if it is intended to be observed by a child or children.¹¹

1.2. “Motivated by sexual interest”

Penal Code 647.6 PC applies only to offenders who are motivated by an unnatural or abnormal sexual interest or intent in a child or children. It does not require that you actually intend to seduce a child.

If the conduct is motivated by something other than sexual interest, it does not violate Penal Code 647.6. And conduct that is only accidentally observed or heard by a child also does not violate this law.¹²

The intent of sexual interest or intent may be proved by:

1. past actions toward a child with whom you have a prior relationship,¹³ or
2. the circumstantial evidence surrounding your alleged conduct.¹⁴

Example:  Joe lives down the street from a high school. One afternoon he is masturbating in his bedroom when school lets out for the day. He doesn’t realize his curtains are not fully closed. Several girls pass by his house and see him. Even though the girls are bothered, because Joe’s conduct was not motivated by sexual interest in them or any other child, he does not violate PC 647.6.

But… Let’s say that instead Joe parks his car outside a high school and waits until school gets out for the day. As the children are leaving the campus, he unzips his pants, takes out his penis, and begins masturbating. Because he is parked directly in front of a school at school dismissal time, his conduct is not an accident or even a simple act of voyeurism. It is conduct motivated by a sexual interest in children.¹⁵

Fortunately, however, intent to annoy or molest a child is often difficult to prove. This is frequently a weakness in the prosecution’s case…and one which a California sex crimes defense attorney can exploit.

2. How do I defend against Penal Code 647.6 charges?

The best line of defense in a Penal Code 647.6 depends on the particular circumstances involved. Every case… and every accuser and defendant… are different. Depending on the circumstances, the ways in which your California sex crimes attorney might help you beat the charges include (but are not limited to):

2.1. Attacking the credibility of the accuser or a key witness

Absent a confession, a Penal Code 647.6 case will often hinge on the credibility of the accuser and potential witnesses. A defense lawyer will, therefore, want to:

1. subpoena the accuser’s records, including:
   • school, counseling, and medical records, and
   • emails, and social networking accounts;
2. interview the accuser’s schoolmates, family members and friends … including social networking friends; and
3. conduct a thorough background check on both the accuser and any alleged witnesses.

These records may reveal that the child has a history of lying. Or they may show that the child harbored a pre-existing bias against the accused.

Example: Madison tells her mother that their neighbor, Fred, is always outside when she goes to school. Madison claims that Fred makes sexually explicit comments about her body whenever he sees her.

Madison’s status updates on Facebook tell another story, however. In several of them, posted months before her accusation, she complains about her neighbor yelling at her to keep off his lawn.  She also uses a racial slur to describe Fred, and makes general comments about people of his race. When this evidence is discovered, the prosecutor dismisses the charges.

Example: Antonio accuses his soccer coach of offering to give him a hand job. When Antonio’s school records are subpoenaed, it turns out that he has made similar allegations in the past about his gym teacher and the school principal.

Because it appears that Antonio has a history of accusing authority figures of offering him hand jobs, the jury doesn’t believe his testimony. They find the soccer coach not guilty of the charges.

2.2. Proving that the conduct was not motivated by sexual interest

To violate Penal Code 647.6 PC, the conduct must be motivated by a sexual interest in a child or children in general. If conduct is innocent… or there is another motive… it is not a crime under this section.

Example: 12-year old Jeremy accuses his teacher, Bill, of asking him repeatedly about what sex acts he has engaged in. But it turns out that Bill overheard Jeremy complaining to another student that his stepfather had touched him on the inside of his thigh. Bill was only asking Jeremy about sex acts to determine whether he was being molested at home. The other student’s testimony corroborates Bill’s account. Since his conduct was not motivated by a sexual interest in Jeremy or other children, Bill has not violated Penal Code 647.6.¹⁶

Example: Lee dislikes his 16-year old step-daughter Kathy because he thinks she’s trying to ruin his relationship with Kathy’s mother. One afternoon Lee invites some friends over to watch the game. When Kathy is surly to him in front of his friends, Lee asks Kathy whether she’s ever had sex. He continues to ask her whether she has engaged in various sex acts, until she cries. Because he is making such comments in order to humiliate Kathy… and not because of any sexual interest in her… Lee is not guilty under Penal Code 647.6.

2.3. Private defense polygraph examinations

“Lie detector tests” or polygraph examinations are usually associated with the police. However, the defense may conduct “private polygraph” examinations in California criminal cases. This keeps the results confidential unless the person “passes.”

Private lie detector tests are usually conducted by a former FBI or police polygrapher who has established credibility with the district attorney.

If the results show our client is telling the truth, we can take them to the prosecutor. Even though the polygraph is inadmissible in court, it’s often enough to persuade the prosecutor to drop the case. District attorneys aren’t looking to put innocent people in jail.

On the other hand, if the results show that the client may not be telling the truth, we simply shred the results. No one else ever knows that the polygraph even took place.

3. What are the penalties?

3.1. Misdemeanor violations

Absent aggravating circumstances, the first offense under Penal Code 647.6 PC is a misdemeanor punishable by:

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

3.2. “Wobbler” violations

Penal Code 647.6 becomes a “wobbler” if you annoy or molest a child after you enter, without consent:

• an inhabited dwelling house,
• a trailer coach, or
• the inhabited portion of any other building.¹⁷

The prosecutor will take into account various factors in deciding whether to charge a wobbler violation as a misdemeanor or a felony. Your criminal history and the prosecutor’s determination of whether you are a danger to other children are chief among them.

If convicted under Penal Code 647.6(b) as a misdemeanor, you face:

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

If charged as a felony, a conviction under PC 647.6(b) carries a maximum penalty of 16 months, 2 years or 3 years in the California state prison.

3.3. Felony violations

Annoying or molesting a child is a felony if you have a prior Penal Code 647.6 PC conviction¹⁸.  A second or subsequent conviction for annoying or molesting a child is punishable by up to three years in the California state prison.

And any violation of Penal Code 647.6… even a first offense… is a felony if you have a prior felony conviction for certain specified sex offenses. Such offenses 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,
• Penal Code 288, lewd acts with a child, and
• Penal Code 311.4, child pornography.¹⁹

If you have a previous felony conviction for a specified sex offense, violation of Penal Code 647.6 is punishable by two, four, or six years in state prison.

3.4. Probation in lieu of jail or prison time

In lieu of requiring you to serve a term behind bars, a judge may instead order probation.

This depends primarily on whether the judge believes you are a danger to children. Other factors the judge will consider include the circumstances of the offense and whether you have a criminal history.

There are two types of probation, which correspond to the type of charge:

1. Misdemeanor probation (also known as informal or “summary” probation), and
2. Felony probation (also known as formal probation).

Misdemeanor probation in California typically lasts between one and three years, although up to five years is possible. It involves conditions such as

• paying fines and
• performing community service.

If you are placed on misdemeanor probation, you will be required to appear before a judge for periodic “progress reports.”

Felony probation, on the other hand, typically lasts between three and five years. If you are sentenced to felony probation you must:

• report to a probation officer,
• make victim restitution, and
• comply with other conditions imposed by the judge and probation officer.

Felony probation may also include up to one year of county jail in lieu of prison. If you violate the terms of your felony probation, however, the judge can send you to state prison.

Additionally, if the court grants you either form of probation for violating Penal Code 647.6, it will most likely require counseling as one of the conditions.²⁰

And if you are prohibited by court order from having contact with the victim, the order cannot be modified except:

1. upon the request of the victim, AND
2. a finding by the court that the modification is in the victim’s best interest.²¹

3.5. Sex offender registration

If you are convicted of violating Penal Code 647.6 PC, you are subject to registration as a sex offender.

• A first-time conviction is a tier-one offense, carrying at least ten (10) years of sex offender registration.
• A second or subsequent conviction is a tier two offense, carrying at least twenty (20) years of sex offender registration.²²

This information will be made public on the Department of Justice’s “Megan’s Law” website.

California Senate Bill 384 created a three-tier system for sex registration; prior to this system, annoying a child carried lifetime registration. Now, only tier three offenses carry lifetime registration.

If your Penal Code 647.6 violation is a misdemeanor, you may request exclusion from the Megan’s Law website.²³ You must, still, however, continue to register as a sex offender unless and until you subsequently obtain a California certificate of rehabilitation or you successfully registered for ten years and the court permitted you to get off the registry.

For more information, please see our article on California sex offender registration and Megan’s Law.

4. How is 647.6 different from other California sex crimes?

Annoying or molesting a child is different from many other sex crimes in that:

1. No touching is required; and
2. No intent to seduce a child is required.

These and other elements distinguish Penal Code 647.6 from:

4.1. Penal Code 647(j) PC– voyeurism of a minor (“Peeping Tom”)

Penal Code 647(j) prohibits the classic crime of being a “Peeping Tom.”  You violate Penal Code 647(j) when you spy on or make a video recording of someone with the intent to invade his or her privacy.  Unlike annoying or molesting a child, Penal Code 647(j) applies to conduct not meant to be observed by the child.

Voyeurism in violation of Penal Code 647(j) is a misdemeanor. If the victim is a minor, it is punishable by:

• up to one year in county jail, and/or
• a fine of up to $2,000).²⁴

4.2. Penal Code 288.2 PC – sending harmful matter with the intent to seduce a minor

Like annoying or molesting a child, Penal Code 288.2 PC (sending harmful matter with intent to seduce a minor) violations are motivated by sexual interest. However, violation of this section requires the additional intent of actually seducing the minor.  And it requires that you send the pornographic or harmful matter to a minor in furtherance of that intent.

Violation of California Penal Code 288.2 is a wobbler. Misdemeanor violations are punishable by:

1. informal (“summary”) probation,
2. up to six months in a county jail, and/or
3. a maximum $1,000 fine.

Felony violations of sending harmful material to a minor are punishable by:

1. formal probation, and/or
2. 16 months, or two or three years in the California state prison, and/or
3. a maximum $10,000 fine, AND
4. a lifetime duty to register as a sex offender pursuant to California Penal Code 290 PC.

4.3. Penal Code 288.3 PC — contacting a minor with intent to commit a felony

Penal Code 288.3 requires that you contact a minor with the intent to commit one of a specified list of felonies. These include (but are not limited to):

• kidnapping,
• rape,
• lewd acts, and
• child pornography.²⁵

Violation of Penal Code 288.3 PC (contacting a minor with intent to commit a felony) does not require that you actually commit one of the specified offenses. You violated PC 288.3 simply by contacting or attempting to contact a minor with the intent to commit a listed offense.

Contacting a minor with the intent to commit a felony is punishable by a term in the state prison equal to the term that would be imposed for an attempt to commit the specific felony.²⁶ And if you are a repeat offender, that punishment will be enhanced by an additional and consecutive five years in state prison.²⁷

4.4. Penal Code 288 PC — lewd acts with a child

Penal Code 288 (lewd acts with a child) punishes the intentional touching of a child with the intent to sexually arouse or gratify either you or the child.

It does not require that you touch the child on, or with, a sex organ.  Any touch — even through your or the child’s clothing — is sufficient.

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

Additionally, if you have a prior related conviction, under California’s habitual sexual offender law, your sentence could be increased to 25 years to life.

And if the child is under 14, a lewd act is also considered a violent felony and a serious felony. It counts, therefore, as a strike under California’s Three Strikes Law.

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