To be convicted of Lewd Acts with a Minor Under 14, CA Penal Code 288, the prosecutor must prove:
Willfully means deliberately. It does not necessarily mean that you intended to break the law, harm someone, or gain advantage; it simply means that you did something on purpose. This protects people from being convicted of lewd acts with a minor for accidentally touching a child.
Touch means any part of a child’s body, either bare skin or through clothing.
The law is vague on purpose. By having CA Penal Code 288 written in ambiguous terms, it allows for more acts to be punishable under the law. You are in violation of lewd acts with a minor if you touch a child, regardless of region, for your sexual arousal. The child could be clothed from head to toe but that doesn’t matter because of the language of the law.
The law states that the touching must be performed with the intent of arousing. The important thing to note here is that the prosecutor does not need to prove that you were aroused, only that you intended to be aroused.
If convicted of CA Penal Code 288 you will face:
If the victim was less than 14 at the time of the act:
If the victim was less than 14 and violence, duress, force or threats were used you could face:
If you are a repeat offender then the sentence could be 25 years to life in prison.
If the victim was 14 or 15 at the time of the lewd act with a minor then the crime is a misdemeanor, meaning it can be charged as either a felony or a misdemeanor depending on the details of the crime and the defendant’s criminal record.
If the victim was 14 or 15 at the time of the lewd act with a minor and you are charged with a felony, you face:
If the victim was 14 or 15 at the time of the lewd act with a minor and you are charged with a misdemeanor, you face:
Regardless of the age of the victim at the time of the lewd act you will need to:
A lewd act with a minor against a child is a terrible crime and should be punished, but only if the defendant is guilty of the act. It’s unfortunate, yet common for children to fabricate stories to get someone in trouble that they don’t like; for instance, a step-parent, a parent’s new boyfriend or girlfriend, etc. In order to make sure that the allegations are true, the police perform a thorough investigation before charging a defendant with CA Penal Code 288.
Firstly, the accuser will report the lewd acts with a minor to an authoritative figure, be it a parent, school counselor, the police etc. The incident will be noted and then the police will be notified.
Secondly, the police or a child psychologist will interview the accuser to understand what happened during the lewd acts with a minor. This is a very important step to the process because a poor interviewer can lead the accuser into saying things that didn’t necessarily happen. These interviews are always recorded and are an essential piece of evidence for the prosecutor’s case.
Thirdly, a medical examination will be performed on the accuser to try and find any forensic evidence that can definitively prove that the accuser was inappropriately touched. The police will search the accuser’s body and clothing in search of any saliva, hair, skin or semen of the suspects.
Next, the police will coach the accuser during a phone call with the suspect, in an attempt to coerce the suspect into confessing.
Then, the police will look at the suspect’s past and try to find additional victims; it is rare for a true pedophile to only have one victim. If more victims are found then the prosecutor’s case becomes increasingly strong and additional CA Penal Code 288 charges are filed against the suspect.
After searching for more victims, the police will confront the suspect for the first time and interrogate the suspect about the alleged lewd acts with a minor. As a criminal defense law office, we urge you not to talk to the police if they come to interrogate you, the police are trained to extract minute inconsistencies with your story and these will be used against you in court. If you have been contacted by the police in association to a CA Penal Code 288 and you’re innocent we urge you to find a criminal defense attorney promptly.
Finally, the police will have the suspect take a polygraph test. If the suspect passes the test, meaning he truthfully answered questions about the lewd acts with a minor then he/she will likely be allowed to go and charges will not be filed. However, if the suspect fails the test then the police will file charges and the prosecutor will continue building his/her case.
In order for a prosecutor to prove that you’re guilty of CA Penal Code 288 he/she must prove that you fulfilled the two elements of the crime:
These cases can be relatively easy to prosecute because the public always wants these cases to be settled quickly and for someone to go to jail. It’s unfortunate but the public is quick to jump to conclusions without knowing the necessary facts of the case. This is unfortunate because if the wrong person is found guilty of CA Penal Code 288 then he/she will have to register as a sex offender for life and their reputation will be ruined.
As previously stated, lewd acts with a minor or child are terrible crimes and should be punished, but only if the defendant is guilty. A skilled criminal defense attorney will use several strategies in order to prove your innocence if you’ve been charged with CA Penal Code 288.
The first thing your criminal defense attorney will do is to address the accuser’s credibility. This means that your attorney will subpoena school records, emails, social networking accounts, etc. and see if there is any evidence showing that the act was untrue, perhaps a status update or a conversation with a friend saying that the accuser hates someone and wants them gone. A criminal defense attorney will also interview teachers, friends, schoolmates, etc. to see if the accuser is known for fabricating stories in an attempt to get people in trouble.
Your criminal defense attorney will then prove that the touching was accidental. One of the elements of the crime is that you willfully touch a minor, or willfully cause the minor to touch you, him/herself, or another person. Willfully means deliberately. If you did not deliberately touch the accuser then you are not guilty of CA Penal Code 288.
The next approach your criminal defense attorney will take is to prove that the act was not intended to cause sexual arousal for you or for the victim. In other words, if you had to touch a child due to a medical condition or some other valid reason, other than for sexual arousal, then you are not guilty of lewd acts with a minor or child under 14.
Your criminal defense attorney will also have you take a private polygraph test. The test will be administered by a former FBI member or someone with equal credentials and will only be made public if you pass the test. If you don’t pass the test then the results will be shredded and never see the light of day. However, if you do pass then the results can’t be used in court but they can be presented to the prosecutor in hopes of he/she dropping the case so they don’t convict an innocent person.
Your criminal defense attorney will also make sure that the prosecution’s evidence against you was lawfully acquired. If the evidence was seized illegally then it will be thrown out and the prosecution’s case will be weakened.
If you have recently been arrested for CA Penal Code 288 then it’s imperative that you contact a skilled criminal defense attorney immediately. We cannot stress enough that you do not talk to the police without your attorney.
Sending Harmful Matter to Seduce a Minor, CA Penal Code 288.2, refers to when you send erotic material to a child you believe to be younger than 14 for either your sexual arousal or theirs. This is a wobbler, meaning it can be tried as either a misdemeanor, or a felony. If convicted you face county jail or state prison time.
Contacting a Minor to Commit a Felony, CA Penal Code 288.3, refers to when you contact a minor and plan to meet then in order to perform either kidnapping, rape, sodomy, lewd acts or making child pornography. Contacting a Minor to Commit a Felony is a felony and you will face up to 3 years in state prison and be a registered sex offender for life.
Arranging a Meeting with a Child for Lewd Purposes, CA Penal Code 288.4, refers to when you arrange to meet a minor to engage in lewd behavior. CA Penal Code 288.4 is a wobbler, meaning it can be tried as either a felony or a misdemeanor, and if convicted you could face up to 4 years in state prison.
Continuous Sexual Abuse of a Child, CA Penal Code 288.5, refers to when you repeatedly sexual abuse a child in 3 or more sexual acts over a span of 3 months or longer. CA Penal Code 288.5 is a felony and you could face up 16 years in state prison.
Sex with a Child Under 10, CA Penal Code 288.7, refers to when you have sexual intercourse with a child under 10 years old. CA Penal Code 288.7 is a felony and you face 25 years to life if convicted.
Oral Copulation with a Minor, CA Penal Code 288a, refers to oral copulation with a minor under 14 years old, the punishment is the same as lewd acts with a minor or child. However, if the child is under 10 years old then you face up to 8 years in state prison.
Child Pornography, CA Penal Code 311, refers to the sale and distribution of child pornography. If convicted of CA Penal Code 311 you face jail time and fines.
Lester was accused of digitally penetrating his step-daughter Lulu. Lester was married to Lulu’s mother, Katya, who was a real disaster. Katya would go into deep spells of depression, self-pity and hysteria and would tranquilize herself to sleep with a variety of medications. This left Lester solely responsible for the financial, emotional, and physical well-being of the family. It was too much for Lester- and the stress of it all broke him. He started to get inappropriately emotionally close to Lulu, who was almost 14 at the time. For about a 6 month period, when all the negative stars had aligned and Lester was in a dark place, he would go into Lulu’s room and digitally penetrate her while she was pretending to be asleep. He stopped on his own and felt incredibly gruesome and guilty inside and vowed never to do such a thing again. A couple years later, Lulu was angry with Lester for something unrelated, and she went to the police. The police set up a pretext call with Lulu calling Lester and asking him why he touched her. Lester, who felt horribly guilty, apologized profusely and told Lulu he loved her and would never do something so horrible again. Unfortunately, for Lester, this was all recorded and he essentially gave a confession.
Lester was charged initially with 2 counts of PC 288 – Lewd Acts with a Minor Child Under 14. However, this made him eligible for probation. The DA realized this and quickly amended the charges to 6 counts of 288(a)and one count of PC 288.5– Continuous sexual abuse of a child under 14. In the world of sex charges, the allegation are often very nebulous because the conduct may have happened a while ago, and/or the memories of the child are not clear and consistent, and they are often coached by law enforcement to exaggerate the claims or information is elicited in a way which lends itself to hyperbole.
At the preliminary hearing, Lulu did not show up. Lulu was almost an adult and not interested in reliving the past or seeing Lester go to jail forever, especially since Lester was still married to Lulu’s mother. At the preliminary hearing, the DA pulled another trick and based on very scanty evidence amended the information to add PC 289(a)(1)- Sexual Penetration by Force. Of course, the sexual molestation was without consent, but the DA argued that by moving Lulu’s body even in the slightest way, “force” was used. This was important because since PC 289(a)(1) involves the use of force or violence, the sentencing is full-boat consecutive. What this means is that usually when someone is charged with more than one count, they are only sentenced fully on one of the counts, and then they serve one third (1/3) the time on the other counts. However, when force or violence is used, the defendant will do all of the time- it’s “full boat consecutive” sentencing.
At this point, Lester was facing several decades in prison. His offer was like 22 years.
This is where section 1219(b) of the Civil Code came into play to save Lester’s skin. Lulu was reluctant to be dragged through the mud and also cared for Lester and didn’t want to see him in prison forever. She refused to testify in the preliminary hearing. We set the case for trial. At trial, Lulu hired an attorney who invoked Civil Code Section 1219(b) and said Lulu did not want to testify. Section 1219(b) makes it possible for victim’s of domestic violence or sexual assault to refuse to testify without fear of going to jail (In almost all other situations, if a witness refuses to testify the Judge will jail them until they’re ready to testify). Suddenly, Lester’s offer changed from 22 years to 2 years in prison (at half-time). We jumped on the 2 year prison term. However, after the DA signed the plea agreement, he came back and ripped it up. He said Lulu was in the DA’s office and thought that sentence was too low and she would testify against him otherwise. We were stunned. It was back to the negotiating table. Ultimately, we ended up with a sentence of 6 years on a PC 288.5 charge. Lewis was on tape confessing to the whole thing and was facing 3 decades in prison. So as it turned out 6 years was a great sentence, even though it wasn’t as good as 2 years. I told Lester when he surrendered for custody not to tell anyone what his offense was. Sexual offenders are targets in prison, and even if he wasn’t targeted, they might call him Lester the molester.
If you or a loved one is being wrongfully charged with Penal Code 288 in California, we invite you to contact us immediately for a free case review. Schedule an appointment to meet with us in person, or feel free to submit an evaluation online and we will get in contact with you ASAP.
Our experienced and assiduous Criminal Defense Lawyers will be sure to fight until the end to reduce or drop your charges completely.
Call LAW MART for a FREE Case Review: 310-894-6440
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