|Penal Codes 288(a), 288(b)(1), & More: Law & Defense-Child Molestation Defense (Lewd Acts)-
There are literally hundreds of Child Molestation type laws in California. Most are found at penal code sections 288(a), 288(b)(1), 288a, and 289.
The term Child Molestation is better known as Lewd and Lascivious Acts Against a Child in California courts.
The reason there are so many child molestation charges in California is due to the fact that there is a different charge for every circumstance. Different charges reflect the difference in age of victim, age of defendant, type of sexual contact, mental state of the victim or defendant, whether force was used, etc.
For example, oral copulation with a child is charged under PC 288a(b)(1), but sexually touching a child without oral copulation is usually charged under PC 288(a), and so on.
This article is dedicated to a brief discussion of PC 288(a) and PC 288(b)(1), which are the most common charges of child molestation or lewd and lascivious acts against a minor. If you have been charged with any of the hundreds of different sex crimes in California you must contact a sex crimes attorneys without delay.
The law of PC 288(a) & 288(b)(1)
In ordered to be found guilty of PC 288(a) or 288(b)(1), the defendant must have committed a lewd or lascivious act against a minor with the intent of sexually arousing the defendant or the minor.
In other words, accidental or unintentional touching of a minor, without sexual arousal motivation is not a crime, at least not one charged as a sex crime.
Lewd and Lascivious is defined as inappropriate sexual conduct (PC 288).
Sentence & penalties for PC 288(a) & 288(b)(1)
PC 288(a) charges carry up to an eight year prison sentence, whereas penal code 288(b)(1) charges carry up to a ten year prison sentence. (More PC 288 charges and associated possible prison terms are found to the right of the this article at bottom).
Special enhancements are often added to PC 288(a) and 288(b)(1) charges, such as a multiple victim, sexual penetration, or kidnapping enhancement, which make PC 288(a) and 288(b)(1) charges a life offense.
PC 288(a) and 288(b)(1) crimes are considered strike offenses under California Three Strikes Sentencing Law. Both crimes are considered serious and violent as those terms are defined in the penal code.
Both PC 288(a) and 288(b)(1) crimes are subject to full consecutive sentencing, which means that any prison sentence for primary and subordinate charges are served consecutively to one another, as opposed to running all the charges concurrently.
In addition to any jail or prison sentence, if found guilty of PC 288(a) or 288(b)(1), the defendant must register as a sex offender under PC 290 sex offender registration laws. The defendant will also be ordered to pay fines, make restitution to victims, stay away from victims, and other harsh punishments. Collateral penalties for any sex crime conviction can include loss of a professional license, loss of immigration status, and loss of reputation, just to name a few.
Child molestation convictions under PC 288(a), 288(b)(1), carry some of the longest criminal sentences and harshest punishments of any criminal charge. The mere allegation of child molestation, even if uncorroborated, can destroy a person's career, personal relationships, and reputation. A conviction of a child molestation certainly destroys the defendant's life.
In addition, the prison sentence for PC 288(a) and 288(b)(1) is served at 85%, which means that the defendant must serve at least 85% of his or her prison sentence before becoming eligible for parole or parole.
Facts For Most PC 288(a) & 288(b)(1) Charges
- Child molestation defendants usually have no prior criminal convictions
- Child molestation allegations are usually made by a single witness concerning a single event
- Many child molestation allegations are not supported by any physical evidence
- Child molestation defendants are often times related to the child who is alleged to have been molested.
Defenses to PC 288(a) & 288(b)(1) crimes:
Every PC 288(a) and 288(b)(1) criminal charge is different and therefore every defense will likely be different; however, some common defenses include:
- Using psychologist to show that the child has been pressured into exaggerating facts either by police or adults or both, to support the allegations of another person for hidden agendas (seen in family law case disputes every day)
- Using psychologists to show that the children are adopting the accusations of the adults around them, or filling in their own memories with false memories to explain events that children can not understand, (seen in hypersensitive children to child abuse by over-emphasis of caution against child molesters by parents or family)
- Using Child psychologists to demonstrate how the conditions under which the child was interviewed lends itself to false reporting, or that the statements are the product of an undeveloped mind (or mentally incompetent mind) (seen in lewd acts cases with very young victims)
- Insufficient Evidence to prove guilty, especially in 'he said, she said' cases without corroborating evidence (perhaps the most common defense)
- Insanity or Involuntary Intoxication to the point of not knowing wrong from right or the nature and quality of the conduct against a child
- Due Process Violations & Defenses: Statute of limitations, Double Jeopardy, Improper Jurisdiction, Violation of Miranda Rights (rights to a criminal defense attorney and rights to remain silent), coerced confessions (more common in PC 288 cases than other crimes), mistake of fact (as to age of the victim), and more.
Note: The defense of Statute of Limitations as a defense to PC 288(a), and PC 288(b)(1) charges is not easy to understand, even for some attorneys. This author has dedicated an article to the defense of statute of limitations on another page of this website; however, in many PC 288 cases, the statute of limitations does not start to run until the police learn of the crime, at which point, the statute starts to run and the limitation is one year from the date of discovery of the lewd conduct by the defendant.
Retaining the right attorney for the job
Child molestation charges, either PC 288(a), 288(b)(1), or any other sex crime, are among the most difficult charges to defend against in the entire criminal justice system for the following reasons
- Reluctant and protected witnesses make favorable evidence gathering more difficult
- bails are usually set so high in child molestation cases that most defendants must fight their case from jail
- Many of the witnesses are protected minors which makes evidence gathering more difficult for defense
- Prosecutors are acutely aware of the public pressure to "not make deals with child molesters."
- The evidence is often scientific in nature
- Finally, juries are often times biased agaist the defendant, even before the prosecutor has called his or her first witness.
All of this makes the child molestation case a difficult and highly emotional task.
Our criminal defense attorneys are experienced in sex crimes defense, including defense at trial. We have a winning trial record with proven success in PC 288(a) and 288(b)(1) charges
To learn more about the crime of child molestation in California, including PC 288(a) and 288(b)(1) crimes, contact a our criminal defense attorney today. Time is not on your side in these types of cases.
There is no charge for initial consultations on any PC 288(a), 288(b)(1), or other 288 crime. Our office offers 24/7 emergency service.
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Lewd & Lascivious Acts Maximum Prison Punishments
PC 288(a) Lewd & Lascivious Acts against a minor under the age of 14 [Felony: sentence up to eight years in prison for each count; lifetime sex offender registration required upon conviction. Full consecutive sentence. Serious & Violent crime under CA Three Strikes Sentencing]
PC 288(b)(1) Lewd & Lascivious Acts against a minor by use of force or violence [Felony: sentence up to ten years in prison for each count; lifetime sex offender registration required upon conviction. Full consecutive sentence. Serious & Violent crime under CA Three Strikes Sentencing]
PC 288(b)(2) Lewd & Lascivious Act against a dependent by force [Felony: sentence up to ten years in prison for each count; lifetime sex offender registration required upon conviction. Full consecutive sentence. Serious & Violent crime under CA Three Strikes Sentencing]
PC 288(c)(1) Lewd & Lascivious Act on a 14 or 15 year old minor when the defendant is at least ten years older [Misdemeanor or Felony: sentence up to one year in jail for misdemeanor conviction and up to three years in prison for felony conviction; lifetime sex offender registration required for misdemeanor or felony conviction]
PC 288(c)(2) Lewd & Lascivious Act by a caretaker on a dependent adult [Misdemeanor or Felony: sentence up one year in jail for misdemeanor conviction and up to three years in prison for felony conviction; lifetime sex offender registration required for misdemeanor or felony conviction]
Automatic Life Sentence Enhancements:
There are enhancements that may be added to PC 288(a) and 288(b)(1) charges that may make the possible prison sentence a life sentence. These include:
- multiple victim allegations (See PC 667.6),
- evidence of physical injury (See PC 288(i)),
- kidnapping for the purpose to commit PC 288 (See PC 209(b)(1)) crimes,
- Habitual Sex Offender (See PC 667.71(b)), and more.
Recent Trial Victories by Christopher Dorado for PC 288(a), 288(b)(1), & 209(b)(1) Charges [209(b)(1) is charged where the defendant is accused of kidnapping a minor for the purpose of committing a lewd act upon a minor; PC 209(b)(1) is a life case if the defendant is found guilty]
B.C. Accused of four counts of PC 288(a) in Riverside [Defendant faced 32 years in state prison at 85% percent]. Trial: 13 year old alleged victim testified at trial as to all four counts; alleged victim's younger brother testified that he witnessed several of the offenses. The District Attorney attempted to introduce hair fiber evidence to support his case. At trial, hair fiber evidence was excluded on successful motion by defense attorney; psychologist for defense testified as to the presence of pressure on the children, by non-forensic examiners, to testify against defendant: Result: Defendant found not guilty on two counts, jury hung 6/6 on remaining two counts...no retrial by D.A. on 288(a) charges.
F.F. Accused of two counts of PC 288(a), & PC 209(b)(1) in Riverside [Defendant faced life in prison] Trial: Psychologist testified, over prosecutor's objection, that the alleged victim suffered from common psychological phenomenon that affected her statements to the police (adopting statements of others, filling in for memory loss, confusing other person's history with her own, and questioned by goal objective officers, and others with leading, compound, and suggestive type questions: Result: Hung jury on all counts and offered probation only (no jail) before a second trial was conducted.
E.C. Accused of seven counts ranging from 209(b)(1), 644/261 [Attempted rape on minor], 243.4 [Sexual Battery], and other sex crimes [Defendant faced life in prison plus 25 years] Trial: Confession by defendant played to jury but found to be coercive by police officers. Defense, over prosecutor's objection, was successful in bringing a medical expert to testify as to the extent of alleged victim's injuries and the inconsistencies in her testimony as it related to her alleged injuries: Result: First trial was hung on all counts, second trial defendant was found not guilty on the most severe charges and found guilty of only lesser offenses. Defendant was immediately released from custody with credit for time served after jury acquittal on most charges.
J.G. Accused of sexual penetration of minor under PC 289 [Defendant facing 8 years in prison at 85%] Trial: Confession of defendant thrown out on defense motion. Probation only offered by the prosecutor after remaining evidence was fairly weak to support conviction [Defendant accepted]
S.F. Accused of multiple counts of 288(a) and 288(b)(1) charges. Defense argued that the statute of limitations had expired when the alleged victim reported to a "rape crisis center" the conduct of the defendant. Defense argued that the rape crisis center is a mandated reporter and presumably reported the incident to the police. Therefore, the police are presumed to have learned of the event soon after the alleged victim reported to the rape crisis center. Outcome: Plea deal struck with DA for no-time offer before judge heard the motion to dismiss for failure to observe the statute of limitations
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