crime is tried aggressively to protect children. PC Section 288.3 statute was enacted in 2006 under California Prop. 83, the Sexual Predator Punishment and Control Act, known as Jessica's Law. It gave the police more authority to nab sexual offenders before they commit an offense, such as posing as children online. Our criminal defense lawyers provide a further review of the crime to assist you in understanding the law.
What Is the Definition of the Crime?
PC Sec. 288.3 defines the criminal offense of contacting a child intending to perpetrate a felony as communicating with or contacting (or attempting to contact or communicate with) a child while knowing or reasonably knowing they are a child, intending to perpetrate a specific crime involving that minor.
Put otherwise, the authorities can arrest, charge, and convict you of a felony crime without completing any illegal activity with a child. This section harshly penalizes the intention to perpetrate a sex offense with a child. The law is an attempted offense, described under California statute, which means you can be prosecuted and found guilty just for taking a direct step to perpetrate an offense.
According to this law’s context, communicating with or contacting someone else can be indirect or direct. That means you must personally communicate with or contact the child (person-to-person communication) or use an agent such as email, mail, phone, internet, radio, or wire communications, and print ads to achieve the communication.
The offense also entails any attempt to do any of the above acts. That means that an unopened email or unanswered phone call may be evidence of an attempt to contact a child for purposes of perpetrating a felony. Also, it means this offense can be perpetrated simply by sending the communication, irrespective of whether the child responds to it or not.
Generally, you can only be convicted of contacting or communicating with a child or trying to communicate or contact them while aware they are a child with the intention to perpetrate a felony crime if the prosecutor can demonstrate you meant to perpetrate any of these offenses that 288.3 PC lists:
- PC 289, forcible acts of sexual penetration—this is the criminal offense of consensual sexual penetration with a child under eighteen years old or non-consensual sexual penetration using a foreign object achieved through fear, coercion, violence, threats, or force.
- 2 PC, sending harmful material to a child—this law criminalizes sending obscene material to a child intending to arouse them or yourself sexually, and with the eventual goal of participating in sexual activity with them.
- PC 288, lewd acts on a minor—under PC Section 288, performing lewd acts on a minor is touching any of a child’s body parts for sexual reasons. This statute applies only to lewd conduct perpetrated with a child under fourteen years old.
- PC 287, oral copulation with a minor—this law criminalizes engaging in nonconsensual oral sex (otherwise called oral copulation through fear or force) or consensual oral sex with a child.
- PC 273a, child endangerment—273a PC defines child endangerment as causing, inflicting, or permitting unjustifiable mental suffering or physical pain upon a minor.
- PC 286, sodomy—286 PC criminalizes forcing a person to participate in anal sexual intercourse without their permission or perform anal sexual intercourse with a child.
- PC 261, rape—under 261 PC, rape refers to the action of having sexual intercourse with a person without their authorization. This could mean that the intercourse is accomplished through the application of violence, force, fraud, threats, or coercion, or the victim was incapable of consenting (for example, since they have a bodily or mental disability or were too intoxicated).
- PC 311, child porn—the possible underlying crimes of 283.3 PC, communicating with a child intending to perpetrate a felony offense include the child pornography criminal offenses of:
- PC Sections 311.2 and 311.1, transporting, sending, possessing, duplicating, or producing child pornography intending to distribute or sell it.
- PC Section 311.4, employing, hiring, persuading, coercing, or using a child to engage in child porn production
- PC Section 311.11, controlling or possessing child pornography
- PC 209, kidnapping for ransom or aggravated kidnapping—according to PC 209, it is a criminal offense to kidnap a person for a reward or ransom or to perpetrate another offense like rape or robbery. That means the judge cannot convict you under this law if you are not guilty of the underlying crime of kidnapping itself.
- PC 207, kidnapping—the offense of kidnapping involves moving someone else a significant distance without their authorization and using fear, threats, or force. This crime could also be perpetrated without using fear or force if the involved victim is under fourteen years old, the defendant uses misrepresentation or false promises to convince the victim in question to go with them, and the defendant kidnaps the victim to perpetrate a sexual offense against them.
Note that the judge can still convict you for talking to a child to perpetrate a felony even if you did not do an illegal activity with the child. In that case, it would be deemed an attempted offense, meaning you took a direct step toward the penetration of an offense.
For a judge to find you guilty of violating PC Section 288.3, the prosecution must demonstrate all the facts making up the crime beyond a reasonable doubt. These facts are listed under CALCRIM 1124, and they are the following:
- You indirectly or directly communicated with, or contacted, or tried to contact or communicate with a child.
- When doing so, you intended to perpetrate any offenses that PC Section 288.3 lists involving the minor.
- You were aware or reasonably should have been aware that the person you contacted or communicated with was a child.
A child is anyone under eighteen years old. It is critical to note that it is an offense even to try communicating with a child to perpetrate a felony offense. In most cases, this statute is enforced through sting operations and entails accused persons talking to undercover officers, often online, disguising themselves as children. Thus, in most scenarios, a defendant did not contact a minor in the real sense but rather contacted a person they believed was below eighteen years old.
The Consequences You May Face for Committing This Crime
If found guilty of contacting a child to perpetrate a felony crime, it is generally a felony violation carrying imprisonment for the period stipulated for an attempt to perpetrate the intended offense.
That means the consequences you could face are any repercussions available for the underlying crime you meant to perpetrate involving the child, including:
- Between seven and thirteen years for talking with a child to perpetrate forcible sodomy
- Eight, six, or three years for contacting a minor to carry out lewd activity on someone under fourteen years
- At least sixteen months and up to eight years (based on your and the minor’s age) for communicating with the child to participate in oral sexual intercourse
- A maximum fine of ten thousand U.S. dollars
- Formal supervised probation
Also, if you have been previously found criminally liable for a violation under PC Section 288.3, your possible state prison time will be enhanced by five more consecutive years for each subsequent violation.
A conviction under PC Section 288.3 additionally carries a mandatory sexual offender registration condition per PC 290. California has a three-level sexual offender registration system. In most situations, the court will mandate you to register as a level three sexual offender, requiring lifetime registration. For some cases, the court will mandate you to register as a tier two sexual offender, requiring registration for at least twenty years. If the court mandates tier one registration, it means you must register as a sex offender of ten years.
Other Charges You May Face
When accused of violating 288.3 PC, you want to know some related criminal offenses. That is because the prosecution may charge you with these related offenses instead of or alongside your PC 288.3 violation based on the facts surrounding the case. Some of the crimes related to PC Section 288.3 violations include:
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PC 266, Enticing a Child to Prostitution
PC 266 criminalizes enticing a child into a brothel for prostitution purposes or fraudulently procuring a child to engage in sexual intercourse with someone else. This crime is considered a wobbler, meaning the prosecution can press misdemeanor or felony charges based on the facts of the crime. A conviction for a misdemeanor carries a jail sentence of up to a year, among other penalties. A conviction for a felony carries a state prison sentence of not more than three years, among other consequences.
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PC 261.5, Statutory Rape
Statutory rape refers to having consensual sex with a child. One key element regarding this crime is that the violation is not included among the underlying felony crimes that would contribute to PC 288.3 charges. Therefore, one possible defense to 288.4 PC charges is arguing that your intention was just to have consensual sex with the child. That would mean you cannot be convicted for that offense.
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PC 243.4, Sexual Battery
PC 243.4 defines sexual battery as touching someone else's intimate parts without their consent for sexual abuse, arousal, or gratification purposes. This crime is generally considered a misdemeanor, although it can be considered a felony if aggravating circumstances exist. Common legal defenses include that the involved victim agreed to the touching and that you were wrongly accused.
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PC 288.4, Arranging a Meeting with a Child for Lewd Purposes
Planning to meet with a child for lewd purposes is an offense closely related to violations of Sec. 288.3 of the Penal Code. This law criminalizes arranging to meet with a child while motivated by an unusual or abnormal sexual-related interest in minors, intending to expose their or your genitals or participate in lewd acts with the child at that meeting. Just like PC 288.3 violations, violating PC 288.4 is deemed an attempted offense that might be prosecuted even when you did not participate in sexual behavior with the minor.
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PC 314, Indecent Exposure
PC 314 defines indecent exposure as purposely exposing your genitals or naked body in public to offend or annoy other people. It is generally a misdemeanor crime, but you will be subject to the requirement to register as a sex offender.
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PC 311.1, Distributing Obscene Material Showing Sexual Conduct by a Child
According to 311.1 PC, it is an offense to distribute obscene material showing sexual activity by a child. That means it is unlawful to bring or send obscene matter into the state that you are aware shows a minor having simulating sexual acts or sexual relations. The crime is prosecuted as a wobbler based on the facts.
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PC 647a, Lewd Conduct in Public
PC 647a defines lewd conduct in public as touching your or someone else's female breasts, buttocks, or genitals for sexual gratification purposes, knowing that the other individuals present would be offended by your actions. This crime is considered a misdemeanor violation, and unlike indecent exposure, it does not necessitate registration as a sex offender.
How to Fight the Charges Against You
An experienced criminal defense lawyer has probably defended against many of these cases in court and would know various legal defenses to help you fight the charges of contacting a child to perform a felony activity in violation of PC Section 288.3., which can be effective with juries, judges, and prosecutors. Some of the defenses your lawyer may argue are:
You Were Not Aware You Were Communicating with a Child
In certain PC Section 288.3 violations, you may be accused of contacting a child to perpetrate a felony offense when you reasonably believed the supposed victim was a grown-up. It could be the victim lied regarding their age, or you met them in a concert restricted to individuals over twenty-one years or a bar, a place you would not anticipate finding a child. The child could also have acted or looked more mature than their real age. There are many PC 288.3 violation cases where children easily pretended to be adults, leading the prosecution to dismiss the charges before a court trial.
You Did Not Intend to Commit the Underlying Felony
Generally, demonstrating intent to perpetrate an offense is challenging for the prosecution since it is impossible to demonstrate precisely what a person is thinking at a particular time. Thus, it is the most effective legal defense.
A lawyer may successfully argue that your contacting the child was not a felony or criminal. Perhaps you communicated with or contacted the minor. Perhaps you even harbor sexual or romantic interest or feelings for them. However, your communicating with the child does not automatically show that you meant to perpetrate an offense, even when your communications entailed sexual content. For example, you could have contacted the child for legitimate reasons, but the minor misunderstood you and, in turn, called the police.
Even planning a one-on-one meeting with the minor does not automatically show you communicated with them intending to commit an offense, especially if that meeting was to occur in a public area. In a nutshell, provided your lawyer can cast a reasonable doubt in the jury's mind, charges cannot hold water, and the prosecution may be forced to drop them.
Police Entrapment
Police entrapment is illegal in California. It occurs when a law enforcement officer behaves overbearingly, making a suspect engage in conduct they otherwise would not have. Police entrapment may happen when the police lure a suspect into doing an act through threats, flattery, fraud, harassment, or pressure.
There are many cases where people face criminal charges for communicating with a child to perpetrate a felony offense because of an online sting operation carried out by law enforcement officers. In cases like these, law enforcement officers will disguise themselves as minors and flirt with possible suspects.
Generally, law enforcement officers will apply aggressive techniques to nab violators. A skilled criminal defense lawyer would assert that you only committed the illegal conduct because law enforcement had you do it through threats, fraud, or threats. They will use the law enforcement’s bodycam footage against them to prove they went too far by entrapping you. The judge should drop the charges provided your lawyer can prove you would not have perpetrated the offense were it not for the pressure from law enforcement officers.
Find a Knowledgeable Criminal Attorney Near Me
A PC 288.3 conviction can carry life-changing repercussions, including substantial prison time. Our lawyers at Darwish Law fight for clients through all stages of the criminal process, including when the case has not undergone a pre-filing intervention. If you have been charged with communicating with or contacting a child to perpetrate a felony crime in Santa Ana or are under investigation for illegal sexual behavior involving a child, call us to review your case details. We will strive to defend your legal rights before the court to minimize the harsh penalties of these severe felony allegations. Contact us at 714-887-4810.