Information on the crime of lewd or lascivious acts with child under fourteen (14), commonly called "child molestation," is found at California penal code section 288(a) [PC288(a)-F].

 

The following information is a short summary of the law, punishment, penalties, and common defenses related to PC 288(a) criminal charges and convictions. For further information contact our sex crimes criminal defense attorneys today for a free consultation.

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To start, let us review the law of penal code 288(a)...

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PC 288(a) Law (Abbrev.):

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PC 288(a): Any person who willfully commits any lewd or lascivious act upon a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person (defendant) or the child, is guilty of a lewd or lascivious act against a child under 14 (PC 288(a)) [Abbrev.].

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Lewd or Lascivious Act Defined: A lewd or lascivious act means an inappropriate and offensive sexual touching. The inappropriate and offensive sexual touching can be either when the child, who is under the age of fourteen, is sexually touched by the defendant, or when the defendant is sexually touched by the child as directed or forced by the defendant.

 

Indirect Touching Issues: The lewd and lascivious act mentioned above (i.e., offensive sexual touching of a child under 14 

does not have to be skin to skin contact for PC 288(a) to apply. Also, the sexually lewd and lascivious touching of a child under the age of 14 can involve any part of the child's body, or the defendant body, for Penal 288(a) to apply.

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Example 1: David makes face to face contact with 13-year-old Silvia through a social media site. David knows that Silvia is only thirteen years old. David convinces Silvia to masturbate on camera for David (David's indirect sexual touching of Silvia.

 

Result: David is guilty of Penal Code 288(a), a felony, because David instructed Silvia to touch herself sexually for David's Sexual gratification.

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Note: Most PC 288(a) charges arise in the context of one-on-one physical contact between a child and the defendant, but as face-to-face social media interactions rise in use, so do the number of allegations of indirect lewd and lascivious act on a child under 14.

 

Also, in the above example, David may also be charged with additional crimes, such possession of child pornography (PC 311), contact a minor for a lewd act (PC 288.3), annoy or molest a minor (PC 647.6), and more.

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Example 2: David sees twelve-year-old Miranda sleeping on the couch. David knows that Miranda is under the age of fourteen (14). David sexually arouses himself by rubbing Miranda's butt while she sleeps (touching is over Miranda's pajamas.

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Result: David has committed a lewd and lascivious act upon a child under the age of fourteen, in violation of penal code 288(a)-F. This is true even though Miranda is not aware of the touching and even though David did not touch Miranda with skin-to-skin contact.

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Multiple PC 288(a) Charges: Multiple lewd and lascivious acts upon a child under the age of fourteen (14) are charged separately. This is true even if the sexually inappropriate touching appears to take place in one act or occurrence.

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Example 3: David sexually arouses himself by touching twelve-year-old Miranda while she sleeps. As part of David lewd and lascivious conduct, he touches Miranda's breasts, her butt, and vagina (all touching is over Miranda's pajamas).

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Result: David may be charged with three counts of lewd and lascivious act upon a child under fourteen (14), or PC 288(a), because he touched Miranda on three district parts of Miranda's body to sexually arouse himself. This is true even though the act of sexual arousal appears to be one continuous act from David's perspective.

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Note: When three or more acts of lewd and lascivious conduct occur upon a child under the age of fourteen (14), and those sexual acts occur within six months of one another, the district attorney will usually charge the elevated criminal charge of PC 288.5(a). For more information on PC 288.5(a), see the crime of Continuous Sexual Abuse of a Child.

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Momentary Touching Issues: A defendant violates California penal code 288(a) when he or she touches a child under the age of 14, with sexual intent to arouse the child or the defendant. It does not matter if the length of time of the touching is momentary or even fleeting.

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Example 4: David slaps thirteen-year-old Silvia on her butt with sexual intent (for the purpose of sexually arousing himself or Slyvia). The touching is over Silvia's clothes and the touching lasted less than a second in length.

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Result: David may be charged with a violation of PC 288(a) as he touched a child under the age of fourteen (14) with sexual intent. It does not matter that David lewd and lascivious act lasted for only a very brief moment in time.

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PC 288(a) Penalty & Punishment

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PC 288(a) Prison Sentence: Lewd and lascivious act upon a on a minor under fourteen (14) is charged as a felony. If found guilty of PC 288(a), the defendant may face up to eight (8) years in prison for each PC 288(a) conviction.

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Multiple PC 288(a) Sentencing: It is not uncommon for a defendant to be charged with multiple counts of penal code 288(a), from one "incident" of lewd or lascivious act upon a child under 14 years of age.

 

Note: "each individual act that meets the requirements of section 288 can result in a new and separate violation" (People v. Scott (1994). 'There is no requirement that multiple acts of PC 288 be separated by hiatus or period of reflection' (People v. Jimenez (2002) [Summarized].

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​Multiple PC 288(a) Sentencing: Multiple charges of lewd and lascivious act upon a child under 14 years of age may be served concurrently, which means 'served at the same time, or simultaneously.'

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In other words, multiple counts of PC 288(a) do not necessarily require a longer prison sentence; however, for purposes of sentencing, the "maximum" prison sentence for multiple counts of PC 288(a) generally equals eight (8) years for count 1, and two (2) additional years for each additional count.

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Note: Other sentencing combinations may apply, but the important part of PC 288(a) sentencing is to know that each count may run concurrently to other counts of PC 288(a) [No "consecutive" sentencing in most PC 288(a) cases].

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Probation Sentences: A probation sentence in a PC 288(a) case is a period of supervision instead of a prison sentence. Probation sentences are allowed in 288(a) cases, but a probation sentence after a PC 288(a) conviction will only be granted if the judge finds the following factors in the case:

 

• Special and unusual circumstances in the case justify probation sentencing,

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• the interest of justice is best served by allowing the defendant to serve a probation sentence instead of a prison sentence, and

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• the community will not be placed in danger by allowing defendant to remain out of prison.

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Suspended Sentence: Suspended and split prison sentences are not available in PC 288(a) cases. This means that if the defendant is convicted of lewd and lascivious acts upon a child under the age of fourteen (14), and the defendant does not receive a probation sentence, then the defendant must serve his or her prison sentence in a California state prison, as opposed to a local county jail, and no part of that prison sentence may be served out of custody on work release or electronic monitoring (house arrest).

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Sex Offender Registration: If found guilty of lewd and lascivious acts upon a minor under fourteen (14), the defendant will be ordered to register as sex offender with local law enforcement for at least twenty (20) years. For more information, see Sex Offender Registration Requirements.

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Three Strikes Offense: Lewd and lascivious act upon a on a minor under fourteen (14) is a strike offense under California's Three Strikes Law. PC 288(a) is considered both a violent offense, and a serious offense under California law (PC 667.5, and PC 1192.7, respectively.).

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Immigration Consequences: Non-U.S. citizens convicted of PC 288(a) may be deported, denied naturalization, and denied reentry into the United States. Also, for purposes of immigration consequences, PC 288(a) is a classified as a crime involving moral turpitude and a crime of violence.

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Collateral Penalties: In addition to the punishments and sentences listed above, if found guilty of lewd and lascivious act upon a minor under fourteen (14), the defendant may face all of the following penalties: increased penalties for subsequent misdemeanor or felony convictions, penalty fines and fees, victim restitution orders, criminal protective orders, loss or suspension of a professional license, loss of the right to own and possess firearms, loss of military service opportunities, civil lawsuits, and more.

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Attempted Child Molestation: In recent years, the district attorneys of California counties have begun to charge the crime of attempted lewd and lascivious act upon a child under 14 (PC 664/288(a)).

 

This attempted lewd acts criminal charge is levied against the defendant where the district attorney believes he or she can prove the defendant's sexual intent to touch a child under 14, coupled with proof that the defendant took a substantial step towards the commission of a lewd act upon a child, but where actual direct or indirect sexual touching did not occur.

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Example 5: David asks Maria, a thirteen-year-old girl, to masturbate herself in front of David. Maria refuses. Result: David may be charged with attempted lewd and lascivious act upon a child under 14 (PC 664/288(a)).

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PC 664/288(a) Sentencing: Attempted lewd and lascivious act on a child under 14 is charged as a felony. A violation of which could result in a prison sentence of up to 16 months, 3 years, or 4 years in prison, depending on many factors, including the defendant's criminal history.

 

Note: Probation, with or without an actual prison sentence may be allowed in PC 664/288(a) cases, but a probation sentence after conviction is not guaranteed. All other penalties related to PC 288(a), including sex offender registration requirements (PC 290), apply to PC 664/288(a) convictions.

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PC 288(a) Common Defenses

 

The allegations that support child molestation charges are as varied as can be imagined. With this in mind, there is no "one-defense-fits-all" scenario. Nevertheless, there are common defenses to a PC 288(a) allegation, including insufficient evidence to prove the elements of PC 288(a), motive to fabricate, coerced confession, illegal search and seizure, Miranda violations, insanity, mistake of fact as age of the alleged victim, and more.

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Let us look at some of the more commonly used defenses to PC 288(a) charges...

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Insufficient Evidence Defense: Insufficient evidence is one of the most common defenses used by sex crimes criminal defense attorneys when a defendant is facing a lewd and lascivious act upon a child under fourteen (14) criminal charge. Insufficient evidence simply means not enough evidence to prove the defendant's guilt beyond a reasonable doubt.

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In other words, the district attorney might not be able to prove to a jury, or any individual juror, to a high degree of certainty, that the defendant is guilty of PC 288(a). This most commonly occurs in PC 288(a) cases where one or more of the following facts are present in the defendant's case:

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•  The defendant has no criminal history,

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•   the alleged victim has motivation to fabricate (i.e., stepchild "victim" used to support a child custody argument against stepdad in a family law case involving a different child),

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• there is no scientific evidence supporting the alleged victim's claim (i.e., serology, seminal fluid, DNA, etc.),

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• the alleged victim has no supporting witnesses, or unreliable witnesses (i.e., sibling of alleged victim), and/or

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• where defendant has not confessed to the alleged lewd and lascivious act.    

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Note: Insufficient evidence is common in PC 2889a) cases where the defendant does not confess and where there is no supporting scientific evidence to the alleged crime. This is because most PC 288(a) cases are "he said, she said" cases, and supporting witnesses for the prosecution are often bias (i.e., parent or sibling witness, etc.).

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Demurrer Issues: A "demurrer" a legal procedure whereby the prosecution is stopped from moving forward for some technical reason.

 

In PC 288(a) cases, this usually arises where the defendant has multiple victims or defendant joined, where the statute of limitations is violated, where the court lacks the jurisdiction to hear the case, and where the district attorney improperly pleads the case (i.e., PC 288.5 allegations that overlap PC 288(a) allegation, etc.).

 

Note: Demurrer defenses in sex crimes cases is fairly complicated. For more information on demurrers related to lewd and lascivious act on a child under fourteen (14), or PC 288(a), contact our sex crimes criminal defense attorneys today for a free consultation.

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Coerced Confession: A coerced confession is a confession that is the product of the inappropriate conduct of the interviewing officers. It usually involves questionable officer interviewing tactics such as officers threatening the defendant with prosecution of the defendant's family members unless the defendant "confesses," or where the defendant is made promises of great leniency if he confesses.

 

Note: Miranda violations and coerced confession are not the same thing. A defendant can be warned of his Miranda rights, and nevertheless coerced into providing a confession that is later rendered inadmissible due to the inappropriate conduct of the interviewing officers. On the other hand, all police interrogation is coercive in nature and officers have the right to lie to defendant during interrogation. Therefore, whether a defendant's confession is coerced is decided on a case-by-case basis in any prosecution for lewd and lascivious act upon a child under 14.

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​Miranda Violation: A Miranda violation occurs where the defendant is in police custody (or the functional equivalent of police custody), and where police interrogate (question) the defendant without first reading the defendant his rights and warnings against self-incrimination. When this happens, the defendant's statement, or confession, might be rendered inadmissible (unusable) against him in a prosecution for lewd and lascivious act on a child under fourteen (14) [PC 288(a)].

 

Miranda violations is a complex area of law for PC 288(a) cases. This is because police tactics in PC 288(a) cases often involve "pretext phone calls," or calls from the alleged victim to the defendant, while police only "listen" to the conversation between the alleged victim and defendant, with the goal of hearing a "confession," or an apology from the defendant without first having the defendant advised of his right to an attorney during any questioning.

 

PC 288(a) cases also commonly incorporate the use of polygraph examinations that use quasi-law enforcement agencies to interrogate the criminal suspect while seemingly working around the Miranda Requirements.

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Note: In many lewd and lascivious act on a child under fourteen (14) cases, the defendant feels defeated because he or she believes the case is strong against him or her due to a "confession," only to realize later, that the defendant attorney might be able to have that "confession" rendered inadmissible due to undue coercive police tactics, or failure to properly abide by the laws against self-incrimination (i.e., 5th Amendment Right Against Self-Incrimination, Miranda Violations, etc.).

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Reasonable Mistake of Age: If the defendant operates under a true, but mistaken, belief that the child with whom he made a sexual and inappropriate touching, is an adult (18 or over in California), then the defendant may have a valid defense to a penal code 288(a) criminal charge.

 

Note: The mistaken belief must be both reasonable (objective "average person" standard), and true (subjective "personal true belief" standard). This is not a common defense in lewd and lascivious act on a child under fourteen (14) cases, but if the defendant truly believes the victim is of the age of consent (18), and that fact is reasonable to the average person, then the defendant may use the defense of mistaken belief in a PC 288(a) prosecution.

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Polygraph Examination Issues: Polygraph examination results are generally inadmissible in California courts. However, the statement made in connection with polygraph exams are often used in PC 288(a) prosecutions. This makes issues like coerced confessions (See Above), and Miranda Violations (See Above), rather complex in lewd and lascivious acts cases.

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Example 6: David is asked if he would like to take a polygraph examination to "clear his name" after he is accused of lewd and lascivious acts upon a child under 14. David agrees to take the polygraph exam. After the exam, the police lie to David and tell him that he "failed" the exam and that he is going to prison unless he now confesses.

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Result: If David confesses after taking the polygraph examination, then the confession might be allowed as evidence against him in a prosecution for PC 288(a) (assuming Miranda warnings are thereafter followed). This is true even though the polygraph examination results would not themselves be used against David. Also, any statement or conduct of the defendant that is made during the exam, regardless of whether it is connected to the polygraph examination itself, might be admissible.

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Note: Polygraph examination is common method used by law enforcement in penal code 288(a) cases because so many lewd and lascivious acts cases involve only "he said, she said" evidence. For more information, see polygraph examination issues related to penal code 288(a)-F cases.

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Pretext Phone Call Issues: A "pretext phone call" is a call from the alleged PC 288(a) victim, or a person closely connected to the alleged PC 288(a) victim (i.e., alleged victim's parent, sibling, friend, etc.), that is made to the criminal suspect (defendant), and which is designed to gather a confession or statement from the defendant, that is against the defendant's legal interest, and while law enforcement is secretly listening to the conversation.

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Example 7: David is contacted by his niece, Silvia, who is under fourteen (14) years of age. Silvia tells David that David should apologize for his alleged sexual touching of Silvia on a recent family vacation. Silvia tells David that she (Silvia) won't involve law enforcement if he apologized to her. However, Silvia knows that law enforcement is listening in on the conversation with Silvia permission. David apologizes to Silvia to avoid law enforcement issues even though David does not truly believe he did anything wrong to Silvia.

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Result: David's conversation with Silvia can be used against him a prosecution for lewd and lascivious act on a child under fourteen (14). This is because David's apology is an implied confession that he acted inappropriately against Silvia. This is true even though David's Miranda Rights have not been advised by law enforcement. On the other hand, the reliability of pretext phone calls is usually questioned for various reasons (i.e., vagueness and ambiguity of alleged conduct and other issues).

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Statute of Limitations: Statute of limitations (SOL) defense is rarely used as a defense in lewd and lascivious act on a child under 14 cases because the SOL is very long, and in many cases, never expires, depending on the circumstances. However, the SOL does have application in some PC 288(a) cases, and it is best to speak to a sex crimes criminal defense attorneys to help sort out this complex area of law as it relates to child molestation cases.

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Note: For common defenses related to Penal Code 288(a) criminal charges, including a further discussion of the application of the statute of limitations defense in PC 288(a) cases, please see Sex Crimes Defense Strategies.

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If you or a loved one is charged with California penal code section 288(a) [lewd or lascivious acts with child under 14], call our sex crimes criminal defense lawyers today.

 

Our law firm has successfully represented hundreds of defendants charged with felony and misdemeanor sex crimes in every San Bernardino and Riverside County criminal court, including victories at jury trial for multiple PC 288(a) cases. Your consultation is free and discreet for first-time, in-office visits. Call today!

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909-913-3138

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