Harmful Matter Sent to a Child
Information on the crime of sending harmful matter to a child with the intent to sexually arouse the sender or the recipient is found at California penal code section 288.2. Harmful matter is generally considered any image that depicts sexual conduct or any message that include sexual language.
For example: Sending sexual texts to a person known to be a minor, or sending a sexual image to a minor with the intent to arouse the sexual desires of the minor of the sender, qualifies as sending harmful matter to a minor.
288.2(a)(1) Every person who knows, should have known, or believes that another person is a minor, and who knowingly distributes, sends, causes to be sent, exhibits, or offers to distribute or exhibit by any means, including by physical delivery, telephone, electronic communication, or in person, any harmful matter that depicts a minor or minors engaging in sexual conduct, to the other person with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of that person or of the minor, and with the intent or for the purposes of engaging in sexual intercourse, sodomy, or oral copulation with the other person, or with the intent that either person touch an intimate body part of the other, is guilty of sending harmful matter to a child (PC 288.2 Abbrev.).
PC 288.2(a)(2): If the matter used by the person is harmful matter but does not include a depiction or depictions of a minor or minors engaged in sexual conduct, the offense is sending harmful matter to a child, to wit, sexual messages (Abbrev.).
PC 288.2 Penalties
PC 288.2(a)(1): Sending harmful matter to a child with the intent to seduce is charged as a felony or as a misdemeanor. When PC 288.2(a)(1) is charged as a felony, the defendant could face up to five years in prison. When PC 288.2(a)(1) is charged as a misdemeanor, the defendant could face up to a year in the county jail.
PC 288.2(a)(2): Sending sexual messages to a child is charged as a misdemeanor or as a felony. When PC 288.2(a)(2) is charged as a felony, the defendant could face up to three years in prison. When PC 288.2(a)(2) is charged as a misdemeanor, the defendant could face up to one year in the county jail.
Probation: A probation sentence is period time wherein the defendant is monitored by the court or by a probation officer (instead of being incarcerated. Probation sentences are allowed in PC 288.2 cases but they are not guaranteed. Whether or not the defendant will granted a probation sentence after a PC 288.2 conviction depends on the facts of the case, the defendant's criminal history and the terms of any plea bargain, if any.
PC 1170(h) Sentence: If the defendant is not granted a probation sentence after a conviction for PC 288.2, then the defendant must serve his or her incarceration time in a state prison, (as opposed to a local county jail), and no part of the at prison sentence may be split or suspended.
CIMT: PC 288.2 is likely a crime involving moral turpitude, which means that sending harmful matter to a child is considered morally wrong. Crimes involving moral turpitude carry collateral consequences for defendant's who hold a professional license or for person who are not United States Citizens.
Sex Offender Registration: If found guilty of sending harmful matter to a child the defendant will required to register with local law enforcement as a sex offender (PC 290).
Three Strikes Law: PC 288.2 crimes are not considered strike offenses under California's Three Strikes Law.
Bail: The scheduled bail for a charge of sending harmful matter to a child is $75,000 is San Bernardino County (2020) [PC 288.2(a)(1)]. This amount may be increased or decreased at the defendant's first court appearance (arraignment) depending on factors such as the defendant's danger to the community, his or her risk of flight, his or her ability to pay the bail, and more.
In addition to the penalties listed above, if found guilty of PC 288.2 crimes, the defendant could face any of the following penalties: deportation (non U.S. citizens), loss of a professional license (i.e. doctors, dentist, lawyers, therapist, etc.), fines and fees, criminal protective orders, restitution, denial of entry into the armed services (Army, Navy, Marines, etc.), and more.
PC 288.2 Defenses
Specific defense may apply to a PC 288.2 cases . These defenses include a parent or guardian sending or showing sexual images to a child in order to educate the child with legitimate sex education. It is also a defense specific to PC 288.2 charges to show that the images sent to a child were in connection with legitimate scientific or education purposes.
General defenses to a charge of sending harmful matter to a child include statute of limitations, insanity, illegal search and seizure, insufficient evidence of possession of, or sending the images.
Note: The district attorney will need to prove that the defendant intended to send any sexual images or messages to a person under the age of 18, which means the district attorney will have to prove that the defendant knew the recipient was underage.
If you have been arrested or charged with sending harmful matter a child with the intent to seduce the child, or PC 288.2(a)(1), contact out criminal defense lawyers today for a free consultation. Call today!
Quick Legal Reference
Crime: Harmful Matter Sent to a Child
Code: PC 288.2(a)(1) (CalCrim No. 1140)
Wobbler: Yes. PC 288.2(a)(1) is a wobbler crime. This means that the crime may be charged as a felony or as a misdemeanor.
Incarceration: Felony PC 288.2(a)(1) prison sentence range: 2, 3, or 5 years (if probation not granted);. Misdemeanor jail sentence up to 1 year.
Probation: Probation may be available in both felony and misdemeanor PC 288.2(a)(1) cases (assuming that other crimes or enhancements that might bar a probation sentence are not present). Whether or not a probation sentence is offered by the District Attorney, or granted by the court, depends on several factors, including the defendant's criminal history and the facts of the case.
PC 1170(h)): No. PC 288.2(a)(1) is not subject to PC 1170(h) sentencing. This means that any incarceration ordered after a felony conviction, that is not part of a probation sentence, must be served in state prison (as opposed to a county jail), and the prison sentence may not be split or suspended.
Strike: PC 288.2(a)(1) is not a strike offense listed in California's Three Strikes law.
Credits: 50% good conduct credits available.
CIMT: PC 288.2(a)(1) is likely a crime involving moral turpitude, which means that an arrest or conviction could lead to the following:
Professional Licensing problems
Impeachment on credibility
Firearms: Felony PC 288.2(a)(1) convictions prohibit a defendant from owning or possessing a firearm.
Registration: If convicted of felony PC 288.2(a)(1), the defendant is required to register as a sex offender with law enforcement..
Bail: $75,000 (San Bernardino County)
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