Lewd & lascivious Act with a Child
PC 288(a), (b), & (c), Laws & Defenses
Information on the crimes of lewd and lascivious act on a minor, commonly known as child molestation, are found at California penal code section 288. The three most commonly charged child molestation charges include:
PC 288(a): Lewd and lascivious acts on a minor under the age of fourteen (14)
PC 288(b)(1): Lewd and lascivious acts on a minor under the age of fourteen (14) with force, and
PC 288(c)(1): Lewd and lascivious acts on a minor aged fourteen (14) or fifteen (15) years old
Note: Sex crimes related to a PC 288 crimes include: PC 288.5 (Continuous Sexual Abuse of a Minor), PC 269 (Aggravated Sexual Abuse of a Child), PC 261.1 (Human Trafficking), PC 285 (Incest), PC 647(j) (Peeping Tom), PC 261.5 (Statutory Rape), PC 286 (Sodomy), PC 287 (Oral Copulation), PC 289 (Sexual Penetration with Object), PC 311.11 (Child Pornography Crimes), PC 647.6 (Annoying or Molesting a Child), PC 288.2 (Harmful Matter Sent to a Child), PC 288.7 (Sex Act with a Child Under 10),and more.
PC 288 Laws (Abbr.)
PC 288(a): Any person who willfully and lewdly commits any lewd or lascivious act upon, or with the body, or any part or member thereof, of 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 or the child, is guilty of a lewd or lascivious act against a child (PC 288(a)) [Abbrev.].
PC 288(b)(1): Any person who commits an act described in PC 288(a) by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, is guilty of lewd and lascivious acts on a child with force (PC 288(b)(1) [Abbrev.].
Note: For PC 288(b)(1), the force used must be more force than is necessary to accomplish the act, otherwise the crime should be refiled under PC 288(a).
PC 288(c)(1): Any person who commits an act described in PC 288 (a), and the child is 14 or 15 years old, and the defendant is at least 10 years older than the child, is guilty of lewd and lascivious acts against a minor ages 14 or 15 (PC 288(c)(1) [Abbrev.].
Note: For PC 288(c)(1), in determining whether the person is at least ten (10) years older than the child, the difference in age shall be measured from the birth date of the person to the birth date of the child (PC 288(c)(1).
A lewd and lascivious act means an inappropriate sexual touching. The touching can be either when the minor is touched by the defendant, or when the defendant is touched by the minor as directed or forced by the defendant. The touching does not have to be skin to skin contact. In fact, many child molestation charges involve allegations that the defendant touched a minor's private areas over the minor's clothes.
Note: Touching a child, even in a child's private area, is not a lewd and lascivious act, unless the touching is made by the defendant with the specific intent to sexually arouse the defendant or the child. On the other hand, if the defendant's touching is for the purpose of sexual arousal, then the touching is a lewd and lascivious act no matter where touching occurs.
Examples of common non lewd and lascivious acts include: touching a child's sexual areas during potty-training, spanking a child's buttocks for corporal punishment, accidentally touching a child's sexual areas, examination of a child's sexual areas by a doctor, etc.
Punishment for PC 288
PC 288(a) Prison Sentence: Lewd and lascivious acts 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 with good time behavior credit limited to fifteen percent (15%) off the defendant's prison sentence.
PC 288(b)(1) Prison Sentence: Lewd and lascivious acts on a minor under fourteen (14) with force is charged as a felony. If found guilty of PC 288(b)(1), the defendant may face up to ten (10) years in prison for each count. Prison sentences run consecutively, not concurrently, for PC 288(b)(1) charges, and good time behavior credit is limited to fifteen percent (15%) off the defendant's prison sentence.
PC 288(c)(1) Prison Sentence: Lewd and lascivious acts on a minor fourteen (14) or fifteen (15) years old is charged as a misdemeanor or as a felony. If found guilty of misdemeanor PC 288(c)(1), the defendant may face up to one (1) year in jail. If found guilty of felony 288(c)(1), the defendant may face up to three (3) years in prison. Good behavior credits for PC 288(c)(1) sentences are limited to fifty percent (50%) off the defendant's jail or prison sentence.
Sentencing Enhancements: A sex crime enhancement is a charge that is commonly added to PC 288 crimes to add prison time to the underlying crime. Common sentencing enhancements for PC 288(a) and 288(b)(1) crimes include: Kidnapping to commit a sex offense (PC 209), multiple victim allegations, physical injury suffered by a minor during an act of child molestation (PC 12022.7), and denial of probation or suspended sentence for substantial sexual contact (PC 1203.066(c)).
Probation Sentences: A probation sentence is a period of supervision instead of jail or prison. Probation sentences are allowed, but uncommon, in PC 288(a), 288(b)(1), and 288(c)(1) cases. A probation sentence in a PC 288 case will only be granted if the judge finds special and unusual circumstances in a case and that a probation sentence will best serve the interests of justice. Some enhancements make a PC 288 crime ineligible for probation, including an enhancement of substantial sexual conduct charged as PC 1203.066.
Note: Substantial sexual conduct means the defendant is alleged to have touched the sexual organs of the child.
Suspended Sentence: Suspended and split prison sentences are not available in PC 288 cases. This means that if the defendant is convicted of a PC 288 crime, and the defendant does not receive a probation sentence, then the defendant must serve his or her prison sentence in a California state prison and no part of that prison sentence may be served out of custody on work release or electronic monitoring (house arrest) [PC 1170(h].
Sex Offender Registration: If found guilty of lewd and lascivious acts on a minor under PC 288(a), 288(b)(1), or 288(c)(1), the defendant will be ordered to register as sex offender with local law enforcement. PC 288(a) is a Tier 3 Sex Offense (Lifetime PC 290 Sex Offender Registration).
Three Strikes Offense: Lewd and lascivious acts on a minor filed under PC 288(a) or 288(b)(1), are considered strike crimes under California's Three Strikes Law. Moreover, these crimes are considered serious and violent offenses under PC 1197.2(c) and PC 667.5(c) respectively.
Note: Misdemeanor PC 288(c)(1) is not classified as a serious offense, a violent offense, or a strike crime.
Immigration Consequences: Non-U.S. citizens convicted of PC 288 crimes may be deported or denied reentry into the United States. PC 288(a), 288(b)(1), and 288(c)(1) are all considered crimes involving moral turpitude and crimes of violence.
Collateral Penalties: In addition to the punishments and sentences listed above, if found guilty of child molestation under PC 288, the defendant may face any of the following: increased penalties for subsequent criminal actions, fines and fees, restitution orders, criminal protective orders, loss of suspension of a professional license, loss of the right to own and possess firearms (for felony convictions of PC 288 crimes), and more.
Defenses to PC 288
Common defenses to PC 288 charges include: insufficient evidence, mistake of fact, statute of limitations, insanity, intoxication, coerced confessions, illegal search and seizure, and more.
Note: In many PC 288 cases a defense attorney will use a forensic child psychologist to show indications of unreliability of the child's statements due to a variety of circumstances, including adoption of other child's statement, improper interview techniques (leading or suggestive type questioning), false memory effect, effect of interviewer's bias on child's statements, motivation to misrepresent, limited ability to recall or accurately remember an event, expose hyper vigilance in a child, and more.
Post-Conviction Relief: PC 288 post-conviction options may include: withdraw of a guilty plea, appeal the criminal conviction, request to be removed from the sex offender registration website (PC 290.46), request to be removed from the obligation to register as a sex offender, request a certificate of rehabilitation, remove a criminal protective order, and more.
PC 288 cases carry some of the longest prison sentences of any crimes. The mere allegation of child molestation, even when untrue and uncorroborated, can destroy a person's career, relationships, and reputation. A conviction for a child molestation crime will carry lifelong punishments; but,
despite these severe punishments, PC 288 cases are among the most difficult cases to defend for the following reasons:
Reluctant and protected witnesses make favorable evidence gathering by defense more difficult. In fact, the accusing child is afforded the greatest protection against access to a defense interview;
Bails amounts are set so high in PC 288 cases that most defendants must fight their case from jail;
Prosecutors are under greater public pressure to win PC 288 cases and to not make deals with child molesters. Some of the best prosecutors are assigned to PC 288 cases;
Child molestation trials often involve distasteful and embarrassing evidence that is emotionally difficult for everyone involved. This emotion is difficult to suppress and jurors often emotionally side with the child who is alleging the defendant's conduct;
Defendants in PC 288 cases are often secretly and lawfully recorded by law enforcement during pretext telephone calls between the defendant and the alleged victim. The call is pre-textual because it is placed by the alleged victim to the defendant for only one reason...to get a confession or an apology from the defendant. The major problem with these pretext phone calls is that defendants are sometimes compelled to apologize to a child accuser only to avoid a wrongful accusation to the police in the first place, or they apologize to an ambiguous set of alleged facts that are later filled in with more criminal facts by the alleged victim. The jury often hears from the prosecutors that the defendant "confessed" or "apologized" during these pretext calls, but a true confession from the defendant rarely occurs. Expensive psychologists, defense testimony, and preparation of interview transcripts are often required to undo the damage of this unreliable practice.
Finally, jurors are more prejudiced against defendants in child molestation trials then other types of cases. Jurors will subconsciously seek to confirm their prejudices by unintentionally viewing the evidence in a manner that is consistent with that preset prejudice. This psychological phenomenon is called confirmation bias and its presence in PC 288 trials can be very difficult for defense attorneys to overcome if those attorneys are not familiar with this phenomenon.
Our sex crimes criminal defense attorneys are highly successful and experienced in sex crimes defense, including defense at trial for PC 288(a), 288(b)(1), 243.4, 209(b)(1), and other child molestation charges. We have a provable winning record in these types of cases, and we have represented hundreds of defendants charged with misdemeanor and felony sex crimes.
WARNING: If you are charged with any crime, especially a sex crime, you should not speak to anyone about your case except a criminal defense attorney. Everything you say to anyone, law enforcement or otherwise, may, and usually will be, used against you in court. Time is not on your side. A good defense against PC 288 crimes starts early.
If you are charged with the crime of lewd and lascivious acts against a minor (child molestation), or PC 288(a), 288(b)(1), or 288(c)(1), contact our sex crimes criminal defense attorneys today for a free consultation. Our attorneys are available seven days a week to answer your questions and discuss your defense options. Call today!
Quick Legal Reference
Crime: Lewd & Lascivious Act on a Minor
Code: PC 288(a) (CalCrim No. 1110-1112)
Wobbler: No. PC 288(a) is not a wobbler. This means that PC 288(a) is only charged as a felony.
Incarceration: PC 288(a) prison sentence range: 3, 6, or 8 years. Note: If the alleged victim suffers bodily injury the sentence could be life in prison.
Probation: Probation may be available in special PC 288(a) cases (assuming other crimes or enhancements that 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(a) 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(a) is a strike offense per California's Three Strikes law because this crime is considered a Serious offense (PC 1192.7), and a Violent offense (667.5(c). Strike offenses are subject to reduced good time credits in jail or prison and other penalty enhancements upon subsequent criminal convictions.
Credits: 15% good conduct credits available.
CIMT: PC 288(a) is a crime involving moral turpitude, which means that an arrest or conviction could lead to the following:
Professional Licensing problems
Impeachment on credibility
Firearms: PC 288(a) convictions prohibit a defendant from owning or possessing a firearm.
Registration: If convicted of PC 288(a), the defendant is required to register as a sex offender with local law enforcement.
Bail: $250,000 (San Bernardino County)
Note: More penalties, direct or indirect, may apply. This info is created for that purpose only; accuracy not guaranteed. No attorney/client relationship is formed by use of this info. If arrested or charged with a crime contact a criminal defense lawyer without delay. PC288(a)-F Info. (Child Molestation Defense)
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PC 288 Laws (Abbrev.)
PC 288(a) Except as provided in subdivision (i), a person who willfully and lewdly commits any lewd or lascivious act, including any of the acts constituting other crimes provided for in Part 1, upon or with the body, or any part or member thereof, of 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 or the child, is guilty of a felony and shall be punished by imprisonment in the state prison for three, six, or eight years.
PC 288(b)(1) A person who commits an act described in subdivision (a) by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, is guilty of a felony and shall be punished by imprisonment in the state prison for 5, 8, or 10 years.
PC 288(b)(2) A person who is a caretaker and commits an act described in subdivision (a) upon a dependent person by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, with the intent described in subdivision (a), is guilty of a felony and shall be punished by imprisonment in the state prison for 5, 8, or 10 years.
PC 288(c)(1) A person who commits an act described in subdivision (a) with the intent described in that subdivision, and the victim is a child of 14 or 15 years, and that person is at least 10 years older than the child, is guilty of a public offense and shall be punished by imprisonment in the state prison for one, two, or three years, or by imprisonment in a county jail for not more than one year. In determining whether the person is at least 10 years older than the child, the difference in age shall be measured from the birth date of the person to the birth date of the child.
PC 288(2) A person who is a caretaker and commits an act described in subdivision (a) upon a dependent person, with the intent described in subdivision (a), is guilty of a public offense and shall be punished by imprisonment in the state prison for one, two, or three years, or by imprisonment in a county jail for not more than one year.
PC 288(d) In any arrest or prosecution under this section or Section 288.5, the peace officer, district attorney, and the court shall consider the needs of the child victim or dependent person and shall do whatever is necessary, within existing budgetary resources, and constitutionally permissible to prevent psychological harm to the child victim or to prevent psychological harm to the dependent person victim resulting from participation in the court process.
PC 288(e)(1) Upon the conviction of a person for a violation of subdivision (a) or (b), the court may, in addition to any other penalty or fine imposed, order the defendant to pay an additional fine not to exceed ten thousand dollars ($10,000). In setting the amount of the fine, the court shall consider any relevant factors, including, but not limited to, the seriousness and gravity of the offense, the circumstances of its commission, whether the defendant derived any economic gain as a result of the crime, and the extent to which the victim suffered economic losses as a result of the crime. Every fine imposed and collected under this section shall be deposited in the Victim-Witness Assistance Fund to be available for appropriation to fund child sexual exploitation and child sexual abuse victim counseling centers and prevention programs pursuant to Section 13837.
PC 288(i)(3) As used in this subdivision, “bodily harm” means any substantial physical injury resulting from the use of force that is more than the force necessary to commit the offense.