Contacting a minor, or attempting to contact a minor, to commit certain felonies against the minor is a felony in California (PC 288.3). The penalties associated with contacting a minor to commit certain felonies vary depending on the purpose of the defendant’s contact with the minor. This page covers the law, penalties, and common defenses related to the crime of contacting a minor to commit certain felonies, or California Penal Code section 288.3 PC.
PC 288.3(a) Overview & History
PC 288.3 Prison Sentence & Penalties
Probation Sentence for PC 288.3(a)
Crime Involving Moral Turpitude
PC 1170(h) Sentencing for PC 288.3
Penalty Enhancements & PC 288.3(c)
PC 288.3 Defenses & Defense Options
Discrediting the DA’s Evidence
Plea Bargain in PC 288.3(a) Cases
PC 288.3(a) Plea Bargain Restrictions
PC 288.3 Post-Conviction Options
Common Post-Conviction Options
PC 288.3(a) Overview & History
PC 288.3(a) came about in the mid-2000s as part of a larger group of California laws designed to catch, monitor, and restrict the movement of, sex offenders. With the passage of PC 288.3, law enforcement now has the ability catch sex offender suspects without using actual minors in their effort.
Accordingly, since the passage of PC 288.3, a police officer may pretend to be a minor in order to catch a sexual predator who is attempting to contact or communicate with a person that he or she believes to be a minor for the purpose of engaging in lewd behavior with that “minor.”
PC 288.3 Laws, & Definitions
Per California Penal Code Section 288.3(a): “Every person who contacts or communicates with a minor, or attempts to contact or communicate with a minor, who knows or reasonably should know that the person is a minor, with intent to commit an offense specified in Section 207, 209, 261, 264.1, 273a, 286, 287, 288, 288.2, 289, 311.1, 311.2, 311.4 or 311.11,..., involving the minor… is guilty of PC 288.3(a) (PC 288.3(a) Abbrev.).
As used in this section, “contacts or communicates with” shall include direct and indirect contact or communication that may be achieved personally or by use of an agent or agency, any print medium, any postal service, a common carrier or communication common carrier, any electronic communications system, or any telecommunications, wire, computer, or radio communications device or system (PC 288.3(b)).
A person convicted of a violation of subdivision (a) who has previously been convicted of a violation of subdivision (a) shall be punished by an additional and consecutive term of imprisonment in the state prison for five years (PC 288.3(c)).
Crimes Listed in PC 288.3: Penal Code 288.3 lists the crime subject to that code section. These crimes include: PC 207 (kidnapping); PC 209 (kidnapping to commit a sex offense); PC 261 (rape); PC 264.1 (rape in concert); PC 273a (willful child endangerment); PC 286 (sodomy); PC 287 (oral copulation); PC 288 (lewd and lascivious act on a minor); PC 288.2 (harmful matter sent to seduce a minor); PC 289 (sexual penetration with object); PC 311.11(a) (possess obscene matter depicting a minor [i.e., possession of child pornography]; and more.
Note: Notice that PC 288.3 only applies to certain enumerated felonies, and most, but not all, of those felonies relate to a sex offense. This becomes important with respect to defending PC 288.3 crimes (See below at PC 288.3 Defenses & Defense Options)
Prosecutors’ Burden of Proof: According to Calcrim Jury Instruction, in order for the district attorney to prove that the defendant is guilty of contacting a minor to commit certain felonies, the district attorney must prove all of the following:
The defendant contacted or communicated with, or attempted to contact or communicate with, a minor [a person under eighteen (18) years of age];
When the defendant contacted or communicated with a minor, he or she intended to commit the crime of (rape, lewd act with a minor, sexual penetration with object, etc. [See enumerated crimes listed above] against the minor; AND
The defendant knew or reasonably should have known that the person was a minor (Calcrim 1124).
It is not a defense to the crime of PC 288.3 to show that the defendant did not meet the minor contacted. The crime of PC 288.3 is complete even if the defendant does not meet the minor, so long as the other elements listed above are present.
In other words, an attempted contact with a minor to commit certain felonies is the same as actual contact with a minor to commit certain felonies. Of course, if the defendant does meet the minor with whom he or she contacted, then additional crimes could be committed (i.e., lewd act with a minor, rape, etc.).
Minor Defined: Per California law, a minor is a person under the age of eighteen (18) and a minor does not become an adult until the first minute of his or her eighteenth birthday (Calcrim 1124). With respect to Penal Code 288.3 crimes, it is the date of the alleged offense that is used to measure whether the alleged victim is a minor.
Important: It is a crime to contact or communicate, or attempt to contact or communicate, with a minor to commit certain felonies. This means the person contacted by the defendant must actually be a minor in order for the crime to be complete.
PC 288.3 Prison Sentence & Penalties
Penal Code 288.3 is classified as a felony. If found guilty of PC 288.3, the defendant may be granted probation (with or without incarceration), or he or she may be sentenced to prison. The prison sentence associated with PC 288.3 crimes varies depending on the target offense.
For example, if the defendant’s target crime when he or she contacted or communicated with a minor was to commit lewd and lascivious acts against the minor, and the minor contacted was under the age of fourteen (14) at the time of defendant’s contact or communication, then the defendant may face up either three (3), six (6), or eight (8) years in prison. This is because the crime of lewd and lascivious acts on a minor under fourteen (14) is subject to that prison sentence.
Prison Sentence for PC 288.3: The following prison sentences relate to various common PC 288.3 allegations:
PC 288.3(a)/261(a)(2): Contact a minor under fourteen (14) to commit rape: Maximum prison sentence is thirteen (13) years
PC 288.3(a)/288(a): Contact a minor to commit lewd and lascivious act on a minor under fourteen (14): Maximum prison sentence is eight (8) years
PC 288.3(a)/287(c)(2)(B): Contact a minor under fourteen (14) to commit oral copulation: Maximum prison sentence is four (4) years
PC 288.3(a)/311.4(c): Contact a minor to use minor to pose for child pornography: Maximum prison sentence is three (3) years
Probation Sentence for PC 288.3(a): A probation sentence is a period of supervision instead of prison. A probation sentence is allowed in PC 288.3(a) cases, but a probation sentence is not guaranteed. Whether a probation sentence request will be granted after a PC 288.3(a) conviction depends on many factors, including the defendant’s criminal history, the sophistication of the alleged offense, the terms of any plea bargain agreement, and more.
A probation sentence after a conviction for contacting a minor to commit certain felonies (PC 288.3(a)) is called formal probation. Formal probation is monitored by a probation officer and the probation itself is conditioned upon the defendant complying with certain conditions. These probation “conditions” can include many items, including the payment of restitution and court fines, complying with criminal protective orders, avoid further criminal prosecution during the period of probation, and more. A violation of probation conditions can lead to a violation of probation charge and an actual prison sentence (no more out-of-prison probation probation).
Also, a probation condition in any PC 288.3(a) case may include a condition to serve some actual jail time. However, a probation condition to serve jail time is much shorter than the prison sentence the defendant would otherwise have received if he was not granted a probation sentence. In addition, in some probation sentence cases, the defendant may serve his or her jail condition on work release, as opposed to serving the jail sentence in an actual jail.
Crime Involving Moral Turpitude: Contact or communicating with a minor to commit certain felonies is a crime involving moral turpitude, or CIMT. A CIMT is a crime that is considered morally reprehensible and/or involves dishonesty or fraud. A CIMT, including any allegation of PC 288.3(a), can lead to severe negative consequences with respect to immigration status, professional licensing status, military service status, and more. These negative consequences are in addition to the direct penalties associated with Penal Code 288.3(a) crimes (i.e., prison, restraining orders, sex offender registration, and more).
Sex Offender Registration: If the defendant is convicted of contacting or communicating with, or attempting to contact or communicate with, a minor, then the defendant might be required to register as a sex offender pursuant to Penal Code 290(c). Almost all target crimes listed in PC 288.3(a) will require sex offender registration. The exceptions might include 288.3(a)/273a, where no intend to commit a lewd act is found (i.e., willful child endangerment without the intent to commit a lewd act on the minor). For more information about PC 290, see Sex Offender Registration.
Note: The length of sex offender registration will depend on the target offense alleged in the PC 288.3 allegations. For example, if the defendant’s target offense is to commit lewd and lascivious acts on a minor under fourteen (14) years of age, then the defendant’s sex offender registration requirement is a tier-two requirement. See California’s Sex Offender Registration Tier System.
PC 1170(h) Sentencing for PC 288.3: If the defendant is not granted probation after a conviction for PC 288.3(a), then the defendant must serve hir or her incarceration in a California state prison, as opposed to a local county jail. In addition, no part of that prison sentence may be split or suspended (See PC 1170(h) Sentencing).
Penalty Enhancements & PC 288.3(c): According to PC 288.3(c), if the defendant is convicted of PC 288.3(a), and he or she has suffered a prior conviction of PC 288.3(a), then a five (5) year penalty enhancement will be added to the defendant’s sentence. This enhancement is no subject to mitigation. In other words, if the defendant is found guilty of PC 288.3(c), and he or she is not granted probation, then the defendant will serve the five (5) year prison sentence enhancement, in addition to any other prison sentence, regardless of the underlying target offense alleged in the PC 288.3(a) allegation.
Additional PC 288.3 Penalties: In addition to a possible prison sentence, a probation sentence, and possible sex offender registration, if found guilty of Penal Code 288.3(a), the defendant may suffer the following penalties: restitution, criminal protective orders in favor of the sex crime minor victim, loss of employment, loss of family law rights (child custody, adoption, etc.), loss of reputation, court fines and fees, loss of money used to bail out of jail, and more.
PC 288.3 Defenses & Defense Options
Common Statutory Defenses: Common statutory defenses to a criminal charge of contacting a minor to commit certain felonies, include, but are not limited to, the following: statute of limitations, insufficient evidence, illegal search and seizure, coerced confession, alibi, insanity, mistake of fact, honest and reasonable belief minor was not a minor, duress, entrapment, crime alleged as the target offense is not a crime enumerated in PC 288.3(a), and more.
Note: Every PC 288.3(a) case is different; therefore, every defense to a PC 288.3(a) case is different. However, the most common statutory defenses related to a PC 288.3(a) case include entrapment and insufficient evidence. For more information, see Entrapment Defense & Insufficient Evidence.
Discrediting the DA’s Evidence: Non statutory defenses are also common in PC 288.3 cases. Non-statutory defenses involve the use of experts to discredit unreliable witness testimony (i.e., witness statement is due to coercion or the product of influence or misrepresentation; the questioning of the minor is complex or compound, leading, argumentative, or ambiguous, and more); showing opportunity and motive to fabricate (especially in cases related to child custody battles); demonstrating lack of character to commit crime; and more.
Note: It is not a defense to Penal Code 288.3 crimes to show that the defendant did not have actual contact with the alleged victim. The attempt to contact or communicate with a minor to commit certain felonies is the same as contacting, or communicating with, a minor for the same (See PC 288.3(a) Above). This is a useful tool for law enforcement seeking to catch a predator or pedophile while not using an actual minor to pose as such.
Plea Bargain in PC 288.3(a) Cases: A plea bargain is an agreement between the district attorney and the defendant, or between the criminal court judge and the defendant, to settle the case on mutually beneficial terms. The mutual benefit is that the defendant does not face the maximum punishment under PC 288.3 law, but he or she otherwise agrees to plead guilty or “no contest” to the alleged offense. The benefit to the district attorney in a plea-bargained PC 288.3 case is that the district attorney wins the case, but the alleged victims’ family and the district attorney do not get the maximum punishment legally allowed per PC 288.3(a).
In a plea-bargained PC 288.3(a) case, it is not uncommon for a defendant to plea to a probation sentence where the defendant’s attorney can show that the district attorney’s case is not one desirable for prosecution. Only a skilled sex crimes criminal defense lawyer with many successful sex crimes cases resolved should attempt to handle a PC 288.3(a) plea bargain.
PC 288.3(a) Plea Bargain Restrictions: Plea bargain in severely restricted in PC 288.3(a) cases after the criminal case passes the preliminary hearing stage. See Preliminary Hearing & PC 1192.7 Serious Offenses.
Note: Without police involvement in a sting operation, or the defendant’s actual written or recorded communication, a PC 288.3(a) prosecution can be quite difficult. This is because the defendant’s intent to commit a specific sex crime must be proved under PC 288.3(a). In other words, if the defendant’s intent is unclear as to the type of sex act that he or she is attempting against the minor victim (i.e., sexual intercourse, oral copulation, etc.), then a PC 288.3(a) allegation is generally weak. This is because an attempt to have sexual intercourse with a minor, in general, is not a crime listed in PC 288.3(a).
PC 288.3 Post-Conviction Options
Common Post-Conviction Options: Common post-conviction options related to PC 288.3(a) cases include: appeal the criminal conviction, motion to be removed from the duty to register as a sex offender (AB 384 Petitions), withdraw a guilty plea, motion to terminate probation early (PC 1203.3), motion to remove or modify a criminal protective order, motion to be excluded from California’s sex offender registration website listing, motion for certificate of rehabilitation (PC 4852), and more.
To learn more about California Penal Code Section 288.3, Contacting a Minor for Sexual Purpose, contact our sex crimes criminal defense lawyers today. Our team of aggressive and passionate criminal defense attorneys have successfully defended hundreds of sex crimes in the Inland Empire, including the cities of Riverside, Eastvale, San Bernardino, Fontana, Rialto, Colton, Ontario, Victorville, Yucaipa, Redlands, Rancho Cucamonga, and more. We represent defendants charged with all misdemeanor and felony sex crimes. Call today!
California Sex Crimes
Forced Oral Copulation (PC 287)