What are the elements of the crime for California Penal Code Section 288(b)(1)? When it comes to these crimes against children—sex—related offenses in Los Angeles County, prosecutors have some aspects of the crime to prove to convict somebody of one of these cases.
Understanding the elements of the crime is crucial, especially if you believe you have a defense. If the prosecution fails to prove one or all of the elements of lewd or lascivious acts upon a child by force or fear, the case could be dismissed. This knowledge can significantly impact your legal strategy.
The judge will instruct the jury when it comes right down to it that the defendant is charged, and then they'll put the Count and this Penal Code 288(b)(1) with a lewd or lascivious act by force or fear on a child under the age of 14 years old.
So, to prove this, it says that, number one, the defendant willfully touched any part of a child's body, either on the bare skin or through the clothes. That seems to require some contact with the skin.
But then they put an “or” in there, and that is that the defendant willfully caused a child to touch their body part, the defendant's body, or the body of someone else, either on the bare skin or through the clothing. See related: Child Molestation.
Willfully Touching a Child
So, this states that the first element can be either the child touching the person, someone causing the child to touch the person, or somebody touching the child. So, that element can be proved by either of those theories of liability.
Before the case begins, the prosecutors will have a theory, and the defense will have their approach. The jury's role is not just to evaluate the evidence presented, but to do so impartially and determine if the prosecution has proven each element of the crime beyond a reasonable doubt. This is the first element that the prosecution must prove.
Use of Force or Fear
Element number two says that in committing the act, the defendant used force, violence, duress, menace, or fear of immediate and unlawful bodily injury to the child or someone else. This is related to the application of some force. In other words, they are doing it against the child's will.
So, a potential defense of this particular charge would be consent. Someone agreed to do it. That is not force. There's no menace. That's what makes this charge so severe is that you're dealing with a child under the age of 14, and you're using some force against that child. Therefore, this crime carries severe penalties if prosecutors can successfully convict the person of it. However, remember that there are potential defenses, such as lack of intent or mistaken identity, and your attorney can help you navigate them.
Intent to Arouse Sexual Desires
Element number three says the defendant committed the act with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of himself or the child. So, that means when the person did whatever the sexual touching was, they were trying to arouse the child, or they were trying to arouse themselves.
So, you have to look at the facts and circumstances surrounding the particular touching to evaluate that. Accidental touching will not fit under this Penal Code Section 288(b)(1), and you're not going to be able to charge somebody with a lewd or lascivious act with accidental touching.
It's going to have to be intentional — it's intentional from the surrounding facts, and obviously, the prosecutors will need evidence and witnesses to back this up.
Children under 14 Years Old
The last element is that the child was under the age of 14 years at the time of the act. Sometimes, what I see is that the child cannot recall when the conduct occurred. That is the subject matter of the criminal charges of a lewd and lascivious act allegations by force or fear.
That could be a potential defense to this particular Penal Code Section because you need to know how old the child was at the time. The jury instructions, CALCRIM 1111, provide guidance to the judge and state that someone commits an act willfully when they do it willingly or intentionally.
It is not required that they intend to break the law, hurt someone else, or gain any advantage.
That's a nebulous statement, but it relates to informing the jury that if the person acted by accident in touching the individual, it could be a defense to the crime. However, if they intentionally did it, then they will be held responsible for it.
Jury Instructions for Lewd or Lascivious Act By Force
Then, the instruction says that arousing, appealing, or gratifying the lust, passions, or sexual desires of the perpetrator of the child is not required. So, in other words, someone who does things based on a reasonable personal standard that they're trying to gratify themselves or gratify the child will be enough — whether the child was gratified or whether they were gratified — doesn't matter. Understanding these instructions is crucial, and your attorney can help you with that, empowering you with the knowledge to navigate your legal case.
If they did something and it was clear what they were doing and that they intended to arouse themselves or the child, then that would be enough to meet this particular element.
The next point discusses how the force used must be substantially different from or significantly greater than the force required to accomplish the act itself. This is where you see arguments and battles in jury trials, which is that the act of actually inflicting lewd and lascivious conduct on somebody does have some element of force to it.
So, if all you did was you did the act, but you didn't use any extra force necessary to commit the crime, then you wouldn't be able to be charged under this particular Penal Code Section. This is a very gray area—a nebulous way to put things, so there are arguments back and forth, informing you about the complexities of the legal system.
The defense is trying to argue, "Wait a minute, no extra force was used here." " The prosecutor is saying, "Yes, there was," and pointing it out. This is something that comes up frequently.
So, if you're charged with a lewd or lascivious act by force or fear under Penal Code Section 288(b)(1) in one of the Los Angeles County criminal courthouses, you need to know the elements.
You need to discuss the elements with your defense attorney and decide whether you want to take this to trial and fight, or plead bargain with the prosecutor, so you don't end up with a much harsher sentence. Remember, your attorney is there to guide you through this process and ensure you make the best decisions for your case.
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