Learn If You Will Get Prison Time If Convicted of Penal Code 288 Lewd Acts With a Child and Related Sex Crimes
Penal Code Section 288 makes it a crime in California to engage in any lewd or lascivious act with a minor, which are described as indecent acts of a sexual nature and often called child molestation.
So, if you are charged with PC 288 lewd acts with a child, will you automatically get prison time if convicted?
This is one of the more common sex crimes that I see charged, and most of the time, prosecutors, judges, and the police are looking to put the person in prison.
The problem with this type of charge is that it involves a child.
Anytime you're facing a severe PC 288 charge involving a child, there's a good chance that they're going to want to put you in prison.
Our California sex crime defense lawyers will review the laws below.
What Type of Conduct is Prohibited?
PC 288 lewd acts occur when an adult has sexual contact with a minor child, as either:
- touching a minor for sexual gratification, or
- causing the minor to touch themselves for a sexual purpose.
Penal Code 288 criminalizes sexual conduct between adults and minors aged 15 or less.
Lewd and lascivious conduct is described as sexual activity appealing to the defendant or victim's lust, passions, or sexual desires.
Lewd conduct typically requires some actual physical contact but no penetration.
What Has to Be Proven for a Conviction?
To establish guilt beyond any reasonable doubt, a prosecutor will usually use statements from witnesses, physical evidence, DNA evidence, police reports, or other types of forensic evidence, etc.
To be convicted of PC 288, lewd acts with a minor, the prosecutor must be able to prove all the elements of the crime listed in CALCRIM 1110:
- You willfully with lewd intent touched a part of a minor's body or caused them to feel their own body or another person;
- Your conduct was with the intent to arouse, appeal, gratify the lust, passion, or sexual desires of yourself or the minor.
It doesn't matter if you touched the minor's naked body or just over their clothing.
What are the Related Crimes?
- Penal Code 288a – oral copulation with a minor,
- Penal Code 288(b) – lewd acts with minor using force or fear,
- Penal Code 288(c) – lewd acts with minor age 14 or 15,
- Penal Code 288.2 – send harmful material to seduce a minor,
- Penal Code 288.3 – contact a minor to commit a felony,
- Penal Code 288.4 – arrange a meeting with minor for lewd purposes,
- Penal Code 288.5 – continuous sexual abuse of a minor,
- Penal Code 288.7 – sex with a child under ten years old
- Penal Code 311 – child pornography,
- Penal Code 647.6 – annoying or molesting a child.
What Factors Would Prevent Prison Time in a PC 288 Case?
First, if you can go to trial and win and get a not-guilty verdict, you won't go to prison; you won't go to jail; you'll move on with your life.
Unfortunately, when you're charged with this type of crime, the prosecutors usually have some pretty good evidence against you.
Believe it or not, they're cautious about charging lewd acts upon a child in Los Angeles County or anywhere because of the negative connotation that comes along with that.
They don't want to improperly charge somebody and put somebody in a position where that particular person is being accused of a type of crime they did not commit.
That subjects law enforcement, prosecutors, and anybody involved to being sued for tarnishing another individual's reputation. So, that's first and foremost.
If they've got the evidence, the prosecutors will charge it and try to put the person in prison.
Suppose the defense can successfully argue that unusual circumstances are surrounding a lewd act upon a child case. In that case, that may allow the defendant to get a sentence that does not involve prison.
They could get what's called a probationary sentence. In that circumstance, that doesn't necessarily mean the person automatically dodges custody time; that just means they don't get a prison sentence.
If you're given probation in a 288 case, you can get up to one year in the county jail. You can also get no time in the county jail.
It's up to your attorney to negotiate on your behalf and try to get you the best resolution possible.
Primary Factors in a Lewd Conduct with a Minor Case
The types of factors that you can expect that prosecutors to evaluate are as follows:
- what your criminal record looks like,
- what happened in the particular case,
- how old the victim was,
- hold old you are.
There's always a comparison to see if there's a ten-year age difference between the two parties involved.
Also, they're going to look at whether or not you may or may not be a recidivist. What does that mean if they give you a break and probation and don't send you to prison? What's the likelihood of you doing something like this again or even something worse?
Static 99 Report
How they evaluate that is what's called a static 99 report can be obtained by your attorney.
Also, your attorney can have you evaluated by a psychologist or psychiatrist who is specially trained in this type of offense to be able to test you and assess you to mount an argument that:
- you are not a danger to society;
- you are not a danger to continue to commit crimes against children.
Then, we can come up with a specific game plan specifically designed for you and your circumstances.
A treatment plan and a project that considers who you are and what happened with your case. These are the types of things you want to be evaluated if you're going to stay out of prison.
If you're looking for the best possible sentence for yourself or a loved one facing prison time, pick up the phone, make the call, and ask for a meeting with Ron Hedding.
I've been defending people for these types of crimes now for almost 30 years. I've worked for the District Attorney's office early in my career.
I also worked for a Superior Court Judge, helping him as his right-hand man, deal with cases, write tentative opinions, and have a lot of experience assisting people in getting the best resolution.
Hedding Law Firm is located in Los Angeles County. We offer a free case review by calling 213-542-0979.