Sex crimes

Crimes

PC288.5

6-12-16

90 days apart. People v. Mejia (2007) 155 Cal.App.4th 86

Alternative to PC288. People v. Anderson (2012) 208 Cal.App.4th 851.

PC288(a)

3-6-8

PC288(a) is serious (PC1192.7(c)(6)) and violent (PC667.5(c)(6))

PC288(a) is presumptively ineligible for probation, or mandatory denial with certian factors. (PC1203.066)

PC288(a) may be single-strike law. (PC667.61)

People v. Mullens (2004) 119 Cal.App.4th 648: Thigh rubbing can also be a violation of section 288(a).

People v. Chambless (1999) 74 Cal.App.4th 773 [cert. for part. pub.]; United States v. Baron-Medina (9th Cir. 1999) 187 F.3d 1144: Even an innocuous touching, innocently and warmly received, violates section 288(a) if done with requisite intent.

People v. Marquez (1994) 28 Cal.App.4th 1315 [cert. for part. pub.]; People v. Sharp (1994) 29 Cal.App.4th 1772 [cert. for part. pub.]: The touching need not be overtly sexual in itself, or even a “sexual act.”

People v. Sharp (1994) 29 Cal.App.4th 1772 [cert. for part. pub.]: Dangling a young child’s hair and rubbing her back was determined to be section 288(a) conduct based on the circumstances of the case.

People v. Gilbert (1992) 5 Cal.App.4th 1372: The touching for section 288(a) need not be sexual in nature.

People v. O’Connor (1992) 8 Cal.App.4th 941; People v. Pitts (1990) 223 Cal.App.3d 606: It does not need to be shown that the offender touched the child’s “private parts.”

People v. Olsen (1984) 36 Cal.3d 638; In re John L. (1989) 209 Cal.App.3d 1137, 1141 [cert. for part. pub.]: Consent is not a defense.

People v. Austin (1980) 111 Cal.App.3d 110; People v. Ash (1945) 70 Cal.App.2d 583; People v. Shultz (1942) 49 Cal.App.2d 38: The touching can be over the clothes and not directly on the victim’s skin

People v. Lopez (1998) 19 Cal.4th 282: Section 647.6 is not a lesser included offense to section 288(a).

People v. Rios (1992) 9 Cal.App.4th 692; People v. Harlan (1990) 222 Cal.App.3d 439: No corroboration is required for section 288(a).

People v. Andrus (1958) 159 Cal.App.2d 673: Direct testimony can provide sufficient evidence of intent for section 288(a).

People v. Showers (1949) 90 Cal.App.2d 248; People v. Gaglione (1994) 26 Cal.App.4th 1291 [cert. for part. pub.]: Section 288(a) does not require proof that the underage child resisted or tried to resist the acts complained of. Nor does it require a fearful reaction from the child.

People v. Carlson (1946) 73 Cal.App.2d 933: Just because a defendant touches a child within close proximity to others does not brand the victim’s testimony inherently unreliable as a matter of law.

PC288(b)

5-8-10

288(a) + “force, violence, duress, menace or fear of immediate and unlawful bodily injury on the victim or on another person

Probation ineligible (PC1203.066(a)(1))

Cochran, supra, 103 Cal.App.4th 8; People v. Superior Court of Santa Clara County (Kneip) (1990) 219 Cal.App.3d 235, 238; 

Veale, supra, 160 Cal.App.4th 40; Asencio, supra, 166 Cal.App.4th 1195

People v. Thomas (2017) 15 Cal.App.5th 1063, 1067–1068: The defendant molested and physically abused his daughter, from the time she was 4 through 15 years old. She was a teenager when she testified. Sex with the victim’s dad became her normal. The defendant was charged with multiple counts of section 269 [aggravated sexual assault of a child under 14], which requires force. The force/duress/menace/fear facts included: Sex made her “nervous;” he would “pull her to the edge of the bed;” he “directed” her to lay on him; and it “hurt.” When she would have to sit with her vulva on his face, her “legs hurt and she felt uncomfortable.” He would “direct her hand” to his penis to satisfy him. He would “lead her by the hand” into the bathroom and “position” her on the sink to do his thing with her. The Thomas court ruled that in totality, sufficient evidence existed for fear, duress, menace, and force on all counts.

People v. Hale (2012) 204 Cal.App.4th 961 [cert. for part. pub.]: The defendant, the nine-year-old victim’s father, climbed on top of the victim and continued anal penetration even after the victim told him it hurt her. He engaged in repeated acts of molest for years. He told her not to tell or he would go to prison. He dominated her physically and psychologically. There was sufficient evidence of duress and force. “Force” for purposes section 286(c)(2) [forcible sodomy] has a different meaning than “force” for purposes of section 288(b)(1), which requires physical force substantially greater than that required to commit the lewd act. Forcible sodomy requires the prosecution need only prove enough force to overcome the victim’s will.

People v. Soto (2011) 51 Cal.4th 229: The defendant violated section 288(b)(1) and was convicted of multiple acts involving force and duress against his two nieces, ages 11 and 12. The court held that the victim’s consent is not a defense for a section 288(b)(1) offense. The child’s consent is immaterial as a matter of law. The focus is on the defendant’s conduct, not the victim’s. This is also true of “duress.” The focus is on the defendant’s threat or intimidation; not on how the victim perceived or responded to the defendant’s conduct.12 • People v. Ireland (2010) 188 Cal.App.4th 328 [cert. for part. pub.]: The defendant was convicted of raping four prostitutes. During each rape he held a knife to each victim. The defendant contended the victims consented to intercourse and must be required to expressly withdraw that consent. The court held otherwise. When the defendant used the knife and threatened the victims—absent any conduct by the victims that they continued to consent—the previous consent no longer existed. • People v. Perez (2010) 182 Cal.App.4th 231, 235: The defendant was convicted of violating section 288(b)(1) against three victims. As to one victim, duress was proved when the defendant threatened to report she had taken money from a bedroom. The victim testified she felt “weird and scared” during the molest. • People v. Alvarez (2009) 178 Cal.App.4th 999, 1003 [cert. for part. pub.]: The defendant was convicted of violating sections 288(b)(1) and 269. The court found there was physical force greater than that necessary to accomplish the lewd act itself. The nine-year-old victim attempted to push the defendant away, but he held her “hard” and “tight.” • In re Asencio (2008) 166 Cal.App.4th 1195: The defendant was convicted of one count of section 269. The court decided the amount of force needed to sustain a section 269 conviction was that force sufficient to overcome the victim’s will, not force greater than necessary to commit the lewd act. • People v. Veale (2008) 160 Cal.App.4th 40: The defendant was the victim’s stepfather. He began molesting her when she was six or seven years old. The victim eventually told police and stated she had been reluctant to tell for fear the defendant would harm her if she did, although the defendant had never made a specific threat of harm if the victim reported the molest. The court found that the jury finding of duress was supported by the victim’s fear; her young age when molested; the age and size disparity between her and the defendant; and the defendant’s position of authority. • People v. Mejia (2007) 155 Cal.App.4th 86 [cert. for part. pub.]: The defendant was convicted of sexually assaulting his granddaughter, including a conviction for violating section 261(a)(2) [rape by force]. The court reiterated that in a prosecution under section 261(a)(2), the prosecution need only show that the defendant used physical force sufficient to support a finding that the sexual intercourse was against the will of the victim. The degree of force used is immaterial. Here, the adult defendant was a large man. He straddled the victim, pulled her legs apart, and pushed her knees back. The penetration was painful, and the victim tried to push the defendant off, but was unsuccessful. • People v. Guido (2005) 125 Cal.App.4th 566 [cert. for part. pub.]: The defendant was convicted of multiple counts of section 269 based on rape and oral copulation. The victim often cried and was afraid of the defendant’s many threats against her and her family. The definition of force varies depending on the crime alleged. In a section 288(b)(1) prosecution, the force must be greater than that necessary to

Minors

PC269 - defendant is 7 or more years older than victim, and victim is 14-years of age or under, 15-to-life. Attempt is 5-7-9.

PC288.7 - defendant is 18 or older, and victim is 10-years of age or younger, 15-to-life or 25-to-life. Attempt is 5-7-9.

Attempt PC269 is a crime. (People v. Collins (2020) 52 Cal.App.5th 627.)

Attempt PC288.7 is a crime. (People v. Ngo (2014) 225 Cal.App.4th 126, but see People v. Fortenot (2019) 8 Cal.5th 57.)

Probation

Before probation can be granted, psychiatric reports similar to NGI reports under PC1027 must be presented under PC288.1

However, if a judge is not inclined to grant probation, report not required. "It is clear from the language of section 288.1 that a report is not mandated in every lewd or lascivious act case. Only if the trial court is inclined to grant probation must a report be ordered." (People v. Thompson (1989) 214 Cal.App.3d 1547, 1549.)

Sentencing

Some Penal Code provisions appear to be enhancements but are in fact alternative sentencing schemes imposed when certain crimes are committed in a particular way. A good example is the One Strike statute for specified offenses. (Pen. Code § 667.61.) When the defendant is convicted of an enumerated sex crime and additionally, for example, in the commission of that crime personally inflicted great bodily injury (GBI), the crime may be prosecuted under the One Strike statute, and the resulting punishment is 25 years to life rather than a determinate term for the crime plus a set term of years for a GBI enhancement. (Pen. Code § 667.61(d)(6); People v. Anderson (2009) 47 Cal.4th 92.)

Enhancements

Penal Code section 667.9(a) and (b) [+ 1 or 2 years]: Victim is young, old, or disabled. - Add one year if the defendant commits a crime listed in Penal Code section 667.9(c), and the victim was younger than 14, 65 or older, or developmentally or physically disabled. - Add two years if the defendant has a prior conviction for a listed crime against a victim described above. This enhancement applies only to completed crimes. The victim’s age or disability must be known or reasonably should have been known to the defendant. (People v. Morris (2010) 185 Cal.App.4th 1147 [cert. for part. pub.].) • Penal Code section 667.15(a) and (b) [+1 or 2 years]: Exhibiting sexually explicit material to a minor. - Add one year if the defendant is convicted of Penal Code section 288(a) or attempt, and the defendant exhibited to the minor victim sexually explicit material involving minors. - Add two years if the crime involves Penal Code section 288.5 or attempt. Actual or simulated sexual conduct has a specific meaning under Penal Code section 311.4(d)(1). The enhancement only applies to adult offenders.

Weapons

Personal Use of a Firearm or Other Deadly Weapon—Penal Code

Section 12022.3(a) [+ 3, 4, or 10 years]

• During the commission of the following completed or attempted crimes: Penal Code section 220, 261, 262, 264.1, 286, 288, 288a, or 289. The enhancement should also apply to the crime of section 269. (People v. Glass (2004) 114 Cal.App.4th 1032 [cert. for part. pub.].)

“In the commission of the sex offense” means before, during, or after the sex 

offense, and continuing as long as the defendant maintains control of the victim. (Jones, supra, 25 Cal.4th 98.) • There is no vicarious liability. (People v. Rener (1994) 24 Cal.App.4th 258 [cert. for part. pub.].) • If a firearm is used, it will be more advantageous to allege the Penal Code section 12022.53(b) enhancement for the appropriate underlying crime. If both enhancements are alleged and found true, only the greatest may be imposed and the other would be imposed and stayed. (Pen. Code § 1170.1(f); Rule 4.447.) • The use of a firearm or deadly weapon will usually also qualify the crime for sentencing under the One Strike statute. However, the One Strike allegation under Penal Code section 667.61 must be charged in addition to the enhancement. (Mancebo, supra.) • If the underlying sex crime is one listed in Penal Code section 667.6(e), then these enhancements will be served without limitation. That is, the enhancement is served at full strength, not one-third of the term, on subordinate terms imposed pursuant to section 1170.1. (Pen. Code § 1170.1(h).) If the crimes involve multiple victims or the same victim on separate occasions, the court must impose full strength, consecutive sentences for both the crimes and the enhancements pursuant to Penal Code section 667.6(d).

Armed With a Firearm or Other Deadly Weapon—Penal Code

Section 12022.3(b) [+ 1, 2, or 5 years]

• During the commission of the following completed or attempted crimes: Penal Code section 220, 261, 262, 264.1, 286, 288, 288a, or 289. The enhancement should also apply to the crime of section 269. (Glass, supra.) • “In the commission of the sex offense” means before, during, or after the sex offense and continuing as long as the defendant maintains control of the victim. (Jones, supra, 25 Cal.4th 98.) • There is no vicarious liability. (Rener, supra.) • For a discussion of deadly weapons, see Section V.A.5.

PC12022.8 GBI +5

Personal Infliction of GBI—Penal Code Section 12022.8 [+ 5 years] • During the commission or attempted commission of the following crimes: Penal Code section 220, 261(a)(2), 261(a)(3), 261(a)(6), 262(a)(1), 262(a)(4), 264.1, 286(c)(2), 288a(c)(2), 288(b), or 289(a). The enhancement should also apply to the crime of section 269. (Glass, supra.) • “In the commission of the sex offense” means before, during, or after the sex offense and continuing as long as the defendant maintains control of the victim. (Jones, supra, 25 Cal.4th 98.) • There is no vicarious liability. (Cross, supra.)

Examples of GBI: Pregnancy as a result of unlawful but non-forcible sexual 

conduct with a minor (Cross, supra; People v. Meneses (2011) 193 Cal.App.4th 1087); multiple abrasions, injury to neck, and soreness to the vaginal area (Escobar, supra); infection with a sexually transmitted disease (People v. Johnson (1986) 181 Cal.App.3d 1137 [cert. for part. pub.]); pregnancy with resulting abortion (People v. Sargent (1978) 86 Cal.App.3d 148). • If the underlying sex crime is one listed in Penal Code section 667.6(e), then these enhancements will be served without limitation. That is, the enhancement is served at full strength, not one-third of the term, on subordinate terms imposed pursuant to section 1170.1. (Pen. Code § 1170.1(h).) If the crimes involve multiple victims or the same victim on separate occasions, the court must impose full strength, consecutive sentences for both the crimes and the enhancements pursuant to Penal Code section 667.6(d). • The personal infliction of GBI will usually also qualify the crime for sentencing under the One Strike statute. However, the One Strike allegation under Penal Code section 667.61 must be charged in addition to the enhancement. (Mancebo, supra.) Alternatively, the personal infliction of bodily harm to a minor victim in the commission of Penal Code section 288(a) will result in a punishment of life in prison. (Pen. Code § 288(i) [effective September 9, 2010].) Bodily harm is defined in section 288(i)(3).

Kidnap

Kidnap—Penal Code Section 667.8 • If the defendant has been convicted of one of the listed crimes, and it is alleged and proven that the defendant kidnapped the victim for the purpose of committing that offense, the following enhancements may be alleged: - If the defendant is convicted of Penal Code section 261, 262, 264.1, 286, 288a, or 289 [+ 9 years] - If the defendant is convicted of Penal Code section 286(c), 288, or 288a(c) against a child under the age of 14 [+ 15 years] • Applies only to completed crimes. • The enhancement may be added to the underlying sex crime or the substantive crime of kidnap, but cannot enhance both crimes. (Pen. Code § 667.8(c)(3).) Additionally, unlike most enhancements, the section 667.8 enhancement may be added only once per victim per incident. (Pen. Code § 667.8(c)(1).) • In many cases, a kidnapping with a completed sex crime will invoke the indeterminate sentence under the One Strike statute. (Pen. Code § 667.61.) However, the list of crimes under Penal Code section 667.8 is broader than the list of crimes in Penal Code section 667.61.