Sex crimes - Revision history

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Minors

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

	Attempt PC288.7 is a crime. (''People v. Ngo'' (2014) ~~223~~ Cal.App.4th 126, but see People v. Fortenot (2019) 8 Cal.5th 57.)		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==		==Probation==

Sysop at 04:50, 15 April 2024

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	==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)===		===PC288(a)===

Sysop at 04:48, 15 April 2024

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	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		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.		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

Sysop at 04:34, 15 April 2024

2024-04-15T04:34:49Z

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			==Crimes==

			===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.



	==Minors==		==Minors==

Sysop: /* Minors */

2024-03-23T19:02:09Z

Minors

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	==Minors==		==Minors==

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

			Attempt PC288.7 is a crime. (''People v. Ngo'' (2014) 223 Cal.App.4th 126, but see People v. Fortenot (2019) 8 Cal.5th 57.)

	==Probation==		==Probation==

Sysop at 18:51, 23 March 2024

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			==Minors==

			PC269

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


	==Probation==		==Probation==

Sysop at 15:56, 23 February 2024

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			==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==		==Sentencing==

Sysop at 02:47, 20 June 2023

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	the crime plus a set term of years for a GBI enhancement. (Pen. Code § 667.61(d)(6); People v.		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.)		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.

Sysop: Created page with " ==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..."

2023-06-19T16:26:44Z

Created page with " ==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..."

New page

==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.)