Sex crimes

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

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) 223 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.