PC 1203.066 Probation Ineligibility for CA Sex Crimes. Criminal Defense Lawyers Explain Penal Code 1203.066 & Probation Ineligibility for Enumerated CA Sex Crimes.
- sexcrimesdefensela
- Aug 9
- 6 min read
Updated: Oct 8
In California, the conviction of a felony sex crime may lead to a jail, prison, or probation sentence, depending on the specified sex offense for which the defendant is convicted, the fact that support the alleged sex offense, and the presence of any related penalty enhancements that are alleged to have occurred in connection with the specified sex crime conviction.
For example, a conviction for lewd and lascivious act on a child under the age of fourteen (PC 288(a)-F)) is ordinarily eligible for a probation sentence, or a suspended prison sentence, unless the defendant is alleged to have personally used a firearm during commission of the offense (PC 1203.067), the defendant has a prior sex crime conviction (PC 1203.066) or some other fact that makes conviction ineligible for a probation sentence.
Misdemeanor Sex Crimes: Most misdemeanor sex crime convictions are eligible for a misdemeanor probation sentence regardless of the circumstances of the alleged offense. However, some of these misdemeanor probation sentences for sex crimes convictions carry a minimum jail sentence as a condition of probation, but otherwise, the defendant may service a probation sentence (as opposed to a jail sentence).
For example, a probation sentence after a conviction for the crime of prostitution (PC 647(b)) is allowed, but only if the judge orders a minimum amount of jail time as a condition of that probation sentence (i.e., 90 days for a third violation of PC 647(b)).
PC 1203.066 & CA Sex Crimes
Most, but not all, factors that make felony sex crimes ineligible for a probation sentence are listed at California penal code 1203.066. When the factors listed in PC 1203.066 are plead and proven by the district attorney, the defendant is not eligible for either a probation sentence, or a suspended prison sentence.
Also, even if certain factors listed in PC 1203.066 are not plead and proven, the defendant may still be ineligible for a probation sentence if the underlying offense was supported by certain factors (See Below).
These plea factors, and specific facts of a sex crime allegation, that make a defendant ineligible for probation after a felony sex crime include the following:
A person who is convicted of violating Section 288 (lewd and lascivious act on a child) or PC 288.5 (continuous sexual abuse of a child under fourteen) when the act is committed by the use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person (PC 1203.066(a)(1)).
A person who caused bodily injury on the child victim in committing a violation of Section 288 (lewd act on a child) or 288.5 (continuous sexual abuse of child) (PC 1203.066(a)(2)).
A person who is convicted of a violation of Section 288 or penal Code 288.5 and who was a stranger to the child victim or befriended the child victim for the purpose of committing an act in violation of Section 288 or PC 288.5, unless the defendant honestly and reasonably believed the victim was 14 years of age or older (PC 1203.066(a)(3)).
A person who used a weapon during the commission of a violation of PC 288(a) (Lewd Act on a Child Under 14) or 288.5 (Continuous Sexual Abuse of a Child) (PC 1203.066(a)(4) Abbrev.)
A person who is convicted of committing a violation of PC 288 (child molestation) or PC 288.5 (continuous sexual abuse of a child under 14) and who has a prior conviction of PC 261 (Rape by Force or Fear), 264.1 (Rape in Concert), 266, 266c, 267, or 285 (Incest), 286 (Sodomy), 287 (Oral Copulation), 288, 288.5, or 289 (Sexual Penetration)… (PC 1203.066(a)(5) Abbrev.)).
A person who violated penal code 288 or penal code 288.5 while kidnapping the child victim in violation of Section 207, 209, or 209.5 (PC 1203.066(a)(6)).
A person who is convicted of committing a violation of Section 288 (lewd act on a child) or 288.5 (continuous sexual abuse of a child) against more than one victim (PC 1203.066(a)(7)).
A person who, in violating penal code 288 (Lewd Act on Child Less than 14) or penal code 288.5 (Continuous Sexual Abuse of Child), has substantial sexual conduct with a victim who is under 14 years of age (PC 1203.066(a)(8) Abbrev.).
A person who, in violating penal code 288 (lewd act on a child) or 288.5 (continuous sexual abuse of a child), used obscene matter …, or matter depicting sexual conduct (possession of child pornography). (PC 1203.066(a)(9) Abbrev.)
Substantial Sexual Conduct: “Substantial sexual conduct” means penetration of the vagina or rectum of either the victim or the offender by the penis of the other or by any foreign object, oral copulation, or masturbation of either the victim or the offender (PC 1203.066(b))
Factors not Plead or Proved (PC 1203.066(d) Abbrev.)
Sometimes, a factor listed in PC 1203.066(a) is not plead or proved by the district attorney in a PC 288 or 288.5 case, but the defendant is nevertheless ineligible for a probation sentence unless certain conditions are met.
Example: David is convicted of lewd and lascivious act on a child under 14 (PC 288(a)). The district attorney does not allege a factor listed in PC 1203.066(a) (See List Above). Therefore, David is eligible for a probation sentence unless David refuses to submit to sex therapy treatment as a condition of probation (PC 1203.066(d) & PC 1203.067).
The following conditions of probation must be ordered as part of a probation sentence after a conviction for PC 288 or 288.5. This is true even if the district attorney has not alleged a factor in PC 1203.066(a) that would otherwise make a defendant ineligible for probation:
If the defendant is a member of the victim’s household, the court finds that probation is in the best interest of the child victim
The court finds that rehabilitation of the defendant is feasible and that the defendant is amenable to undergoing treatment, and the defendant is placed in a recognized treatment program designed to deal with child molestation immediately after the grant of probation or the suspension of execution or imposition of sentence.
If the defendant is a member of the victim’s household, probation shall not be granted unless the defendant is removed from the household of the victim until the court determines that the best interests of the victim would be served by the defendant’s return….
If the defendant is not a member of the victim’s household, the court shall prohibit the defendant from being placed or residing within one-half mile of the child victim’s residence for the duration of the probation term unless the court, on the record, states its reasons for finding that this residency restriction would not serve the best interests of the victim.
The court finds that there is no threat of physical harm to the victim if probation is granted.
The court shall order the psychiatrist or psychologist who is appointed pursuant to penal code 288.1…
The court shall order the defendant to comply with all probation requirements, including the requirements to attend counseling, keep all program appointments, and pay program fees based upon ability to pay.
Note: CA PC 1203.066(a)-(d) text is abbreviated and partially expanded in this article for clearer understanding and brevity.
Finally, some sex crimes are considered so egregious, that a conviction for such a crime conclusively results in probation ineligibly for the defendant (PC 1203.065).
For these felony sex crimes, the defendant is not eligible for a probation sentence after a conviction even if the district attorney has not pled and proved a factor listed in PC 1203.066(a) and even if the defendant would otherwise be amenable to the probation conditions listed in PC 1203.066(d) (See Above).
The felony sex offenses that are not eligible for a probation sentence after a conviction under any circumstance include the following (Abbrev. List):
Lewd Act on a Child under 10 (PC 288.7),
Aggravated Sexual Assault of a Child (PC 269)
Rape by Force or Fear (PC 261(a)(2))
Pimping (PC 266(h))
Oral Copulation by Force (PC 287(c)(2))
Sodomy by Force (286(d))
For more information on the defense to any CA sex crimes, including probation ineligible factors for California sex crimes convictions, contact our sex crimes criminal defense lawyers today for a free consultation.
Our top-rated award-winning sex crimes criminal defense lawyers, including winning trial lawyers, have successfully handled hundreds of misdemeanor and felony crimes in California, including indecent exposure (PC 314), sexual battery (PC 243.4), child molestation (lewd acts), annoy or molest a minor (PC 647.6), prostitution (PC 647(b)), sodomy (PC 286), oral copulation (PC 287), human sex trafficking (PC 236.1), sexual assault (PC 220), statutory rape (PC 261.5), and more. Call today!
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