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Rape of an unconscious person is the act of sexual intercourse with a person who cannot voluntarily consent to sexual intercourse because the person is either unconscious (i.e., head injury, intoxicated, coma, etc.), asleep, or otherwise not aware of the fact that sexual intercourse is occurring to the victim (PC 261((a)(4)). This article summarizes the laws, punishments and common defenses related to the crime of rape of an unconscious person, including legal definitions, court procedures, prison sentencing, sex offender registration, immigration consequences, statute of limitations, common defense strategies, and more. For further information, please contact our California sex crimes criminal defense lawyers . PC 261(a)(4) & Calcrim 1004 Law Per PC 261(a)(4), rape of an unconscious person is defined as ‘sexual intercourse with a person who, at the time of sexual intercourse, is unconscious of the nature of the act (sexual intercourse), and this fact is known to the criminal defendant (PC 261(a)(4) Sum.). “Unconscious” Defined: “unconscious of the nature of the act” as used in penal code 261(a)(4), means incapable of resisting because the victim meets any one of the following conditions: (A) Was unconscious or asleep (usually through head trauma, head injury, or severe intoxication due to alcohol, drugs, or sleeping aids). (B) Was not aware, knowing, perceiving, or cognizant that the act occurred (i.e., rape victim is awake, but he or she does not know that sexual intercourse with the defendant has occurred for some reason). (C) Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator’s fraud in fact (sometimes related to rape victims who are awake during sexual intercourse, but who believe vaginal penetration was by medical device related to medical diagnosis or treatment). Note: total unconsciousness of the victim is not required to prove the defendant has violated penal code 261(a)(4) [Boro v. Superior Court (1985) 163 Cal.App .3d 1224]. Example I: At a party, Denise has completely “blacked out” due to severe intoxication. As such, Denise cannot voluntarily consent to have sexual intercourse with anyone. David knows that Denise unconscious and he uses the opportunity to have sex with Denise. Result: David has committed a violation of penal code 261(a)(4) [Rape of Unconscious Victim]. Example II: Diana agrees to be tied up and blindfolded by before sexual intercourse with her boyfriend, David. However, after David ties up and blindfolds Diana, David allows his friend, Darrel, to have sex with Diana because both David and Darrel know that Diana will not be able to tell the difference between David and Darrel and Diana would not otherwise agree to have sex with Darrel. Result: Both David and Darrel have committed a violation of rape of an unconscious victim (PC 261(a)(4)). Both David and Darrel may also be charged with conspiracy to commit rape (PC 182/261), and the more severe criminal charge of rape in concert [Aka “Gang Rape”] (PC 264.1). Example III: Dr. David has Diana remove her clothing and lie down on an exam table with the pretense that he [Dr. David] needs to inspect Diana’s vagina for medical diagnosis. When Diana is on the medical table, Dr. David secretly exposes, and then rubs, his penis on Diana’s Vagina for a few seconds before he [Dr. David] inserts a speculum into Diana’s Vagina as part of his medical diagnosis. Result: David has committed rape of an unconscious woman per PC 261(a)(4). This is true even though Diana is not totally unconscious while Dr. David commits rape. It is the fact that Diana is unaware that sexual intercourse is occurring that allows penal code 261(a)(4) in this situation. Note: The fact that Dr. David only rubs his penis on Diana’s vagina for a few seconds in the above example will not help Dr. David avoid PC 261(a)(4) criminal charges because ‘penetration, no matter how slight, of the defendant’s penis into the woman’s vagina, may constitute sexual intercourse’ for the purpose of penal code 261(a)(4) crimes (See below at “Sexual Penetration Defined"). Unconsciousness Causation: The unconsciousness of the victim does not have to be caused by the criminal defendant for PC 261(a)(4) criminal charges to apply. However, if the defendant is found to have intentionally caused the victim’s unconsciousness, and then the defendant has sexual intercourse with that unconscious person, more severe penalties will apply, including possible life sentencing per PC 667.61(d)(6). Example: David assaults Denise by punching Denise in the head. Denise falls to the ground and becomes unconscious. Thereafter, David rapes Denis while she is unconscious. Result: David is facing PC 261(a)(4) criminal charges [Rape of Unconscious Person], and David may also face a life sentence penalty enhancement of PC 661.61(d)(6) [Infliction of Severe Injury (i.e., sexual intercourse) to Victim During Sexual Assault]. Sexual Intercourse Defined: Sexual intercourse is defined as ‘any penetration of a man’s penis, into a woman’s vagina, no matter how slight the insertion of the man’s penis into the woman’s vagina (PC 263 Sum.). Note: Ejaculation is not required to prove sexual penetration in penal code 261(a)(4) cases (Calcrim 1004). District Attorney’s Burden: To prove that the defendant is guilty of the crime of rape of an unconscious person per penal code 261(a)(4), the district attorney must prove all the following elements: The defendant had sexual intercourse with a woman, The woman was unable to resist because she was unconscious of the nature of the act, and The defendant knew that the woman was unable to resist because she was unconscious of the nature of the act. Advanced Consent Issues Logically, a woman cannot express consent to sexual intercourse while she is either unconscious or unaware that sexual intercourse is occurring. But what about a situation where the defendant claims a woman previously consented to have sexual intercourse with the defendant during her subsequent unconsciousness? Example I: At a party, Diana tells David that she [Diana] is going to get ‘intoxicated to the point that she passes out drunk (i.e., unconscious), but Diana agrees, before she is intoxicated, to allow David to have sex with her [Diana] while she is passed out drunk. Thereafter, David has sex with Diana while she is passed out drunk (i.e., unconscious). Result: David has committed a violation of penal code 261(a)(4). This is true because Diana’s loses her freedom of choice to change her mind during sexual intercourse when she in unconscious. Defendant’s Awareness of Victim’s Unconsciousness Both the “objective” and “subjective” test are used for determining whether the defendant knew, or should have known, that the victim was unconscious within the meaning of penal code 261(a)(4). Objective Test: The "objective" test, also known as the "reasonable person" test, means that if the average person, who was in the same or similar circumstances as the defendant at the time the defendant had sexual intercourse with the victim, would have concluded that the victim was unconscious, or unaware of sexual intercourse, then the defendant is guilty of rape per 261(a)(4). Note: The objective test will incorporate the defendant's level of intoxication, if any, when assessing whether the defendant acted reasonably. Subjective Test: The "subjective" test used in penal code 261(a)(4) cases refers to whether the defendant honestly and truly believed that the victim was conscious and aware of the fact that sexual intercourse is occurring. If the defendant did not honestly and truly believe that the person was conscious and aware of the fact that sexual intercourse was occurring, then the defendant has violated PC 261(a)(4). The district attorney only needs to prove that either the objective test or the subjective test was not met by the defendant in a PC 261(a)(4) prosecution. Consent Defined: Consent to engage in sexual intercourse is defined as ‘positive cooperation in act or attitude to an exercise of free will. The person must act freely and voluntarily and have knowledge of the nature of the act or transaction involved' [PC 261.6(a)]. In PC 261(a)(4) cases, a victim is robbed of her exercise of free will to consent due to her unconscious state, or the fact that she is conscious, but not aware of the fact that sexual intercourse is occurring. If a woman is conscious and aware that sexual intercourse is occurring, the woman must still freely and voluntarily consent to sexual intercourse. Otherwise, the defendant could face criminal rape charges similar to PC 261(a)(4), such as statutory rape [unlawful sexual intercourse], rape by force or fear (PC 261(a)(2)), rape of mentally disabled person (PC 261(a)(1)), and more. Closely Related Offenses Attempted Rape of Unconscious Woman. Pen. Code, §§ 663, 261(a)(4), & Rape of intoxicated Woman (PC 261(a)(3)). PC 261(a)(4) Punishment Felony Classification: The crime of rape of an unconscious person is always charged as a felony; there is no misdemeanor version of PC 261(a)(4). Probation Sentence: A probation sentence is a period of supervision instead of jail or prison. A probation sentence is not available in penal code 261(a)(4) cases. This means that a defendant who is convicted of rape of an unconscious person must serve some level of incarceration. Prison Sentence: A prison sentence after a conviction for PC 261(a)(4) will result in a prison sentence of either three (3) years, six (6) years, or eight (8) years, depending on the presence of any mitigating or aggravating circumstances in the underlying facts of the case. Example: After trial, David is convicted of rape of an unconscious person. At sentencing, the criminal court judge must sentence David to either three (3) years, six (6) years, or eight (8) years in prison. The judge considers that David has no criminal history before his PC 261(a)(4) conviction (mitigating factor); therefore, the judge sentences David to the low term of three (3) years in prison. Compare: In the above example, if David had used a high degree of sophistication to commit his crime (aggravating factor), then the judge would likely sentence David to the high term of eight (8) years in prison. Aggravating and mitigating factors used to determine whether the judge should choose the low term (three years), mid-term (six years), or high term (eight years) as a prison sentence after a conviction for PC 261(a)(4) are listed in California Rules of Court at sections 4.423 (mitigating factors) and 4.421 (aggravating factors). No Suspended Sentencing: A suspended sentence, also called a “joint suspended sentence,” is not available after a conviction for penal code 261(a)(4). This means that no part of the defendant’s prison sentence may be placed on hold, or split (partially served in prison and partially served on probation) [PC 1170(H)]. Serious Offense: The crime of rape of an unconscious victim is considered a “serious” offense, as defined at PC 1192.7. A “serious” offense is a considered a “strike” offense under California Three Strikes Sentencing Law. In turn, a “strike” offense, including PC 261(a)(4), will lead to increased penalties for subsequent criminal convictions and reduced “good behavior credits” that might otherwise apply. PC 4019 & 2933.1 Credits: A prison sentence related to a PC 261(a)(4) conviction may be reduced by up to fifty percent (50%) if the defendant serves his prison sentence with “good behavior.” Example: David is convicted of rape of unconscious woman in violation of penal code 261(a)(4). David is sentenced to the upper term of eight (8) years because David had a long criminal history before his PC 261(a)(4) conviction. Per PC 4019 and 2933.1, David’s eight (8) year prison sentence will be reduced to four (4) years if David serves those first four (4) years with “good behavior” (aka “good conduct”). Sex Offender Registration: A conviction for the crime of rape of unconscious victim will subject the defendant to lifetime sex offender registration under CA penal code 290 (tier 3). This lifetime registration requirement cannot be reduced via Petition to Terminate Sex Offender Registration; however, in some situations, the defendant might be excluded from the sex offender website pursuant to PC 290.046. Sexually Violent Predator (SVP): Before the prisoner is released from prison after conviction for PC 261(a)(4), the prisoner will be evaluated by a prison psychologist who will determine whether the prisoner should be transferred to a mental hospital or be released from prison. If the prison psychologist determines the prisoner is likely to reoffend if he is released from prison, then the prisoner will be transferred to a mental hospital for treatment as a sexually violent predator (SVP). For more information, see Sexually Violent Predator Status . Firearm loss for life: A conviction for the crime of rape of unconscious person will result in a lifetime ban from owning or possessing firearms, firearm ammunition, or body armor (PC 29800(a)(1)). Moral Turpitude Crime: All rape crimes, including PC 261(a)(4), rape of an unconscious person, are considered crimes involving moral turpitude (CIMT). A crime involving moral turpitude is any crime that involves immoral conduct, deceit, or fraud. Crimes involving moral turpitude carry direct and indirect penalties that are above and beyond prison sex offender registration and fines, such as loss of immigration status (i.e., denial of entry of deportation from the United States), loss of a professional license (i.e., doctor, dentist, lawyer, nurse, etc.), and loss of military status (denial of entry of dishonorable discharge from the United States Military). Additional Penalties: In addition to the direct and indirect penalties listed above, if found guilty of PC 261(a)(4), the defendant will face criminal protective orders (CPO) that protect the rape victim from further contact by the defendant, penalty fines, court security fees, civil lawsuits, loss of scholarship, and more. PC 261(a)(4) Defenses The facts that support a PC 261(a)(4) allegation differ from case to case; therefore, the defense that best fits a penal code 261(a)(4) allegation will differ from case to case. The following is a summary of the most common defenses used by criminal defense lawyers in a rape of an unconscious victim case. Insufficient evidence:  Before a defendant may be found guilty of penal code 261(a)(4), the district attorney must prove, beyond a reasonable doubt , that the defendant 1) had sexual intercourse with the victim, 2) the victim was unconscious or unaware that sexual intercourse occurred, and 3) the defendant knew victim was unconscious or unaware that sexual intercourse occurred. Illegal search and seizure:  Essentially, prosecutor attorneys may only use evidence against a criminal defendant if that evidence is relevant to the case and it is collected without violating the defendant’s Constitutional Rights against unreasonable search and seizure (Fourth Amendment Rights). Illegal Search and seizure laws, and their procedural applications for defense options in PC 261(a)(4) cases, are numerous and complex. For a clearer understanding of how illegal search and seizure might apply as a defense to a criminal charge of rape of an unconscious person , please contact our sex crimes criminal defense lawyers for consultation. Miranda Violations:  A “Miranda” violation is the taking of the defendant’s voluntary statement by law enforcement while under law enforcement interrogation, but without the defendant’s advisal by law enforcement that he [defendant] has the right to remain silent and that anything he says may be used against him in court. A Miranda Rights Violation defense might occur in a rape of unconscious woman  case (PC 261(a)(4)) where the defendant makes incriminating statement during police interrogation, such as a confession, but where the defendant was not properly Mirandized before making that self-incriminating state. Note:  The application of "Miranda Rights," or 5th Amendment Right against Self-Incrimination and 6th Amendment Right against Law Enforcement Interrogation Outside the Presence of Counsel, are complex legal topics. Application of these laws to the defense of penal code 261(a)(4) allegations may be further discussed without sex crimes criminal defense lawyers during a free consultation. Coerced Confession:  A coerced confession occurs where the defendant is properly “Mirandized” before law enforcement interrogation (see Above), but the atmosphere surrounding the defendant’s statement, or the style of the law enforcement interrogation itself, is unduly coercive, and that coercive atmosphere or style of police questioning leads to the defendant's false confession or an incriminating statement, in whole or in part (“Messiah” Rights Violation). Jury Nullification:  Jury Nullification in a PC 261(a)(4) occurs where the jury believe, a juror believes, beyond a reasonable doubt, that the defendant is guilty of rape of unconscious woman, but where the jury, or a juror, votes to acquit the defendant nevertheless (i.e., find the defendant “not guilty” of the alleged crime). Statute of Limitations:  The statute of limitations (SOL) is a law (statute) that limits the amount of time the district attorney has to file a criminal charge against the defendant. If the district attorney does not file a criminal charge within that crime’s relevant statute of limitations, then the district attorney is forever barred from filing those criminal charges. In a rape of an unconscious woman  case filed as a violation of PC 261(a)(4), the statute of limitations changes depending on several factors, including the age of the victim at the time of the alleged rape or when the rape is discovered (i.e., sometimes a rape of an unconscious person is not discovered for many years, which will extend the statute of limitations). Under normal circumstances, where the alleged rape victim is eighteen (18) years of age or older at the time of the alleged rape, and the victim discovers she was raped while unconscious withing a short time after the rape occurred, then the statute of limitations is ten (10) years from the date of the alleged offense (PC 799-805). Note:  The statute of limitations might extend beyond the period otherwise called for under PC 261(a)(4) and PC 799-805. This occurs for various reasons, including when the defendant has intentionally removed himself from the criminal court's jurisdiction (i.e., "fugitive status"), and other reasons. For more information, see Statute of Limitations for Sex Crimes in CA . Plea Bargain as Defense:  In some rape of an unconscious woman  cases, the defendant will enter into a plea bargain with the district attorney or the judge, whereby the defendant pleads guilty (as opposed to proceeding to trial), in exchange for a guaranteed reduced prison sentence (i.e., "sentence bargaining") or a guaranteed reduced criminal charge (i.e., "charge bargaining"), or both. A “plea bargain” is not a true defense to a PC 261(a)(4) criminal charge in the sense that the defendant is found "not guilty" of criminal allegation or the criminal charge is dismissed for some legal or technical reason(s). The strength of the bargaining position for the criminal defendant in a penal code 261(a)(4) case boils down to the strength of the evidence against the defendant and the experience of the defendant’s sex crimes criminal defense attorney. Note:  A criminal defendant does not have to enter into a plea bargain with the district attorney, but most PC 261(a)(4) cases involve the district attorney and the sex crimes criminal defense lawyer at least attempting to resolve the case by way of plea bargain, unless there is some patent technical or procedural defense upon which the defendant relies in hopes of his case being dismissed completely. Post-Conviction Options:  Post-conviction options for a criminal defendant convicted of rape of unconscious woman (victim) [PC 261(a)(4)] include: 1) appeal the felony conviction, 2) withdraw a guilty plea, or 3) petition the governor of California for a pardon or clemency. Note:  A California Governor's Pardon of a PC 261(a)(4) conviction does not relieve the defendant from the duty to register as a sex offender pursuant to PC 290 unless the California governor specifically grants clemency from that requirement. For more information on the crime of rape of unconscious person, or penal code 261(a)(4), contact our award winning and deeply experienced sex crimes criminal defense lawyers without delay for a free consultation. Our sex crimes criminal defense lawyers defend all misdemeanor and felony sex crimes criminal charges, including PC 261.5 ( Statutory Rape ), PC 647.6 (Annoy or Molest minor), PC 311 (Possession of Child Porn), PC 288 (Lewd Act w/ Child), PC 288.5 (Cont. Sexual Abuse of Child), PC 243.4 (Sexual Battery), PC 647(b) ( Prostitution ), PC 287 (Oral Copulation), PC 289 (Sexual Penetration), PC 288.2 (Harmful Matter), & more. We offer free, in-office, first visit consults related to sex crimes allegations arises out of the cites and courts of San Bernardino, Riverside, Yucaipa, Rancho Cucamonga, Rialto, Ontario, Victorville, Orange, Los Angeles, Hesperia, Fontana, Chino, Redlands, Upland, Banning, Adelanto, Colton, & More. Call today! 909-913-3138 Related Articles Rape of Intoxicated Woman (261(a)(3)) PC 288.1 & Static-99 Explained Oral Cop of Unconscious Person (287(f)) List of CA Sex Crimes A - Z PC 261(a)(4) Rape of Unconscious Victim Law, Penalties & Criminal Defense Lawyers, CA

Information on the crime of rape of an intoxicated woman is found at California penal code section 261(a)(3) PC, California Criminal Jury Instruction Section 1002 (Calcrim 1002), and other California and federal codes and cases (Caselaw). This summary of the laws, penalties, and common defenses related to penal code 261(a)(3) [ rape of intoxicated woman ], includes post-conviction remedies related to penal code 261(a)(3). For further information, please contact our California sex crimes criminal defense lawyers. PC 261(a)(3) Law Per California law, rape of an intoxicated woman is ‘an act of sexual intercourse with a person [victim] who is prevented from resisting sexual intercourse because of an intoxicating substance or drug, and the victim’s intoxicated condition was known, or reasonably should have been known by the defendant' [PC 261(a)(3) Abbrev.]. Note: The defendant in a PC 261(a)(3) case does not have to be the person who provided the intoxicant (drug or alcohol) to the victim before he [defendant] may be found guilty. Example: Jane becomes heavily intoxicated at a party to the point where she can barely stand on her own. David sees that Jane is heavily intoxicated and he takes her to a bedroom to have sex with her. At no time did David contribute to Jane's intoxication. Result: David may be charged with rape of an intoxicated woman under penal code 261(a)(3). This is true even if David is not the person who provided drugs or alcohol to Jane to make her intoxicated. In the above example, if David provided the intoxicating substance to Jane so that he [David] can more easily have sex with an otherwise unwilling, then David may be punished more severely (See PC 261(a)(3) Penalties ). Objective & Subjective Test Used: Both the objective and subjective test are used for determining whether the defendant knew, or should have known, that the victim was intoxicated to the level that she could not appreciate or understand the nature or consequences of sexual intercourse with the defendant, or she could not physically resist the defendant's sexual intercourse due to her level of intoxication. Objective Test: The "objective" test, also known as "reasonable person" test, means that if the average person, who was the same or similar circumstances as the defendant at the time of sexual intercourse, would have concluded that the victim was not so intoxicated that she could not appreciate the nature or consequences of sexual intercourse, or physically resist the defendant during sexual intercourse, then the defendant acted reasonably in his belief. The objective test will incorporate the defendant's level of intoxication when assessing whether the defendant acted reasonably. Example: David and Sarah are both very drunk when they have sexual intercourse. The next day, Sarah alleges that she was too drunk to appreciate the consequences of her actions and that she was too drunk to physically resist David. Result: Whether or not David made a reasonable mistake as to Sarah's level of intoxication is judged by what the average person would belief in David's intoxicated state. Note: PC 261(a)(3) does not make it a crime for Sarah to have sexual intercourse with David while David is heavily intoxicated. This is because David, a man, cannot be a victim under PC 261(a)(3). The crime is rape of an intoxicated woman (biological female). However, Sarah could be prosecuted under other statutes, such as sexual assault (PC 220) for the same of similar conduct. Subjective Test: The "subjective" test used in penal code 261(a)(3) cases refers to whether the defendant honestly believed that the victim was not intoxicated to the level that she could not appreciate the nature or consequences of her actions, or that she could not physically resist the defendant due to her level of intoxication. In a PC 261(a)(3) prosecution, the district attorney only has to prove, beyond a reasonable doubt, that either the objective test, or the subjective test, was not met by the defendant when he engaged in sexual intercourse with the victim. Sexual Intercourse Defined: Sexual intercourse means ‘any penetration, no matter how slight, of the vagina or genitalia by the penis.’ [PC 263]. Ejaculation is not required to prove sexual penetration in the context of PC 261(a)(3) allegations [Calcrim 1002 Sum.]. In criminal law practice, the mere touching of the penis to the vagina (skin to skin) might constitute “penetration” for purposes of rape of intoxicated woman and attempted rape or intoxicated person allegations under penal code 261(a)(3) and 664/261(a)(3), respectively. Voluntary v. Involuntary Intoxication Rape of an intoxicated woman can occur regardless of whether the victim is voluntarily or involuntarily intoxicated. However, a PC 261(a)(3) violation does not automatically occur simply because the female is heavily intoxicated. Example 1: Jane and David are in a relationship; they both like to have sex with each other while they are extremely high on drugs. Result: Jane consented to having sexual intercourse with David while she [Jane] is heavily intoxicated, and Jane gave her voluntary consent to have sexual intercourse with David before she [Jane] became intoxicated. Therefore, there is no violation of PC 261(a)(3). Example 2: Jane is extremely intoxicated, but Jane appears to be only mildly intoxicated, or "buzzed" at best. David has sex with Jane while David reasonably believes that Jane has the ability to verbally and physically object to sexual intercourse with David is she so chose. Result: Daivd is not guilty of penal code 261(a)(3) because to him [David], and to the average person, Jane does not reasonably appear to be so intoxicated that she cannot physically resist, or otherwise verbally object to sexual intercourse with David. Example 3: Jane and David are legally married as husband and wife. Jane becomes heavily intoxicated. David has sexual intercourse with Jane while Jane is heavily intoxicated because he [David] knows Jane cannot physically resist him [David] when Jane is so heavily intoxicated. Result: David has committed a violation of PC 261(a)(3). This is true even though Jane and David are married (i.e., "Spousal Rape" [PC 261(a)(3) and formerly PC 262]). Use of Anesthetic: A defendant who has sexual intercourse with a woman who is under an anesthetic may be charged under penal code 263(a)(3) even if the victim is not “intoxicated” with drugs or alcohol, so long as the defendant knew, or reasonably should have known, that the woman could not resist or object to sexual intercourse due to the anesthetic. Level of Intoxication: The level of intoxication required of a victim for PC 261(a)(3) allegations to apply is different in every rape on an intoxicated woman case. A PC 261(a)(3) allegation is charged when the victim is intoxicated to the level that she is not reasonably aware that sexual intercourse is occurring (i.e., she is not freely "consenting" to sexual intercourse), or when the victim does not act voluntarily when she engages in sexual intercourse (i.e., she is unable to physically resist sexual intercourse). Consent Defined: Per PC 261.6(a), consent to engage in sexual intercourse means ‘positive cooperation in act or attitude to an exercise of free will. The person must act freely and voluntarily and have knowledge of the nature of the act or transaction involved' [PC 261.6(a) regarding definition of consent to engage in sexual intercourse under California law]. Example: David knows that Jane is drunk (heavily intoxicated). David also knows that Jane is not reasonably aware of what she is doing when she is drunk. Regardless, David has sexual intercourse with Jane while she is drunk. Result: David is probably in violation of penal code 261(a)(3) because Jane is not reasonably aware of her actions when she is drunk. Note: A current or previous dating or marital relationship is not sufficient to constitute implied consent if consent is at issue in a prosecution under Section 261(a)(3), 286, 287 , or 289…, [PC 261.6(b) Abbrev.]. Victim’s Request for Contraception: A PC 261(a)(3) victim does not imply consent to sexual intercourse when she requests or suggests that the defendant use a condom, or other conception, during sexual intercourse (PC 261.7 Abbrev.). Example: Dr. David administers local anesthesia to Jane. The anesthesia does not render Jane “intoxicated” in the legal sense, but it does render Jane unable to physically resist sexual advances by Dr. David. Dr. David begins to have sex with Jane while she is under anesthesia. In response, Jane asks David to use a condom during the nonconsensual sex because Jane is scared of venereal disease. Result: David has committed rape of an "intoxicated" woman per PC 261(a)(3). This is true even though the local anesthesia did not impair Jane's ability to either understand the nature of the act of sexual intercourse or her ability to understand the consequences of sexual intercourse (i.e., possible impregnation). Victim’s BAC not Controlling: There is no “blood alcohol concentration” limit, or BAC, that must be met before a woman is considered intoxicated under PC 261(a)(3). Rather, the test is whether the woman is intoxicated to the point that she cannot freely give consent to sexual intercourse, and/or whether she is sufficiently intoxicated that she cannot physically resist sexual intercourse. Also, the type of alcohol, drug, controlled substance (CS), or anesthetic that causes the victim’s intoxication is not relevant in a prosecution for rape of intoxicated woman under penal code 261(a)(3), except in terms of the substance’s relevant toxicology and pharmacological effect on the victim. However, a toxicology report of the victim’s blood could be important to a defense lawyer in ascertaining whether the victim likely underwent a pharmacological effect from the alleged intoxicating substance. Example: Jane is a light drinker; she becomes heavily intoxicated to the point of not being able to resist sexual advances of David after she drinks only two beers. David is charged with rape of intoxicated victim after Jane accuses David of him having sexual intercourse with her [Jane] while she was too intoxicated to resist David’s sexual advances. Result: The fact that beer is legal for Jane to drink, and the fact that Jane only has two beers (low BAC) is not a defense against David’s PC 261(a)(3) criminal charges. However, David’s criminal defense lawyer may request Jane’s toxicology report as part of David's defense because David could allege that Jane had no alcohol in her system at all during sexual intercourse (i.e., false allegation). In sum, to prove that a criminal defendant is guilty of the crime of rape of woman while she is intoxicated per penal code 261(a)(3) and Calcrim 1002, the district attorney must prove all of the following beyond a reasonable doubt: The defendant had sexual intercourse with a woman, The effect of alcohol or drugs, or a combination of alcohol and drugs, prevented the woman from resisting the defendant, or the woman did not know the nature of the act of sexual intercourse because of her intoxicated state, and The defendant knew, or reasonably should have known, that the effect of alcohol or drug, or a combination of alcohol and drugs, prevented the woman from resistin g (Calcrim 1002 Modified). Note: The district attorney has the burden of proving, beyond a reasonable doubt, that the defendant did not actually and reasonably believe that the woman could consent to sexual intercourse [Calcrim 1002] (See PC 261(a)(3) Defenses ). Closely Related Offense: If the intoxicated victim was fully asleep at the time of sexual intercourse (i.e., the woman was completely passed out drunk while defendant had sex with the woman), the defendant will face different, but similar, criminal charges known as “rape of unconscious person.” [See List of CA Rape Crimes ] PC 261(a)(3) Penalties & Sentence Felony Classification: The crime of rape of intoxicated woman is always charged as a felony in CA. There is no misdemeanor version PC 261(a)(3). [i.e., rape of intoxicated woman is not a “wobbler” offense in California. Prison Sentence: A criminal conviction for the crime of rape of intoxicated woman under PC 261(a)(3) will subject the defendant to either a three (3), six (6), or eight (8) year prison sentence, depending on the presence or absence of any mitigating or aggravating factors in the circumstances of the case, or depending on whether there is a negotiated plea bargain between the district attorney and the defendant that predetermines the length of defendant's prison sentence. Mitigating and Aggravating Factors: When a judge sentences a defendant to prison after a conviction for PC 261(a)(3), and there is no negotiated plea bargain between the district attorney and the defendant that predetermines the length of prison sentence for the defendant, then the judge will have to consider the length of the defendant’s prison sentence based on any "mitigating" or "aggravating" factors that were present at the time of the defendant’s crime. Example: After jury trial, David is convicted of PC 261(a)(3). At sentencing, the judge may sentence David to either three (3), six (6), or eight (8) years in a CA state prison (i.e., no predetermined length of prison sentence negotiated between DA and the defendant). To decide the length of David's prison sentence, the judge considers the following: David has no criminal history (Mitigating Factor) David took advantage of a position of trust (Aggravating Factor) David confessed early in the case (Mitigating Factor) David showed no remorse for his crime (Aggravating Factor) The defendant… was induced by others to participate in the crime (Mitigating Factor) Note: There might be many mitigating and aggravating factors that are considered by a judge when sentencing the defendant to a particular length of prison sentence a rape of intoxicated woman case. Mitigating and aggravating factors are found at California rules of court 4.423 and 4.421, respectively. No 1170(H) Sentencing: When a defendant is convicted of rape of intoxicated woman under PC 261(a)(3), he must serve his prison sentence in a California state prison, as opposed to a local county jail. In addition, no part of the defendant’s prison sentence after a conviction for PC 261(a)(3) may be “split” (served partially out of prison on post-release community supervision, or felony probation), or “suspended” (not served subject to future violation of a condition of suspended sentence, aka “joint suspended sentence”). Probation Sentence Ineligible: A conviction for rape of intoxicated woman (victim) is not eligible for felony probation. This means the defendant must be incarcerated in a CA state prison if he is convicted of penal code 261(a)(3) [i.e., either three (e), six (6), or eight (8) year prison sentence depending on the presence of absence of any mitigation or aggravating circumstances related to the crime and the defendant (see above). Sex Offender Registration: A conviction for violating PC 261(a)(3) [ Rape of Intoxicated Woman ] will result in a mandatory lifetime sex offender registration with local law enforcement (PC 290 “Tier Three (3) Sex Offender Registration). For more information on sex offender registration requirements after conviction for PC 261(a)(3), see PC 290 Requirements . Good Conduct Credits: "Good conduct credits" are earned deductions that reduce the length of incarceration when an inmate serves his time with good behavior. A conviction for rape of intoxicated woman is eligible for up to either fifty percent (50%) good conduct credits, or fifteen percent (15%) good conduct credits, depending on the defendant level of culpability at the time of his offense (PC 4019 & 2933.1). Note: Defendants who are found to have “intended” to render the victim intoxicated in any PC 261(a)(3) case will receive only fifteen percent (15%) good conduct credits. Example 1: David slips Jane a “date rape drug” (i.e., Rohypnol "Roofies," gamma hydroxybutyrate "GHB" or "Liquid Ecstasy,', or ketamine "Special K"). After Jane is “intoxicated” with the date rape drug, David has sexual intercourse with Jane. Result: David intended to render Jane intoxicated for the purpose of raping her. Therefore, David must serve no less than eighty-five percent (85%) of his prison sentence. This is true even if David serves his prison sentence with “good behavior.” For more information on Intoxication by "Date Rape Drugs," see CA Date Rape Crimes . Alternatively, in the above example, if David is convicted of PC 261(a)(3), but without the intent to render Jane intoxicated for the purpose of having sex with her (i.e., Jane was already drunk on alcohol or drugs when David met Jane), then David may receive up to fifty percent (50%) off his prison sentence if he serves his prison sentence with “good behavior.” Violent and/or Serious Offense: All PC 261(a)(3) convictions are considered “serious” offenses, as that term is defined in the California law at penal code 1192.7. If the defendant “intended” to render the victim intoxicated so that he can rape the victim, such as when the defendant uses a “date rape” drug on a rape victim, then defendant will also suffer a “violent” offense conviction, as that term is defined under PC 667.5. Three Strikes Sentencing Law: Both “serious” and “violent” crimes, including rape of intoxicated victim crimes charged as PC 261(a)(3), are considered “strike” offenses under California’s Three Strikes Sentencing Law. As such, a conviction for any penal code 261(a)(3) offense will carry harsher post-conviction consequences, including longer jail and prison sentences for subsequent criminal convictions, reduced parole opportunities (for "violent" offense conviction of PC 261(a)(3)), and mandatory ineligibility for probation sentences for any subsequent felony conviction. Immigration Consequences: Both rape of an intoxicated woman , and attempted rape of intoxicated person (PC 664/261(a)(3)], are considered “violent” offenses under federal law (different definition of “violent” offense under federal law as compared to California state law), crimes involving moral turpitude (CIMT), and “deportable” offenses under federal immigration law. This means that a non-United States citizen convicted of convicted of rape of an intoxicated woman (PC 261(a)(3)), or attempted rape of intoxicated person (PC 664/261(a)(3)) will suffer severe immigration consequences, including, denial of entry into the U.S., denial of citizenship and/or naturalization, and deportation from the United States). Crime Involving Moral Turpitude: PC 261(a)(3) crimes are classified as “crimes involving moral turpitude,” or CIMT. A crime involving moral turpitude is a crime that involves immoral conduct or involves deceit. Crimes involving moral turpitude, including the crime of rape of intoxicated woman , carry both direct and indirect consequences, including immigration consequences (see above), professional licensing consequences (denial or revocation of professional license), and impeached character in subsequent civil and criminal proceedings. Lifetime Firearm Prohibition: A conviction for rape of intoxicated victim will result in a lifetime firearm ban for the defendant. This lifetime ban includes a prohibition from the defendant owning, or possessing, any firearm, ammunition for firearms, or body armor. In some cases, a Governor's Pardon of a Felony Sex Offense might restore the defendant's firearm rights after a penal code 261(a)(3) conviction. (See Governor's Pardon for Sex Offense Conviction ). Additional Consequences: In addition to the penalties, prison sentence, and other punishments listed above, if found guilty of penal code 261(a)(3) [Rape of Intoxicated Woman], the defendant may suffer civil lawsuits for battery and/or infliction of emotional distress, criminal protective orders (CPOs) in favor of victim, restitution to restore victim’s financial loss related to the crime, fines, court security fees, loss of reputation, loss of family law rights, and more. Defenses to PC 261(a)(3) The facts that support a penal code 261(a)(3) allegation are different from case to case; therefore, the defense that best fits a PC 261(a)(3) allegation will differ from case to case. The following is a summary of the most common defenses used by criminal defense lawyers in a rape of an intoxicated woman case. Insufficient evidence: Before a defendant may be found guilty of penal code 261(a)(3), the district attorney must prove, beyond a reasonable doubt , all of the following: the defendant and the alleged victim had sexual intercourse, the alleged victim was unable to physically resist the defendant’s sexual intercourse, or the alleged victim could not appreciate the nature or consequences of the sexual intercourse due to intoxication, and the defendant knew or should have known that the woman was intoxicated to the point that she could not resist sexual intercourse or know the nature and qualify of her conduct due to her level of intoxication. The defendant might defend against a PC 261(a)(3) allegation in any of the above areas. Example 1: The lack of corroborating scientific evidence, such as the presence of seminal fluid, DNA, or defendant's hair fibers that might be expected to be found in and around the woman’s vagina during a post-sexual intercourse physical exam (i.e., “rape test kit”), might impeach the woman’s testimony that sexual intercourse occurred. This defense correlates to a false accusation claim by the defendant. Note: In a false allegation of rape of an intoxicated woman case, impeachment of the alleged victim’s character for trustworthiness and honesty is usually examined by the defendant's criminal defense lawyer. Example 2: During sexual intercourse, the alleged victim might have been intoxicated to the point of not being able to physically resist the defendant or understand the nature of the act of sexual intercourse with the defendant, but the alleged victim’s appearance to the average person (objective test), and the defendant himself (subjective test), was that of a person who is not intoxicated to the level described in penal code 261(a)(3) [Rape of an Intoxicated Woman]. Note: The defense of honest and reasonable mistake as to the alleged victim’s level of intoxication during sexual intercourse will usually require a defense witness (or defendant himself) to testify for the defense, such as a person who testifies as to the alleged victim’s mental and physical appearance near the time the defendant and the alleged victim had sexual intercourse. Remember, “the defendant is not guilty of PC 261(a)(3) if he actually (subjective test) and reasonably (objective test) believed that the woman was capable of legal consent to sexual intercourse (See Definition of Legal Consent Above). [Calcrim 1002]. Also, it is the district attorney who must prove, beyond a reasonable doubt, that the defendant did not honestly and reasonably believe the alleged victim was intoxicated to the level announced in PC 261(a)(3). Illegal search and seizure: Essentially, prosecutor attorneys may only use evidence against a criminal defendant if that evidence is relevant to the case and it is collected without violating the defendant’s Constitutional Rights against unreasonable search and seizure). An illegal search and seizure defense might apply in a penal code 261(a)(3) case where the defendant’s clothing or DNA was collected for evidence to be used against the defendant, but that evidence was collected without legal authority (i.e., collected pursuant to warrant supported by Probable Cause, or some exception to the warrant requirement). Note: Search and seizure laws, and their procedural applications for defense options in PC 261(a)(3) cases, are numerous and complex. For a clearer understanding of how illegal search and seizure might apply as a defense to a rape of an intoxicated woman criminal allegation, please contact our sex crimes criminal defense lawyers for consultation. Miranda Violations: A “Miranda” violation is the taking of the defendant’s voluntary statement by law enforcement while under law enforcement interrogation, but without the defendant’s advisal by law enforcement that he [defendant] has the right to remain silent and that anything he says may be used against him in court (“Miranda” Rights Abbrev.). A Miranda Rights Violation defense might occur in a rape of intoxicated woman case (PC 261(a)(3)) where the defendant makes self-incriminating statement during police interrogation, such as a confession, but where the defendant was not properly Mirandized before making that self-incriminating state. Note: The application of a criminal defendant's "Miranda Rights," or his 5th Amendment Right against Self-Incrimination and 6th Amendment Right against Law Enforcement Interrogation Outside the Presence of his Lawyer, are complex legal topics. Application of these laws to the defense of penal code 261(a)(3) allegations may be further discussed without sex crimes criminal defense lawyers at no cost. Coerced Confession: A coerced confession occurs where the defendant is properly Mirandized before law enforcement interrogation (see Above), but the atmosphere surrounding the defendant’s statement, or the style of the law enforcement interrogation itself, is unduly coercive, and that coercive atmosphere or style of questioning leads to the defendant's false confession or an incriminating statement, in whole or in part (“Messiah” Rights Violation). Jury Nullification: Jury Nullification occurs where the jury believe, a juror believes, beyond a reasonable doubt, that the defendant is guilty of the alleged crime, but where the jury, or a juror, votes to acquit the defendant nevertheless (i.e., find the defendant “not guilty” of the alleged crime). Jury nullification is not legal defense pursued by criminal defense lawyers in PC 261(a)(3) cases. Rather, jury nullification occurs in a PC 261(a)(3) case where the jury nullifies, or renders void, the prosecutor’s rape of an intoxicated woman's case, by finding the criminal defendant “not guilty” even when the jury, or a juror, actually believe(s) that the defendant is guilty of raping a woman while she is intoxicated. Jury nullification sometimes occurs in PC 261(a)(3) cases because the jury, either dislikes the alleged victim for some reason, or the jury, or juror, has a favorable impression of the defendant, or a belief that the punishment is too harsh for the defendant’s alleged conduct in that particular PC 261(a)(3) case. Statute of Limitations: The statute of limitations (SOL) is a law (statute) that limits the amount of time the district attorney has to file a criminal charge against the defendant. If the district attorney does not file a criminal charge within that crime’s relevant statute of limitations, then the district attorney is forever barred from filing those criminal charges. In a rape of an intoxicated woman case filed as a penal code 261(a)(3) violation, the statute of limitations changes depending on several factors, including the age of the woman at the time of the alleged rape. Under normal circumstances, where the alleged rape victim is eighteen (18) years of age or older at the time of the alleged rape, the statute of limitations is ten (10) years from the date of the alleged offense (PC 799-805). Note: The statute of limitations might extend beyond the period otherwise called for under PC 261(a)(3) and PC 799-805. This occurs for various reasons, including when the defendant has intentionally removed himself from the criminal court's jurisdiction (i.e., "fugitive status"). For more information, see Statute of Limitations for CA Sex Crimes . Plea Bargain as Defense: In some rape of an intoxicated woman cases, the defendant will enter into a plea bargain with the district attorney or the judge, whereby the defendant pleads guilty (as opposed to proceeding to trial), in exchange for a guaranteed reduced prison sentence (i.e., "sentence bargaining") or a guaranteed reduced criminal charge (i.e., "charge bargaining"), or both. A “plea bargain” is not a true defense to a PC 261(a)(3) criminal charge in the sense that the defendant is found "not guilty" of criminal allegation or the criminal charge is dismissed for some legal or technical reason(s). The strength of the bargaining position for the criminal defendant in a penal code 261(a)(3) case boils down to the strength of the evidence against the defendant and the experience of the defendant’s criminal defense attorney. Note: A criminal defendant does not have to enter into a plea bargain with the district attorney, but most PC 261(a)(3) cases involve the district attorney and the criminal defense lawyer at least attempting to resolve the case by way of plea bargain, unless there is some patent technical or procedural defense upon which the defendant relies in hopes of his case being dismissed by the judge. Post-Conviction Options: Post-conviction options for a criminal defendant convicted of rape of intoxicated woman (victim) [PC 261(a)(3)] include: 1) appeal his felony conviction, 2) withdraw his guilty plea (PC 1018), or 3) petition the governor of California for a pardon or clemency. Note: A California Governor's Pardon of a PC 261(a)(3) conviction does not relieve the defendant from the duty to register as a sex offender pursuant to PC 290 unless the California governor specifically grants clemency from that requirement. If you are charged with rape of an intoxicated woman , or California penal code 261(a)(3) PC, contact our sex crimes criminal defense lawyers today for a free case evaluation. Our highly experienced and successful criminal defense lawyers, including winning trial lawyers, have defended countless misdemeanor and felony sex crimes criminal charges in San Bernardino, Riverside, Orange, and Los Angeles Counties, including PC 288 ( Lewd Acts ), PC 243.4 ( Sexual Battery ), PC 311 ( Poss. of Child Porn ), PC 287 ( Oral Copulation ), PC 647(b) ( Prostitution ), PC 289 ( Sexual Penetration ), PC 314 ( Indecent Exposure ), PC 261 (Rape) & more. Important: Time is of the essence when it comes to successfully defending rape charges filed under penal code 261(a)(3). Never wait until your first court date to retain an experienced criminal defense lawyer with deep experience in defending rape charges and never talk to anyone about your case without a lawyer by your side, especially law enforcement officers or the alleged rape victim. Call today! 909-913-3138 Closely Related Crimes Oral Copulation of Intoxicated Person Sexual Penetration of Intoxicated Person Sodomy of Intoxicated Person PC 261(a)(3) Rape of Intoxicated Person: Criminal Defense Lawyers Explain CA Penal Code 261(a)(3).

According to California penal code 17(b), it is possible to reduce certain felony criminal charges to misdemeanor criminal charges. Per penal code 17(b), the reduction of a felony criminal charge to a misdemeanor criminal charge is possible both before, and even after, a defendant's criminal conviction. Note: This summary of CA 17(b) motions to reduce felony criminal charges to misdemeanor criminal charges focuses on the law, procedure, and defense considerations of 17(b) motions as they relate to California sex crimes criminal charges; however, 17(b) motions may also apply to non-sex crimes. For more information, contact our sex crimes criminal defense lawyers today for a free consultation. PC 17(b) Law & “Wobbler” Crimes First, the reduction of a felony criminal charge to a misdemeanor criminal charge is only possible in cases where the defendant is charged with, or convicted of, a “wobbler” offense. See List of Wobbler Sex Crimes . "Wobbler" Offense Defined: A “wobbler” offense is any criminal charge that is capable of being charged either as a misdemeanor, or alternatively, as a felony (i.e., the criminal charge is capable of oscillating, or “wobbling” between two classifications of crime). Example: The crime of oral copulation on a minor under the age of eighteen (18) [PC 287(b)(1)] may be charged either as a misdemeanor, or alternatively as a felony, depending on circumstances related to the case. Therefore, if the district attorney charges a felony violation of PC 287(b)(1), the defense may petitioner the court through a “17(b) motion” to have that felony charge reduced to a misdemeanor charge. Some CA sex crimes may only be charged as a misdemeanor, or alternatively, only as a felony (i.e., the crime is not a “wobbler” crime). Example: The crime of revenge porn (PC 647(j)(4) is only charged as a misdemeanor (no felony option); therefore, no 17(b) motion is available in a revenge porn case. Alternatively, the crime of lewd and lascivious act on a child under the age of fourteen (14) [PC 288(a)] may only be charged as a felony; therefore, no 17(b) motion is available to the defendant in a PC 288(a) case. Warning: A “wobbler” sex crime that is initially charged as a misdemeanor, may be increased to a felony charge. In other words, the reclassification of a “wobbler” offense can be decreased or increased (i.e. a felony charge can be decreased to a misdemeanor charge, or a misdemeanor charge can be increased to a felony charge). Note: The 17(b) motion only refers to the reduction of a criminal charge. Therefore, the 17(b) motion is only used by defense. When the district attorney increases criminal charges from a misdemeanor to a felony, the district attorney does so at his or her “prosecutorial discretion.” Example: David is charged with the crime of misdemeanor sexual battery (PC 243.4), a “wobbler” offense. After criminal prosecution begins, the district attorney decides to reclassify the crime as a felony with new evidence to support the reclassification. Result: David’s misdemeanor sexual battery charge is increased to a felony charge. 17(b) Motion Timing: A motion to reclassify a felony charge to a misdemeanor charge may be brought at any time in a criminal case (i.e., at the beginning of the criminal prosecution, or even after the defendant is convicted of the felony “wobbler” crime). However, most 17(b) motions will be argued by defense attorneys either immediately after the preliminary hearing stage of a criminal prosecution, or after a felony probation sentence is completed (i.e., post-conviction). With some sex crimes, a post-conviction reclassification of a felony conviction to a misdemeanor conviction is necessary if the defendant intends to have his or her criminal conviction expunged or pardoned, or where the defendant intends to have his or her sex offender registration period reduced or terminated ( PC 290.5 ). Automatic Reclassification of Crime Sometimes a “wobbler” sex crime is automatically reclassified after a criminal conviction (i.e., no need to petition the court for a 17(b) motion to reduce the felony conviction to a misdemeanor conviction. This occurs in criminal cases where the defendant is convicted of a felony sex crime, which qualifies as a “wobbler” offense, but the judge does not sentence the defendant to prison, county jail, or probation at sentencing, and the crime is one that is listed in penal code 1170(H) (PC 17(b)(1)). Example: David is convicted of felony indecent exposure inside an inhabited dwelling (PC 314.1), a “wobbler” offense that is listed in California PC 1170(H). David's conviction results in no prison, jail, or probation commitment as part of a plea bargain with the district attorney. Result: David’s felony indecent exposure conviction is automatically reduced to a misdemeanor indecent exposure conviction, at judgement (sentencing), and without David having to file a 17(b) motion to reduce the felony to a misdemeanor. Note: In the above example, If David's conviction for the crime of indecent exposure ( PC 314.1 ) resulted in a probation sentence, without a jail or prison commitment, then David's reclassification of his felony to a misdemeanor crime is not automatic , but David may still petition the court to have his felony reclassified as a misdemeanor via a 17(b) motion (PC 17(b)(3)). Sex Offender Registration Limitations A granted PC 17(b) Motion that successfully reduces a felony “wobbler” sex crime to a misdemeanor does not relieve the defendant of his or her duty to register as a sex offender pursuant to PC 290 (PC 17(e)). However, the amount of time that the defendant must register as a sex offender may be reduced after reclassification of a felony sex crime to a misdemeanor sex crime (very limited situations where tier 3 [lifetime registration] classification is not automatic). PC 17(b) Motion Eligible Sex Crimes: The following sex crimes are classified as “wobbler” sex offenses. Therefore, a felony violation of any of the below-listed sex crimes may be reduced to a misdemeanor violation upon successful 17(b) motion [Partial List]: PC 243.4 Sexual Battery PC 261.5 Unlawful Sexual Intercourse PC 261.5(d) Statutory Rape PC 266 Seduce Minor for Prostitution PC 286(b)(1) Sodomy of Minor PC 287(b)(1) Oral Copulation of Minor PC 288(c)(1) Lewd Act on Minor 14/15 PC 288.2(a)(1) Dist. Lewd Matter to Minor PC 288.4 Arrange to Meet Minor for Sex PC 289(h) Sexual Pen. by Object on Minor PC 311.11(a) Possession of Child Porn PC 311.11(c)(2) Sadomasochistic Child Porn PC 314.1 Indecent Exposure PC 647.6(b) Child Molestation in Dwelling Keep in mind that many of the above-listed “wobbler” offense resemble other non- “wobbler” offense that are not capable of felony-to-misdemeanor reduction. Example: The crime of sexual penetration by object against a minor who is seventeen (17) years of age is usually charged as a violation of penal code 289(h), a “wobbler” offense, but if the victim is alleged to have been threatened during the crime of sexual penetration (regardless of the victim’s age), then the crime is usually charged as a violation of penal code 289(g), a non-“wobbler” offense. Example II: The crime of sexual battery may be charged either a violation of penal code 243.4, which is a "wobbler" offense, or alternatively as a violation of penal code 243.4(e)(1) , a non-"wobbler" misdemeanor only offense. Per the above examples, it is very important to look at the exact sex crime and code section for which the defendant has been charged to determine if the crime is eligible for a 17(b) motion. Non-"Wobbler" Sex Crime List: The following list of common California sex crimes do not qualify for 17(b) motions because these crimes can only be charged, by law, either as a misdemeanor, or as a felony (i.e., these crimes do not "wobble" between classification of crime). PC 290 Kidnap to Commit Sex Offense (Felony) PC 220 Sexual Assault (Felony) PC 236.1 Human Sex Trafficking (Felony) PC 243.4(e)(1) Misdemeanor Sexual Battery (Misd.) PC 261(a) Rape by Force or Fear (Felony) PC 262 Spousal Rape [Aka PC 261(a)] (Felony) PC 264.1 Rape in Concert [Gang Rape] (Felony) PC 266(h) Pimping (Felony) PC 266(i) Pandering (Felony) PC 267 Abduct Minor for Prostitution (Felony) PC 269 Aggravated Sexual Abuse of Child (Felony) PC 285 Incest (Felony) PC 286.5 Sex with Animal (Misdemeanor) PC 288(a) Lewd Act on Child Under 14 (Felony) PC 288(b) Lewd Act on Child Under 14 w/Force (Fel.) PC 288(i) Lewd Act on a Child w/Injury (Felony) PC 288.5 Cont. Sexual Abuse of Child (Felony) PC 288.7 Lewd Act on Child Under 10 (Felony) PC 311.6 Engage in Obscene Conduct (Misd.) PC 315 Operate House of Prostitution (Misd.) PC 318 Capping for Brothel (Misdemeanor) PC 647(a) Lewd Act in Public (Misdemeanor) PC 647(b) Engage in Prostitution (Misdemeanor) PC 647(J)(1) Peek into Dressing Room (Misd.) PC 647(J)(2) Video Person in Undergarment (Misd.) PC 647(J)(4) Revenge Porn (Misdemeanor) PC 647.6(C) Child Molesting w/Prior (Felony) PC 664/261(a) Attempted Rape (Felony) 17(b) After Probation Completed If the defendant motions the court for relief under 17(b) after a criminal conviction (as opposed to during the criminal prosecution process), then the defendant will not qualify to have his felony sex crime reduced to a misdemeanor sex crime unless the defendant’s felony probation terms, if any, have been completed (PC 17(b)(3)). However, failure to fulfill a restitution order as a term of probation may not be the basis of denying the 17(b) application if the defendant was unable to afford the restitution and the judge exercises discretion in granting the motion (PC 17(f)). Example: David is convicted of felony possession of obscene material depicting a minor (PC 311.11), a “wobbler” offense. David is placed on probation and ordered to pay restitution as a term of his probation. David fulfills all probation terms other than the restitution term and he applies to have his felony PC 311.11 conviction reduced to a misdemeanor PC 311.11 conviction. Result: The judge may grant David’s PC 17(b) motion, so long as the judge uses its discretion in deciding whether to granting the motion. For more information on PC 17(b) motions to reduce a felony sex crime to a misdemeanor sex crime, or to contact a sex crimes criminal defense attorney in the Inland Empire, call our law firm today for a free consultation. Our award-winning sex crimes criminal defense lawyers, including winning trial lawyers, have handled hundreds of misdemeanor and felony sex crimes in San Bernardino, Riverside, Los Angeles, and Orange County. We have successfully defended against the toughest sex crimes criminal charges in California, including child molestation, sexual battery, lewd act on a minor, possession of child pornography, statutory rape , rape by force or fear, prostitution, indecent exposure, pimping, pandering, human sex trafficking, aggravated sexual assault of a child, sodomy, incest , and more. Call today! 909-9130-3138 Related Articles PC 288(a) Lewd Acts [Child Molestation] Mental Health Diversion for Sex Crimes Statute of Limitations for CA Sex Crimes PC 288.5(a)-F Law, Punishment & Defense PC 17(b) Reduce Felony to Misdemeanor in CA Sex Crimes. Sex Crimes Criminal Defense Lawyers

A felony probation sentence (as opposed to a prison sentence) is available after a conviction for some California felony sex crimes, including crimes of lewd act on a child under 14 (child molestation), oral copulation (oral sex), sodomy , sexual penetration with object , rape in concert (gang rape), and continuous sexual abuse of a child . The availability of a probation sentence after a felony sex crime conviction depends on the following: the exact felony sex crime for which the defendant is convicted, the presence of any alleged facts in the case that preclude a probation sentence, and whether or not the defendant is amenable to a probation sentence, and he or she agrees to the conditions of probation. Probation Ineligibility Cases: To start, some felony sex crimes are ineligible for a probation sentence regardless of the facts that support the criminal allegation and regardless of whether the defendant is willing to agree to any conditions of a probation sentence. These probation ineligible sex crimes include the most severe felony sex crimes, such as sexual penetration of a child under ten years of age ( 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 (PC 286(d)), and a few other very severe sex offenses. Factors that Preclude Felony Probation Sentence: When a felony sex crime is otherwise eligible for probation, certain facts that are alleged in the underlying case might make that felony sex crime ineligible for probation. Example:  David is charged with PC 288(a) [ Lewd Act Upon a Child Under 14 ]. David is also charged with the enhancement penalty of PC 1203.066(a)(8) “Substantial Sexual Conduct" [A factor listed in PC 1203.066 that makes criminal charges ineligible for a probation sentence] Result:  David would have been eligible for a felony probation sentence (as opposed to a prison sentence) on the PC 288(a) charge, but the issue of a probation sentence is moot because the PC 1203.066 penalty enhancement precludes the grant of a felony probation sentence in any PC 288(a) case. The factors of case that make an otherwise eligible-for-probation felony sex crime a non-eligible-for-probation felony sex crime are listed in CA penal code 1203.066. The PC 1203.066 factors include items such as whether the defendant used force to commit a sex crime (PC 1203.066(a)(1)), whether the defendant used a weapon to commit the sex crime (PC 1203.066(a)(4), whether the defendant committed “substantial sexual conduct” during a sex crime) (PC 1203.066(a)(8)), and more. [See PC 1203.066 for complete list of factors that preclude probation sentencing in CA sex crimes ]. Probation Conditions for Eligible Felony Sex Crimes: As discussed, some felony sex crimes are automatically ineligible for a felony probation sentence based on the egregiousness of the allegation itself (See Probation Ineligibility Cases above). Also, some felony sex crimes are eligible for a probation sentence, but some underlying factor in the case precludes felony probation sentencing (See Factors That Preclude Felony Probation Sentence above ). The remaining felony sex crimes are eligible for probation sentencing (as opposed to a state prison sentencing), so long as the court determines it is in the best interest for the defendant to be granted probation and he or she agrees to certain felony probation terms (See Below). Probation Eligible Sex Crimes: As stated, if the felony sex crime is not automatically rendered ineligible for a probation sentence due to the egregious nature of the allegation, or rendered ineligible for a probation sentence because of an underlying factor in the case that precludes a probation sentence, then the felony sex crime is eligible for a probation sentence (as opposed to a prison sentence). These probation eligible felony sex crimes include: PC 261.5 Statutory Rape PC 286 Sodomy Crimes [Most] PC 287 Oral Copulation Crimes [Most] PC 288 Lewd Act on Child Under 14 PC 288.5 Cont. Sex Abuse of Child PC 289 Sexual Pen. Crimes [Most] PC 285 Incest PC 311.11 Poss. of Child Porn PC 314 Indecent Exposure PC 243.4 Sexual Battery Note: All misdemeanor sex crimes are eligible for a misdemeanor probation sentence regardless of the exact felony for which the defendant is charged and regardless of the presence of any underlying factor in the case. PC 1203.097 Condition for Probation Sentence Some felony sex crimes are eligible for probation, but only if the defendant agrees to certain conditions of felony probation. Consider the following: Per PC 1203.097, ‘Notwithstanding any other law, before a probation sentence may be granted to any person convicted of a felony listed in PC 261 ( rape ), PC 264.1 ( rape in concert ), PC 286 ( sodomy ), PC 287 ( oral copulation ), PC 288 ( lewd and lascivious act on a child ), PC 288.5 ( cont. sexual abuse of a child ), or PC 289 ( sexual penetration by foreign object ),…, the court shall do all of the following: ‘Order the defendant evaluated for his or her suitability to a felony probation sentence…, or similar evaluation by the county probation department.’ (PC 1203.097(a)(1)) Conduct a hearing at the time of sentencing to determine if probation of the defendant would pose a threat to the victim…. (PC 1203.097(a)(2) Abbrev.) . Order any psychiatrist or psychologist appointed pursuant to Section 288.1 to include consideration of the threat to the victim and the defendant’s potential for positive response to treatment in making the report to the court. This section does not require the court to order an examination of the victim (PC 1203.097(a)(3)). The terms of felony probation for an offense that requires sex offender registration ( PC 290 registration ) ‘ …. shall successfully complete a sex offender management program, ... The length of the period in the program shall be not less than one year… (Abbrev.) Waive of any privilege against self-incrimination and participation in polygraph examinations, which shall be part of the sex offender management program, Waive of any psychotherapist-patient privilege to enable communication between the sex offender management professional and supervising probation officer. Example: David is charged with felony unlawful sexual intercourse (PC 261.5(c)). Unlawful sexual intercourse is not a crime covered in PC 1203.097, and the crime is not an offense for which sex offender registration is required. Therefore, David may receive a felony probation sentence after his PC 261.5(c) conviction without the additional probation condition requirements of PC 1203.097 (i.e., sex therapy classes, psychological evaluation, polygraph examination , etc.). Example II: If David was charged with PC 288.5 ( Continuous Sexual Abuse of a Child ), then David may only be granted a felony probation sentence if he agrees to the terms listed in PC 1203.097 (i.e., submits to polygraph examinations, attends sex therapy classes for at least a year, submit to psychological testing, etc.). Unusual or Special Circumstances: Some felony sex crimes are eligible for probation sentencing (as opposed to state prison sentencing), but only if the court finds that unusual or special circumstances apply to the case, such that probation sentencing serves the best interest of justice. Example: The crime of continuous sexual abuse of a child ( PC 288.5(a) ) is listed as a probation eligible crime under PC 1203.067, but the crime is also a crime which requires special circumstances that justify a probation sentence. therefore, a probation sentencing is available in a PC 288.5 case, but only if 1) the court determines that special circumstances apply to the case that justify a probation sentence, and 2) the defendant agrees to the probation conditions listed in PC 1203.067. Felony Probation Length: The length of probation after a felony conviction of a California sex offense is discussed at Probation & Parole for CA Sex Crimes . For more information on felony sex crimes probation eligibility after conviction (as opposed to a prison sentence), contact our highly experienced and successful sex crimes criminal defense lawyers today. We handle all felony and misdemeanor sex crimes defense in San Bernardino, Orange, Riverside, and Los Angeles Counties, including Lewd Acts (PC 288), Poss. of Child Porn (PC 311), Indecent Exposure ( PC 314 ), Sexual Battery ( PC 243.4 ), Prostitution ( PC 647(b) ), Pimping ( PC 266h ), Revenge Porn ( PC 647(J)(4)) , Oral Copulation (PC 287), Sexual Assault (PC 220) , Rape Crimes (PC 261 & 264.1), Pandering (PC 266i), Attempt Rape ( PC 664/261 ), & More. Our sex crimes criminal defense lawyers offer free and discreet consultations. Call now! 909-913-3138 Related Articles Probation Ineligible Sex Crimes Probation & Parole in CA Sex Offenses Penal Code 288(a) Law & Defense Penal Code 311.11 Law & Defense PC 1203.067 Probation Conditions for CA Felony Sex Crimes: PC 288, 287, 286, 261, 289, & 288.5

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! 909-913-3138 Related Articles Revenge Porn Charges PC 288.2 Law & Defense PC 290 Law in California Statutory Rape Law & Defense PC 1203.066 Probation Ineligibility for CA Sex Crimes. Criminal Defense Lawyers

Information on the crime of sending, bringing or possessing child pornography in California is found at California penal code section 311.1 (PC 311.1). The following is a summary of the law, penalties, and common defenses related to the crime of PC 311.1. For further information, please contact our sex crimes criminal defense lawyers for a free case evaluation. PC 311.1 (Abbrev). Per PC 311.1(a) Every person who knowingly sends, brings, or possesses, child porn in California, for sale or distribution, or any person who prepares, publishes, produces, develops, duplicates, or prints child pornography in the state of California, with the intent to distribute of exhibit the child pornography, is guilty of penal code 311.1(a) [PC 311.1(a) Abbrev.]. For purposes of penal code 311.1(a), “child pornography” is any depiction of a minor engaging in real or simulated sexual activity, including oral copulation, masturbation, sexual penetration, sexual intercourse, anal intercourse ( sodomy ), or lewd acts, either alone, or with another person or animal (bestiality). Also, for purposes of PC 311.1(a) law, a “child” is any person under the age of eighteen (18) [i.e., a minor in California]. This is true even if the child [minor] would be considered an adult in another state from where the pornography originated. PC 311.1(a) Penalties Classification of Crime: The crime of bringing, sending, or possessing child pornography in California, as defined in PC 311.1(a), is classified as a “wobbler.” This means that PC 311.1(a) may be charged either as a misdemeanor, or alternatively as a felony. Misdemeanor Jail Sentence: When PC 311.1(a) is charged as a misdemeanor, the defendant will face up to one year in the county jail. A probation sentence, with or without a jail sentence may be allowed in misdemeanor PC 311.1(a) cases. Felony Prison Sentence: When PC 311.1(a) is charged as a felony, the defendant will face up to sixteen months (low term), two years (mid-term), or three years (high term) in a California state prison, depending on the presence or absence of any mitigating or aggravating circumstances present in the facts of the case. A probation sentence, with or without a jail sentence may be allowed in felony PC 311.1(a) cases. Prison Presumptive Sentence: If the defendant is convicted of bringing, sending or possessing child pornography, as charged in PC 311.1(a), and the defendant is not granted a probation sentence, then the defendant must serve his or her incarceration in a California state prison, as opposed to a local county jail, and no part of that prison sentence may be split (served partially out of prison on work release), or suspended (not served subject to conditions set by the court) [PC 1170(h)]. Example: David is convicted of felony PC 311.1(a). The judge declines to grant David a probation sentence; therefore, David must be sentenced to either sixteen months, two years, or three years in prison, depending on the factors related to the circumstances of David’s crime. Plus, David must serve his entire sentence in a California state prison. Note: A prison sentence related to felony PC 311.1(a) conviction will be followed by three years of Post-Release Community Supervision (PRCS), which is monitored by local probation officers with the goal of both monitoring and reintegrating the parolee back into society after prison. Probation Sentence: A probation sentence is a period of supervision, as opposed to incarceration in a county jail or state prison. A probation sentence is allowed after both misdemeanor and felony PC 311.1(a) convictions, but a probation sentence is never guaranteed. Whether a probation sentence is granted after a conviction of bringing, sending or possessing child pornography depends on many factors, including the defendant’s criminal history, the harm, if any, caused to any victim, the terms of any negotiated plea bargain between the district attorney and the defendant, and more. Note: A probation sentence carries “terms of probation” that must be fulfilled to remain on probation. Sometimes, a term of probation is that the defendant serves a jail sentence; however, when a jail sentence is term of probation, the defendant may usually serve that jail sentence alternatively on work release. Example: John is convicted of misdemeanor PC 311.1(a). John is placed on summary probation (misdemeanor probation) with the condition that John serves thirty days in the county jail. As a result, John may be allowed to serve his thirty days on work release, as opposed to incarceration in the county jail, unless the court specifically requires county jail in the record of conviction. Note: The length of probation is determined by law. Felony probation related to PC 311.1(a) conviction is two years per PC 1203.1(a). Misdemeanor probation is one year for misdemeanor violations of penal code 311.1(a). Three Strikes Law: The crime of bring, send or possess child pornography, as charged in PC 311.1(a), is not a strike offense in California. However, if the defendant has two prior strike offenses, then a subsequent felony conviction of PC 311.1(a) may trigger a third strike offense under California’s Three Strikes Sentencing Law. PC 290 Registration: A conviction for PC 311.1(a) results in the defendant being required to register as a sex offender with law enforcement. A felony conviction of PC 311.1(a) results in a twenty-year sex offender registration period. A misdemeanor conviction of PC 311.1(a) results in a ten-year sex offender registration period (PC 290). CIMT: The crime of bring, send or possess child pornography (obscene matter depicting a child) is classified as a “crime involving moral turpitude,” or CIMT. A conviction for a crime involving moral turpitude, including any conviction for misdemeanor felony PC 311.1(a) will result in adverse consequences for non-US citizens (deportation and denial naturalization), licensed professionals (denial or loss of a professional license), and military personnel (discharge or denial of entry). Firearm Restriction: A felony conviction for the crime of bring, send or possess child pornography will result in a lifetime firearm ban (including firearm ammunition and body armor). A misdemeanor conviction for the crime of bring, send or possess child pornography will not result in firearm prohibition. Additional Penalties: In addition, the penalties listed above, a conviction for misdemeanor or felony PC 311.1(a) will result in court fines and fees, loss of scholarship opportunities, criminal protective orders, restitution orders, loss of reputation and rights regarding adoption of children, and more. PC 311.1(a) Defenses Common defenses to a criminal charge of bring, send or possess child pornography in California include insufficient evidence to prove intent of the defendant, coerced confession of the defendant, entrapment, illegal search and seizure, mistake of fact as to the nature of the matter possessed, and more. Statute of Limitations: The statute of limitations for both misdemeanor and felony violations of PC 311.1(a) is ten years from the date of the alleged offense. For more information, see Statute of Limitations for Sex Crimes in California . Statutory Defenses: PC 311.1(a) does not apply to law enforcement and prosecuting agencies related to the detection and prosecution of persons engage in illegally bringing, sending, or possessing or child pornography (PC 311.1(b) Abbrev.). Also, PC 311.1(a) does not apply to matter that depicts a child under eighteen years of age when the child is legally emancipated, or the sexual conduct depicted occurs between lawfully married spouses (PC 311.1(c) Abbrev.). Reclassification of Crime: In some cases, when the defendant is charged with a felony violation of penal code 311.1(a), the defendant may petition the court to have his or her felony charges reduced to misdemeanor charges, depending on the circumstances of the case (PC 17(B)). Post-Conviction Relief: After a conviction of the crime of bringing, sending, distributing, or possessing child pornography in California (PC 311.1(a)), the defendant may have post-conviction remedies, depending on the circumstances of the defendant’s conviction. These post-conviction remedies for PC 311.1(a) include: Appeal the Conviction Reduce Felony to Misdemeanor Withdraw a Guilty Plea Terminate a Probation Sentence Terminate Criminal Protective Order Terminate Sex Offender Registration To learn more about the crime of sell, bring, distribute, or possess child porn in California, or penal code 311.1(a), contact our California sex crimes criminal defense lawyers today for a free consultation. Our highly experienced sex crimes criminal defense lawyers have successfully handled hundreds of misdemeanor and felony sex crimes in So. Cal, including penal code 311.1(a) criminal charges. We can help you too. Call today! 909-913-3138 Related topics Poss. Sadomasochism Child Porn Lewd Act on Child Under 14 PC 647(b) Soliciting Prostitution PC 236.1 Human Sex Trafficking Send Harmful Matter to Minor PC 311.1(a) Send, Bring or Possess Child Porn in CA. Sex Crimes Criminal Defense Lawyers Explain Penal Code 311.1(a).

Information on the crime of sodomy with a person under eighteen (18) years of age is found at California penal code § 286(b)(1). This article covers the law, punishment, and common defenses related to PC 286(b)(1). For additional information, contact our sex crimes criminal defense attorneys. Note: Sodomy is the legal name for anal intercourse (medical term), or anal sex (neutral slang term). The word sodomy is Biblical in origin and opponents of the use of the word “sodomy” as a legal definition for anal intercourse indicate that the word inaccurately refers to sinful conduct (city of ancient and sinful city of Sodom). Thus, the medical term for sodomy, “anal intercourse,” is preferred. To that end, the term sodomy will be used throughout when referring to the law, but examples in this article will include the preferred and synonymous terms “anal intercourse,” and “anal sex.” PC 286(b)(1) Law …any person who participates in an act of sodomy with another person who is under 18 years of age is guilty of sodomy of a minor (PC 286(b)(1) Sodomy Defined: Sodomy is sexual conduct consisting of contact between the penis of one person and the anus of another person. Any sexual penetration, however slight, is sufficient to complete the crime of sodomy (PC 286(a)). Sodomy can only be committed by a man; however, the victim of PC 286(b)(1) can be a man or a woman. Also, full penetration of a man’s penis into the anus of a minor is not required for prosecution under PC 286(b)(1). Evidence of mere touching between the anal area and the defendant’s penis is sufficient sexual contact to charge PC 286(b)(1) allegations. Example: Jack and Jill are in a dating relationship. Jack is twenty-one (21) years old, and Jill is seventeen (17) years old. During a night of passion, Jack attempts to have anal sex with Jill. Jill agrees to the anal intercourse, but when Jack begins to press his penis against Jill’s anus Jill become scared that anal sex will hurt her, and she does not want to follow through with have anal sex. Jack ceases his attempt to have anal sex with Jill. Result: Jack has committed the crime of sodomy with a minor. This is true even though Jack never penetrated Jill anus because the mere touching of Jill anus with Jack’s penis is sufficient for PC 286(b)(1) charges. In the above example, it does not matter that Jill agrees to have anal intercourse with Jack. This is because Jill is legally too young to consent (agree) to anal intercourse. In California, the legal age of consent to sexual conduct is eighteen (18). The age of consent rule does not apply to person who are legally married and engage in consensual anal sex. Example: Jack and John are legally married in a state where the legal age for marriage is sixteen (16). Jack is twenty (20) years old, and John is seventeen (17) years old. Jack and John move to California and engage in consensual anal intercourse. Result: John is not guilty of sodomy of a minor because Jack and John are legally married and the age of consent prohibition against anal sex does not apply to legally married couples. PC 286(b)(1) Punishments Classification of Crime: Sodomy with a person under the age of eighteen (18) is a “wobbler” offense in California. A “wobbler” offense is any crime that may be charged either as a misdemeanor, or alternatively as a felony. Thus, the crime “wobbles” between two classifications. Felony PC 286(b)(1) Incarceration: When sodomy with a person under eighteen (18) years of age is charged as a felony, the defendant may face up to sixteen (16) months, two (2) years, or three (3) years in a California state prison. A probation sentence without incarceration may be available after a PC 286(b)(1) conviction in some cases (See PC 286(b)(1) Probation Sentence). Length of Prison Options: The length of prison chosen by the sentencing judge (sixteen (16) months, two (2) years, or three (3) years) depends on many factors, including the relationship between the minor and the defendant, the harm caused to the minor, the level of sophistication used to commit the offense, the level of maturity of the minor, the defendant’s criminal history, the desire for prosecution by the minor or the minor’s parents, the terms of any negotiated plea bargain between the defendant and the district attorney, and more. Prison Presumptive: If the defendant is convicted of sodomy with a person under eighteen (18) years of age (a minor), then the judge must sentence the defendant to either a probation sentence (See PC 286(b)(1) Probation Sentence), or a prison sentence. The court may not sentence the defendant to serve time in a local county jail unless the defendant is granted probation. Example: Bill is convicted of a felony PC 286(b)(1). The court finds good cause to grant Bill a probation sentence, as opposed to a prison sentence; however, the court orders Bill to serve a county jail sentence of three (3) months as a “term of probation.” In this example, Bill may serve time in a local county jail because the judge granted him probation; however, if the judge did not grant Bill a probation sentence, then Bill must serve no less than sixteen (16) months in a California state prison. Split & Suspended Sentence: No “split” or “suspended” prison sentence is allowed after a PC 286(b)(1) conviction. A “split” prison sentence is a prison sentence that is split between in-custody and out-of-custody (on work release). A “suspended” prison sentence is a prison sentence that is not actually served unless the defendant violates a term of his probation sentence (PC 1170(h)). Misdemeanor PC 286(b)(1) Jail: If found guilty of misdemeanor sodomy of a minor, the defendant may face up to a one-year county jail sentence. PC 286(b)(1) Probation Sentence: A probation sentence is a period of supervision, as opposed to a prison sentence or a jail sentence. A probation sentence is allowed in both felony and misdemeanor cases of PC 286(b)(1), but in felony PC 286(b)(1) cases, the judge must find “special” circumstances that justify a probation sentence. The criteria of “special” circumstances is not required before the granting of a probation sentence in misdemeanor PC 286(b)(1) cases. Special Circumstances for Probation: As stated, the defendant may be granted a probation sentence after a felony conviction of sodomy with a minor, but only if the judge finds “special” circumstances exist in the case to justify a probation sentence. “Special” circumstances include, but are not limited to, the following: The lack of significant criminal history for the defendant, The lack of physical harm to the minor, The otherwise positive relationship between minor and defendant, The lack of desire for prosecution by the minor, A showing of remorse by the defendant, The ability, and likelihood, of the defendant to obey conditions of probation, The maturity level of the victim, and more. Probation Conditions: If the defendant is granted a probation sentence in any penal code 286(b)(1) case, the “conditions of probation” will include criminal protective orders against the defendant and in favor of the minor, restitution to the minor (for financial loss, if any), the payment of court fines and fees, the obligation to remain free from new criminal violations (misdemeanor or felony violations), and more. A violation of the condition of probation may result in the defendant being sentenced to prison. Note: A felony probation sentence is supervised by a felony probation officer. The felony probation officer will make “conditions of probation” that best fits the needs of protecting the community as well as punishing the defendant. A misdemeanor probation sentence is monitored by the court (informal probation), and there is generally no need to continue to check in with a probation officer. Work Release: If the defendant is granted a probation sentence in any PC 286(b)(1) cases, there is a good chance that the judge will include a jail sentence as a “term of probation.” However, unless otherwise stated, this jail sentence may usually be served alternatively on work release or house arrest, as opposed to being served in actual confinement. Good Conduct Credits: Incarceration for either felony or misdemeanor violations of sodomy against a minor may be reduced by up to fifty percent (50%) if the defendant conducts himself with good behavior while in custody. Example: Sam is convicted of having anal sex with a minor, a felony (PC 286(b)(1)). Sam is sentenced to prison for the low term of sixteen (16) months. While in prison, Sam conducts himself with “good behavior.” Result: Sam’s prison sentence will be reduced to eight (8) months due to his “good conduct” while in prison (PC 4019). Sex Offender Registration: Both felony and misdemeanor violations of PC 286(b)(1) require sex offender registration pursuant to penal code 290 (exception for PC 286(b)(1) and (b)(2) where the defendant and the sodomy victim are less than ten (10) years difference in age (PC 290(c)(3)). The length of sex offender registration is generally ten (10) years form the date of release from custody in misdemeanor PC 286(b)(1) cases [Tier One], and twenty (20) years from the date of release from custody in felony PC 286(b)(1) cases [Tier Two]. This length of time may be extended under certain conditions. For more information on sex offender registration related to sodomy with a victim eighteen (18) years of age or under, see PC 290 Requirements, Tier System for CA Sex Crimes, & Petition to Terminate Sex Offender Registration. Three Strikes Application: Sodomy with a person under the age of eighteen (18) is not a “strike” offense under California’s Three Strikes Sentencing Law. Additionally, penal code 286(b)(1) is not considered a “serious” or “violent” offense, as those terms are used in the California penal code at 1192.7 and 667.5, respectively. As a non-strike offense, multiple convictions of PC 286(b)(1) may be served concurrently. Example: David is convicted of three (3) felony counts of penal code 286(b)(1). David is sentenced to the “presumptive” prison term of two (2) years for each count (i.e., count 1 = 2 years; count 2 = 2 years, and count 3 = 2 years). The judge has discretion to order the defendant to serve the prison sentence related to each count “concurrently,” so that David serves no more than two (2) years in prison for all three counts. Note: In the above example, the judge has other sentencing options that may extend the length of prison for David, but the judge will not sentence David to “consecutive” sentencing. Sentencing options for PC 286(b)(1) crimes can be complex. For more information on PC 286(b)(1) sentencing options, contact our sex crimes criminal defense attorneys. State Restitution Fine: In addition to any punishment after a conviction for sodomy with a minor, the judge may assess a fine not to exceed seventy dollars ($70) against the defendant, with the proceeds of the fine to be paid to the State Restitution Fund. The court will take into consideration the defendant’s ability to pay, and no defendant shall be denied probation because of his or her inability to pay the fine (PC 286(m)). Additional Punishments: In addition to the punishments listed above, if found guilty of PC 286(b)(1), the defendant may face additional direct and indirect penalties and consequences, including the loss of a professional license, the loss of immigration status (deportation from the U.S.), the loss of military status (discharge from the military), the impeachment of defendant’s credibility in future legal cases, the loss of firearm rights (felony cases), the loss of family law rights to adopt, the loss of residency options, and more. PC 286(b)(1) Defenses Common defense to a charge of unlawful sodomy with a minor include insufficient evidence to prove the element of PC 286(b)(1), reasonable mistake of victim’s age (See Reasonable Mistake of Age), statute of limitations, coerced confessions, illegal search and seizure, impeachment of scientific evidence or witness credibility, failure to properly and timely Mirandize defendant before confession or statement against interest, jury nullification, and more. Defense of Consent: The defense of consent is not available in sodomy against a minor under eighteen (18) years of age. This is because a minor is not legally capable of consenting to anal sex in California, unless the minor is legally married to the defendant before the act of anal sex occurred. Therefore, even if the minor “agrees” to anal sex, that agreement is not valid in California. Reasonable Mistake of Age: It is a defense to a charge of PC 286(b)(1) if the defense can show that he was reasonably mistaken as the age of the minor and he believed that the minor was eighteen (18) years or older before he engaged in non-forceable anal intercourse with the minor. Example: Gary meets Veronica at a party. Gary is twenty (20) years old, and Veronica is seventeen (17) years old. Veronica misrepresents her age to Gary at the party and she tells him that she is eighteen (18). Gary believes Veronica is eighteen (18) based on her maturity level and her statement to the same. After a short dating period, and while Gary is still under the reasonable impression that Veronica is eighteen (18) years of age, Gary and Veronica engage in non-forceable anal sex. Result: Gary has a valid defense to a criminal charge of sodomy with a minor because he reasonably and honestly believed that Veronica was at least eighteen (18) years of age before he engaged in anal sex with Veronica. Reclassification of Crime: A defendant may request that his felony sodomy charges be reduced to misdemeanor charges in PC 286(b)(1) cases. The defendant may request this reclassification over the district attorney’s objection. A reclassification from a felony to a misdemeanor violation is proper where the interest of justice is best served for the reduction of the crime’s classification. Example: Jeff is charged with a felony violation of sodomy with a minor under eighteen (18) years of age. In his effort to convince the judge that his felony charge should be reduced to a misdemeanor charge, Jeff asserts to the court that he has no criminal history, the age of the victim is near the age of consent, there is no physical harm caused to the minor, the minor and the defendant were in a dating relationship, and the minor does not desire prosecution. Under these facts, the judge may use his or her discretion to reclassify the felony charge to a misdemeanor charge (PC 17(b)). For more information on the crime of sodomy with a minor under the age of eighteen (18) years of age, or California penal code 286(b)(1), contact our sex crimes criminal defense attorneys today for a free consultation. Our award-winning criminal defense trial attorneys have successfully helped hundreds of criminal defendants in the I.E. Our team of dedicated sex crimes criminal defense attorney handled all misdemeanor and felony violations of child molestation, lewd and lascivious act upon a child with force (PC 288(b)(1)), oral copulation, sexual penetration, prostitution, pandering, possession of child pornography, indecent exposure, rape by force or fear, sexual battery, continuous sexual abuse of a child (PC 288.5), and more. Call today! 909-913-3138 Related Articles (2025) Penal Code 288(a) Defense Penal Code 288.7 Defense Penal Code 266 Law & Defense PC 286(b)(1) Sodomy with Person Under Eighteen (18): Law, Punishment, & Defense

California’s Rape Shield Law forbids the introduction a victim’s past sexual conduct to prove the victim consented to sexual conduct with the defendant (i.e., sexual intercourse, oral copulation, sexual penetration, sodomy, etc.). Example: David is accused of raping Sarah. At trial, David wants to introduce evidence that proves Sarah has consensual sexual intercourse with many men. David wants this evidence introduced to show that Sarah consented to sexual intercourse with David because consent to sexual intercourse is a defense to David’s rape allegation. Result: David will not be allowed to introduce Sarah’s sexual proclivity to prove that she consented to sexual intercourse with David, because California’s Rape Shield Statute prohibits evidence of Sarah’s past sexual conduct to prove consent to sexual intercourse with David. Evidence Code 1103(c)(1) & 782: California’s Rape Shield Law is found at California evidence code 1103(c)(1) & EV 782. Per EV 1103(c)(1):… in any prosecution under PC 261 (rape), PC 264.1 ( rape in concert ), PC 286 (sodomy), PC 287 (oral copulation), or PC 289 (sexual penetration by object), opinion evidence, reputation evidence, and evidence of specific instances of the alleged victim’s sexual conduct, is not admissible by the defendant to prove consent by the alleged victim (EV 1103(c)(1) Abbrev.). Evidence code 1103(c)(1) also applies to any criminal allegation that alleges an assault with intent to commit, conspiracy to commit, or an attempt to commit either rape by force or fear (PC 261(a)), rape in concert (PC 264.1), sodomy (PC 286), oral copulation (287), or sexual penetration by foreign object ( PC 289 ). [EV 1103(c)(1) Abbrev.]. Note: Evidence code 1103 specifically excludes the Rape Shield Statute from precluding evidence of past sexual conduct to prove conformity with the alleged victim’s character if the defendant’s crime is alleged to have occurred in a local detention facility or California state prison (EV 1103 Abbrev.). Alleged Victim’s Dress: California’s Rape Shield Law specifically disallows evidence of how the alleged victim was dressed prior to sexual conduct to prove consent of the alleged victim (EV 1103(c)(2) Abbrev.). Exception: The defendant may introduce evidence of the alleged victim's dress (clothing) to impeach the evidence. Example: David and several of his friends are accused of rape in concert against Sarah. Sarah alleges that her clothes were ripped off of her during the gang rape. As a result, David may introduce evidence of Sarah's clothing that she wore during the alleged gang rape to prove that Sarah's clothing was not ripped, and therefore, she has misrepresented the facts. Important: California’s Rape Shield Statute does not preclude evidence of the alleged victim’s conduct, including sexual conduct, with the defendant to prove consent (EV 1103(c)(3) Abbrev.). Also, California’s Rape Shield Law does not prohibit evidence that is otherwise admissible under EV 782 to attack the credibility of the alleged victim. Impeachment Evidence: The criminal defendant can introduce evidence of the alleged victim’s sexual past to show that his or her testimony is not trustworthy. This is different than showing the alleged victim’s past to show that he or she consented to sexual conduct (EV 782). Example: David is charged with raping Sarah. At David’s trial, David is not allowed to introduce evidence that Sarah is a sexually promiscuous person, and therefore, Sarah likely consented to sexual intercourse with David. However, David can introduce evidence that Sarah was sexually promiscuous with David, and therefore, likely consent to sexual intercourse with David. Example: David is charged with forced oral copulation against Sarah. David is not allowed to introduce evidence that Sarah has a reputation of being a very sexual person to prove that Sarah consented to oral copulation with David. However, David can introduce evidence of Sarah’s past oral copulation with David to prove that Sarah consented to oral sex with David. Important: California’s Rape Shield Law does not preclude evidence of past sexual behavior with the defendant to prove consent to sexual conduct with the defendant. Witness Introduces Evidence: Evidence code 1103 and California’s Rape Shield Law do not preclude evidence of the alleged victim’s sexual conduct if the alleged victim introduces the evidence first. Example: David is accused of forced sodomy (anal sex) against Richard. At trial, David may not bring into evidence the past sexual proclivities of Richard to prove that Richard Consented to sodomy. However, if Richard first introduces evidence of his own past sexual proclivities, then David may introduce evidence of Richards past sexual proclivities to prove either Richard’s false testimony. Evidence to Show Motive or Source of Injury: California’s Rape Shield Law & EV 1103 do not preclude the introduction of evidence of the alleged sexual victim’s past sexual conduct if the evidence is used to prove something other than the alleged victim’s consent to sexual conduct. Example: David is on trial for the rape of Sarah. At trial, Sarah introduces evidence that David injured her vagina during David’s rape by force. In response, David may introduce evidence that Sarah had recent sex with other men (past sexual behavior of victim) to show the source of Sarahs’ vaginal injuries emanated from someone other than David. Evidence of False Allegations: California’s Rape Shield Law and EV 1103(c)(1) forbid the introduction of prior allegations of unlawful sexual conduct, by the alleged victim, against other persons who are not the defendant, unless the defendant can demonstrate that his or her alleged victim lied in those prior allegations. Example: David is on trial for forced sexual penetration by foreign object against Sarah. At trial, David wants to introduce evidence that shows Sarah has previously made false allegations of sexual violence against her by other men, and therefore, Sarah is likely making false allegations against David. Per CA’s Rape Shield Law, David may not introduce this evidence unless he can show the court that Sarah’s prior allegations were false. Motion to Introduce: The criminal defense attorney who wants to introduce evidence of past sexual behavior, conduct, proclivities, etc., or the complaining witness (alleged victim), must bring the issue to the court’s attention before attempting to introduce the evidence at trial. This requirement of EV 1103 is to protect victims of sexual abuse from surprise at trial of irrelevant and embarrassing evidence. The motion to include or exclude EV 1103(c)(1) evidence is filed under protective seal and the court must make an order as to the reasoning for admitting or denying the evidence. To learn more about California “Rape Shield” Laws and CA Evidence Codes 1103, 782 & 702, and how these laws apply to the defense of sex crimes criminal charges in California, contact our sex crimes criminal defense lawyers today for a free consultation. Our team of highly successful sex crimes criminal defense lawyers have helped thousands of criminal defendants charged with every type of misdemeanor and felony sex crime in California. We can help you too. 909-913-3138 Related Posts Lewd Acts Law & Defense Oral Cop on Intoxicated Victim Static-99 Explained CA Sex Crimes List Polygraph Exams in Sex Cases Possession of Child Porn Law California Rape Shield Law (Evidence Code 1103, 782 & 702). Sex Crimes Criminal Defense Lawyers Explain CA Rape Shield Law & Exceptions.

In California, a person who believes that he or she has witnessed forced child molestation of a child under the age of 14, as defined in penal code 288(b)(1), must notify a law enforcement officer of his or her observation (PC ss152.3(a) Abbrev.). The notice required per PC 152.3(a) is satisfied if the person who allegedly witnessed the child molestation by force either notifies, or attempts to notify, law enforcement, by either telephone, or any other means (PC 152.3(c) Abbrev.). The duty to report forced child molestation does not apply to persons who otherwise have privileged relationships, such as attorney to client or husband and wife to each other (PC 152(b) Abbrev. & Extrapolated). Blood Relationship: The duty to report witnessed forced child molestation does not apply to a person who is blood-related to the alleged child molester (i.e., spouse, parent, child, brother, sister, grandparent, grandchild, etc.) [PC 152.3(e)(1)]. Note: A parent has a duty to protect his or her child. Therefore, if the parent of a child witnesses another person sexually abuse his or her child, including the other parent of the child, then the parent who witnesses the sexual abuse must take all necessary steps to protect that child from future abuse, even though they do not have a duty to report the witnessed child molestation (PC 152.3 & PC 273a(a)). Example: John witnesses his friend, Chester, sexually molest Jane Doe, a twelve-year-old girl. John does not want to report what he witnessed because he fears that Chester will be arrested and charged with felony child molestation crimes; therefore, John does not report Chester’s child molestation. Result: If John’s lack of reporting is discovered, then John may be charged with penal code 152 violations. PC 152.3 Penalty Failure to report forced child molestation is classified as a misdemeanor. If found guilty of PC 152.3, the defendant may face up to six (6) months in the county jail and suffer a of not more than $1,500 (PC 152(d) Abbrev.). Probation Sentence: A defendant who is convicted of failure to report child molestation, as provided in PC 152.3(a) above, may be placed on probation, as opposed to suffering a jail sentence. A probation sentence for PC 152.3 is a period of supervision, either by the court, or by a probation officer. Note: A probation sentence for any violation of PC 152.3 is not guaranteed. Whether the defendant receives a probation sentence after a PC 152.3 conviction depends on many factors, including the defendant’s criminal history, the facts and circumstances of the offense, the terms of any negotiated plea bargain agreement between the district attorney and the defendant, and more. Sex Offender Registration: Failure to report another person’s alleged child molestation is not a crime for which sex offender registration is required; however, if the court finds that the defendant derived sexual gratification when he or she witnessed the child molestation (and failed to report the child molestation), then the judge has discretion to order sex offender registration for the defendant for up to ten (10) years (PC 290.006). Mandated Reporters: Persons who are mandated to report suspected child abuse and child neglect, including suspected child molestation, may be charged with a violation of PC 152.3 for any failure to report witnessed child molestation. The criminal punishments related to a PC 153.3 conviction are in addition to any penalties and punishments suffered by the mandated reporter by virtue of his or her status as such (i.e., professional licensing consequences for therapist, nurses, doctors, teachers, etc.). Other Penalties: In addition to a possible jail or probation sentence, if found guilty of failure to report child molestation, the defendant could suffer other direct and indirect consequences, such as professional licensing consequences (i.e., doctors, lawyers, teachers, etc.), immigration consequences for non-US citizens, military service consequences, court fines and fees, criminal protective orders, civil lawsuits , and more. PC 152.3 Defenses Common defenses to a PC 152.3 criminal charge include reasonable mistake as to what the defendant witnessed (PC 152.3(e)(2), failure to report for the defendant own safety (PC 152.3(e)(3), coerced confession of the defendant, statute of limitations (one year from the date of the alleged child molestation offense), and more. Example: John witnesses a paramedic touching a child’s genitals. John is not a paramedic, and he reasonably does not know of the child’s injuries or whether the paramedic needs to touch the child's genitals for the child's medical treatment. Later, the paramedic is arrested for his actions and charged with a violation of PC 288(b)(1) [ Lewd Act on a Child by Force ]. Result: John did not know reasonably that what he witnessed was child molestation; therefore, he should not be charged with penal code 152.3. Example II: John witnesses his friend, Chester, sexually molest a child. John wants to report what he witnessed, but Chester has threatened to kill John’s family if John reports the witnessed child molestation. Result: John is under duress to not report Chester’s child molestation; therefore, John should not be found guilty of failure to report child molestation. PC 152.3 does not apply to all sex offense, even the alleged sex offenses appear to be child molestation in nature. For example, if John witnesses Chester lures an underage girl to Chester’s house for the purpose of having sex with the minor (i.e., "statutory rape"), then John does not have a duty to report Chester’s attempts. PC 152.3 law is concerned with forced child molestation of a minor under 14 (i.e., Lewd Act with a Child by Force [ PC 288(b)(1) ]. Note: PC 152.3 deals with the duty to report forced child molestation of a child under 14, but it also covers other crimes not discussed here, including the duty to report the witnessed murder of child under 14 (PC 152(a)(1)), or rape of a child under 14 (152(a)(2). If you have been charged with a violation of the duty to report child molestation by force, or penal code 152.3, contact our sex crimes criminal defense attorneys today for a free consultation. Our team of high-experienced and award-winning sex crimes defense attorneys have successfully defended against the toughest sex crimes allegations, including PC 288(a) , PC 288.5 , PC 288(b) , and much more. In-office, first contact consultations are free. Call today! 909-913-3138 Related Article (2025) Continuous Sexual Abuse of Child PC 288(b)(1) Lewd Act on a Child by Force PC 288(a) Lewd Act on a Child Under 14 Statute of Limitations for Sex Crimes PC 152.3 Duty to Report Child Molestation

California penal code 266j makes it a crime to intentionally offer a child, who is under the age of 16, to another person so that the other person can commit a lewd and lascivious act upon the child. PC 266j covers several situations, all of which are illegal per PC 266j, including: Transport a child to another person for the other person to commit a lewd act against the child, Provide or offer a child to another person for the other person to commit a lewd act against the child, Make a child available to another person for the other person to commit a lewd act against the child, Persuade a child to engage in a lewd act with another person, and Give a child to another person for the other person to commit a lewd act against the child. Age of Victim: Per penal code 266j, the crime is committed when the defendant makes available, offers, gives, transports, provides, or encourages a child, who is under the age of sixteen (16), to commit a lewd act with another person. When the child is sixteen (16) years of age or older, PC 266j does not apply. However, other sex crimes might apply to the same situation (i.e., solicit to commit a sex offense, conspiracy to commit a sex offense, pimping, human trafficking, pandering, etc.). Example: Maria offers the sexual favors of her niece, sixteen (16) year old Marisal, to Maria’s drug dealer, Jose, in exchange for drugs from Jose to Maria. As a result, Maria will be charged with human sex trafficking of a minor ( PC 236.1 ), but PC 266j does not apply because Marisal is over the age of fifteen (15). Lewd Act Required: A lewd act, sometimes referred to as a lewd and lascivious act, is more clearly defined at PC 288(a) . For brevity, Lewd act essentially means unlawful sexual conduct, usually committed against or towards a child. A lewd act is committed when the defendant touches a child with sexual intent, regardless of whether the touching occurs over the clothes of the child or on the genitals of the child. It is the sexual intent of the child that makes the crime. Example: Grandpa touches his granddaughter’s face with sexual intent (intent to arouse either himself or his granddaughter). As a result, grandpa is guilty of lewd behavior against his granddaughter. Lewd Conduct (i.e., Lewd Act) occurs where there is sexual intent in any of the following situations: defendant touches another person with sexual intent, defendant directs another person touch himself or herself with the sexual intent to either sexually arouse the defendant or sexually arouse the other person. Example: Sarah transports her fifteen (15) year old daughter, Susie, to a brothel, where Susie is to strip and sexually touch herself for private members of the brothel (Lewd Act). As a result, Sarah may be charged with a violation of penal code 266j (transporting a child for a lewd act) or pandering or a minor (providing minors to a house of prostitution).   Specific Intent Required: Penal code 266j is violated when the defendant act with specific intent to offer, give, transport, provide, or encourage a child under the age of sixteen (16) to commit a lewd act with another person (or have a lewd act committed upon the child). Example: David transports his fifteen (15) years old daughter, Kristie, to modeling studio. Unbeknownst to David, the modeling studio turns out to be a front to produce child pornography (Lewd Conduct Involving Minors). As a result, David is not guilty of PC 266j because he did not intend to transport his daughter to be involved in a lewd act. Important: Per PC 266j it is immaterial whether the child engaged in a lewd act with another person for the crime to be complete. It is the act of transporting, giving, encouraging, offering, or making available the child for a lewd act that is unlawful. If the child actually engages in lewd behavior after PC 266j is committed, then additional charges may be levied against the defendant. Example: Mark offers his thirteen (13) year old daughter, Carrie, to Fred, for $100, so that Fred may receive a sexual massage from Carrie. As a result, Mark may be charged with PC 266j, and both Mark and Fred may be charged with PC 288(a) Lewd and lascivious act upon a child under fourteen (14), conspiracy to commit PC 288(a), solicitation to commit PC 288(a), pimping and human trafficking. PC 266j Penalties Felony Classification: PC 266j is classified as a felony and it may not be reduced to a misdemeanor under any circumstance. Prison Sentence: A violation of penal code 266j may result in a prison sentence of up to three (3), six (6), or eight (8) years, depending on the circumstances of the case and the defendant’s criminal history. Probation Sentence: A probation sentence is not allowed after a conviction for penal code 266j. Furthermore, incarceration after conviction for PC 266j must be served in a California state prison, as opposed to a local county jail, and no part of that prison sentence may be split (partially served out of prison on work release) or suspended (no served subject to conditions of the court). Three Strikes Application: The crime of transporting or making available a child for a lewd act is not a violent or serious offense that is listed in either PC 667.5 or PC 1192.7, respectively. This means that PC 266j is not a “strike” offense under California’s Three Strikes Sentencing Law. However, if the defendant has suffered two prior strike offenses, and he is then convicted of violating penal code 266j, the PC 266j conviction may be used to trigger a third strike, which will result in twenty-five (25) years to life sentence. CIMT: Transporting, offering, providing, giving, encouraging, or making a child available to commit a lewd act is a crime involving moral turpitude . A crime involving moral turpitude conviction, including any conviction for PC 266j, will result in deportation from the United State for non-US citizens. Professional licensing and military service opportunities will also be negatively affected with the arrest or conviction of penal code 266j. PC 290 Registration: A conviction for PC 266j will require the defendant to register as a sex offender with local law enforcement, the Department of Justice, and other authorities for life (Tier Three). For more information, see PC 290 Registration Requirements . Firearm Prohibition: A conviction for transporting, providing, encourages, offering, giving, or otherwise making available, a child under the age of sixteen (16), to commit a lewd act, will result in a lifetime firearm, firearm ammunition and body armor prohibition (PC 29800). Additional Penalties: In addition to the penalties listed above, if the defendant is found guilty of PC 266j, he or she will be ordered to pay fines and fees, suffer criminal protective orders (CPO), suffer possible civil lawsuits, ordered to pay restitution to the child and any other victims, and more. Note: Per PC 266K(b) Upon the conviction of any person for a violation of Section 266j…, the court may, in addition to any other penalty or fine imposed, order the defendant to pay an additional fine not to exceed twenty-five thousand dollars ($25,000) (PC 266k(b) Abbrev.). PC 266j Defenses Common defenses to penal code 266j charges include statute of limitations (usually expires when the child turns twenty-eight (28) years old), coerced confession, mistake of fact, entrapment, illegal search and seizure, insufficient evidence, and more. For more information on defenses to sex crimes, see Sex Crimes Defense Strategies . If you or a loved one is charged with providing, transporting, offering, giving, or otherwise making a child available for lewd act (PC 266j), contact our sex crimes criminal defense lawyers today for a free consultation. Our team of highly successful sex crimes defense lawyers, including winning trial lawyers, defend all misdemeanor and felony sex crimes charges in the Inland Empire, Orange and Los Angeles County, including sexual battery, prostitution, possession of child pornography, rape by force or fear, indecent exposure, child molestation, annoy or molest a child , and more. Call today. 909-913-3138 Related Topics Contract Sex Act with Child Operating a Brothel Law Solicit Sex Crime Offense PC 288.2 Law & Defense Terminate PC 290 Registration Lewd Act with Force & PC 288(B) Oral Copulation Crimes Attempted Rape Defense PC 266j Transport or Make Child Available for Lewd Act. Sex Crimes Criminal Defense Lawyers Explain Penal Code 266j.

Information on the crime of sodomy by force or fear upon a child under fourteen (14) years of age is found at California penal code § 286(c)(2)(B). This summary clarifies the law, punishment, and common defenses associated with PC 286(c)(2)(B) charges. For further information, contact our sex crimes criminal defense attorneys . PC 286(c)(2)(B) Law Per PC 286(c)(2)(B), any person who commits an act of sodomy with another person who is under fourteen 14 years of age when the act is accomplished against the victim’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, is guilty of sodomy by force or fear upon a child under fourteen (14) by force or fear (PC 286(c)(2)(B) Abbrev.). Sodomy Defined: Sodomy is sexual conduct consisting of contact between the penis of one person and the anus of another person. Any sexual penetration, however slight, is sufficient to complete the crime of sodomy (PC 286(a)). Other terms for sodomy include “anal intercourse” [Medical] and “anal sex” [Colloquial]. Note: Ejaculation is not required to prove sodomy by force or fear upon a child under fourteen (14) years of age (Calcrim 1030). Force Defined: “Force” as used in PC 286(c)(2)(B), is accomplished when the defendant uses sufficient physical force to overcome the child’s will (Calcrim 1030). Fear Defined: “Fear” as used in PC 286(c)(2)(B), is accomplished if the child is actually and reasonably afraid of physical harm to himself or herself, or to someone close to himself or herself (Calcrim 1030). The reasonableness standard would be that of child of similar age and mental ability. Duress Defined: As used in PC 286(c)(2)(B), “duress” means a “direct or implied threat of force, violence, danger, hardship, or retribution that causes a reasonable person to do something that he or she would not otherwise do (Calcrim 1030). Note: When deciding whether sodomy was accomplished by duress, the jury must consider all the circumstances of the case, including the age of the alleged victim and the relationship between the victim and the defendant. Menace Defined: “Menace” as used in PC 286(c)(2)(B), means a threat, statement, or act showing an intent to injure someone. PC 286(c)(2)(B) Punishment Prison Sentence: A conviction for sodomy upon a child under fourteen (14) years of age by force or fear will result in a prison sentence of either nine (9), eleven (11), or thirteen (13) years, depending on the circumstances of the case and the defendant’s criminal history. Triad Sentencing: After conviction for PC 286(c)(2)(B), the judge will order the defendant to a prison sentence of either the low term of nine (9) years, the mid-term of eleven (11) years, or the high term of thirteen (13) years. This is known as the “triad sentencing” for PC 286(c)(2)(B) crimes. Note: The sentencing court will consider all “mitigating” and “aggravating” factors related to the case when deciding what prison term best fits the interest of justice in a PC 286(c)(2)(B) case. State Prison Offense: Incarceration related to PC 286(c)(2)(B) must be served in a California state prison, as opposed to a county jail (PC 1170(h)). No Split Prison Sentence: No “split” prison sentence is allowed after a conviction for sodomy by force or fear upon a child under fourteen (14) years of age. A “split” prison sentence is a sentence that is served partially in prison and partially out of prison, such as on work release or house arrest. No Suspended Prison Sentence: No “suspended” prison is allowed after a conviction for PC 286(c)(2)(B). A “suspended” prison sentence is a prison sentence that is not served unless the defendant violates a condition of his out-of-prison status. A “suspended” prison sentence is often called a “joint suspended” prison sentence. Reduced Prison Credits: A prison sentence after a conviction for sodomy by force or fear upon a child under fourteen (14) years of age is subject to “reduced prison credits” for good behavior. The maximum amount of good behavior credits that may be earned after a PC 286(c)(2)(B) conviction is fifteen percent (15%) [i.e., defendant must serve at least eighty-five percent (85%) of his prison sentence related to a PC 286(c)(2)(B) conviction. Probation Ineligible: A probation sentence is not available after a conviction for sodomy by force or fear upon a child under fourteen (14) years of age (PC 1203). Life Parole after Prison: Parole is a period of supervision after an early release from prison. Parole after a PC 286(c)(2)(B) conviction may be life, subject to early release from parole under certain conditions after twenty (20) years. Parole length does not begin unless and until the inmate is released from prison early and onto parole. California Strike Offense: Sodomy by force or fear upon a child less than fourteen (14) years of age is a “strike” offense under California’s Three Strikes Sentencing Law. PC 286(c)(2)(B) is considered a violent and serious offense per California penal codes 667.5(c) and 1192.7(c), respectively. Sex Offender Registration: A conviction for sodomy upon a child under 14 years of age requires the defendant to register as a sex offender for life (PC 290(d)). For more information, see Sex Offender Registration Requirements in CA . Moral Turpitude Crime: PC 286(c)(2)(B) is a “crime involving moral turpitude.” A crime involving moral turpitude is considered a ‘crime against nature,’ or a crime that is morally wrong. Crimes involving moral turpitude, including a conviction for sodomy against a person under fourteen (14) years of age, can lead to severe negative consequences related to the following: Military Service (Discharge or denial of entry), Immigration Status (Deportation, denial of entry into the U.S., and/or denial of naturalization), Professional License (Denial, revocation, or suspension of professional license [i.e., law, medical, dental, teacher, childcare provider, etc.]), Impeachment of Character (Impeached credibility in future criminal and civil proceedings). Criminal Protective Order: A conviction for penal code 286(c)(2)(B) will generate a criminal protective order against the defendant and in favor of the child / victim. When the child / victim is the defendant’s own child, the criminal protective order may be modified for prison visit between the child and defendant, but only if the child victim desires this change and reaches an age sufficient to protect himself or herself from further emotional abuse from the defendant. More Punishment: In addition to the punishment(s) listed, if found guilty of sodomy by force or fear upon a child less than 14, the defendant will lose his firearm rights, possibly be sued by the child victim, loss his right to vote while in prison, be ordered to pay restitution to the child victim for any financial loss, be restricted in travel or residency, and more. Note: Neither a Certificate of Rehabilitation , nor an Expungement of Criminal Record is available after a conviction for PC 286(c)(2)(B). PC 286(c)(2)(B) Common Defenses Common defenses related to sodomy by force or fear upon a child under fourteen (14) years of age include insufficient evidence to prove sodomy occurred, evidence or motive to fabricate by the victim or victim’s parent or guardian, impeachment of child / victim’s statements or related scientific evidence, coerced confession, illegal search and seizure of evidence, failure to properly Mirandize defendant before interrogation, insanity defense, and alibi defense. Defense of Consent: The defense of consent to sodomy does not apply in PC 286(c)(2)(B) cases. This is because a child under fourteen (14) years of age cannot legally consent to sexual conduct, including anal intercourse. Statute of Limitations Defense: The statute of limitation is a time limit by which the district attorney must bring formal charges against the defendant in a criminal case. The statute of limitations is technically available in PC 286(c)(2)(B) cases, but it is rarely used in practice as the time limitation is quite long in most PC 286(c)(2)(B) cases, unless a mandated reporter or law enforcement agency knew of the allegations and failed to timely investigate, and the defendant can demonstrate this fact. For more information, see Criminal Statute of Limitations in CA Sex Crimes . Note: The statute of limitations for felony sex crimes is complex. The statute of limitations for felony sex crimes It is not a set amount of time like it is in most non-sex cases. For expanded information on defenses to sex crimes, see Criminal Defense Strategies in CA Sex Crimes . If you or a loved one is charged with the crime of sodomy by force or fear upon a child under fourteen (14) years of age, or California penal code section 286(c)(2)(B), contact our sex crimes criminal defense attorneys today for a free consultation. Our award-winning sex crimes defense lawyers have helped hundreds of defendants charged with misdemeanor and felony sex crimes in the Inland Empire. We handle all sex crimes, including sex with an inmate (PC 289.6), lewd and lascivious act upon a child under fourteen (14) years of age ( PC 288(a) ), indecent exposure ( PC 314 ), possession of child porn ( PC 311.1 ), sexual battery ( PC 234.4(e)(1) ), prostitution ( PC 647(b) ), oral copulation upon intoxicated person ( PC 287(i) ), sexual penetration by foreign object ( PC 289 ), unlawful sexual intercourse ( PC 261.5(d) ), and more. Call today! 909-913-3138 Further Reading (2025) PC 243.4 Sexual Battery PC 261.5 Statutory Rape PC 647(j)(4) Revenge Porn PC 288(i) Lewd Act w/ Injury PC 286(c)(2)(A) Information PC 286(c)(2)(B) Sodomy by Force or Fear Upon a Child Under Fourteen (14) Years of Age: Law & Defense

Information on the crime of employing or using a minor to sell or distribute child pornography is found at California penal code section 311.4. The following is a summary of the law, penalties and common defenses related to PC 311.4 crimes. First, there are various crimes that fall under the general PC 311.4 heading, depending on the specific allegations levied against the defendant. The law, penalties and defenses vary depending on the specific PC 311.4 allegations. PC 311.4 Laws (Abbrev.) PC 311.4(a):   A person who, with knowledge that a person is a minor…, hires, employs, or uses the minor to sell, make or distribute child pornography, is guilty of hiring, employing or using a minor to sell, make, or distribute child pornography [PC 311.4 Abbrev.]. PC 311.4(b): A person who knowingly promotes, employs, uses, persuades, induces, or coerces a minor under eighteen (18) to engage in, or assist others to engage in, production of sexual conduct involving minors, for commercial use, is guilty PC 311.4(b) [PC 311.4(b) Abbrev.]. PC 311.4(c):   A person who knowingly promotes, employs, uses, persuades, induces, or coerces a minor under eighteen (18), or any parent or guardian of a minor under eighteen (18), who is under their control who permits the minor to engage in, or assist others to engage in, sexual conduct, is guilty of Penal Code 311.4 (PC 311.4 Abbrev.). Sexual Conduct Defined: The term “sexual conduct” as used in PC 311.4 laws, means employing a minor to perform in ‘actual or simulated sexual intercourse, oral copulation (oral sex with vagina, penis, or anus), anal intercourse (sodomy), masturbation, bestiality (sexual conduct animals), sexual sadism or masochism, sexual penetration by object, or lewd and lascivious acts (PC 311.4(d) Abbrev.). When a defendant is charged with employing or using a minor to produce child pornography, the defendant may also be charged with any crimes related to that production. Example: John directs a minor to engage in sexual sadomasochism on film. John then retains the child pornography film for his personal collection. Result: John may be charged with employing a minor to produce child porn (PC 311.4). John may also be charged with possession of sadomasochistic material involving a minor (PC 311.11(C)(2)). PC 311.4 Penalties PC 311.4 Jail or Prison Sentence The jail or prison sentence (or probation sentence) related to PC 311.4 crimes vary depending on the specific allegation. These jail or prison sentences include: PC 311.4(a) Jail or Prison Sentence: Misdemeanor jail sentence of up to one year, or a fine of up to two thousand dollars ($2,000), or both a jail sentence and fine, upon a misdemeanor conviction of PC 311.4(a)-M. A felony prison sentence of up to three upon a felony violation of PC 311.4(a)-F. Wobbler Offense: PC 311.4(a) is considered a “wobbler” offense. This means that penal code 311.4(a) may be charged either as a misdemeanor, or alternatively as felony, depending on the facts and circumstances of the case. PC 311.4(b) Prison Sentence: Conviction of the crime of employing or using a minor per penal code 311.4(b) may result in a felony prison sentence of up to three (3), six (6), or eight (8) years, depending on the facts and circumstances of the case. A probation sentence is not available in PC 311.4(b) cases. PC 311.4(c): Prison Sentence:  Conviction of the crime of using a minor to pose or model for child pornography (PC 311.4(c)) may result in a felony prison sentence of up to sixteen (16) months, two (2) years, or three (3) years in prison. A probation sentence is not available in PC 311.4(c) cases. Probation Sentence: A probation sentence is a period of supervision, as opposed to a jail or prison sentence. A probation sentence is available after a misdemeanor or felony conviction of penal code 311.4(a), but there is no guarantee that the defendant will receive a probation sentence after a conviction for this criminal charge. Whether a probation sentence is granted to the defendant after a conviction for PC 311.4(a) depends on the facts and circumstances of the case, including the presence of any mitigating circumstances related to the case, the defendant’s criminal history, the terms of a negotiated plea bargain, if any, between the defendant and the district attorney, and more. Note: Probation sentences are not available for convictions related to PC 311.4(b) or 311.4(c) crimes. Also, any probation related to a PC 311.4(a) conviction is no less than two (2) years (PC 1203.2), unless the defendant and the minor are domestically related, in which case, the minimum probationary period is three (3) years (PC 1203.097). PC 1170(h) Sentencing: If the defendant is found guilty of any PC 311.4 crime, and he or she does not receive a probation sentence, then the defendant must be incarcerated in a California state prison, as opposed to a local county jail. If the defendant is not granted probation in a PC 311.4 case, then no part of the defendant’s prison sentence may be split (served partially in prison and partially out of prison on work release) or suspended (not served subject to certain conditions). Example: David is convicted of a felony violation of employing a minor to distribute child pornography (PC 311.4(a)). David is not granted a sentence of probation. Therefore, David must be incarcerated in state prison, and he must serve no less than sixteen (16) months of that prison sentence (No portion of David’s sentence may be served on work release or suspended). Sex Offender Registration: Per California law, a conviction for any PC 311.4 crime will result in a duty to register as a sex offender pursuant to PC 290. A misdemeanor violation of PC 311.4(a) requires the defendant to register as a sex offender for no less than ten (10) years from the date of conviction. A felony violation of any PC 311.4 requires the defendant to register as a sex offender for no less than twenty (20) years from the date of conviction. Note: The duty to register as a sex offender does not automatically expire after the minimum period of registration is met. Rather, the defendant must bring a petition to terminate sex offender registration after the minimum period of sex offender registration is met (PC 290.5). For more information, see Sex Offender Registration Requirements . Work Release: In some misdemeanor violations of PC 311.4(a), the defendant may be ordered to serve a work release sentence, as opposed to a jail sentence. A work release sentence may be made part of either a probation sentence, or as an alternative to a jail sentence, but this only applies to misdemeanor violations of penal code 311.4(a). Firearm Prohibition: A felony violation of any PC 311.4 crime will result in a lifetime firearm ban. This includes a prohibition from owning or possessing firearms, firearm ammunition, or body armor. In some cases, the defendant may apply to have his or her firearm rights restored after a felony conviction of PC 311.4. Note: Firearm prohibition does not apply to a misdemeanor violation of PC 311.4(a). Three Strikes Application: A felony violation of any PC 311.4 crime is not, by itself, a serious or violent felony, as those terms are defined in the California penal code at sections 1192.7 and 667.5, respectively. This means that felony PC 311.4 crimes are not “strike” offenses within California’s Three Strikes Sentence Law. However, if the defendant has previously suffered two prior strike offenses, and he or she is then convicted of a felony PC 311.4 violation, then the PC 311.4 violation may be used to trigger a third strike under California law, which could lead to a life sentence upon conviction. CIMT: All misdemeanor and felony violations of PC 311.4 are considered “crimes involving moral turpitude.” A crime involving moral turpitude, or CIMT, is any crime that involves immoral behavior or deceit. CIMTs, including all misdemeanor and felony violations of PC 311.4 carry severe direct and indirect consequences that are above and beyond any jail or prison sentence. These consequences include, but are not limited to, immigration consequences for non-US citizens (deportation and denial of reentry into the U.S.), professional licensing consequences for licenses professionals (i.e. lawyers, doctors, dentists, therapists, teachers, etc.), and military service consequences (denial of, or discharge from, any military service). Parole After Prison: Parole after prison for any PC 311.4 crime is for three years from the date of release. Parole terms and conditions are monitored by local probation officers as part of a Post-Release Community Supervision program (PRCS). Violations of parole can lead to either “flash incarceration” for up to ten (10) days, or up to one (1) year in prison, depending on the nature of the alleged parole violation. For more information, see Parole Violations & CA Sex Crimes Cases . Additional Penalties: All misdemeanor and felony violations of any PC 311.4 crime can carry penalties that in addition to any jail, prison, or probation sentence. These additional penalties include civil lawsuits, criminal protective orders (CPO), harsh probation or parole terms, loss of scholarship, court fines and fees, damage to reputation, and more. PC 311.4 Defenses Every PC 311.4 case is different in terms of the alleged facts and circumstances that surround the offense. Therefore, the defense to any PC 311.4 can change from one case to another. Nevertheless, some defenses tend to be common to PC 311.4 cases, these include: Statute of Limitations: The statute of limitations is a time limit by which the district attorney must bring formal allegations or forever lose the ability to prosecute the case. In PC 311.4 cases, the statute limitations are ten (10) years from the date of the alleged offense. This ten-year statute of limitations applies to both misdemeanor and felony violations of penal code 311.4 (PC 799-805). Note: A violation of any other law that is related to the PC 311.4 allegation might have a different statute of limitation (SOL) period. Example: Joshua uses a minor to produce child pornography films for Joshua’s private collection. In the child pornography films, an adult commits a lewd and lascivious act upon a child under fourteen years of age. Result: The SOL for the crime of using a minor to make child porn is ten (10) years, but the lewd act crime depicted in the child porn carries a much longer SOL (PC 288(a) & PC 803(f)). Reasonable Mistake of Age: A reasonable mistake as to the age of the minor may be defense in any PC 311.4 case. The reasonable mistake must be both subjective (truly held belief by the defendant) and objective (reasonable mistake would be made by an average person in the same or similar situation). Enumerated Exception: PC 311.4 violations do not apply where the minor that is used, directed, modeled, depicted, or otherwise employed in pornography is either legally emancipated from his or her parents or guardians, or the legally married spouse of the defendant (PC 311.4(e) Abbrev.). Other common defenses include insufficient evidence to prove the defendant committed the alleged offense, illegal search or illegal seizure of evidence that may not be used against the defendant, coerced confession of the defendant, alibi defense, and more. For more information, see Defenses to Sex Crimes Allegations . No Defense of Consent: A minor under the age of eighteen (18) cannot legally consent to be employed, used, directed, modeled, or otherwise participate in the making or distribution of sexual conduct (child pornography). This is true regardless of whether sexual conduct is real or simulated. There is an exception for legally emancipated minors and legally married minors (PC 311.4(e)). Plea Bargain: Plea bargaining is common in most criminal cases, including PC 311.4 cases. A Plea bargain is an agreement to plead guilty to a crime in exchange for a lighter sentence, or a lighter charge, or both. Example: John is charged with a PC 311.4(b) [Employ Minor for Child Pornography for Profit]. John is facing up to eight (8) years in prison if he is found guilty of crime. However, the district attorney offers John the opportunity to plead guilty to a PC 311.4(a), a lighter offense, with a predetermined prison sentence of sixteen (16) months, in exchange for John’s promise to plead guilty to newly alleged offense. Plea bargain is not a true defense in the sense that the defendant is found not guilty, or the criminal charges are dismissed altogether. Rather, plea bargaining is a quasi-defense tactic where the evidence of guilt against the defendant is strong, and the reality of a greater prison sentence is likely if the defendant were to proceed to trial and be found guilty of the offense. 17(b) Option: In felony PC 311.4(a) cases, the defendant may petition the court to have his felony PC 311.4(a) charges reduced to misdemeanor PC 311.4(a) charges through a “17(B) Motion to Reduce.” A 17(B) Motion may be brought at any time in the criminal prosecution process. A 17(B) motion to reduce a felony to a misdemeanor may be brought, with or without, a plea bargain agreement. When there is a plea bargain agreement to plead guilty to a misdemeanor violation of PC 311.4(a), as opposed to a felony violation of PC 311.4(a), then the case is resolved, and the defendant is convicted of a misdemeanor offense. However, the defendant may petition the court to reduce his felony PC 311.4(a) charges to misdemeanor charges even over the objection of the district attorney and without a plea bargain agreement in place. If the defendant is successful in his PC 17(B) motion in this situation, then the prosecution continues as a misdemeanor charge and the final disposition of the case remains to be seen. Post-Conviction Options: After a conviction for any PC 311.4 violation, the defendant may have several post-conviction options, including a post-conviction 17(B) motion to reduce a felony PC 311.4(a) charge to a misdemeanor, appeal the conviction, motion to withdraw a guilty plea (PC 1018), motion to expunge the criminal conviction, or motion to terminate a probation sentence early and petition to terminate sex offender registration . To learn more about the crime of employing a minor to sell, participate in, or distribute obscene matter depicting a minor (Child Pornography), or penal code 311.4 crimes, contact our sex crimes criminal defense lawyers today for a free consultation. Our top-rated sex crimes criminal defense lawyers have successfully handled thousands of misdemeanor and felony sex crimes defense, including penal code 311.4 charges. We can help you too. Call today! 909-913-3138 Recent Articles (2025) PC 285 Incest Law & Defense Revenge Porn & PC 647(j)(4) Sexual Battery Law & Defense PC 288.5(a)-F Law & Defense PC 311.4 Crimes: Sex Crimes Criminal Defense Lawyers Explain Penal Code 311.4 Law & Defense