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Military diversion is a legal procedure whereby a criminal defendant might have his criminal charges avoided (dismissed) if he is, or was, as a member of the United States service, he suffers from a mental disorder as a result his military service, and the criminal charges are related to the mental disorder from which he suffers as a result of his military service. Note: This article is brief overview of military diversion as it applies to California misdemeanor sex crimes. Diversion in General Essentially, to ‘divert’ criminal charges, means to circumvent, or 'go around,' the prosecution process at an early stage of the proceedings (pretrial). To do this, the court suspends criminal proceedings and grants the defendant time to complete probation-like terms (without jail). If the defendant successfully completes a 'diversion program,' his criminal charges are dismissed, and he his criminal record reflects a non-arrest for the criminal charges (with limitations). Note: Diversion procedures are available in different forms in California, including judicial diversion , mental health diversion , drug diversion, and so on. Different diversion programs have different requirements and limitations. Note: Unlike Judicial Diversion or Mental Health Diversion, Military Diversion may apply to misdemeanor sex crimes, including sex crimes for which sex offender registration pursuant to penal code 290 would otherwise be required. Military Diversion Law (PC 1001.80) Per California PC 1001.80, a criminal defendant who is charged with a misdemeanor might have his criminal charges dismissed, if: The defendant was, or currently is, a member of the US military (PC 1001.80(a)(1)) The defendant may be suffering from sexual trauma, traumatic brain injury (TBI), post-traumatic stress disorder (PTSD), substance abuse, or mental health problems as a result of his or her military service (PC 1001.80(a)(2) Abbrev.). Nexus to Crime PC 1001.80 law does not mention a requirement that the defendant’s criminal conduct be related to his military service. Nevertheless, if there is no nexus, or close relationship, between the crime and the mental disorder suffered by the defendant as a result of his military service, then the court will not likely grant military diversion. Example: Billy is a medically disabled military veteran. His disability is that he suffers mentally from military-service related PTSD after close combat firefights while in the military. Billy solicits an undercover officer for prostitution services, and he charged accordingly. At court, Billy requests pretrial military diversion to avoid criminal prosecution. Result: Billy’s sexual penchant for prostitutes is not related to his PTSD; therefore, military diversion treatment for PTSD will not likely address Billy’s unrelated criminal behavior and military diversion is probably unsuitable for Billy. Misdemeanor Charges: Military diversion only applies to criminal cases that are charged as misdemeanor crimes. In some situations, a crime may be charged as either a misdemeanor, or alternatively, as a felony. These are known as “wobbler” crimes. Military diversion applies to wobbler crimes so long as the initial charge is classified as a misdemeanor. Example: David is charged with misdemeanor statutory rape pursuant to PC 261.5(c). Statutory rape may be charged either as a misdemeanor, or alternatively, as felony in California. However, because David is charged with the misdemeanor version of statutory rape, he might qualify for military diversion. On the other hand, if David is charged with the felony version of statutory rape, even under the same law (PC 261.5), then he would not qualify for military diversion. Note: Keep in mind that if David were charged with felony statutory rape in the example above, then he would not qualify for military diversion even if he subsequently had his felony charges reduced to misdemeanor charges under a PC 17(b) request. Diversions Requirements Military diversion comes with ‘conditions,’ or requirements, which are tailored to the defendant’s mental health needs and the facts of the case. This means the court may order the defendant to 1) attend mental health treatment that is designed to treat and remedy the defendant’s criminal behavior, 2) remain free from new criminal charges, 3) pay restitution, etc. In addition, the defendant must be willing to waive (give up) his ‘speedy trial rights’ to allow sufficient time to complete the diversion program. If the defendant is unwilling, or unable to, comply with military diversion conditions, then the court will find that the defendant is unsuitable for military diversion. Note: The court must give preference to a treatment program that has a history of successfully treating veterans who suffer from sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse, or mental health problems as a result of military service, including, but not limited to, programs operated by the United States Department of Defense or the United States Department of Veterans Affairs (PC 1001.80(f)). Revocation of Military Diversion If the court finds that the defendant is not performing satisfactorily, or if the defendant is charged with any new felony or misdemeanor crime during the diversion program, then the court end the military diversion program for the defendant and reinstate criminal proceedings against the defendant (PC 1001.80(c) Abbrev.) Criminal Charges Dismissed Upon successful completion of a military diversion program, the arrest upon which the diversion was based shall be deemed to have never occurred. The defendant may indicate in response to a question concerning his or her prior criminal record that he or she was not arrested or diverted for the offense (except as specified below). A record pertaining to an arrest resulting in successful completion of a diversion program shall not, without the defendant’s consent, be used in any way that could result in the denial of any employment, benefit, license, or certificate (PC 1001.80(i) Abbrev.). Note: The defendant shall be advised that, regardless of his or her successful completion of diversion, the arrest upon which the diversion was based may be disclosed by the Department of Justice in response to a peace officer’s application request. Also, successful military diversion does not relieve the defendant or his of the obligation to disclose the arrest in response to a direct question contained in a questionnaire or application for a position as a peace officer (PC 1001.80(j) Abbrev.). Length of Military Diversion The period during which criminal proceedings against the defendant may be diverted shall be no longer than two years. The responsible agency or agencies shall file reports on the defendant’s progress in the diversion program with the court and with the prosecutor not less than every six months (PC 1001.80(h)). Qualifying Misdemeanor Sex Crimes As stated, pretrial military diversion may be allowed in misdemeanor sex crimes cases. This is true even if the sex crime allegation is of the type that would otherwise require sex offender registration upon conviction. This means that the following misdemeanor sex crimes might qualify for military diversion if all other requirements are met: PC 261.5(c) Statutory Rape PC 265.1(d) Unlawful Sexual Intercourse PC 289(c) Sexual Penetration by Object PC 288.4(a)(1) Arrange to Meet Minor PC 287(b)(1) Oral Copulation with Minor PC 314 Indecent Exposure PC 243.4(e)(1) Sexual Battery PC 243.4 Misdemeanor Sexual Battery PC 286(b)(1) Sodomy with Minor PC 647(a) Engage in Public Lewd Act PC 315 Operate a Brothel PC 288(c)(1) Lewd Act with Minor PC 647(j)(4) Revenge Porn PC 647(j)(2) Photo Person in Underwear PC 647(b) Engage in Prostitution PC 647(b)(3) Solicit Minor (Prostitution) PC 290(b) Sex Offender Fail to Register PC 286.5 Sexual Assault of Animal PC 647(j)(1) Peek into Bathroom PC 311.6 Engage in Live Obscene Act PC 289.6 Sex Offender on School Campus PC 311.11(a) Possession of Child Porn PC 311.5 Advertise Obscene Material Note: Other non-sex offense misdemeanors may qualify for military diversion. However, for purposes of this article, only qualifying sex offenses are mentioned. For more information on pretrial military diversion, or California penal code 1001.80, as it applies to misdemeanor sex offenses, contact our sex crimes criminal defense attorneys today for a free consultation. Our successful and passionate sex crimes defense lawyers have helped hundreds of defendants charged with all manner of felony and misdemeanor sex crimes in the Inland Empire, including sodomy ( PC 286 ), oral copulation ( PC 287 ), lewd act on a child (PC 288), child porn possession ( PC 311.11 ), sexual battery (PC 243.4), prostitution ( PC 647(b) ), statutory rape ( PC 261.5 ), and more. Call today! 909-913-3138 Further Reading (2025) PC 286(c)(2)(A) Law & Defense Mental Health Pretrial Diversion PC 287(b)(1) Law & Defense “Habitual Sex Offender” Statute Probation & Parole & Sex Crimes Military Diversion for CA Sex Crimes (PC 1001.80) Sex Crimes Criminal Defense Attorneys

Mental health diversion is a legal procedure in California criminal court that allows a criminal defendant to avoid prosecution for her crime if her criminal conduct is reasonably related, and the result of, a recognized mental health disorder, and she is willing and able to abide by certain conditions of the court. Information on mental health diversion in California is found in penal code section 1001.36. The following is a summary of mental health diversion & PC 1001.36 as it applies to California sex crimes. For further information, contact our sex crimes criminal defense attorneys . To start, “diversion,” in the context of criminal law and procedure, means to avoid, or circumvent, criminal prosecution, so long as the defendant qualifies for diversion, and only if the defendant is willing to abide by ‘diversion terms,’ such as supervision by the court, enroll in classes, keep medical appointments, remain free from criminal conduct, etc. For purposes of “mental health” diversion, the court will not grant the defendant's diversion request unless it finds that the defendant’s criminal conduct was related to her mental health issues, and that she is 'suitable' for the program. The court must also consider other factors in the defendant’s personal history and circumstances of the case before the court uses its discretion in allowing a criminal defendant to enroll in diversion. Dismissal of Criminal Charges: If the defendant is allowed to enter mental health diversion pursuant to PC 1001.36, and the defendant successfully complete the mental health diversion requirements, then the defendant’s criminal charges will be dismissed. Note: Mental health diversion is only one type of diversion program in California. Other diversion programs also exist and may be a better option for the defendant depending on the circumstances of the defendant and the facts of the case, such as Judicial Diversion (PC 1001.95), Military Diversion (PC 1001.80), Drug Diversion (PC 1000), etc. Also, mental health diversion might apply to many different types of crimes, not just sex crimes; however, for purposes of this article, the focus is on the application of PC 1001.36 as it applies to California sex crimes . PC 1001.36 Law According to PC 1001.36(a), ‘On an accusatory pleading alleging the commission of a misdemeanor or felony offense…, the court may, in its discretion, and after considering the positions of the defense and prosecution, grant pretrial diversion to a defendant… if the defendant satisfies the eligibility requirements for pretrial diversion…, and the court determines that the defendant is suitable for that diversion….' (PC 1001.36 Abbrev.). Note: Mental health diversion is available for most misdemeanor and felony crimes, unlike Judicial Diversion (PC 1001.95), which is only available for misdemeanor crimes; however, other requirements under PC 1001.36 will make most felony sex crimes ineligible for mental health diversion (See below). Mental Health Diagnosis Required Per PC 1001.36(b)(1), for the judge to consider mental health diversion for the defendant, the court must find that ‘the defendant has been diagnosed with a mental disorder as identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders, including, but not limited to, bipolar disorder, schizophrenia, schizoaffective disorder, or post-traumatic stress disorder, but excluding antisocial personality disorder, borderline personality disorder, and pedophilia….’ Note: Evidence of the defendant’s mental disorder shall be provided by the defense and shall include a diagnosis or treatment for a diagnosed mental disorder within the last five years by a qualified mental health expert. Expert’s Opinion: In opining that a defendant suffers from a qualifying disorder, the qualified mental health expert may rely on an examination of the defendant, the defendant’s medical records, arrest reports, or any other relevant evidence. Significant Factor Requirements Per PC 1001.36(b)(2), before the defendant is admitted to mental health diversion, the court must find that ‘the defendant’s mental disorder was a ' significant factor' in the commission of the charged offense. In other words, per PC 1001.36, the court must find that the defendant was diagnosed with a recognized mental health disorder, and that the mental health disorder was a significant factor in the commission of the offense. Note: The court will not find that a defendant’s crime was the result of a mental health disorder where there is clear and convincing evidence that it was not a motivating factor, causal factor, or contributing factor to the defendant’s involvement in the alleged offense (PC 1001.36(a)(2) Abbrev.). Also, ‘a court ' may consider any relevant and credible evidence… when determining whether a criminal defendant should be granted mental health diversion…, including, police reports, preliminary hearing transcripts, witness statements, statements by the defendant’s mental health treatment provider, medical records, records or reports by qualified medical experts, or evidence that the defendant displayed symptoms consistent with the relevant mental disorder at or near the time of the offense .' Suitability Requirement Per PC 1001.36(c), even if the criminal defendant suffers from a recognizable mental health disorder, and the mental health disorder was a ‘significant’ factor in the commission of the crime, the court must still find that the criminal defendant is ‘suitable’ for mental health diversion (PC 1001.36(c) Abbrev.). In other words, the court must find that the mental health diversion requirement would be responsive to the mental health treatment of the defendant (i.e., would the mental health treatment help to resolve the issues that lead to the defendant’s criminal behavior in the first place). Defendant Must Consent: A mental health diversion program is not appropriate unless the defendant consents and agrees to the diversion requirements and she is willing to ‘waive’ her speedy trial rights so that diversion has time to process. Of course, if the defendant is mentally incompetent to the point where she is unable to consent or agree to mental health diversion, then the judge cannot order mental health diversion for the defendant. Public Safety Concerns: The court will not grant mental health diversion to a criminal defendant that reasonably poses a ‘substantial risk’ of danger to the public. This is because many mental health diversion treatment programs include outpatient treatment plans, where the defendant remains in the public, or inpatient programs where the defendant is in close contact with the general public. In opining whether the criminal defendant reasonably poses a ‘substantial risk’ of danger to the judge may consider the opinions of the district attorney, the defense, or a qualified mental health expert, and may consider the defendant’s treatment plan, the defendant’s violence and criminal history, the current charged offense, and any other factors that the court deems appropriate' (PC 1001.36(c)(4) Abbrev.). Ineligible PC 1001.36 Crimes Per PC 1001.36(d), mental health diversion is not available in certain types of cases, including cases where the defendant is charged with murder, voluntary manslaughter , or for any sex crime where the defendant is ordered to register as a sex offender pursuant to PC 290 upon conviction (except indecent exposure charged under PC 314 ). This means that many sex crimes, regardless of whether they are classified as felonies or misdemeanors, will not qualify for mental health diversion (PC 1001.36(d) Abbrev.). Non-qualify sex crimes include, but are not limited to, the following, regardless of whether the crime is charged as a felony or a misdemeanor: PC 288(a) Lewd Act Upon a Child Under 14 PC 287 Oral Copulation Crimes PC 286 Sodomy Crimes PC 289 Sexual Penetration Crimes PC 288.5 Continuous Sexual Abuse of Child PC 261 Rape by Force or Fear PC 269 Aggravated Sexual Assault of Child PC 264.1 Rape in Concert (Gang Rape) PC 220 Sexual Assault PC 243.4 Sexual Battery PC 288(b) Lewd Act by Force on Child PC 311.11 Possession of Child Porn PC 647.6 Annoy or Molest a Minor PC 288.7 Sexual Conduct with Child Under 10 PC 209(b) Kidnap to Commit a Sex Crime PC 266h Pimping PC 285 Incent PC 236.1 Human Sex Trafficking Sex Crimes Eligible for PC 1001.36 Sex crimes that are eligible for mental health diversion, include: PC 647(b) Prostitution PC 261.5 Statutory Rape PC 314 Indecent Exposure PC 288.2 Distribute Non-Sex Lewd Material PC 315 Keeping a House of Il Repute PC 647(j)(4) Revenge Porn PC 647(j)(2) Video Person in Undergarments PC 647(j)(1) Peek into Bathroom / Dressing Room PC 647(a) Engage in Lewd Conduct in Public PC 318 Refer Client to Prostitute (Capping) PC 310.5 Contract to Pay Minor for Sex PC 311.6 Engage in Live Obscene Conduct PC 290(b) Fail to Register as Sex Offender PC 289.6 Sex Offender on School Grounds PC 286.5 Sexual Assault of Animal PC 647(b)(3) Solicit Minor for Prostitution Mental Health Diversion Length The period during which criminal proceedings against the defendant may be ‘diverted’ is limited as follows: If the defendant is charged with a felony, the period shall be no longer than two years, If the defendant is charged with a misdemeanor, the period shall be no longer than one year. Reinstatement of Criminal Proceedings After a criminal defendant is granted mental health diversion, the court may revoke that permission if the defendant is either 1) charged with additional crimes , 2) becomes unsuitable for mental health diversion , 3) not performing well in the assigned program , or 4) has become gravely disabled , and more. To reinstate criminal proceedings and revoke mental health diversion, the defendant, the prosecuting attorney, and the mental health expert treating the defendant must have notice of the court’s intent to revoke mental health diversion and reinstate criminal proceedings. Note: Additional requirements and procedures for mental health diversion admission and revocation pursuant to PC 1001.36 may apply. Successful Completion of Mental Health Diversion Upon successful completion of mental health diversion, the criminal defendant's admission to a mental health program 'may not be used against her in a way that results in denial of employment, benefit, license, or certificate' (PC 1001.36(i) Abbrev.). However, the criminal defendant shall be advised that, regardless of the defendant’s completion of mental health diversion, both of the following apply: 1) The arrest upon which the diversion was based may be disclosed by the Department of Justice to any peace officer application request , and 2) ‘successful mental health diversion…’ does not relieve the defendant of the obligation to disclose the arrest in response to any direct question contained in any questionnaire or application for a position as a peace officer (PC 1001.36(j)(1) Abbrev.). Note: An order to seal records pertaining to an arrest made pursuant to PC 1001.36 has no effect on a criminal justice agency’s ability to access and use those sealed records and information regarding sealed arrests. For more information on mental health diversion, or CA penal code section 1001.36, as it applies to CA sex crimes, contact our sex crimes criminal defense attorneys today for a free consultation. Our award-winning and successful sex crimes defense attorneys have handled hundreds of misdemeanor and felony sex crimes in the Inland Empire, including PC 288(a) Crimes [Child Molestation], PC 311 Crimes [Possession of Child Pornography], PC 287 Crimes [Oral Copulation], PC 243.4 Crimes [Sexual Battery], PC 647(b) Crimes [Prostitution], PC 290.018 Crimes [Fail to Register], and many more. Our sex crimes criminal defense attorneys represent criminal defendants in the Inland Empire and surrounding areas, including the cities and courts of Redlands, Rancho Cucamonga, Fontana, Rialto, Yucaipa, San Bernardino, Riverside, Banning, Ontario, Victorville, Hesperia, Highland, Chio, Upland , and more. 909-913-3138 Recent Blogs (2025) Judicial Diversion for Sex Crimes PC 287(f) Law, Sentence & Defense PC 290.006 Law & Defense Sexual Battery by Medical Professionals Mental Health Diversion for Sex Crimes (PC 1001.36)

Judicial diversion , in the legal sense, is an alternative, or circumvention, to criminal prosecution. In other words, when a defendant enters a judicial diversion program, he is diverted from the course of criminal prosecution and directed to a course that leads to non-criminal prosecution and dismissal of the criminal charges. There are several types of diversion in California, including military diversion, mental health diversion, drug diversion, judicial diversion , and more. This article deals with judicial diversion pursuant to California penal code 1001.95 as that law applies to sex crimes allegations. Other types of diversion programs have different requirements and may or may not apply to felony or misdemeanor sex crimes. Example: In California, David is charged with solicitation of prostitution ( PC 647(b) ). If David is successfully criminally prosecuted, he may end up with a criminal record, probation terms, and possible jail. On the other hand, if David is offered judicial diversion, and he is successful with the diversion program, then David will end up with no criminal record, no probation, and no jail. Judicial Diversion Completion: Judicial diversion requires the defendant to fulfill ‘conditions of diversion’ before his case is diverted (dismissed). In other words, if the defendant enters a judicial diversion program, he may still be criminally prosecuted unless and until he fulfills all the conditions of diversion. Example: David is charged with engaging in lewd conduct in public ( PC 647(a) ). He is offered judicial diversion pursuant to Penal Code 1001.95. David is ordered to attend a class as part of his diversion program; however, David fails to complete the required classes. Therefore, the judge reinstates criminal proceedings against the defendant. Note: a judge may allow a defendant to reenter diversion after the defendant has failed to complete a term of diversion. Whether the judge allows the defendant to be reinstated into a diversion program after the defendant has failed to complete a diversion term is decided on a case-by-case basis. Terms of Judicial Diversion: Every case is different; therefore, the terms of judicial diversion are different in every case. With that in mind, most judicial diversion requirements will include attendance of an online class, payment of a fine, a condition to remain free from new misdemeanor or felony criminal charges during diversion (i.e., 4-24 months), and more. Example: David has nude images of Melissa that she allowed David to keep during their relationship. Later, Melissa breaks up with David. Thereafter, David puts Melissa’s nude images on social media and porn sites to get his revenge (i.e., “ revenge porn ”). Later, David is charged with distributing nude images to humiliate ( PC 647(j)(4) ), and he is offered judicial diversion. As a special term of diversion, David must destroy all images of Melissa in his possession. David complies with all diversion terms and his criminal charges are dismissed. Judicial Diversion Requirements A judge in the superior court in which a misdemeanor is being prosecuted may, at the judge’s discretion, and over the objection of a prosecuting attorney, offer diversion to a defendant pursuant to these provisions (PC 1001.95(a)). Misdemeanor Charges Required: As noted, judicial diversion is only allowed in misdemeanor cases. However, a case that may be charged either as a misdemeanor, or alternatively as a felony (i.e., a “wobbler” crime), qualifies for judicial diversion, so long as the defendant is either charged with the misdemeanor version of the offense, or the defendant's felony charge is subsequently reduced to a misdemeanor (i.e., request to reclassify felony charges to misdemeanor charges [PC 17(b)]). Example: David is charged with felo ny statutory rape ( PC 261.5 ), a “wobbler” crime; therefore, David does not qualify for judicial diversion. However, David is successful in his request to reclassify his felony charge to a misdemeanor charge. Thereafter, David qualifies for judicial diversion upon permission from the court. PC 290 Disqualification: A PC 290 sex crime is not eligible for judicial diversion (PC 1001.95(e)(1)). A PC 290 sex crime is any sex offense that requires the defendant to register as a sex offender. For more information, see PC 290 Crimes & Requirements . Note: Other non-sex crimes disqualifications for judicial diversion include domestic violence crimes and stalking crimes. Keep in mind that most sex crimes, even misdemeanor sex crimes, require the defendant to register as a sex offender pursuant to PC 290; however, the following is a list of misdemeanor sex crimes that may qualify for judicial diversion because PC 290 registration is not required for these sex crimes: Statutory Rape ( PC 261.5(c) & 261.5(d) ) Solicitation of Prostitution ( PC 647(b) ) Engage in Public Lewd Act ( PC 647(a) ) Keep a House of Prostitution ( PC 315 ) Referring Client to Prostitutes (PC 318) Contract to Pay Minor for Sex (PC 310.5) Revenge Porn ( PC 647(j)(4) ) Engage in Obscene Live Conduct ( PC 311.6 ) Video Person in Undergarments ( PC 647(j)(2) ) Show Lewd Matter to Minor (PC 288.2(a)(1)) Sex Offender on School Grounds ( PC 626.81 ) Fail to Register ( PC 290(b) & 290.018 ) Consensual Sex with Confined Adult (PC 289.6) Sexual Assault of Animal ( PC 286.5 ) Send Harmful Matter to Minor (PC 313) Peeking into Bathroom ( PC 647(j)(1) ) Solicit Minor for Prostitution ( PC 647(b)(3) ) Unlawful Sexual Intercourse ( PC 261.5 ) PC 290.006 Issues: Some sex crimes do not require sex offender registration. Nevertheless, California penal code 290.006 allows the court, in its discretion, to require the defendant to register as sex offender. When this happens, the defendant may not qualify for judicial diversion. Example: David is charged with unlawful sexual intercourse ( PC 261.5 ). The crime of unlawful sexual intercourse is not a crime for which sex offender registration is required. However, the district attorney has charged a PC 290.006 charge along with the PC 261.5 allegation, which means the defendant could face sex offender registration if found guilty of both criminal charges. Therefore, David does not qualify for diversion pursuant to PC 1001.95. Judicial Discretion: Remember, whether the defendant is allowed to enter a judicial diversion program is up to the court. In other words, judicial diversion is not guaranteed. The defendant must petition the court to enter the PC 1001.95 judicial diversion program. The judge's decision as to whether the defendant should be allowed to enter judicial diversion depends on many factors, including the defendant’s criminal history, the ability of the defendant to complete the diversion program, the harm cause to the defendant’s victim(s), and more. District Attorney Approval: The district attorney’s approval is not required for the defendant to enter judicial diversion (PC 1001.95(a)). Nevertheless, the defendant should consider working with the district attorney during plea bargaining in his effort to get the district attorney’s support for judicial diversion, or at least a “no-objection” position from the district attorney. This will make the application for judicial diversion more likely to succeed. Example: David is charged with maintaining a brothel ( PC 315 ). The district attorney does not approve of the defendant’s request to enter judicial diversion pursuant to PC 1001.95. Nevertheless, David may ask the judge to consider him for judicial diversion over the district attorney’s objection. However, if David can negotiate diversion terms that please the district attorney, then David’s application for diversion will more likely be approved by the court. For more information on judicial diversion, of PC 1001.95, as it applies to California sex crimes, contact our sex crimes criminal defense attorneys today. Our award-winning attorneys handle felony and misdemeanor sex crimes in the IE, including lewd act on a child under 14 ( PC 288(a) ), possession of child pornography (PC 311.11), sexual battery (PC 243.4), rape by force or fear (PC 261), pandering (PC 266i), sodomy (PC 286), statutory rape ( PC 261.5 ), oral copulation (PC 287), sexual penetration ( PC 289 ), prostitution (PC 647(b)), and more. Call today! 909-913-3138 Recent Blog Posts (2025) PC 286(b)(1) Law & Defense PC 647.6(a) Law & Defense PC 290.006 Law & Defense Terminate PC 290 Registration Defense of Consent in Sex Crimes Judicial Diversion for California Sex Crimes PC 1001.95: Sex Crimes Defense Lawyers

Information on the California crime of statutory rape , also called unlawful sexual intercourse , is found at California penal code section 261.5. Information on the penalties and defenses to PC 261.5 charges may be found at unlawful sexual intercourse . This article primarily deals with the defense of reasonable mistake of age (of the minor) in CA statutory rape cases. For further information, contact our sex crimes criminal defense attorneys today for a free consultation. In short, statutory rape is defined as sexual intercourse with a person under the age of eighteen (18) years of age (i.e., a "minor"). It does not matter if the minor was willing to engage in sexual intercourse. This is because a minor cannot legally consent to sexual intercourse in California. Note: When the age difference between the minor and the defendant is less than three years, the statutory rape is usually charged as a misdemeanor under PC 261.5(c). When there is more than three years difference in age between the defendant and the minor, the defendant is usually charged with felony statutory rape charged under PC 261.5(d). Age of Consent: The age of consent, or the age at which a person may legally engage in sexual conduct with another person, is different from state to state. However, in California, the age of consent is eighteen (18). Reasonable Mistake of Age Per Calcrim 1071, if ‘the defendant reasonably and truly believed that the minor was at least eighteen (18) years of age, then the defendant is not guilty of unlawful sexual intercourse (Calcrim Abbrev.). Objective Standard: The defendant must have reasonable belief that the minor was of the age of consent (18) at the time of sexual intercourse. This means that the average person would also have believed that the minor was of the age of consent if he or she was in the same situation as the defendant at the time of sexual intercourse. Example: If the minor appeared very young and acted very immature at the time of sexual intercourse, then the average person might not believe that the minor was of the age of consent (18) at the time of sexual intercourse. On the other hand, if the minor had a job, drove a car, and was attending college, then the average person could easily believe the minor was of the age of consent (18). Subjective Standard: In addition to the reasonable (objective) standard, the defendant must have truly believed that the minor was of the age of consent (subjective standard). Example: If defendant actually knew the minor was only seventeen (17) years old at the time he or she engaged in sexual intercourse with the minor, then a reasonable mistake of age defense will not apply to the defendant. On the other hand, if the defendant truly did not know the age of the minor, and the defendant truly believed that the minor was of the age of consent (18), then the mistake of age defense may apply to defendant. Both the objective (reasonable) and subjective standards are used in evaluating whether the defendant is entitled to use the reasonable mistake of age defense in a statutory rape case filed as either PC 261.5(c) or PC 261.5(d). Willful Ignorance Not a Defense: If the defendant believed the minor was likely under the age of consent (18), but he or she willfully remained ignorant of that information when he engaged in sexual intercourse with the minor, then the defense of reasonable mistake as to the age of the minor may not be used in a PC 261.5 case. Example: Sarah, a seventeen (17) year old, posts social media texts that indicate she is eighteen (18) years old. John meets Sarah through social media, but when John meets Sarah in person, he doubts that Sarah is actually eighteen (18). Nevertheless, John does not inquire as to Sarah’s age because he does not want to hear that Sarah is underage (under 18). Result: If John engages in sexual intercourse with Sarah, he may be charged with PC 261.5 and the reasonable mistake of age defense will not apply to his case. Prosecutors’ Burde to Prove: The district attorney must prove, beyond a reasonable doubt, that the defendant did not reasonably and actually believe that the minor was at least eighteen (18) years old. If the district attorney cannot prove this fact beyond a reasonable doubt, then the defendant is entitled to an acquittal of the PC 261.5 charges (Calcrim 1071 Abbrev.). Mistake of Fact Non-Exclusive: The defendant is entitled to use the reasonable mistake of age defense (mistake of fact defense) in conjunction with other defenses. Example: John is charged with misdemeanor unlawful sexual intercourse ( PC 261.5 ). John may defend with reasonable mistake of age of the minor (mistake of fact), and any other applicable defense that applies to the same criminal charges, such as statute of limitations (Three years statute of limitations in statutory rape cases in California), illegal search and seizure, coerced confession, lack of Miranda warnings, legal marriage between the minor and the defendant, insufficient evidence to prove intercourse occurred , and more. Note: Attempted statutory rape is not a lesser included offense to statutory rape (PC 664-261.5). Evidence in PC 261.5 Cases As stated, the district attorney must prove, beyond a reasonable doubt, that every element of the criminal charge of statutory rape is true. This means that the district attorney must prove: 1) the minor was under the age of eighteen (18), 2) at the time of sexual intercourse with a person aged eighteen (18) or older, 3) some level of penetration of the defendant’s penis entered the minor’s vagina, no matter how slight, and 4) the defendant knew, or reasonably should have known, that the minor was under the age of eighteen (18). To prove the defendant knew the minor was under the age of eighteen (18) in a statutory rape case, the district attorney may use any relevant evidence, including written conversations between the minor and the defendant, live testimony of persons who are award that defendant knew the minor was underage, and other circumstantial evidence (i.e., minor was in high school, minor did not drive, minor did not work, minor looked very young, etc.). Defense Applies to Other Sex Crimes: The reasonable mistake of age defense might also apply to other sex crimes related to minors where the defendant reasonably and actually believed the minor was of the age of consent, including statutory sodomy ( PC 286(b)(1) ), statutory oral copulation ( PC 287(b) ), statutory sexual penetration ( PC 289 ), and more. Limitations of Defense: Reasonable mistake of age defense (mistake of fact) does not apply if the minor is not otherwise willing to engage in sexual conduct with the minor. Example: David performs oral sex on Jane while Jane was extremely drunk. David reasonably and truly believed that Jane was nineteen (19) years old when he performed oral sex on Jane, but Jane was only seventeen (17) years old when David performed oral sex on Jane. Result: David may be charged with, and found guilty of, oral copulation upon minor (PC 287). This is because Jane did not voluntarily engage in oral sex at the time of David’s crime. For more information on the defense of reasonable mistake of age of the minor in a statutory rape case (unlawful sexual intercourse), or CA PC 261.5(c) or PC 261.5(d), contact our sex crimes criminal defense attorneys today for a free consultation. Our award-winning sex crimes criminal defense attorneys have successfully helped thousands of defendants charged with all misdemeanor and felony sex crimes, including (PC 288(a)) lewd or lascivious act upon a child under 14 , (PC 243.4) sexual battery , (PC 647(b)(3)) soliciting a minor for prostitution , (PC 311.11) possession of child pornography , (PC 647(a)) engage in public lewd act , (PC 286) unlawful sodomy , and more. Call today! 909-913-3138 Further Reading (2025) PC 288(i) Law & Defense Sexual Battery v. Sexual Assault PC 209(b) Law & Defense PC 266g Law & Defense Defense to Sex Crimes Reasonable Mistake of Age Defense in Statutory Rape Cases (PC 261.5) Unlawful Sexual Intercourse

Information on the crime of sexual exploitation of a child , also called “ production or exchange of child pornography ,” is found at California penal code § 311.3. This summary covers the law, penalties, & common defenses related to PC 311.3. For further information, contact our sex crimes criminal defense lawyers today for a free consultation. PC 311.3(a) Law Per PC 311.3(a), a person is guilty of sexual exploitation of a child if he or she knowingly develops, duplicates, prints, or exchanges any representation of information, data, video, or image…, that depicts a person under the age of 18 years engaged in an act of sexual conduct (PC 311.3(a) Abbrev.)). Sexual Conduct Defined: The term sexual conduct, for purposes of PC 311.3(a) law, means any of the following: Sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex or between humans and animals (PC 311.3(b)(1)). Penetration of the vagina or rectum by any object (PC 311.3(b)(2)). Masturbation for the purpose of sexual stimulation of the viewer (PC 311.3(b)(3)). Sadomasochistic abuse for the purpose of sexual stimulation of the viewer (PC 311.3(b)(4)). Exhibition of the genitals or the pubic or rectal area of any person for the purpose of sexual stimulation of the viewer (PC 311.3(b)(5)). Defecation or urination for the purpose of sexual stimulation of the viewer (PC 311.3(b)(6)). Note: PC 311.3(a) does not apply to the activities of law enforcement and prosecution agencies in the investigation and prosecution of criminal offenses or to legitimate medical, scientific, or educational activities, or to lawful conduct between spouses. Also, prosecution of sexual exploitation of a child does not preclude prosecution under any other law, such as possession of child pornography (PC 311.11), distribution of child pornography (PC 311.10), and more. PC 311.3(a) Penalties Wobbler Offense: Sexual exploitation of a child prosecuted under penal code 311.3 is classified as a “wobbler” offense. A wobbler offense is any criminal charge that may be filed either as a felony, or alternatively as a misdemeanor. Felony PC 311.3(a): When sexual exploitation of a child is charged as a felony, the defendant may face up to sixteen months, two years, or three years in a California state prison, depending on the facts of the case, the defendant’s criminal history, and more. Misdemeanor PC 311.3(a): When sexual exploitation of a child is charged as a misdemeanor, the defendant may face up to one year in county jail. Prison Presumptive Felony: If the defendant is convicted of penal code 311.3(a), and he or she is not granted a probation sentence (See Probation Sentence), then the defendant must serve his or her incarceration in a California state prison, as opposed to a local county jail. In addition, no part of a prison sentence related to a PC 311.3(a) conviction may be “split” (served partially out of prison on work release), or “suspended” (not served subject to certain conditions). Probation Sentence: A probation sentence is a period of supervision, as opposed to actual incarceration. A probation sentence is allowed in both felony and misdemeanor PC 311.3(a) cases, but a probation sentence is not guaranteed in any case. Whether the defendant is granted a probation sentence after a conviction for sexual exploitation of a child depends on many factors, such as the defendant’s criminal history, the facts and circumstances of the case, the sophistication level of the offense, and more. Work Release: A probation sentence will usually include “conditions of probation.” In most cases, these conditions will include a short jail sentence. This jail sentence, which is part of the defendant’s probation sentence, may be served locally in county jail. This is true even if the defendant is guilty of felony PC 311.3(a). Three Strikes Law: Penal code 311.3(a) is not classified as a “strike” offense under California’s Three Strikes Sentencing Law. Nevertheless, if the defendant has previously suffered two of more strike convictions, then a conviction for sexual exploitation of a child may “trigger” a third strike, which could lead to a “life” prison sentence. Sex Offender Registration: Sexual exploitation of a child is a crime for which sex offender registration is required upon conviction (PC 290). For more information, see CA Tier System for Sex Offender Registrants , Termination of Sex Offender Registration ( PC 290.5 ), & Sex Offender Registration Requirements ( PC 290 ). Additional Penalties: In addition to the penalties listed above, if found guilty of PC 311.3(a), the defendant could lose immigration status, professional licensing status, military service status, suffer civil lawsuits, suffer criminal protective orders, lose firearm rights, pay restitution, and more. Note: The scheduled bail amount for PC 311.3(a) is $30,000 [San Bernardino County]. This bail amount may be increased or decreased for various reasons. For more information, see Bail Schedules for CA Sex Crimes (SB County) . PC 311.3(a) Defenses Common defenses related to sexual exploitation of a child criminal charges includes illegal search and seizure, statute of limitations , coerced confession, lack of Miranda Rights issued before defendant’s interrogation, entrapment, mistake of fact , and more. Per PC 311.3(a): The provisions of PC 311.3(a) do not apply to an employee of a commercial film developer who is acting within the scope of his or her employment and in accordance with the instructions of his or her employer, provided that the employee has no financial interest in the commercial developer by which he or she is employed (PC 311.3(e) Abbrev.). Also, per PC 311.3(f), PC 311.3(a) does not apply to matter that is unsolicited and is received without knowledge or consent through a facility, system, or network over which the person or entity has no control. Post-Conviction Issues: If the defendant is found guilty of PC 311.3(a), or he or she plead “guilty” or “no contest” to PC 311.3(a) charges, then his or her post-conviction options might include a withdraw of the plea (PC 1018), appeal the criminal conviction, expunge the sex crime conviction ( PC 1203.4 ), petition the court for a certificate of rehabilitation (PC 4852), and more. For more information on the crime of sexual exploitation of a child, or CA penal code 311.3(a), contact our sex crimes criminal defense lawyers today for a free consultation. Our team of successful and aggressive criminal defense lawyers have helped thousands of clients in the Inland Empire for over fifteen years. Our award-winning sex crimes criminal defense attorneys defend charges of soliciting prostitution ( PC 647(b) ), lewd act upon a child under 14 (PC 288(a)), pandering crimes (PC 266i), pimping crimes (PC 266h), sexual conduct with confined adult ( PC 289.6 ), sexual battery (PC 243.4), possession of child pornography (PC 311.11(a)), attempted rape (PC 664-261(a)), and more. Call today! 909-913-3138 Further Reading (2025) PC 289(j) Law & Defense PC 286(b)(2) Law & Defense PC 287(g) Law & Defense PC 286.5 Law & Defense Exclusion from Sex Offender Website PC 311.3 Sexual Exploitation of a Child (Produce / Exchange Child Porn): Law, Sentence, & Defense

The defense of consent is a common defense used against sex crimes criminal charges in California, at least when the alleged sex crimes victim is over the age of eighteen (18). Note: The “age of consent” to sexual conduct in California is eighteen (18). This means that a person under the age of eighteen (18) cannot legally consent to engage in sexual conduct. There are some exceptions to this law when the parties are legally married and engaging in sexual conduct with one another. Example: Jack is nineteen (19) years old. Dianne is sixteen (16) years old. Jack and Dianne engage in oral copulation with each other. Result: Jack may be charged with statutory oral copulation ( PC 287(b)(1) ) because Dianne cannot legally consent to oral copulation with Jack. On the other hand, Dianne is not likely to be charged with statutory oral copulation, or any other sex crimes, because she is the victim, and a minor, in this scenario. Note: In the above example, Jack may be charged with statutory oral copulation (PC 287(b)(1)) even if Dianne willingly engages in oral copulation with Jack. This is because Dianne’s “consent” is vitiated, or rendered invalid, due to her age. The result is that Jack is committing illegal oral copulation by law (i.e., “statutory” oral copulation). Example II: Jack and Diane are legally married. Jack is nineteen (19) years old, and Dianne is seventeen (17) years old. Jack and Dianne engage in sexual intercourse in California. Result: Even though Dianne is under the age of legal consent (18), she may nevertheless legally consent to sexual intercourse with Jack because the two are married to each other. Without marriage, Jack would otherwise be charged with statutory rape ( PC 261.5(c) ) in this situation. Vitiated Consent Crimes: Crimes where the victim is too young to legally consent, regardless of whether the victim is otherwise willing to engage in sexual conduct, include lewd or lascivious act upon a child , or sexual conduct with a child crimes ( PC 288(a) , 288.5 , 288.7 , 288(b)(1) , & 288(c) ), oral copulation of a minor ( PC 287 ), sexual penetration of a minor crimes ( PC 289 ), sodomy of a minor crimes ( PC 286 ), aggravated sexual assault of a child ( PC 269 ), annoy or molest a minor ( PC 647.6 ), and contacting minors to engage in lewd conduct ( PC 288.2 , 288.3 , 288.4 ). Consent Defined: For purposes of sex crimes criminal charges filed under PC 261 ( rape ), PC 286 ( sodomy ), PC 287 ( oral copulation ), or PC 289 ( sexual penetration ), “consent” means positive cooperation in act or attitude pursuant 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) Abbrev.). Circumstantial Consent: Consent to sexual conduct can arise from the circumstances surrounding the alleged sex offense. In fact, outside of prostitution ( PC 647(b) ) cases, consent to sexual conduct is arguably more common by circumstances and implication than by verbal expression. Example: John is charged with rape by force or fear ( PC 261(a)(2) ) against Jane. Jane asserts that she never expressly stated to John that she consented to sexual intercourse; however, John asserts that he is not guilty of PC 261(a)(2) because Jane freely and positively cooperated in sexual intercourse with John by her conduct. In other words, Jane’s conduct may have expressed her cooperation to freely engage in sexual intercourse. Invalid Consent: In some situations, a person cannot grant legal consent to sexual conduct because his or her circumstances do not allow free expression of consent or voluntariness of consent. These circumstances include unconsciousness of victim, intoxication of victim, mental incapacity of victim, confined victim, threats to victim so that victim will engage in sexual conduct, and minority of victim (underage victim). Example: Romeo engaged in sodomy (anal intercourse) with Maria while Marie was under the influence of an intoxicating drug. Romeo asserts that he and Maria regularly engage in drug-free consensual sodomy, and therefore, Maria would likely have consented to sodomy even if she were not under the influence of an intoxicating drug at the time that Romeo sodomized her. Result: Romeo may be charged with sodomy of an intoxicated person ( PC 286(i) ). Note: A current or previous dating or marital relationship between the defendant and the victim is not sufficient to constitute consent under prosecution for PC 261 ( rape ), PC 286 ( sodomy ), PC 287 ( oral copulation ), or PC 289 ( sexual penetration by foreign objection ). In other words, consent to sexual conduct must be freely granted as to every sexual encounter with another person. Also, in any prosecution for PC 261 ( rape ), PC 286 ( sodomy ), PC 287 ( oral copulation ), or PC 289 ( sexual penetration ), evidence that the victim suggested, requested, or otherwise communicated to the defendant that the defendant use a condom or other birth control, without additional evidence of consent, is not sufficient to constitute consent. Evidence of Consent: Evidence of consent to sexual conduct is usually circumstantial in nature (except in cases of prostitution where consent is more commonly expressed). The circumstances that demonstrate consent may be the lack of victim’s objection where victim was capable of freely and voluntarily expressing consent, but he or she does not express that consent. Example: Jack and Dianne are in a dating relationship. Jack and Dianne regularly engage in sexual intercourse and oral copulation. However, on one occasion, during sexual intercourse, and without soliciting Dianne’s consent, Jack performs anal intercourse with Dianne. Dianne does not verbally object to or physically resist Jack’s conduct during anal intercourse. Thereafter, Dianne expresses that she did not approve of Jack’s conduct. Result: Jack should not be charged with non-consensual sodomy (PC 286) because Dianne did not object to Jack’s conduct, even though Dianne was free to voluntarily object to sodomy and she knew of the circumstances of Jack’s conduct. Public Consent: In most cases, the defense of consent is used in cases where the defendant and the victim are personally engaged in sexual conduct, such as sexual intercourse, sodomy, sexual penetration, oral copulation, etc. However, consent to a sex crime allegation may be relevant in cases where the public is the victim, such as in indecent exposure ( PC 314 ) cases, public lewd act ( PC 647(a) ), and engage in obscene live conduct ( PC 311.6 ). Example: Jane enters a “wet t-shirt” contest where contestants partially expose their breasts by way of a wet and “see through” garments. The contest is held in a small bar. During the contest, Jane decides to lift her shirt and expose her bare breasts. The bar customers cheer Jane’s conduct and other contestants follow Jane’s conduct. Later, a customer files a criminal complaint against Jane for indecent exposure ( PC 314 ). Result: Jane likely had public consent to expose her breasts even though a few customers of the bar might otherwise have been offended by Jane’s conduct. This is because Jane believed she had the whole public’s consent to reveal her breasts. For more information on the defense of consent in sex crimes criminal prosecutions, contact our sex crimes criminal defense lawyers today for a free consultation. Our team of highly experienced and successful criminal defense lawyers have handled thousands of misdemeanor and felony criminal cases in the Inland Empire, including the cities and courts of Redlands, San Bernardino, Fontana, Rancho Cucamonga, Victorville, Riverside, Yucaipa, Rialto, Ontario, Highland , and more. Our award-winning criminal defense lawyers, including successful trial lawyers, represent defense to all CA sex crimes, including sexual battery ( PC 243.4 ), distribute nude images for revenge ( PC 647(j)(4) ), possession of obscene material depicting a child ( PC 311.11 ), lewd act by force against a child ( PC 288(b)(1) ), operating a house of prostitution ( PC 315 ), and more. Call today! 909-913-3138 Related Articles (2025) PC 288.7 Law & Defense PC 288(c)(1) Law & Defense PC 264.1 Law & Defense PC 266c Law & Defense Probation & Parole for Sex Crimes Defense of Consent to California Sex Crimes Criminal Charges

Information on the crime of abduction of a minor for prostitution is found in California penal code § 267. This summary includes information on the law, penalties, and common defenses related to PC 267. For further information, contact our sex crimes criminal defense lawyers for a free consultation. PC 267 Law Per PC 267 Every person who takes away any a minor under the age of eighteen (18) from the minor’s father, mother, guardian, or other person having the legal charge of the minor, without their consent, for the purpose of prostitution, is guilty of abduction of a minor for prostitution (PC 267 Abbrev.). Prostitution Defined: Prostitution is the engagement, agreement, or solicitation of sexual services for money or other consideration. With some exceptions for minors who work as prostitutes for pimps, prostitution is illegal in California. For more information, see prostitution ( PC 647(b) ) & solicitation of a minor for prostitution ( PC 647(b)(3) ). Note: PC 267 charges do not preclude other related criminal charges against the defendant who abducts the minor, such as kidnapping, assault on a minor, etc. PC 267 Penalties Prison Sentence: The crime of abduction of a minor for prostitution is charged as a felony in California. If found guilty of PC 267, the defendant could face up to sixteen (16) months, two (2) years, or three (3) years in a California state prison. Note: A probation sentence, with or without a prison sentence, may also be available to the defendant after a PC 267 conviction in some situations (See Probation Sentence). Whether the defendant receives a sixteen (16) month (low-term) prison sentence, a two-year (mid-term) prison sentence, or a three-year (high-term) prison sentence after a penal code 267 conviction depends on many factors, including the defendant’s criminal history, the facts of the case, the sophistication of the criminal conduct, and more. Prison Presumptive: If the defendant is found guilty of abduction of a minor for prostitution, and he does not receive a probation sentence, then he must serve his incarceration in a California state prison, as opposed to a local county jail (PC 1170(h)(3)). In addition, no part of the defendant’s prison sentence may be served out of custody on work release or house arrest, and no part of the defendant’s prison sentence may be “suspended” (i.e., “joint suspension”). Probation Sentence: A probation sentence is out-of-custody supervision, as opposed to a prison sentence. A probation sentence is allowed in PC 267 cases, but a probation sentence is not guaranteed in any case. Whether the defendant receives a probation sentence, as opposed to a prison sentence, after a conviction for PC 267, depends on the facts of the case, the defendant’s criminal history, the interest of the minor (victim), the terms of any negotiated plea bargain between the district attorney and the defendant, and more. Felony Probation: If the defendant is granted a probation sentence after a PC 267 conviction, then that probation will be supervised by a felon probation officer (“formal probation”), as opposed to supervision by the court. Formal probation for PC 267 will includes mandatory conditions, such as registration as a sex offender (PC 290), payment of court fees and fines, criminal protective orders in favor of the minor (victim), “remain out of trouble” conditions, and more. Note: Failure to follow the conditions of formal probation after a PC 267 conviction will result in a “violation of probation” charges, which could lead to a termination of probation and sentence to prison, or other harsh punishment. Work Release: As stated, if the defendant is ordered to prison after an abduction of a minor for prostitution conviction, then no part of that prison sentence may be served alternatively on work release or house arrest. However, if the defendant is granted probation after a penal code 267 conviction, then the defendant may usually, but not always, serve work release as part of that probation sentence. Jail Sentence: As stated, if the defendant is ordered to prison after an abduction of a minor for prostitution conviction, then the defendant must serve his or her time in a California state prison, as opposed to a local county jail. However, if the defendant is granted a probation sentence after a PC 267 conviction, then the defendant may be ordered to serve a “jail” sentence as a “condition of probation.” In such a case, the defendant may serve a short jail sentence, as opposed to a state prison sentence. Fifty Percent Rule: If the defendant is found guilty (or pleads “guilty,” or “no contest”) of abduction of a minor for prostitution, then any related prison or jail sentence may be reduced by up to fifty percent (50%) if the defendant serves his or her incarceration with “good behavior.” Note: This fifty percent reduction applies to work release sentence associated with probation sentences in San Bernardino and Riverside Counties. Three Strikes Application: PC 267 is not considered a “serious” or “violent” offense as those terms are defined in CA law at PC 119.27(c) and PC 667.5(c), respectively. This means that PC 267 itself is not a “strike” offense under California’s Three Strikes Sentencing law. Nevertheless, if the defendant has previously suffered two “strike” conviction before a PC 267 conviction, then his PC 267 conviction may “trigger” a third strike, which could result in a 25-life prison sentence. PC 290 Registration: If found guilty of abduction of a minor for prostitution, the defendant will be ordered to register as a sex offender (PC 290). This registration is required regardless of whether the defendant is granted a probation sentence after a PC 267 conviction. For more information, see Sex Offender Registration Requirements ( PC 290 ), Termination of Sex Offender Registration ( PC 290.5 ), and CA Tier System for Sex Offender Registrants . Court Fines: In addition to any other court security fees, restitution, or civil lawsuit for civil damages, a conviction for penal code 267 will result in a fine of up to $2,000 per criminal conviction (PC 267). Bail: Bail is an amount of money that must be posted by the defendant with the court to assure the defendant’s presence during the criminal pretrial proceedings. If the defendant does not post the bail amount, then the defendant must remain in custody (jail) during the criminal pretrial proceedings (release without bail may also be possible on “Own Recognizance Release”). Bail amounts in PC 267 cases is $30,000 (San Bernardino County 2023). This amount may be reduced or increased for various reasons. For more information, see Bail Information in CA Sex Crimes . Note: Bail is not a penalty related to a PC 267 conviction, but bail amounts related to abduction of a minor for prostitution is listed here because this amount is a cost related to the criminal charges of PC 267. Additional Penalties: In addition to the penalties already listed, if found guilty of PC 267, the defendant could face immigration consequences, professional licensing consequences, loss of firearm rights, loss of military service, civil lawsuits, criminal protective orders, restitution orders, loss of scholarships , and more. PC 267 Common Defenses Every defense to any PC 267 criminal charges will be different from case to case. However, common defenses to abduction of a minor for prostitution charges include insufficient evidence to prove abduction (no transportation or false imprisonment of the minor), mistake of fact as to the age of the minor, statute of limitations , “coerced” statement(s), illegal search and seizure, “Miranda” rights violations , and more. For more information on common defenses to sex crimes, including defenses associated with PC 267 criminal charges, see Defenses to Sex Crimes . For further information on CA penal code 267, or abduction of a minor for prostitution, contact our sex crimes criminal defense lawyers today for a free consultation. Our team of successful and passionate sex crimes criminal defense lawyers have successfully helped thousands of people charged with every type of misdemeanor and felony sex crime in the Inland Empire, including the cities and courts of San Bernardino, Riverside, Rancho Cucamonga, Fontana, Rialto, Victorville, Redlands, Yucaipa, Ontario, Hesperia , and more. We represent defendants charged with lewd or lascivious act on a child ( PC 288(a) ), failure to register as sex offender ( PC 290.018 ), sexual battery ( PC 243.4(e)(1) ), indecent exposure ( PC 314.1 ), possession of child porn ( PC 311.11 ), soliciting prostitution ( PC 647(b) ), revenge porn ( PC 647(j)(4) ), continuous sexual abuse of a child ( PC 288.5(a) ), unlawful sexual intercourse ( PC 261.5(c) ), rape ( PC 261 ), and more. Call now! 909-913-3138 Related Articles (2025) Terminate PC 290 Registration PC 236.1 Law & Defense PC 288(b)(1) Law & Defense PC 311.10 Law & Defense PC 626.81 Law & Defense Statute of Limitations for Sex Crimes PC 267 Abduction of a Minor for Prostitution

Information on the crime of advertising or distributing obscene matter depicting a child (aka child pornography), is found at California penal code section 311.10(a). This summary describes the law, penalties, and common defenses to PC 311.10(a). For more information, contact our sex crimes criminal defense attorneys for a free consultation. PC 311.10(a) Law Per PC 311.10(a): Any person who advertises for sale or distribution any obscene matter knowing that it depicts a person under the age of 18 years personally engaging in or personally simulating sexual conduct… is guilty of advertising or distribution of child pornography (PC 311.10(a) Abbrev.). Obscene Matter: For purposes of PC 311.10(a), “Obscene Matter” means pictures, videos, or depictions of a child or children engaging in sexual conduct, which is patently offensive to the average person and lacks any serious literary, artistic, political, or scientific value (PC 311(a) Definition Abbrev. & Extrapolated). Sexual Conduct: For purposes of PC 311.10(a), “Sexual Conduct” means any of the following, whether actual or simulated: sexual intercourse, oral copulation, anal intercourse, anal oral copulation, masturbation, bestiality, sexual sadism, sexual masochism, penetration of the vagina or rectum by any object in a lewd or lascivious manner, exhibition of the genitals or pubic or rectal area for the purpose of sexual stimulation of the viewer, any lewd or lascivious sexual act as defined in Section 288, or excretory functions performed in a lewd or lascivious manner, whether or not any of the above conduct is performed alone or between members of the same or opposite sex or between humans and animals. An act is simulated when it gives the appearance of being sexual conduct (PC 314(d)(1) Abbrev.)). Note: A “child,” for purposes of penal code 311.10(a) law, is any person under the age of eighteen (18) [aka a “minor.”]. Example: John operates an “adult store” where he sells sex toys and videos to his customers. Unbeknownst to John, some of the “adult” videos that he purchased for resale contain underage “performers” engaging in simulated sex acts. Result: John should not be charged with PC 311.10(a) [advertising or distribution of child pornography] because he was unaware of the matter contained in the videos. Similarly, John should not be charged with possession of child pornography for the same reason (PC 311.11(a)). PC 311.10(a) Penalties The crime of advertising or distribution of obscene matter depicting a child (child pornography) is classified as a “wobbler” crime in California. This means that PC 311.10(a) may be charged either as a misdemeanor, or alternatively as a felony. Whether PC 311.10(a) is charged as a misdemeanor or as a felony by the district attorney depends on several factors, including the sophistication level involved in the offense, the defendant’s criminal history, the amount of child pornography that is advertised or distributed by the defendant, and more. Incarceration: When PC 311.10(a) is charged as a felony, the defendant may face up to 2, 3, or 4 years in a California state prison. When PC 311.10(a) is charged as a misdemeanor, the defendant may face up to a year in a local county jail. Note: A probation sentence, with or without some prison or jail sentence, is allowed in both felony and misdemeanor PC 311.10(a) cases. For more information, see “Probation Sentence.” Length of Prison Sentence: The length of a prison sentence after a felony conviction for PC 311.10(a) depends on the facts of the case, the defendant’s criminal history, the terms of any negotiated plea bargain between the defendant and the district attorney, and more. Example: John is charged with felony advertising or distribution of child pornography. John is facing four (4) years in a California state prison if he is found guilty (Max prison term). However, to avoid the possibility of a judge ordering the maximum four (4) year prison sentence after a jury trial conviction, John enters into a plea bargain with the district attorney wherein he agrees to plead guilty to a misdemeanor PC 311.10(a) offense. Probation Sentence: A probation sentence is a period of supervision, as opposed to a sentence to prison or jail. As stated, a probation sentence is allowed in both felony and misdemeanor cases of PC 311.10(a). However, a probation sentence is not guaranteed. Whether a defendant receives a probation sentence after a conviction for either a felony or misdemeanor conviction of penal code 311.10(a) depends on many factors, including the terms of any negotiated plea bargain between the district attorney and the defendant, the fact and circumstances of the case, the sophistication level of the offense, the remorse shown by the defendant, and more. Note: A probation sentence may include a period of incarceration as a “condition of probation.” However, when a period of incarceration is ordered as a term of probation, that incarceration period is generally much shorter than it would otherwise be if the defendant was not granted a probation sentence. Example: John is convicted of a felony violation of advertising or distribution of obscene matter depicting a child (child pornography). John is facing up to four (4) years in a California state prison; however, the criminal court judge grants John a probation sentence, as opposed to a prison sentence. As part of the probation sentence, John is ordered to serve six (6) months of county jail as a “condition of probation.” Note: Incarceration periods that are ordered as part of a probation sentence in PC 311.10(a) cases may usually, but not always, be served alternatively on work release, community service, or house arrest. Felony v. Misdemeanor Probation: A probation sentence ordered after a felony conviction of PC 311.10(a) is supervised by a felony probation officer (i.e. “formal probation”). A probation sentence ordered after a misdemeanor conviction of penal code 311.10(a) is monitored by the court (i.e. “summary probation”). Regardless of whether the defendant is granted felony or misdemeanor probation, his or her probation sentence is conditioned upon completion of “probation condition.” The probation condition in PC 311.10(a) cases generally include restraining orders, payment of court fees, “remain out of trouble,” and more. State Prison Required: If the defendant is convicted of a felony violation of PC 311.10(a), and he is not granted a probation sentence, then he must serve his incarceration in a California state prison, as opposed to a local county jail. Additionally, no part of the defendant’s felony prison sentence may be served out of prison, such as on work release or house arrest, an no part of the defendant’s prison sentence may be “suspended.” Note: Any incarceration ordered after a conviction of advertising or distribution of child pornography may be reduced by up to fifty percent (50%) is the defendant serves his jail or prison sentence with “good behavior.” Sex Offender Registration: Both felony and misdemeanor violation of PC 311.10(a) require the defendant to register as a sex offender with the California Department of Justice (DOJ) [PC 290 Registration]. Length of PC 290 Registration: For misdemeanor violations of PC 311.10(a), the defendant must register as a sex offender for at least ten (10) years from the date of release from jail. For felony violations of PC 311.10(a), the defendant must register as a sex offender for at least twenty (20) years from the date of release from jail or prison. For more information, see CA Tier System for PC 290 Registration . Three Strikes Crimes: PC 311.10(a) crimes are not considered serious or violent offenses as those terms are described in the California penal code at sections 1192.7(c) and 667.5(c), respectively. This means that PC 311.10(a) is not a “strike” offense under California’s Three Strikes Sentence Law. Nevertheless, if the defendant has previously suffered two (2) “strike” convictions, then a conviction for felony PC 311.10(a) may “trigger” a third strike under California law. Additional Penalties: In addition to any jail or prison sentence, and sex offender registration requirements, if found guilty of penal code 311.10(a) violations, the defendant could face immigration consequences, military service consequences, professional licensing consequences, court fees and fines, restitution orders, criminal protective orders, bail requirements, enhanced punishment for future criminal conduct , and more. Note: Per PC 311.10(a), the defendant may be fined by up $50,000 for each conviction of advertising or distribution of obscene matter depicting a child (child pornography). PC 311.10(a) Defenses Common defenses associated with an allegation of advertising or distribution of obscene matter depicting a child (child pornography) include insufficient evidence to prove defendant knew, or likely knew, that a child under eighteen (18) years of age was included in the matter advertised or distributed, statute of limitation (3 years from the date of alleged offense), mistake of fact, coerced confession, illegal search and seizure, lack of proper Miranda Rights followed, entrapment , and more. Note: It is not a defense to PC 311.10(a) allegations to show that the child depicted reached the “age of consent” in the place where the matter was produced. California’s PC 311.10(a) specifically refers to minors under the “age of 18” in its PC 311.10(a) law. Also, PC 311.10(a) law does not apply to the activities of law enforcement and prosecution agencies in the investigation of prosecution of criminal offenses. Reclassification of Crime: In some cases, usually where the evidence against the defendant is somewhat weak, or where there are other “mitigating” factors in the case, the judge will reclassify a felony PC 311.10(a) offense to a misdemeanor PC 311.10(a) offense. This is true even if the district attorney objects to the reclassification of the judge (PC 17(b)). Note: A reclassification from a felony to a misdemeanor offense is not a true defense in the sense that the criminal matter is dismissed, or the defendant is found “not guilty.” However, a reclassification of a PC 311.10(a) allegation from a felony to a misdemeanor does not preclude the defendant from continuing to fight his case as a misdemeanor offense, while avoiding the harsher penalties of a felony offense if he is ultimately convicted. Post-Conviction Relief: After a conviction for advertising or distribution of obscene matter depicting a child (child pornography), the defendant may have several post-conviction options, depending on the circumstances of his conviction. These remedies include appeal of the criminal conviction, withdraw of a guilty plea (PC 1018), expungement of the sex crimes conviction (PC 1203.4), petition the court for certificate of rehabilitation (PC 4852), termination sex offender registration (PC 290.5), and more. For more information on the crime of advertising or distributing child pornography (obscene matter), contact our sex crimes criminal defense attorneys for a free consultation. Our experienced and dedicated team of award-winning criminal defense lawyers, including successful trial lawyers, have helped hundreds of people charged with every type of felony and misdemeanor sex crime in the Inland Empire. Out team of sex crimes criminal defense lawyers handle every type of misdemeanor and felony sex crime, including failure to register as a sex offender ( PC 290(b) ), lewd or lascivious act on a child under fourteen ( PC 288(a) ), indecent exposure ( PC 314 ), sexual battery ( PC 243.4 ), annoy or molest a child ( PC 647.6 ), rape by force or fear ( PC 261(a)(2) ), prostitution ( PC 647(b) ), oral copulation ( PC 287 ), sexual penetration ( PC 289 ), possession of child pornography ( PC 311.11 ), engage in public lewd act ( PC 647(a) ), and more. Call now! 909-913-3138 Recent Articles (2025) PC 288(a) Law & Defense Bail in SB Sex Crimes Pimping , Pandering , & Prostitution PC 209(b) Law & Defense PC 311.10 Advertising or Distribution of Obscene Matter Depicting a Child (Child Pornography)

The following is a list of common sex crimes criminal charges and their corresponding ‘presumptive’ bail requirements in San Bernardino County, CA for the year 2023. The ‘presumptive’ bail amount is the amount of bail required to be staked with the court, on behalf of the defendant, before the defendant is released from custody (jail) during criminal pretrial proceedings. These ‘presumptive’ bail amounts are listed in ‘San Bernardino County’s 2023 Bail Schedule.’ A criminal court judge, or an arresting officer, may ‘deviate’ from the ‘presumptive’ bail schedule for good cause. This deviation may be to increase or decrease the amount of bail required in any case. Note: When an arresting officer deviates from the presumptive bail schedule, then that officer must obtain judicial approval of the deviation from bail schedule within eight (8) hours of setting bail (PC 1269c). Otherwise, the bail schedule amount will apply at the defendant’s arraignment (usually first court appearance). The below-listed ‘presumptive’ bail amounts assumes a single criminal charge (count) in a single criminal complaint (charging document), and against a single alleged victim. When multiple sex crimes are charged in a criminal complaint, or where multiple alleged victims are named in the complaint, then the bail amounts may usually be “stacked,” or added together. Note: Multiple criminal charges of certain sex offenses may lead to a ‘presumptive minimum bail,’ or “no bail,’ depending on the number of criminal charges in a single criminal complaint, and regardless of whether that bail amount would otherwise be less if the bail amounts were “stacked.” Example: A single charge of Lewd or Lascivious Acts with Child Under 14Yrs of Age (PC 288(a)) has a presumptive bail amount of $80,000 in San Bernardino County (2023). However, five (5) charges of PC 288(a) in a single complaint, against a single defendant, will result in a million-dollar ($1,000,000) presumptive minimum bail, not four hundred thousand ($400,000). List of Sex Crimes’ & Presumptive Bail Schedule for San Bernardino County (2023) PC 209(b) Aggravated Kidnapping for Sex Offense Bail: $1,000,000 Max Sentence: Life in CA Prison PC 220(a)(1)/261 Assault to Commit Rape Bail: $60,000 Max Sentence: 6 Years in CA Prison PC 236.1(b) Human Sex Trafficking Bail: $500,000 Max Sentence: 20 Years in CA Prison PC 236.1(c)(1) Human Sex Trafficking of Minor Bail: $120,000 Max Sentence: 12 Years in CA Prison PC 243.4 Misdemeanor Sexual Battery Bail: No Bail Required* Max Sentence: 1 Year County Jail PC 243.4 Felony Sexual Battery Bail: $40,000 Max Sentence: 4 Years in CA Prison PC 243.4(e)(1) Misdemeanor Sexual Battery Bail: No Bail Required* Max Sentence: 180 Days County Jail PC 261(a)(1) Rape of Mentally Ill Victim Bail: $80,000 Max Sentence: 8 Years in CA Prison PC 261(a)(2) Rape of Minor 14-17 Yrs. Of Age Bail: $110,000 Max Sentence: 11 Years in CA Prison PC 261(a)(2) Rape of Child Under 14 Yrs. Of Age Bail: $130,000 Max Sentence: 13 Years in CA Prison PC 261(a)(2) Rape by Force or Fear Bail: $80,000 Max Sentence: 8 Years in CA Prison PC 261(a)(3) Rape of Intoxicated Victim Bail: $80,000 Max Sentence: 8 Years in CA Prison PC 261(a)(4) Rape of Unconscious Victim Bail: $80,000 Max Sentence: 8 Years in CA Prison PC 261.5(c) Misdemeanor Statutory Rape Bail: No Bail Required* Max Sentence: 1 Year County Jail PC 261.5(c) Felony Statutory Rape Bail: $30,000 Max Sentence: 3 Years County Jail PC 261.5(d) Misdemeanor Statutory Rape Bail: No Bail Required* Max Sentence: 1 Year County Jail PC 261.5(d) Felony Statutory Rape Bail: $40,000 Max Sentence: 4 Years County Jail PC 264.1(a) Rape in Concert (Gang Rape) Bail: $90,000 Max Sentence: 9 Years in CA Prison PC 264.1(a) Rape in Concert on Minor 14-17 Yrs. Of Age Bail: $110,000 Max Sentence: 11 Years in CA Prison PC 264.1(a) Rape in Concert on child Under 14 Yrs. Of Age Bail: $140,000 Max Sentence: 14 Years in CA Prison PC 266 Misdemeanor Entice Minor into Prostitution Bail: No Bail Required* Max Sentence: 1 Year County Jail PC 266 Felony Entice Minor into Prostitution Bail: $30,000 Max Sentence: 3 Years in CA Prison PC 266a Abduction for Prostitution Bail: $30,000 Max Sentence: 3 Years in CA Prison PC 266c Misdemeanor Sexual Conduct by False Pretenses Bail: No Bail Required* Max Sentence: 1 Year County Jail PC 266c Felony Sexual Conduct by False Pretenses Bail: $40,000 Max Sentence: 4 Years in CA Prison PC 266g Prostitution of Wife Bail: $40,000 Max Sentence: 4 Years County Jail PC 266h(a) Pimping Bail: $60,000 Max Sentence: 6 Years in CA Prison PC 266h(b)(1) Pimping a Minor Under 18 Years of Age Bail: $60,000 Max Sentence: 6 Years in CA Prison PC 266h(b)(2) Pimping a Minor Under 16 Years of Age Bail: $80,000 Max Sentence: 8 Years in CA Prison PC 266i(a)(1) Pandering (Procuring Prostitution) Bail: $60,000 Max Sentence: 6 Year Prison Sentence PC 266i(b)(1) Pandering of Minor Under 18 Years of Age Bail: $60,000 Max Sentence: 6 Years in CA Prison PC 266i(b)(2) Pandering of Minor Under 16 Years of Age Bail: $80,000 Max Sentence: 8 Years in CA Prison PC 267 Abduction of Minor for Prostitution Bail: $30,000 Max Sentence: 3 Years in CA Prison PC 269(a) Aggravated Sexual Abuse of a Child Bail: $1,000,000 Max Sentence: 15 to Life in CA Prison PC 285 Incest Bail: $30,000 Max Sentence: 3 Years in CA Prison PC 286(b)(1) Misdemeanor Sodomy with Minor Under 18 Years of Age Bail: No Bail Required* Max Sentence: 1 Year County Jail PC 286(b)(1) Felony Sodomy with Minor Under 18 Years of Age Bail: $30,000 Max Sentence: 3 Years in CA Prison PC 286(b)(2) Sodomy with Minor Under 16 Years of Age Bail: $30,000 Max Sentence: 3 Years in CA Prison PC 286(c)(1) Sodomy with Child Under 14 Years of Age Bail: $80,000 Max Sentence: 8 Years in CA Prison PC 286(c)(2)(A) Sodomy by Force or Fear Bail: $80,000 Max Sentence: 8 Years in CA Prison PC 286(c)(2)(B) Sodomy with Child Under 14 by Force Bail: $130,000 Max Sentence: 13 Years in CA Prison PC 286(c)(2)(C) Sodomy with Minor 14-17 Years of Age Bail: $110,000 Max Sentence: 11 Years in CA Prison PC 286(f) Sodomy of Unconscious Victim Bail: $80,000 Max Sentence: 8 Years in CA Prison PC 286(g) Sodomy of Incompetent Victim Bail: $80,000 Max Sentence: 8 Years in CA Prison PC 286.5 Sexual Assault with Animal Bail: No Bail Required* Max Sentence: 180 County Jail PC 287(b)(1) Misdemeanor Oral Copulation with Minor Under 18 Years of Age Bail: No Bail Required* Max Sentence: 1 Year County Jail PC 287(b)(1) Felony Oral Copulation with Minor Under 18 Years of Age Bail: $50,000 Max Sentence: 3 Years in CA Prison PC 287(b)(2) Oral Copulation with Minor Under 16 Years of Age Bail: $30,000 Max Sentence: 3 Years in CA Prison PC 287(c)(2)(A) Oral Copulation by Force or Fear Bail: $80,000 Max Sentence: 8 Years in CA Prison PC 287(c)(2)(B) Oral Copulation of Child Under 14 Years of Age Bail: $120,000 Max Sentence: 12 Years in CA Prison PC 287(c)(2)(C) Oral Copulation with Minor 14-17 Years of Age Bail: $100,000 Max Sentence: 10 Years in CA Prison PC 287(f) Oral Copulation of Unconscious Victim Bail: $80,000 Max Sentence: 8 Years in CA Prison PC 287(i) Oral Copulation of Intoxicated Person Bail: $80,000 Max Sentence: 8 Years in CA Prison PC 288(a) Lewd or Lascivious Acts with Child Under 14yrs Bail: $80,000 Max Sentence: 8 Years in CA Prison PC 288(b)(1) Lewd or Lascivious Acts with Child Under 14yrs by Force Bail: $100,000 Max Sentence: 10 Years in CA Prison PC 288(c)(1) Misdemeanor Lewd or Lascivious Acts with Child 14-17 Yrs. Bail: No Bail Required* Max Sentence: 1 Year County Jail PC 288(c)(1) Felony Lewd or Lascivious Acts with Child 14-17 Yrs. Bail: $30,000 Max Sentence: 3 Years in CA Prison PC 288(i) Lewd or Lascivious Acts with Child Under 14yrs w/Injury Bail: $1,000,000 Max Sentence: Life in CA Prison PC 288.2(a)(1) Misdemeanor Exhibit Lewd Material to Minor Bail: No Bail Required* Max Sentence: 1 Year County Jail PC 288.2(a)(1) Felony Exhibit Lewd Material to Minor Bail: $30,000 Max Sentence: 3 Years in CA Prison PC 288.3(a) Contact Minor to Commit Lewd Act Bail: Varies See PC 288.3 Max Sentence: Varies See PC 288.3 PC 288.3(c) Contact Minor to Commit Lewd Act w/Prior PC 288.3 Bail: $50,000 Max Sentence: 5 Years in CA Prison PC 288.4(a)(1) Misdemeanor Arrange to Meet Minor for Lewd Act Bail: No Bail Required* Max Sentence: 180 Days County Jail PC 288.4(a)(2) Felony Arrange to Meet Minor for Lewd Act Bail: $30,000 Max Sentence: 3 Years in CA Prison PC 288.4(b) Arrange & Meet Minor for Lewd Act Bail: $40,000 Max Sentence: 4 Years in CA Prison PC 288.5(a) Continuous Sexual Abuse of a Child Bail: $500,000 Max Sentence: 16 Years in CA Prison PC 288.7(a) Sex or Sodomy with Child 10 or Younger Bail: $1,000,000 Max Sentence: 25 Years to Life PC 288.7(b) Sexual Penetration or Oral Copulation with Child 10 or Younger Bail: $1,000,000 Max Sentence: 15 Years to Life PC 289(a)(1)(A) Sexual Penetration with Foreign Object by Force Bail: $80,000 Max Sentence: 8 Years in CA Prison PC 289(a)(1)(B) Sexual Penetration with Foreign Object by Force w/Victim Under 14yrs Bail: $120,000 Max Sentence: 12 Years in CA Prison PC 289(a)(1)(C) Sexual Penetration with Foreign Object by Force (Victim 14-17 Yrs.) Bail: $10,000 Max Sentence: 10 Years in CA Prison PC 289(a)(2) Sexual Penetration with Foreign Object Bail: $80,000 Max Sentence: 8 Years in CA Prison PC 289(b) Sexual Penetration with Foreign Object (Incompetent Victim) Bail: $80,000 Max Sentence: 8 Years in CA Prison PC 289(d) Sexual Penetration with Foreign Object (Unconscious Victim) Bail: $80,000 Max Sentence: 8 Years in CA Prison PC 289(e) Sexual Penetration with Foreign Object (Intoxicated Victim) Bail: $80,000 Max Sentence: 8 Years in CA Prison PC 289(g) Sexual Penetration with Foreign Object (Threats to Victim) Bail Amount: $80,000 Max Sentence: 8 Years in CA Prison PC 289(h) Misdemeanor Sexual Penetration with Foreign Object (Victim Under 18) Bail: No Bail Required* Max Sentence: 1 Year County Jail PC 289(h) Felony Sexual Penetration with Foreign Object (Victim Under 18) Bail: $30,000 Max Sentence: 3 Years in CA Prison PC 289(i) Sexual Penetration with Foreign Object (Victim Under 16) Bail: $30,000 Max Sentence: 3 Years in CA Prison PC 289(j) Sexual Penetration with Foreign Object (Victim Under 14) Bail: $80,000 Max Sentence: 8 Years in CA Prison PC 289.6(a) Misdemeanor Sex with a Confined Adult (Sex with Inmate) Bail: No Bail Required* Max Sentence: 180 Days County Jail PC 289.6(a) Felony Sex with a Confined Adult (Sex with Inmate) Bail: $30,000 Max Sentence: 3 Years in CA Prison PC 290(b) Misdemeanor Failure to Register as a Sex Offender Bail: No Bail Required* Max Sentence: 1 Year County Jail PC 290(b) Felony Failure to Register as a Sex Offender Bail: $30,000 Max Sentence: 3 Years in CA Prison PC 290.18(a) Misdemeanor Failure to Register as a Sex Offender Bail: No Bail Required* Max Sentence: 1 Year County Jail PC 290.18(b) Felony Failure to Register as a Sex Offender Bail: $30,000 Max Sentence: 3 Years in CA Prison PC 311.1(a) Misdemeanor Bring Child Porn into State Bail: No Bail Required* Max Sentence: 1 Year County Jail PC 311.1(a) Felony Bring Child Porn into State Bail: $30,000 Max Sentence: 3 Years in CA Prison PC 311.10 Misdemeanor Distribute Child Pornography Bail: No Bail Required* Max Sentence: 1 Year County Jail PC 311.10 Felony Distribute Child Pornography Bail: $40,000 Max Sentence: 4 Years in CA Prison PC 311.11(a) Misdemeanor Possess of Obscene Material Depicting a Minor Bail: No Bail Required* Max Sentence: 1 Year County Jail PC 311.11(a) Felony Possess of Obscene Material Depicting a Minor Bail: $30,000 Max Sentence: 3 Years in CA Prison PC 311.11(c)(1) Misdemeanor Possess Child Pornography Bail: No Bail Required* Max Sentence: 1 Year County Jail PC 311.11(c)(1) Felony Possess Child Pornography Bail: $50,000 Max Sentence: 5 Years in CA Prison PC 311.11(c)(2) Misdemeanor Possession of Child Porn Depicting Sadomasochism Bail: No Bail Required* Max Sentence: 1 Year County Jail PC 311.11(c)(2) Felony Possession of Child Porn Depicting Sadomasochism Bail: $50,000 Max Sentence: 5 Years in CA Prison PC 311.5 Misdemeanor Advertising Obscene Material Bail: No Bail Required* Max Sentence: 180 Days County Jail PC 311.6 Engage in Obscene Live Conduct Bail: No Bail Required* Max Sentence: 180 Days County Jail PC 314.1 Misdemeanor Indecent Exposure Bail: No Bail Required* Max Sentence: 1 Year County Jail PC 314.1 Felony Indecent Exposure Bail: $30,000 Max Sentence: 3 Years in CA Prison PC 314.2 Aid Indecent Exposure Bail: No Bail Required* Max Sentence: 180 Days County Jail PC 315 Keeping a House of Ill Repute (Prostitution) Bail: No Bail Required* Max Sentence: 180 Days County Jail PC 626.81 Sex Offender on School Grounds Bail: No Bail Required* Max Sentence: 180 Days County Jail PC 647(a) Engage in Public Lewd Conduct Bail: No Bail Required* Max Sentence: 180 Days County Jail PC 647(b) Solicitation of Prostitution Bail: No Bail Required* Max Sentence: 180 Days County Jail PC 647(b)(3) Soliciting a Minor for Prostitution Bail: No Bail Required* Max Sentence: 180 Days County Jail PC 647(j)(2) Video Person in Undergarments (Invasion of Privacy) Bail: No Bail Required* Max Sentence: 180 Days County Jail PC 647(j)(4) Distribute Nude Images to Humiliate or Embarrass Bail: No Bail Required* Max Sentence: 180 Days County Jail PC 647.6(a)(1) Misdemeanor Annoy or Molest a Minor Bail: No Bail Required* Max Sentence: 1 Year County Jail PC 647.6(b) Felony Annoy or Molest a Minor Bail: $30,000 Max Sentence: 3 Years in CA Prison PC 664-261(a)(2) Attempted Forcible Rape Bail: $40,000 Max Sentence: 4 Years in CA Prison PC 667.61(a) “One Strike” Sex Offense Enhancement Bail: $1,000,000 Max Sentence: 25 to Life in CA Prison PC 667.61(b) “One Strike” Sex Offense Enhancement Bail: $1,000,000 Max Sentence: 15 to Life CA Prison PC 667.71(b) “Habitual Sex Offender” Enhancement Bail: $1,000,000 Max Sentence: 20 to Life CA Prison PC 12022.8 “Great Bodily Injury” During Sex Offense Enhancement Bail: $50,000 Max Sentence: 5 Years in CA Prison Note: Once admitted to bail, a defendant may have his bail forfeited (bail is nonrecoverable as a penalty for a violation of bail condition) or exonerated (the continued need for bail is absolved or released). Also, bail may be lowered or increased after the initial bail amount is set, depending on many factors related to the case and the defendant’s criminal history. For more information the presumptive bail schedule for sex crimes in San Bernardino County, the ability to increase or decrease bail amounts for good cause, or information on release on own recognizance (“OR release), contact our sex crimes criminal defense attorneys today for a free consultation. Our sex crimes defense attorneys have successfully handled hundreds of felony and misdemeanor sex crimes in the IE, including lewd or lascivious acts with child under 14yrs ( PC 288(a) ), sodomy crimes ( PC 286 ), incest ( PC 285 ), oral cop crimes ( PC 287 ), prostitution ( PC 647(b) ), continuous sexual abuse of a child ( PC 288.5 ), sexual battery crimes ( PC 243.4 ), indecent exposure crimes ( PC 314 ), possession of child porn crimes ( PC 311 ), sexual penetration crimes ( PC 289 ), annoy or molest a minor ( PC 647.6 ), & more. Call today! 909-913-3138 Recent Blogs (2025) Sexual Battery v. Sexual Assault Entrapment in Prostitution Cases Oral Copulation of Intoxicated Victim Expungement of Sex Crimes How to Terminate PC 290 Registration * Bail is not required in most misdemeanor sex crimes; however, a judge, or an arresting officer who is setting bail prior to the defendant’s arraignment pursuant to PC 1269c, may deviate from the bail schedule for good cause. Bail Schedule for Sex Crimes in SB County

One of the most common defenses used against allegation of solicitation of prostitution is the defense of entrapment . This article is a summary of the defense of entrapment as it relates to California prostitution charges, including penal code 647(b) [ Solicitation of Prostitution ], PC 266g [ Prostituting Wife ], PC 315 [ Keeping a House of Prostitution ], and PC 647(m) [ Soliciting a Minor for Prostitution ]. This summary does not cover the law, penalties, or other common defenses related to various prostitution crimes. For information on the law, penalties, and other common defenses related to any particular prostitution crime, see PC 647(b) [ Solicitation of Prostitution ], PC 266g [ Prostituting Wife ], PC 647(m) [ Solicit Minor for Prostitution ] & PC 315 [ Keeping a House of Il Repute ]. Entrapment Basics In short, entrapment is a is a defense to any criminal charge where law enforcement unintentionally, but negligently, encourages, entices, or promotes the defendant’s criminal conduct. Example: John runs a late-night taco stand on a street corner where street prostitution is common ( PC 647(b) Crimes ). While working at his taco stand, John is repeatedly approached by an undercover police officer who poses as a street prostitute. The undercover officer repeatedly offers John a “blowjob” in exchange for tacos. John declines the offer many times over the course of several days, but eventually, John agrees to the “prostitute’s” offer. Result: The undercover officer’s repeated offer to engage in oral copulation (i.e., “blowjob”) for tacos promoted John’s illegal conduct; therefore, John was entrapped by law enforcement, and he should be acquitted of the PC 647(b) charges. Focus on Police Conduct Per California Jury Instruction 3408: A person is entrapped when law enforcement officers engage in conduct that would cause a normally law-abiding person to commit the crime (Calcrim (3408). If the police engage in such conduct, it does not matter whether the defendant was predisposed to commit the crime. Example: John regularly contacts escorts for "outcall" services to his home. When the escorts arrive, John propositions them for sex in exchange for money. Law enforcement is aware of John’s exploits, but it is difficult for law enforcement to catch and charge John with PC 647(b) [ Engaging in Prostitution ] because no female police officer is willing to go into John’s house without backup. Therefore, an undercover officer, posing as a prostitute, stops John on his way home by flagging down his vehicle and offering him oral sex for cash. John accepts the “prostitute’s” offer and John is immediately busted by undercover sting operators. Result: Even though John is predisposed to commit prostitution because he regularly hires prostitutes, he should be acquitted of the PC 647(b) criminal charges because law enforcement entrapped John when they flagged him down for sex on his way to work. Remember: The focus is on police conduct when evaluating an entrapment defense in California. Note: Other examples of entrapment include, but are not limited to, badgering a person for sex, persuaded a person to agree to prostitution by flattery or coaxing, repeated and insistent requests for prostitution services, assertion by undercover police officers that prostitution is not illegal, guarantee of an extraordinary benefit to engage in prostitution, or an appeal to friendship or sympathy . Example: John is driving to work. At a stoplight, an undercover police officer, who is posing as a homeless woman, approaches John's vehicle and tells him that she is destitute and starving, and that she can give John a “hand job” in exchange for food. John agrees and he is immediately arrested by undercover officers during a prostitution sting operation. Result: John is probably entrapped by law enforcement in this scenario. This is because law enforcement enticed John to engage in prostitution by appealing to his sympathy for the "homeless woman." Predisposition Irrelevant As stated, in California, an entrapment defense to a prostitution crime may be available even when the defendant is predisposed to commit prostitution. Example: Maria works as a prostitute in a massage parlor. Maria is approached by an undercover officer, who is posing as a massage parlor customer. The undercover officer offer Maria ten times her massage rate for a “happy ending.” Maria agrees and she is immediately busted for prostitution and charged with PC 647(b). Result: Even though Maria regularly engages in prostitution, law enforcement entrapped her by offering her an extraordinary benefit to engage in prostitution (i.e., ten times Maria’s massage rates). Public Policy Defense: The purpose of the entrapment defense is to encourage law enforcement officers from engaging in conduct that is unethical and against public policy. Namely, law enforcement should discourage prostitution, not promote prostitution, and enticing citizens to commit crime, who would not ordinarily commit prostitution without law enforcements' entrapment conduct, is a breach of the public’s trust in law enforcement. Enhanced Penalty Entrapment: In some situations, law enforcement will entrap a person into committing a greater crime than he or she is already committing. In this situation, the entrapment defense still applies. Example: John regularly avails himself of the prostitution services offered at his local massage parlor. To catch John in the act of violating penal code 647(b)(2) [ solicitation of prostitution ] an undercover police officer, who poses as a massage therapist, "works" at John's favorite massage parlor. When John requests a massage and his regular “happy ending,” the undercover officer tells John that a "new girl" who is "underage," is available for massages and "happy endings" at an extreme discount because the "new girl is in training." John agrees to pay for the massage and “happy ending” from the underage prostitute. Result: John is probably guilty of PC 647(b) [ soliciting prostitution ] when he requests a "happy ending" from the undercover officer, but as to the charge of soliciting a minor for prostitution (PC 647(m) , John is probably not guilty. This is becaus e John is entrapped as to the PC 647(m) charge (extreme cost savings benefit associated with employing the "new girl" for both the massage and the "happy ending." It is also ambiguous as to whether John wants the cost savings associated with the massage or the "happy ending." Note: It is not uncommon for undercover police officers, and/or "Johns," to use somewhat cryptic language when referring to sexual services. The purpose of the cryptic language during the offering and/or accepting of prostitution services is to avoid the use and detection of obvious sexual terms that are found in the language of prostitution crimes. This rarely leads to a defense unless the language is so cryptic that it is ambiguous and uncommon nomenclature in the trade. Example: Maria, a prostitute, offers the following services to her customers online: "Greek," "Girlfriend Experience," and "MSOG." When Maria is busted for prostitution, she tells the arresting officer that "Greek," "Girlfriend Experience," and MSOG," are not sexual services. However, at court, the arresting officer will testify that these terms are used in the prostitution trade and are synonymous with sexual acts (i.e., "Greek" = "Anal Intercourse," "MSOG" = "Multiple Ejaculations," etc.). There are dozens of pseudonyms for sexual acts in the prostitution trade. Decoys and Ruses Permitted Police are constitutionally permitted to lie to criminal suspects that are believed to be engaging in prostitution In other words, it is not entrapment when an undercover officer lies to a criminal suspect and tells the criminal suspect that he or she is not affiliated with law enforcement. Example: John is driving around looking for prostitutes. John pulls over and approaches an undercover police officer who is posing as a prostitute during a “prostitution sting.” John asks the undercover officer if she “is a police officer,” or whether she “is employed by any law enforcement agency.” The undercover officer says “No.” Thereafter, John says “You know you have to tell me the truth if I ask, and it’s entrapment if you lie.” The undercover officer repeats that she does not work for any law enforcement agency. Thereafter, John solicits the undercover officer for oral sex in exchange for money. Result: John is guilty of PC 647(b) [ Soliciting Prostitution ] because the officer is not required to be truthful to John’s question of whether the undercover officer works for law enforcement. In other words, the undercover officer's misrepresentation to John as to her true identity as a police officer, is not entrapment. Police Stings Operations As stated, police sting operations, which are conducted to catch suspects engaging in prostitution, are legal in California. However, the legality of sting operations is not what makes or breaks an entrapment defense. The entrapment defense may apply despite the legality of the sting operation. Again, if the officers encourage, entice, or otherwise promote the crime of prostitution during a police sting operation, then a defendant is entitled to an acquittal of the prostitution charges on public policy grounds. Opportunity v. Entrapment If an officer only gives the defendant an opportunity to commit the crime, then entrapment is not found. There must be some conduct on the part of law enforcement that encourages, entices, or promotes the defendant’s criminal conduct before the defendant is entitled to an entrapment defense. Example: Law enforcement sets up a sting operation to catch prostitutes engaging in street prostitution. As part of the sting operation, a male undercover officer, dressed in plain civilian clothing, walks silently down the prostitute-laden boulevard. Several prostitutes approach the undercover officer and offer him various sexual services in exchange for money. Result: The prostitutes do not have an entrapment defense because the undercover officer does nothing to encourage or entice the prostitutes to engage him in prostitution activity. The undercover officer only offers the opportunity to the prostitutes to engage in prostitution. Therefore, the prostitutes will not have an entrapment defense to PC 647(b) charges. Note: Inquiry as to the prostitute's rates for sexual services is not entrapment, so long as the officer's conduct does not otherwise encourage, incite, or promote the crime of prostitution. Example: An undercover police officer drives up to a woman suspected of engaging in street prostitution. The undercover officer asks the suspect for driving directions. The prostitute suspect asks the undercover officer if he would like a "car date," which is street code for sexual services in the "John's" vehicle. The undercover officer asks the suspect "how much for a car date?" Thereafter, the prostitute lays out her menu for sexual services. Result: The prostitute is not entrapped when the undercover officer inquires as to the amount for a "car date." This is because the undercover officer does not otherwise encourage, incite, or promote the suspect's involvement in prostitution. Law Enforcement Agents Law enforcement agencies may employ non-law enforcement personnel to help catch prostitutes and “Johns.” When this occurs, an entrapment defense may still apply if the law enforcement agent encourages, incites, or promotes a crime. In other words, the words or conduct of the law enforcement agent may amount to entrapment, and that agent’s entrapment is imputed to the law enforcement agency. Example: Maria works at the front desk of a massage parlor. Law enforcement asks Maria for help with catching massage parlor clients looking for prostitution services by reporting anyone who requests such services. Maria agrees to help, but Maria is overzealous about catching “Johns” and she incorporates tactics that promote clients to inquire about prostitution services (i.e., Maria entrapped her massage parlor clients into soliciting prostitution). Result: Defendants entrapped by Maria will give those defendants an entrapment defense against PC 647(b) charges ( Soliciting Prostitution ). This is true even though Maria is not herself a law enforcement officer. Alternative Defenses Allowed: A defendant may simultaneously use an entrapment defense and a defense that is inconsistent to an entrapment defense. Example: John is charged with soliciting a prostitute (PC 647(b)). His defense is that he did not solicit a prostitute for sexual services, but if even if he did solicit a prostitute for sexual services, he was nevertheless entrapped into soliciting the prostitute for sexual services, and therefore, he is entitled to an acquittal of the PC 647(b) charges. Note: Alternative defenses are commonly argued during plea negotiations in prostitution cases, but if the criminal case does not end in a plea bargain, then the criminal defense attorney will usually commit to one defense in front a jury. Burden of Proof The defendant has the burden of proving that he or she was entrapment by a preponderance of the evidence . This means that the defendant must prove that more likely than not, he or she was entrapped. The defendant’s preponderance of the evidence standard does not alleviate the district attorney’s burden to prove the PC 647(b) charges beyond a reasonable doubt . Rather, the district attorney must first meet its burden of proving the prostitution allegations beyond a reasonable doubt. Then, and only then, does the defendant need to prove entrapment by a preponderance of the evidence. Example: The district attorney charges John with solicitation of prostitution ( PC 647(b) ). At trial, John’s criminal defense attorney intends to prove that John was entrapped. However, before the defense is called to present its defense, the court finds that the district attorney, in his case-in-chief, did not prove every element of the PC 647(b) violation beyond a reasonable doubt (See PC 647(b) Elements) . Result: John’s criminal defense attorney never needs to prove John’s entrapment defense, by a preponderance of the evidence , because the district attorney did not first meet his burden of proving every element of the alleged PC 647(b) violation beyond a reasonable doubt . Note: Entrapment is an “affirmative” defense in California. This means that the defendant must establish at least some evidence to support the entrapment defense (contrary to the basic rule that the defendant is not required to present a defense in a criminal case). It also means that the defendant may admit the alleged conduct that supports the criminal charge, and yet, be acquitted of the criminal charge because of the entrapment. Court’s Duty to Instruct Jury The court judge must instruct on an entrapment defense when the defendant requests it and when there is substantial evidence supporting the entrapment defense (Calcrim 3408). What is considered "substantial" evidence supporting an entrapment instruction is decided by the judge on a case-by-case basis. For more information on the defense of entrapment as it relates to prostitution cases, contact our sex crimes criminal defense attorneys for a free consultation. Our sex crimes defense attorneys have successfully handled hundreds of misdemeanor and felony sex crimes in the Inland Empire. Our award-winning criminal defense attorneys handle charges of prostitution ( PC 647(b) ), operating a house of prostitution ( PC 315 ), pimping ( PC 266h ), lewd act on a child under fourteen ( PC 288(a) ), possession of child porn ( PC 311.1 ), indecent exposure ( PC 314 ), statutory rape ( PC 261.5 ), continuous sexual abuse of a child ( PC 288.5(a) ), annoy or moles a minor ( PC 647.6(a) ), and more. Call today! 909-913-3138 Related Articles (2025) Sodomy of Intoxicated Person PC 288.7 Law & Defense CA Sex Crimes & Penal Codes Pandering Crimes Defense Entrapment Defense & Prostitution Crimes (PC 647(b))

Sodom with an intoxicated person is charged under California penal code section 286(i) [PC 286(i)]. This overview discusses the law, the penalties, and the common defenses associated with PC 286(i). For further information, please contact our sex crimes criminal defense attorneys for a free consultation. PC 286(i) Law Any person who commits an act of sodomy, where the victim is prevented from resisting by an intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known by the defendant, is guilt of sodomy with an intoxicated person (PC 286(i) 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) Abbrev.). Note: Sodomy is often referred to as “anal sex” or “anal intercourse” outside of a legal context. To prove that the defendant is guilty of PC 286(i), the district attorney must prove all three of the following: The defendant committed and act of sodomy, The effect of an intoxicating substance prevented the victim from resisting, and The defendant knew, or reasonably should have known that the effect of the intoxicating substance prevented the victim from resisting (Calcrim 1032 Summarized). A person is prevented from resisting if he or she is so intoxicated that he or she is unable to grant legal consent (Calcrim 1032). Legal Consent: Legal consent occurs where a person can understand and weigh the physical nature of the act, its moral character, its probable consequences, and freely and voluntarily exercise judgement as to whether he or she desires to engage in that act. Note: An intoxicated person can legally consent to sodomy. It is the level of intoxication that is at issue in PC 286(i) cases, not the fact of intoxication. Example: John and Rita have a few alcohol beverages at a nightclub. Back at their home, and while feeling the effects of alcohol, John and Rita engage in consensual sodomy. Both John and Rita are not so intoxicated that they cannot legally consent (See Legal Consent above). Result: John is not guilty of PC 286(i). Reasonable Mistake: The defendant is not guilty of PC 286(i) if he or she actually, and reasonably believed the other person was capable of consenting to sodomy, even if that belief was wrong. Example: Jacob and Trista engage in sexual intercourse and sodomy while intoxicated. Before and during the act of sodomy, John reasonably believed that Trista was not so intoxicated that she couldn’t validly consent to sodomy, and Trista showed no hesitation to engage in sodomy. Nevertheless, Trista was, in fact, too intoxicated to grant legal consent: Result: Jacob is entitled to an acquittal because he truly believed (subjective test), and reasonably believed (object test), that Trista was sufficient sober to understand the nature of the act in which she engaged. PC 286(i) Punishment Prison Sentence: A violation of sodomy with an intoxicated person can lead to a three (3), six (6), or eight (8) year prison sentence, depending on the circumstances and facts of the case. Prison Presumptive: A conviction for PC 286(i) will lead to a prison sentence, not a local county jail sentence. Also, that prison sentence may not be “suspended” (not served on condition that the defendant violates no law), or “split” (served partially out of prison on work release). Probation Ineligible: A probation sentence is not allowed after a conviction or sodomy with an intoxicated person. Fifty Percent Crime: A prison sentence after a PC 286(i) conviction may be reduced by up to fifty percent (50%) if the inmate conducts himself with “good behavior” while in prison. For example, a prison sentence of eight years after a conviction for PC 286(i) may be reduced to four (4) years with good behavior. Three Strikes Law: Sodomy with an intoxicated person is not a “strike” offense as those terms are defined in the California law at 1192.7 and 667.5 ( “serious ” & “violent” felonies, respectively). Note: Even though PC 286(i) itself is not a “strike” offense, if the defendant has suffered two (2) prior “strike” convictions, before his conviction for PC 286(i), then his conviction for PC 286(i) may trigger a third “strike,” which could lead to a life in prison sentence. PC 290 Registration: Conviction of sodomy with an intoxicated person requires the defendant to register as a sex offender with the Department of Justice (PC 290). Failure to register as a sex offender after a conviction for PC 286(i) may be charged as separate crime (PC 290(b)). For more information, see Sex Offender Registration Requirements , Tier System for Sex Offenders in CA , & Petition to Terminate Sex Offender Registration . Attempted PC 286(i): It is possible to be charged with attempted sodomy of an intoxicated person (PC 664/286(i)). To attempt sodomy of an intoxicated is to make a “substantial, but ineffectual step, towards the commission of the crime, coupled with the specific intent to commit the crime.” (Attempted PC 286(i) = trying, but failing, to commit sodomy with an intoxicated person). Loss of Firearm Rights: The crime of sodomy with an intoxicated victim is a crime that will result in a lifetime ban on the ownership and possession of firearms upon conviction. In some situations, the defendant may restore his firearm rights after a PC 286(i) conviction if he successfully petitions the court for a certificate of rehabilitation . Crime Involving Moral Turpitude: PC 286(i) is a crime involving moral turpitude . A crime involving moral turpitude is any crime that involves deceit, fraud, or is otherwise considered morally wrong. Crimes involving moral turpitude, including PC 286(i), create massive negative consequences for non-United States citizen s (deportation), licensed professionals (revocation of license), and military personnel (discharge from the military). Further Punishment: Other punishments related to sodomy with an intoxicated person include possible restitution to victim for victim’s financial loss (if any), criminal protective orders (CPO), civil lawsuits, court fines and fees, extended parole lengths, and more. Note: In addition to any punishment imposed under PC 286, the judge may assess a fine not to exceed seventy dollars ($70) …, The court… shall 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 permitted under this subdivision (PC 286(m) Abbrev.). PC 286(i) Common Defenses Every sodomy with an intoxicated person allegation is based on different facts; therefore, there is not one particular defense that fits every PC 286(i) case. With that said, common defenses to penal code 286(i) cases include insufficient evidence to prove sodomy occurred, insufficient evidence to prove “victim” was intoxicated to the point where or she could not reasonably resist or grant consent, illegal search and seizure, statute of limitations , coerced confession, failure to properly Mirandize defendant before questioning, alibi defense , and more. Impeachment of Statements: Sodomy with an intoxicated person cases tend to incorporate impeachment of the alleged victim’s statements. Afterall, the alleged victim is asserting that he or she was too intoxicated to resist or grant consent to sodomy; therefore, the same alleged victim might have been too intoxicated to understand the context upon which the defendant relied in believing the alleged victim was not too intoxicated. Note: This same impeachment can be used to call into question the identity of the defendant where the identity is not corroborated with other evidence (i.e., seminal fluid evidence, DNA, confession, etc.). Consent Defense: The defense of consent is not available in PC 286(i) cases unless the prosecutor does not prove the alleged victim was too intoxicated to resist or grant consent. Example: The district attorney does not demonstrate sufficient evidence to prove the alleged victim is too intoxicated to resist or grant consent to the defendant. In addition, the district attorney never presents evidence that the alleged victim communicated a lack of desire to engage in sodomy with the defendant. Result: Defendant’s reliance on alleged victim’s implied consent (victim’s actions that demonstrated consent), should result in acquittal of the PC 286(i) charges. For more information on the crime of sodomy with an intoxicated person, also known as “sodomy by intoxicant,” or California penal code section 286(i), contact our sex crimes criminal defense attorneys today for a free consultation. Our team of successful and deeply experienced criminal defense attorneys have helped hundreds of criminal suspects charged with misdemeanor and felony sex crimes in the Inland Empire. Our award-winning criminal defense attorneys defend all sex crimes charges, including possession of child pornography ( PC 311.1 & 311.11 ), sexual battery ( PC 243.4 ), maintaining a brothel ( PC 315 ), indecent exposure ( PC 314 ), annoying or molesting a minor ( PC 647.6(b) ), lewd act upon a child under fourteen ( PC 288(a) ), unlawful sexual intercourse ( PC 261.5(c) ), prostitution ( PC 647(b) ), oral copulation ( PC 287 ), sexual penetration ( PC 289 ), child molestation , and more. Call today! 909-913-3138 Related Summaries (2025) Terminate PC 290 Registration PC 288(b)(1) Law & Defense Fail to Register as Sex Offender PC 266g Law & Defense Penal Code 288(a) Defense PC 286(i) Sodomy with Intoxicated Person: Law, Penalties, & Defense: Sex Crimes Criminal Defense

California penal code 286(g) includes information on the crime of sodomy of an incompetent person . This overview adds information about PC 286(g) that is not found in that code section, including information related defense of PC 286(g) crimes and punishment other than incarceration. For further information, contact our sex crimes criminal defense attorneys for a free consultation. PC 286(g) Law …a person who commits an act of sodomy, and the victim is at the time incapable, because of a mental disorder or developmental or physical disability, of giving legal consent, and this is known or reasonably should be known to the person committing the act, is guilty of sodomy with an incompetent person (PC 286(g) 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)). Ejaculation is not required for the crime of sodomy to be committed (Calcrim 1030). Note: Sodomy is more commonly referred to as either “anal sex” or “anal intercourse,” as the term “sodomy” itself has a negative connotation regardless of whether the anal intercourse is legal or illegal. A person subject to a conservatorship is not automatically regarded as an incompetent person per PC 286(g). The district attorney must prove, independently from the fact of a conservatorship, that a person is mentally disabled, and/or physically incapable, to the point that the person is incapable of granting valid consent when prosecuting a PC 286(g) case. Note: PC 286(g) is charged where the defendant is not himself confined to a mental hospital. When sodomy against an incompetent person is charged against a patient in a mental hospital, and the sodomy victim is also confined in the mental hospital, the crime is charged under penal code section 286(h), which carries less harsh incarceration penalties. PC 286(g) Punishment Prison Sentence: Conviction for Sodomy of an incompetent victim will lead to either a probation sentence (See Probation Sentence), or a prison sentence of either three (3), six (6), or eight (8) years, depending on the facts and circumstances of the case. Note: The “facts and circumstances” of the PC 286(g) case that are considered by the court when choosing a proper sentence include, but are not limited to, the level of sophistication used in committing the offense, the defendant’s criminal history, the relationship between the defendant and the sodomy victim, the remorse shown by the defendant, the terms of any negotiated plea bargain, and more. Prison Presumptive: A conviction for sodomy with an incompetent person will result in a probation sentence or a prison sentence. When probation is not granted after a conviction for penal code 286(g), the defendant must serve his sentence in a California state prison, not a local county jail. In addition, the defendant’s prison sentence may not be “split” or “suspended.” (PC 1170(h)). Fifty Percent Credit: A prison sentence related to a conviction for sodomy with an incompetent victim may be reduced by up to fifty percent (50%) is the defendant serves his prison sentence with “good behavior.” Example: John is convicted of penal code 286(g); he is sentenced to the low term (mitigated) prison sentence of three (3) years. John conducts himself with good behavior while in prison. Result: John will be released from prison in eighteen (18) months, or even earlier if he is released early on parole. Probation Sentence: A probation sentence is allowed in some PC 286(g) cases, but only if the judge finds there are “special” circumstances that justify a non-prison sentence. The “special” circumstances that justify a probation sentence after a conviction for sodomy with an incompetent victim include, but are not limited to, the defendant’s lack of criminal history, the otherwise good relationship between the defendant and victim, the lack of desire by the incompetent person (or his or her guardian) for prosecution, the showing of remorse and quick acceptance of liability by the defendant (early confession), and more. Probation Terms: If the defendant is granted a probation sentence after a PC 286(g) conviction, then the terms of his probation will include mandatory sex offender registration, restraint from contacting the victim, payment of restitution to the victim (for any financial loss), obey all laws (no new felony or misdemeanor violations while on probation), and more. Note: The judge may order a jail sentence as a “term of probation” in any PC 286(g) case; however, a jail term that is ordered as a term of probation is usually much shorter than the prison sentence that could have otherwise been ordered if the defendant was not granted probation and that jail sentence may usually, but not always, be served alternatively on work release or house arrest. This is an exception to the “prison presumptive” rule (See “Prison Presumptive” above). Three Strike Law: Sodomy of an incompetent person in not itself a “strike” offense under California’s Three Strikes Sentencing Law. Furthermore, PC 286(g) is not a serious or violent offense as those terms are defined at penal code 1192.7 and 667.5, respectively. Nevertheless, a conviction for PC 286(g), after two separate prior “strike” convictions, can lead to a life sentence. Moral Turpitude Crime: Sodomy of an incompetent person is considered a crime involving moral turpitude (CIMT). Conviction of any CIMT, including PC 286(g), can lead to severe negative consequences for non-United States citizens (deportation from the US), licensed professionals (revocation of license), and military personnel (discharge from the military). Sex Offender Registration: A conviction for sodomy of an incompetent person requires sex offender registration with the Department of Justice (DOJ). The length of sex offender registration and the exact requirements vary depending on the facts and circumstances of the case and the defendant’s risk of recidivism on a SARATSO or STATIC-99 score. For more information, see Sex Offender Registration Requirements , Tier Levels for Sex Offenses in CA , Petition to Terminate Sex Offender Registration , and STATIC-99 Evaluations . Additional Punishment: In addition to the penalties and punishments listed above, if found guilty of PC 286(g), the defendant may face civil lawsuits for battery and intentional infliction of emotional distress, court fines and fees, loss of scholarship opportunities, loss of family law rights, loss of living and travel privileges, long and harsh probation or parole conditions , and more. PC 286(g) Common Defenses Common defenses to a charge of sodomy with an incompetent victim include insanity defense, reasonable mistake of fact as to the level of incompetency exhibited by the victim, statute of limitations, coerced confession, Miranda Rights violations, impeachment of victim testimony, impeachment of scientific evidence, insufficient evidence to prove sodomy, illegal search and seizure , and more. Consent: Consent to engage in sodomy is not a defense in PC 286(g) cases. The point of PC 286(g) is that the victim was incompetent to the point where his or her consent is vitiated (rendered not valid). Post-Conviction Relief: After a conviction for sodomy upon an incompetent person, the defendant may have several post-conviction options, depending on the circumstances of the case, including appeal the criminal conviction, petition the court for a certificate of rehabilitation (PC 4852), motion for a expungement of the criminal charges (PC 1203.4), withdraw his “guilty” or “no contest” plea (PC 1018), request modification of a probation sentence (PC 1203.3), and more. For more information on the crime of sodomy with an incompetent person, or California penal code section 286(g), contact our sex crimes criminal defense attorneys today for a free consultation. Our successful and award-winning trial attorney will patiently explain your rights and options. We have helped hundreds of defendants charged with every type of misdemeanor and felony sex crime, and we can help you too. Our top-rated criminal defense attorneys handle all sex crimes defense in the San Bernardino and Riverside County areas, including Misdemeanor Child Molestation ( PC 647.6(a) ), Prostitution ( PC 647(b) ), Lewd and Lascivious Act Upon a Child Under Fourteen ( PC 288(a) ), Child Pornography Possession ( PC 311 ), Indecent Exposure with Prior ( PC 314.2 ), Unlawful Sexual Intercourse ( PC 261.5(c) ), Sexual Penetration ( PC 289 ), Oral Copulation ( PC 287 ), Sexual Battery ( PC 243.4 ), Send Harmful Matter to Child ( PC 288.2 ), and more. Call today! 909-913-3138 Recent Articles (2025) Penal Code 286(c)(2)(B) Law Continuous Sexual Abuse of Child Contact a Minor for Lewd Act PC 647(j)(4) Revenge Porn Petition to Seal PC 653.22 Case PC 286(g) Sodomy with Incompetent Person: Law, Punishment, & Defense