Sex Crimes Criminal
Defense Lawyers

Information on the crime of oral copulation against a minor is found at California penal code § 287(b) [PC 287(b)]. This article is a brief overview of the law, punishment, and common defenses related to PC 287(b)(1). For further information on California oral copulation crimes, please contact our sex crimes criminal defense attorneys today for a free consultation. PC 287(b) Law …any person who participate in an act of oral copulation with another person who is under the age of eighteen (18) is guilty of oral copulation with a minor (PC 287(b)(1) Abbrev.). …any person over the age of twenty-one (21), who participates in an act of oral copulation with another person who is under the age of sixteen (16), is guilty of oral copulation of a minor under sixteen (16) [PC 287(b)(2) Abbrev.). Oral Copulation Legal Definition: Oral copulation is the act of copulating [to have sexual intercourse] with the mouth of one person and the sexual organ or anus of another person (PC 287(a)). Oral copulation technical definition is fellatio (oral copulation of a male), or cunnilingus (oral copulation of a female). Common slang terms for oral copulation include “oral sex,” “blowjob,” and many more. PC 287(b) Punishment PC 287(b)(1) Classification: The crime of oral copulation on a minor under eighteen (18) is classified as either a misdemeanor, or alternatively, as a felony. This means that PC 287(b)(1) “wobbles” between two charging classifications (felony or misdemeanor). The crimes of oral copulation against a minor under sixteen (16), or PC 287(b)(2), is always charged as a felony. Note: Whether the defendant is charged with a felony or misdemeanor PC 287(b)(1) offense depends on many factors, including the amount of force used to commit oral copulation, the defendant’s criminal history, the circumstances of the case, the terms of any negotiated settlement between the defendant and the district attorney, if any, and more. Felony PC 287(b)(1) Prison Sentence: If found guilty of felony oral copulation under PC 287(b)(1), the defendant will face either a probation sentence (See Probation Sentence), or a fourteen (14) month, two (2) year, or three (3) year prison sentence. Note: Whether the defendant receives a low sentence of fourteen (14) months, the middle sentence of two (2) years, or the “aggravated” sentence of three (3) years, after a conviction for felony oral copulation charged under PC 287(b)(1), depends on the circumstances of the case, the defendant’s criminal history, and more. Misdemeanor PC 287(b)(1) Jail Sentence: If found guilty of misdemeanor oral copulation under PC 287(b)(1), the defendant may face up to a year in the county jail. Felony PC 287(b)(2) Prison Sentence: If found guilty of felony oral copulation under PC 287(b)(2), the defendant will face a probation sentence (See Probation Sentence), or a sixteen (16) month, two (2) year, or three (3) year prison sentence. Note: Whether the defendant receives a low sentence of sixteen (16) months, the middle sentence of two (2) years, or the “aggravated” sentence of three (3) years, after a conviction for oral copulation under PC 287(b)(2), depends on the circumstances of the case, the defendant’s criminal history, and more. Probation Sentence: for PC 287(b) Crimes: A probation sentence is a period of supervision, as opposed to a jail or prison sentence. A probation sentence is allowed in misdemeanor PC 287(b)(1) oral copulation cases without a showing of “special” circumstances; however, to receive a probation sentence in a felony PC 287(b)(1) or PC 287(b)(2) oral copulation case, the judge will have to find “special” circumstances in the case that justify a probation sentence, as opposed to a jail or prison sentence. Special Circumstance Justifying Probation Sentence: The “special circumstances” that justify a probation sentence in any felony PC 287(b) oral copulation case are non-exclusive, but generally include the following: lack of criminal sophistication; victim does not desire prosecution; terms of a probation sentence are agreed upon by the district attorney and defense counsel; defendant has no criminal history; defendant is amenable to probation terms , and more. Note: Length of probation is generally two (2) years in misdemeanor cases of oral copulation and up to five (5) years in felony oral copulation cases. However, if the defendant is “domestically” related to the victim in a misdemeanor oral copulation crime, then the minimum probationary period is three (3) years (PC 1203.097). Jail v. Prison Sentence: If the defendant is convicted of misdemeanor PC 287(b)(1), then he or she will be sentenced to either probation, or a local county jail. However, all felony oral copulation crimes, including PC 287(b) offense, are subject to California state prison sentences. Prison Sentence Terms: If the defendant is not granted a probation sentence in a felony oral copulation case, then his or her incarceration must be served in a California state prison. No part of that prison sentence may be split (served partially out of prison on work release),or suspended . Note: Prison sentences related to felony PC 287(b) crimes are subject to reduced “good behavior” credits while in prison, which means the defendant must serve at least eighty-five percent (85%) of his or her prison sentence. Sex Offender Registration: All misdemeanor and felony oral copulation criminal convictions require sex offender registration with the Department of Justice (DOJ). The length of sex offender registration for misdemeanor and felony violations of PC 287(b)(1), and felony violations of PC 287(b)(2) are covered in California’s Sex Offender Registration Tier System . Crime Involving Moral Turpitude: The crime of oral copulation, also known as “oral cop” in some charging documents, is a “crime involving moral turpitude,” or CIMT. A CIMT, including both misdemeanor and felony PC 287(b) crimes, carry more direct and indirect negative consequences than non-CIMTs. These negative consequences apply more harshly to non-US citizens, licensed professionals, and defendants enlisted in the military. Additional Punishment: In addition to a possible probation, jail, or prison sentence, a conviction for any oral copulation crimes will result in criminal protective orders in favor of the oral copulation victim, restitution to victim, court fines and security fees, civil lawsuits against the defendant, loss firearm rights (felony PC 287(b) cases), lengthy probation and parole commitments, mandatory registration as a sex offender (PC 290), and more. Defense to PC 287(b) Every oral copulation against a minor case is different; therefore, the defense to any case is unique to that case. However, some defenses are more common to PC 287(b) cases, including reasonable mistake of fact as to the age of the minor: statute of limitations , insufficient evidence to prove the defendant guilty beyond a reasonable doubt, coerced confession, illegal search and seizure , and more. Defense of Consent: The defense of consent is not available in PC 287(b)(1) or PC 287(b)(2) cases. This is because the minor cannot legally consent to engage in oral copulation. For more information on the crime of oral copulation with a minor (PC 287(b)(1) & PC 287(b)(2)), contact our sex crimes criminal defense attorneys today for a free consultation. Our team of high experienced and award-winning sex crimes defense attorneys have successfully handled hundreds of misdemeanor and felony sex crimes in the Inland Empire and we can help you too. Call today! 909-913-3138 Recent Articles (2025) Lewd & Lascivious Act Upon a Child Oral Copulation General Information Sexual Battery Crimes & Defense Soliciting Prostitution & PC 647(b) PC 287(b)(1) Oral Copulation Against a Minor: Law, Sentence, & Defense

In California, a criminal defendant may be ordered to register as a sex offender, upon criminal conviction or sentencing, if the court finds that the crime was committed because of sexual compulsion or for the defendant’s sexual gratification (PC 290.006). Mandatory v. Discretionary Registration Some California crimes require sex offender registration. In other words, the court has no choice but to order the defendant to register as a sex offender upon conviction. These crimes include any crime listed in California penal code section 290(c), including the following: Pandering Crimes ( PC 266i ) Pimping Crimes ( PC 266h ) Lewd Act on Child Under 14 ( PC 288(a) ) Continuous Sex Abuse of Child ( PC 288.5 ) Oral Copulation Crimes ( PC 287 ) Possession of Child Porn ( PC 311 ) Sexual Assault ( PC 220(a) ) Sodomy Crimes ( PC 286 ) Sexual Penetration Crimes ( PC 289 ) Sexual Battery ( PC 243.4 ) Annoy or Molest a Minor ( PC 647.6 ) Lewd Act on Child 14/15 ( PC 288(c) ) Lewd Act on Child w/Force ( PC 288(b) ) Send Harmful Matter ( PC 288.2 ) Rape Crimes ( PC 261 ) Incest ( PC 285 ) Aggravated Sex Abuse ( PC 269 ) Sexual w/Child Under 10 ( PC 288.7 ) Indecent Exposure Crimes ( PC 314 ) Sexual w/Confined Adult ( PC 289.6 ) Kidnap fo Sex Offense ( PC 209(b) ) Rape in Concert Crimes ( PC 264.1 ) Attempted Sex Offense , & More. Note: The length of sex offender registration for the above-listed offenses ranges from 10 year to life, depending on the offense committed. For more information on Sex Offender Tier Levels in California . Other California crimes do not require sex offender registration, but the court, its discretion, may require the defendant to register as a sex offender. These discretionary sex offender registration crimes include the following: Statutory Rape Crimes ( PC 261.5 ) Revenge Porn ( PC 647(j)(4) ) Video Person in Underwear ( PC 647(j)(2) ) Prostitution Crimes ( PC 647(b) ) Peeping Tom Crimes ( PC 647(j)(1) ) Public Lewd Conduct ( PC 647(a) ), & more. Important: A criminal court will not usually order sex offender registration for a discretionary registration crime unless the court finds that the defendant committed multiple and separate violations of a crime, which were motivated by either sexual compulsion, or for the defendant’s sexual gratification, and where the defendant showed no remorse for his or her conduct. Example: John is caught taking “upskirt” videos of unsuspecting ladies in a department store in violation of PC 647(j)(2) [ Video Person in Undergarments ]. PC 647(j)(2) is not a crime that requires sex offender registration; however, the court, in its discretion, orders John to register as a sex offender pursuant to PC 290.006. The court’s reasoning for using its discretionary authority is that the judge believes John takes the “upskirt” videos out of sexual compulsion and that he will not be able to control his criminal behavior even with his PC 647(j)(2) conviction. Tier-Level Registration for PC 290.006 Discretionary sex offender registration crimes will usually result in a tier-one level registration (PC 290(d)(1)); however, the court may, in its discretion, order a tier-two (20 years), or tier-three (life) registration, so long as the court explains its reasons on the record for deviating from the standard tier-one registration under PC 290.006. For more information, see Tier-Level Designation for Sex Offenses in California & Petition to Terminate Sex Offender Registration . PC 290.006 Law (Abbrev.) Per penal code 290.006, any person ordered by the court to register as a sex offender, who is not otherwise required to register as sex offender, shall so register, if the court finds at the time of conviction or sentencing that the person committed the offense because of sexual compulsion or for purposes of sexual gratification. Note: The court shall state on the record the reasons for its findings and the reasons for requiring registration (PC 290.006 Abbrev.). The person shall register as a tier one sex offender in accordance with PC 290(d)(1), unless the court finds the person should register as a tier two or tier three offender and states on the record the reasons for its finding (PC 290.006(b) Abbrev.). In determining whether to require the person to register as a tier two or tier three offender, the court shall consider all of the following: The nature of the registerable offense (PC 290.006(c)(1)). The age and number of victims, and whether any victim was personally unknown to the person at the time of the offense (PC 290.006(c)(2)). Note: A victim is personally unknown to the person for purposes of this paragraph if the victim was known to the offender for less than 24 hours. The criminal and relevant noncriminal behavior of the person before and after conviction for the registerable offense (PC 290.006(c)(3)). Whether the person has previously been arrested for, or convicted of, a sexually motivated offense (PC 290.006(c)(4)). The person’s current risk of sexual or violent re-offense, including the person’s risk level on the SARATSO static risk assessment instrument, and, if available from past supervision for a sexual offense, the person’s risk level on the SARATSO dynamic and violence risk assessment instruments (PC 290.006(c)(5)). For more information on mandatory versus discretionary sex offender registration in California, or penal code 290.006, contact our sex crimes criminal defense attorneys today for a free consultation. Our award-winning sex crimes attorneys have successfully handled hundreds of misdemeanor and felony sex crimes in the Inland Empire, including post-conviction relief issues such as certificate of rehabilitation , expungement of sex crimes , termination of sex offender registration , exclusion from the sex offender’s website , and more. Call today! 909-913-3138 Further Reading (2025) Attempted Rape Defense PC 288(a) Tier Level Confusion Expungement of Sex Crimes New Law for PC 653.22 Cases PC 290.006 Discretionary Sex Offender Registration

What is a “Habitual Sexual Offender?” A “habitual sexual offender” is a person who has been convicted of any sex crime listed in California penal code section PC 667.71(c), and who has previously been convicted of one or more sex crimes listed in that same section (See PC 667.71(c) List of Crimes). Example: In 2023, Jason is convicted of the crime of lewd and lascivious act upon a child under fourteen ( PC 288(a) ). In 2013, ten years before Jason’s 2023 PC 288(a) conviction, he was convicted of the same offense against a different victim. Result: PC 288(a) is a crime listed in PC 667.71(c). Therefore, upon Jason’s second PC 288(a) conviction, he will be considered a “habitual sexual offender.” This assumes Jason is charged with the special PC 667.71 allegation along with his subsequent PC 288(a) charges, and that allegation is found true by the trier of fact. Separate Conviction in Separate Proceedings Required Per PC 667.71, a separate conviction in a separate proceeding is required for the defendant to be classified as a “Habitual Sexual Offender.” Also, as stated, the special PC 667.71 allegation must be plead and proved against the defendant before the defendant will be classified as a "Habitual Sexual Offender." Example: In 2023, David is convicted of three counts of lewd and lascivious act upon a child under fourteen ( PC 288(a) ). All three of David’s PC 288(a) charges were part of the same criminal proceeding and David has no criminal history prior to his 2023 conviction. Result: David will not be classified as a “Habitual Sexual Offender” under PC 667.71 because all three PC 288(a) convictions were in the same proceeding. Not all California sex crimes qualify as “habitual sexual offender” crimes in California. Only the sex crimes listed in PC 667.71(c). California sex crimes that are notably absent from the “Habitual Sexual Offender” statute include indecent exposure ( PC 314 ), annoy or molesting a child ( PC 647.6 ), possession of child pornography crimes ( PC 311.1 , 311.11 , 311.311.(c)(2) , & More), incest ( PC 285 ), sexual battery ( PC 243.4 ), lewd and lascivious act upon a minor 14 or 15 years of age ( PC 288(c)(1) ), statutory rape ( PC 261.5 ), revenge porn ( PC 647(j)(4) ), pimping , pandering , and prostitution crimes ( PC 266 , 266h , 266i , & PC 647(b) ), send harmful material to a minor ( PC 288.2 ), and a few more. Example: In 2018, Rosa is convicted of indecent exposure ( PC 314 ). Subsequently, in 2023, Rosa is convicted of sending harmful material to a minor ( PC 288.2 ). Result: Rosa will not be classified as a “Habitual Sexual Offender” under PC 667.71. This is true even though both PC 314 and PC 288.2 are classified as registerable sex crimes in California. This is because neither PC 314, nor PC 288.2 is a crime covered by the “Habitual Sexual Offender” statute. Also, some categories of sex crimes have subsections that may, or may not, be listed in PC 667.71. In other words, it is not the name of the sex crime offense that controls whether it is listed in PC 667.71, but rather, the seriousness of the alleged sex crime offense. Example: the crime of oral copulation , charged as PC 287(b) [ oral copulation on a minor under 18 ], is not included in the list of crimes in PC 667.71(c); however, the crime of oral copulation , charged as PC 287(c) [ oral copulation by force ], is a crime covered under the PC 667.71(c) statute. PC 290(c) List of Crimes Related to “Habitual Sexual Offender” The following sex crimes are listed as registerable sex offenses in California (Abbrev. List). Rape … charged as either 261(a)(2) or 261(a)(6) Rape in Concert … charged as PC 264.1 Sexual Penetration in Concert … also charged at PC 264.1 Sexual Penetration … charged as either PC 289(a) or PC 289(j) Lewd and Lascivious Act Upon a Child … charged as either PC 288(a) or PC 288(b) Continuous Sexual Abuse of a Child … charged as PC 288.5 Sodomy … charged as either PC 286(c) or PC 286(d) Oral Copulation … charged as PC 287(c) or PC 287(d) Kidnapping to Commit a Sex Crime … charged as PC 209(b) Aggravated Sexual Assault of a Child … charged as PC 269 Note: The list of crimes in PC 667.71 does not include a few of the most serious sex crimes, including PC 288.7 ( sexual conduct against a child under 10 ). The reason for an exclusion of the some of the most serious sex crimes from the “Habitual Sexual Offender” statute is curious, but it is probably because these crimes already carry a life sentence upon conviction. PC 667.71 Punishment Prison Sentence: The "Habitual Sexual Offender" shall be punished by imprisonment in the state prison for 25 years to life (PC 667.71(b)). Also, no part of the habitual sexual offender’s prison sentence may be served out of prison on work release (aka “ split prison sentence”) or suspended (aka “ Joint Suspended Prison Sentence”) [PC 667.71(e) Abbrev.]. Note: The 25 years to life prison sentence for habitual sexual offenders only applies if the defendant’s status as a habitual sexual offender is alleged in the accusatory pleading (criminal complaint), and the defendant either admits the PC 667.71 special allegation in open court, or the special allegation of PC 667.71 is found to be true by the trier of fact (i.e., jury or judge in “court trial”) (PC 667.71(f) Summarized). Probation Sentence: A probation sentence is a period of supervision, as opposed to a jail or prison sentence. However, a probation sentence is not available for a defendant who is found to be a “Habitual Sexual Offender” (PC 667.71(e) Abbrev.). Sex Offender Registration: A person convicted of any crime listed PC 667.71(c) is required to register as a sex offender for the remainder or his or her life (See Sex Offender Registration Requirements and California’s Tier System for Sex Offender Registration . Additional Punishment: In addition to any prison sentence, if found guilty of the “Habitual Sexual Offender” statute, or PC 667.71, the defendant will suffer direct and indirect negative consequences and punishments related to military service, professional licensing, immigration status, civil lawsuits from victims, restitution to victims, criminal protective orders in favor of victims, court fines and fees, loss of scholarship for schooling, lengthy parole after prison , and more. PC 667.71 Defenses Every “Habitual Sexual Offender” special allegation is different. With that said, common defenses to PC 667.71 allegations include insufficient evidence to prove the underlying sex crimes offense, coerced confession, illegal Search and Seizure by law enforcement that leads to the inadmissibility of evidence, alibi defense, consent to sexual conduct (Not applicable in sex crimes against minors), insanity , and more. Limitations on Consent Defense: The defense of consent does not apply to sex crimes cases where the victim is a minor in California (Under 18 years of age), or where the defendant could not consent (disabled victim, unconscious victim, intoxicated victim, confined victim, etc.). Note: Depending on the circumstances, the statute of limitations defense might apply in some penal code 667.71 cases. The statute of limitations defense, as applied to serious and violent sex crimes listed in PC 667.71, is a complex subject beyond this overview. For more information, See Statute of Limitations in Sex Crimes and contact our Sex Crimes Defense Lawyers for a free consultation. For more information about California’s “Habitual Sexual Offender” statute, or penal code 667.71, contact our sex crimes criminal defense attorneys today for a free consultation. Our sex crimes defense team has successfully handled hundreds of sex crimes in the Inland Empire. Our award-winning trial attorneys will patiently explain your rights and defense options. We are available every day of the week for expert advice. Call today! 909-913-3138 Related Articles (2025) California “One Strike” Sex Crimes Entice Minor into Prostitution PC 288(a) Tier Designation Confusion Maintaining a Brothel Charges in CA PC 288.7 Sexual Conduct with Child List of Sex Crimes in California PC 667.71 "Habitual Sexual Offender" Law

California has carved out laws that are specifically related to medical professionals who allegedly sexually batter patients. The sexual battery laws that apply to medical professionals are found in California penal code section 243.4(b), (c), & (d). The following sexual battery laws apply to medical professionals (i.e., doctors, dentists, psychiatrist, physical therapist, nurses, etc.) who are acting in their professional capacity when the alleged sexual battery occurs. These sexual battery laws may also apply to non-medical professionals, but due to circumstances, the following penal code section will usually apply to medical professionals. Sexual Battery Laws Applied to Medical Professionals Per PC 243.4(b): Any person who touches an intimate part of another person who is institutionalized for medical treatment and who is seriously disabled or medically incapacitated, if the touching is against the will of the person touched, and if the touching is for the purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of sexual battery (PC 243.4(b) Abbrev.). Per PC 234.4(c): Any person who touches an intimate part of another person for the purpose of sexual arousal, sexual gratification, or sexual abuse, and the victim is at the time unconscious of the nature of the act because the perpetrator fraudulently represented that the touching served a professional purpose, is guilty of sexual battery (PC 243.4(c) Abbrev.). Per PC 243.4(d): Any person who, for the purpose of sexual arousal, sexual gratification, or sexual abuse, causes another, against that person’s will while that person is unlawfully restrained either by the accused or an accomplice, or is institutionalized for medical treatment and is seriously disabled or medically incapacitated, to masturbate or touch an intimate part of either of those persons or a third person, is guilty of sexual battery (PC 243.4(d) Abbrev.). “Touches” Defined: As used in PC 243.4(b), (c), and (d), “touches” means physical contact with the skin of another person whether accomplished directly or through the clothing of the person committing the offense (PC 243.4(f)) Abbrev.). “Intimate Part” Defined: As used in PC 243.4(b), (c), and (d), “intimate part” means the sexual organ, anus, groin, or buttocks of any person, and the breast of a female (PC 243.4(g)(1)). “Medically incapacitated” Defined: As used in PC 243.4(b), (c), and (d), “medically incapacitated” means a person who is incapacitated as a result of prescribed sedatives, anesthesia, or other medication (PC 243.4(g)(4)). “Institutionalized” Defined: As used in PC 243.4(b), (c), and (d), “institutionalized” means a person who is located voluntarily or involuntarily in a hospital, medical treatment facility, nursing home, acute care facility, or mental hospital (PC 243.4(g)(5)). The Punishment for Sexual Battery by Medical Professionals PC 243.4(b) Incarceration: A violation of PC 243.4(b) is punishable by imprisonment in a county jail for not more than one year, and by a fine not exceeding two thousand dollars ($2,000); or by imprisonment in the state prison for two, three, or four years, and by a fine not exceeding ten thousand dollars ($10,000). PC 243.4(c) Incarceration: A violation of PC 243.4(c) is punishable by imprisonment in a county jail for not more than one year, and by a fine not exceeding two thousand dollars ($2,000); or by imprisonment in the state prison for two, three, or four years, and by a fine not exceeding ten thousand dollars ($10,000). PC 243.4(d) Incarceration: A violation of PC 234.4(d) is punishable by imprisonment in a county jail for not more than one year, and by a fine not exceeding two thousand dollars ($2,000); or by imprisonment in the state prison for two, three, or four years, and by a fine not exceeding ten thousand dollars ($10,000). Length of Prison Sentence: The prison sentences related to felony conviction of PC 243.4(b), (c), and (d) range from two, three, or four years. This means the sentencing judge has an option to sentence the defendant to the low term (2 years), mid term (3 years), or the high term (4 years), depending on the presence of any mitigating or aggravating factors related to the defendant’s alleged offense. Probation Sentence: A probation sentence is a period of supervision by the court or by a probation officer, as opposed to an incarceration sentence (jail or prison). A probation sentence is allowed in sexual battery cases, including sexual battery cases related to PC 243.4(b), (c), and (d). However, a probation sentence is not guaranteed. Whether the medical professional receives a probation sentence after a conviction for probation depends on many factors, including the classification of crime (misdemeanor or felony), the terms of any negotiated plea bargain between the defendant and the district attorney, the defendant’s criminal history (if any), the level of sophistication involved in the offense, the number of victims, the remorse shown by the defendant (if any), and more. Felony Probation: If the defendant is granted a probation sentence after a felony conviction of sexual battery, then the defendant will be placed on “formal” probation. Formal probation is monitored by a felony probation officer. The probation sentence itself carries “terms of probation” that must be obeyed during the probationary period for the defendant to remain out of jail or prison. The terms of probation are varied from case to case, but in all cases, the terms of felony probation after a PC 243.4 conviction will include criminal protective orders in favor of any alleged victim, restitution to victim for financial loss, orders to violate no law (no misdemeanor or felony crimes while on probation), and more. Misdemeanor Probation: If the defendant is granted a probation sentence after a misdemeanor conviction of sexual battery, then the defendant will be placed on “court” probation, also known as “informal” probation, or “summary” probation. The terms of misdemeanor probation after a conviction for PC 243.4 are similar to the terms related to felony probation; however, the defendant will not usually be ordered to report to a probation officer during misdemeanor probation. Incarceration as a Term of Probation: It is possible (and common) that a term of probation includes a short period of incarceration; however, when a term of probation is to serve incarceration, that incarceration period is much shorter than the jail or prison sentence that would otherwise be imposed if the defendant had not been granted probation. Additionally, sometimes, the defendant may be allowed to serve any incarceration probation term alternatively on work release or house arrest. PC 1170(h) Sentencing: If the medical professional is found guilty of felony sexual battery, and he or she is not granted a felony probation sentence, then he or she must serve his or her incarceration in a California state prison, as opposed to a local county jail, and no part of that prison sentence may be served out of prison on work release (split sentence), or suspended. Sex Offender Registration: Medical professionals, and others, who are found guilty of sexual battery charged as penal code sections 243.4(b), (c), or (d), must register with the Department of Justice (DOJ), and local law enforcement agencies, as a California registered sex offender (PC 290. The length of sex offender registration is for life in felony PC 243.4(b), (c), and (d) cases (Tier Three Sex Offender Registration [PC 290(d)(3)], and for ten (10) years in misdemeanor sexual battery cases (PC 290). For more information, see Sex Offender Registration Requirements in CA . Three Strikes Law: Felony sexual battery crimes, including PC 243.4(b), (c), and (d), are not classified as “strike” offenses under California Three Strikes Sentencing law; however, if the defendant has suffered a prior “strike” conviction, then a felony sexual battery offense may trigger a “third strike.” This is rare with PC 243.4(b), (c), and (d) crimes because medical professionals will not usually be practicing as such if they already suffered a felony conviction. Firearm Restrictions: A felony conviction of sexual battery charged as PC 243.4(b), (c), or (d) will carry a lifetime ban of firearm ownership or firearm possession. A misdemeanor conviction of sexual battery will carry a ten (10) year ban on firearm ownership or possession. CIMT: Sexual battery crimes are classified as crimes involving moral turpitude (CIMT). A crime involving moral turpitude is any crime that involves immoral acts, or otherwise involves dishonestly. Crimes involving moral turpitude, include sexual battery crimes, carry direct and negative consequences with immigration status, professional licensing (loss of medical license, nurses license, etc.), military service, and more. Additional Punishment: In addition to a possible jail or prison sentence, or a possible probation sentence, additional punishments after a conviction for sexual battery will include civil lawsuits, criminal protective orders, restitution to victims, sex offender registration, court fines and fees, loss of scholarship opportunities, and more. Sexual Battery Defenses Related to PC 243.4(b), (c), and (d) Every sexual battery criminal allegation is based upon different facts; therefore, there is not one defense that fits best with any case in general. With that said, common defenses to sexual battery charges related to PC 243.4(b), (c), and (d), include insufficient evidence to prove sexual intent of the medical professional, consent of the patient to sexual touching (not applicable in cases where the victim is incapable of consent), Miranda Rights violations, coerced confessions, illegal search and seizure of evidence, alibi defense, false allegations against medical professionals for financial gain, statute of limitations , and more. Reclassification: In some cases, where a felony sexual battery allegation has been levied against the medical professional, the defendant may have that felony charge reduced to a misdemeanor charge. This is allowed where the interest of justice is best served by reclassification of the sexual battery charge. Note: The reclassification of a felony sexual battery charge to a misdemeanor sexual battery charge is not a true defense in the sense that the defendant’s case is dismissed, or the defendant is found “not guilt.” Rather, the reclassification is part of an overall defense strategy to minimize the defendant’s penalty exposure. For more information on California’s sexual battery laws for medical professionals (i.e., doctors, physical therapists, dentists, nurses, etc.), or penal code sections 243.4(b), (c), or (d), contact our sex crimes criminal defense attorneys for a free consultation. Our award-winning sex crimes defense attorneys have successfully handled hundreds of misdemeanor and felony sex crimes in the Inland Empire. We are trial attorneys with a successful trial record in sex crimes defense and we can help you too. Call today! 909-913-3138 More Articles (2025) Pimping & PC 266h Pandering & PC 266i Prostitution & PC 647(b) Sexual Battery Law & Defense PC 243.4(b), (c), (d): Sexual Battery by Medical Professionals

As a sex crimes criminal defense attorney, one of the most common questions I am asked is ‘does a PC 288(a) conviction require a tier-two or tier-three sex offender registration requirement under California’s new sex offender registration tier system?’ Well, the answer is that it depends on several factors unique to the defendant's conviction. In other words, a PC 288(a) conviction, also known as a conviction for lewd and lascivious act upon a child under fourteen (14) , may be classified as either a tier two (20-year sex offender registration requirement), or a tier three (lifetime sex offender registration requirement) under California’s new PC 290.5 law "Termination of Sex Offender Registration Requirement." In this article, we discuss the confusion related to the application of PC 290.5 for PC 288(a) crimes, how to correctly identify the proper tier level for registrants convicted of Penal Code 288(a), how to dispute a tier-level designation from the Department of Justice (DOJ), how to petition the court for termination of sex offender registration after a PC 288(a) conviction, and other post-PC 288(a) conviction relief options. Note: This article does not discuss the termination of sex offender registration requirements for non-PC 288(a) cases. The reason is that most sex crimes, and their respective tier-level designation, is straight forward and easy to understand, but PC 288(a) tier level designation has caused great confusion, even among criminal defense attorneys who do not practice sex crimes post-conviction relief law. For information on Termination of Sex Offender Registration for non-PC 288(a) crimes, see PC 290.5 Petitions , Duty to Register as a Sex Offender , and California’s New Sex Offender Three-Tiered Sex Offender Registration Law . Confusion Related to PC 288(a) Tier Level Designation Confusion in PC 290 Law: Part of the confusion as to whether a PC 288(a) falls under tier two or a tier three classification stems from the language of law of PC 290 itself. The law's only reference to PC 288(a) is in tier three (PC 290(d)(3)), but certain conditions must apply for PC 288(a) to be considered a tier three classification. If those conditions don’t apply, the reader must figure out what tier level he is in by reference to other obscure laws, such as PC 1192.7(c), PC 667.5(c), PC 290.004, and so forth. For non-lawyers, this can be difficult to navigate. Confusion in PC 290.5 Legal Forms: Another reason there is confusion as to whether PC 288(a) falls info a tier two or tier three classification is that the forms that are required in any petition to terminate sex offender registration refer to a PC 288(a) conviction as a tier three. As stated, this is a proper classification in some PC 288(a) cases, but not all PC 288(a) cases. Confusion in PC 288(a) v. 288a: Furthermore, confusion as to whether a PC 288(a) conviction falls under a tier two or three classification under California’s new three-tiered sex offender registration law is caused by the fact that PC 288(a) and PC 288a look very similar, but in fact, they are very different laws. PC 288(a) refers to a lewd and lascivious act upon a child under the age of fourteen , and PC 288a refers to oral copulation crimes that were charged before 2017. Some former PC 288a crimes are classified as tier three level registration without exception. Note: In 2017, and before the passage of PC 290.5 ( Termination of Sex Offender Registration Petitions ) oral copulation crimes were charged under PC 288a, which obviously looks very similar to PC 288(a) to persons who do not practice criminal defense law. To avoid further confusion between these penal code sections, the law of oral copulation crimes was changed from PC 288a crimes to PC 287 crimes , while PC 288(a) remained the penal code section that reference the crime of lewd and lascivious act on a child under 14 . How to Properly Identify PC 288(a) Tier Level Designation A PC 288(a) conviction, also known as a conviction for lewd and lascivious act upon a child under fourteen (14) , is classified as a tier two, twenty (20) year duty to register as a sex offender, under California’s new tier system for sex offender registration, unless any of the following apply: The defendant’s conviction for PC 288(a) follows a conviction for a registerable offense (Prior sex crimes conviction) [PC 290(d)(3(A) Abbrev.)] The defendant’s conviction for PC 288(a) required a commitment to a state mental hospital as a sexually violent predator (PC 290(d)(3)(B) Abbrev)). The defendant’s PC 288(a) conviction was in connection to attempted murder (PC 290(d)(3)(C)(i) Abbrev.)). The defendant’s PC 288(a) conviction was committed during the course of a kidnapping (PC 290(d)(3)(C)(ii) Abbrev.)). The defendant’s risk level on the static risk assessment instrument for sex offenders (SARATSO & STATIC-99) is well above average risk at the time of defendant’s release into the community (PC 290(d)(3)(D) Abbrev.). The defendant was convicted of two or more violations of penal code 288(a) in separate proceedings, which were tried separately (PC 290(d)(3)(F) Abbrev.). The defendant was ordered to register as a sexually violent predator after a conviction for PC 288(a) (PC 290(d)(3)(H) Abbrev.). When Is My Tier Level Designation Assigned A tier level for PC 288(a) is assigned within twenty-four (24) months after the defendant’s release from custody or release from probation. In some cases, a PC 288(a) designation may be classified as “to be determined” while the Department of Justice (DOJ) attempts to place the defendant in the proper tier level. When the classification is "to be determined," the PC 290 registrant must continue to register as a sex offender until the correct classification is resolved. How to Dispute Tier Level Designation in PC 288(a) Cases A tier level designation for penal code 288(a) crimes may be disputed by using the “Department of Justice Tier-Level Dispute Form.” For more information on disputing a PC 290 tier level for PC 288(a) crimes, contact our sex crimes criminal defense lawyers for a free consultation. How to Petition the Court for Termination of Sex Offender Registration (PC 290.5) To petition the court for termination of sex offender registration pursuant to PC 290.5, please see our page on termination of sex offender registration . Keep in mind that the page on termination of sex offender registration is general information; PC 288(a) crimes require more careful analysis due to confusion of tier-level designation PC 288(a) convictions. Parole Length Unchanged As stated, a Penal code 288(a) conviction requires either a two-two (20 years sex offender registration) or tier-three (life-time sex offender registration). Either way, the parole length after a prison sentence for PC 288(a) does not change. The minimum parole length for PC 288(a) convictions is twenty years from the date of release on parole, but this length of parole may be extended or shortened under certain conditions. For more information, contact our sex crimes criminal defense attorneys for a free consultation. More PC 288(a) Post-Conviction Relief Options Additional post-conviction relief options for PC 288(a) crimes include: withdraw of a guilty or “no contest” plea; appeal the felony conviction after trial; apply for a direct pardon from the California Governor , and more. For more information on the law regarding termination of sex offender registration for lewd and lascivious act upon a child under 14 (PC 288(a)), or more information on California’s new sex offender tier level designation for PC 288(a) convictions, contact our sex crimes criminal defense attorneys today for a free consultation. Our award-winning sex crimes defense lawyers have successfully handled hundreds of lewd and lascivious act cases in the Inland Empire, including the cities and court of Redlands, Ontario, Rancho Cucamonga, Fontana, Rialto, Victorville, Riverside, Colton, Yucaipa, San Bernardino , and more. Call today! 909-913-3138 Related Articles (2025) PC 288(a) Law & Defense Expunging a Sex Offense Conviction PC 311.6 Obscene Live Conduct PC 647(j)(2) Video Person in Undergarments Entice Minor into Prostitution PC 266

Preliminary Information The California Department of Justice (DOJ) has developed a Three-Tiered Sex Offender Registration System in response to the passage of Senate Bill 384, which is now codified at California penal code section 290.5 PC. Under the new three-tiered sex offender registration system, California registered sex offenders must register with the DOJ as a sex offender for either ten (10) years, twenty (20) years, or for the rest of their life, depending on the sex crime offense committed and the risk of recidivism as determined by a STATIC-99 risk-assessment score or equivalent evaluation. Note: Prior to the passage of senate bill 384, registered sex offenders were required to register with the DOJ as sex offenders for the rest of their life, regardless of what the sex offense was committed by the registrant. For example, prior to SB 384, a defendant who was convicted of misdemeanor indecent exposure ( PC 314 ) was required to register as a sex offender for the same length of time as a defendant who was convicted of rape by force or fear ( PC 261(a) ). This inequity in punishment led to the passage of SB 384, which was later codified at California penal code section 290.5 PC. Petition to Terminate Sex Offender Registration (PC 290.5) Per PC 290.5, some California registered sex offenders may now petition the court for termination of the duty to register as a sex offender. To qualify for relief under PC 290.5, the petitioner must file a petition to terminate PC 290 sex offender registration (no automatic termination), wait the requisite time period after release from custody (see below), not be serving a sentence for any criminal conviction, and not have criminal charges pending (other requirements may apply depending on the defendant particular tier level and circumstances). Mandatory Minimum Registration Periods A PC 290.5 petitioner must wait a minimum amount of time after his or her release from custody for which he or she was required to register as a sex offender. The minimum amount of time requirements are as follows: Tier One: Ten (10) years of sex offender registration from the release of custody Tier Two: Twenty (20) years of sex offender registration from the release of custody Tier Three Based on High-Risk Assessment: (20) years of sex offender registration from the release of custody if tier three is based on high-risk assessment only, and Tier Three: Lifetime sex offender registration What Tier-Level Have I Been Assigned? The sex offender tier level is determined by the DOJ upon release from custody. In most cases, the registrant will receive a letter from the DOJ which informs the registrant of the tier-level that has been assigned to him or her. With some exceptions, especially for tier three registration, the following common sex crimes result in the following tier level designations: Tier One: Ten-Year Registration Requirement: Tier one is reserved for sex crimes with little to no physical contact with another person, including misdemeanor annoy or molest a child ( PC 647.6 ), misdemeanor indecent exposure ( PC 314 ), misdemeanor possession of child pornography ( PC 311.11 ), misdemeanor sexual battery ( PC 243.4 ), and any non-violent crime for which sex offender registration was ordered pursuant to PC 290.006, but is not otherwise required under PC 290(c) [i.e., where judge orders sex offender registration in some prostitution cases ( PC 647(b) ), public lewd act cases ( PC 647(a) ), or statutory rape cases ( PC 261.5 ), but where registration is not otherwise required without the judges specific order (PC 290.006)]. Tier Two: Twenty-Year Registration Requirement: Tier two is reserved for non-violent sex crimes that are more serious than tier one sex offenses, but not as serious as tier three sex offenses. Tier two sex offenses include felony sexual battery ( PC 243.4 ), incest ( PC 285 ), sodomy on incompetent person ( PC 286(g) ), oral copulation on an incompetent person ( PC 287(g) ), sexual penetration by object on an incompetent person ( PC 289(b) ), and felony conviction of annoy or molest a child ( PC 647.6(b) ) Tier Three: Life-Time Registration Requirement: Tier three is reserved for defendant’s convicted of the most serious and violent sex offenses, including, sex trafficking of a child ( PC 236.1 ), sodomy by force or violence ( PC 286 ), aggravated rape ( PC 261 ), sexual penetration by force on a minor ( PC 289 ), sodomy ( PC 286 ), oral copulation or sexual penetration of a minor under ten ( PC 288.7 ), aggravated sexual assault of a minor ( PC 269 ), lewd act upon a child under 14 ( PC 288(a) ), continuous sexual abuse of a child ( PC 288.5 ), kidnapping for a sex offense ( PC 209(b) ), felony conviction of possession of child pornography ( PC 311.1 , 311.11 ), any person required to register as a sexually violent predator (SVP), and more. Note: A defendant may be placed in tier three based solely on his or her risk-assessment level. However, when a tier three level is assigned only because of the defendant’s risk assessment level, then his or her sex offender registration requirement is reduced to twenty years in some situations. Juveniles & SB 384: SB 384 creates a two-tiered system for juvenile sex offenders. For the most part, felony sex crimes listed in PC 290(c), which are committed by juveniles, require a ten-year sex offender registration, and misdemeanor sex crimes listed in PC 290(c), which are committed by juveniles, require a five-year sex offender registration requirement. What if I am Assigned the Wrong Tier Level The DOJ provides a dispute process along with its tier level designation. If the petitioner disputes the tier level in which he or she has been placed by the DOJ, the petitioner may dispute the designation. Disputing a designated tier level should be handled by a competent sex crimes defense attorney familiar with this dispute process. Changing Tier Levels A defendant’s sex offender tier level does not change without a successful dispute to the DOJ; however, the amount of time required for registration may change in a few situations. In fact, a twenty-year tier level designation from the DOJ (tier two) will not inform the petitioner that his or her minimum registration period is only ten years (tier one) for certain sex offenses, including non-violent sex offenses involving only one sex offense victim, and where the one victim was older than 14. (Note: Does not apply to lewd act upon a child under 14 ( PC 288(a) ), or human sex trafficking crimes ( PC 236.1 ). Similarly, the DOJ designation letter does not inform the defendant that his tier three designation (lifetime registration) may be reduced to a twenty-year registration when the tier three designation is only due to the registrant’s risk-assessment level and the sex crimes was not classified as a serious or violent offense (PC 1192.7, and PC 667.5, respectively). This does not apply to a lewd and lascivious act upon a child under 14 crime ( PC 288(a) ). Release From Custody Defined Per PC 290.5, “release from custody” means release from incarceration or civil commitment (mental hospital). Time Period Extended The time period from release from custody to the end of the sex offender's tier level may be extended when the defendant is reincarcerated for a violation of probation, when the defendant fails to register as a sex offender, when the defendant serves any custody time served on any new offense, including non-sex offenses, or where the court determines that extension of the time period would meet the interest of justice (see below). What Tier Level Am I in For Out-of-State Sex Crimes When a person is convicted of a sex crime from another state (not California), and he or she moves to California, then the elements of the out-of-state sex offense are used to determine which tier level would best meet California’s equivalent sex crime. Do I Have to Register as a Sex Offender if I Move out of California? If a sex offender registrant moves from California to another state, then whether that person has to register as a sex offender in the new state depends on the new state’s registration requirements, not California’s registration requirements. There are some exceptions to this rule for military personnel, which might require registration in a new state even if the new state does not otherwise require sex offender registration. What Information Do I Have to Register Per PC 290 The information that must be registered with local law enforcement and the DOJ is covered in Sex Offender Registration Requirements . IMPORTANT: A petitioner must continue to register as sex offender pursuant to PC 290 rules unless and until the petitioner is successful on his or her PC 290.5 petition to terminate sex offender registration, and he or she receives confirmation of this from the DOJ. Megan’s Law Website Exclusion Successful PC 290.5 petitioner’s will have their name and other information removed from Megan’s law sex offender website; however, some sex offender registrant’s may qualify for name removal from the sex offender website even without a successful PC 290.5 petition. For more information on the law related to name removal from California’s DOJ sex offender website, see PC 290.46 . Note: The law on name removal from the DOJ’s sex offender website has undergone changes with the passage of SB 384. In fact, in some cases, a registrant whose name and information were previously undisclosed pursuant to PC 290.46, may now have their name and information disclosed to the public. This may lead to a possible Ex-Post Facto defense for some sex offender registrants, which means the new SB 384 and PC 290.46 law might not apply to them). For more information, see PC 290.046 & Exclusion from Megan’s Law Sex Offender Website . Is My Tier Level Post on Megan’s Website? No. A sex offender registrant’s tier level is not posted on the DOJ’s sex offender registry (Megan’s Law Website). Do I Need to Expunge My Sex Crime First? No. A PC 290.5 petition to terminate sex offender registration does not require an expungement of the underlying sex offense; however, it is not uncommon for a sex crimes defense attorney to file both the PC 290.5 petition and an expungement of the underlying sex offense simultaneously. Strategic reasons might exist for not filing both the PC 290.5 petition and an expungement petition simultaneously. For more information, contact our sex crimes criminal defense attorneys and visit Expungement of Sex Crimes in California . How Long Does the Petition Take? The petition to terminate sex offender registration can take as little as thirty (30) days or as long as year, depending on the situation, including the petitioner’s tier level designation, any dispute of tier-level designation with the DOJ, the court’s calendar, and more. It is not uncommon for a PC 290.5 petition to take many months where the petitioner’s tier level designation is a tier three, which is based on the petitioner’s risk-assessment level only, and where the petitioner has multiple “tolling” issue based on allegations of failure to register as a sex offender ( PC 209(b) ), or new criminal offenses. A "tolling" of the time period means the time period stops for some reason. For example, a tier one sex offender registrant must normally wait ten years from the release of custody to petition the court for termination of sex offender registration; however, if the defendant fails to register as a sex offender during those ten years, then an additional year will be added to the minimum time period for every act of failure to register. What Happens if the Court Denies My Petition? If the criminal court denies the petitioner’s PC 290.5 petition, then the court will either let the petitioner know that he or she does not qualify for such relief (tier three with no exceptions), or the court will extend the period of registration to meet the interest of justice. The extension periods are as follows: Tier 1 & Tier 2 (Adult): At least one year from the date of court’s denial on petitioner’s PC 290.5 petitioner, but not to exceed five years, based on the facts illuminated at the PC 290.5 hearing. Tier 2 (10-Year Registration Exception: At least one year from the date of court denial on petitioner’s PC 290.5 petition to terminate sex offender registration. Tier 3 (based on risk assessment level): At least three years from the date of court’s denial on petitioner’s PC 290.5 petition to terminate sex offender registration. Note: The above-listed extended time periods are extensions in addition to any time period extension for tolling issues or time added for failure to register as sex offender. Forms Required for PC 290.5 Petition The California Judicial Counsel has produced forms that must be used for PC 290.5 petitions to terminate sex offender registration (PC 290 registration). These forms can be found at CR-415 Petition to Terminate Sex Offender Registration (Pen. Code, § 290.5); CR-416 Proof of Service – Sex Offender Registration Termination (Pen. Code § 290.5); and CR-418 Order on Petition to Terminate Sex Offender Registration (Pen. Code § 290.5). Additionally, there is an information sheet provided by the Judicial Counsel of California, which can be found at CR-415 INFO Information on Filing a Petition to Terminate Sex Offender Registration . Note: The required forms for termination of sex offender registration should get the process started. In some cases, this is all that the petitioner needs to file. The court can rule on the issue without an evidentiary hearing in some cases. However, if the district attorney requests a hearing on the matter, then additional legal paperwork should be filed with the court and served on all interested parties, including possible declarations of the petitioner with attached exhibits and evidence and any required local forms. For contested PC 290.5 petition, the petitioner should engage the services of either the public defender or a private sex crimes defense attorney . Certificate of Rehabilitation & PC 290.5 Petitions? Prior to the passage SB 384 and PC 290.5, a sex offender registration (PC 290 registrant) could petition the court for a certificate of rehabilitation (PC 4852). A successful certificate of rehabilitation petition would relieve the petitioner of his or her duty to register as a sex offender in some cases. However, new SB 384, PC 290.5, and PC 4852 rules requires a successful PC 290.5 petition before the petitioner may petition the court for a certificate of rehabilitation. This creates a new procedural requirement for PC 4852 petitioners that did not exist prior to the passage of SB 384 and PC 290.5; therefore, a petitioner might have an Ex-Post Facto Defense to the new law’s application against him or her. Also, a certificate of rehabilitation for sex offense requires the sex offense conviction to be expunged. This law is unchanged after passage of SB 384 and PC 290.5 [PC 1203.4 & PC 4852]. Therefore, a certificate of rehabilitation is not available in sex crimes related to lewd and lascivious act upon a child under fourteen ( PC 288(a) ), felony statutory rape ( PC 261.5(d) ), felony possession of child porn cases ( PC 311.1 , 311.3, or 311.11 ), continuous sexual abuse of a child ( PC 288.5 ), sexual penetration by object of a child under 14 ( PC 289(j) ), oral copulation crimes charged under PC 287(c) , or sodomy crimes charged under PC 286(c) . Note: Certificate of Rehabilitation law and Ex-Post Facto Defense is a complex area of law. PC 290 sex offender registrants seeking a certificate of rehabilitation should consult with an experienced sex crimes criminal defense attorney before moving forward on his or her petition. For more information on California’s new sex offender three-tier level registration requirements, including information on SB 384, PC 290.5 ( Petition to Terminate Sex Offender Registration ), PC 1203.4 ( Expungement of Sex Crimes ), or PC 4852 ( Certificate of Rehabilitation for Sex Crimes ), contact our sex crimes criminal defense attorneys today and visit California's Tier System for Sex Offender Registrants . Our team of successful and award-winning sex crimes criminal defense attorneys have helped hundreds of defendants charged with all manner of felony and misdemeanor sex crimes in the Inland Empire and we can help you too. Call today! 909-913-3138 More Articles (2025) Expungement of Sex Crimes CA "One Strike" Sex Crimes Child Molestation Crimes & PC 288 PC 209(b) Law, Sentence, & Defense

With some exceptions, an expungement of a person’s prior criminal conviction under penal code 1203.4(a) - 1203.425 means his or her criminal conviction is virtually erased from the public’s view (See Exceptions Below). Note: An expungement of felony or misdemeanor sex crimes does not relieve the defendant from the duty to register as a sex offender if the sex crime is one that requires sex offender registration under penal code 290 (PC 290.007). For information on termination of sex offender registration requirements, see PC 290.5 . In California, an expunged criminal conviction appears as a ‘dismissed’ criminal accusation to the public. Upon successful petition for expungement, the criminal court will "set aside" the defendant’s conviction, allow the defendant to withdraw his guilty plea, or ‘no contest plea,’ and enter a ‘not guilty’ plea on behalf of the defendant. Thereafter, the court will dismiss the defendant’s criminal allegation, and with some exceptions, the defendant will be released from all penalties and disabilities of the conviction (PC 1203.4(a) Abbrev.). An expungement of a criminal conviction, especially a conviction for sex offenses, is great for defendants seeking to clean criminal history, gain better employment opportunities, gain better housing opportunity, and restore their reputation. Note: An expungement is also an underlying requirement for persons seeking to petition the court for a certificate of rehabilitation . Most felony and misdemeanor convictions are expungable in California; however, there are exceptions. Per California penal code section 1203.4(a), an expungement is not available for person’s convicted certain sex crimes, including: Sodomy , charged as PC 286(c) , Lewd and lascivious act upon a child under 14 , charged as PC 288(a) , Oral copulation , charged as PC 287(c) , continuous sexual abuse of a child , charged as PC 288.5 , Sexual penetration , charged as PC 289(j) , Possession of child pornography , charged as either PC 311.1 , 311.2 , 311.3 , or 311.11 , and Felony statutory rape charged as PC 261.5(d) . Expungement Requirements: Per PC 1203.4(a), to qualify for an expungement, the defendant must have successfully completed probation, must not have been ordered to a California state prison (some exceptions under PC 1203.4(b)), must not be facing new criminal allegations, must not be serving a sentence at the time of his or her petition, and must not have been convicted of certain enumerated sex crimes (See above). Note: Misdemeanor offenses that are not available for expungement under PC 1203.4(a), might otherwise be available for expungement under PC 1203.4a, including misdemeanor violations of possession of child pornography , charged under PC 311.1 , 311.2 , 311.3 , or 311.11 . Expungement Limitations: If the defendant is successful with his petition for expungement, he or she will still be required to report the conviction to some parties and agencies, including truthful responses regarding the prior conviction in response to any questionnaire or application for public office, or licensure by any state or local agency… (PC 1203.4(a)(1) Abbrev.). Also, a successful petition for expungement does not restore a defendant’s firearm rights (PC 1203.4(a)(2); vitiate an unexpired criminal protective order (PC 1203.4(a)(4)); or terminate the duty to register as a sex offender . Other limitations may apply. Sex Offender Registration: According to penal Code 290.007, the duty to register as a sex offender is not relieved even if the defendant is otherwise successful on his or her expungement petition (PC 290.007). Note: The main difference between PC 1203.4(a) and PC 1203.4a, is that PC 1203.4(a) applies to both felony and misdemeanor crimes and the defendant must have been granted probation to be eligible for expungement, and PC 1203.4a allows expungement of most misdemeanor, including most sex crimes misdemeanors, even when the defendant was sentenced to jail. PC 1203.41 Expungement of Sex Crimes Some sex crimes, which are not expungable under PC 1203.4(a) or PC 1203.4a above, might otherwise be expungable under California penal code section 1203.41. PC 1203.41 covers crimes that were previously not expungable because the defendant was sent to prison, which generally makes expungements unavailable. However, after the passage of new California prison resentencing laws in 2011, the court is allowed to grant expungement to defendants who were sentenced to prison, but who would have been sentenced to county jail, if the defendant was sentenced under CA's new resentencing laws had existed at the time of sentencing the defendant (PC 1170(H)). PC 1203.41 makes many more felony crimes eligible for expungement that were previously barred because of the ‘no prison sentence’ requirement under PC 1203.4(a) and PC 1203.4a. For purposes of sex crimes, penal code section 1203.41 adds a few sex offenses to the list of expungement-eligible sex crimes, including felony statutory rape ( PC 261.5(d) ), which is specifically not expungable under either PC 1203.4(a) or PC 1203.4a., and prostituting of wife ( PC 266g ). Regardless of what code section the petitioner uses for expungement, there are limitations as how that expunged criminal record may be used to certain parties and agencies (i.e., must be truthful about the conviction to licensing agencies, work with the lottery commission, expungement does not overturn an unexpired criminal protective order, expungement does not terminate a duty to register as a sex offender, etc.). Note: Expungement for sex crimes under PC 1203.41 is ‘discretionary’ with the court. Certificate of Rehabilitation: A certificate of rehabilitation is a statement from the court that the defendant is rehabilitated from his crime. A successful expungement is a prerequisite for a petitioner to petition the court for a certificate of rehabilitation (PC 4852); however, as stated, certain sex crimes convictions are not eligible for an expungement under PC 1203.4(a), 1203.4a, or PC 1203.41; therefore, the certificate of rehabilitation is also not available for these enumerated sex crimes (See list above). Petition to Terminate Sex Offender Registration & Expungement: A person seeking to terminate sex offender registration under California's new Tier System for sex offender registrants, is not required to first secure an expungement. Therefore, certain sex crimes, which are otherwise not expungable, may nevertheless qualify for termination of sex offender registration (PC 290.5). In other words, some sex crimes convictions remain on the defendant’s criminal history, but the duty to register as a sex offender pursuant to those convictions might be terminated. For more information on how to terminate sex offender registration, with or without expungement of the sex crime, see Terminate Sex Offender Registration . For more information on the law of expungement as it applies to California sex crimes convictions, or to get started on expunging a sex crimes conviction, contact our successful team of sex crimes criminal defense attorneys today. Our office is open seven days a week to answer your questions; we have successfully defended hundreds of criminal defendants charged every type of misdemeanor or felony sex crime, including engage in public lewd acts, lewd acts on children (child molestation), indecent exposure, annoy or molest a minor, statutory rape, sexual battery, possession of child porn, prostitution, oral copulation , and more. Call today! 909-913-3138 Further Reading (2026) Terminate Sex Offender Registration Certificate of Rehab. for Sex Offenses CA Tier System for Sex Offenders Expungement of Sex Crimes Convictions PC 1203.4

California penal code section 311.11(C)(2) covers the law and punishment related to the unlawful possession of child porn depicting sadomasochistic material . This article covers the law, punishments, and common defenses related to penal code 311.11(C)(2). For more information, contact our sex crimes criminal defense attorneys for a free consultation. Note: Possession Child Pornography is also known as possession of obscene material depicting a child under the age of 18 (PC 311), or Child Sexual Assault Material (CSAM) . PC 311.11(C)(2) Law Every person who knowingly possesses any… image, including, but not limited to, any film…, photograph…, video…, computer hardware, computer software…, data storage media…, or computer-generated equipment, or any other computer-generated image that contains or incorporates in any manner, any film…, the production of which involves the use of a person under 18 years of age, knowing that the matter depicts a person under 18 years of age personally engaging in or simulating sexual conduct…, is guilty of possession of child porn (PC 311.11(a) Abbrev.). Sexual Conduct means... 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…, 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 311.4(d)(1) Abbrev.). Sadomasochistic Material: Sadomasochistic material, in the context of possession of child porn crimes, involves the depiction of a child receiving pain, suffering, or humiliation (Sadism). A person who receives sexual gratification from having pain inflicted upon himself or herself is known as “masochism,” but for purposes of possession of child porn crimes, masochism does not really apply (PC 311.11(C)(2)). Note: Collectively, Sadism and Masochism are known as sadomasochism, or “S&M.” Sadomasochism generally applies to ‘consensual conduct’ between adults. However, a child cannot legally consent to sadism or masochism. Therefore, the possession of any depiction (photo, video, etc.) of sadomasochistic material, including sexual material, is illegal in California (PC 311.11(C)(2)). PC 311.11(C)(2) Punishments Incarceration: Possession of child porn involving sexual sadism or sexual masochism is classified as a “wobbler” crime in California. A “wobbler” crime is any offense that may be charged either as a felony, or alternatively as a felony. Felony PC 311.11(C)(2): A conviction for felony possession of child porn involving sadism or masochism can result in a prison sentence of either 16 months, 2 years, or 5 years, depending on the facts of the case. A probation sentence, with or without some incarceration, may also be available in some felony PC 311.11(C)(2) cases (See Probation Sentence below). Misdemeanor PC 311.11(C)(2): A conviction for misdemeanor possession of child porn involving sadism or masochism can result in a jail sentence of up to 1 year. A probation sentence, with or without some incarceration, may be available in some misdemeanor PC 311.11(C)(2)-M cases (See Probation Sentence below). Note: Whether a defendant receives a probation sentence, a 16-month prison sentence (low-term), a 2 year prison sentence (mid-term), or a 3 year prison sentence (high-term), after a conviction for penal code 311.11(C)(2)-F, depends on the level of sophistication of the defendant’s criminal conduct, the remorse shown by the defendant, if any, the terms of any negotiated plea bargain between the district attorney the defendant’s attorney, and much more. Probation Sentence: A probation sentence is a non-prison sentence, where the defendant is monitored by a probation officer (felony probation), or the court (informal probation). A probation sentence is allowed in PC 311.11(c)(2) cases, but a probation sentence is never guaranteed. Whether a defendant receives a probation sentence, as opposed to a prison or jail sentence, after a conviction of PC 311.11(C)(2) depends on many factors, including the defendant’s criminal history, the amenability of monitoring the defendant on probation, the terms of any negotiated plea bargain between the defense attorney and the district attorney, and more. A probation sentence carries “terms of probation” that the probationer must obey to remain on probation. A violation of any of the terms of probation can result in additional criminal charges and incarceration of the probationer. Probation Terms: The term of probation in a PC 311.11(C)(2) case depends on whether the defendant is convicted of a felony or misdemeanor violation of possession of child porn involving sadomasochistic material. In any event, probation terms for both felony and misdemeanor convictions will generally include a term that the defendant remains out of criminal trouble (i.e., no new felony or misdemeanor cases during the period of probation). Court fines, restitution, criminal protective orders, and other terms are typical in PC 311.11(C)(2) cases. Note: A probation sentence can include a jail sentence as a term of probation. However, when the defendant is ordered to serve a jail term as a term or condition of probation, the jail sentence is generally much shorter than the jail sentence that the defendant would otherwise have received if he or she was not granted probation, and the jail term may be served alternatively on work release or house arrest in some situations. State Prison Presumptive: If the defendant is not granted a probation sentence after a conviction for penal code 311.11(C)(2), then he or she must serve his or her incarceration in a California state prison, as opposed to a local county jail. In addition, the state prison sentence may not be “split” (served partially out of prison on work release), or “suspended” (not served subject to a violation of a court order). Custody Credits: Any jail, prison, or work release sentence that is ordered after a conviction of possession of child porn involving sadism or masochism may be reduced by up to fifty percent (50%) if the defendant serves his or her incarceration or work release with “good behavior.” Three Strikes Application: The crime of possession of child porn, including PC 311.11(C)(2), is not a crime subject to California’s Three Strikes Sentencing Law. As such, PC 311.11(C)(2) is not classified as a “serious” crime, or a “violent” crime, at least as those terms are described in the California penal code at sections PC 1192.7 and 667.5, respectively. Sex Offender Registration: The crime of possession of child pornography involving sadism or masochism is sex offender registerable crime (PC 290). Per California’s new Tier System for Sex Offender Registration , a misdemeanor violation of PC 311.11(C)(2) will result in a ten (10) year duty to register as a sex offender, and a felony violation of PC 311.11(C)(2) will result in a lifetime duty to register as a sex offender (PC 290(d)(3)). Note: Some exceptions to these requirements could extend the sex offender registration period. Moral Turpitude Crime: Possession of child pornography crimes, including penal code 311.11(C)(2) crimes, are classified as crimes involving moral turpitude (CIMT). A crime involving moral turpitude carries additional direct and indirect punishments for persons who are not United States citizens (deportation, denial of naturalization), licensed professionals (loss of Bar, Board, or Commission License), and military service personnel (discharge from the military, denial of entry). Additional Punishment: In addition to the punishment listed above, if found guilty of PC 311.11(C)(2) crimes, the defendant could face civil lawsuits, loss of firearm rights (felony convictions), court fines and fees (up to $2,500), restraining orders against use of technology, loss of scholastic opportunities, loss of family law rights (child custody, adoption, child visitation), and much more. Note: If the defendant has previously been convicted of possession of child pornography, including any penal code 311.11(C)(2) crime, then any subsequent conviction for the same, could result in a prison sentence up to six (6) years (PC 311.11(b)). PC 311.11(C)(2) Defenses PC 311.11(C)(2) does not apply to drawings, figurines, statues, or any film rated by the Motion Picture Association of America…, (PC 311.11(e) Abbrev.). Also, PC 311.11(C)(2) does not apply to matter that “depicts a person under the age of 18 years personally engaging in or personally simulating sexual conduct” in non-visual works (i.e., images, videos, etc.) [PC 311] Lack of Possession: A common defense to PC 311.11(C)(2) charges revolves around the defendant’s possession of the obscene material, or lack thereof. In other words, if the defendant can show that he or she did not actually, or constructively, possess the child porn, then the defendant may maintain a valid defense to PC 311.11(C)(2) charges. Constructive possession means the defendant had the ‘ability’ to control the child porn material even if the material was not within his or her physical control. This defense is more common when an electronic device that hold child porn material cannot be attached to the defendant. Lack of Knowledge of Material: For the defendant to be found guilty of possession of child porn, the district attorney must prove, beyond a reasonable doubt, the defendant knew the material he or she possessed involved child porn (obscene material depicting a minor). This defense is more common when the defendant downloads legal pornography, and illegal child porn is attached, unknowingly, in the download. No Sadism or Masochism: When the defendant is charged with PC 311.11(C)(2), he or she may defend by showing the depiction of children in any child porn material does not amount to sadism or masochism, or that the material does not involve Child Sexual Assault Material (CSAM) [No actual child depicted in the material, or person(s) in image or video is reasonably within the age of consent]. Reclassification of Crime: In some cases, where the defendant is charged with a felony PC 311.11(C)(2)-F crime, the defendant may seek to reduce the charge to a misdemeanor PC 311.11(C)(2) crime. This can be accomplished over the objection of the district attorney is some cases where the judge agrees that the reclassification would meet the interest of justice (PC 17(b)). Other defenses to possession of child pornography material include the district attorney’s failure to comply with the statute of limitations (a time-period in which the district attorney must bring criminal charges against the defendant), insanity, duress, mistake of fact as to the nature of the material possessed, coerced confession of the defendant, illegal search and seizure of the material, and more. Note: A “double jeopardy” defense does not apply to possession of child pornography crimes, including PC 311.11(C)(2), where the defendant is prosecuted in both state and federal court for the same offense. Post-Conviction Relief Options: after a conviction for PC 311.11(C)(2), the defendant may have some post-conviction relief options, including the withdrawal of a guilty plea (or “no contest” plea), an appeal of the misdemeanor or felony conviction (after trial), the reduction or modification of a probation sentence (PC 1203.3), a petition to terminate sex offender registration (PC 290.5), and more. Note: Expungement and Certificate of Rehabilitation options for certain crimes involving the possession of child pornography are very limited. For more information, see Certificate of Rehabilitation for Sex Crimes . For more information on the crime of possession of child pornography involving sadism or masochism , or California penal code 311.11(C)(2), contact our sex crimes criminal defense attorney today for a free consultation. Our team of sex crimes defense attorneys, including award-winning trial attorneys, have successfully defended against hundreds of misdemeanor and felony sex crimes in the Inland Empire, including the cities and criminal courts of Redlands, Fontana, Rancho Cucamonga, Ontario, Victorville, Upland, Yucaipa, Rialto, Riverside, Moreno Valley , and more. Call today! 909-913-3138 More Articles (2025) Sexual Penetration Crimes Annoy or Molest a Minor Revenge Porn Crimes Lewd/Lascivious Act w/Child PC 311.11(C)(2) Possession of Child Porn / Sadomasochistic Material: Law, Sentence, & Defense

California penal code section 286.5 PC describes the law and punishment related to the new crime of sexual assault of an animal . Included in this article is a list of common defenses related to a violation of PC 286.5. For further information, contact our sex crimes criminal defense attorneys for a free consultation. PC 286.5(a) Law Per PC 286.5(a) Every person who has sexual contact with an animal is guilty of a misdemeanor . The following terms have the following meanings: “Animal” means any nonhuman creature, whether alive or dead (PC 286.5(c)(1)). This includes any domesticated or feral dog (canine), cat (feline), or farm animal (goat, donkey, horse, etc.). “Sexual contact” means any act, committed for the purpose of sexual arousal or gratification, abuse, or financial gain, between a person and an animal involving contact between the sex organs or anus of one and the mouth, sex organs, or anus of the other, or, without a bona fide veterinary or animal husbandry purpose, the insertion, however slight, of any part of the body of a person or any object into the vaginal or anal opening of an animal, or the insertion of any part of the body of an animal into the vaginal or anal opening of a person (PC 286.5(c)(2)). The following are violations of PC 286.5: oral copulation performed on an animal; oral copulation received by an animal; sexual penetration of an animal (without bona fide veterinary or animal husbandry purpose); sexual penetration of a person by an animal; sexual intercourse with an animal; masturbation of an animal. Also, any authorized officer investigating a violation of sexual abuse to an animal may seize the animal that has been used in the commission of the offense to protect the health or safety of the animal or the health or safety of others, and to obtain evidence of the offense (PC 286.5(d)(1)). Note: Any animal seized pursuant to PC 286.5 shall be promptly taken to a shelter facility or veterinary clinic to be examined by a veterinarian for evidence of sexual contact (PC 286.5(d)(2)). PC 286.5 Penalty Jail Sentence: Sexual abuse of an animal is classified as a misdemeanor. If found guilty of sexually abusing an animal, the defendant could face up to 180 days in county jail. Note: Sexual abuse of animal is classified as a misdemeanor; however, sexual abuse of an animal can often be charged as animal cruelty , a felony, where pain is inflicted to the animal as part of the sexual abuse (PC 597). Probation Sentence: A probation sentence is allowed in penal code 286.5(a) cases, but a probation sentence is never guaranteed. Essentially, a probation sentence is a period of monitoring by the court, as opposed to a jail sentence. A probation sentence carries "terms of probation," that relate to the crime, punishment, and rehabilitation (i.e., work release, fines, restraining orders, etc.). Whether the defendant receives a probation sentence after a conviction of PC 286.5(a) depends on many factors, including the defendant’s criminal history, the level of abuse inflicted on the animal, the remorse shown by the defendant, if any, the terms of any negotiated plea bargain between the defendant and the district attorney, and more. Sex Offender Registration: A conviction of PC 286.5 does not require sex offender registration in California (PC 286.5 & PC 290(c)). Seizure of Animal: Upon the conviction of a person charged with a violation of penal code 286.5, all animals lawfully seized and impounded with respect to the violation shall be adjudged by the court to be forfeited and shall be transferred to the impounding officer or appropriate public entity for proper adoption or other disposition (PC 286.5(d)(3)). Financial Penalties: In addition to any court fines, court fees, and restitution to the animal’s owner, a person convicted of sexual abuse of an animal shall be personally liable to the seizing agency for all costs of impoundment from the time of seizure to the time of proper disposition. Additional Penalties: In addition to possible jail or probation sentencing, if found guilty of PC 286.5, the defendant could face any of following direct and indirect penalties: immigration consequences, professional licensing consequences, military service consequences, asset forfeiture, civil lawsuit, criminal protective orders, court fines and fees, restraining orders , and more. PC 286.5 Defense Common defense to a criminal allegation of sexual abuse to an animal include the following statutory defenses: Non-sexual penetration of an animal for bona fide and accepted practice related to veterinary medicine, which is performed by a licensed veterinarian or a certified veterinary technician under the guidance of a licensed veterinarian, Non-sexual penetration of an animal for any artificial insemination of animals for reproductive purposes (non-sexual for the defendant), Non-sexual penetration of an animal for accepted animal husbandry practices such as raising, breeding, or assisting with the birthing process of animals or any other practice that provides care for an animal (non-sexual for the defendant), or Non-sexual penetration to any generally accepted practices related to the judging of breed conformation (PC 286.5(b)). Other non-statutory defenses include statute of limitations (one year from the date of alleged offense), duress, illegal search and seizure, coerced confession , and more. For further information on the crime and defenses related to sexual abuse of an animal (aka "bestiality"), or California penal code section 286.5(a), contact our sex crimes criminal defense attorneys today for a free consultation. Our award-winning team of sex crimes defense attorney have successfully handled thousands of misdemeanor and felony sex crimes in the Inland Empire, including the cities of Fontana, Redlands, Riverside, San Bernardino, Rancho Cucamonga, Victorville, Moreno Valley, Chino , and more. Call today! 909-913-3138 More Articles (2025) Oral Copulation Law & Defense Sexual Penetration & PC 289 Sexual Battery Crime s PC 286.5 Sexual Abuse of an Animal

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

Sexual Assault v. Sexual Battery: What’s the Difference? The difference between sexual assault and sexual battery is that sexual assault is an “attempt” crime, whereas sexual battery is a “completed” crime. In California, the crime of sexual assault is an attempt to commit a specific sex offense. For example, David attempts to commit sodomy of Sarah while Sarah is extremely intoxicated, but David’s effort to commit sodomy on Sarah is thwarted when Sarah’s friend catches David in the act and calls the police. In this example, David attempted to commit the crime of sodomy, with the specific intent to commit sodomy, but the completely crime of sodomy was not committed; therefore, David may be charged with sexual assault to commit sodomy ( PC 220(a)(1)/286 ). No Touching Required for Sexual Assault: Unlike sexual battery, sexual assault does not require that the victim be physically touched with sexual intent. The defendant’s attempt to commit a sex offense is all that is needed for sexual assault, regardless of whether the defendant touches the victim with sexual intent. For example, David grabs Sarah in his attempt to rape Sarah. When David grabs Sarah, he does not grab her in a sexual manner, but he does grab her with the intent to rape her at a later time. Sarah escapes David before he completes the crime of rape. In this example, David assaulted Sarah with the intent to rape her, and even though David did not grab Sarah in a sexual manner, he may be charged with sexual assault because he intended to rape Sarah when he grabbed her. Sexual Battery: Sexual battery, unlike sexual assault, requires that the victim be physically touched in a sexual manner (simultaneous touching and intent required). For example, David grabs Sarah’s butt with the intent to sexually arouse either himself or Sarah. In this example, David may be charged with sexual battery because he touched Sarah’s butt at the same time that he intended to sexually arouse Sarah or himself. Note: Neither sexual assault, nor sexual battery, require an intimate part of the victim be touched (i.e., female breasts, buttocks, genitals). For example, David rubs his leg up against Sarah’s leg at dinner to sexually arouse either Sarah or himself. In this example, David may be charged with sexual battery even though he did not use his hands and even though he did not touch an intimate part of Sarah. Sexual Battery & Sexual Assault Charged Together Sexual assault and sexual battery can be committed at the same time; these crimes may also be charged together in the same criminal complaint, but it is not automatic that a sexual assault results in a sexual battery. For example, David grabs Sarah’s neck in an attempted rape . When David grabs Sarah’s neck he is not attempting to sexually arouse her or himself, but he is trying to subdue her in his effort to rape her. In this example, even though David touched Sarah’s neck, he was not sexually aroused or trying to sexually arouse Sarah when he did so. Therefore, David may be charged with sexual assault, but not sexual battery. Similar Defenses May Apply: Similar defenses may apply to both sexual assault and sexual battery crimes, including consent (does not apply in cases where victim is a minor), insufficient evidence to prove the crime, coerced confession, illegal search and seizure, statute of limitations, alibi defense , and more. Punishment Differences: The crime of sexual assault is generally punished more severely than the crime of sexual battery. This is because the crime of sexual assault involves the attempt to commit a serious and violent sex offense (i.e., oral copulation , rape by force or fear , sodomy , sexual penetration , lewd act on a child under 14 , etc.), whereas the crime of sexual battery does not usually involve either injury to the victim, or the level of attempted personal violation associated with sexual assault crimes. Note: Sexual assault crimes carry greater direct and indirect penalties than sexual battery crimes, including greater immigration consequences, longer incarceration, greater professional licensing consequences, more fines, bigger restitution amounts, and more. Sexual Offense & Completed Crime: When sexual assault or sexual battery leads to the completed crime, then the completed crime is charged, not the sexual assault or sexual battery charge. Example: David assaults Sarah with the intent to rape Sarah (i.e., sexual assault with intent to commit rape [ PC 220(a)(1)/261 ). Thereafter, David rapes Sarah. David may be charged with both sexual assault and the completed crime of rape, but David cannot be sentenced for both the attempt crime (sexual assault to commit rape) and the completed crime (rape); therefore, the district attorney will only charge the completed crime of rape in this example. Sex Offender Registration: Both sexual assault crime and sexual battery crimes require sex offender registration in California (PC 290(c)). However, the length of registration as a sex offender is usually much longer for sexual assault crimes than it is for sexual battery crimes (See CA Tier System for Sex Offender Registration). Alternative Charge for Sexual Assault: As stated, a sexual assault is an 'attempt to commit a crime, coupled with the specific intent to commit that crime.' In turn, in criminal law, an “attempt” to commit a crime is a ‘substantial step towards the commission of a crime, coupled with the specific intent to commit that crime.’ In essence, a sexual assault crime is virtually the same as attempt to commit a sex crime, but with the added element of ‘substantial step towards commission of the crime for an attempt offense. Therefore, the district attorney in sexual assault crimes will sometimes charge the crime under California penal code 664, which covers the law of attempt, so long as the district attorney believes a ‘substantial step’ towards the commission of the crime was completed. For example, in California, the crime of attempted rape , where the defendant makes a ‘substantial step towards the commission of the crime of rape,’ many be charged as either PC 220(a)(1)/261 ( sexual assault to commit rape ), or PC 664/261(a) (attempted rape). Sexual Assault Crimes in California (Abbrev.) PC 220(a)(1)/261 Assault to Commit Rape PC 220(a)(1)/264.1 Assault to Commit Gang Rape PC 220(a)(1)/286 Assault to Commit Sodomy PC 220(a)(1)/287 Assault to Commit Oral Copulation PC 220(a)(1)/288 Assault to Commit Lewd Act on Child PC 220(a)(1)/289 Assault to Sexually Penetrate with Object Sexual Battery Crimes in California PC 243.4 Sexual Battery by Restraint (Misdemeanor or Felony) PC 243.4(e)(1) Sexual Battery (Misdemeanor) PC 243.4(b) Sexual Battery of Inmate PC 243.4(c) Sexual Battery of Unconscious Person PC 243.4(d) Sexual Battery by Forced Masturbation For more information on the crimes of sexual assault ( PC 220(a) ) and sexual battery ( PC 243.4 ), including the differences and similarities between sexual assault and sexual battery, contact our sex crimes criminal defense attorneys today for a free consultation. Our team of dedicated defense attorneys have successfully handled hundreds of sex crimes in the Inland Empire, including the cites and court of San Bernardino, Riverside, Fontana, Rancho Cucamonga, Rialto, Yucaipa, Redlands, Upland, Ontario, Chino, Victorville, Highland , and more. Call today! 909-913-3138 Related Articles (2025) Lewd Act on a Child & PC 288(a) Rape in Concert (Gang Rape) Continuous Sexual Abuse of Child Sexual Battery v. Sexual Assault

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