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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

Information on the crime of engaging in public lewd conduct is found at California penal code section 311.6. The following is a brief overview of the law and punishment related to penal code 311.6. PC 311.6 Law Every person who knowingly engages or participates in, manages, produces, sponsors, presents or exhibits public lewd conduct to or before an assembly or audience consisting of at least one person or spectator in any public place or in any place exposed to public view, or in any place open to the public…, whether or not an admission fee is charged, or whether or not attendance is conditioned upon the presentation of a membership card or other token, is guilty of engaging in public lewd conduct (PC311.6-M Abbrev). ​ Example: An outdoor public performance of any play or art show that includes full frontal nudity or a simulation of graphic sexual intercourse is likely a violation of penal code 311.6. ​ Public Lewd Conduct Defined: “Public lewd conduct” means any physical human body activity, whether performed or engaged in alone or with other persons, including, but not limited to, singing, speaking, dancing, acting, simulating, or pantomiming, taken as a whole, that to the average person, applying contemporary statewide standards, appeals to the prurient interest and is conduct that, taken as a whole, depicts or describes sexual conduct in a patently offensive way and that, taken as a whole, lacks serious literary, artistic, political, or scientific value (PC 311(h)). ​​ PC 311.6 Punishment ​​ Jail Sentence: Engaging in public lewd conduct is classified as a misdemeanor. If found guilty of PC 311.6, the defendant could face up to one hundred eighty (180) days in the county jail (maximum). ​ Probation Sentence: A probation sentence is a period of supervision, as opposed to incarceration. A probation sentence is allowed in PC 311.6 cases, but it is never guaranteed. ​​ Whether the defendant receives a probation sentence after a conviction for engaging in public lewd conduct depends on many factors, including the egregiousness of the defendant’s conduct (willfully flaunting the law while fully aware of the law), the level of sophistication of the crime, the defendant’s criminal history, the terms of any negotiated plea between the district attorney and the defendant, and more. ​ Work Release: Work release is a type of manual labor that requires the defendant to clean trash around highways, jail, etc. A work release sentence, as opposed to a jail sentence, is allowed in PC 311.6 cases, but again, it is not guaranteed. Sex Offender Registration: Sex offender registration is not mandatory in PC 311.6 cases; however, the court is allowed, pursuant to PC 290.006, to order sex offender registration after the conviction of any crime that the court believes was motivated by sexual compulsion, including the crime of engaging in public lewd conduct. For more information, see Sex Offender Registration Requirements. ​ Diversion: Diversion, or the circumvention of prosecution, is available in some PC 311.6 case. Essentially, diversion is a type of probation sentence that results in the defendant's criminal case being dismissed upon successful completion of the probation sentence (PC 1001.95). Diversion is different than a probation sentence without diversion, because a probation sentence without diversion results in a misdemeanor criminal record for the defendant, while the diverted sentence, if successfully completed, results in no misdemeanor criminal record for the defendant. Additional Penalties: In addition to the penalties listed above, if found guilty of engaging in public lewd conduct, the defendant could face any of the following penalties: immigration consequences for non-US citizens, professional licensing consequences for licensed professionals, military service consequences, court fees and fines, loss of a occupational or business license, criminal protective orders, and more. ​ PC 311.6 Defense ​ Common defenses to a criminal charge include, but are not limited to, the following: illegal search and seizure of evidence of the alleged crime, First Amendment Free Speech related defense, mistake of fact as to the nature of the obscenity, coerced confessions, entrapment, statute of limitations, lack of time prosecution (other than the statute of limitations), and more. ​ For more information, including a discussion of the applicable statute of limitations for PC 311.6 crimes, see Defenses to Sex Crimes. ​ For more information on the crime of engaging in public lewd conduct, or penal code 311.6, contact our sex crimes criminal defense lawyers today. Our defense lawyers handle all CA sex crimes defense, including PC 288(a) & PC 288.5 Lewd Acts [Child Molestation Crimes], PC 287 Oral Cop Crimes, PC 311.11 Poss. of Child Porn, PC 261.5 Statutory Rape, PC 243.4 Sexual Battery, PC 261 Rape Crimes, PC 289 Sexual Penetration Crimes, PC 288.2 Harmful Matter Crimes, PC 647(b) Prostitution, PC 314 Indecent Exposure, PC 647.6 Annoy or Molest Minor, PC 286 Sodomy Crimes, and many more. Our experienced and award-winning criminal defense lawyers have successfully handled hundreds of misdemeanor and felony sex crimes in all local courts, including San Bernardino, Riverside, and Los Angeles County. Call today! ​ 909-913-3138 Related Article Engage in Public Lewd Act Invasion of Privacy (PC 647(J)(2)) PC 290 Registration in California PC 288(a) Law, Penalty & Defense PC 311.6 Engaging in Public Lewd Conduct. Law, Penalty & Sex Crimes Criminal Defense

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

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

A felony probation sentence (as opposed to a prison sentence) is available after a conviction for some California felony sex crimes, including crimes of lewd act on a child under 14 (child molestation), oral copulation (oral sex), sodomy , sexual penetration with object , rape in concert (gang rape), and continuous sexual abuse of a child . The availability of a probation sentence after a felony sex crime conviction depends on the following: the exact felony sex crime for which the defendant is convicted, the presence of any alleged facts in the case that preclude a probation sentence, and whether or not the defendant is amenable to a probation sentence, and he or she agrees to the conditions of probation. Probation Ineligibility Cases: To start, some felony sex crimes are ineligible for a probation sentence regardless of the facts that support the criminal allegation and regardless of whether the defendant is willing to agree to any conditions of a probation sentence. These probation ineligible sex crimes include the most severe felony sex crimes, such as sexual penetration of a child under ten years of age ( PC 288.7 ), aggravated sexual assault of a child (PC 269), rape by force or fear (PC 261(a)(2)), pimping (PC 266(h)), oral copulation by force (PC 287(c)(2)), sodomy by force (PC 286(d)), and a few other very severe sex offenses. Factors that Preclude Felony Probation Sentence: When a felony sex crime is otherwise eligible for probation, certain facts that are alleged in the underlying case might make that felony sex crime ineligible for probation. Example:  David is charged with PC 288(a) [ Lewd Act Upon a Child Under 14 ]. David is also charged with the enhancement penalty of PC 1203.066(a)(8) “Substantial Sexual Conduct" [A factor listed in PC 1203.066 that makes criminal charges ineligible for a probation sentence] Result:  David would have been eligible for a felony probation sentence (as opposed to a prison sentence) on the PC 288(a) charge, but the issue of a probation sentence is moot because the PC 1203.066 penalty enhancement precludes the grant of a felony probation sentence in any PC 288(a) case. The factors of case that make an otherwise eligible-for-probation felony sex crime a non-eligible-for-probation felony sex crime are listed in CA penal code 1203.066. The PC 1203.066 factors include items such as whether the defendant used force to commit a sex crime (PC 1203.066(a)(1)), whether the defendant used a weapon to commit the sex crime (PC 1203.066(a)(4), whether the defendant committed “substantial sexual conduct” during a sex crime) (PC 1203.066(a)(8)), and more. [See PC 1203.066 for complete list of factors that preclude probation sentencing in CA sex crimes ]. Probation Conditions for Eligible Felony Sex Crimes: As discussed, some felony sex crimes are automatically ineligible for a felony probation sentence based on the egregiousness of the allegation itself (See Probation Ineligibility Cases above). Also, some felony sex crimes are eligible for a probation sentence, but some underlying factor in the case precludes felony probation sentencing (See Factors That Preclude Felony Probation Sentence above ). The remaining felony sex crimes are eligible for probation sentencing (as opposed to a state prison sentencing), so long as the court determines it is in the best interest for the defendant to be granted probation and he or she agrees to certain felony probation terms (See Below). Probation Eligible Sex Crimes: As stated, if the felony sex crime is not automatically rendered ineligible for a probation sentence due to the egregious nature of the allegation, or rendered ineligible for a probation sentence because of an underlying factor in the case that precludes a probation sentence, then the felony sex crime is eligible for a probation sentence (as opposed to a prison sentence). These probation eligible felony sex crimes include: PC 261.5 Statutory Rape PC 286 Sodomy Crimes [Most] PC 287 Oral Copulation Crimes [Most] PC 288 Lewd Act on Child Under 14 PC 288.5 Cont. Sex Abuse of Child PC 289 Sexual Pen. Crimes [Most] PC 285 Incest PC 311.11 Poss. of Child Porn PC 314 Indecent Exposure PC 243.4 Sexual Battery Note: All misdemeanor sex crimes are eligible for a misdemeanor probation sentence regardless of the exact felony for which the defendant is charged and regardless of the presence of any underlying factor in the case. PC 1203.097 Condition for Probation Sentence Some felony sex crimes are eligible for probation, but only if the defendant agrees to certain conditions of felony probation. Consider the following: Per PC 1203.097, ‘Notwithstanding any other law, before a probation sentence may be granted to any person convicted of a felony listed in PC 261 ( rape ), PC 264.1 ( rape in concert ), PC 286 ( sodomy ), PC 287 ( oral copulation ), PC 288 ( lewd and lascivious act on a child ), PC 288.5 ( cont. sexual abuse of a child ), or PC 289 ( sexual penetration by foreign object ),…, the court shall do all of the following: ‘Order the defendant evaluated for his or her suitability to a felony probation sentence…, or similar evaluation by the county probation department.’ (PC 1203.097(a)(1)) Conduct a hearing at the time of sentencing to determine if probation of the defendant would pose a threat to the victim…. (PC 1203.097(a)(2) Abbrev.) . Order any psychiatrist or psychologist appointed pursuant to Section 288.1 to include consideration of the threat to the victim and the defendant’s potential for positive response to treatment in making the report to the court. This section does not require the court to order an examination of the victim (PC 1203.097(a)(3)). The terms of felony probation for an offense that requires sex offender registration ( PC 290 registration ) ‘ …. shall successfully complete a sex offender management program, ... The length of the period in the program shall be not less than one year… (Abbrev.) Waive of any privilege against self-incrimination and participation in polygraph examinations, which shall be part of the sex offender management program, Waive of any psychotherapist-patient privilege to enable communication between the sex offender management professional and supervising probation officer. Example: David is charged with felony unlawful sexual intercourse (PC 261.5(c)). Unlawful sexual intercourse is not a crime covered in PC 1203.097, and the crime is not an offense for which sex offender registration is required. Therefore, David may receive a felony probation sentence after his PC 261.5(c) conviction without the additional probation condition requirements of PC 1203.097 (i.e., sex therapy classes, psychological evaluation, polygraph examination , etc.). Example II: If David was charged with PC 288.5 ( Continuous Sexual Abuse of a Child ), then David may only be granted a felony probation sentence if he agrees to the terms listed in PC 1203.097 (i.e., submits to polygraph examinations, attends sex therapy classes for at least a year, submit to psychological testing, etc.). Unusual or Special Circumstances: Some felony sex crimes are eligible for probation sentencing (as opposed to state prison sentencing), but only if the court finds that unusual or special circumstances apply to the case, such that probation sentencing serves the best interest of justice. Example: The crime of continuous sexual abuse of a child ( PC 288.5(a) ) is listed as a probation eligible crime under PC 1203.067, but the crime is also a crime which requires special circumstances that justify a probation sentence. therefore, a probation sentencing is available in a PC 288.5 case, but only if 1) the court determines that special circumstances apply to the case that justify a probation sentence, and 2) the defendant agrees to the probation conditions listed in PC 1203.067. Felony Probation Length: The length of probation after a felony conviction of a California sex offense is discussed at Probation & Parole for CA Sex Crimes . For more information on felony sex crimes probation eligibility after conviction (as opposed to a prison sentence), contact our highly experienced and successful sex crimes criminal defense lawyers today. We handle all felony and misdemeanor sex crimes defense in San Bernardino, Orange, Riverside, and Los Angeles Counties, including Lewd Acts (PC 288), Poss. of Child Porn (PC 311), Indecent Exposure ( PC 314 ), Sexual Battery ( PC 243.4 ), Prostitution ( PC 647(b) ), Pimping ( PC 266h ), Revenge Porn ( PC 647(J)(4)) , Oral Copulation (PC 287), Sexual Assault (PC 220) , Rape Crimes (PC 261 & 264.1), Pandering (PC 266i), Attempt Rape ( PC 664/261 ), & More. Our sex crimes criminal defense lawyers offer free and discreet consultations. Call now! 909-913-3138 Related Articles Probation Ineligible Sex Crimes Probation & Parole in CA Sex Offenses Penal Code 288(a) Law & Defense Penal Code 311.11 Law & Defense PC 1203.067 Probation Conditions for CA Felony Sex Crimes: PC 288, 287, 286, 261, 289, & 288.5

In California, the conviction of a felony sex crime may lead to a jail, prison, or probation sentence, depending on the specified sex offense for which the defendant is convicted, the fact that support the alleged sex offense, and the presence of any related penalty enhancements that are alleged to have occurred in connection with the specified sex crime conviction. For example, a conviction for lewd and lascivious act on a child under the age of fourteen ( PC 288(a)-F) ) is ordinarily eligible for a probation sentence, or a suspended prison sentence, unless the defendant is alleged to have personally used a firearm during commission of the offense (PC 1203.067), the defendant has a prior sex crime conviction (PC 1203.066) or some other fact that makes conviction ineligible for a probation sentence. Misdemeanor Sex Crimes: Most misdemeanor sex crime convictions are eligible for a misdemeanor probation sentence regardless of the circumstances of the alleged offense. However, some of these misdemeanor probation sentences for sex crimes convictions carry a minimum jail sentence as a condition of probation, but otherwise, the defendant may service a probation sentence (as opposed to a jail sentence). For example, a probation sentence after a conviction for the crime of prostitution ( PC 647(b) ) is allowed, but only if the judge orders a minimum amount of jail time as a condition of that probation sentence (i.e., 90 days for a third violation of PC 647(b)). PC 1203.066 & CA Sex Crimes Most, but not all, factors that make felony sex crimes ineligible for a probation sentence are listed at California penal code 1203.066. When the factors listed in PC 1203.066 are plead and proven by the district attorney, the defendant is not eligible for either a probation sentence, or a suspended prison sentence. Also, even if certain factors listed in PC 1203.066 are not plead and proven, the defendant may still be ineligible for a probation sentence if the underlying offense was supported by certain factors (See Below). These plea factors, and specific facts of a sex crime allegation, that make a defendant ineligible for probation after a felony sex crime include the following: A person who is convicted of violating Section 288 (lewd and lascivious act on a child) or PC 288.5 ( continuous sexual abuse of a child under fourteen ) when the act is committed by the use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person (PC 1203.066(a)(1)). A person who caused bodily injury on the child victim in committing a violation of Section 288 (lewd act on a child) or 288.5 (continuous sexual abuse of child) (PC 1203.066(a)(2)). A person who is convicted of a violation of Section 288 or penal Code 288.5 and who was a stranger to the child victim or befriended the child victim for the purpose of committing an act in violation of Section 288 or PC 288.5, unless the defendant honestly and reasonably believed the victim was 14 years of age or older (PC 1203.066(a)(3)). A person who used a weapon during the commission of a violation of PC 288(a) (Lewd Act on a Child Under 14) or 288.5 (Continuous Sexual Abuse of a Child) (PC 1203.066(a)(4) Abbrev.) A person who is convicted of committing a violation of PC 288 (child molestation) or PC 288.5 (continuous sexual abuse of a child under 14) and who has a prior conviction of PC 261 (Rape by Force or Fear), 264.1 (Rape in Concert), 266, 266c, 267, or 285 (Incest), 286 (Sodomy), 287 ( Oral Copulation ), 288, 288.5, or 289 (Sexual Penetration)… (PC 1203.066(a)(5) Abbrev.)). A person who violated penal code 288 or penal code 288.5 while kidnapping the child victim in violation of Section 207, 209 , or 209.5 (PC 1203.066(a)(6)). A person who is convicted of committing a violation of Section 288 (lewd act on a child) or 288.5 (continuous sexual abuse of a child) against more than one victim (PC 1203.066(a)(7)). A person who, in violating penal code 288 (Lewd Act on Child Less than 14) or penal code 288.5 (Continuous Sexual Abuse of Child), has substantial sexual conduct with a victim who is under 14 years of age (PC 1203.066(a)(8) Abbrev.). A person who, in violating penal code 288 (lewd act on a child) or 288.5 (continuous sexual abuse of a child), used obscene matter …, or matter depicting sexual conduct ( possession of child pornography ). (PC 1203.066(a)(9) Abbrev.) Substantial Sexual Conduct: “Substantial sexual conduct” means penetration of the vagina or rectum of either the victim or the offender by the penis of the other or by any foreign object, oral copulation , or masturbation of either the victim or the offender (PC 1203.066(b)) Factors not Plead or Proved (PC 1203.066(d) Abbrev.) Sometimes, a factor listed in PC 1203.066(a) is not plead or proved by the district attorney in a PC 288 or 288.5 case, but the defendant is nevertheless ineligible for a probation sentence unless certain conditions are met. Example: David is convicted of lewd and lascivious act on a child under 14 (PC 288(a)). The district attorney does not allege a factor listed in PC 1203.066(a) (See List Above). Therefore, David is eligible for a probation sentence unless David refuses to submit to sex therapy treatment as a condition of probation (PC 1203.066(d) & PC 1203.067). The following conditions of probation must be ordered as part of a probation sentence after a conviction for PC 288 or 288.5. This is true even if the district attorney has not alleged a factor in PC 1203.066(a) that would otherwise make a defendant ineligible for probation: If the defendant is a member of the victim’s household, the court finds that probation is in the best interest of the child victim The court finds that rehabilitation of the defendant is feasible and that the defendant is amenable to undergoing treatment, and the defendant is placed in a recognized treatment program designed to deal with child molestation immediately after the grant of probation or the suspension of execution or imposition of sentence. If the defendant is a member of the victim’s household, probation shall not be granted unless the defendant is removed from the household of the victim until the court determines that the best interests of the victim would be served by the defendant’s return…. If the defendant is not a member of the victim’s household, the court shall prohibit the defendant from being placed or residing within one-half mile of the child victim’s residence for the duration of the probation term unless the court, on the record, states its reasons for finding that this residency restriction would not serve the best interests of the victim. The court finds that there is no threat of physical harm to the victim if probation is granted. The court shall order the psychiatrist or psychologist who is appointed pursuant to penal code 288.1 … The court shall order the defendant to comply with all probation requirements, including the requirements to attend counseling, keep all program appointments, and pay program fees based upon ability to pay. Note: CA PC 1203.066(a)-(d) text is abbreviated and partially expanded in this article for clearer understanding and brevity. Finally, some sex crimes are considered so egregious, that a conviction for such a crime conclusively results in probation ineligibly for the defendant (PC 1203.065). For these felony sex crimes, the defendant is not eligible for a probation sentence after a conviction even if the district attorney has not pled and proved a factor listed in PC 1203.066(a) and even if the defendant would otherwise be amenable to the probation conditions listed in PC 1203.066(d) (See Above). The felony sex offenses that are not eligible for a probation sentence after a conviction under any circumstance include the following (Abbrev. List): Lewd Act on a Child under 10 (PC 288.7), Aggravated Sexual Assault of a Child (PC 269) Rape by Force or Fear (PC 261(a)(2)) Pimping (PC 266(h)) Oral Copulation by Force (PC 287(c)(2)) Sodomy by Force (286(d)) For more information on the defense to any CA sex crimes, including probation ineligible factors for California sex crimes convictions, contact our sex crimes criminal defense lawyers today for a free consultation. Our top-rated award-winning sex crimes criminal defense lawyers, including winning trial lawyers, have successfully handled hundreds of misdemeanor and felony crimes in California, including indecent exposure (PC 314), sexual battery (PC 243.4), child molestation (lewd acts), annoy or molest a minor (PC 647.6), prostitution (PC 647(b)), sodomy (PC 286), oral copulation (PC 287), human sex trafficking (PC 236.1), sexual assault (PC 220), statutory rape (PC 261.5), and more. Call today! 909-913-3138 Related Articles Revenge Porn Charges PC 288.2 Law & Defense PC 290 Law in California Statutory Rape Law & Defense PC 1203.066 Probation Ineligibility for CA Sex Crimes. Criminal Defense Lawyers