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Information on the crime of obscene live conduct can be found at California penal code section 311.6. PC 311.6 Obscene Live Conduct. Sex Crimes Criminal Defense Lawyers Explain CA Penal Code 311.6 PC Penal Code 311.6 PC

This summary of attempt sex crimes discusses law, penalties, and common defense related to California attempt sex crimes (i.e., attempt rape, attempt oral copulation, etc.). For further information, contact our sex crimes criminal defense lawyers for a free case evaluation. PC 664 “Attempt” Law To “attempt” 'a crime means 'to affirmative take a substantial and direct step towards the commission of a target offense, couple with the specific intent to commit that target offense' (PC 664 Abbrev & Paraphrased). Mere contemplation or agreement to commit a crime is not an "attempt" to commit that crime. Note : The California penal code for attempt definition is found at CPC 664. For attempted sex crimes, the district attorney will charge the target offense with the prefix “PC664” to designate that the allegation is an “attempted” crime. The distinction between an attempted sex crime and a non-attempted sex crime (i.e., a completed crime) is very important, especially in terms of the punishment associated with the specific offense (See Incarceration Below). Example: The crime of lewd and lascivious act upon a child under fourteen (PC288(a)-F) carries a maximum eight (8) year prison sentence; however, the crime of attempt lewd and lascivious act upon a child under fourteen (PC664-PC288(a)) carries a maximum four (4) year prison sentence. Substantial Step Defined: As stated, an “attempted” sex crime requires an affirmative and substantial step element to prove the defendant’s guilt. A “substantial step" towards the commission of the target offense means the defendant purposefully took some non-incidental action to effectuate the crime beyond mere contemplation or agreement. In other words, the action that the defendant took was significant (i.e., substantial ). Example: John is charged with attempt aggravated kidnapping to commit rape ( PC664-PC209(b) ). To prove John took a “substantial step” towards the commission of this sex offense, the district attorney could produce evidence that John recently purchased hand and feet restraints to effectuate disabling his rape victim. Compare: If John merely discussed kidnapping to commit rape, without more, the district attorney would not be able to prove John took a substantial step towards the commission of PC209(b), and therefore, John’s sex crimes criminal charges should be dismissed. A “substantial step towards the commission of the target offense” is decided on a case-by-case basis. However, the following factual allegations would likely constitute a substantial step towards the commission of the target offense: Obtaining “ Date Rape ” drugs just prior to an attempt rape allegation (PC664-PC261) Obtaining a “spy camera” just prior to an attempt “ revenge porn ” allegation (PC664-PC647(J)(4)). Driving to a location to meet a prostitute in an attempted prostitution allegation (PC664-PC647(b)). Pulling the pants off a victim in an attempt rape (PC664-PC261(a)), attempt oral copulation (PC 664-PC287), attempt sodomy (PC664-PC286), or attempt sexual penetration by object allegation (PC664-PC289). Secreting a child from public view in an attempt lewd act upon a child under fourteen allegation (PC664-PC288(a) or PC664- PC288.5(a) allegation). Specific Intent Requirement: An attempt sex crimes allegation requires the district attorney to prove the defendant specifically intended to commit the target offense (i.e., the defendant meant to commit a sex offense). Example: Dr. Loomis, a gynecologist, takes a substantial step towards touching a child's genitals during a routine medical exam; however, Dr. Loomis does not act with specific intent to sexually arouse herself or the child during the examination. Therefore, Dr. Loomis is not guilty of child molestation . Every sex case is different in terms of what the district attorney must prove was the defendant’s specific intent at the time of his or her action. Example: In an attempt sexual battery case (PC664-PC243.4), the district attorney must prove that the defendant meant to touch another person for the purpose of sexually gratifying either the person touched or the criminal defendant. Whereas, in an attempt indecent exposure case (PC664-PC314), the district attorney must prove that the defendant meant to expose his or her genitals to another person without the other person’s consent. Note: Specific intent to prove the defendant intended to commit the target offense can sometimes be difficult without the defendant’s confession. Therefore, the circumstances of the case are usually used to prove the defendant’s intent. Example: David takes off his clothes and walks into a girls’ dormitory to “flash” the sorority girls. Unbeknownst to David, the dormitory is empty at the time of his entry. A video recording of David’s nude entry into the sorority house is played at David’s criminal trial for attempted indecent exposure ( PC664-PC314 ). Result: The fact that David took his clothes off before he entered the girls’ dormitory demonstrates, by circumstantial evidence (i.e., the circumstances surrounding the allegation), David’s intent to exposure himself to the sorority girls. Overt Act Shows Specific Intent: A defendant’s intent to commit a sex crime is usually shown by an “overt act” made by the defendant in furtherance of committing the target offense. An "overt act" is some affirmative act on the part of the defendant, which is beyond incidental, that clearly and objectively demonstrates the defendant’s intent. This is similar to a "substantial step" to prove attempt (See Above), but an "overt act" element is used to prove the defendant's state of mind when he or she acted. Example: David hides his IP address with an encryption device when he tries, but fails, to download child pornography videos (PC664- PC311.11 ). David never uses the encryption device when he downloads non-child pornography videos. Result: David’s use of an encryption device to hide his IP address only when he tries to download child porn is an "overt act" which is not incidental to the normal process of downloading videos, and which proves, by circumstantial evidence, that David is aware that the videos he is trying to download include obscene materials depiction a minor. Note: In the above example, David's encryption of his IP address may be used as evidence of his substantial step towards commission of the target offense (i.e., possession of child pornography ) and his "overt act" that proves his intent to possess the child pornography. What constitutes an “overt act” in an attempt sex crimes case is considered on a case-by-case basis, but clear examples would include the following: Forcefully trying to grab a minor child’s vagina or penis without medical purpose, or reasonably innocent purpose, in an attempt aggravated sexual abuse of a child case (PC664-PC269) Secretly placing a “date rape” drug in a person’s beverage in an attempt rape by intoxication case (PC664- PC261(a)(3) ). Driving to a location to meet a known minor for lewd act in an attempt to meet a minor for lewd act case (PC664- PC288.4 ). Penalties for Attempt Crimes Incarceration: The length of maximum incarceration for an attempt sex offense is half the length of maximum incarceration related to the target offense. Example: The crime of rape by force or fear (PC261(a)) carries a maximum sentence of eight (8) years in state prison, but the crime of attempt rape by force or fear (PC664-PC261(a)(2)) carries a maximum sentence of four (4) years in state prison. For maximum incarceration periods related to target sex offenses, see the following: Sentence for Sodomy Crimes Sentence for Lewd Act Crimes Sentence for Oral Cop Crimes Sentence for Child Porn Crimes Sentence Sexual Battery Crimes Sentence for Pimping Crimes Sentence for Harmful Matter Crimes Sentence for Aggravated Sexual Abuse Sentence for Rape Crimes Sentence for Indecent Exposure Sentence for Gang Rape Sentence for Prostitution Crimes Sentence for Sexual Penetration Crimes Note: Felony sex crimes incarceration periods vary drastically depending on the offense, but most misdemeanor sex offenses carry a one (1) year maximum jail sentence. Sex Offender Registration: The length of sex offender registration under California’s three tier system (PC 290 Registration) does not change when the defendant is convicted of an attempt sex offense, as opposed to a target sex offense. For more information, see Sex Offender Registration Requirements & California’s Tier System for Registered Sex Offenders. Example: The crime of misdemeanor oral copulation of a minor , whose age is within ten (10) years of the defendant’s age (PC287(b)) is a tier one sex offender registration case (10 years) regardless of whether the sex offense is charged as an attempt offense with the prefix “664.” (PC 290(c)). Exception: When the defendant is charged with the crime of murder in the commission of an attempted designated sex offense, the defendant’s sex offender registration period is for life (Tier 3) [PC 290(d]. These tier three designated attempted sex offenses include attempt oral copulation (PC187/PC664-PC287), attempt sexual penetration (PC187/PC664-PC289), attempt child molestation (PC187/PC664-PC288(a)), attempt sodomy (PC187/664-PC286), and attempt rape (PC 187/PC664-PC261). Note: Some California attempt sex crimes do not require sex offender registration. These non-sex offender registrable attempt sex offenses include both felony and misdemeanor offenses, including misdemeanor prostitution (PC664-PC647(b)), misdemeanor statutory rape (P664-PC261.5), misdemeanor revenge porn (PC664-PC647(J)(4)), misdemeanor operate brothel (PC664-PC315), and felony statutory rape (PC664-PC261.5(D)). Probation & Parole Periods: The probation or parole periods are the same regardless of whether the defendant is convicted of the target sex offense or an attempt of the target sex offense. For more information, see Parole & Probation for CA Sex Crimes . Defense to Attempt Sex Crimes The defense of an attempt sex crime is typically easier than the defense of a completed sex crime. This is because the “attempt” of a sex offense requires the district attorney to prove the defendant’s mental state during the commission of the offense without having facts that obviously prove the defendant mental state. Example: John is charged with attempted indecent exposure (PC664-PC314) when he walks onto a public beach in the nude. No beachgoers are present; therefore, the district attorney will have a difficult time proving that John knew he was on a public beach (as opposed to a private nude beach) because no beachgoers are present to verify John’s purported mistaken belief. Also, the “overt act” required to be proved by the district attorney in attempt sex cases is often ambiguous. Example: In an attempt prostitution allegation (PC664- PC647(b) ), John’s purported “overt act” is his driving to meet a prostitute at a hotel. When John arrives at the hotel, he is confronted and arrested by law enforcement, but he never meets the alleged prostitute. Result: In the example above, it is difficult for the district attorney to prove that John’s “overt act” of driving to meet the prostitute was anything more than mere preparation to subsequently, and possibly, engage in prostitution. Remember, the district attorney must prove the elements of the underlying sex offense in addition to the “attempt” elements to prove an attempt sex offense. Example: In an attempt to commit sodomy case ( PC664-PC286 ), the district attorney must prove the defendant specifically intended to, but failed, to anally penetrate the alleged victim; however, without actual anal penetration, it’s difficult for the district attorney to prove what the defendant’s intent was more than sexual battery, a much less severe sex crime than sodomy. Military Diversion: For current and former members of the United States military, some attempt sex crimes, including felony sex crimes, may be “diverted.” Diversion is a criminal court process whereby the defendant’s criminal charges are dismissed if the defendant completes probation-like diversion terms. For more information, see Military Diversion for California Sex Crimes . Note: Other diversion programs, such as Judicial Diversion, District Attorney Diversion, or Mental Health Diversion are available for some misdemeanor non-PC sex offender registerable attempt sex offenses. For more information, See Judicial Diversion & Mental Health Diversion for California Sex Crimes . Plea Negotiations: Because the incarceration periods are vastly reduced for attempt crimes in California, as compared to completed target offense crimes, the “attempt” moniker is often used in plea negotiations related to sex offenses. Example: In a lewd and lascivious act upon a child under fourteen case (Felony-PC288(a)). The district attorney and the defendant’s criminal defense attorney might strike a negotiated plea bargain (with defendant’s consent) whereby the district attorney agrees to reduce the criminal charge to attempt lewd act on child (PC664-PC288(a)), in exchange for the defendant’s guilty plea. Result: The defendant’s maximum sentence after a PC664-288(a) conviction is four (4) years, as opposed to eight (8) years for a conviction of the completed offense. This will also result in lower incarceration exposure if the defendant violates a term of any probation sentence. To learn more about attempt sex crimes, including punishment and defenses related to California penal code 664, contact our sex crimes criminal defenses today for a free consultation. Our team of highly experienced, dedicated, and successful criminal defense lawyers have handled every type of felony and misdemeanor sex crime. Our criminal defense lawyers handle lewd acts (PC288(a) & PC288.5), oral cop (PC287), sodomy (PC286), incest (PC285), child porn possession (PC 311), indecent exposure (PC314), annoy or molest a minor (PC647.6), statutory rape (PC261.5), prostitution (PC647(b)), revenge porn (PC 647(J)), pimping (PC266h), sexual penetration (PC289), aggravated sexual abuse of child (PC 269), gang rape (PC264.1), and more. Call today! 909-913-3138 Related Articles Sexual Assault (PC220) Rape Crimes (PC261) Sexual Battery Crimes (PC243.4) Harmful Matter (PC288.2) Aggravated Kidnapping (PC209(b)) Failure to Register (PC290(b)) Attempted California Sex Crimes: PC 664 Law, Penalties & Sex Crimes Criminal Defense Lawyers

Information on the crime of engaging in obscene live 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 obscene live 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 obscene live 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. ​ Obscene Live Conduct Defined:   “Obscene live 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 obscene live 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 obscene live 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 obscene live 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 obscene live 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 obscene live 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 Engage in Obscene Live Conduct. Law, Penalty & Sex Crimes Criminal Defense

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

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

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

California penal code 653f(C) makes it a crime to solicit another person to commit certain sex offenses. This summary covers the law, penalties and common defenses related to PC 653f(C) criminal charges. For further information, please contact our California sex crimes criminal defense lawyers for a free consultation. PC 653f(C) Law According to penal code 653f(C), ‘every person who, with the intent that the crime be committed, solicits another person to commit any of the following crimes, is guilty of solicitation to commit a sex offense: Rape by Force (PC 261(a)) Sodomy by Force (PC 286) Oral Sex by Force (PC 287) Rape in Concert (PC 264.1) Lewd Act on Child (PC 288(a)) Sexual Penetration (PC 289) Solicitation Defined: To solicit a crime means to ask, encourage, request, entice, implore, try, plead, or invite another person to commit a crime. Example: Maria asks her friend, Jose, if Jose would like to have sexual relations with Maria’s thirteen-year-old daughter, Elsa, for money. In this scenario, Maria may be criminally charged with solicitation of a sex offense ( lewd act on a child under fourteen ). Target Offense Not Included: The solicited person does not have to commit the targeted sex offense for the solicitor to be guilty of PC 653f(C). It is the solicitation itself that is the crime. However, if the solicited person does commit the targeted solicited sex offense, then additional sex crimes may be charged against both the solicitor and the sex offender. Non-Listed Sex Offenses: PC 653f(C) lists certain sex offenses that are specifically included in the statute (See List Above). However, sex offenses that are not included in PC 653f(C) may be charged under other statutes. Example: The crime of solicitation of a minor for prostitution is not a sex offense that is listed in penal code 653f(C). Yet, the crime of soliciting a minor for prostitution remains a crime under separate criminal statutes (i.e., PC 647(b)(3)). Two Witness Rule: To prove the defendant’s guilt in PC 653f(C) cases, the district attorney must prove the alleged offense by no less than two witnesses to the crime, or at least one witness with corroborating circumstances (PC 653f(g) Abbrev.). Example: David texts Michael to solicit Michael to commit oral copulation by force against Sarah. Michael calls the police to report David’s solicitation. As a result, David may be charged with PC 653f(C) even though Michael is only one witness to David’s solicitation. This is true because Michael has corroborating text messages to prove David’s guilt. Compare: In the above example, if Michael did not have David’s corroborating text messages to prove David’s guilt, then David should not be charged with a violation of penal code 653f(C) because there is only one witness to David’s alleged solicitation. PC 653f(C) Penalties Felony Classification: Solicitation to commit a sex offense listed in PC 653f(C) is a felony offense. Prison Sentence: If found guilty of PC 653f(C), the defendant will face either a probation sentence, a two-year, three-year, or four-year prison sentence, depending on the circumstances of the defendant’s case (i.e., defendant’s criminal history, harm caused to any victim, sophistication of defendant’s crime, terms of plea bargain, show of remorse, if any, etc.). Prison Presumptive: If the defendant does not receive a probation sentence after a conviction for solicitation to commit a sex offense listed in PC 653f(C), then the defendant must serve his or her incarceration in a California state prison, as opposed to a local county jail. Note: No part of prison sentence after a conviction for PC 653f(C) may be split (served partially out of prison on work release) or suspended (not served subject to release on certain probation-like conditions) [PC 1170(H)]. PRCS: If the defendant is sentenced to prison after a conviction for solicitation to commit a sex offense listed in penal code 653f(C), then his or her post-prison supervision is supervised by local probation officers as part of a Post-Release Community Supervision (PRCS). The length of PRCS is limited to three years and will include terms and conditions related to the protection of society and the reintegration of the defendant into society (PC 3455). Probation Sentence: A probation sentence is a period of supervision, as opposed to incarceration in state prison. A probation sentence is allowed in penal code 653f(C) cases, but a probation sentence is not guaranteed. Whether the defendant is granted a probation sentence after a conviction for solicitation to commit a sex offense listed in penal code 653f(C) case depends on the defendant’s criminal history, the terms of any negotiated plea bargain, the harm caused to any victim, and more. Note: A probation sentence after a conviction for PC 653f(C) is two years in length by statute (PC 1203.1). The felony probation sentence will include, among other terms and conditions, criminal protective orders to protect any named victim(s) [i.e., intended victim of the defendant’s solicitation]. Three Strikes Law: PC 653f(C) is not a serious or violent offense as those terms are listed in PC 1192.7 and 667.5, respectively. This means that the crime of solicitation to commit a sex offense listed in PC 653f(C) is not a “strike” offense under California Three Strikes Law. However, any conviction for PC 653f(C) may trigger a third “strike” under CA Three Strikes Law if the defendant has two or more prior “strike” offenses Example: David has two prior strike offenses on his criminal record. Thereafter, David is charged with solicitation to commit rape by force, which is an offense listed in PC 653f(C). As a result, if David is convicted of the new PC 653f(C) offense, he may face up to 25 years to life in prison because PC 653f(C) can be used to trigger a third strike offense even though it cannot be used to trigger a first- or second-strike offense.  Sex Offender Registration: The crime of solicitation to commit a sex offense listed in penal code 653f(C) is a crime for which sex offender registration under PC 290 is required. This is a “tier two” sex offender registration offense. For more information, see Sex Offender Registration Requirements & Petition to Terminate Sex Offender Registration Requirements . CIMT: PC 653f(C) is a crime involving moral turpitude. A crime involving moral turpitude is any crime that involves immoral acts or otherwise involves fraud or deceit. Crimes involving moral turpitude, including PC 653f(C) can lead to severe immigration consequences (i.e., deportation, denial of reentry into the United States), adverse professional licensing consequences (i.e., revocation or denial of professional license), and other direct and indirect penalties. Firearm Restrictions: A conviction for solicitation to commit a crime listed in penal code 653f(C) will lead to lifetime prohibition on ownership and possession of firearms, firearm ammunition, and body amor. Additional Penalties: In addition to a possible prison or probation sentence, a conviction for penal code 653f(C) will lead to court fines and fees, possible civil lawsuits, loss of military service opportunities, enhanced penalties for subsequent criminal convictions, and more. Target Offense Penalties: If the solicited person commits the crime solicited, then the person that solicited the crime may be charged with both the solicitation offense and the target offense. Example: David convinces to his friend, Robert, to help him (David) commit gang rape against another person. If Robert commits the gang rape with David, then Robert may be charged with gang rape , and conspiracy to commit rape, and David may be charged with those same crimes, plus the solicitation to commit rape charge. Good Conduct Credits: A prison sentence related to PC 653f(C) crimes may be reduced by up to fifty percent (50%) if the defendant remains on good behavior while in prison (PC 4019). PC 653f(C) Common defenses Common defenses to a criminal charge of solicitation to commit a sex crime listed in PC 653f(C) include statute of limitations (10 years), mistake of fact as to consent of the victim, insufficient evidence, alibi defense, illegal search and seizure, coerced confession, and more. For more information on the defense to sex crimes in general, including defense to an allegation of solicitation to commit a sex offense listed in penal code 653f(C), see Sex Crimes Defenses . PC 290.5: A defendant convicted of PC 653f(C) may petition the court to be removed from the sex offender registry under penal code 290.5. For more information, see Petition to Remove Duty to Register as Sex Offender . For more information on the crime of solicitation to commit a sex offense listed in PC 653f(C), please contact our sex crimes criminal defense lawyers today for a free consultation. Our highly successful sex crimes lawyers defend all felony and misdemeanor sex crimes in the counties of Los Angeles, Orange, San Bernardino & Riverside. Call today! 909-913-3138 Related Topics Child Molestation Crimes Possession of Child Porn Rape by Force or Fear Oral Copulation Crimes PC 288.1 Evaluations PC 289 Law & Defense PC 653f(C) Solicitation to Commit Enumerated Sex Offense. Sex Crimes Criminal Defense Lawyers Explain Penal Code 653f(C)

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

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

As a California sex crimes criminal defense attorney, I am frequently asked about polygraph examination reliability and admissibility as these “polygraph tests” relate to sex crimes allegations, prosecution, and criminal defense. More specifically, many sex crimes criminal suspects and criminal defendants want more information regarding the following: 1.      What is a Polygraph Exam? 2.      How Does the Machine Work? 3.      Are Polygraph Exams Reliable? 4.      Should I Take Polygraph Exam? 5.      Can the Results Hurt Me? 6.      Should I Refuse the Exam? 7.      Can a Polygraph Help Me? 8.      Can I Fool a Polygraph? 9.      My Rights Regarding the Exam 10.  VOPs & Polygraph Exams 11.  PC 288 Crimes & Polygraphs   1.      What is a Polygraph Examination (i.e., “Lie Detector Test”)? A polygraph examination, often called a “lie detector” test, is a non-invasive process that uses a “polygraph machine” to detect and record the physiological changes of an examinee as those changes relate to questions asked by a polygraph examiner. The changes in the examinee’s physiology allegedly indicate purposeful misrepresentation in the examinee’s responses to the questions posed due to cognitive dissonance (i.e., mental discomfort from holding two inconsistent beliefs). 2.      How Does a Polygraph Machine Work? A polygraph examination machine works by detecting and recording the changes in an examinee’s physiology, which are reportedly uncontrollable and caused by stress and anxiety related to knowingly deceptive answers to the polygrapher’s questions (i.e., cognitive dissonance). The physiological changes measured by the polygraph machine include: Blood Pressure, Breathing Pattern (Respiration Rate), Heart Rate, Changes in Electrical Conductance Related to Sweat Production (Galvanic Skin Response [GSR]). Eye Movement & Dilation (More Sophisticated Machines) At the conclusion of the polygraph exam, the polygraph examiner analyzes and interprets the data produced by the polygraph machine to determine if there are significant variations or fluctuations in the examinee’s physiology in response to the questions posed. The fluctuations in physiology are reportedly the uncontrollable result of anxiety caused by cognitive dissonance, which is turn, is caused by the purposeful misrepresentation known facts. Note: In criminal cases, polygraph examinations are most used in connection with allegations of child molestation type charges, including Penal Code 288(a) [ Lewd Act on a Child Under 14 ], & 288.5 [Continuous Sexual Abuse of a Child], and PC 287a [Oral Copulation on a Minor]. 3.      Are Polygraph Examinations Reliable? The reliability of the polygraph exam is a topic of debate. While polygraph examinations can provide useful information, they are not foolproof, and factors such as the examinee’s emotional state, medical condition, subjective belief of a false “truth,” and even the ability of the examinee to understand the questions, can all affect the reliability of a polygraph examination. Also, the polygraph examiner’s expertise, training, and subjective bias can influence the results or the interpretation of the results. In some situations, polygraph examinations have been shown to produce false positives (indicating deception when someone is truthful) and false negatives (not detecting deception when someone is lying). Note: The fear of the polygraph examination test itself or personal issues, can affect a person’s physiology, and therefore, skew results of the polygraph exam. 4.      Should Criminal Suspects Take Polygraph? When law enforcement is requesting that a criminal suspect take a polygraph examination, the criminal suspect will almost never benefit from complying with this request. This is because anything the defendant says or does before, during, or even after the examination itself can be used against the criminal suspect, and yet, the results of a polygraph examination will never exonerate the criminal suspect. This is true even though the results of the polygraph examination cannot be used against the criminal suspect except in very limited circumstances. For example, David is asked to take a polygraph examination after he is suspected of annoying or molesting his granddaughter. David agrees to take the exam because law enforcement claims that the exam result will exclude him from being a suspect in the case. David takes and “passes” the polygraph exam, but law enforcement continues to pursue David as a criminal suspect because of inconsistent statements he made during the exam, even though exam result themselves cannot be used against David in the criminal case. A criminal suspect might be asked to take a polygraph examination by his or her criminal defense lawyer. This is a private polygraph examination without law enforcement presence or knowledge. The purpose of a private polygraph examination for a criminal suspect is determined, in advance, if the criminal suspect (or criminal defendant), would likely pass a polygraph examination if conducted by law enforcement. This could be beneficial to the criminal suspect in some limited situations. Typically, the only words a criminal suspect, or even a probationer or parolee, should make in response to a sex crimes allegation is that he or she does not want to make any statement, and that he or she would like to have his or her lawyer present during any questioning regarding any subject. 5.      Can Polygraph Results Incriminate Me? Polygraph results are not admissible in California courts due to their controversial reliability. There is an exception to the admissibility of polygraph examination results if all parties agree (i.e., district attorney and criminal defendant). This rule against the use of polygraph exam results against the criminal defendant is absolute and makes no exception other than by agreement between the defendant and the district attorney (Penal Code 351). In fact, clear evidence that proves a defendant submitted to a polygraph examination may not be used as impeachment against the defendant even if the defendant clearly lied about taking the test. In addition, without an agreement between the defendant and the district attorney, none of the following evidence is admissible in criminal court: Evidence that the defendant offered to take a polygraph examination Evidence that the defendant refused or failed to take a polygraph examination Evidence that the defendant submitted to a polygraph examination The results of a polygraph examination, and The opinion of the polygrapher Note: A criminal defendant cannot be forced by anyone to take a polygraph examination. This does not mean that failure to take a polygraph examination is a good option, especially for probationers or parolees who have agreed to submit to polygraph examinations as part of their respective probation or parole conditions. It is important to understand that polygraph testing may be a valid condition of probation, but the court should impose restrictions on the questions (Brown v. superior Court (2002) 100 CA4th 313). Also, a person who is obligated to take a polygraph examination as a condition of probation or parole is probably protected from having the results of that polygraph used as evidence against him or her. This is because the probationer or parolee’s statement is compelled in this situation and would not stand against a Miranda Violation Defense. 6.      Should I Refuse to Take a Polygraph Test? Whether a criminal suspect should refuse to take a polygraph examination depends on the circumstances of the case and who is asking for the examination (i.e., law enforcement v. criminal suspect’s lawyer, etc.). With that said, the general rule is that a criminal suspect (or criminal defendant) should neither refuse, nor agree to take a polygraph examination by law enforcement. The best practice in most circumstances is for the criminal suspect to inform law enforcement that he does not wish to answer any questions, and that he would like his or her lawyer to be present during any questioning. The criminal suspect should thereafter contact a criminal defense attorney without delay to ascertain the best way to handle any polygraph examination in the future, if at all. 7.      Can a Polygraph Prove My Innocence? Polygraph examination results will never prove a criminal suspect’s innocence because the result of a polygraph examination cannot be used in court without prior agreement. Nevertheless, sometimes polygraph examinations are used to “exclude” a suspect, at least unofficially, and at least for a while. 8.      Can I Fool or Trick a Polygraph? Some people claim to be able to fool or trick a polygraph exam by controlling their physiology in response to questions. Some methods people use to trick or fool their physiology in response to questions (which results in fooling or tricking the polygraph machine) include: Irregular Breathing: Some people can regulate their breathing pattern to minimize the tiny, almost undetectable, fluctuations in respiration rates between breaths. Physical Discomfort: Purposeful physical discomfort or pain during questioning, like biting the tongue or putting pressure on an undisclosed injury, has been used to produce consistent physiological responses throughout the polygraph questioning, which could result in no detectable changes in the examinee’s physiology during questioning. Stress Management: Relaxation techniques and mental strategies designed redirect perceived questions is claimed to help control a person’s physiological responses during a polygraph examination. Emotional Control: Masking anxiety through medication or emotional control, similar to method acting, is claimed to impact the physiological responses of an examinee during a polygraph examination. Pre-Test Preparation: Knowledge about the polygraph process and common questions might allow individuals to better prepare and respond in ways that could potentially confuse the results. Note: Skilled polygraph examiners are trained to recognize patterns and anomalies that might indicate an attempt to manipulate the results. They look for inconsistencies and physiological responses that are out of the ordinary. Example: David is asked by law enforcement to take a polygraph examination after he is accused of oral copulation of his intoxicated girlfriend (i.e., “date rape”). David agrees to the request, but before he takes the test, he puts a small rock in his shoe. During questioning, David puts pressure on the rock to cause discomfort and manipulate his physiology during questioning. Keep in mind that polygraphs measure multiple physiological responses, and the interplay between them can be complex. Attempting to control or manipulate one response may not necessarily affect all relevant indicators in a predictable manner. Also, attempting to trick a polygraph test raises ethical concerns and can have legal or professional repercussions for a criminal suspect and/or his or her criminal defense lawyer. It is generally advisable to decline a polygraph examination through the criminal suspect’s sex crimes criminal defense lawyer. However, if the criminal suspect is going to take the polygraph examination over his or her criminal defense lawyers’ advice, then he or she should approach the tests with honesty and integrity rather than attempting to deceive them. 9.      My Rights Regarding Polygraph Exams? A criminal suspect, or criminal defendant does not have to take a polygraph examination upon request from any law enforcement agency. In other words, the criminal suspect or criminal defendant usually has the right to refuse to take a polygraph examination. However, refusal to take the polygraph examination should be made through the criminal suspect’s criminal defense lawyer. If the criminal suspect wants to take a polygraph over the advice of his criminal defense attorney, or when the suspect must take a polygraph (See VOP issues below), then the polygraph examination should only be performed under conditions approved by the sex crimes criminal defense lawyer (See Probation or Parole Exceptions Below). 10.  Post-Conviction Use of Polygraph Info: A person who is on probation or parole is sometimes obligated to submit to a polygraph examination as a condition of his or her probation or parole. This is rare as most probation or parole terms do not have the probationer or parolee waive his or her Fifth Amendment Right to Remain Silent in the fact of a new criminal allegation, but it does occur, especially in cases related to a conviction for lewd and lascivious act on a child under fourteen cases ( PC 288(a) ), and other sex crimes convictions related to children. If the probationer or parolee is subject to a condition that requires him or her to take a polygraph examination as part of his or her probation or parole, the probationer or parolee should seek the advice of a criminal defense attorney before taking the required polygraph examination so that any criminal liability can be avoided related to crimes for which the defendant was not convicted. Also, according to Penal Code 351, the results of a polygraph examination cannot be used against the defendant. So why would a court have this condition included as a term of probation or parole in the first place? The answer is that anything the probationer or parolee says before or during the questioning can be used against him, even if the results of that exam cannot be used against him. 11.  PC 288 Crimes & Polygraph Exams In practice, polygraph examinations in criminal law are most used in connection with sex crimes, such as child molestation cases, especially in “he said/she said” child molestation cases, where the defendant’s confession is the best evidence of the defendant’s guilt. This is true even when the results of the polygraph examination themselves cannot be used as evidence against the defendant per California law. For example: Eric is accused and suspected of committing sexual penetration by object with force (PC 289). Eric is asked by law enforcement to take a polygraph exam to “clear his name.” Eric takes the polygraph exam. Afterwards, law enforcement tells Eric that he ‘failed the polygraph.’ (Regardless of whether Eric in fact failed the polygraph exam). Thereafter, Eric confesses to the crime to law enforcement because Eric feels that a confession will now best serve to reduce his criminal liability (since he “failed” the polygraph examination according to police). Result: The results of the polygraph exam are not admissible, but Eric’s confession after the polygraph exam is probably admissible if law enforcement properly followed Miranda Warnings and Waivers. (Most polygraph examinations are preceded by Miranda Warnings and Waivers). To learn more about polygraph examinations used in sex crimes cases, or issues related to PC 351, contact our sex criminal defense lawyers without delay. Our team of experienced criminal defense lawyers have successfully handled hundreds of felony and misdemeanor criminal cases in San Bernardino, Riverside, Orange, and Los Angeles County. We have experience with cases involving polygraph examinations and we offer free in-office first-time consultations for criminal suspects and defendants every day of the week. Call today! 909-913-3138 More Articles (2025) PC 243.4 Sexual Battery PC 311.11 Poss. of Child Porn PC 261.5 Statutory Rape PC 314 Indecent Exposure PC 647(b) Solicit Prostitution PC 288.5 Cont. Sexual Abuse

Sex crimes criminal defense lawyers will typically use one or more of the following defense options when her client is facing California prostitution charges, including criminal allegations of PC 647(b)(1) [Receive Compensation for Prostitution], PC 647(b)(2) [Engage in Prostitution], and PC 647(b)(3) [Engage in Prostitution with a Minor]. This article is based on legal principles, case precedents, and effective defense strategies against California prostitution charges, including allegations of PC 647(b) & 647(b)(2). More information on any specific prostitution crime may be found at PC 647(B) [ Prostitution Crimes ] and PC 315 [ Keeping a House of Ill Repute ] Lack of Specific Intent: Prostitution crimes typically require proof of specific intent to engage in the act of prostitution. A defense strategy may challenge whether the defendant knowingly and willfully intended to engage in prostitution. The defense attorney does this by showing a lack of “overt act” that identifies the defendant’s intent. Note: The defendant is not required to show lack of intent to engage in prostitution. Rather, the district attorney is required to prove the defendant specifically intended to engage in an act of prostitution. To prove intent, the district attorney will be required to show that the defendant made an “over act” that proves his intent to engage in prostitution. The overt act is typically some act in furtherance of the defendant’s intent. Example: Billy calls an escort from a social media site that advertises escort services with pictures of women in lingerie. Unknowingly to Billy, the escort he called is an undercover police officer who poses as an escort as part of a sting operation to catch “Johns.” While on the phone with Mandy, Billy asks Mandy about the cost for a “blowjob” ( oral copulation ). Mandy tells Billy to bring $80 dollars and two condoms to her hotel room. Thereafter, Billy arrives at Mandy’s hotel room with $80 and two condoms. Billy is immediately arrested by undercover officers at Mandy’s hotel room, and he is subsequently charged with a violation of California Penal Code Section 647(B)(2) [ Agree to Engage in Prostitution ]. Note: In the above example, Billy’s intent to engage in prostitution is evidenced by his overt act of bringing $80 dollars and two condoms to Mandy’s hotel room. Without the over act, it would be difficult for the district attorney to prove that Billy intended to engage in prostitution (i.e., oral copulation for payment). Of course, where the defendant confesses to the crime of prostitution, then lack of specific intent, or lack of an overt act that identifies the defendant’s intent, is not a viable defense. In this situation, the defendant might rely on a coerced confession, or lack of Mirandized confession defense (See Below). Entrapment Defense: Entrapment occurs when law enforcement induces someone to commit a crime they would not have otherwise committed. If the defendant can demonstrate that they were coerced or induced by law enforcement into engaging in prostitution, this defense may apply. Example: Mandy, an undercover police officer, works as part of a police sting operation to catch “Johns.” Mandy, dressed in revealing clothing, flags down Billy while he drives to work. Billy pulls over to inquire why Mandy is waiving him. Thereafter, Mandy offers Billy a “car date.” Billy is reluctant, but Mandy is persistent until Billy acquiesces and agrees to a “car date.” (i.e., sexual services performed by prostitutes in a “John’s” vehicle. As soon as Billy agrees to a “car date” he is surrounded by police cars and arrested for agreeing to engage in prostitution ( PC 647(B)(2) ). Result: Mandy, probably entrapped Billy into agreeing to prostitution as Mandy’s conduct of flagging down unsuspecting driver’s, who are thereafter pressured to engage in sexual services, is promoting the crime of prostitution. Note: Entrapment is an “affirmative defense.” This means that the defendant can admit the act that led to the criminal charges (affirmation of the act), but nevertheless, be exonerated because of the police officer’s promotion of crime. Lack of Evidence: Like any criminal case, the prosecution must prove all elements of the offense beyond a reasonable doubt. A defense attorney may challenge the sufficiency of the evidence presented by the prosecution. For example, in the crime of solicitation of a minor for prostitution (PC 647(B)(3)), the district attorney must prove that the defendant knew, or reasonably should have known, that the prostitute was under the age of eighteen (18). If this “element” of the crime is not proved by the district attorney, then the criminal charge of PC 647(B)(3) must be dismissed, or at least reduced to the criminal charge of PC 647(B)(2) [ Agree to Engage in Prostitution with an Adult ]. Note: The elements to California prostitution crimes may be found at the following: Receive Payment for Prostitution (PC 647(B)(1)), Engage, Agree, or Solicit Prostitution (PC 647(B)(2)), Operate a House of Prostitution (PC 315). Also, the crime of Loitering for Prostitution (PC 653.22) is no longer a crime in California. To overturn, seal and destroy a prior conviction for loitering with intent to commit prostitution, see Petition to Seal & Destroy a PC 653.22 Conviction . Mistaken Identity: In cases where multiple individuals are involved or the circumstances are unclear, a defense of mistaken identity may be raised. This defense asserts that the defendant was not the person engaging in prostitution. Note: A related defense of Mistake of Fact might be available in a PC 647(B)(3) case [ Solicitation of a Minor for Prostitution ], where the defendant reasonably and honestly believes that the prostitute solicited is at least eighteen (18) years of age. This defense is not a complete defense as the defendant might still be charged with PC 647(b)(2) [ Solicitation of Prostitution ], but the penalties associated with PC 647(B)(3) are more severe than those related to PC 647(B)(2). Also, where the minor solicited is under the age of sixteen (16), the defendant could be charged with much more serious crimes, including PC 664/288(c) [ Attempted Lewd Act on a Child ], PC 647.6 [ Annoy or Molest a Minor ], PC 664/288(a) [ Attempted Lewd and Lascivious Act on a Child Less Than 14 ], and more, depending on the facts of the case. Coercion or Duress to Prostitute: If the defendant engaged in prostitution due to threats, coercion, or fear of harm, a defense of coercion or duress may be raised. This defense argues that the defendant acted under compulsion and against their own will. This defense applies to the prostitute defendant, where the prostitute defendant is charged with PC 647(B)(1) [Agree to Receive Payment for Prostitution]. However, if the person who threatens or coerces another person to act as a prostitute receives financial gain from the prostitute, then the criminal charges against the prostitute should be dismissed upon the filing of criminal charges against the person who receives financial gain from the prostitute (See Pimping Crimes , Pandering Crimes , & Human Sex Trafficking Crimes ). Note: Coercion or Duress defenses can also apply to the non-prostitute defendant. But this happens in the context of a coerced confession (See Undercover Police Misconduct & Violation of Constitutional Rights ) Lack of Exchange of Money or Goods: Prostitution laws typically require an exchange of money, goods, or something of value for sexual services. If there was no actual exchange or agreement on such terms, this defense may be viable. This defense relates to the Lack of Specific Intent & Lack of Overt Act Defense – See Above]. Undercover Police Misconduct: Allegations of misconduct by undercover police officers, such as entrapment or improper conduct during sting operations, can undermine the prosecution's case. This includes Entrapment (See Above at Entrapment Defense ), Coerced Confession, Lack of Proper Mirandizing, Illegal Search & Seizure of Evidence, and More. Violation of Constitutional Rights: Defense attorneys may challenge the legality of the arrest, search, or seizure that led to the prostitution charge, asserting violations of the defendant's constitutional rights. This defense related to Undercover Police Misconduct (See Above), but it also includes other procedural defenses like statute of limitations defense, coerced confession, ex post facto defense, & double jeopardy defense. For more information on these complex defenses to prostitution crimes, contact our sex crimes criminal defense lawyer today for a free consultation. Human Trafficking Victim Defense: If the defendant was a victim of human trafficking and was coerced or forced into engaging in prostitution, this defense may apply. California law provides protections for victims of human trafficking who are charged with prostitution offenses. Plea Negotiation: In some cases, negotiating a plea deal or diversion program may be a strategic defense option to mitigate charges and potential penalties. For example, a defendant might have his PC 647(B)(3) charges [ Solicitation of Minor for Prostitution ] reduced to PC 647(b)(2) charges [ Agree to Engage in Prostitution ] through a plea bargain with the district attorney. Judicial Diversion: In some cases, where the defendant is charged with solicitation of an adult for prostitution (PC 647(B)(2)), or where the prostitute is charged with receiving financial gain from his or her services as a prostitute (PC 647(B)(1)), the district attorney and/or the judge, might offer a judicial diversion program to the defendant. The judicial diversion program is a way to avoid criminal prosecution where the defendant is agreeable to enter a short probation-like sentence, in exchange for the criminal charges to be dismissed. Note: Judicial diversion is not likely to be offered in a solicitation of a minor for prostitution case ( PC 647(B)(3) ). In any event, the judicial diversion program is a request to be granted, if at all, by the court. It is not a right of the defendant and there are many limitations to the availability of a judicial diversion program. For more information, contact our California Sex Crimes Criminal Defense Lawyers for a free consultation. Each defense strategy should be tailored to the specific circumstances of the case and supported by appropriate evidence and legal arguments. For example, a defense to a PC 647(B)(1) charges [ Receive Payment for Prostitution Services ] is not a viable defense for a “John,” for obvious reasons. Consulting with a knowledgeable prostitution defense attorney, who is experienced in criminal defense and prostitution crimes in California is crucial to determining the most effective defense strategy for individual cases. It is also important that your criminal defense attorney is skilled in the defense of prostitution-related offense, which are commonly charged along with prostitution charges, such as indecent exposure ( PC 314 ) [usually charged against streetwalker prostitutes who expose themselves to undercover officers] and engage in public lewd act PC 647(a) [usually charged against both the prostitute and "John" when sexual activity occurs in public view, such as a parked car, in a public park, or in an alleyway] For more information on common defenses to prostitution crimes in California contact our sex crimes criminal defense attorneys today for a free consultation. Our award-winning criminal defense attorney, including winning criminal trial attorneys, have helped thousands of Inland Empire residents since 2009. Our success rate is second to none and our consultations are free and discreet. We defend all felony and misdemeanor sex crimes allegations, including lewd and lascivious act on a child under 14 ( PC 288(a) ) cases ( child molestation ), possession of child pornography ( PC 311 ), oral copulation ( PC 287 ), sodomy ( PC 286 ), sexual penetration crimes ( PC 289 ), sexual battery ( PC 243.4 ), statutory rape ( PC 261.5 ), rape crimes ( PC 261 ), & failure to register as a sex offender ( PC 290 ). Call today! 909-913-3138 Further Reading (2025) Massage Parlor Prostitution Defense Seal & Destroy PC 653.22 Conviction Human Trafficking Defense Defense to Pimping Crimes What is “Pandering for Prostitution?” Prostitution Versus Pornography Lewd and Lascivious Act on a Child PC 288(a) Law, Penalty & Defense Prostitution Defense Attorneys California

It is sometimes difficult to see the difference between prostitution and pornography. The best way to tell the difference between prostitution and pornography is to look at the definitions of both prostitution and pornography and then illustrate with some examples. Pornography Defined: Pornography is the study of making, producing, or engagement of pictures or videos of persons acting in sexual congress with themselves or others and depicted or produced for the purpose of sexual arousal of the viewer. Pornography is legal as long as certain conditions are met, including, The porn producer keeps accurate records of the porn actors (mostly for taxes, age verification, business records, and health and safety issues), The porn producer assures the porn actors act with voluntary consent to engage in sexual conduct, The porn producer does not allow minors under the age of 18 into the porn pictures or videos (i.e., no production or possession of child pornography ), The porn producer does not distribute the pornography to minors, and The porn producer focusing on the scientific, art, education, literary, or social value of the porn to the viewer. A few other requirements might be needed depending on the local laws of the state and city where porn is produced. The idea behind legal pornography is that the porn actors are “acting,” or simulating sexual arousal or sexual intercourse, for the benefit of furthering some value beyond mere sexual arousal itself. The fact that the porn actors who engage in sexual intercourse or masturbation for pictures or videos is secondary to the purpose of pornography (at least in theory). Also, the fact that the porn actors are paid is incidental to the production of porn. In other words, even though the porn actors might be paid to perform sexual acts for pictures or videos, and even though the porn actors might enjoy the sexual acts related to the making of pornography, these facts are incidental, or secondary, to the purpose of pornography, which is to make some value to the community or viewer (i.e., literary, social, scientific, education value, etc.). Of course, with today’s version of pornography distribution, it is difficult to see how anyone can derive any scientific, art, literary, education, or social value from most pornography. This is because modern pornography producers and companies depict scenes from the larger work, and the focus of the larger work displays mostly the sex scenes. For example, a porn movie today is often divided into many scenes where the viewer can advance to porn scene of choice. Because of the frequency of that scene in requests, that scene then becomes the dominant result for searches within the porn company’s catalog. As a result, short “clip” or scenes are viewed without context of the scene to the entire work. This means that the viewer will find almost no literary, scientific, educational, or social value within the short porn scene itself. Nevertheless, the entirety of the porn film might pass muster under the rules set forth to produce pornography. This circumstance helps to blur the lines and rules for the difference between prostitution and pornography. This is especially true when the producers or camera operators get involved in the porn scene or where private videos are uploaded to porn company catalogs. In any event, from the perspective of the viewer, the porn actors simply appear to be sexual arousal between two consenting adults for the purpose financial gain, which is exactly the definition of prostitution. Prostitution Defined: Prostitution is the solicitation of, engaging in, or agreement to perform, sex for money or other consideration (i.e., goods, services, food stamps, etc.). Prostitution is illegal in every state except Nevada, where some Nevada counties allow legal prostitution under certain conditions. Further definitions found at soliciting prostitution & keeping a house of prostitution . With prostitution, outside of certain areas of Nevada, there is no record keeping of the prostitute’s income or health records. Therefore, no taxes are paid by the prostitute, or the prostitute’s client (“John”), and the community may suffer more sexually transmitted diseases. Many people believe the former argument is the main reason why prostitution is not legal in most parts of the United States (can’t tax what is not known to the government). Prostitution also differs from pornography in that sexual arousal is the primary focus when a defendant engages a prostitute (as opposed to the sexual arousal as an incidental or secondary focus in the production of pornography). Keep in mind that is not the filming or taking of pictures that turns illegal prostitution into legal pornography. For example, John takes pictures of himself having sex with a prostitute is illegal, but John taking pictures of himself while having sex with a prostitute is legal if John’s purpose is to produce some literary, social, art, educational, or scientific value, and if John meets all the requirements for producing pornography. The fact that John has the same sexual enjoyment from taking picture of himself while having sex with a prostitute, regardless of whether he produces the porn legally, or the porn illegal with a prostitute, is not a consideration as to whether the production is legal. Of course, with both the production of pornography and the use of prostitutes, it is always illegal to engage a minor for such purposes. In fact, if the defendant engages with a minor regardless of whether it’s for producing pornography or engaging in prostitution, the defendant could face very serious criminal charges depending on the circumstances, including child molestation charges ( PC 288(a) ) Crimes), statutory rape charges ( PC 261.5 ), and more. For more information on these crimes, see Distribution of Child Pornography ( PC 311.1 ) & Solicitation of a Minor for Prostitution ( PC 647(b)(3) ). Examples: Example I: John engages a prostitute to make pornography for his film studio. The primary focus is to make simulated illegal massage parlor sex for literary and educational value. John legally sets up his porn company and follows all the rules. The prostitute “actor” performs the message parlor sex on videos: Result: This is probably legal pornography because the focus is on the literary value of the porn, and not on the sexual arousal of the prostitute or simulated massage parlor customer. Example II: John goes to a massage parlor for a “happy ending.” The prostitute and John reach an agreement for sexual services during the “massage." Result: This is likely illegal prostitution because the focus is on payment for sexual services and sexual arousal is the primary focus of John’s visit to the massage parlor prostitute. Example III: Vicky loves having sex, and she joins a porn production company to make pornography. Vicky’s primary purpose for making porn is that she wants to get paid for doing something she loves doing (sex). Result: Vicky is not engaging in prostitution even though she herself is having sex for money. This is because the focus of the porn videos in which she appears, are produced for a literary, social, educational, scientific, or art value (theoretically anyway). Example IV: Amber works for a porn studio. She has sex with the porn producer for the purpose of getting a raise and/or the privilege in starring in more porn movies, which she really loves. Result: Amber is engaging in prostitution because she has sex with the porn producer for the purpose of financial gain as the primary reason of her “bargain,” and because the sex occurs without proper business record keeping. Example V: Stuart is a Cameron for a porn company. Stuart has sex with all the porn actresses as part of his “payment” from porn studio. The studio incorporates the illicit sex acts and incorporates the scenes in its catalog under “Cameraman Joins.” Result: Stuart is engaging in illegal prostitution even though he works for the porn company because he has bargain for sexual intercourse for payment with the porn company. The porn company could also be liable for pandering ( PC 266i ) or pimping ( PC 266h ), or even human sex trafficking ( PC 236.1 ) depending on the circumstances, and the porn actresses could be charged with prostitution if they understand Stuart’s payment arrangement. Note: The boundaries between prostitution and pornography are especially blurred when the producer of pornography gets involves in the sex scenes. This is because the producer is the same person who is paying the performer and it appears to be a direct payment for personal sexual services even though it is under the guise of having some literary, scientific, art, social, or educational value to the viewer. Finally, regardless of whether a person is engaging in the production of legal pornography, that person may still be liable for crimes against unsuspecting participants. This can occur when the porn company creates videos of “stranger porn” and does not use actors to depict the stranger. For example, Pete is a producer of pornography in California. Pete decides to make porn scenes where a simulated prostitute, Patricia, approaches strangers on the street to coax the strangers into sexual intercourse on camera. To do this, Patricia approaches Paul in a public park while a porn Cameron man films circumstance. Patricia exposes her breast to Paul and invites him to have sex with her for free. Paul is underage. In the above example, both Peter and Patricia may be charged with engaging in lewd public conduct ( PC 647(a) ), indecent exposure ( PC 314 ), annoying or harassing a minor ( PC 647.6(a) ), contacting a minor for lewd act ( PC 288.3 ), arranging to meet a minor for lewd act ( PC 288.4 ), and solicitation to engage in a live sex act ( PC 311.6 ). For further reading on the difference between prostitution and pornography, please visit prostitution defense attorneys today, or see ( PC 647(b) ), possession of obscene matter depicting a minor ( PC 311.11 ), pandering crimes ( PC 266i ), engage in public lewd act ( PC 647(a) ), annoying or molesting a minor ( PC 647.6(a) ), contacting a minor to commit a lewd act ( PC 288.3 ), indecent exposure ( PC 314 ), statutory rape ( PC 261.5 ), arrange to meet a minor for lewd act ( PC 288.4 ), and engage in live sex scene ( PC 311.6 ). If you have been charged with any misdemeanor or felony sex crime in the Inland Empire, including the cites and courts of Redlands, Rancho Cucamonga, Riverside, Victorville, Ontario, Fontana, Rialto, Yucaipa, Banning, Hesperia, Upland, and more, contact our sex crimes criminal defense attorneys today for a free consultation. Call today! 909-913-3138 Related Topics (2025) PC 288(a) Lewd Act Crimes Engage in Live Lewd Conduct Sex Crimes Criminal Defense Oral Copulation Crimes Sodomy Crimes Sexual Assault Sexting with a Minor “Date Rape” Crimes Prostitution or Pornography: How to Tell the Difference. Sex Crimes Criminal Defense Lawyers Explain