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Per California law, child sexual abuse material, or CSAM, is any visual depiction of the sexual abuse of children, or simulated sexual abuse of children, including artificial intelligent (AI) created sexual abuse of children. Possession of CSAM is a violation of both California and federal law. New Law: California Assembly Bill 1831 (AB1831), adopted in 2024, extends CSAM to include AI generated pictures and videos of sexual abuse of children and simulated sexual abuse of children. After the passage of AB1831, the possession of artificially intelligence created obscene (sexual) material depicting what reasonably appears to be a real human child, or child sexual abuse material (CSAM) related to what reasonably appears to be a real human child, is prosecuted under California’s current laws that prohibit the possession of child pornography (i.e., PC 311.1, 311.11, 311.11(c)(2), 311.4, etc.). Note: Federal law also prohibits the possession, creation and distribution of AI generated CSAM (18 U.S. Code § 2256(8)). CSAM Possession Crimes California law now commonly refers what used by called “possession of child pornography” as “possession of CSAM.” There is no distinction between “child pornography” and CSAM material; however, the term pornography implies consent by the child in the production of child pornography, whereas the term “CSAM” does not imply a child’s consent in the production of child pornography. CA Law and federal law prohibit the possession, distribution, and production of any depiction of a child, under the age of eighteen (18), engaging in, or simulating, sexual conduct, including oral copulation (oral sex), sexual penetration, sodomy (anal sex), sexual intercourse, sexual exhibition of child (regardless of sexual conduct), bestiality (sex with animals), lewd act with child, and children engaging in urine or excrement for sexual stimuli of the child or viewer. Poss. of CSAM Penalties The penalties related to the possession, distribution and/or production of child abuse sexual material (CSAM) depend on the circumstances of the case, including whether the crime is classified as a misdemeanor or a felony, the amount of CSAM possessed, distributed and/or produced, and the defendant’s criminal history. Most charges related to the possession of CSAM (poss. of child pornography) will result in mandatory sex offender registration. The length of sex offender registration will depend on whether the possession, distribution and/or production of CSAM is classified as a misdemeanor or a felony and the exact criminal charge for which the defendant is convicted. Jail & Prison: Some criminal charges of possession of CSAM are eligible for a probation sentence (with or without some limited incarceration in a local jail), while other possession of CSAM cases will result in a prison sentence with varying lengths depending on the exact charge under which the defendant is convicted, including whether the poss. of CSAM case is charged as a misdemeanor or a felony. For more information related to the penalties associated to the exact criminal charges related to possession, distribution and/or production of CSAM, see the following: PC 311.11 Possession of Child Porn PC 311.1 Send or Bring Child Porn PC 311.11(C)(2) Sadomasochism CP PC 311.4 Employ Minor to Sell Porn PC 311.3 Exploit Child in Child Porn PC 311.10 Advertise Child Porn Additional Penalties: In addition to the penalties listed above, and at the referenced sections related to the exact charges of possession, distribution and/or production of child pornography (CSAM), if found guilty, the defendant will face criminal protective orders, immigration consequences, professional licensing consequences, military service consequences, restitution, court fines, fees, and penalties, loss of scholarship opportunities and more. Note: Defendant who possess child pornography, including AI generated CSAM, may be prosecuted under California law and federal law without violating double jeopardy laws (See Poss. of CSAM Defenses). Poss. of CSAM Defenses Common defenses to the possession, distribution and/or production of child pornography (CSAM) include illegal search and seizure, statute of limitations (10 years in most “possession only” cases), coerced confession, violation of Miranda Rights, entrapment, and insufficient evidence to prove the defendant intentionally possessed, distributed and/or produced child pornography. Possession Defined: Under California law, the defendant may only be convicted of child pornography crimes if the defendant either possessed, distributed or produced child pornography. Most CP cases are charged as the “possession” of CSAM type. For “possession” of child porn cases, the district attorney must prove, beyond a reasonable doubt, that the defendant knew that he or she actually possessed child pornography (as opposed to accidental possession of child pornography via mass download of materials that inadvertently included CSAM, or material that reasonably depicts persons “of legal age), or that the defendant had the ability and right to control the CP (i.e., constructive possession). Double Jeopardy: The federal government and the state of California may simultaneously prosecute possession of child pornography (CSAM) cases without violating double jeopardy laws. This is because the federal government and the state of California are different “sovereigns.” In practice, possession of CSAM cases are prosecuted at the state level unless many cross-state defendants are engaged in the distribution and production of child pornography in interstate activity (federal jurisdiction). For more information on the definition of Child Sexual Abuse Material, or CSAM, contact our sex crimes criminal defense lawyers today for a free consultation. Our highly experienced lawyers have helped hundreds of defendants charged with every type of sex crime, including poss. of child pornography crimes (PC 311 Crimes), sexual battery, statutory rape, oral copulation crimes, sexual penetration crimes, child molestation crimes (Lewd Act), indecent exposure, annoy or molest a minor, and more. Our successful team of sex crimes criminal defense lawyers, including winning trial lawyers, are ready to defend all possession of child pornography criminal charges in the San Bernardino, Riverside, Los Angeles, and Orange County courts. Call today! 909-913-3138 Related Articles PC 288(b) Lewd Act by Force Lewd Act on Child Less than 14 Habitual Sex Offender Statute Oral Cop on Intoxicated Person PC 288.5 Law & Defense Penal Code 261.5(c) Law Human Sex Trafficking CSAM Possession Defense (Poss. of Child Porn). CA Sex Crimes Defense Lawyers Explain Child Sexual Abuse Material (CSAM)

Recently, California Senate Bill 145, identified at Penal Code 290(c)(3), granted California criminal court judges the discretion to order sex offender registration after conviction of some sex crimes that previously mandated sex offender registration. For example, prior to the passage of SB 145 (PC 290(c)(3)), the crime of oral copulation on a minor over the age of thirteen (13), when the minor was less than ten (10) years younger then the defendant, required sex offender registration. Now, after the passage of SB 145 (PC 290(c)(3)), the criminal court judge has discretion as to whether to order sex offender registration in the same case. Note: All penalties related to sex crimes after the passage of SB 145 (PC 290(c)(3)) remained the same. Only the requirement of sex offender registration changed as to some sex crimes after the passage of SB 145 (PC 290(c)(3)). The list of sex crimes affected by the passage of SB 145 (PC 290(c)(3)) include the following: anal sex with a minor charged as PC 286(b), oral copulation of minor charged as PC 287(b), sexual penetration of minor charged as PC 289(h) or PC 289(i). As to the above listed sex crimes, the criminal court judge now has discretion as to whether sex offender registration should be ordered after conviction. Prior to Senate Bill 145, a conviction for these crimes required sex offender registration. The California Legislature’s purpose of SB 145 was to create legal consistency with the criminal court’s discretion to order sex offender registration after a criminal conviction for the crime of statutory rape (aka unlawful sexual intercourse). Prior to SB 145, a conviction for statutory rape (PC 261.5), where the minor was over the age of thirteen (13), and the defendant was not more than ten (10) years older than the minor, did not automatically result in sex offender registration. Now, after the passage of SB 145, crimes of statutory anal sex (sodomy), statutory oral copulation, and statutory sex penetration have sex offender registration rules that are consistent with sex offender registration requirements for statutory rape. Equal Protection for LGBT Community Prior to the passage of CA SB 145, the LGBT community fought for equal protection of the laws regarding sex offender registration requirements. The LGBT community argued that vaginal sex between a heterosexual man and woman, where one of the parties to the intercourse was a minor, was treated less severely as demonstrated by the “discretionary” sex offender registration requirement for statutory rape (PC 261.5). After the passage of SB 145 (PC 290(c)(3)), same sex sexual activity (i.e., oral sex, anal sex, sexual penetration) between a minor with an adult, where the sexual interaction is otherwise consensual but for the lack of the minor’s ability to legally consent, is now protected similarly to statutory rape between heterosexual intercourse, at least as far as the requirements for sex offender registration. PC 261.5(D) Changes to CA Law: SB 145 also changed sex offender registration requirements after a conviction for statutory rape. Prior to SB 145, a conviction for statutory rape (aka unlawful sexual intercourse) resulted in discretionary sex offender registration regardless of the age of the defendant. Now, after the passage of SB 145, sex offender registration is required when the defendant is more than ten (10) years older than the minor in a statutory rape case (PC 261.5(d)). The changes to statutory rape law charged as PC 261.5(d) are now in line with the other statutory sex crimes that mandate sex offender registration when the defendant is more than ten (10) years older than the minor. Felony v. Misdemeanor Conviction SB 145 (PC 290(c)(3)) applies to misdemeanor versions of statutory sex crimes (i.e., statutory rape, statutory oral copulation, statutory anal sex (sodomy), and statutory sexual penetration). Felony classification of these crimes generally indicates that either 1) the crime involved non-consent to sexual activity between the minor and the defendant (i.e., forced), or 2) there is more than ten (10) years age difference between the minor and the defendant. Prior Conviction & Aggravation Issues When the defendant has prior conviction for registerable sex crimes, and he or she is convicted of a new sex offense listed in SB 145 (where sex offender registration is otherwise discretionary), the defendant will not be eligible for discretionary sex offender registration. Discretionary PC 290 Registration When sex offender registration is discretionary after a sex crimes conviction, the criminal court judge will weigh any mitigating and aggravating factors relevant to the circumstances of the case to determine whether the defendant should be required to register as a sex offender (PC 290.006). The court will state its reason(s) for requiring, or not requiring, sex offender registration after a conviction for a sex crime where sex offender registration is discretionary. This makes the legal argument for mitigating factors in a sex offender registration case paramount after a conviction for a crime listed in SB 145 (PC 290(c)(3)). No Change to Most Sex Crimes Most sex crimes convictions already fell into either a mandatory registration offense situation, or a non-mandatory registration offense situation. Nothing in SB 145 (PC 290(c)(3)) changes these laws. As stated, SB 145 is limited to creating a discretionary sex offender registration system to the existing sex crimes of statutory sodomy, statutory sexual penetration, and statutory oral copulation discretionary sex offender registration to create similarity between the consequences of these crimes to those that already existed for statutory rape. This means that most crime remain in either the mandatory sex offender registration category or the non-sex offender registration category. These include the following: Mandatory Sex Offender Registration Crimes Agg. Sexual Abuse of Child Lewd Act on Child under 14 Oral Cop on Child under 14 Sexual Pen. of Child under 14 Sodomy of Child under 14 Cont. Sexual Abuse of Child Send Harmful Matter to Child Poss. of Child Porn Pimping of Minor Sexual Battery Annoy or Molest Minor Rape by Force & Gang Rape Rape by Intoxication Attempt Rape Human Sex Trafficking Lewd Act on Child by Force Sexual Assault Indecent Exposure Kidnap for Sex Offense Incest, and more Non-Mandatory Sex Offense Registration Crimes Prostitution Revenge Porn Engage in Public Lewd Act Lewd Act in Public Operate Brothel Note: PC 290.006 makes any sex crimes, either felony or misdemeanor, that is not a mandatory sex offender registration crime a “discretionary” sex offender registration crime. This means that there is no true non-mandatory sex offender registration crime; however, in practice, the judge will rarely order sex offender registration in a discretionary sex offender registration case that is no listed in SB 145 or PC 290(c)(3)). Example: The crime of prostitution (PC 647(b)) is not a mandatory sex offender registration offense after conviction. Nevertheless, a judge could, with sufficient aggravating factors, order the defendant to register as a sex offender after a conviction for prostitution. The reason the judge can order the defendant to register as a sex offender in the above example is that PC 290.006 grants the judge the authority to order sex offender registration in any case where the crime was committed to advance the defendant’s sexual gratification (See PC 290.006). However, in practice, the judge will almost never order the defendant to register as a sex offender after conviction for a non-mandatory sex offender registerable offense that is not listed in SB 145 (PC 290(c)(3)) [i.e., statutory sex offenses]. Length of Sex Offender Registration SB 145 (PC 290(c)(3)) does not discuss the length of sex offender registration for any misdemeanor or felony statutory sex offense conviction. Nevertheless, for purpose of brevity, most statutory sex offenses discussed in SB 145 will result in a ten (10) year, tier one (1) sex offender registration requirement if the judge, in his or her discretion, order sex offender registration at all. For length of sex offender registration per sex offense, see SB 384 & Sex Offender Registration Requirements. In some cases, the defendant may be removed from either the sex offender registry or the sex offender website. For more information, see PC 290.5 Terminate Sex Offender Registration Requirements & Removal from Sex Offender Website. Sex Offender Registration Requirement For more information on the requirement for sex offenders, see PC 290 Registration Requirements. PC 290(c)(3) Law '…a person convicted of PC 261.5(c), 261.5(d), 286(b), 287(b), 289(h), or 289(i) shall not be required to register if, at the time of the offense, the person is not more than ten years older than the minor…, and the conviction is the only one requiring the person to register. This does not preclude the court from requiring a person to register pursuant to Section 290.006' (PC 290(c)(3) Abbrev.). To learn more about SB 145, or sex crimes criminal defense, contact our sex crimes criminal defense lawyers today for a free consultation. Our team of award-winning criminal defense lawyers have successfully defended hundreds of felony and misdemeanor sex crimes charges in the Inland Empire, Los Angeles and Orange County. Our focus is the defense of sex crimes allegations, including criminal charges of lewd act on a child (Child Molestation & PC 288 Crimes), oral copulation (PC 287), indecent exposure (PC 314), prostitution (PC 647(b)), sexual battery (PC 243.4), sodomy (PC 286), sexual penetration (PC 289), child porn possession (PC 311), pimping (PC 266h), pandering (PC 266i), incest (PC 285), and more. Call today! 909-913-3138 Related Articles PC 288.5 Cont. Sex Abuse PC 269 Aggravated Sex Abuse PC 288.2 Send Harmful Matter PC 647(J)(4) Revenge Porn PC 647.6 Annoy or Molest Minor Lewd Act on Child Under 14 California SB145: Recent Changes to California Sex Crimes Registration Law (PC 290).

In California, it is a felony to possess certain commonly used “date rape” drugs while having the intent to commit sexual assault with the use of those “date rape” drugs. This is true even if the defendant never uses the drugs to commit sexual assault (HS 11377.5). Example: David brings Ketamine with him to the dance club where David intends to slip the “special K” into a girl’s drink. Once the girl is intoxicated with the “date rape” drug, David intents to rape the girl. Result: David is guilty of HS 11377.5 because he possesses the ketamine with the intent to use it to commit a sexual assault (i.e., rape of an intoxicated person (PC 261(a)(3)). If David follows through with the rape crime, then David may be charged with both possession of a controlled substance to commit a sexual assault (HS 11377.5) and the rape crime (PC 261(a)(3)). Defendant’s Intent Controls: In the above example, to prove the defendant is guilty of HS 11377.5, the district attorney will have to prove David intended to use the ketamine to commit sexual assault; however, the possession of ketamine itself can be used as circumstantial evidence of David’s intent to commit sexual assault (i.e., rape of an intoxicated person). Note: Flunitrazepam (Rohypnol), Gamma hydroxybutyric acid (GHB) “Liquid Ecstasy” & Ketamine “Special K” are the most common date rape drugs in sexual assault cases as these drugs create heavy sedation, euphoria, and dissociation for the sexual assault victim. HS 11377.5 & 11377(a) Compared: A felony violation of HS 11377.5 is charged where the district attorney believes the defendant’s intent to commit a sexual assault can be proved, either by circumstantial evidence or the defendant’s confession. However, if the defendant’s intent to commit sexual assault with a “date rape” drug cannot be proved, then the district attorney may usually proceed with the misdemeanor “possession of a controlled substance” charge (HS 11377(a)). Special HS 11377(a) Cases: Where the defendant is a sex offender registrant, and he or she possesses a controlled substance without a prescription, the district attorney may charge a felony violation of HS 11377(a). Example: David, a sex offender registrant, has a few grams of cocaine in his possession. Cocaine is not typically a “date rape” drug and it is not a drug listed as such in HS 11377.5; however, David’s prior conviction for a registerable sex crime, coupled with his possession of cocaine (i.e., illegal narcotic), means the district attorney may charge a felony violation of HS 11377(a). HS 11377.5 & Attempt Crimes: A defendant may be charged with both the possession of a “date rape” drug and the attempt to commit a sex offense. Example: David puts Rohypnol in a girl’s drink at a house party. Later, David takes the intoxicated girl to a bedroom to perform oral copulation on her while the girl is too intoxicated to give valid consent; however, when David starts to pull the intoxicated girl’s pants off, he is caught by other party guests. Result: David may be charged with both possession of a controlled substance with the intent to commit sexual assault (i.e., oral copulation) and the attempt oral copulation (PC 664-287(a)). For more information, see Attempted Sex Crimes. Sexual Assault Limited in HS 11377.5: Not every sex crime amounts to a “sexual assault” The sexual assault within the meaning of HS 11377.5. The sex crimes that trigger HS 11377.5 violations include: sexual battery (PC 243.4), Rape (PC 261(a)), Spousal Rape (PC 262), Sodomy (286), Oral Copulation (PC 287(a)), or Sexual Penetration (PC 289) [HS 11377.5(b)]. Note: Other Sexual assault charges exist under PC 220(a) where the defendant is not accused of possession of a “date rape” drug with the intent to sexually assault another person. HS 11377.5 Penalties Felony Classification: HS 11377.5 is always classified as a felony. In other words, the crime does not “wobble” and there is no misdemeanor version of HS 11377.5. Jail Sentence: If found guilty of possession of a controlled substance with the intent to commit a sexual assault (HS 11377.5), the defendant will face either a probation (See Probation Sentence Below), or a sixteen (16) month, two (2), or three (3) year jail sentence. Whether the defendant receives a probation sentence, a sixteen (16) month, two (2), or three (3) year jail sentence depends on the presence or absence of any mitigation or aggravation related to the facts of the case and the terms of any plea bargain agreement between the district attorney and the defendant’s criminal defense attorney. Probation Sentence: A probation sentence is a period of supervision, as opposed to a jail sentence. Probation sentences are allowed after a conviction for felony HS 11377.5, but a probation sentence is not guaranteed. Whether the defendant receives a probation sentence after a conviction for possession of a controlled substance with the intent to commit sexual assault (HS 11377.5) depends on many factors similar to the factors that determine the length of any jail sentence (See Jail Sentence Above). Note: When the defendant receives a probation sentence after a conviction for HS 11377.5, the defendant may be ordered to serve a short incarceration period. This is a “term of probation” as opposed to a non-probation incarceration sentence which would be no less than sixteen (16) months. Suspended Sentence: The jail sentence related to a conviction for HS 11377.5 might be “suspended” by the judge (not served unless the defendant violates a term of his suspended sentence); the jail sentence might even be “split” (partially served in jail and partially served out of jail on work release or post-release community supervision [PRCS]). CIMT: The crime of possession of a controlled substance with the intent to commit a sexual assault is classified as a “crime involving moral turpitude.” A crime of moral turpitude, including HS 11377.5 crimes, are any criminal acts that involves immoral behavior or deceit. Crimes involving moral turpitude carry direct and indirect consequences in addition to any jail or probation sentence, including deportation from the United State for non-US citizens, loss of a professional license, discharge from the military, and more. See Immigration Consequences for Sex Crimes Convictions. Firearm Prohibition: If found guilty, of HS 11377.5, the defendant will lose his or her right to own or possess any firearm, firearm ammunition or body armor for the remainder of his or her life (Subject to possible reinstatement of rights. See PC 4852). PC 290 Registration: A conviction for possession of a controlled substance with the intent to commit sexual assault is not, by itself, a sex offender registration offense (PC 290). However, if the defendant conspired with any person, or attempted to commit a sexual assault (beyond mere preparation of possession of the controlled substance), then he or she may be ordered to register as a sex offender (See Attempt Sex Crimes & PC 290 Registration). Exception: In some cases, where the defendant is motivated by a sexual compulsion to commit the crime of HS 11377.5, the court may order the defendant to register as a sex offender despite the crime not otherwise being a registerable offense (See PC 290.006). Additional Penalties: In addition to any jail or probation sentence, if found guilty of possession of a controlled substance with intent to commit sexual assault, the defendant will face court fines, fees, criminal protective orders, loss of scholarship, family law rights, and more. HS 11377.5 Defenses Depending on the circumstances of the case, common defenses to HS 11377.5 criminal charges include: lack of sufficient evidence to prove defendant’s intent with regard to the controlled substance, non-qualifying controlled substance (See Above), mistake of fact as to the nature of the controlled substance, insufficient evidence to prove “possession,” statute of limitations, coerced confession, violation of Miranda Rights, Plea Bargaining for light sentence or charges, or both, and more. For more information, see “Date Rape” Crimes, Attempt Sex Crimes & Defenses to California Sex Crimes. Note: Diversion, also known as “Judicial Diversion,” is not available in HS 11377.5 cases (PC 1001.95); however, other types of diversion, including District Attorney Diversion or Military Diversion for Sex Crimes, may be available in some possession of a controlled substance with intent to commit sexual assault cases. If you have been charged with possession of a controlled substance with intent to commit sexual assault, or HS 11377.5, contact our sex crimes criminal defense lawyers today for a free consultation. Our highly experienced attorney have handled hundreds of misdemeanor and felony sex crimes, including penal codes 288(a), 288.5, 287, 289, 286, 285, 311.11, 288.2, 243.4, 261, 209(b), 647(b), 266, 314, 315, 220(a), 288(c), 288(b), 261.5, 269, 288.7, 290(b), and more. We have successful sex crimes criminal defense trial attorneys ready to answer your questions and we serve all Inland Empire cities and courts, including Rancho Cucamonga, Fontana, Riverside, Ontario, Rialto, Victorville, Yucaipa, Hesperia, Moreno Valley, Banning, San Bernardino, Redlands, Highland, Corona, and more. Call today! 909-913-3138 Related Content PC 667.61 Law & Defense Lewd Act on Child<14 PC 647(a) Law & Defense PC 647(J)(2) Crimes PC 647.6 Annoy or Molest Possession of Drugs to Commit Sexual Assault. Sex Crimes Criminal Defense Lawyers Explain California Penal Code 11377.5 & 11377(a).

Sexual Assault v. Sexual Battery: What’s the Difference? The difference between sexual assault and sexual battery is that sexual assault is an “attempt” crime, whereas sexual battery is a “completed” crime. In California, the crime of sexual assault is an attempt to commit a specific sex offense. For example, David attempts to commit sodomy of Sarah while Sarah is extremely intoxicated, but David’s effort to commit sodomy on Sarah is thwarted when Sarah’s friend catches David in the act and calls the police. In this example, David attempted to commit the crime of sodomy, with the specific intent to commit sodomy, but the completely crime of sodomy was not committed; therefore, David may be charged with sexual assault to commit sodomy (PC 220(a)(1)/286). No Touching Required for Sexual Assault: Unlike sexual battery, sexual assault does not require that the victim be physically touched with sexual intent. The defendant’s attempt to commit a sex offense is all that is needed for sexual assault, regardless of whether the defendant touches the victim with sexual intent. For example, David grabs Sarah in his attempt to rape Sarah. When David grabs Sarah, he does not grab her in a sexual manner, but he does grab her with the intent to rape her at a later time. Sarah escapes David before he completes the crime of rape. In this example, David assaulted Sarah with the intent to rape her, and even though David did not grab Sarah in a sexual manner, he may be charged with sexual assault because he intended to rape Sarah when he grabbed her. Sexual Battery: Sexual battery, unlike sexual assault, requires that the victim be physically touched in a sexual manner (simultaneous touching and intent required). For example, David grabs Sarah’s butt with the intent to sexually arouse either himself or Sarah. In this example, David may be charged with sexual battery because he touched Sarah’s butt at the same time that he intended to sexually arouse Sarah or himself. Note: Neither sexual assault, nor sexual battery, require an intimate part of the victim be touched (i.e., female breasts, buttocks, genitals). For example, David rubs his leg up against Sarah’s leg at dinner to sexually arouse either Sarah or himself. In this example, David may be charged with sexual battery even though he did not use his hands and even though he did not touch an intimate part of Sarah. Sexual Battery & Sexual Assault Charged Together Sexual assault and sexual battery can be committed at the same time; these crimes may also be charged together in the same criminal complaint, but it is not automatic that a sexual assault results in a sexual battery. For example, David grabs Sarah’s neck in an attempted rape. When David grabs Sarah’s neck he is not attempting to sexually arouse her or himself, but he is trying to subdue her in his effort to rape her. In this example, even though David touched Sarah’s neck, he was not sexually aroused or trying to sexually arouse Sarah when he did so. Therefore, David may be charged with sexual assault, but not sexual battery. Similar Defenses May Apply: Similar defenses may apply to both sexual assault and sexual battery crimes, including consent (does not apply in cases where victim is a minor), insufficient evidence to prove the crime, coerced confession, illegal search and seizure, statute of limitations, alibi defense, and more. Punishment Differences: The crime of sexual assault is generally punished more severely than the crime of sexual battery. This is because the crime of sexual assault involves the attempt to commit a serious and violent sex offense (i.e., oral copulation, rape by force or fear, sodomy, sexual penetration, lewd act on a child under 14, etc.), whereas the crime of sexual battery does not usually involve either injury to the victim, or the level of attempted personal violation associated with sexual assault crimes. Note: Sexual assault crimes carry greater direct and indirect penalties than sexual battery crimes, including greater immigration consequences, longer incarceration, greater professional licensing consequences, more fines, bigger restitution amounts, and more. Sexual Offense & Completed Crime: When sexual assault or sexual battery leads to the completed crime, then the completed crime is charged, not the sexual assault or sexual battery charge. Example: David assaults Sarah with the intent to rape Sarah (i.e., sexual assault with intent to commit rape [PC 220(a)(1)/261). Thereafter, David rapes Sarah. David may be charged with both sexual assault and the completed crime of rape, but David cannot be sentenced for both the attempt crime (sexual assault to commit rape) and the completed crime (rape); therefore, the district attorney will only charge the completed crime of rape in this example. Sex Offender Registration: Both sexual assault crime and sexual battery crimes require sex offender registration in California (PC 290(c)). However, the length of registration as a sex offender is usually much longer for sexual assault crimes than it is for sexual battery crimes (See CA Tier System for Sex Offender Registration). Alternative Charge for Sexual Assault: As stated, a sexual assault is an 'attempt to commit a crime, coupled with the specific intent to commit that crime.' In turn, in criminal law, an “attempt” to commit a crime is a ‘substantial step towards the commission of a crime, coupled with the specific intent to commit that crime.’ In essence, a sexual assault crime is virtually the same as attempt to commit a sex crime, but with the added element of ‘substantial step towards commission of the crime for an attempt offense. Therefore, the district attorney in sexual assault crimes will sometimes charge the crime under California penal code 664, which covers the law of attempt, so long as the district attorney believes a ‘substantial step’ towards the commission of the crime was completed. For example, in California, the crime of attempted rape, where the defendant makes a ‘substantial step towards the commission of the crime of rape,’ many be charged as either PC 220(a)(1)/261 (sexual assault to commit rape), or PC 664/261(a) (attempted rape). Sexual Assault Crimes in California (Abbrev.) PC 220(a)(1)/261 Assault to Commit Rape PC 220(a)(1)/264.1 Assault to Commit Gang Rape PC 220(a)(1)/286 Assault to Commit Sodomy PC 220(a)(1)/287 Assault to Commit Oral Copulation PC 220(a)(1)/288 Assault to Commit Lewd Act on Child PC 220(a)(1)/289 Assault to Sexually Penetrate with Object Sexual Battery Crimes in California PC 243.4 Sexual Battery by Restraint (Misdemeanor or Felony) PC 243.4(e)(1) Sexual Battery (Misdemeanor) PC 243.4(b) Sexual Battery of Inmate PC 243.4(c) Sexual Battery of Unconscious Person PC 243.4(d) Sexual Battery by Forced Masturbation For more information on the crimes of sexual assault (PC 220(a)) and sexual battery (PC 243.4), including the differences and similarities between sexual assault and sexual battery, contact our sex crimes criminal defense attorneys today for a free consultation. Our team of dedicated defense attorneys have successfully handled hundreds of sex crimes in the Inland Empire, including the cites and court of San Bernardino, Riverside, Fontana, Rancho Cucamonga, Rialto, Yucaipa, Redlands, Upland, Ontario, Chino, Victorville, Highland, and more. Call today! 909-913-3138 Related Articles (2026) Lewd Act on a Child & PC 288(a) Rape in Concert (Gang Rape) Continuous Sexual Abuse of Child Possession of Obscene Material Sexual Battery v. Sexual Assault

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

When a criminal defendant is accused of committing a sex crime in California, evidence of his or her prior criminal history of any sexual offenses might be admissible in the defendant’s present case to prove the defendant’s guilt in the present offense (CEC 1108). Note: Ordinarily, when a defendant is charged with a non-sex offense, his or her prior criminal history is usually inadmissible to prove his or her guilt in the present offense (CEC 1101). Some exceptions apply to the rule set forth in CEC 1101. Example: In 2026, David is criminally charged with lewd act upon a child under 14 (PC 288(a)), a sex offense. Per CEC 1108, David’s 2020 conviction for oral copulation (PC 287(a)), a sex offense, may be used in David’s 2026 case as evidence to prove David committed the PC 288(a) offense. Example II: In 2026, David is criminal charged with lewd act upon a child under 14 ( PC 288(a) ), a sex offense. Per CEC 1101, David’s 2020 conviction for grand theft (PC 484), may not be used in David’s 2026 case as evidence to prove David committed the PC 288(a) offense. Note: CEC 1108 is used by district attorney to introduce a defendant’s prior sex crime as evidence in a current case, whereas CEC 1101 is used by criminal defense lawyers in an attempt to exclude a criminal defendant’s prior criminal history as evidence in a current case. There are some limitations to the use of CEC 1108 evidence in current sex crimes prosecutions. That limitation is found at California evidence code section 352 Evidence Code 352: The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. In most sex cases where the district attorney is attempting to introduce evidence of a defendant’s prior sex offense, it is EV 352’s “create substantial danger of undue prejudice” test that presents the hurdle for introduction of evidence of that prior sex offense. Example: In 2026, David is charged with lewd with child under 14 (PC 288(a)), a sex offense. The district attorney would like to introduce evidence of David’s 2020 conviction for sodomy (PC 286), a sex offense. CEC 1108 will allow the district attorney to introduce that evidence, so long as the introduction of that evidence does not “create substantial danger of undue prejudice” to David in the jury’s view. Note: The criminal court judge is the arbitrator of whether CEC 1108 prior sex offense evidence “creates substantial danger of undue prejudice” to the defendant in the defendant’s current case. If the judge finds that EV 352 rules would be violated, the judge will not allow the district attorney to introduce evidence of the defendant’s prior sex offense in the current case. Undue Evidence: Arguably, any evidence of a defendant’s prior sex offense, which is introduced in a current case, is prejudicial to the defendant in the jury’s view, but the question is whether the prejudice is “Undue” prejudice. In other words, does the evidence of the defendant’s prior sex offense have some value to the district attorney’s case other than to prejudice the jury against the defendant? Example: In 2026, David is charged with sexual battery (PC 243.4), a sex offense. The district attorney would like to introduce David’s prior 2020 conviction for sexual battery to show the jury that David has a propensity to commit sexual battery. Result: Under EV 1101, the district attorney may not be allowed (with some exceptions) to use evidence of prior criminal offense in a current criminal prosecution; however, in David’s case, the district attorney may introduce, via CEC 1108, David’s prior sexual battery conviction as evidence in David’s current prosecution to show that David has a propensity to commit sexual battery . Note: In the above example, David is certainly prejudiced in his current case by the prosecution’s use of David’s prior sex offenses, but CEC 1108 allows the district attorney to use this evidence so long as its use does not violate PC 1054.7 disclosure rules (See Below) and EV 352 (See Above). Non-Prejudicial Uses of CEC 1108 Evidence Proper uses of CEC 1108 evidence by the district attorney include propensity of the defendant to commit the crime, motive or opportunity for the defendant to commit the crime, lack of mistake alleged by the criminal defendant, identity of the defendant, and more. This list is not exclusive, but these reasons represent the most common reasons presented by the district attorney to a criminal court judge in the district attorney’s effort to have the CEC 1108 evidence introduced against the criminal defendant. Evidence Code 1108 Reads In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant’s commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352 (CEC 1108(a)). In an action in which evidence is to be offered under this section, the people shall disclose the evidence to the defendant, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered in compliance with the requirements of PC 1054.7 [Disclosure Requirements] (CEC 1108(b)). This section does not limit the admission or consideration of evidence under any other section of this code (CEC 1108(c)). As used in CEC 1108, the following definitions shall apply: A “Sexual offense” means a crime, or conspiracy to commit a crime, under the law of a state or of the United States that involved any of the following (CEC 1108(d)(1)(A-F) Abbrev.): PC 236.1 Sex Trafficking PC 243.4 Sexual Battery PC 261(a) Rape PC 261.5 Statutory Rape PC 264.1 Rape in Concert PC 266c Sex by False Pretense PC 269 Sexually Abuse Child PC 286 Sodomy PC 287 Oral Copulation PC 288 Lewd Act on Child PC 288.2 Send Harmful Matter PC 288.5 Cont. Sexual Abuse PC 289 Sexual Penetration PC 311.2 Bring Child Porn PC 311.3 Produce Child Porn PC 311.4 Use Minor Dist. CP PC 311.10 Dist. Child Porn PC 311.11 Poss. Child Porn PC 314 Indecent Exposure PC 647.6 Annoy or Molest PC 220(a) Sexual Assault Conviction of Prior Offense Not Required Per CEC 1108, the district attorney’s use of evidence of a prior sex offense in a current criminal prosecution does not require the district attorney to prove the prior sex offense resulted in a criminal conviction. Example: In 2026, David is charged with oral copulation (PC 287), a sex offense. Per CEC 1108, the district attorney wants to introduce evidence of David’s 2020 arrest for the same offense to prove that David has a propensity to commit oral copulation. Result: The judge may allow the district attorney to introduce David’s 2020 arrest for oral copulation even if David’s arrest did not result in a criminal conviction, and so long as the limitations of Evidence Code 352 and the requirements PC 1054.7 are met. Of course, in a situation where the defendant’s prior sex offense did not lead to criminal conviction, the district attorney will have a difficult task of convincing a judge that CEC 1108 evidence does not violate the limitations of EV 352 (i.e., the prejudice to defendant is greater than the tendency of the evidence to prove a fact in dispute, or the non-conviction prior will confuse the issues for the jury as evidence will be needed to prove the defendant’s non-conviction prior). CEC 1108 & CEC 1101 Balancing Act CEC 1108 is an exception to the CEC 1101 rule that limits the district attorney from presenting evidence of a defendant’s prior criminal convictions in a current prosecution (with some exceptions). The reason for Evidence code 1101 is that evidence of a defendant’s prior criminal conviction is obviously very prejudicial against the criminal defendant in his or her current criminal prosecution. However, CEC 1108 allows evidence of a defendant’s prior sex arrest in a current prosecution for a sex crime even though the prior arrest was not proved beyond a reasonable doubt (so long as the judge agrees to allow the district attorney to use the evidence of a prior arrest for sex offense). The law finds balance of this CEC 1101 v. 1108 admissibility of evidence in the fact that a criminal judge has discretion to allow, or not allow, CEC 1108 prior sex offense evidence. Example: In 2026, David is charged with possession of child pornography (PC 311.11), a sex offense. The district attorney would like to introduce evidence, via CEC 1108, of David’s prior 2010 arrest for sending harmful matter to a minor (PC 288.2), a sex offense. Result: The judge, in his or her discretion, may find that that David’s arrest, without conviction, from sixteen (16) years before David’s current criminal prosecution, has no probative value to David’s current case, and that the lack of a criminal conviction of David’s prior alleged sex offense means the district attorney will have to present disputed evidence of the facts surrounding David’s prior arrest; therefore, the judge may exclude the district attorney’s evidence of David’s prior PC 288.2 arrest. Only Enumerated Sex Offenses Apply By the language of CEC 1108, some sex offenses do apply to the rule. For these non-enumerated sex offenses, Evidence Code 1101 applies. Example: In 2026, David is charged with solicitation of prostitution (PC 647(b)), a sex offense. David has a prior conviction for solicitation of prostitution. The district attorney would like to use evidence of David’s prior conviction for prostitution in David’s current case. However, the crime of prostitution is not a sex crime listed in CEC 1108; therefore, the district attorney may not use evidence of David’s prior conviction per CEC 1101 (with some exceptions listed in CEC 1101). Pretrial Motion Regarding CEC 1108 Evidence CEC 1108 evidence is an issue that is handled before a criminal trial starts. In other words, the criminal defendant’s attorney will argue, long before, trial, that both evidence code 1101 and evidence code 352 do not permit the district attorney’s evidence of the defendant’s prior sex offense in the current case for various reasons. The important thing to remember is that not all sex crimes criminal defense lawyers are the same. It is absolutely vital to your future that you retain an experience sex crimes criminal defense lawyer familiar with the arguments that have the greatest chance of success in any CEC 1108 or Evidence Code 352 motion. To learn more about California Evidence code section 1108 (admissibility of prior sex crimes evidence), contact our sex crimes criminal defense lawyers for a free consultation. Our team of highly successful criminal defense lawyers have successfully defended hundreds of misdemeanor and felony crimes in Riverside, San Bernardino, Orange & Los Angeles County. Our award-winning criminal defense trial lawyers defend misdemeanor and felony sex crimes, including lewd act on a child, oral copulation, possession of child porn, indecent exposure , statutory rape, rape crime, sexual battery, prostitution, annoying a child, incest, harmful matter sent to minor, and more. Call today! 909-913-3138 Related Articles Sexual Abuse of Child Sodomy Crimes & PC 286 PC 288.7 Law & Defense Aggravated Kidnapping Sexual Penetration by Object CEC 1108 Admissibility of Prior Sex Offense in California Criminal Prosecution. Sex Crimes Criminal Defense Lawyers Explain CA Evidence Code 1108 Law & Defense

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

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