Committing a lewd or lascivious act on a child under the age of 14 years violates California Penal Code section 288(a). To prove that the defendant is guilty of this crime, the People must prove that:
1. The defendant willfully touched any part of a child’s body either on the bare skin or through the clothing; or the defendant willfully caused a child to touch his or her own body, the defendant’s body, or the body of someone else, either on the bare skin or through the clothing;
2. The defendant committed the act with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of himself or herself or the child;
3. The child was under the age of 14 years at the time of the act.
In the context of Penal Code section 288 a lewd or lascivious act involves any touching of a child with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of either the perpetrator or the child. Contact with the child’s bare skin or private parts is not required. Any part of the child’s body or the clothes the child is wearing may be touched. This may also includes causing a child to touch his or her own body, the perpetrator’s body, or someone else’s body at the instigation of a perpetrator who has the required intent. For the purposes of classifying the age of the victim, under California law, a person becomes one year older on the first minute of his or her birthday. Thus a
The penalties and sentencing vary considerably depending on the child's age at the time of the lewd acts. For example, If the child was less than 14 years old at the time of the lewd acts, the offense is a felony, punishable by either probation and up to one year in the county jail, or a term of 3, 6 or 8 years in California State Prison.. If the offense involved the used of force, violence duress or threats the potential prison sentencing range is enhanced to 5, 8 or 10 years. Further, if the defendant has a prior conviction of a sex crime he or she may be classified under California's habitual sexual offender law. This classification could expose the Defendant to a sentence of 25 years to life in prison.
If the minor was 14 or 15 at the time of the offense, and the defendant was at least 10 years older than the minor, then the offense can be charged according to prosecutorial discretion either as a misdemeanor or a felony. This decision is dependent on the facts of the case and the defendant's prior criminal history. As a misdemeanor, the offense carries a probation and a potential one year sentence in the county jail. As a felony, the penalty is either probation and up to one year county jail, or 16 months, 2 years or 3 years in California State Prison.
If the victim child was under 14, the offense is classified as a violent felony and, therefore, qualifying as a strike under California's Three Strikes Law.
It is not a defense that the child may have consented to the act; however a charge of lewd acts with a child can be challenged on the basis of whether or not the incident occurred or that of mistaken identity. Although false reporting of incidence does occur the primary basis of a defense is likely to hinge on the identity of the offender and what type of conduct occurred, which will likely be the product of testimony from the alleged victim and sources of circumstantial evidence.
Given the high risk involved with a lewd acts with a child charge, it is important to seek experienced counsel if you are the subject of an investigation or are detained by law enforcement. Regardless of whether or not the case proceeds to trial, the seriousness of a California lewd acts with a child charge requires the assistance of a skilled and committed California criminal lawyer who knows every legal argument when defending clients.
If you have been arrested for the crime of lewd acts with a child in the Visalia, California area, contact an expert criminal lawyer as soon as possible to protect your legal rights.
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