Crimes that involve children in California are subject to severe penalties. It is an offense under Penal Code 288.3 to contact a child to commit a felony. Sex offenses involving minors are among the most serious felony charges and carry especially harsh penalties. Given the severity of the potential consequences, you should consult an experienced criminal defense attorney if you are accused of committing an offense involving a minor.

Contacting A Minor To Commit A Felony Explained

It is a crime to communicate with a minor if you intend to commit any felony. Under Penal Code 288.3(a), it is a crime to communicate with anyone you reasonably believe to be under 18 with intent to commit any felony. Additionally, it is an offense under this law to talk to a person you reasonably believe to be underage.

Penal Code 288.3 considers every unlawful call an attempt to commit the planned or intended felony. You could face a jail term that does not exceed three years in a state prison and a fine of up to $10,000 if convicted under PC 288.3.

You could face a jail term that does not exceed five years in a state prison in addition to the base term for a subsequent conviction of the same crime. A subsequent conviction under PC 288.3 may result in additional prison time. The court can also order you to register as a sex offender if you are convicted under this statute.

The Elements The Prosecutor Must Prove

People younger than 18 years are deemed minors. It is an offense to communicate with, contact, or attempt to contact a person considered a child for the purpose of committing a sexual offense. The popular way of enforcing this law is through sting operations. Sting operations are often carried out online with undercover police posing as minors. When this happens, an offender often calls a person he/she believes is a minor instead of the real minor.

If the prosecutor accuses you of contacting a minor to commit a felony, the prosecutor should prove the following elements:

  • You tried to talk to a minor in some way

  • You intended to contact the child to commit a certain felony

  • You were aware or should have been aware that the person was a child

Talked To A Minor In Some Way

The following interactions meet the standards for ‘’contact’’ or communication under PC 288.1:

  • In-person conversation

  • Communication through any type of radio or electronic system for the exchange of information

  • Online communication, including email

  • Communication through the phone

  • Print media forms of communication, like ‘’missed appointments’’ or personal advertisements in newspapers or magazines.

  • Communication through mail

Communication or contact with a child can also be direct or indirect.

You Were Aware or Should Have Been Aware That The Person Was A Child

You can face criminal charges under PC 288.3 if you understood or reasonably should have known that the said person was a child. The judge can convict you under this law even if the child assured you that he/she was over 18 years, especially if there are reasons to doubt the assertion.

The Underlying Crime

The prosecutor must prove that you intended to commit any of the following felonies for you to face the charges under PC 288.3:

Distribution Of Obscene Materials To A Minor

It is a crime to send obscene materials to any person below 18 years with the intent to sexually arouse them or yourself or to engage in sexual behavior with them.

Using A Foreign Object To Commit A Sexual Act Against Their Will

Two categories about the use of a foreign material for sexual penetration are covered under PC 289:

  • Engaging in a sexual act with a child using an object, even with the child’s permission

  • Using an object for sexual penetration without permission, carried out with physical force, intimidation, aggression, or threats to the minor’s safety

Acts Of Sodomy

Violations of PC 286 include:

  • Having anal sex or sodomy with a minor

  • Engaging in lewd acts with a child below 14 years

  • Forcing a minor to engage in sodomy against the minor’s will

Lewd acts involve touching a minor for sexual purposes under PC 288. This statute covers sexually explicit conduct committed against a minor who is below 14 years old.

Oral Copulation

It is a crime under PC 287 to:

  • Perform oral sex on a child, even with the child's permission

  • Engage in oral copulation using fear or force

Endangering A Minor

Child endangerment is defined under PC 273(a) as the act of permitting, producing, or inflicting unnecessary physical harm or emotional trauma on a child.

Kidnapping A Minor

Under California law, kidnapping can happen when a child is moved over a significant distance against their will and in violation of the law without the child’s consent. Sometimes, kidnapping can happen without physical harm, threats, or actual violent acts, provided the following criteria are met:

  • You lured the minor to accompany you by making false statements or misrepresenting circumstances

  • You took a minor against their will to sexually abuse them, and the minor is below 14 years old.

Child Pornography

You can face criminal charges under PC 288.33 if you contact a minor to commit acts involving child pornography. It is an offense under PC 311.1 and 311.2 for you to send, convey, copy, make, or possess pornographic materials with the intent to distribute them. You can also face charges under PC 311.4 if you employ, coerce, use, or persuade a child to engage in developing child pornography. Additionally, it is an offense under PC 311.11 for you to possess or control pornographic content involving minors.

Rape

  • Rape is defined under PC 261 as engaging in sexual intercourse or contact with someone else without their permission. This happens when:

  • You commit the act using duress, coercion, violence, or threats

  • The victim cannot consent because of severe intoxication or mental or physical disabilities

Penalties For Violating Penal Code 288.3

If you are accused of contacting or conversing with a child intending to commit a felony, you will face similar penalties as if you had committed the actual offense you are charged with attempting to commit. This offense is considered a felony that attracts the following penalties:

  • A fine that does not exceed $10,000

  • A jail term that does not exceed three years in a state prison

  • Formal or felony probation

The severity of punishment corresponds directly to the severity of the attempted or underlying crime. For example:

  • You can face a jail term of three, six, or eight years in a state prison, depending on the severity of the crime, if you are convicted of communicating or contacting a minor below 14 years to conduct indecent acts.

  • You can face a jail term of seven to 13 years in a state prison if you are guilty of communicating with a minor to commit forcible sodomy.

  • Any subsequent crime can attract an additional and consecutive jail term of five years in a state prison if you have previously been convicted of violating PC 288.3.

  • You can face a jail term of 16 months to eight years if you contact a child intending to engage in a consensual oral sexual act

Registering As A Sex Offender

The court can order you to register as a sex offender for life under PC 290 if you are guilty of violating PC 288.3. You will remain registered for life if you are a tier 3 sexual offender.

You can be ordered to register as a Tier Two sexual offender if you commit certain types of sexual offenses. This constitutes a mandatory registration period of 20 years. The law enforcement often enforces this registration period.

A Tier One offender will be ordered to register as a sex offender for ten years or more. You will be required to register under the Sex Offender Registration Act with the local police department in your area of residence. You must re-register each time you relocate or before the end of the fifth business day after your birthday each year.

You could also face a felony charge for failing to register, in addition to being charged with a felony under PC 288.3. This can happen if you fail to adhere to the previously indicated registration requirements. This offense can attract a jail term of 16 months, two years, or three years in a state prison.

Defenses Against Penal Code 288.3 Charges

The voters in California passed the law making it a crime to contact or communicate with minors to commit certain offenses. This law was part of Proposition 83, also called the Sexual Predator Punishment and Control Act or Jessica’s Law. It is distressing to be accused of a sexual crime. You should not handle this case solely. An experienced sexual criminal attorney can help you develop an appropriate defense against your charges. Some of the potential defenses include the following:

You Are A Victim Of Entrapment By The Police

This happens when you give in to pressure exerted by the police and commit the offense you could not have otherwise committed. The following are some of the police strategies that can lead to an individual being entrapped:

  • Flattery

  • Fleecing

  • Issuing threats

  • Harassment

  • Use of force

  • Fraud

You can be charged with communicating with a minor to commit an offense after being arrested during a sting operation. Undercover police often pose as children online. They can engage in aggressive flirting with you to further their investigation. You can allege that the police entrapped you if this happens to you. You can also claim that you are not liable for communicating with a child to commit a felony.

You Did Not Plan To Violate Penal Code 288.3

You can develop romantic or sexual feelings for a minor after having interactions or contact with them. Because of your actions, you can feel you have violated PC 288.3. However, the judge cannot make a guilty ruling for this violation without the prosecutor proving that you intended to commit a felony.

Knowing that you have communicated with a child is not enough evidence to show that you intended to commit a violation. This is true whether or not your conversation included sexually explicit information. Inviting the minor to a public place is not enough evidence of malicious intent.

You Did Not Know That The Person You Were Talking To Was A Minor

This defense can only be valid if your criminal defense attorney proves you had reasonable grounds to believe the person was over 18 years old. You can support this defense with the following statements:

  • You can claim that the victim lied about their age if asked about the victim’s age

  • You met the person alleged to be a minor at an adults-only event, like a bar or concert

  • The person alleged to be a minor looked extremely mature

Mistake Of Facts

A mistake of fact can happen if someone misinterprets your case. For example, a minor can be injured while playing, but the doctor interprets the case as child endangerment or abuse. This can be a valid defense if you face charges for an offense because of a mistake of fact. You should discuss your situation with your attorney and provide evidence to show that the minor was accidentally injured while playing with friends. The judge can drop your charges if he/she is convinced.

False Accusations

A child can get confused and frightened when he/she is a victim of a criminal offense. The minor can be confused when identifying the perpetrator of the offense. This can lead to false accusations.

Find a Criminal Defense Attorney Near Me

Any person who attempts to communicate with a minor with the intent to commit a felony can face charges under California Penal Code 288.3. Contacting a minor to commit a felony is a serious offense whose penalties can be detrimental. In most cases, the felonies involved are sexual crimes like child pornography, statutory rape, oral copulation, or sodomy. If you or someone close to you faces charges under PC 288.3, you should act fast and contact a skilled attorney to help you fight against the criminal charges.

At the Law Office of Sara L. Caplan, we have dependable criminal defense attorneys who will be there for you whenever you need them. We understand the severity of a violation of PC 288.3, and we will do everything possible to mitigate your charges. Contact us today at 310-550-5877 for a reliable representation in Los Angeles.