March 14, 2017

California Oral Copulation Sentencing Guidelines

In California, oral copulation is defined as any contact, no matter how slight, between the mouth of one person and the sexual organ or anus of another person. Oral sex between two consenting adults is legal in the state of California. However, under California Penal Code Section 288a, it is unlawful to commit the act of oral copulation with a minor or by force or fear.

California oral copulation is a very serious crime. If you are convicted, you face severe consequences. The punishment you face for oral copulation will depend on the age of the defendant and the age of the victim. In this blog, we discuss the different charges and punishments for an oral copulation conviction:

Oral Copulation with a Minor (PC 288a)

If you are convicted of oral copulation with a minor under California Penal Code Section 288a, you face up to eight years in prison. The sentence you face depends upon your age and the age of the victim:

  • PC 288a(b)(1) – If the alleged victim is under 18 years of age, you face up to 364 days in county jail
  • PC 288a(b)(2) – If you are over 21 years old and the alleged victim is under 16 years old, you face up to three years in prison
  • PC 288a(c)(1) – If the alleged victim is under 14 years of age and you are 10 years or more older than the accused, you face up to eight years in prison

Oral Copulation without Consent

You could face oral copulation charges even if the alleged victim is not a minor. Typically, this involves oral copulation by force or fear. The punishment you face depends upon the circumstances of your case:

  • PC 288a(2)(A) – This crime carries up to eight years in prison if your act involved oral sex through force, violence, duress, menace or fear of immediate unlawful bodily injury
  • PC 288a(B) – If you commit the same act described above upon a person who is under 14 years of age, you face up to 12 years in prison
  • PC 288a(C) – If you committed this act with a minor 14 years old or older, you face up to 10 years in prison
  • PC 288a(3) – If you threatened to retaliate against the victim or any other person in the future and there is a reasonable possibility that you could follow through on the threat, you face up to eight years in prison
  • PC 288a(f) – You face up to eight years in prison if the victim was unconscious, unaware or not cognizant of the act, an you induced the victim to acquiesce through fraud or represented that the act served a professional purpose when it served no such purpose
  • PC 288a(i) – If you prevented the victim from resisting through intoxicating, anesthetic or controlled substances, you face up to eight years in prison
  • PC 288a(j) – If you induced the victim through artifice, pretense or concealment to believe you were his or her spouse, you face up to eight years in prison
  • PC 288a(k) – You face up to eight years in prison if you performed the act against the victim’s will by threatening to use the authority of a public official to incarcerate, arrest, or deport the victim or another, and the victim had a reasonable belief that you were a public official

Oral Copulation in Concert (PC 288a(d)(1))

Oral Copulation Sentencing
Oral copulation is a serious crime in California.

Oral copulation in concert is when you performed the crime of oral copulation with another person. You may have aided and abetted the other person in committing oral copulation, or he or she may have aided you in committing the act.

Under California Penal Code Section 288a(d)(1), you face up to nine years in prison if you are convicted of oral copulation in concert. Accomplishing this act by force or fear could result in up to 12 years in prison, while committing oral copulation in concert with a minor under 14 years of age is punishable by up to 14 years in prison.

Oral Copulation Convictions and Sex Offender Registration (PC 290)

Regardless if you are convicted of a misdemeanor or felony, you will most likely be required to register as a sex offender for the rest of your life under California Penal Code Section 290. If you are required to register as a sex offender, you must register with your local law enforcement agency annually and every time you change your name, address or place of employment. Failure to register is a separate crime.

However, if you are convicted under Penal Code Section 288a(b)(1), you may not be required to register. This crime is considered a discretionary registration crime, meaning it is up to the sentencing judge to determine if lifetime sex offender registration will be required (People v. Hofsheier (2006) 37 Cal. 4th 1185).

Registration as a sex offender can have serious consequences on where you live, where you work, and your standing in the community. Therefore, it is important to contact an experienced sex crimes attorney if you are being charged with oral copulation.

Statute of Limitations for California Oral Copulation

statute of limitations for oral copulation
There is a statute of limitations for oral copulation.

In California, there is a statue of limitations for certain crimes. A statute of limitations is essentially a time limit on when prosecutors could formally file charges against you. The idea behind this is that witness’ memory fades and evidence becomes less reliable over time.

This statute of limitations varies based on each crime. Generally, misdemeanor charges must be filed within one year of alleged offense, while felonies must be charged within three years. However, the statute of limitations is much different for sex crimes.

California allows several exceptions to the statute of limitations for sex crimes:

  • Penal Code Section 801.1(a): For felony offenses involving a victim under the age of 18, you could be prosecuted any time prior to the victim’s 40th birthday.
  • Penal Code Section 801.1(b): For felony offenses involving an adult victim, you could be prosecuted within 10 years of the offense.
  • Penal Code Section 802(a): For a misdemeanor offense involving a minor victim 14 to 17 years old, you could be prosecuted within one year after commission of the offense.

In order for the statute of limitations extension to apply, all of the following must exist:

  • The original statute of limitations has expired
  • The crime involved substantial sexual conduct, as described in subdivision (b) of Section 1203.066, excluding masturbation that is not mutual (Penal Code Section 803(f)(1)(B); and
  • There is independent evidence that corroborates the victim’s allegation. If the victim was 21 years of age or older at the time of the report, the independent evidence shall clearly and convincingly corroborate the victim’s allegation (Penal Code Section 803(f)(1)(C)); OR
  • New DNA evidence has been collected to connect you to the crime, if the offense was committed prior to Jan. 1, 2001 and biological evidence is analyzed for DNA type no later than Jan. 1, 2004, or the offense was committed on or after Jan. 1, 2001 and biological evidence is analyzed for DNA type no later than two years from the date of the offense (Pen. Code Section 803(g)(1)(B))

Defenses to Oral Copulation

Our sex crimes defense attorneys have been successfully defending clients charged with oral copulation for more than 35 years. Some of the valid legal defenses we have used to obtain a favorable result for our clients include:

  • Consent – If the alleged victim was able to provide legal consent to the act and did so, you will likely not be convicted of this crime
  • Good faith belief that the victim was 18 years or older – If you are charged with oral copulation with a minor, it could be a valid defense to the charges if you believed and a reasonable person would have believed that the victim was 18 years or older at the time of the alleged incident.
  • Alleged victim is lying – You cannot be convicted of this crime if it is found that you did not commit the act. Therefore, if the victim is lying, your attorneys may have a valid legal defense to use in your case. Your attorneys may attempt to show that the victim is lying by showing he or she is unreliable and has a motivation to lie.

Call a Sex Crimes Attorney Wallin & Klarich Today

oral copulation attorneys
Our skilled oral copulation attorneys can help you now!

If you or a loved one is facing a charge of oral copulation, it is critical that you speak to an experienced criminal defense attorney. At Wallin & Klarich, our attorneys have over 35 years of experience successfully defending persons accused of oral copulation. Our skilled attorneys will fight to get you the best possible outcome in your case.

With offices in Orange County, Riverside, San Bernardino, Victorville, Los Angeles, West Covina, Torrance and San Diego, there is an experienced Wallin & Klarich sex crimes attorney near you no matter where you live or work.

Call us today at (877) 4-NO-JAIL or (877) 466-5245 for a free phone consultation. We will get through this together.

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Author:Stephen D. Klarich

Stephen D. Klarich is one of the most highly respected sex crime attorneys in Southern California. His vast experience, zealous advocacy for his clients and extensive knowledge of many areas of the law make Mr. Klarich a premiere Southern California attorney. Mr. Klarich founded Wallin & Klarich in 1981. As the senior partner of Wallin & Klarich, Mr. Klarich has been successfully representing clients for more than 38 years. Clients come to him for help in matters involving sex offenses, murder, violent crimes, misdemeanors, felonies and other sex crimes. View all posts by Stephen D. Klarich.

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