November 30, 2009 By Stephen Klarich

Why Having an Experienced Criminal Defense Law Firm On Your Side May Make the Difference Between Jail and Freedom in Your Case

The most serious sex offenses in California involve having sexual relations with a minor where there is evidence that the sexual acts were commited by the defendant using force, violence, duress, menace, or fear of immediate and unlawful bodily injury against the victim. (section 288, subd. (b)(1) [forcible lewd conduct], 269, subd. (a)(5) [defining aggravated sexual assault to include forcible sexual penetration].) Force, in this context, means physical force that is “substantially different from or substantially greater than that necessary to accomplish the lewd act itself.” (People v. Cochran (2002) 103 Cal.App.4th 8, 13.)

It has been held that “since ordinary lewd touching often involves some additional physical contact, a modicum of holding and even restraining cannot be regarded as substantially different or excessive ‘force.'” (People v. Schulz, 2 Cal.App.4th 999 at p. 1004.) However, the court acknowledged this ruling was contrary to established precedent, and since Schulz was decided, it has been criticized for attempting “to merge the lewd acts and the force by which they were accomplished as a matter of law.” (People v. Babcock (1993) 14 Cal.App.4th 383, 388.)

According to the majority of courts, substantially different force includes acts of grabbing, holding and restraining that occur in conjunction with the lewd acts themselves. (People v. Bolander (1994) 23 Cal.App.4th 155, 160-161. Thus, under today’s legal precedent, even carrying a child a short distance or lifting a child up on your lap may be deemed enough force to constitute molestation (if such charges are alleged in conjunction with the act).

Prosecutors attempt to support a claim of “force” that the minor resisted in any manner. This can include testimony that the alleged victim did not resist because she was fearful that the defendant might injure her. The penalties for a conviction for one count of forcible child molestation with a minor under age 14 is a maximum of 8 years in prison. If one is found guilty of even one such crime state prison is mandatory.

For these reasons, it is very important to have an experienced sex crimes attorney to aid in your defense. The experienced CA lewd acts with a minor defense attorneys at Wallin & Klarich have over 30 years of experience in handling the complex and emotionally charged aspects of sex crimes. Often we find that people are wrongfully accused of sex offenses. We have the skills and expertise to provide you with the best possible defense. If you or a loved one has been accused of a sex crime, contact one of our attorneys immediately. You can reach us 24 hours a day, 7 days a week at (877) 466-5245 or go to our website at for more information.

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