Contacting a Minor to Commit a Felony Attorney – California PC 288.3

California law prohibits a person from contacting a minor to commit serious felonious crimes. Violations of this law are prosecuted aggressively, and are intended for the protection and security of children and minors in California.

Under California Penal Code section 288.3, it is a crime to contact, communicate with, or attempt to contact or communicate with a person who you know or reasonably should know is a minor, with the intent to commit any of the following offenses:

• Kidnapping (Penal Code section 207);
• Kidnapping for ransom, reward, extortion, or to commit robbery or rape (Penal Code section 209);
• Rape (Penal Code section 261);
• Rape in concert with another person (Penal Code section 264.1);
• Child endangerment (Penal Code section 273a);
• Sodomy (Penal Code section 286);
• Lewd acts with a child under 14 (Penal Code section 288);
• Oral copulation by force or fear (Penal Code section 288a);
• Oral copulation with a minor (Penal Code section 288a);
• Sending harmful material to a minor (Penal Code section 288.2);
• Forcible acts of sexual penetration (Penal Code section 289); or
• Child pornography offenses (Penal Code sections 311.1, 311.2, 311.4, and 311.11). ¹

The purpose of this law is to prevent adults from communicating with minors for the purpose of committing a crime against the minor. Often, these crimes involve communicating for the purpose of committing a sexual act with someone known to be under the age of consent, but the crime need not be sexual in nature. Some examples might be:

• A teacher persuading a student to stay after school for the purpose of committing sexual acts;
• An adult texting sexually explicit photos of himself to his neighbor’s 12-year-old child; or
• A father who does not have custody of his child sending an email to meet with the child in secret so that he can take his child out of state without consent of the child’s mother.

The Prosecution’s Case for Contacting a Minor to Commit a Felony

In order to convict you of this crime, the prosecution must prove all of the following beyond a reasonable doubt:

1. You contacted or communicated with, or attempted to contact or communicate with a minor;
2. When you did so, you intended to commit one of the enumerated offenses under California PC 288.3 involving that minor; AND
3. You knew or reasonably should have known that the person was a minor. ²

A few key terms in this law are “minor” and “contact or communicate.” Under California law, a minor is any person who has not yet reached his or her 18th birthday.

Contacting or communicating with another person can be direct or indirect. This means that the defendant must personally contact or communicate with the minor (i.e., face-to-face communication), or make use of an agent, print medium, postal service or common carrier (such as an airline or rail carrier), communication provider, electronic communication system, telecommunication, or wire service to accomplish the communication.

This crime also includes any attempt to do any of the above acts. This means that an unanswered phone call or an unopened email could potentially be evidence of the attempt to contact a minor for the purpose of committing a felony. It also means that this crime can be committed merely by sending the communication, regardless of whether the minor responds to that communication.

Penalties for Contacting a Minor to Commit a Felony Under PC 288.3

According to the statute, a conviction for violating PC 288.3 “shall be punished by imprisonment in the state prison for the term prescribed for an attempt to commit the intended offense.” This means that the penalty for PC 288.3 can be any penalty that would be available for the underlying crime that you intended to commit against the minor.

Thus, if you are convicted of contacting a minor to commit a felony under PC 288.3, you face:

• A sentence to state prison (depending on the crime you allegedly intended);\
• A maximum fine of $10,000; and/or
• Formal (supervised) probation.

Additionally, a conviction under this crime will require lifetime registration as a sex offender under California Penal Code 290.

Possible Defenses to Contacting a Minor to Commit a Felony

There are several possible defenses that a skilled criminal defense attorney can raise on your behalf. These include:

No Intent to Commit a Felony

Proving the intent to commit a crime is often the most challenging element for the prosecution to prove. That is why it is essential for your attorney to show that the purpose of the communication was not criminal or felonious in nature.

For example, suppose a teacher asked a student to stay after school for private tutoring, but somehow the student misconstrued the purpose of the message and informs the principal, who then contacts the police. The prosecution would find it difficult to make the case that the teacher had a criminal intent in making that communication.

You Reasonably Believed the Minor Was of Age

In many cases, a defendant is charged with contacting or communicating with a minor that he or she believed was actually an adult. Suppose that a defendant spoke to the minor in a bar that only allows persons 21 or older to be admitted, yet the minor somehow was able to enter. When the defendant entered, a bouncer checked his photo ID at the door. The defendant might reasonably conclude that anyone inside the bar was an adult, and therefore could argue that he or she had a reasonable belief that the minor was an adult.

Entrapment

Many people accused of this crime are often arrested as a result of an internet sting operation conducted by law enforcement. In these operations, a law enforcement officer will pose as a minor online to communicate with potential violators of this law.

While some of these stings do catch people who are genuinely guilty of committing the crime, it is also the case that many of the people arrested in sting operations had no thought of committing a crime before the law enforcement officer posing as a minor provided them with the criminal idea. In this case, an experienced criminal defense attorney can be essential in attempting to prove that the defendant did not seek out the minor to commit a felony, and that the communication only occurred because of the officer’s persistence.

Frequently Asked Questions

1. Can I be convicted if the minor lied about his or her age?

You can be convicted with this crime if you actually knew or reasonably should have known that the minor was not age 18 or older. This means that if the minor lied about his or her age, but would appear to a reasonable person to be younger than 18, you could still be convicted of this crime.

2. What if the minor contacted me first with the idea to commit a sexual act?

Under California law, a minor is considered to lack the capacity to understand the consequences of sexual behavior, and therefore cannot consent to any sexual activity. Thus, it is not a defense that a minor contacted you first.

3. I am being falsely accused of contacting a minor for the purpose of committing a felony, but I think someone else used my identity to communicate with the minor on the internet. What should I do?

Your first move should be to talk with an experienced criminal defense attorney. You should provide your attorney with all records that point to someone else using your identity. Be sure to regularly change your passwords to your social media accounts such as Facebook or Twitter, website accounts, and your email. Remember, you are not required to surrender your computer or any other devices (smartphone, tablet, etc.) unless a law enforcement officer presents you with a search warrant.

Contact the Attorneys at Wallin & Klarich For Help

If you or someone you care about has been accused of contacting or communicating with a minor for the purpose of committing a felony, you need to consult with an experienced and aggressive criminal defense attorney right away. At Wallin & Klarich, we have over 30 years of experience successfully defending people facing these charges. We can help you, too. We will work tirelessly to reach the best possible outcome in your case. Contact us today for a free, no obligation consultation.

With offices in Los Angeles, Sherman Oaks, Torrance, Tustin, San Diego, Riverside, San Bernardino, Ventura, West Covina and Victorville, there is a Wallin & Klarich attorney experienced in California criminal defense near you, no matter where you work or live.

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

<sup>1. [See Cal. Pen. Code §288.3.]↩
2. [CALCRIM No. 1124. Contacting Minor With Intent to Commit Certain Felonies (Pen. Code, § 288.3(a)).]↩</sup>