California Penal Code 288.4 – Soliciting a Minor for Lewd Purposes (PC 288.4)
Defining the Crime under Penal Code 288.4
Soliciting a minor for lewd purposes is criminalized in California under Penal Code Section 288.4. 1 There are two types of offenses covered by this statute. The first involves contacting a minor, a person under 18, with intent to engage in sexual behavior. This offense, outlined under PC 288.4(a)(1), involves arranging a meeting with a person that the defendant believes to be a minor for the purpose of exposing his or her genitals or pubic or rectal area, or engaging in lewd and lascivious behavior. The defendant must be motivated by an unnatural or abnormal sexual interest in children. Lewd and lascivious behavior includes any touching of a person with the intent to sexually arouse the perpetrator or the child. 3 The touching does not have to involve the use of a sexual organ or occur on bare skin.
Under the definition of this crime, contact with a minor can be made in person or through digital methods, such as emails, text messages, instant messages, or posts on social media sites like Facebook or Twitter.
The second offense, outlined under PC 288.4(b), involves actually going to the arranged meeting place at or about the arranged time. 4
Those who solicit minors for lewd purposes are frequently also charged with communicating with a minor with intent to commit a sexual offense. This offense is a violation of PC 288.3. 5 If sexual touching is a result of the communication, and there are at least three incidents within a period of not less than three months, then an individual may also be charged with continuous child sexual molestation. This is a violation of PC 288.5. 6
Individuals may further be charged with PC 288.2, sending explicit or “obscene” material to a minor with the intent of arousing themselves or the minor, and with the intent of seducing the minor. 7 Individuals may also be charged with PC 273a, child endangerment. 8 State law prohibits subjecting a child to mental or physical pain or subjecting a child to activity that endangers his or her health. Prosecutors typically argue that by having sexual contact or communications with the child, the defendant has subjected the child to mental or physical pain.
If you committed all of the acts described above, the prosecutor may pursue charges on all of the offenses. None of these offenses have the exact same elements such that one is a lesser version of another.
Prosecution for Soliciting a Minor for Lewd Purposes
In order to be convicted of soliciting a minor for lewd purposes, the prosecution must prove the following elements beyond a reasonable doubt:
- The defendant arranged a meeting with a minor or a person the defendant believed to be a minor;
- When the defendant did so, he or she was motivated by an unnatural or abnormal sexual interest in children; and
- At that meeting, the defendant intended to expose his or her genitals or pubic or rectal area, or have the minor expose his or her genitals or pubic or rectal area, or engage in lewd and lascivious behavior. 9
In order to be convicted of arranging a meeting with a minor for lewd purposes, the prosecution must prove the above three elements and that the defendant went to the arranged meeting place at or about the arranged time. 10
Sentencing for Soliciting a Minor for Lewd Purposes
Soliciting a minor for lewd purposes is a “wobbler.” This means it can be charged as a misdemeanor or felony, depending on your criminal history and the facts of the case. No matter how you are charged, you will be required to register as a sex offender for life under PC 290 if you are convicted.
Solicitation of a minor for lewd purposes is usually charged as a felony, but if you have no serious criminal history, the district attorney may file misdemeanor charges. Traffic violations do not count as criminal history, but misdemeanors such as shoplifting or forgery do.
The penalties for solicitation of a minor for lewd purposes when charged as a misdemeanor are a maximum of one year in county jail and/or a $5,000 fine. 11 Typically, you also must serve informal, or summary, probation.
If you have a prior criminal history, you could be charged with a felony. A felony conviction is punishable by up to three years in state prison and a maximum fine of $10,000.
Meeting or attempting to meet with a minor is a felony punishable by a state prison term of 2, 3, or 4 years. 12 This is typically charged with PC 288.4(a) if you actually went to the meeting place.
Defenses
If you have been charged with solicitation of a minor for lewd purposes, there are several defenses your experienced criminal defense attorney can use to defend you, including:
- Entrapment: A law enforcement officer harassed or coerced you into contacting and attempting to meet with the minor. This is a complex defense. You must show that you would not have committed the contact or attempted the meeting if the officer had not contacted you.
- False accusation: The minor may have made a false accusation, or someone else may have been impersonating you. It is possible for one person to impersonate another by using the other’s computer, email, screen name, or IP address.
- Good faith belief of age: In order to be convicted of this crime, you must believe that the person you contacted is a minor. If you reasonably believed the alleged victim was 18 or over, you can show this through evidence. You bear the burden of establishing that you had a good faith belief that the person was 18 or over by a preponderance of the evidence.
If your case involved a sting operation, much like one featured on the Dateline show, “To Catch a Predator,” a skilled criminal defense attorney from Wallin & Klarich will ask you a number of questions. These questions will determine whether the law enforcement officers who engaged in the sting violated your rights. The questions include:
- Did you receive a photo of the alleged victim that made it appear that he or she was 18 or over?
- Did the alleged victim state his or her age, or claim to be an adult?
- Did the alleged victim talk in a manner that led you to believe that he or she was 18 or older?
Your Wallin & Klarich criminal defense attorney may not need to assert a criminal defense if the prosecutor is unable to prove all elements of the charge. A prosecutor is often unable to prove that:
- You were motivated by an unnatural or abnormal sexual interest in children.
- You actually attempted or did arrange a meeting with a person that the defendant believed to be a minor.
- You believed the individual to which you were talking to was a minor.
Many sexual conversations on the Internet are just fantasies. Individuals often have no intent to meet and do not make any attempt to do so. Also, many individuals who talk to minors have no idea that the individuals actually are under 18.
Frequently Asked Questions (FAQs)
1. If the minor appears or seems interested in having sexual relations with me, is this a defense?
No. This is true even if you have documents, such as printouts of online conversations through instant messages or emails, showing the minor’s interest. By law, a minor cannot consent to sexual conduct.
2. Are there any exceptions to the law?
According to PC 265.1(a), the only exception for criminal liability is when the minor is the spouse of the perpetrator. 13
3. What if I am currently under the age of 18, or I was when the contact was alleged to have taken place?
How you will be charged depends on your juvenile record and the age difference between you and the minor you are alleged to have contacted. Contact a Wallin & Klarich juvenile delinquency or criminal defense attorney to learn more about how our team can defend you.
4. What if the minor is my child?
If the minor is your child, the child will be removed from your care. As long as the criminal case remains open, there will be a Criminal Protective Order (CPO) in place restraining you from having direct contact with your child or contact through a third party. Your custody rights will likely be affected. If you are a single parent, Child Protective Services (CPS) will be contacted. Your child may be placed in the temporary care of a relative or foster family.
5. I believe that someone has impersonated me and I am being falsely accused. What should I do?
Talk with an experienced criminal defense attorney from Wallin & Klarich. Gather all records that show evidence of someone tampering with your digital persona. Change your passwords for important accounts, such as your email, Facebook, Twitter, and other social media accounts. Do not turn over your computer or any other devices, such as your cellphone, unless a law enforcement officer presents you with a warrant that appears to be complete and accurate.
6. Do convictions and arrests in other states count?
Yes. The court and prosecution will look at your entire criminal history, including dismissed charges, to determine the conditions of your bond and the charges being filed. An experienced Wallin & Klarich criminal defense attorney can help you argue that certain events in your past are not relevant and should not be considered.
7. Can I face additional civil penalties for solicitation of a minor for lewd purposes?
No. The exception is when the contact has caused such trauma that the minor suffers emotional distress and chooses to sue you in civil court. If you had unlawful sexual intercourse with the minor, you can face additional civil penalties defined under PC 265.1(e)(1)(A)-(D). 14 These penalties range between $2,000 and $25,000.
Call the Sex Crimes Attorneys at Wallin & Klarich Today
If you are facing allegations of soliciting a minor for lewd purposes, your entire future is at stake. You need to speak with an experienced sex crimes defense attorney immediately. At Wallin & Klarich, our skilled attorneys have been successfully defending our clients facing charges of soliciting a minor for over 30 years. We have the skill and knowledge necessary to help you get the best possible outcome in your case.
We have offices located in Los Angeles, Sherman Oaks, Torrance, Orange County, San Diego, Riverside, San Bernardino, Ventura, West Covina and Victorville, so there is an experienced Wallin & Klarich sex crimes attorney available to help 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.
1. [PC § 288.4.]↩
2. [PC § 288.4(a)(1).]↩
3. [CALCRIM § 1125.]↩
4. [PC § 288.4(b).]↩
5. [PC § 288.3(a)(1).]↩
6. [PC § 288.5(a).]↩
7. [PC § 288.2.]↩
8. [PC § 273a(a).]↩
9. [CALCRIM § 1125.]↩
10. [CALCRIM § 1126.]↩
11. [PC 288.4(a)(2).]↩
12. [PC § 288.4(b). ]↩
13. [PC § 265.1 (a).]↩
14. [PC § 265.1(e)(1)(A)-(D).]↩