In safeguarding minors in society, contacting a child to commit a felony is a crime. You contact a minor to commit a felony if you are an adult and use communication technology like the internet, phone, or text messages to reach out to a child with the intent to commit a felony. This act violates Penal Code 288.3 and is subject to severe consequences if convicted.

California Law on Contacting a Minor to Commit a Felony

Lust us first seek the legal definition of a minor.

Under the law, a "minor" is someone under 18, the legal age of majority in California. Therefore, minors are not considered to have the same legal rights and responsibilities as adults. For example, they cannot vote, serve on a jury, or enter into contracts without the consent of a parent or guardian.

The focus under PC 288.3 is the communication and the intent to commit a specified sexual offense or another serious felony. The specified sexual offenses include:

  • Kidnapping — Penal Code 207
  • Rape — Penal Code 261
  • Child endangerment — Penal Code 273a
  • Oral copulation — Penal Code 287
  • Lewd or lascivious acts with a child under 14 years of age — PC 288(a)
  • Sending harmful material to a minor — Penal Code 288.2
  • Forcible sexual penetration with a foreign object — Penal Code 289
  • Child pornography — Penal Code 311.11

Elements of the Crime

The prosecution must prove particular elements of the crime beyond a reasonable doubt to prosecute someone for violating Penal Code 288.3. These elements include:

  • The defendant used communication technology to contact a minor — Prosecutors consider attempts and successful communication with the child.
  • The defendant intended to commit a specified sexual offense with the minor — These specified sexual offenses are listed under PC 288.3
  • The defendant reasonably knew or should have known the victim was a minor.

The prosecution must prove all the elements of the crime and that the defendant had the specific intent to commit the specified sexual offense with the minor for the jury to find the defendant guilty under this statute.

Underlying offenses

Let us look at the underlying offenses detailed under PC 288.3

     a) Kidnapping

Penal Code 207 defines kidnapping as the taking or holding of a person using force or fear, with the intent to move them from one place to another or to confine them against their will. Kidnapping can be broken down into several elements the prosecution must prove to secure a conviction. These elements include:

  • The defendant took, held, or detained another person.
  • The defendant took, held, or detained the victim through force or fear.
  • The defendant intended to move the victim from one place to another or to confine them against their will.

There are different types of kidnapping, each with specific elements and punishments.

  • Simple kidnapping, Penal Code 207 — A felony punishable by 3, 5, or 8 years in state prison
  • Aggravated kidnapping, Penal Code 209 — A felony punishable by a potential life in prison with the possibility of parole
  • Kidnapping for ransom, Penal Code 209.1 — A felony punishable by a possible life in prison with the possibility of parole

In addition, kidnapping can be considered a "strike" under California's three strikes law, which means that if someone is convicted of kidnapping and has previous serious or violent felony convictions, he/she will face harsher penalties.

     b) Rape

Penal Code 261 defines rape as nonconsensual sexual intercourse accomplished through force, fear, or threats or when the victim cannot give legal consent. Prosecutors must prove the elements below to demonstrate that a defendant is guilty of rape. They include:

  • The defendant engaged in sexual intercourse with another person.
  • The defendant accomplished the intercourse through force, fear, or threats or when the victim could not give legal consent.
  • The victim did not consent to the intercourse.

Legally, a person cannot give legal consent if they are unconscious or asleep or incapable of understanding the nature of the act due to mental disorder, developmental or physical disability, or drug or alcohol use.

Note: A child cannot legally consent to a sexual act. Thus any sexual intercourse with a minor is rape.

Rape is a grave crime punishable by imprisonment for 3, 6, or 8 years. Depending on the circumstances of the case, the offender could face additional penalties, including life imprisonment, if the victim was under 14 years old or if the offender had prior convictions.

     c) Child Endangerment

Penal Code 273a makes it a crime to place a child in a situation where their health, safety, or welfare is at risk of harm. Child endangerment is provable if the following elements are true:

  • The defendant had care or custody of a child.
  • The defendant willfully caused or permitted the child to suffer or inflicted unjustifiable physical pain or mental suffering upon the child.
  • The defendant's actions placed the child in a situation where their health, safety, or welfare was at risk of being harmed.

Child endangerment is a criminal offense. The state can prosecute the crime as a misdemeanor or a felony, depending on the case's specific circumstances. The punishment for misdemeanor child endangerment is up to one year in county jail and/or a fine of up to $1,000. A felony, on the other hand, is punishable by imprisonment for 2, 4, or 6 years.

Child endangerment can include many actions or behaviors, including leaving a child unsupervised, exposing them to drugs or other harmful substances, or subjecting them to physical or emotional abuse.

     d) Oral Copulation

Penal Code 287 defines oral copulation as any contact between one person's mouth and the sexual organ or anus of another person. A jury will only convict if prosecutors prove the following elements:

  • The defendant engaged in oral copulation with another person.
  • The defendant engaged in oral copulation with the minor through force, fear, or threats or when the victim could not give legal consent.
  • The victim did not consent to the oral copulation.

As with rape, a person cannot give legal consent if they are unconscious, asleep, or incapable of understanding the nature of the act due to a mental disorder, a developmental or physical disability, or drug or alcohol use.

Oral copulation is considered a grave crime. It is punishable by imprisonment for 16 months, 3, 6, or 8 years. Depending on the circumstances of the case, the offender could face additional penalties, including lifetime registration as a sex offender.

     e) Lewd Acts With a Child Under 14

Under Penal Code 288(a), committing a lewd act with a child under 14 is a grave crime. It is punishable by imprisonment. You will face imprisonment if the state proves the following elements of the crime:

  • The defendant touched any part of a child's body or caused a child to touch their own or someone else's body.
  • The touching was done with the intent of appealing to, arousing, or gratifying the lust, passions, or sexual desires of the defendant or the minor.
  • The child was under 14 at the time of the touching.

Note: Touching does not have to be directly on the skin. It can be through clothing. Also, the act does not have to be committed in person. It can be done through electronic means, for example, online or over the phone.

Committing a lewd act with a child is punishable by imprisonment for 3, 6, or 8 years. Depending on the circumstances of the case, the offender could face additional penalties like life in prison if the offender has prior convictions or if he/she committed the act with the use of force or fear and it resulted in physical harm to the child. The law also requires lifetime registration as a sex offender.

     f) Sending Harmful Material to a Minor

Under Penal Code 288.2, sending harmful material to a child is defined as sending or distributing any harmful matter to a minor with the intent of appealing to, arousing, or gratifying the lust, passions, or sexual desires of the defendant or the child.

Harmful material is any material depicting sexual conduct that is intended to appeal to or arouse the passions or sexual desires of the intended audience and is considered patently offensive to the prevailing adult standards in the community.

The elements of this crime include:

  • The defendant sent or distributed harmful material to a minor.
  • The defendant intended to arouse, appeal to, or gratify the lust or passions, or sexual desires of the sender or the minor.
  • The minor was under 18 years of age at the time of the contact.

Sending harmful material to a minor is punishable by up to one year in county jail and/or a fine of up to $2,000 and/or community service.

Sending harmful material to a minor can also be considered a form of sexual exploitation and can be charged with other crimes, including child pornography or statutory rape.

     g) Forcible Sexual Penetration With a Foreign Object

It is a crime under Penal Code 289 to forcibly sexually penetrate another individual with a foreign object. The crime is a form of sexual assault. PC 289 defines the crime as the non consensual penetration of the vagina, anus, or penis with a foreign object, using force, coercion, fear, menace, or violence of immediate and unlawful physical injury.

The crime of forcible sexual penetration with a foreign object has several elements prosecutors must prove to secure a conviction. These elements include:

  • The defendant engaged in the non consensual penetration of the vagina, anus, or penis with a foreign object.
  • The defendant achieved penetration through force, duress, fear, menace, or violence of immediate and unlawful physical injury.
  • The victim did not consent to the penetration.

Forcible sexual penetration with a foreign object is considered serious. It is punishable by imprisonment for 3, 6, or 8 years. The law also requires lifetime registration as a sex offender.

     h) Child Pornography

Child pornography is any visual depiction of sexually explicit conduct involving a minor (a person under 18). This can include photographs, videos, computer-generated images, and other media types. Under Penal Code 311.11, child pornography is illegal to produce, distribute, possess, or even view.

Prosecutors must prove the following:

  • The defendant possessed, produced, transported, or distributed visual depictions of sexually explicit conduct involving a minor.
  • The defendant knew or should have known that the visual depictions were of a minor.
  • The minor depicted in the visual depiction was under 18 years of age at the time the image was created.

It is illegal to possess, produce, distribute, or even view child pornography, regardless of whether the defendant financially benefited from it or if there was intent to distribute it.

Child pornography is punishable by imprisonment for 1, 2, or 3 years, or up to 6 years if the victim is under 14 years old, and/or a fine of up to $2,50. Repeat offenders risk facing harsher penalties. The law also requires lifetime registration as a sex offender.

Consequences of a Penal Code 288.3 Conviction

Convictions result in penalties similar to the potential punishments of the underlying crime an individual is alleged to have committed. Any subsequent convictions for individuals with prior convictions of PC 288.3 violations will result in an additional five years to be served consecutively.

Sex Offender Registration Requirement

Penal Code 290 requires individuals convicted of a PC 288.3 offense to register as sex offenders.

California's sex offender registration system has three tiers.

  • Tier 1 — Offenders in this tier are considered low-risk and must register for a minimum of 10 years. Examples of offenses that fall into this tier include indecent exposure and sexual battery.
  • Tier 2 — Offenders in this tier are considered moderate-risk and must register for a minimum of 20 years. Examples of offenses in this tier include rape and certain forms of child molestation.
  • Tier 3 — Offenders in this tier are considered high-risk and must register for life. Examples of offenses that fall into this tier include certain forms of child molestation and certain repeat offenses.

These are general categories, and the specific tier an offender is placed in will depend on the facts of their case and their criminal history. Also, registration is mandatory for any person convicted of a registerable offense and must be done in person at a designated registration site, regardless of their risk level.

Most underlying crimes under PC 288.3 require the defendant to register as a Tier Three sex offender upon conviction.

Defenses Available in a PC 288.3 Violation Case

Each case is different. The ideal defense depends on the circumstances of the case. However, the common defenses that defense attorneys use include the following:

     a) You Were Unaware That The Individual You Were Communicating With Or Contacting Was Under The Age Of 18

In some cases, a defendant could argue that they did not know that the person they contacted or communicated with was a minor as a defense against charges of contacting a child to commit a felony. Attorneys raise this defense if, for example, the defendant was communicating with someone online and did not know their age.

However, whether this defense will be successful depends on the case's specific facts. In some situations, a defendant could be held liable for his/her actions even if he/she did not know that the person they were communicating with was a minor.

If they should have known or if they were reckless in not knowing

Note: Even if you did not know the minor's age but intended to commit a felony, you will have committed the crime.

     b) You Did Not Have The Intention To Commit The Crime In Question

You could argue that you did not intend to commit one of the underlying offenses when you contacted a minor. This defense is applicable if, for example, you communicated with a child and did not intend to commit a sexual offense but to engage in other activities like friendship or normal communication.

You could be liable for your actions if you intended to commit a felony, even if it were not a sexual offense.

The prosecution must prove all the elements of the crime and that you had the specific intent to commit one of the specified sexual offenses with the minor for the jury to find you guilty under this statute.

     c) You Were Entrapped

Entrapment is a defense that can be raised when a defendant is charged with a PC 288. Violation. It occurs when law enforcement officials or agents induce or incite a person to commit a crime they would not have committed otherwise. In other words, a person is entrapped when you are coaxed or coerced into committing a crime you were not predisposed to commit.

In cases involving contacting a minor to commit a felony, a defendant could argue that they were entrapped by law enforcement officials posing as minors in online chat rooms or social media platforms. Attorneys would raise this defense if officers lured the defendant into engaging in illegal activities by an undercover agent who posed as a minor.

Whether this defense will be successful depends on the specific circumstances of the case and the laws of the jurisdiction in which the crime was committed. However, it is worth noting that this defense is not frequently successful. Entrapment must be very blatant, and the actions of law enforcement officers must be very aggressive to be considered entrapment.

Contact a Los Angeles Criminal Defense Attorney Near Me

Are you facing prosecution for contacting a minor to commit a felony in Los Angeles?

The LA Criminal Defense Law Firm is ready to offer legal aid. We will assess the facts of the case and advise you on how to best defend against the charges. We will review the evidence and advise on the best defense strategy and what can be done to reduce the penalties or avoid conviction. Contact us at 310-935-1675 for more information.