Child Pornography

Child Pornography (PC 311.11):

Child Pornography is a criminal defense that is defined as any visual depiction involving the use of a minor, or one appearing to be a minor, engaging in a sexually explicit conduct. Visual depictions include video, pictures, drawings, animations, film, photographs or computer-generated images or pictures. Child Pornography has become problematic due to the Internet and technological advances. In addition, altering a photo or video to depict a minor in a sexually explicit way could also be considered Child Pornography (for example, editing the face of a minor onto a nude body of an adult).

Under this statute, a minor is any person under the age of 18 years old. Also, it is a crime under this statute to knowingly possess, distribute, receive, or possess with the intent to distribute, any form of child pornography; even if you were not the one who produced the pornography.

Penalties (PC 311.11):

Child Pornography is both a federal and state crime. In regards to the federal government, Child pornographers can be prosecuted by the FBI, the Department of Justice, the U.S. Postal Inspection Service, U.S. Customs, and the U.S. Attorney General. Child pornography convictions can result in 15 years in federal prison as well as the lifetime sex offender registration requirement. In the State of California, a PC 311 conviction could lead to a 6 year prison sentence and up to $100,000 in fines.

Legal Defenses (PC 311.11):

Defenses to child pornography may include: entrapment, undisputable innocent and/or mistakes. Many people would never intentionally distribute or facilitate child pornography; therefore, this is a charge worth fighting if you find yourself under these circumstances.

May 5, 2015May 7, 2015

Lewd Acts with a Child/Child Molestation

Lewd Acts with a Child/Child Molestation (PC 288):

Child Molestation is a serious charge that carries serious legal and social consequences. An accusation of this nature can ruin an innocent person’s life. While there are many types of child molestation, almost any conviction will result in having to register as a sex offender for life. The charge under Penal Code 288 PC makes it illegal to touch a child under the age of 14 with sexual intent. Even “touching” a child through clothing is a crime under this section. According to the law, a child under 14 cannot consent, therefore making a consensual defense in implausible under this section.

When these acts are committed against a child 16 or 17 years old, it is no longer considered child molestation; it will be prosecuted as statutory rape or sexual battery. However, both charges require the accused to be subject to the lifetime sex offender registration.

Penalties (PC 288):

Perhaps the most severe consequence of being convicted under this statute is that a PC 288 conviction triggers a lifetime duty to register as a sex offender. Any conviction under PC 288 will result in this mandatory requirement.

If convicted of lewd acts upon a child under the age of 14, the offense is considered a felony with a sentence of 3 to 8 years in a California State Prison. If any force was used on the child involved, you could face anywhere between 5 to 10 years in a California State Prison. When the act(s) are committed against a child age 14 or 15, and the accused is at least 10 years older than the child, then you could face anywhere from 1 to 3 years in county jail.

Legal Defenses (PC 288):

Common defenses to a PC 288 charge include (but are not limited to): the accuser is mistaken or fabricated the truth, the contact was accidental, and that were was no intent to cause sexual arousal. We have also found in some cases there is a third party involved, in which the third party “coaches” the child into making a false allegation of sexual conduct.

May 5, 2015May 7, 2015

Lewd Conduct

Engaging in or Soliciting Lewd Conduct in Public (PC 647 (a)):

Under Penal Code 647 (a), it is illegal to engage in lewd or dissolute conduct in any place, or to solicit someone else to do so. Lewd conduct is defined as touching your private parts (or another person’s private parts) with the intention of receiving sexual gratification or to annoy or offend someone else. Private parts refer to: genitals, buttocks, or female breasts.

Penalties (PC 647 (a)):

A violation of PC 647 (a) is a misdemeanor and is punishable by up to 6 months in county jail and/or a fine up to $1,000. If prosecutors decide add a PC 314 “Indecent Exposure” charge, then you will have to abide to the lifetime sex offender registration requirement.

Legal Defenses (PC 647 (a)):

Legal defenses to lewd conduct include (but are not limited to): You were not in a public place or in a place open to public view, you reasonable believed no one was present who would be offended by your actions, you did not touch the private parts for sexual gratification, and/or you did not actually touch your private parts or someone else’s.

1. The legal definition of “lewd or dissolute conduct in public”

You violate California Penal Code 647(a) when:

you engage in… or you solicit anyone to engage in…
lewd or dissolute conduct…
in any public place or in any place open to the public or exposed to public view.

To establish this, the prosecutor must prove five facts (called “elements of the crime”):

you willfully engaged in the touching of your own or another person’s genitals, buttocks, or a female breast;
you did so with the intent sexually to arouse or gratify yourself or another person, or to annoy or offend another person;
at the time the you did so, you were in a public place or a place open to the public or to public view;
someone else who might have been offended was present; and
you knew or reasonably should have known that another person who might have been offended by your conduct was present.

May 5, 2015May 7, 2015

Failure to Register as a Sex Offender

Failure to Register as a Sex Offender (PC 290 (b)):

If you are required to register under California’s sex offender registration law, and you fail to do so, you may be convicted under CAPC 290, “Failure to Register as a Sex Offender.”

California’s Sex Offender Registration Act (Also known as Megan’s Law), requires anyone who lives in the State of California, post conviction of a California sex crime, to register with the police of the city of residence. In addition, the registration must be renewed every year, within 5 working days of the person’s birthday, and report and renew every time he/she moves to a new address. Knowingly and willfully failing to meet this requirement could land you a PC 290 (b) conviction.

Penalties (PC 290 (b)):

The penalties for PC 290 (b) depend on the underlying offense that required you to register in the first place. If you prior sex offense was a felony or you have one or more prior convictions for this offense, then PC 290 (b) will also be charged as a felony and vice versa.

The potential penalties for misdemeanor failure to register include: Summary probation, up to one year in county jail, and/or fines up to $1,000.

The potential penalties for felony failure to register include: Formal probation, 16 months to 3 years in the California State Prison, and/or fines up to $10,000. In some cases, felony failure to register can count as a third strike under California’s Three Strikes Law, which can get you 25 years to life in state prison.

Legal Defenses (PC 290 (b)):

There are two common legal defenses that could be used for your favor in arguing a PC 290 (b) charge. First, you could argue that you did not know of your obligation to register, so you did not willfully fail to register. Second, you could argue that you attempted to register, but that your information was lost or not received. There have been many cases where a convicted sex offender follows through on his/her registration obligations- but- the reporting police officer manages to “lose” the relevant paperwork and then reports him/her to the District Attorney for failure to register.

May 5, 2015May 7, 2015

Indecent Exposure

Indecent Exposure (PC 314):

California Penal Code 314 PC makes it unlawful to willfully expose your genitals to someone else with the intent by a desire to sexually gratify yourself or offend the other person. While the law is broad and vague, the statute has remained unchanged since its enactment centuries ago.

Penalties (PC 314):

In most cases, a first indecent exposure conviction may subject you to misdemeanor penalties of up to 6 months in county jail and fines up to $1,000. The second offense will be treated as a felony and can lead to sentencing at the California State Prison. However, a PC 314 conviction can subject you to the lifetime California sex offender registration requirement.

Legal Defenses (PC 314):

There are a variety of legal defense tactics that we can use in order to fight your indecent exposure case. For starters, some defenses may include (but are not limited to): you never actually exposed yourself, that you were not aware that anyone else was present that would be offended, and/or that you were the victim of mistaken identity.

Legal Definitions

Overview of California Indecent Exposure Laws

Exposing yourself innappropriately is a crime against the person under California indecent exposure laws. A prosecutor must prove several elements to convict a defendant for indecent exposure, which falls under the broad category of sex crimes. First, the prosecutor must show that the defendant willfully exposed his or her person or private parts. If the defendant did not know about the exposed private parts or accidentally exposed a body part, the prosecutor likely cannot establish the elements of the crime.

Furthermore, indecent exposure is a crime of specific intent. The defendant must have intended to act for a lewd or obscene purpose. The prosecutor can establish intent by showing that the defendant intended to direct public attention to the defendant’s genitals or that the defendant wanted to achieve sexual arousal, sexual gratification, or sexual affront. The defendant did not have to be completely naked or unclothed to be charged with indecent exposure; the prosecutor only needs to establish that the defendant’s genitals were exposed.

California law also requires that the defendant acted in a public place. A public place might be a location in full view of people passing by. However, a private dwelling or inhabited building might also qualify as a public place for the purposes of indecent exposure if the defendant entered the premises without invitation or later provided the inhabitants with an unwanted display of the defendant’s private parts.

Defenses to Indecent Exposure Charges

First Amendment protection of an artistic performance or expression with a non-obscene intent or value

Penalties and Sentences

A first-time charge of indecent exposure may result in a misdemeanor conviction. If the defendant committed indecent exposure after entering a dwelling or the inhabited part of a building without the inhabitant’s consent, the court may sentence the defendant to a term of imprisonment lasting up to one year. Imprisonment may take place in county jail or state prison.

A second-time or subsequent conviction for indecent exposure, or a first-time conviction for indecent exposure after a conviction for another sex crime under California law, is a felony conviction. The felony conviction will likely result in a term of imprisonment in state prison.

California Indecent Exposure Laws: Statute

California Penal Code Section 314

– See more at: http://statelaws.findlaw.com/california-law/california-indecent-exposure-laws.html#sthash.uW0P7527.dpuf

May 5, 2015May 7, 2015

Prostitution & Solicitation

Prostitution & Solicitation (PC 647 (b)):

California prostitution law under Penal Code 647 (b) PC prohibits: engaging in the act of prostitution, and offering (also known as “solicitation) or agreeing to engage in the act of prostitution. Under this statute, police officers are allowed to arrest the prostitute, the customer, and the middleman (otherwise referred to as a “pimp”). The “pimp” may be arrested under Penal Code 266h and 266i PC if he/she participates in soliciting the agreement, receives part or all of a prostitute’s pay, or if he/she participates in procuring the prostitute. Due to political and social pressures, law enforcement agencies typically invest substantial resources in discovering all those involved in prostitution offenses.

Penalties (PC 647 (b)):

California courts treat a prostitution/solicitation charge(s) as misdemeanors. For first time offenders, the potential penalties include 6 months in county jail and/or fines up to $1,000. Prostitution/solicitation is a “priorable” offense, which means the punishment increases with each subsequent offense. If convicted for a second time, you could expect to serve a minimum of 45 days in county jail. If convicted for the third time, the judge is entitled to require a minimum of 90 days in county jail.

Legal Defenses (PC 647 (b)):

There are various legal defenses that could be used to fight your prostitution/solicitation charges. Several defenses include (but are not limited to): entrapment, insufficient evidence, lack of evidence and mistaken identity.

May 5, 2015May 7, 2015

Rape/Statutory Rape

Rape (PC 261):

California’s rape statute defines the crime of “rape” as nonconsensual sexual intercourse through the use of threats, force, or fraud. The sexual intercourse needs to be either against that person’s will, or without that person’s consent (such as, having sex with a female who is passed out drunk). For the act to be constituted as rape, it needs to have been accomplished through one of the following: physical force, violence, duress, menace, fear of bodily harm to oneself, fear of retaliation, and fraud. In order for the prosecutor to prove that you are guilty of rape, he/she must prove these four elements of crime: that you engaged in sexual intercourse with another person, that you were not married to that person at the time of sexual intercourse, that the other person did not consent to the intercourse, and that you accomplished the act by one of the means mentioned above.

Penalties (PC 261):

Rape is a felony under California law. If convicted under Penal Code 261 PC, you may be subject to formal probation or 3, 6, or 8 years in a California State Prison. If the victim sustains a great bodily injury, the judge may impose additional years to be served in a state prison. In addition, you may be required to pay up to $10,000 in fines with a possible “strike” on your record, pursuant to California’s Three Strikes Law.

If the victim is a minor (under the age of 18), the possible state prison term goes up to 7, 9 or 11 years. If the victim is under the age of 14, the possible state prison term goes up to 9, 11, or 13 years in prison. In addition, most California rape convictions lead to required (Penal Code 290) sex offender registration. The registration requirement is a duty that lasts for a lifetime.

Legal Defenses (PC 261):

Many innocent people are wrongly accused of rape all too often. The reason is that the accuser needs little to no evidence. Our defense team will make it a priority to dismiss, from the start, any unjust charges. There is also the defense of “consent,” where the alleged victim will change their story, alleging that they did not consent when they initially did consent to the sexual intercourse. Even if the alleged victim purports that they did not consent, if you had a good enough reason to believe he/she had consented, you cannot be convicted of rape. The legal defense of insufficient evidence may also apply in cases where the victim did not seek medical attention and/or there were no witnesses of the act- resulting in the case being a “he said/she said” ordeal. In situations like this, an insufficient evidence defense may apply.

Statutory Rape (PC 261.5):

More commonly referred to as “unlawful sex with a minor,” under California Penal Code 261.5 PC, “statutory rape” takes place when any person engages in sexual intercourse with a person under the age of 18. Regardless if the sex was consensual, or even initiated by the “victim,” the law makes it illegal to agree to unlawful sex with any person under the age of 18 years old. For example, If a pair of high school sweethearts decide to have sex for the first time and one of them is under the age of 18 and the other over the age of 18, that constitutes as statutory rape. The penalties of statutory rape depend on how the prosecutor decides to treat the case (ie a felony or misdemeanor). One of the main factors is the age of those involved; the wider the age gap, the harsher the penalties.

May 5, 2015May 7, 2015

Sexual Battery

Penal Code 243.4 defines “sexual battery” as the illegal act of touching an intimate body part of another person for the purpose of sexual gratification, arousal or abuse. Depending on the circumstances, sexual battery can be treated as a misdemeanor or a felony. It may be charged as a felony if the victim was unlawfully restrained or was an institutionalized person. Misdemeanor sexual battery usually carries a sentence of 6 months or 1 year. Felony sexual battery usually carries a sentence of 2, 3 or 4 years. However, both a misdemeanor and felony conviction under this statute subjects you to California’s sex offender registration requirement.

Sexual Battery defined

243.4. (a) Any person who touches an intimate part of another
person while that person is unlawfully restrained by the accused or
an accomplice, and if the touching is against the will of the person
touched and is for the purpose of sexual arousal, sexual
gratification, or sexual abuse, is guilty of sexual battery. A
violation of this subdivision is punishable by imprisonment in a
county jail for not more than one year, and by a fine not exceeding
two thousand dollars ($2,000); or by imprisonment in the state prison
for two, three, or four years, and by a fine not exceeding ten
thousand dollars ($10,000).
(b) Any person who touches an intimate part of another person who
is institutionalized for medical treatment and who is seriously
disabled or medically incapacitated, if the touching is against the
will of the person touched, and if the touching is for the purpose of
sexual arousal, sexual gratification, or sexual abuse, is guilty of
sexual battery. A violation of this subdivision is punishable by
imprisonment in a county jail for not more than one year, and by a
fine not exceeding two thousand dollars ($2,000); or by imprisonment
in the state prison for two, three, or four years, and by a fine not
exceeding ten thousand dollars ($10,000).
(c) Any person who touches an intimate part of another person for
the purpose of sexual arousal, sexual gratification, or sexual abuse,
and the victim is at the time unconscious of the nature of the act
because the perpetrator fraudulently represented that the touching
served a professional purpose, is guilty of sexual battery. A
violation of this subdivision is punishable by imprisonment in a
county jail for not more than one year, and by a fine not exceeding
two thousand dollars ($2,000); or by imprisonment in the state prison
for two, three, or four years, and by a fine not exceeding ten
thousand dollars ($10,000).
(d) Any person who, for the purpose of sexual arousal, sexual
gratification, or sexual abuse, causes another, against that person’s
will while that person is unlawfully restrained either by the
accused or an accomplice, or is institutionalized for medical
treatment and is seriously disabled or medically incapacitated, to
masturbate or touch an intimate part of either of those persons or a
third person, is guilty of sexual battery. A violation of this
subdivision is punishable by imprisonment in a county jail for not
more than one year, and by a fine not exceeding two thousand dollars
($2,000); or by imprisonment in the state prison for two, three, or
four years, and by a fine not exceeding ten thousand dollars
($10,000).
(e) (1) Any person who touches an intimate part of another person,
if the touching is against the will of the person touched, and is
for the specific purpose of sexual arousal, sexual gratification, or
sexual abuse, is guilty of misdemeanor sexual battery, punishable by
a fine not exceeding two thousand dollars ($2,000), or by
imprisonment in a county jail not exceeding six months, or by both
that fine and imprisonment. However, if the defendant was an employer
and the victim was an employee of the defendant, the misdemeanor
sexual battery shall be punishable by a fine not exceeding three
thousand dollars ($3,000), by imprisonment in a county jail not
exceeding six months, or by both that fine and imprisonment.
Notwithstanding any other provision of law, any amount of a fine
above two thousand dollars ($2,000) which is collected from a
defendant for a violation of this subdivision shall be transmitted to
the State Treasury and, upon appropriation by the Legislature,
distributed to the Department of Fair Employment and Housing for the
purpose of enforcement of the California Fair Employment and Housing
Act (Part 2.8 (commencing with Section 12900) of Division 3 of Title
2 of the Government Code), including, but not limited to, laws that
proscribe sexual harassment in places of employment. However, in no
event shall an amount over two thousand dollars ($2,000) be
transmitted to the State Treasury until all fines, including any
restitution fines that may have been imposed upon the defendant, have
been paid in full.
(2) As used in this subdivision, “touches” means physical contact
with another person, whether accomplished directly, through the
clothing of the person committing the offense, or through the
clothing of the victim.
(f) As used in subdivisions (a), (b), (c), and (d), “touches”
means physical contact with the skin of another person whether
accomplished directly or through the clothing of the person
committing the offense.
(g) As used in this section, the following terms have the
following meanings:
(1) “Intimate part” means the sexual organ, anus, groin, or
buttocks of any person, and the breast of a female.
(2) “Sexual battery” does not include the crimes defined in
Section 261 or 289.
(3) “Seriously disabled” means a person with severe physical or
sensory disabilities.
(4) “Medically incapacitated” means a person who is incapacitated
as a result of prescribed sedatives, anesthesia, or other medication.
(5) “Institutionalized” means a person who is located voluntarily
or involuntarily in a hospital, medical treatment facility, nursing
home, acute care facility, or mental hospital.
(6) “Minor” means a person under 18 years of age.
(h) This section shall not be construed to limit or prevent
prosecution under any other law which also proscribes a course of
conduct that also is proscribed by this section.
(i) In the case of a felony conviction for a violation of this
section, the fact that the defendant was an employer and the victim
was an employee of the defendant shall be a factor in aggravation in
sentencing.
(j) A person who commits a violation of subdivision (a), (b), (c),
or (d) against a minor when the person has a prior felony conviction
for a violation of this section shall be guilty of a felony,
punishable by imprisonment in the state prison for two, three, or
four years and a fine not exceeding ten thousand dollars ($10,000).