Child Molestation

Sex Crime Registration – Are we more safe? (CA Penal Code 290)

The vast majority of people can agree, that sex offense registries don’t work, are not based on any sort of scientific data and cast a very wide net.  Perhaps, society should keep track of certain individuals if it truly feels the individual poses a risk to society.  It isn’t clear why sex offenses are singled out, but it is clear that there are far too many “offenders” caught by this net. This is so because a prosecutor or a judge will often opt to cover himself, than allow someone who has committed a sex crime to be removed from the registry.  In California, registrants under penal code section 290 are overcrowding short staffed probation departments.  That is, the very idea that certain offenders need monitoring is hampered by the number of individuals the system is to monitor.

Here are some examples of offenses that require registration from our own practice.  For the sake of argument, we can start with a more serious allegation:

CA Penal code 288 – Lewd act on child under 14.  Our client was a janitor who gently touched the hand of a 12 year old girl.  Another was a 19 year old blind man who was in a dating relationship with another blind 14 year old.  There is no advantage of having either of these individuals register.  A forensic doctor who evaluated them concluded that they pose little risk of re-offending.

Some more examples include conduct as benign as tapping the buttocks of a woman in a concert and kissing a stranger in a drunken state.  (sexual battery in violation of penal code 243.4). The fact that the law even contemplates this sort of conduct requires a life time penalty is absurd. Some prosecutors would insist that this outcome is draconian.

After a conversation with the supervising District Attorney at a local bay area jurisdiction, I realize that this culture of fear has made us all insane, untrusting of others and the system in general.  Truth is, there are not more sexual deviants than in past years.  Let your kids out of the house.  Don’t fear your neighbors.  This is not the America we know.

Still, the federal government appears ready to add insult to injury by legislating an International sex offender registry.  This law calls for markings on the passports of those convicted of certain offenses.  Presumably, they will have a hard time traveling outside of the united states even as they have a hard time finding a place to live inside the country.

At some point, this entire legal doctrine is revealed as a scheme to sow fear and a sense of insecurity.  Perhaps someone wants to offer a new legislation that sex offenders must have tattoos on their arms.  As things go, I can’t imagine there will be many to oppose such a law.

Sex Offender Registration – Reaction or Policy? (CA Penal Code 290)

In a bizarre and mostly academically dishonest opinion, (Johnson v. Department of Justice) the Supreme Court of California essentially overruled the previously controlling opinion in People v. Hofsheier.  Hofsheier meant to correct an obvious conflict in the California Penal Code section 290.  Simply put, CA Penal Code section 290 requires those who orally copulate a minor (CA Penal Code Section 288a(b)(2) to register as sex offenders while not requiring those who have sex with a minor (CA Penal Code section 261.5) the same.  For years, no one doubted the obvious rationale behind this ruling.  Courts, DA’s and defense counsel found Hofsheier intuitive and rational.

The Supreme court’s reasoning is hard to decipher.  In order to overrule the previous opinion, the courts cites the preservation of family as a possible legislative intent behind the statutory scheme in CA PC 290.  That is, the court states that the statutory scheme is not contradictory as the legislature’s inclusion of obviously less severe conduct (oral copulation) is meant to protect those who may have had sex with a partner it can cause a pregnancy and requiring the father of such a relationship to register as a sex offender may interfere in the formation of a healthy family.

This is clearly an absurd conclusion for many reasons:  First, the defendant who orally copulates a minor, is not less likely to marry the minor and produce offspring.  Second, given that CA PC 261.5 contemplates only heterosexual intercourse, Any homosexual behavior is therefore subject to the registration requirement.  Finally, as the court states, CA PC 290 is meant to allow police and probation departments to keep track of certain predatory individuals.  It is time we admit that requiring so many defendants to register as sex offenders makes it impossible to keep track of those more likely to reoffend.  At a time when every county in the state is making budget cuts, it is imperative that only those defendants that are likely to reoffend should be subject to mandatory life time registration.

The opinion is unclear on whether previous plea agreements, in which defendants were charged with a registrable offense, but which entered a plea to CA PC 261.5, most likely for the express purpose of avoiding sex offender registration, may be subject to petitions by the District Attorney for inclusion in the list.

It is clear that this opinion is a move in the wrong direction.  It is up to the defense bar to navigate this obscure reasoning and avoid this serious consequence for our clients.  This opinion makes our task more difficult and society less safe.

18-Year-Old Man Arrested for Annoying, Molesting a Child in Roseville (CA Penal Code 647.6)

An 18-year-old man has recently been arrested on 1 count of making criminal threats and 1 count of distributing pornographic materials to minors. Local law enforcement agents received an anonymous tip in conjunction with the case in which an eyewitness claims to have seen the teen threatening to sexually assault and harm several young males in the area. A search of his residence yielded evidence of sexually inappropriate text messages sent to minor children.

Distribution of pornographic materials is not illegal in and of itself, unless those images are given to a person under the age of 18. Then, it becomes a crime. According to the California Penal Code 647.6 (often referred to as ‘annoying or molesting a child’), any person who behaves in such a way that is sexually motivated and irritating or disturbing toward a minor child.

Interestingly, just as in the case above, a person need not actually touch a child in order to be in violation of this particular section of the law. In fact, even speaking lewdly to a child could be considered illegal by the definition given here. In sum, any lewd behavior towards a minor could be considered a crime under this broad definition.

Normally, cases such as the one above are treated as misdemeanors and a conviction could mean up to 1 year in county jail and a $5,000 fine. However, in some circumstances, namely if the crime has been committed after the perpetrator entered a residence without the resident’s consent, it becomes a California “wobbler;” this means that it is up to the prosecutors involved in the case to determine, dependent upon the specific facts of each case, whether they will treat it as a misdemeanor or as a felony. If convicted of a misdemeanor charge of annoying or molesting a child in an inhabited dwelling, an individual may expect to spend the same amount of time in jail as listed above. However, if prosecutors determine that the case will be treated as a felony, then the penalties rise to 1 year in state prison. There are further, and harsher, penalties if you have a prior conviction for the same crime. Additionally, this crime will automatically be treated as a felony if you have a prior felony conviction for other violent sex offenses, such as the rape of a minor under the age of 16 (CA PC 261), lewd acts with a child (CA PC 288.5), or continuous sexual abuse of a child (CA PC 288).

After 14 Years, Former Fremont Elementary Teacher Arrested for Child Molestation (CA Penal Code 288)

14 years ago, a Fremont elementary teacher from Hayward was accused of molesting a child. However, he was not arrested until just recently. The 52-year-old man was working at Blacow Elementary and Azeveda Elementary before having allegedly sodomized a child on more than one occasion, oral copulation of a minor, and continually sexually abusing a minor child. 14 years ago, 2 male students accused the man, yet he suddenly disappeared before he could be arrested. Since then, he has been on the run and was eventually discovered residing in the Brooklyn Heights neighborhood in Los Angeles.

California law is quite clear when it comes to any kind of lewd act performed on a minor (CA Penal Code 288). Yet, so-called ‘sodomy laws’ also apply in the case above (CA Penal Code 286). Not that long ago, any anal copulation was criminalized by most states, however, this is no longer the case. There are only a very few situations in which there are acts of sodomy that are illegal: 1) when someone is forced into sodomy and 2) when sodomy is performed on a minor child (CA Penal Code 286(b)(1), 286(b)(2), and 286(b)(3)).

When a child is involved, penalties for illegal sodomy can be particularly harsh. For example, the minimum punishment for engaging in an act of sodomy with a child under the age of 18 is at least 1 year in state prison. However, if the minor in question is under the age of 16, the crime is considered a felony and could face up to 8 years in state prison. If force or violence was used, consequences rise to up to 13 years in state prison. Each case is treated differently, and punishment depends wholly on the allegations involved.

Citrus Heights Arrested for Peeping and Annoying Minors (CA Penal Code 647.6)

A 49-year-old real estate agent from the Citrus Heights area has recently been charged with peeping and annoying/molesting children. Deputies representing the El Dorado County Sheriff’s department have accused him of having taken photographs of both women and children without their knowledge. They say that he accomplished this by sneaking around in various stores in the area.

The crime of ‘annoying or molesting a child under the age of 18’ (CA Penal Code 647.6) makes it illegal in the state of California to ‘annoy’ or ‘molest’ a minor child. Basically, the two terms are synonymous they refer to any behavior whatsoever that involves a child, is intended for the purpose of sexual gratification, and might disturb or annoy that child. It is important to note that this particular violation of the law is quite different from the sexual molestation of a child, though similar terms are clearly used. In order to be found guilty of ‘annoying’ a child, one need not even touch the child in question. One need only annoy the child as defined above.

California law provides for strict sentencing when it comes to convictions related to annoying children. For example, a first offense violation of this section of the law could end in up to 1 year in county jail and subject a person to a $5,000 fine. There are harsher penalties for offenders who have entered the home or dwelling of a child in order to annoy them. In that case, the offense becomes a ‘wobbler,’ meaning that it is left up to the prosecution to determine, dependent upon the particular circumstances of the case, whether they will treat the crime as a misdemeanor or as a felony. If convicted of felony annoying a child, the penalty rises to a maximum of 1 year in state prison.

 

Local Man Arrested for Legally Annoying Children at Rocklin Park (CA Penal Code 647.6)

There are many different types of sex-related crimes that an individual might be arrested for.  Several of these, especially the ones involving children, are familiar to many Californians.  For example, most people are aware of the illegality of the possession of pornographic images of children or child molestation, and are acquainted with the penalties associated with these.  However, many persons are not familiar with the crime of ‘annoying a child,’ which has been brought to the attention of Rocklin area public recently due to a case involving a 57-year-old man in a local park.

Breen Park was the scene at which a shirtless man riding a bike began to ask inappropriate questions of some young girls who were playing there.  One of the girls called members of local law enforcement and the gentleman was arrested on several drug-related charges in addition to the charge of ‘annoying a child.’  California Penal Code 647.6 addresses this particular violation of the law and the language therein equates ‘annoying’ a child to ‘molesting’ a child.  However, this clearly deserves a bit of clarification.

Any behavior that is motivated by interest in a child that is sexual could fall into this category.  This is especially true if the behavior disturbs, annoys, or is seen by a nearby child.  In the case at hand, the accused was making sexual comments to several young girls as he rode by on his bicycle.  Penalties for violating 647.6 include 1 year in county jail and a possible $5,000 fine.

Modeling Agency Scam Holder Sentenced to 29 Years in Prison for Violating Enticement Laws of Minors (CA Penal Code 288.2)

A Butte County man has lately been sentenced to a whopping 29 years for his part in an online scam.  It seems that this 23-year-old man pretended to be a representative of a modeling agency, asking girls and women, some quite young, to send in racy photos of themselves.  What he decided to actually do with these photographs is even more difficult to stomach, he often used the explicit images to extort these women into performing sex acts in exchange for keeping the photos to himself.  He was originally arrested on many various, yet related, crimes, including:  2 counts of enticement of a minor and 3 counts of attempted production of child pornography.

Arrests for enticement of minors are quite rare.  However, enticing a child is a serious crime in the state of California.  What this term refers to is the enticement of a minor child by luring them to engage in sexual activities, whether privately or for the purpose of creating child pornography.  Often, this is accomplished using the Internet.  “Child enticement” laws include sending or offering ‘harmful material’ to children (CA Penal Code 288.2), arranging a meeting with a child for the purposes of sexual gratification (CA PC 288.4), kidnapping a child (CA PC 207), or hiring a minor for the purpose of sexual conduct of any kind (including child pornography) (CA PC 311.4).

Each of these various offenses relating to the enticement of a child carry severe penalties for those who are convicted.  For example, although the seduction of a child is a misdemeanor, it could mean up to $1,000 in fines and a 6-month term in county jai.  Arranging a meeting with a child for spurious, sexual purposes could land an individual in jail for a period of 1 year and also comes with the possibility of a $5,000 fine.  Kidnapping a child is a wobbler (meaning that prosecutors may choose to treat it as a misdemeanor or as a felony at their discretion) may end in up to 4 years spent in prison and a $10,000 fine.  Finally, employing a minor for any kind of sexual acts could end in 8 years in state prison and a $50,000 fine.

 

Extradited Man From Mexico Convicted of Child Molestation (CA Penal Code 288)

A 34-year-old man has recently been convicted of committing sexual acts against children after having been arrested for these charges in 2010.  Because he fled to Mexico, the case against him has had to wait until he could be extradited to the United States.  The man has been convicted of several different charges, including rape, assault with intent to commit rape, burglary, child abuse, the aggravated assault of a child, lewd acts on a minor under the age of 14 (with the use of force and fear), and sexual acts against a minor under the age of 10 years.

All of these different violations of the law can seem confusing, so it is helpful to break some of them down to their separate elements.  Here, we will discuss only two: lewd acts with a minor under the age of 14 and sexual acts against a minor under the age of 10.  Generally speaking, California Penal Code 288 (“Lewd Acts with a Minor”) makes it illegal to purposefully touch a child’s intimate parts for the purposes of sexual gratification.  This touching may be over or under clothing and it does not matter whether you actually became aroused, just that this was the purpose of the touching.  If convicted of a violation of CA PC 288, you could spend up to 1 year in county jail or up to 8 years in state prison, depending on the facts of the case.  If force or fear was used, as was in the case above, then the penalty goes up to 5 to 10 years in state prison.  Additionally, if this is not the first such charge against you in your lifetime, you could end up with a sentence of 25 years to life.

Having sexual intercourse with a child under the age of 10, however, brings with it an entirely different set of penalties.  When an individual has actual intercourse with such a young child, then CA Penal Code 288.7 is applied.  This crime is always a felony and the sentences is 25 years to life if you are convicted.

 

Sacramento Teacher Convicted of Child Molestation (CA Penal Code 288)

Cases of child molestation are always disturbing, but when the victim is a special needs student and the perpetrator is a teacher at that student’s middle school, reaction from the public can be extreme.  In this particular situation, a special education teacher at Sam Brannan Middle School (in the Sacramento City Unified School District) has settled with the alleged victim, then a minor teen and now 19-years of age, for sexual abuse that is meant to have occurred over the span of the years 2009-2010.  The young boy claims that the molestation occurred both on school grounds and at the special education teacher’s own home.  The accused pleaded no contest to 3 felony counts of the sexual abuse of a child and to 1 misdemeanor count of the same.  He is currently serving out a 14-year sentence and will be required, after the decision made in this civil case, to pay $1.2 million in restitution.

This particular instance should serve to remind that, criminal charges and penalties of child molestation (CA Penal Code 288) are not the only consequences for being convicted, there is always the possibility that either the alleged victim themselves or their family members could bring a civil law suit against you as well.  There are many different ways in which this could occur; all another person’s attorney would need is what is often called a ‘cause of action.’

When criminal charges are brought against someone like the teacher above, all that the criminal justice system can do is to fine that individual, incarcerate them, or both.  What the criminal justice system does not provide for in a criminal trial is compensation to the victim or the family of the victim.  Once the trial is over and the perpetrator has been convicted, however, it is likely that a civil suit will also be brought against them.  In cases of child molestation, there is no cause of action that is entitled “sexual abuse of children.”  However, causes of action in such a case could include negligent infliction of emotional distress, intentional infliction of emotional distress, or even assault or battery.  Actual monetary damages, on the other hand, cannot be determined until a judge, jury, or both has heard the case.

 

Former Choir Director Accused of Child Molestation (CA Penal Code 288)

Until recently, a former choir director at the New Testament Baptist Church (North Highlands) had only been accused of having sexually assaulted one teenage boy, with whom he worked in his capacity at the church.  Now, the 42-year-old man has been identified as someone who abused another victim.  Local law enforcement officials now believe that there may be other potential victims that have yet to come forward, especially 2 other church choir members in their teens who complained about the man’s sexual advances, but never filed formal charges.

In California, a ‘child’ is defined as anyone under the age of 18 years and when such a child is abused sexually, prosecutors take these allegations seriously.  Specifically, ‘sexual abuse’ occurs when an individual touches a child in any way that causes the adult to feel sexually aroused (CA Penal Code 288).  If the child in question is under the age of 14, penalties are strict.  Anyone convicted of sexual abuse of a child  under such an age could end up spending 8 years in state prison and adding a ‘strike’ to their record under the California Three Strikes Law.  Penalties can even rise to as high as 10 years in a state prison if force was used during the abuse.

No matter what, a person convicted of any violation of CA PC 288 will be required to register, for life as a sex offender.  This is, perhaps, the most difficult part of sentencing when it comes to cases like this.  Registration as a sex offender often means being socially ostracized and difficulty finding a job once released from prison.  These types of cases, as the one seen above, often also involve false accusations.  Even if an initial accusation is found to be accurate, there will likely be others who wish to jump on the proverbial bandwagon in order to receive monetary compensation or media attention.  It remains to be seen how many alleged victims will come forward in the case of this church choir director.