Introduction

Lewd Acts with a Minor Child Under 14 (California Penal Code section 288) is the state’s main child-molestation criminal code. Also known as “Lewd Acts Upon a Child” or “Lewd and Lascivious Acts with a Child”, this crime involves you (allegedly) touching a minor for sexual gratification, or having him or her do so to him/herself – either for your own sexual pleasure or his/hers.

The general statute is known as “Lewd Acts with a Minor Child”, which obviously would enable the prosecutor to charge you with sexually touching an intimate part of anyone under age 18. However, crimes committed against minor ages 14 through 17 are typically charged under other Penal Code sections, such as:

Use of a Minor Under 18 to Assist or Perform Sexual Conduct (California Penal Code section 311.4(d)(1));

Oral Copulation with a Minor (California Penal Code section 287);

Unlawful Consensual Sex with a Minor (“Statutory Rape”) (California Penal Code section 261.5);

Sexual Battery (California Penal Code section 243.4); and

Annoying or Molesting a Child Under 18 (California Penal Code section 647.6).

In addition, if you’re convicted of this crime, which is always charged as a felony, you’ll face a minimum of three years in prison or a maximum of eight, excluding any sentencing enhancements. This would occur if you, for example, used force or the threat thereof to commit this crime.

Keep in mind that in certain cases, you can be prosecuted for violating Penal Code section 288 simply by touching a child’s non-intimate body part – again, so long as you did so for sexual pleasure – or for touching his or her intimate body part through clothing. In other words, skin-to-skin contact is not necessary to secure a conviction.

Finally, a variation of this crime involves you arranging to meet with a minor, or even actually going to meet him or her, for lewd purposes, pursuant to the following:

Arranging Meeting with Minor for Lewd Purpose (California Penal Code section 288.4(a)(1));

Going to Meeting with Minor for Lewd Purpose (California Penal Code section 288.4(b)).

Note regarding new DA’s Special Directives

Much has been written about the new DA George Gascón’s “Special Directives”, which he issued the very first day he took over on December 7, 2020. See: latimes.com.

Special Directive 20-08 concerning the elimination of all sentencing enhancements, including for Strike offenses (see below), has by far proved to be the most controversial. See: georgegascon.org.

This created such a firestorm that many of Mr. Gascón’s rank-and-file line prosecutors refused to follow this Directive, and many hard-line judges otherwise refused to allow the waiver or dismissal of enhancements. In addition, many, if not most, LA County Superior Court judges also refused to dismiss Strike charges under California Penal Code section 667(a)&(b) and
California Penal Code section 1192.7. See: foxla.com.

As a result, on December 18, 2020, Mr. Gascón issued an “Amendment to Special Directive 20-08” (aka “S.D. 20-08.2”), wherein he clarified that Deputy District Attorneys would still have the discretion to seek enhancements for particularly egregious sex crimes involving minors, which may very well include certain Lewd Acts with Minors (particularly those involving force or threats).

See: da.lacounty.gov.

Finally, on February 8, 2021, as stated in the foxla.com link above, an LA County Superior Court civil judge granted a preliminary injunction preventing prosecutors from dismissing any pending Strike charges, which could include Lewd Acts with Minors.

Sex Crimes – Lewd Acts with a Minor -- “Strikes”

In many cases, Lewd Acts with Minors will be charged as a “Violent-Felony” Strike pursuant to California Penal Code § 667.5.

Specifically, subsection (c) states, “‘violent felony’ shall mean any of the following: […] (6) Lewd or lascivious act as defined in California Penal Code section 288(a)&(b)….”

Even if force or threats weren’t involved, Lewd Acts with a Minor can nevertheless be charged as a “Serious-Felony” Strike pursuant to California Penal Code § 1192.7.

Subsection (c) thereunder states, “‘serious felony’ means any of the following: […] (6) Lewd or lascivious act on a child under 14 years of age […] (35) Continuous sexual abuse of a child in violation of [Penal Code] Section 288.5….” 

As a result, if you’ve previously been convicted of one or more Violent-Felony or Serious-Felony Strikes, then a new conviction for Lewd Acts with a Minor could result in an enhancement of anywhere from five years to life in prison.

Sex Crimes – Lewd Acts with A Minor -- Pre-Files/Early Dismissals

We have enjoyed an impressive track record of successfully disposing of these kinds of cases early on – either before the case is referred by a detective to the DA’s Office for prosecution, or shortly after criminal charges have been filed (see below).

By that, we mean that in many cases, we are able to get these charges dismissed either before or right after your arrest, with either no charges filed, no conviction, or – in a worst-case scenario – a misdemeanor plea to a reduced charge that will ultimately result in no jail and future expungement from your record.

California Statutes – Sex Crimes -- Lewd Acts with a Minor

Lewd Acts with a Minor Child Under 14 (California Penal Code section 288)

Aside from what’s already been described above, the rest of this specific statute provides for different sentences based on variations of this crime (see below).

Continuous Sexual Abuse of a Child Under 14 (California Penal Code section 288.5)

If you live in the same residence as the minor, or otherwise have access to him or her, and for a period of at least three months commit at least three lewd acts upon him or her, you will be charged with this crime, which entails significant sentencing enhancements (again, see below).

Arranging Meeting with Minor for Lewd Purpose (California Penal Code section 288.4(a)(1))

Of all of the “lewd” crimes discussed herein, this particular offense is the only one which is considered a “Wobbler” (California Penal Code section 17(b)). In other words, the prosecutor has the authority to charge you with a misdemeanor or felony if you try to arrange a meeting with a minor for a lewd purpose as described above; to expose your genitals or buttocks to him or her; or for the purpose of having him or her do the same.

Going to Meeting with Minor for Lewd Purpose (California Penal Code section 288.4(b))

If you actually go to the arranged meeting place, you will definitely be charged with a felony.

Sex Crimes Convictions – Lewd Acts with a Minor

A conviction for Lewd Acts with a Minor Child Under 14 (California Penal Code section 288) will result in low, mid, or high prison terms of three, six, or eight years, respectively. Penal Code section 288(a).

However, as indicated above, if you use force or threat of force to commit this crime, the low, mid, and high prison terms will be five, eight, or ten years, respectively. Penal Code § 288(b)(1).

Alternatively, if the victim is 14 or 15 years old, and you are at least ten years older, then a conviction under this statute (absent any force or threat thereof) will get you one, two, or three years in prison. However, under certain mitigating circumstances, then the sentence could be only 12 months in the county jail. Penal Code § 288(c)(1)).

Finally, if you caused “substantial injury” to the child under 14 while committing this crime, you will be sentenced to life in prison. Penal Code § 288(c)(1)). This is known as a “Super Strike”.

Continuous Sexual Abuse of a Child Under 14 (California Penal Code section 288.5)

A conviction under this statute for the crime described above entails a state prison term of six, 12, or 16 years. Penal Code section 288.5(a).

Arranging Meeting with Minor for Lewd Purpose (California Penal Code section 288.4(a)(1))

If you’re convicted of a misdemeanor, you’ll face a maximum of one year in jail.

However, if you’re convicted of a felony, the judge can sentence you to prison. Since the statute doesn’t specify the specific terms (i.e., low, mid, and high), then by default, you’ll be sentenced under California Penal Code section 18(a) (Felony Prison Term Not Specified), which provides a range of 16, 24, or 36 months.

Going to Meeting with Minor for Lewd Purpose (California Penal Code section 288.4(b))

This conviction – which typically stems from the fact that the “minor” you believed you were going to meet was a sex-crimes detective posing as such – results in 24, 36, or 48 months in a state penitentiary.

No Eligibility for Diversion for Lewd Acts with a Minor

On September 30, 2018, then-California Governor Jerry Brown signed into law SB 215, which excluded certain criminal convictions from eligibility for diversion, including Lewd or Lascivious Act with a Child Under 14 (Pen. Code § 288(a)) and Continuous Sexual Abuse of a Child (Pen. Code § 288.5).

See: leginfo.legislature.ca.gov.

See also: Mental Health Diversion (California Penal Code section 1001.36).

Sex Crimes – Registration Requirements

As of January 1, 2021, most of the first-time foregoing convictions will be classified as a “Tier-Two” registerable offense, which entails a registration term of 20 years.

See Sex Offender Registration (California Penal Code section 290).

However, two or more of the foregoing convictions will result in lifetime registration.

This, of course, means you’ll be instantly accessible to the public on California’s so-called “Megan’s Law” website.

Defenses to Sex Crimes Charges -- Lewd Acts with a Minor

The following are all effective defenses to defeat the various iterations of this crime, as set forth in the Judicial Council of California’s Criminal Jury Instructions (“CALCRIM”) listed below:

  1. The minor was 14, 15, 16, or 17 years old (mitigation -- will result in a different charge);

  2. You accidentally touched the child’s intimate body part;

  3. You intentionally did so, but not for any sexual purpose (e.g., you were simply being affectionate with your young relative);

  4. You didn’t touch the minor with the intent to sexually arouse him or her;

  5. You didn’t use force or fear (mitigation);

  6. The minor was 14 through 17 years old, and you were less than ten years older than he or she at the time of the incident (mitigation);

  7. Your intention in meeting up with the minor wasn’t sexual (e.g., you were a legitimate casting agent interested in possibly hiring him or her for a commercial);

  8. You did intent to meet up with the purported victim for sexual purposes but you never reasonably believed he or she was a minor.

FYI, a minor can never legally consent to any sexual contact (including if he or she was an underage sex worker/trafficking victim).

See CALCRIM number 1110 (“Lewd or Lascivious Act: Child Under 14 Years -- Pen. Code § 288(a)”);

CALCRIM number 1111 (“Lewd or Lascivious Act: By Force or Fear -- Pen. Code § 288(b)(1)”);

CALCRIM number 1112 (“Lewd or Lascivious Act: Child 14 or 15 Years -- Pen. Code § 288(c)(1)”);

CALCRIM number 1120 (“Continuous Sexual Abuse -- Pen. Code § 288.5(a)”);

CALCRIM number 1125 (“Arranging Meeting with Minor for Lewd Purpose -- Pen. Code § 288.4(a)(1)”); and

CALCRIM number 1126 (“Going to Meeting with Minor for Lewd Purpose -- Pen. Code § 288.4(b)”).

Example of a Sex Crime – Lewd Acts with a Minor

Former LAPD officer gets 1 year in jail after being convicted of six lewd acts

In February 2014, then-LAPD officer Ryan Galliher (age 33), who was off duty at the time, allegedly exposed his genitals to a minor female (age twelve) who was walking home from school along a trail by the Bolsa Chica Conservancy in Huntington Beach (Orange County). As the girl would testify two years later, Galliher did the same to her on two more occasions, with the second involving a number of her friends. During the third encounter, he allegedly masturbated in front of the group.

Later that same year, in a fourth incident, Galliher allegedly exposed himself to two other females (ages eighty and forty-three). Also later that same year (October 20th), in a fifth incident, Galliher allegedly confronted two adult female joggers while he was standing completely nude.

On October 23, 2014, in a sixth and final incident, he allegedly masturbated in public. Since all of the foregoing incidents allegedly occurred in the same area (near the wetlands), Huntington Beach PD had been staking it out. They allegedly caught him in the act and arrested him. In mid-November 2015, Galliher’s jury trial commenced on the following two felony charges:

Attempted Lewd Act with a Minor Child Under 14 (California Penal Code section 288) and

Contacting a Minor with the Intent to Commit a Lewd Act (California Penal Code section 288.3).

In addition, he was facing the following misdemeanor charges:

Six counts of Indecent Exposure (California Penal Code section 314) and

One count of Engaging in Lewd Conduct in Public (California Penal Code section 647(a)).

Maximum sentence if convicted of all charges: 48 months in a state penitentiary plus lifetime registration under California Penal Code section 290. See: ocregister.com.

On January 28, 2016, Galliher was convicted of all charges but, fortunately for him, was only sentenced to 12 months in jail and five years of formal probation, but with lifetime registration.

See: latimes.com.

Youth-group volunteer gets eight years in prison for having 15-year-old boy engage in lewd conduct

During a two-month period in 2013 (June & July), Richard Kelso (32), a youth-church-group volunteer at a Lancaster church and private investigator manipulated an underage male (fifteen) to have sex with Kelso’s own stepdaughter (age unknown).

It remains unclear how the investigation was commenced, but detectives from the LA Co. Sheriff’s Dept. subsequently arrested him. The DA’s Office prosecuted him for numerous felonies but he refused to accept any pleas.

He probably regretted that decision because on November 3, 2015, he was convicted following a jury trial of the following felonies:

Three counts of Contacting a Minor with the Intent to Commit a Lewd Act (California Penal Code section 288.3);

Two counts of Lewd Act Upon a Child (not under age 14); and

One count of Inducing a Child to Engage in a Lewd Act (California Penal Code section 288(c)). As a result, on or about January 13, 2016, he was sentenced to eight years in prison, a decade-long victim stay-away order, and lifetime registration. See: da.lacounty.gov.

A Sampling of Sex Crimes -- Lewd Acts with A Minor Cases Handled by the Los Angeles Defense Attorney Law Firm (LADALF)

Our lead attorney, Ninaz Saffari, has been defending individuals – both adults and minors – in many different cases over the last 16 years (since she first started practicing criminal law in March 2005). The following are two examples of such cases she has successfully defended.

Lewd Acts w/ Minor, max sentence: 10 yrs., reduced to Unlawful Consensual Sex w/ Minor, no jail

People v. J.G.: Twelve felony counts were filed against Ninaz’s client (“Joel”), including Lewd Acts with a Minor. As a result, the DA’s Office was seeking a ten-year prison term. Fortunately for Ninaz and Joel, his previous attorney had done very little on the case aside from repeatedly seeking continuance after continuance while Joel spent many months in jail awaiting trial. As a result, he hired her.

The first thing Ninaz did was file a Motion to Dismiss (California Penal Code section 995) based on a violation of Joel’s constitutional right to a speedy trial, which both the judge and the prosecutor had violated by allowing Joel’s former attorney to repeatedly delay the case without good cause. This put a great deal of pressure and incentive on the prosecutor to give Joel an excellent deal.

During the two or three-day hearing that it took for the judge to hear this motion, Ninaz made it perfectly clear that the judge had no choice but to dismiss the entire case. Then, following Ninaz’s announcement that she was ready to immediately begin the jury trial, the prosecutor realized the judge was going to grant the motion, and made that excellent offer.

Result: The prosecutor dismissed the entire case, and Joel went home a free man with no more jail hanging over his head after pleading to Unlawful Consensual Sex with a Minor (California Penal Code section 261.5).

Pre-File -- Lewd Acts w/ Minor Under Fourteen, max: eight yrs.’ prison, case declined by DA

People v. B.D. (Norwalk Courthouse – January 2021): Ninaz’s client (“Brian”) had been notified by mail that the Los Angeles Co. Sheriff’s Department sex crimes unit was investigating him for suspicion of sexually abusing a minor (age 4), and that he was required to submit to an interview.

If charged and convicted of a felony charge which would almost certainly be Lewd or Lascivious Act: Child Under 14 Years (California Penal Code section 288(a)), he would be looking at an 8-year term in a state penitentiary, not to mention potential registration for life (California Penal Code section 290(b)).

Brian wisely – and immediately – hired Ninaz. The first thing she did was to notify the lead detective that she was representing Brian. Based on Ninaz’s sterling reputation as a criminal defense attorney who was as good as her word, the detective agreed not to refer the case for prosecution to the DA’s Office until she was able to provide him with more information about Brian’s innocence.

The second thing she did was work closely with her private investigator. Together they were able to compile a substantial quantity of exculpatory evidence – including from potential defense witnesses who would attest to Brian’s innocence at trial, if necessary.

Unfortunately, however, the detective reneged on his agreement and informed Ninaz that he had already referred the case to the DA’s Office for prosecution. As a result, Ninaz met with the assigned prosecutor to go over her package of exculpatory evidence.

Result: The prosecutor agreed with Ninaz that Brian was innocent and formally declined to pursue any and all charges.

Pre-File: Juvenile Client Potential Case for Continuous Sexual Abuse of a Child and Lewd Acts on a Minor Under 14; Result: Case Declined

In re R.S. (East Lake Juvenile Courthouse – February 2021): Client’s family retained LADALF’s Ninaz Saffari after learning that he had been investigated for allegedly sexually abusing a four-year-old extended-family member dozens of times over an extended period. As a result, the client, who was a minor at the time of the alleged incidents, was now facing the following potential charges:

Lewd Acts with a Minor Child Under 14 (California Penal Code section 288); and

Continuous Sexual Abuse of a Child (California Penal Code section 288.5).

Ninaz immediately contacted the investigating detective who informed her that he had already transferred the matter to the DA’s Office for filing charges. Indeed, the detective had even issued the client a summons to appear in court.

Ninaz had numerous conversations with the detective, as well as the family, which was understandably extremely concerned and adamant about the client’s innocence (as was, of course, the client himself). As usual, Ninaz conducted a thorough investigation, and ultimately convinced the detective that the potential case was, at best, extremely weak.

Result: DA’s Office declined to prosecute.

The Los Angeles Defense Attorney Law Firm (LADALF)

March 2021 will be exactly 16 years since LADALF’s founding criminal lawyer Ninaz Saffari has been practicing criminal law. During more than a decade and a half, she has represented many hundreds of individuals accused of virtually every type of sex crime, including many charged Lewd Acts with a Minor.

This specific “sub-practice” began shortly after she began working as a lawyer – specifically, during her first four years in practice as a Deputy Public Defender for LA County. You would be hard-pressed to find any lawyer in the entire county as experienced, skilled, and successful as she is in defending these types of cases.