Introduction

Sexual Battery (California Penal Code section 243.4) (sometimes called “Sexual Assault”) is one of the most common sex crime charges prosecuted by the Los Angeles County District Attorney’s Office, as well as one of the most frequently offered pleas by the same for sex crime convictions.

Quite simply, this offense involves you (allegedly) touching the purported victim’s intimate body part in some harmful or offensive manner (i.e., without their legal consent).

However, this can range from something as relatively innocuous as patting his/her buttocks to an act as relatively egregious as fondling his/her genitals. Whatever degree of contact, it must result from your sexual motive – i.e., gratification, pleasure, arousal, etc.

Sex Crimes – Sexual Battery -- “Wobblers”

This is a “Wobbler” offense (California Penal Code section 17(b)), which means the DA’s Office can charge it either as a felony or misdemeanor, depending on factors too numerous to discuss at length here, but which typically involve your prior criminal record (if you have one), the age of the purported victim, the degree of harm done to him/her, and so forth.

Sex Crimes – Sexual Battery -- Pre-Files/Early Dismissals

As you can see from several of our examples below, the Los Angeles Defense Attorney Law Firm (LADALF) is often able to resolve these types of cases in a highly favorable manner at the earliest stages as follows:

  1. Before the investigating sex crimes detective (LAPD or LASD) refers the matter for prosecution to the DA’s Office (for felonies and misdemeanors) or the City Attorney’s Office (misdemeanors only);

  2. After the Deputy DA or Deputy CA receives the file from the detective, but before the assigned prosecutor actually files a criminal complaint against you;

  3. Shortly after criminal charges are actually filed against you.

By a highly favorable resolution, we mean that the detective decides not to refer the matter for prosecution; the prosecutor rejects the matter for prosecution after it’s been referred to him/her; he/she dismisses the case shortly after charges are filed; or he/she offers as a greatly reduced plea a minor non-sex-crime misdemeanor, such as Simple Assault (California Penal Code section 240); Simple Battery (California Penal Code section 242); or an infraction.

This often requires a great deal of investigative work in a very short time but more often than not, you may be happily surprised by the results.

California Statutes – Sex Crimes -- Sexual Battery

California Penal Code section 243.4 -- Sexual Battery

This statute covers the following variations of this crime:

Sexual battering the victim while he/she is restrained. Penal Code section 243.4(a).

Doing the same to someone who is in an institution and who is physically disabled or mentally incapacitated. Pen. Code section 243.4(b).

Masturbating someone who is in an institution and who is physically disabled or mentally incapacitated. Pen. Code section 243.4(d).

Sexually battering your employee. Pen. Code § 243.4(e)(1).

The only sexual battery crime that is always charged as a misdemeanor entails the victim being a former or current domestic or romantic partner, a current or former spouse, a co-parent, a parent, or a child. Pen. Code § 243.4(e)(1).

Finally, if you’ve previously been convicted of felony sexual battery, and you are now convicted of sexually battering a minor, you’ll definitely be charged with a felony. Pen. Code § 243.4(j).

California Penal Code section 243.4(c) -- Sexual Battery by Fraud

This involves sexually battering the victim by using fraud or deceit (e.g., crawling in bed with him/her and pretending to be his/her spouse). This is often charged against medical professionals who sexually batter a patient under the guise of, say, a physical examination.

Defenses to Sex Crimes Charges -- Sexual Battery

According to the Judicial Council of California’s Criminal Jury Instructions (“CALCRIM”), the following are all defenses to the foregoing offenses:

  1. The purported victim had given legal consent for you to make the alleged physical contact;

  2. You didn’t “unlawfully” restrain him or her (mitigation);

  3. You never actually touched his/her intimate body part or, alternatively, you never caused him/her to do so to him/herself or to you;

  4. You did actually do so but not out of any sexual motive;

  5. The purported victim was institutionalized at the time, but not for any medical reason (mitigation);

  6. He/she wasn’t physically disabled or mentally incapacitated at the time (mitigation);

  7. You didn’t fraudulently misrepresent that the alleged touching was done for a professional/legitimate reason (mitigation);

  8. No severe physical harm resulted (mitigation – see below).

CALCRIM number 935 (“Sexual Battery: Felony -- Pen. Code §§ 242, 243.4(a) & (d)”);

CALCRIM number 936 (“Sexual Battery on Institutionalized Victim -- Pen. Code §§ 242, 243.4(b) & (d)”);

CALCRIM number 937 (“Sexual Battery: By Fraudulent Representation -- Pen. Code §§ 242, 243.4(c)”); and

CALCRIM number 938 (“Sexual Battery: Misdemeanor -- Pen. Code § 243.4(e)(1)”).

Sex Crimes Convictions – Sexual Battery

California Penal Code section 243.4 -- Sexual Battery

Sexual battery of a restrained victim is classified as a “Wobbler” (California Penal Code section 17(b)). Thus, if you’re convicted of a misdemeanor, you’ll face up to one year in jail. A felony will get you a range of 2, 3, or 4 years in a state penitentiary. Penal Code section 243.4(a).

The same exact “wobbler punishments” apply if the victim was medically institutionalized and mentally or physically disabled. Pen. Code section 243.4(b).

The same applies if, while sexually battering an institutionalized victim as described above, you had him or her masturbate you, their selves, or a third person. Pen. Code § 243.4(d).

Otherwise, as stated above, sexual battery is charged as a misdemeanor with a maximum six-month jail sentence, including if the victim is your employee. Pen. Code § 243.4(e)(1).

Finally, if you’ve previously been convicted of felony sexual battery, and you are now convicted of sexually battering a minor, this second felony conviction will get you 2, 3, or 4 years in a state penitentiary. Pen. Code § 243.4(j).

California Penal Code section 243.4(c) -- Sexual Battery by Fraud

If the sexual battery was achieved by fraud, you can be charged with a misdemeanor or a felony, in which case you’ll face, respectively, a maximum of 12 months in jail, or a prison sentence of 2, 3, or 4 years. Pen. Code § 243.4(c).

Sex Crimes – Registration Requirements -- Sexual Battery

The most severe consequence of even a misdemeanor sexual battery conviction – which is classified as a “Tier One” registerable sex offense – is a decade-long registration requirement, pursuant to California’s Sex Offender Registration statute (California Penal Code section 290).

This means that every year within five days of your birthday, for the next ten years, you’ll have to register all your personal info with the local police or sheriff’s station.

If you fail to do so even once, you’ll be charged with a felony. See Sex Offender Registration Act: Penalties for Violation (California Penal Code section 290.018).

This means, of course, that you (and your residence) will be identified on the Megan’s Law website.

This mandatory registration period can stretch out over your entire lifetime if you’re convicted of felony sexual battery, which is classified as a Tier Three registerable offense.

Example of a Sex Crime – Sexual Battery -- Misdemeanor

Chiropractor receives four months in jail plus lifetime registration for three counts of Sexual Battery

During a five-month period from late 2014 through early 2015 (Nov. through March, respectively), chiropractor Stephen Lowry (thirty-two) allegedly sexually battered at least three different patients at his home (location unknown), as well as at his Whittier office.

According to the LA County DA’s Office, Lowry occasionally invited clients to his home for “personal massages”, which ultimately lead to criminal charges being investigated and prosecuted against him. As a result, he was arrested by Whittier PD on March 23rd, 2015.

Almost seven months later, on October 8, 2015, Lowry accepted a nolo contendre plea to three counts of misdemeanor Sexual Battery (California Penal Code section 243.4).

He was immediately sentenced to the following: four months in jail; 36 months of informal probation; 52 weeks of sex-offender counseling; and lifetime registration pursuant to California Penal Code section 290. In addition, Lowrey undoubtedly had his chiropractor’s license revoked by the state of California.

See: da.lacounty.gov.

Example of a Sex Crime – Sexual Battery -- Felony

Los Angeles man gets 5 years in prison for masturbating on a fellow Metro passenger

In mid-May 2014, Angeleno Danon Drake (twenty-three) was riding a Metro subway train through K-Town when he allegedly approached a woman and held her down while he began fondling her and masturbating. She somehow managed to escape and immediately reported the incident to Inglewood PD.

Unfortunately for Drake, security cameras allegedly videotaped him during the act, and I.P.D. widely distributed stills therefrom. As a result, Drake surrendered to I.P.D.

On or about September 8, 2014, Drake pled nolo contendre to several counts of felony Sexual Battery (California Penal Code section 243.4).

Accordingly, he received 60 months in a California penitentiary, plus lifetime registration under California Penal Code section 290.

See: da.lacounty.gov.

Sex Crimes – Sexual Battery -- Example of a Celebrity Case

Ray J

At the end of May 2014, singer Ray J (age 33), perhaps best known for starring in the homemade sex video with Kim Kardashian, was arrested following an incident at the Beverly Wilshire Hotel in Beverly Hills (the hotel where Richard Gere and Julia Roberts’ characters stayed in the film Pretty Woman).

Specifically, Ray J (born William R. Norwood, Junior) apparently had had far too much to drink at the hotel bar when he met a young woman. Although it remains unclear exactly what transpired, the woman later called Beverly Hills PD to report that Norwood had grabbed her buttocks without her permission.

As a result, Beverly Hills PD arrived on scene to question him. Unfortunately for Norwood, he allegedly became hostile towards the officers, and even allegedly spat on them. He then allegedly kicked out the window of the patrol car into which he had been placed. He was therefore charged with the following (each charge a single misdemeanor count):

Sexual Battery (California Penal Code section 243.4);

Vandalism (California Penal Code section 594);

Battery on a Peace Officer (California Penal Code section 243(b)&(c)); and

Resisting Arrest (California Penal Code section 148).

Maximum jail term if convicted of all counts: 48 months in jail.

See: da.lacounty.gov.

On or about August 27th, Norwood accepted a nolo contendre plea to all four counts in consideration for the following (uncommonly lenient) sentence: 36 months’ informal probation; fifty hrs.’ volunteer work; alcohol-abuse counseling; anger-management therapy; payment of restitution; and a stay-away order (from the hotel).

See: eonline.com.

A Sampling of Sex Crimes Cases -- Sexual Battery -- Handled by the Los Angeles Defense Attorney Law Firm (LADALF)

The following are only three examples of cases the Los Angeles Defense Attorney Law Firm (LADALF) has handled which involved pending or prospective Sexual Battery cases (California Penal Code section 243.4), or which resulted in a sexual battery conviction after an extremely favorable plea agreement.

Charge: 2 counts Forcible Rape (Strike enhancements); max sentence: almost 48 yrs.; Result: plea to misdemeanor Sexual Battery – no additional incarceration

People v. R.T.: LADALF’s client, “Ralph”, had been falsely accused by a former girlfriend of brutally raping her on two separate occasions. As a result, he was facing:

several counts of Forcible Rape (California Penal Code section 261) with each charged as a Strike (California Penal Code section 667(a)&(b)) and California Penal Code section 1192.7.

Maximum sentence: almost five decades in a state penitentiary.

Unfortunately, Ralph had voluntarily made incriminating statements when interrogated by police. Notwithstanding, he was adamant that he had been falsely accused and, therefore, had no intention of accepting any type of felony deal.

So we took the case to trial. But for Ralph’s incriminating statements, he would likely have been acquitted because the accuser had consistently contradicted herself regarding the allegations during numerous interviews with the authorities. As a result, the jury hung 6-to-6.

So we went through a second trial. This time, however, the prosecutor realized that the accuser had contradicted what she had testified to during the first trial, thanks to our withering and expert cross-examination.

In addition, we presented medical experts for the purpose of proving that the prosecution’s DNA evidence was insufficient. The Deputy DA therefore made Ralph an offer that even he couldn’t turn down (which still technically counts as a “win” – i.e., a criminal conviction – for the DA’s Office).

Result: Ralph plead to a single charge of misdemeanor Sexual Battery (California Penal Code section 243.4) with no jail time, and no sex registration.

Pre-File: Client investigated for felony Sexual Battery with charges imminent; Result: DA’s Office declined further prosecution

People v. J.K.: Client hired us on a “Pre-File” basis after he found out sex crimes detectives from LASD were investigating him for the alleged Sexual Battery (California Penal Code section 243.4) of a WeHo hotel’s cleaning staff.

The client was a visiting professional from the East Coast and, therefore, had no idea how he was going to manage appearing at court hearings or, God forbid, spending time in jail.

Fortunately, he hired us. The first thing we did was notify the detective that we were representing the client and, therefore, all further attempts to contact him should go through us.

The second thing we did was pull the surveillance footage from the hotel that corroborated the client’s claims.

The third thing we did was have him take a polygraph examination from a top expert whose reputation within the law enforcement community was above reproach (not least of all because he had been a reserve sheriff’s deputy for over three decades). Fortunately, the results corroborated his claims of innocence, as well.

With all of this exculpatory information and evidence, we met with the detective and convinced him of the truth – i.e., that the entire incident was simply one major misunderstanding. Unfortunately, however, the detective had already forwarded the matter to the DA’s Office for prosecution.

Fortunately, the detective accompanied us to meet with the assigned Deputy DA, who, after reviewing our exculpatory package, agreed that criminal charges should not be filed.

Result: DA’s Office declined to file a criminal complaint, and client went back home a free man.

Pre-File: Client arrested for felony Sexual Battery; result: declination of charges

People v. D.R.: This time our client was investigated and arrested (by LAPD). Fortunately, however, he hired us on a Pre-File basis only days after the DA’s Office received the file from the investigating detective, but before the criminal complaint was filed.

Once again, we dived head-first with our top private investigator to put together another exculpatory package. Based on the circumstances at the time, we decided to initially meet only with the detective to bring him around to our position of innocence.

Not only did that happen, but to his credit, the detective actually called the assigned prosecutor in our presence to let him know that the arrest should never have happened because our client was innocent. Fortunately, the prosecutor agreed after reviewing our package.

Result: Declination of charges – no criminal complaint was ever filed.

The Los Angeles Defense Attorney Law Firm (LADALF)

Our founding criminal attorney, Ninaz Saffari, began representing people charged with Sexual Battery (California Penal Code section 243.4) felonies and misdemeanors shortly after getting hired as a Deputy PD by the LA County Public Defender’s Office, where she worked for 4 years before going into private practice. During the 12 years (as of March 2021) that she has been on her own, she has continued representing individuals investigated and/or charged with the same with typically outstanding results.