What Is Contacting a Minor to Commit a Felony?

California crimes that involve minors carry harsh consequences. Contacting a minor to commit a felony is one of these crimes, punishable under Section 288.3 of the Penal Code. If you are under investigation or facing charges for violating PC 288.3 or committing any other crime involving a minor, you want to safeguard your legal rights. The ideal way to do this is to work with a skilled criminal defense attorney.

What Contacting a Child to Commit a Crime Means

According to California PC Section 288.3, contacting a child to commit an offense means contacting or trying to contact a child, aware they are a child, intending to perpetrate a felony offense. A minor is anyone below 18 years old. Simply put, the authorities can arrest, charge, and convict you of a felony violation of Section 288.3 of the PC, even if you never succeeded in physically contacting or committing any activity with the child involved. You need not do anything unlawful with them for a conviction to occur.

That means under this law’s provisions, you can be subject to harsh consequences if you simply intend to perpetrate a felony with a child. Most offenses that can lead to charges under 288.3 PC are sex crimes, although other severe felony crimes involving a child also suffice. Irrespective of the underlying crime, a conviction under 288.3 PC means the court will need you to comply with the sex offender registration requirement.

Put simply, a conviction under PC 288.3 will necessitate registration as a sex offender under California PC 290. Generally, the court will order you to register as a tier-three sexual offender, meaning you will register for your entire life.

Violating 288.3 PC is deemed an attempted crime per California law. That means consequences will apply once you make any direct move to perpetrate a crime. California legislators enacted this law in 2006 under Prop. 83, the Sexual Predator Punishment and Control Act, also called Jessica’s Law. The law gives the police a powerful tool to catch sexual predators before they commit a sex act with a child. The police will often conduct an online sting operation and disguise as a child in a chat room. Those people accused of this particular sexual offense face severe consequences.

When Does a Conviction for This Crime Occur?

A conviction for communicating with a minor to perpetrate a felony occurs only after the prosecution proves all the necessary elements making up the crime beyond any doubt. The elements of a crime refer to the facts that constitute the criminal offense. Under PC 288.3, the prosecution must demonstrate that:

• You indirectly or directly communicated with, contacted, or tried to communicate with or contact a child.
• When doing that, you aimed to commit any of the crimes that involve a child that PC Section 288.3 lists.
• You were aware or should reasonably have been aware the individual was a child.

That means to be convicted under this statute, you must have been aware the party you contacted was, in fact, a child. To contact means person-to-person or any electronic communication like sexting. As noted, 288.3 PC is an attempted crime. So, the key elements in prosecution under this law are the attempt to contact the minor and the knowledge that they were a child.

Also, as mentioned, the police usually enforce this law via sting operations that involve undercover cops online who are just passing themselves off as children. So, in most cases, culprits did not, in reality, talk to minors. Instead, they talked to people they believed were minors.

Underlying Offenses That Can Lead to a Conviction of Contacting  Minor to Commit a Felony

The judge cannot find you guilty of communicating with a child to perpetrate a felony except if the D.A. can demonstrate you meant to perpetrate an offense listed under Section of the 288.3 Penal Code. These crimes are:

• PC 287, orally copulating with a child: PC 287 criminalizes engaging in non-consensual oral sex or consensual oral sex with a child. Non-consensual oral sex is also called oral copulation by fear or force.
• PC 289, sexual penetration using a foreign object: Violating PC 289 means.
  • Having non-consensual sexual penetration using a foreign item, accomplished through threats, fear, violence, duress, or force or
  • Having consensual penetration with a child under 18.
• PC 311, child pornography: the possible underlying crimes supporting PC 288.3 charges include child pornography violations of:
  • PC 311.11, controlling or possessing child pornography.
  • PC 311.4, employing, hiring, persuading, coercing, or using a child to participate in producing child pornography.
  • PC 311.2 and 311.1, sending, producing, transporting, duplicating, or possessing any child porn intending to distribute it.
• PC 288, lewd conduct with a minor: committing lewd conduct with a minor means touching any of a child’s body parts for sexual reasons. PC 288 applies only to lewd conduct performed with a child under fourteen years old.
• PC 288.2, sending harmful content to a child: PC 288.2 criminalizes sending obscene material to anybody under 18 intending to arouse them or yourself sexually, with the eventual objective of performing sexual acts with them.
• PC 273a, child endangerment: PC 273a defines child endangerment as inflicting, causing, or permitting unjustifiable mental suffering or bodily pain on a minor.
• PC 261, rape: Rape refers to having sexual intercourse with a person without their consent. This could mean:
  • You accomplished the sexual intercourse through violence, force, threats, duress, fraud, or
  • The victim could not consent because, for example, they have a physical or mental disability or they were too drunk or too high to consent.
• PC 286, sodomy: sodomy means forcing a person to participate in anal sexual intercourse without their permission. It also means engaging in anal sexual intercourse with a child.
• PC 207, kidnapping: kidnapping entails moving another party a significant distance without their consent and using fear or force. Kidnapping could also be perpetrated without using fear or force if:
  • The supposed victim is below 14 years old.
  • You utilize misrepresentations or promises to convince the victim in question to come with you.
  • You kidnapped the victim to perpetrate a sexual offense against them.
• PC 209, kidnapping for ransom or aggravated kidnapping: PC 209 criminalizes kidnapping another person for a reward, ransom, to commit extortion or to demand from another party any cash or something of value.
• PC 266, enticing a minor to prostitution: PC 266 criminalizes enticing a child into a brothel for prostitution purposes. The law also criminalizes fraudulently procuring a child to have sex with someone else.

The Consequences You Would Face If You Contacted a Minor to Perpetrate a Felony

Even though 288.3 PC violations are deemed attempted crimes, they are still punishable as felonies. That means the punishment you will be subject to is the same as though you had successfully perpetrated the underlying crime. Simply put, the possible sentence will be based on the underlying crime. The possible repercussions for these felonies include felony probation, a state prison sentence, and a fine not exceeding $10,000.

For example, let us say you are accused of contacting a child intending to commit sodomy. In this case, you would face the same consequences as though you had committed sodomy itself. The penalties for sodomy vary based on the circumstances.

• If the child was under 18, you would be subject to sixteen months, three years, or two years in prison.
• If you were 21 years or older and the child was under 16 at the time of the crime, you would face 16 months, three years, or two years in prison.
• If the victim is a child below fourteen and more than ten years younger than you, you will be subject to three, six, or eight years in prison.

If you contacted or communicated with a child to commit lewd conduct against a child below fourteen years, you would be subject to three, six, or eight years. If you contacted or communicated with a child intending to participate in consensual oral with them, you would face between 16 months and eight years in prison. The sentence you will face will depend on the minor's age and yours.

If you have been found guilty of violating PC 288.3 before, then for every future violation, the judge will increase your possible state prison by an additional, consecutive five years.

Violating PC 288.3 will also lead to the court mandating you to comply with the sexual offender registration requirement under PC 290. In most of these cases, the court will require you to register as a tier-three sexual offender, meaning you will be registering for life. In a few cases, the court will mandate you to register as a tier two sexual offender. Tier two requires you to register for at least twenty years. If the court requires you to register as a tier one sexual offender, it means you will be registering for at least ten years.

How You Can Avoid Going to Prison for Communicating With a Minor to Commit a Felony

If the prosecution has accused you of contacting a child to commit a felony, the best thing to do is hire a lawyer. The lawyer can argue several prevalent strategies to fight the accusations against you. Effective defense strategies that can prove effective with the prosecution, juries, and judges include the following:

You Never Intended to Commit a Felony

The prosecution must successfully establish that your communication or contact with the child was to commit a sexual offense listed under PC 288.3. Merely contacting or talking to a child does not prove you intended to perpetrate a crime.

You could have communicated with or contacted the child in question. It could even be that you had a sexual or romantic interest in them. Even if all these were true, it does not automatically demonstrate you meant to perpetrate a felony offense. This is true even if your communications did contain sexual content.

Even if you planned to meet the child, it does not automatically demonstrate that you communicated with or contacted them intending to perpetrate a felony. That is especially so if that meeting was meant to take place publicly.

Lack of intention is one of the most powerful defenses. That is because prosecutors do not have a definitive way to demonstrate what is happening in your mind. Provided that your lawyer can cast reasonable doubts in the jury’s minds, criminal charges will not stand. The lawyer can argue that the child misinterpreted your communication.

You Never Knew the Party You Communicated With or Contacted Was a Child

If you had reason to actually believe the victim involved was above 18 years old, your lawyer could present various pieces of evidence, for example:

• The victim acted or looked unusually mature.
• You met or saw the victim in question in a place where a person does not anticipate meeting minors. This location could be a concert or bar restricted to persons over 21.
• The victim in question lied to you regarding their age.

There are PC 288.3 cases whereby minors are easily disguised as grownups. In these kinds of cases, the district attorney would have no choice but to dismiss the charges before the court trial.

Police Entrapment

Police entrapment is illegal in California. It happens when law enforcement behaves overbearingly, causing persons to engage in conduct they would otherwise not have. You can be subject to police entrapment when the police lure you into committing an act through harassment, fraud, pressure, threats, or flattery.

It is typical to face charges for violating PC 288.3 after being apprehended during an online sting operation performed by undercover police officers. Law enforcement officers who disguise themselves as children go online and flirt assertively with possible suspects.

If you believe you are a victim of police entrapment, your lawyer can use the arresting officer’s bodycam footage against them. They can use the footage to prove the officer crossed a line from duplicity to entrapment. Provided that your attorney can prove that were it not for pressure from the police, you would, the D.A. should drop the charges.

Charges Similar to Communicate with a Minor to Perpetrate a Felony

When charged under PC 288.3, it helps to know other charges you may risk facing based on the case facts. If the case facts allow, the D.A. may file other charges against you along with or instead of contacting a child to perpetrate a felony. Some of these charges include the following:

Statutory Rape Under PC 261.5

Statutory rape under PC 261.5 means having consensual sex with anybody who is not your spouse and that person is under 18 years. Whether the child willingly initiated or participated in the intercourse does not count. That is because a child is lawfully incapable of consenting to sex. One noteworthy thing about statutory rape is that the crime is not one of the underlying offenses listed under PC 288.3. Thus, one possible defense to PC 288.3 charges is arguing that your intention was just to have consensual sex with the child. This would free you from charges under PC 288.3, but you could still be charged with statutory rape under PC 261.5.

Arranging a Meet-UP With a Child for Lewd Reasons Under PC 288.4

Section 288.4 of the Penal Code, arranging a meet-up with a child for lewd reasons, is a very similar crime to PC Section 288.3. Legislators enacted this law simultaneously as 288.3 PC. It criminalizes:

• Setting a meet-up with a child,
• While driven by an abnormal or unnatural sexual interest in a minor,
• Intending to expose the minor’s or your genitals or
• Participate in lewd activity with the child at that meeting.

Like violating PC Section 288.3, violating PC 288.4 is an attempted offense. That means the D.A. may charge you even when you never engaged in sexual behavior with a child.

Sexual Battery Under PC 243.4

The California crime of sexual battery means touching someone else’s private parts without their consent for sexual arousal, abuse, or gratification purposes. Generally, violating PC 243.4 is a misdemeanor. However, the D.A. can press felony charges if aggravated circumstances exist.

Find a Knowledgeable Criminal Defense Lawyer Near Me

The collateral and criminal repercussions of a PC Section 288.3 conviction can be life-changing. You want an expert criminal defense attorney on your side to stand a chance of winning. At California Criminal Lawyer Group, we have fought for thousands of individuals charged with crimes against children. This includes communicating with or contacting a child intending to perpetrate particular felonies.

Thanks to our years of expertise and experience, we can protect your legal rights and help you obtain the best possible outcome. We can negotiate with the police and the D.A. for a lesser charge. Or we can pursue prefiling intervention where we persuade the D.A. not to file formal charges. If you have been charged in San Jose, CA, call us at 408-622-0204 for a free consultation.