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PC 288 Lewd act on Child | Fresno Criminal Defense Attorney

A violation of Penal Code 288 can have a lifetime of consequences.  Penal Code 290 Sex Registration, disdain within the community, and imprisonment are some of the most common.  The statute below (PC 288) is the Penal Code Statute that explains what constitutes a violation of PC 288. If you have been charged with a violation of penal code section 288 you should read the following and consider consulting an experienced attorney to help with your case.

PC 288 Lewd act on Child -- Punishment; Additional fine; "caretaker" and "Care Facilities" defined.

PC 288(a) Except as provided in subdivision (i), any person who willfully and lewd commits any lewd or lascivious act, including any of the acts constituting other crimes provided for in part 1, upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony and shall be punished by imprisonment in the state prison for three, six, or eight years.

PC 288(b)(1) Any person who commits an act described n subdivision (a) by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, is guilty of a felony and shall be punished by imprisonment in the state prison for 5, 8, or 10 years.

PC 288(c)(1) Any person who commits an act described n subdivision (a) with the intent described in that subdivision, and the victim is a child of 14 or 15 years, and that person is at least 10 years older than the child, is guilty of a public offense and shall be punished by imprisonment in the state prison for one, two, or three years, or by imprisonment in a county jail for not more than one year. In determining whether the person is at least 10 years older than the child, the difference in age shall be measured from the birth date of the person to the birth date of the child.

PC 288(b)(2) Any person who is a caretaker and commits an act described in subdivisions (a) upon a dependent person, with the intent described in subdivision (a), is guilty of a public offense and shall be punished by imprisonment in the state prison of one, two, or three years, or by imprisonment in in a county jail for not more than one year.

PC 288(d) In any arrest or prosecution under this section or Section 288.5, the peace officer, district attorney, and the court shall consider the needs of the child victim or  dependent person and shall do whatever is necessary, within existing budgetary resources, and constitutionally permissible to prevent psychological harm to the child victim or the to prevent psychological harm to the dependent person victim resulting from participation in the court process.

PC 288(e) Upon the conviction of any person for violation of subdivision (a)( or (b), the court may in addition to any other penalty or fine imposed, order the defendant to pay an additional fine not to exceed ten thousand dollars ($10,000). In setting the amount of the fine, the court shall consider any relevant factors, including, but not limited to the seriousness and gravity of the offense, the circumstances of its commission, whether the defendant derived any economic gain as a result of the crime, and the extent to which the victim suffered economic losses as a result of the crime. Every fine imposed an collected under this section shall be deposited in the victim-witness assistance fund to be available for appropriation to fund child sexual exploitation and child sexual abuse victim counseling centers and prevention programs pursuant to Section 13837.

If the court orders a fine imposed pursuant to this subdivision, the actual administrative cost of collecting that fine, not to exceed 2 percent of the total amount paid, may be paid into the general fund of the county treasury for the use and benefit of the county.

PC 288(f) For purposes of paragraph (2) of subdivision (b) and paragraph (2) of subdivision (c), the following definitions apply.

(1) Caretaker means an owner, operator, administrator, employee, independent contractor agent, or volunteer of any of the following public or private facilities when the facilities provide care for elder or dependent persons:

(A) Twenty-Four hour health facilities, as defined in sections 1250, 1250.2, and 1250.3 of the health and safety code.

(B) Clinics

(C) home health agencies.

(D) Adult day health care centers.

(E) Secondary schools that serve dependent persons and post secondary education institutions that serve dependent persons or elders.]

(F) Sheltered workshops

(G) Community care facilities, as defined by Section 1402 of the health and Safety code, and residential care facilities for the elderly, as defined in Section 1569.2 of the Health and Safety Code.

(I) Respite care facilities.

(J) Foster homes

(K) Regional centers for persons with developmental disabilities

(L) A home health agency licensed in accordance with Chapter 8 (commencing with Section 1725 of Division 2 of the health and Safety Code.

(M) An agency that supplies in home supportive services.

(N) Board and Care facilities.

(O) Any other protective or public assistance agency that provides health services or social services to elder or dependent persons, including, but not limited to, in home supportive services, as defined in Section 14005.14 of the Welfare and Institutions code.

(P) Private residences.

(2) Board and care facilities means licensed or unlicensed facilities that provide assistance with one or more of the following activities:

(A) bathing

(B) Dressing

(C) Grooming

(D) Medication dispensation

(F) Money management.

(3) Dependent person means any person who has a physical or mental impairment that substantially restricts his or her ability to carry out normal activities or to protect his or her rights, including but not limited to, persons who have physical or developmental disabilities or whose physical or mental abilities have significantly diminished because of age. "Dependent person" includes any person who is admitted as an inpatient to a 24-hours health facility, as defined in Section 1250, 1250.2 and 1250.3 of the health and safety code.

(g) Paragraph (2) of subdivision (b) and paragraph (2) of subdivision (c) apply to the owners, operators, administrators, employees, independent contractors, agents, or volunteers working at these pubic or private facilities and only to the extent that the individuals personally commit, conspire, aid, abet, or facilitate any act prohibited by paragraph (2) of subdivisions (c).

(h) Paragraph (2) of Subdivision (b) and paragraph (2) of subdivision  (c) do not apply to a caretaker who is a spouse of, or who is an equivalent domestic relationship with, the dependent person under care

(i)(1) Any person convicted of a violation of subdivision (a) shall be imprisoned in the state prison for life with the possibility of parole if the defendant personally inflicted  bodily harm upon the victim.

(2) The penalty provided in this subdivision shall only apply if the fact that the defendant personally inflicted bodily harm upon the victim is pled and proved.

(3) As used in this subdivision "bodily harm" means any substantially physical injury resulting from the use of force that is more than the force necessary to commit the offense.

PC 288 may be used as strike, super strike, 3rd strike, and falls into the category of both violent and serious felony.    A person convicted could be forced to register as a sex offender, lose their right to vote, serve on juries, or hold public office.  There are serious immigration consequences as the offense is considered a aggravated felony, moral turpitude crime, and a domestic violence crime for Immigration purposes. It is a deport able offense.  Firearm rights may also be lost for life.  A person may also be deemed a sexually violent predator if convicted of a violation of this statute.

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"Criminal defense is about helping good people, that is what I do." Jonathan Rooker

Experienced Fresno and Madera County Criminal Defense Attorney Jonathan Rooker understands the needs of each client are quite unique to each individual client. Some clients are looking to keep their drivers license, others are looking to avoid long periods of incarceration. Many times pride and principles are cited for the client's motivation to achieve a particular resolution to their case. Many clients just want to put their life, family, and career back together. It is the responsibility of the defense attorney to coordinate and effective defense for the benefit of the client. It is essential that I provide the best defense for the individual person and their specifically tailored needs in life. I will help you by building the best defense that the facts allow. One important aspect of hiring a private attorney is the time they spend listening to your needs, and working to obtain an effective resolution under the circumstances. When these problems arise, it's time to reach out for a helping hand. I handle criminal defense cases on a daily basis, helping people with their issues. Let me help you.