Penal Code 288 PC – Lewd Acts with a Minor Under 14
Probably the biggest factors that the prosecutors will look at is the age of the child and the age of the defendant at the time the lewd act allegedly happened. Obviously, the younger the child; the older the defendant, the more likely the prosecutors will seek a long prison sentence for that particular defendant. So, age is one huge factor when it comes to these lewd and lascivious acts against a child.
A Pattern of Sexual-Related Behavior Against a Minor
Also, the amount of times the defendant perpetrates a Penal Code Section 288 violation against a child is going to be another big factor that the prosecutors look at. If the child is young enough and the defendant does enough 288a acts, that can cause the case to be a 288.5 case with a pattern of behavior and the defendant could be facing a lifetime in prison under those circumstances
So obviously once you talk about a andut the amount of acts, the next thing you have to look at in these lewd and lascivious cases is the nature of the act. In other words, is it consensual or is it non-consensual? Is it violent? Is the child hurt in any way?
Is the child threatened in any way? What is the relationship between the child and the perpetrator? These are all big factors that judges and prosecutors are look at in these type of offenses and they will all be considered in how much jail time a defendant will receive.
A common related crime is arranging a meeting with a minor for lewd purposes under California Penal Code 288.4 PC.
Will Defendant Commit Another Similar Sex Crime?
Another big factor when it comes to a 288a case is, is the defendant likely to commit this type of sex crime act again? A lot of times prosecutors and judges are looking to see a Penal Code Section 288.1 report which is basically a report by a psychiatric who is assessing the dangerousness level of a particular defendant and assessing whether this defendant is going to commit another similar act?
In other words, are they going to be a recidivist and there's a static 99 test that can be performed in these cases even without interviewing the defendant, and then of course, as I mentioned there's a report that can be done by a psychiatrist who knows these type of defendants, who knows these type of cases and they can really give a good idea about whether the defendant's behavior is an aberration or whether it is something to likely happen again.
Once you weigh all these factors and you also obviously look at the defendant's criminal record, the prosecutors are then in a position to make an offer in the case and sometimes the defense can accept the offer, they can make a counter-offer or even sometimes I've had to go to the judge in the case and try to get the judge to give a better offer than what the prosecutors are offering to the defendant in a particular cases.
Once all of theses factors are made, then it's up to the criminal defense attorney to point out any weaknesses in the case. That's certainly another issue that can be looked at by the prosecutors in deciding how they're going to deal with the case.
If they've got a weak case, if there's issues in the case, if they have problems of proof, if they have an uncooperative victim, if it's the victim's word against the defendant, these are all things they will take into consideration in deciding what to resolve the case for.
Obviously, if they might lose the case, that's certainly going to be a big factor that would weigh against trying to be very severe, because then the defendant will just simply take the case to trial and try to win rather than face a double-digit serious sentence.
Sex Offender Registration
Most of these cases, the prosecutors are going to want the defendant to register as a sex offender, and in fact, if you plead to a violation of Penal Code Section 288a, you must register as a sex offender.
The only way you would get out of it is if your defense attorney could work out a resolution that did not include a plea to this particular Penal Code Section and all of the factors that were mentioned above will be taken in consideration in the prosecutors making this decision, and obviously, what your attorney can present to the prosecutors will be considered as well.
In addition to the static 99 report, the psych report pursuant to Penal Code Section 288.1, also they will look at character letters from family members and people who know the defendant and they're going to look at the surrounding circumstances of the case — what happened? Why it happened, and whether they think it's likely to happen again.