The crime of lewd and lascivious act with a child under the age of fourteen, which leads to bodily harm upon the child, is found at California Penal Code Section 288(i).
Lewd & Lascivious Meaning: As used in PC 288(i), a lewd and lascivious act means indecent or offensive sexual touching of a child, which is intended to sexually arouse the child, or sexually arouse the perpetrator.
Penal code 288(i) is complete so long as the defendant intended to arouse sexual desire of either the child or the perpetrator. It does not matter if sexual arousal is accomplished.
Bodily Harm Required: The “bodily harm” required for a charge of PC 288(i) means ‘any substantial physical injury resulting from the use of force that is more than the force necessary to commit the offense’ (PC 288(i)(3)).
Examples of bodily injury resulting from force beyond the force necessary to commit the crime includes broken bones, severe bruising, lacerations, sprained muscles, etc. Psychological harm is insufficient to charge penal code 288(i) criminal charges.
Note: The exact physical injury that is suffered by the child must be plead and proved by the district attorney before the defendant may be found guilty of PC 288(i) [PC 288(i)(2)].
PC 288(i) Penalties
Lewd and lascivious act upon a child under 14, which leads to bodily harm or injury upon the child is very serious offense. As such, PC 288(i) is considered a serious and violent offense as those terms are defined under California law at penal code sections 1192.7(c), and 667.5(c), respectively. PC 288(i)(1) is also considered a “strike” offense under California’s Three Strikes Sentencing Law.
Prison Sentence: If found guilty of PC 288(i), the defendant will face up to life in prison with the possibility of parole after fifteen (15) years. If the defendant is granted parole, that parole length may be for the remainder of the defendant’s life (See Parole Information)
Probation Sentence: If found guilty of penal code 288(i)(1), the defendant is not eligible for a probation sentence.
PC 1170(h) Sentencing: If found guilty of lewd act upon a child with injury, the defendant is not eligible for split prison sentencing (a prison sentence that is served partially out of prison on work release), or suspended prison sentence (a prison sentence that is not actually served on condition of out-of-custody terms). Also, a PC 288(i) conviction results in a prison sentence, as opposed to a county jail sentence (See PC1170(h) Sentencing).
Sex Offender Registration: If found guilty of penal code 288(i)(1), the defendant will be required to register as a sex offender with local authorities for the remainder of his or her life. PC 288(i) is a Tier 3 level under California’s new sex offender tier system.
CIMT: Lewd act on a child under 14 with injury is a crime involving moral turpitude, or CIMT. A CIMT leads both direct and indirect consequences above and beyond the penalties listed above, including immigration consequences, professional licensing consequences, military service consequences, and more.
Other Penalties: In addition to the penalties listed above, additional direct and indirect penalties for a PC 288(i) conviction include: civil lawsuits, restitution for victim’s injuries, criminal protective orders (restraining orders), court fees and fines, loss of scholarships, increased punishment for future criminal conduct, harsh parole terms, loss of firearm rights, and more.
PC 288(i) Defenses
Common defenses incorporated in PC 288(i) cases include, but are not limited to, insufficient evidence to prove injury or bodily harm to the child, insufficient evidence to prove lewd or lascivious act (sexual touching), coerced confession, illegal search and seizure, alibi defense, insanity, violation of Miranda Rights, and more.
Note: Consent to touching is not a defense in penal code 288(i) cases. This is because a child under 14 cannot legally consent to sexual conduct.
Post Conviction Relief: Post conviction relief options in PC 288(i) cases are very limited. These options include appeal the criminal conviction. Other options technically apply, but they are very unlikely to be realized for one reason or another, such as withdraw a guilty plea (unlikely to plea to a life case in the first place), or direct pardon with the Governor (unlikely grant in most cases), etc.
If you or a loved one is charged with lewd and lascivious act against a child under 14 years of age, which results in bodily harm to the child, or PC 288(i), it is important that you contact a sex crimes criminal defense lawyer without delay.
Our criminal defense attorneys have successfully handled hundreds of PC 288 cases in the Inland Empire, including San Bernardino, Redlands, Fontana, Rialto, Ontario, Riverside, Rancho Cucamonga, Victorville, and more. There is no charge for a consultation and our lawyers are available every day of the week to assist you. Call today!
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