Arrested? Suffering from a past conviction?

Call us or Click Here to schedule your free, in-person (weekends often available).

If our operators are busy, leave a detailed voice message.

Contact Us Now!

Contacting a Minor to Commit a Felony under Penal Code 288.3

Pursuant to California Penal Code 288.3, engaging in communication or contact with an individual under the age of 18, while possessing knowledge that such individual is a minor, with the aim of perpetrating a sexual or other severe felony involving said minor, is a criminal offense.

The commission of the following serious felonies can be utilized as a basis for prosecuting an individual for "contacting a minor with intent to commit a felony": kidnapping, rape, child endangerment under Penal Code 273a, criminal sodomy under Penal Code 286 PC, lewd conduct with a child below the age of 14, forced or coerced oral copulation, oral sex with a minor, transmission of potentially harmful materials to a minor, sexual penetration by force (with a foreign object), and specific offenses related to child pornography.

Even if no illegal activities are carried out with the minor, an individual can still be found guilty of "contacting a minor with intent to commit a felony," given that Penal Code 288.3 PC represents a type of attempted crime under California criminal law, punishing individuals for merely attempting to engage in criminal conduct. [Penal Code 288.3 PC]

In the state of California, the act of contacting a minor with the intention to commit a felony is punishable by the same consequences as the actual commission of the felony. For example, if an individual contacts a minor under the age of fourteen (14) with the intention to perpetrate lewd acts on a child under Penal Code 288, they will be charged with a felony offense that carries equivalent penalties as the underlying crime. This includes the possibility of being sentenced to three (3), six (6), or eight (8) years in state prison, and/or being ordered to pay a fine of up to $10,000 (ten thousand dollars). [See Penal Code 288 PC. See also Penal Code 672 PC]

In addition, prior convictions under Penal Code 288.3 PC will result in an extra five (5) years of imprisonment for repeat offenders. [Penal Code 288.3 PC] It is important to note that being found guilty of contacting a minor with the intent to commit a felony, irrespective of the nature of the underlying offense, will require the individual to register as a sex offender in California.

In most cases, you must register as a tier three offender, which requires you to register for the rest of your life. In some cases, you must register as a tier two offender, which requires a minimum of 20 years of registration. Alternatively, you may be required to register as a tier one offender, which entails a 10-year registration requirement. [Penal Code 290 PC; Senate Bill 384]

The ramifications of a conviction for contacting a minor with the intent to commit a felony are undeniably severe, particularly when considering that in many instances, no actual harm results from the defendant's actions under Penal Code 288.3. In fact, in the vast majority of cases, the purported "minor" is an undercover police officer posing as a potential victim of sexual exploitation on the internet.

Nevertheless, there are several common legal defenses that can be used to circumvent a conviction for this offense. Firstly, it may be argued that the defendant had no intention of committing any of the underlying felonies. Secondly, it may be contended that the defendant was not aware that the individual was a minor. Lastly, the legal defense of entrapment may be invoked in California.

“Contacting a minor with intent to commit a felony” Explained

The legal interpretation of "contacting a minor with the intent to commit a felony," as defined by California Penal Code 288.3, encompasses several "elements of the crime." These factual aspects must be proven beyond reasonable doubt by a jury in a California jury trial for an individual to be found guilty of this offense.

The act of contacting a minor with the intent to commit a felony is made up of the following elements: [Judicial Council of California Criminal Jury Instruction (“CALCRIM”) 1124. See also In re Harris (1993) 5 Cal.4th 813; People v. Korwin (2019) 36 Cal.App.5th 682.]

• The individual either contacted or attempted to contact or communicate with a minor;

• At the time of the communication, the individual intended to perpetrate one of the offenses against minors listed in Penal Code 288.3 PC; and

• The individual was aware, or should have been aware, that the person they contacted was a minor.

It is crucial to examine these elements closely to gain a thorough understanding of their significance.

“Contacted or communicated with” meaning under the law

As defined by Penal Code 288.3, the term "contact or communication" encompasses various forms, including but not limited to:

• In-person interaction;

• Communication through any print medium, such as a personal or "Missed Encounters" advertisement in a newspaper or magazine;

• Communication via postal mail;

• Phone communication;

• Communication through any wired or wireless technology;

• Contact made via email or the internet.

It is worth noting that these various modes of communication fall under the definition of contact or communication, as delineated in Penal Code 288.3.

Contact or communication with a minor encompasses both direct and indirect contact and communication.

Legal definition of “Minor” under PC 288.3

According to the legal definition outlined in California Penal Code 288.3, a minor is an individual who is under the age of eighteen (18). This statute criminalizes both:

• the act of communicating with or contacting a minor, and

• the act of attempting to communicate with or contact a minor.

Notably, this law is often enforced through sting operations carried out by undercover officers who pose as minors, particularly in the online realm. Thus, in numerous instances, individuals may believe they are communicating with a minor, but are in fact interacting with an undercover officer.

Knew or reasonably should have known that s/he was a minor

In order to be found guilty under Penal Code 288.3 PC, it is necessary to establish that you either knew or should have known that the purported "victim" was under 18 years old. This implies that you cannot be convicted of this offense if, for instance, the minor explicitly stated that they were not a minor and there were no grounds for you to assume otherwise.

Underlying offenses

Contacting a minor with the intent to commit a felony is only punishable if the prosecution can prove that you intended to commit one of the offenses listed in California Penal Code 288.3.

These are the underlying offenses:

1. Kidnapping

The state of California defines kidnapping as forcibly moving another person a substantial distance against their will. However, it is important to note that kidnapping can also occur without the use of force or fear, provided that certain conditions are met. [Penal Code 207 PC]

2. Rape

In accordance with Penal Code 261 PC, rape is characterized as the act of engaging in sexual intercourse with another individual without their express consent. This lack of consent may be precipitated by a number of factors, including the use of force, violence, coercion, intimidation, or deceit, or alternatively, the incapacity of the victim to provide consent due to factors such as extreme intoxication or mental or physical incapacity. [Penal Code 261]

3. Child endangerment

Child endangerment is defined in Penal Code 273 a as causing, permitting, or inflicting unjustifiable physical pain or mental suffering on a child. [Penal Code 273a PC]

4. Illegal acts of sodomy

Penal Code 286 PC of California prohibits the commission of sodomy, which encompasses non-consensual engagement in anal intercourse or engaging in anal intercourse with an individual who is underage. [Penal Code 286 PC]

5. Lewd acts with a child under 14

Lewd acts with a child are defined in Penal Code 288 as touching a minor anywhere on their body for sexual purposes. This statute only applies to lewd acts committed with a minor under the age of fourteen (14) years. [Penal Code 288(a) PC]

6. Oral copulation

According to Penal Code 287, it is considered a criminal offense to engage in either of the following activities: coercing another individual into oral sex without their explicit consent, also referred to as "oral copulation by force or fear," or engaging in consensual oral sex with a minor. [Penal Code 287 PC]

7. Sending harmful material to a minor

In California, the law prohibiting the transmission of "harmful material with the intention of enticing a minor" criminalizes the act of sending material that is deemed "obscene" to any individual below 18 years of age, done with the purpose of inducing sexual arousal in either the sender or recipient, and with the ultimate objective of engaging in sexual conduct with the minor. [Penal Code 288.2 PC]

8. Forcible sexual penetration with a foreign object

As defined by Penal Code 289 PC, the act of forcibly penetrating an individual with a foreign object can take on two forms: the first entails the use of force, violence, coercion, fear, or threats to engage in non-consensual penetration with a foreign object, while the second pertains to consensual sexual penetration with a minor below 18 years of age. [Penal Code 289 PC]

9. Child pornography

The following California child pornography charges may be utilized to establish a criminal contact with a minor accusation under Penal Code 288.3:

  • Penal Code 311.1 and 311.2 PC make it a crime to mail, transfer, produce, possess, or duplicate child pornography with the purpose to distribute it
  • Employing, hiring, utilizing, influencing, or coercing a juvenile to assist in the creation of child pornography is a violation of Criminal Code 311.11 PC, as is possessing or managing child pornography. [Penal Code 311.1 PC]

Penalties for violating Penal Code 288.3

Engaging in communication with a minor with the intent to commit a felony will attract similar penalties as those for the underlying offense being planned, which are typically felonies. The penalties could involve formal felony probation, a hefty fine of up to $10,000, or imprisonment in a California state penitentiary. The specific sentence will be determined by the nature of the planned offense, and several examples illustrate this point.

For instance, intending to commit forcible sodomy with a minor through communication can attract imprisonment ranging from seven to thirteen years. Similarly, intending to engage in lewd acts with a child under the age of 14 or consensual oral sex with a minor may result in imprisonment ranging from sixteen months to eight years, depending on the ages of the perpetrator and victim.

It is essential to note that if an individual has previously been convicted of violating Penal Code 288.3 PC, any future violation will attract an additional and consecutive five years in state prison.

Sex offender registration requirement after PC 288.3 Conviction

Upon being convicted of communicating or contacting a minor with the intention to commit a felony, you will be mandated to comply with California's Sex Offender Registration Act (Penal Code 290 PC). Typically, you will be categorized as a tier three offender and will be required to register for life. However, in some instances, you may be categorized as a tier two offender and be required to register for a minimum of 20 years. Alternatively, if you are classified as a tier one offender, you will have to register for at least ten years.

The Sex Offender Registration Act mandates that individuals convicted of sexual offenses register with the police in the city or county where they reside. Such registration must be updated annually within five business days of your birthday and every time you relocate. [Penal Code 290 PC]

Failing to comply with these registration requirements after being convicted of a felony for PC 288.1 will result in being charged with the additional felony of "failure to register as a sex offender," which carries a potential state prison sentence of sixteen (16) months, two (2) years, or three (3) years. [Penal Code 290 PC]

Challenging Penal Code 288.3, “contacting a minor to commit a felony” charges

In 2006, California voters approved Proposition 83, also known as the "Sexual Predator Punishment and Control Act," which includes a law prohibiting the contacting or communicating with a minor with the intent to commit certain felonies. Facing charges for a sex crime can be a traumatic experience, and it is not advisable to face it alone. It is crucial to consult with an experienced and knowledgeable sex crimes defense attorney who can help you determine if you have any legal defenses available.

A. Lack of intent to Commit underlying offenses

In the event that an individual has made contact or communicated with a minor, and had a romantic or sexual interest in them, they may mistakenly believe that they have violated Penal Code 288.3. However, the prosecution must prove beyond a reasonable doubt that the individual intended to commit one of the specified sexual crimes in order to secure a conviction for contacting a minor with the intent to commit a felony. The mere presence of sexual content in the communication does not necessarily establish criminal intent. Additionally, arranging a meeting in a public location with a minor does not always indicate an intent to commit a crime.

B. Being unaware that the the person you contacted or communicated with was a minor

In cases when the minor actively misrepresented their age to the defendant which lead to the latter’s reasonable belief that the person he is in contact with is of legal age can be raised a defense in challenging PC 288.3 charges. This is especially true when the circumstances support the misrepresentation pertaining to age.

C. Entrapment as a Defense

Entrapment is a legal defense that comes into play when law enforcement officials use overbearing tactics to induce individuals to engage in behaviors they would not have otherwise. Examples of such tactics include pressure, harassment, fraud, flattery, and threats. It is not uncommon for individuals to be charged with contacting minors with the intent to commit a felony after being ensnared in internet sting operations run by undercover officers posing as minors who aggressively flirt with potential targets. If you find yourself in this situation, you may be able to use the entrapment defense to contest your criminal intent.

California Penal Code section 288.3 and its Related Offenses

Some offenses listed under the Penal Code may be similar or related to the crime of contacting a minor with the intent to commit a felony.

1. Penal Code 288.4 arranging a meeting with a minor for lewd purposes

California Penal Code 288.4 PC penalizes arranging a meeting with a minor under the age of 18 with the intent to engage in sexual conduct at the meeting. Offense under this code is a wobbler which can be charged as a misdemeanor or a felony, and carries up to 4 years in jail or prison. In addition to the penalty of imprisonment, person convicted of the offense will also be required to register as a sex offender. This offense is also known as solicitation of a minor.

Many "contacting a minor with intent to commit a felony" cases can be reduced to "arranging a meeting with a minor for lewd purposes."

Reducing PC 288.4 charge to PC 288.3 charge is favorable to the defendant because the latter crime can only be charged as a misdemeanor and carries less severe penalties. This could be a viable strategy.

2. California Penal Code section 261.5, statutory rape

Penal Code 261.5 statutory rape makes it a crime in California for anyone to engage in sexual intercourse with a minor under the age of 18. It is considered statutory rape even if the minor consented thereto i.e. he/she willingly participated, since the California law deems minors to be legally incapable of consenting to have sex. Prosecutors may charge this offense as a misdemeanor or a felony.

The fact that statutory rape is not on the list of underlying felonies that would support charges of contacting or communicating with a minor with intent to commit a felony is noteworthy.

The penalties for attempted statutory rape will be less severe than those for contacting a minor with the intent to commit a felony. The former is either a misdemeanor or a wobbler (a crime that can be charged as either a misdemeanor or a felony), depending on the circumstances.

These issues can be complex and can generate unfavorable outcomes if you hire an attorney not sufficiently focused in this area of the law, or otherwise ill-equipped to represent you. Our firm has decades of experience successfully representing people with legal matters same or similar to yours. The sooner you contact us for your consultation with one of our attorneys, the more you will avoid difficulties and problems that may arise hiring a lawyer last-minute or when it’s close to your hearing or deadline.

Get in Touch with Second Chances Law Group

Schedule Your Free Appointment with Our Award-Winning Court Attorneys
Freedom at your Fingertips
    • Please enter your name.
    • This isn't a valid phone number.
    • Please enter your email address.
      This isn't a valid email address.
    • Please make a selection.
    • Please enter a message.
  • Must be checked