Understanding California Penal Code Sections 288.3 and 288.4

California has strict and rigorously enforced laws aimed at protecting minors from exploitation, particularly in the context of sexual offenses. Two critical provisions in this area are Penal Code section 288.3 and Penal Code section 288.4, both dealing with attempts to engage in sexual conduct with minors via communication means. These statutes are often charged alongside other offenses, such as lewd acts with a child or possession of child pornography. However, they stand on their own as serious felonies. This essay explores these two statutes, common defenses, a typical factual scenario, and how psychological counseling and testing may affect legal outcomes.

PC 288.3 criminalizes the act of contacting or communicating with a minor (or a person the perpetrator believes is a minor) with the intent to commit certain crimes. These target crimes include but are not limited to lewd acts with a minor (PC 288), sexual penetration (PC 289), or kidnapping (PC 207).

To secure a conviction under PC 288.3, the prosecution must prove:

1. The defendant contacted or communicated with a person who is, or who they believed to be, under 18 years old.
2. The contact was made with the intent to commit one of the qualifying offenses listed in the statute.

It is important to note that actual physical contact or the commission of the intended crime is not required for conviction—mere communication with the requisite intent suffices.

PC 288.4 builds on 288.3 by penalizing the act of attempting to arrange a meeting with a minor for lewd purposes, often after initial communications have taken place. The law punishes not only the attempt to meet but also the preparatory steps involved, such as traveling to a location with the intent to engage in sexual conduct with a minor.

A conviction under PC 288.4 requires proof that:

1. The defendant arranged a meeting with someone they knew or believed to be under 18.
2. The meeting was arranged with the intent to engage in lewd or lascivious behavior.

II. Potential Defenses

Defendants charged under PC 288.3 or 288.4 may raise a variety of defenses, depending on the specifics of the case:

• 1. Lack of Intent: A critical element in both statutes is the intent to commit a specified offense. If the defense can show that the defendant had no intention of engaging in sexual conduct or was simply engaged in non-criminal communication, the charges may not hold.
• 2. Entrapment: In many cases, law enforcement agencies use undercover officers posing as minors. If the defense can show that the defendant was induced or coerced into committing a crime they otherwise would not have committed, an entrapment defense may apply.
• 3. Mistake of Age: While generally not a full defense to these crimes, it may be relevant if the person contacted was actually an adult posing as a minor and there is evidence the defendant did not believe the person was underage.
• 4. Lack of Evidence: Digital evidence such as chat logs, emails, or texts is often central to these cases. If the evidence is incomplete, tampered with, or improperly obtained (e.g., via an illegal search), the defense may file motions to suppress key elements.

III. Typical Factual Scenario

A common scenario involves a defendant engaging in an online chatroom or social media platform. They strike up a conversation with someone they believe to be a 14-year-old. Over time, the conversation turns sexual. Eventually, the defendant arranges to meet the "minor" in person at a local park. Upon arriving, the defendant is arrested by undercover officers who had been posing as the child throughout the communication.

In such a case, prosecutors may charge the defendant with both PC 288.3 for the communication and PC 288.4 for the arranged meeting. Depending on the specific communications and whether any sexually explicit materials were shared, additional charges such as attempted lewd acts with a minor (PC 288(a)) or distribution of harmful matter (PC 313.1) may also be filed.

IV. Sentencing and Penalties

Both PC 288.3 and PC 288.4 are wobblers—they can be charged as misdemeanors or felonies, depending on the defendant’s criminal history and the circumstances of the offense. However, they are most commonly filed as felonies due to the serious nature of the charges.

Felony Penalties May Include:

• 2, 3, or 4 years in state prison for PC 288.3. -1,2,or3yearsforPC288.4.
• A lifetime requirement to register as a sex offender under California Penal Code 290.
• Fines up to $10,000.
• Probation, typically with stringent conditions including GPS monitoring, internet usage restrictions, and mandatory therapy.

V. Impact of Psychological Counseling and Testing

In many cases, particularly involving first-time offenders or where no actual minor was harmed, courts may take rehabilitative efforts into account during sentencing. Psychological evaluation and counseling can play a pivotal role in mitigating consequences.

1. Psychological Evaluation:
   • A comprehensive forensic psychological evaluation may help assess the defendant’s risk
   • of reoffending.
   • Courts may use this information to determine whether the defendant is amenable to
   • treatment or poses an ongoing threat to society.
2. Voluntary Counseling:
   • Demonstrating a commitment to therapy—even before a plea or sentencing—is often
   • viewed favorably by the court.
   • Participation in a Certified Sex Offender Management Program (SOMP) or private
   • therapy may indicate remorse and willingness to change.
3. Sentencing Alternatives:
   • In some cases, particularly where incarceration would be detrimental to rehabilitation,
   • judges may sentence the defendant to probation with mandatory treatment as an alternative to prison.
   • Diversion is generally not available for these charges due to their sexual nature, but probation is more likely with supportive psychological evaluations.
4. Reduction or Dismissal of Charges:
   • A strong psychological defense may support a motion to reduce a felony to a
   • misdemeanor or to strike a sex offender registration requirement, especially under People v. Superior Court (Romero) authority, which allows judges discretion in certain sentencing matters.

California Penal Code sections 288.3 and 288.4 represent serious offenses that aim to prevent the exploitation of minors through modern communication channels. Although these laws are strictly enforced, they also acknowledge the value of individualized sentencing in appropriate cases. With the right combination of legal strategy and rehabilitative effort, such as psychological counseling and testing, defendants may achieve more favorable outcomes. These include reduced sentences, alternatives to incarceration, or a structured path toward rehabilitation, rather than simply punitive measures. Ultimately, courts are increasingly willing to balance public safety with restorative approaches when circumstances warrant. If you or a loved one face these or similar charges, call experienced Orange County defense attorney William Weinberg at (949)474-8008 to discuss your matter in a confidential manner. We have achieved some of the very best outcomes for our clients and stand ready to help you.