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Sex Crimes

Sex Crimes

Sex Crimes are prosecuted extremely aggressively in California.  These crimes typically carry significant lengths of custody.  But perhaps more devastating than custody time, sex crimes in California often will subject a convicted person to a lifetime registration requirement under Penal Code section 290.

Below is a list of commonly seen sex crimes in Orange County:

  • Penal Code section 314 – indecent exposure
  • Penal Code section 647(b) – prostitution or solicitation of prostitution
  • Penal Code section 243.4 – sexual battery
  • Penal Code section 261 – rape
  • Penal Code section 288 – child molestation

Given the job and/or school environments today, a lifetime registration requirement as a sex offender is absolutely devastating. Imagine if you are trying to compete in this world, and everyone -including bosses and clients- can see that you are a convicted sex offender; this will obviously cause a significant reduction in all of your occupations/educational opportunities.

As such, if you are facing charges for a sex crime, please seek help!  Call us immediately so we can help you.  This is a decision that will absolutely change your life!

Penal Code section 314 – Indecent Exposure

Under California Penal Code section 314, certain conduct is deemed indecent exposure which is classified as a misdemeanor. Such activity includes exposing your private parts in a public place when other people are present, or assisting/counseling someone else to expose themselves in a similar fashion in public. Subsequent such convictions will be deemed felonies.

Examples: (1) A woman exposing her breasts in a crowded restaurant for the purpose of trying to arouse nearby customers; (2) A man exposing his genitals on a street corner when people are present in cars or on the street for the purpose of drawing attention to his genitals; (3) A man exposing his genitals to women who walk by him in a public park for the purpose of offending the women. (Note, this is not an exhaustive list and thus many other types of conduct may be considered indecent exposure under California Penal Code section 314.

Requirements for Conviction

To be convicted under California Penal Code section 314, the prosecution must prove two elements, beyond a reasonable doubt, as proof of only one element, or only part of the element(s) will not be enough for such conviction. The two elements are as follows:

1.  The defendant willfully exposed (his/her) genitals in the presence of another person or persons who might be offended or annoyed by the defendant’s actions; AND

2.  When the defendant exposed (himself/herself), (he/she) acted lewdly by intending to direct public attention to (his/her) genitals for the purpose of sexually arousing or gratifying (himself/herself) or another person, or sexually offending another person.

This is where attorney Thomas Wang can help – he can fight to get the charges against you dismissed and/or fight to obtain a not-guilty verdict, by defending you against the prosecution’s claims.

Specific Intent to Expose One’s Genitals

Inclusion of the term “willfully” in element number one, above, is important. This means that the prosecution must prove, beyond a reasonable doubt, that the defendant willfully, i.e., on purpose and not by accident, exposed his/her genitals. The defendant need not intend to break the law, hurt someone else, or gain any advantages. Indecent exposure is a “specific intent” crime, which means that if the defendant did not have the specific intent to expose his/her genitals, then he/she cannot be convicted of indecent exposure. The person’s conduct must be lewd, i.e., sexually motivated. Indeed, in one case, a defendant was found not to have committed indecent exposure when he engaged in “mooning” because there was no evidence that he intended to expose his buttocks lewdly, i.e., for a sexual purpose.

Examples (non-exhaustive list):

1.  Jennifer was riding a float in the city’s annual parade, and her shirt was accidentally caught in the railing behind her on the float, which caused the shirt to lift up, exposing her breasts. Because Jennifer’s decision to ride the float is not conduct that would typically lead to exposure of her breasts, such exposure in this case was an accident and Jennifer would not be convicted of indecent exposure because the prosecution would not be able to prove both elements; in this case, the element that the exposure was willfully done and for a sexual purpose.

2.  A woman exposed her breasts in a crowded restaurant for the purpose of trying to arouse nearby customers. This woman can be convicted of indecent exposure if the prosecution proves both elements beyond a reasonable doubt.

3.  A man exposing his genitals on a street corner when people are present in cars or on the street for the purpose of drawing attention to his genitals. This man can be convicted of indecent exposure if the prosecution proves both elements beyond a reasonable doubt.

4.  A man exposing his genitals to women who walk by him in a public park for the purpose of offending the women.  This man can be convicted of indecent exposure if the prosecution proves both elements beyond a reasonable doubt.

Penalties for Indecent Exposure Conviction

Conviction of a misdemeanor indecent exposure under California Penal Code section 314 “is punishable by imprisonment in the state prison, or in the county jail not exceeding one year” and may require you to pay fines as well. If the indecent exposure occurred inside of an inhabited home/building, the criminal charge may be considered either a misdemeanor or felony, punishable by imprisonment in state prison or county jail for up to one year. Subsequent convictions will be considered felonies and are thus punishable by imprisonment in state prison as well as fines.

Conviction for indecent exposure may also subject you to having to register as a sex offender on the state’s Sex Offender Registry, which is available to the public and which can severely limit your ability to choose where you live, your ability to obtain a job, etc.

Legal Defenses to Indecent Exposure

If you are charged with indecent exposure, it is imperative that you have a skilled criminal defense attorney on your side. This attorney can fight the criminal charges and provide relevant defenses that could prevent you from being convicted. The sooner you obtain an attorney to represent you, the better positioned you (and your attorney) will be to defend the criminal charges. In addition to providing evidence to show that the prosecution did not meet their burden of proof (i.e., beyond a reasonable doubt) on every required element, Attorneys at the Law Office of Thomas Wang can put forth various defenses that may be available, such as insufficient evidence, wrongfully accused, etc., as well as show deficiencies in the prosecution’s case; deficiencies that could lead to a “not guilty” verdict.

Penal Code section 647(b) – Prostitution & Solicitation

California Penal Code section 647(b) makes it illegal for an adult aged 18 or older to solicit, engage in, agree to engage in, or engage in any act of prostitution with the intent to receive payment of money or anything of value from another person. This means that not only can the person who is prostituting herself/himself be convicted under this statute, but so can a prostitute’s customers (aka, “Johns”) and pimps.

Pursuant to this statute, a person “agrees to engage in an act of prostitution” when they act with the specific intent to engage, and he/she manifests an acceptance of an offer/solicitation “by another person to so engage.”

A person will not be in violation of California Penal Code section 647(b) unless, in addition manifesting an acceptance of an offer/solicitation to engage in an act of prostitution, the defendant also commits some act in furtherance of the act of prostitution – there must be more than just mere acceptance of the offer for/of prostitution.

Requirements for Conviction

To be convicted under California Penal Code section 647(b), the prosecution must prove, beyond a reasonable doubt, both of the following:

1.  the defendant willfully engaged in sexual intercourse or a lewd act with someone else;

2.  in exchange for money or other compensation.

A lewd act is touching the genitals, buttocks, or female breast of either the prostitute or customer with some part of the other person’s body for the purpose of sexual arousal or gratification of either person.  Willfully is when someone commits an act willingly or on purpose.

Penalties for Conviction of Prostitution Under This Statute

A defendant convicted of violating California Penal Code section 647(b) may have his/her driving privilege suspended for up to 30 days, or restricted for up to 6 months, if such violation occurred within 1,000 feet of a private residence and with use of a vehicle. In addition, said defendant may also be assessed a fine of up to $70.00.

Further, pursuant to California Penal Code section 647f, if a defendant was previously convicted of a violation under California Penal Code section 647(b), or any other offense listed in section 1202.1, where a blood test was administered which showed that the defendant tested positive for HIV/AIDS and defendant had knowledge of the test result, such previous charges shall be charged in the current accusatory pleading and if such test results were found to be true, then the defendant is guilty of a felony instead of a misdemeanor.

Additionally, if a defendant is convicted under California Penal Code section 647(b), and the person who was solicited was a minor, and the defendant knew or should have known that the solicited person was a minor, the defendant may be imprisoned in county jail for a minimum of 2 days and up to one year, by a fine up to $10,000, or both the imprisonment and the fine, and may also be fined up to $25,000 under another statute.

Legal Defenses

Under California law, prostitution and solicitation are generally considered misdemeanors, unless there are additional circumstances which make the crime a felony (discussed above). Regardless, a conviction for a misdemeanor can still be harmful to your livelihood just like a felony conviction can, as such convictions may appear on your criminal background check done by any potential employers. If you have been charged with prostitution and/or solicitation, it is important that you have a criminal defense attorney on your side who can advocate on your behalf to negotiate a plea bargain, get the charges dismissed, or obtain a not-guilty verdict. Having competent counsel may significantly impact your entire future. Attorney Thomas Wang has extensive experience defending people from a plethora of criminal charges, and he may be available to assist you in the same way by utilizing defenses such as entrapment, insufficient evidence, false accusation, or in any number of other ways that would poke holes in the prosecution’s case.

Penal Code section 261 – Rape

California Penal Code section 261 defines “rape” as an “act of sexual intercourse accomplished with a person not the spouse of the perpetrator” under any of the various circumstances listed in the statute, including but not limited to when a person is incapable of giving legal consent (e.g., from a mental disorder or developmental or physical disability) when the perpetrator knew/reasonably should have known about this incapability, when the sexual intercourse is accomplished against a person’s will (via force, violence, duress, etc.), when a person is unable to resist due to being under any intoxicating/anesthetic/controlled substance (when the perpetrator knew/reasonably should have known about the intoxication), when the person is unconscious/asleep, among other circumstances. As you can see, a person may be guilty of rape, even when the sexual intercourse was not accomplished via force/violence, but also in situations where the victim cannot resist the sexual intercourse due to any number of reasons. Spousal rape is defined under California Penal Code section 262 and has similar elements to those in section 261 for rape of someone who is not the defendant’s spouse.

Requirements for Conviction

To be convicted of rape, the prosecution must prove all the following elements beyond a reasonable doubt:

1.  The defendant had sexual intercourse with a woman;

2.  He and the woman were (not married/married) to each other at the time of the intercourse;

3.  The woman did not consent to the intercourse; and

4.  Additional elements depending on the type of rape, as follows:

1.  For Rape/Spousal Rape by Force, Fear, or Threats: That the defendant accomplished the intercourse by:

1.  force, violence, duress, menace, or fear of immediate and unlawful bodily injury to the woman or to someone else;

2.  threatening to retaliate in the future against the woman or someone else when there was a reasonable possibility that the defendant would carry out the threat. A threat to retaliate is a threat to kidnap, falsely imprison, or inflict extreme pain, serious bodily injury, or death; and/or

3.  threatening to use the authority of a public office to incarcerate, arrest, or deport someone. A public official is a person employed by federal, state, or local government who has authority to incarcerate, arrest, or deport. The woman must have reasonably believed that the defendant was a public official even if he was not.

2.  For Rape of Intoxicated Woman or Spouse:

1.  The effect of (a/an) (intoxicating/anesthetic/controlled) substance prevented the woman from resisting; AND

2.  The defendant knew or reasonably should have known that the effect of (a/an) (intoxicating/anesthetic/controlled) substance prevented the woman from resisting.

3.  For Rape of Unconscious Woman/Spouse:

1.  The woman was unable to resist because she was unconscious of the nature of the act; and

2.  The defendant knew that the woman was unable to resist because she was unconscious of the nature of the act.

4.  For Rape of a Disabled Woman:

1.  The woman had a (mental disorder/developmental or physical disability) that prevented her from legally consenting; and

2.  The defendant knew or reasonably should have known that the woman had a (mental disorder/developmental or physical disability) that prevented her from legally consenting.

5.  For Rape by Fraud:

1.  The woman submitted to the intercourse because she believed the defendant was someone she knew, other than the defendant; and

2.  The defendant tricked her, lied to her, [used an artifice or pretense,] or concealed information from her, intending to make her believe he was someone she knew, while intending to hide his own identity.

Sexual intercourse means any penetration, no matter how slight, of the vagina or genitalia by the penis. Ejaculation is not required.

To consent, a woman must act freely and voluntarily and know the nature of the act.
A person is prevented from resisting if he/she is so intoxicated that he/she cannot give legal consent. In order to give legal consent, a person must be able to exercise reasonable judgment. In other words, the person must be able to understand and weigh the physical nature of the act, its moral character, and probable consequences. Legal consent is consent given freely and voluntarily by someone who knows the nature of the act involved.

A woman is unconscious of the nature of the act if she is (unconscious or asleep/ [or] not aware that the act is occurring/ [or] not aware of the essential characteristics of the act because the perpetrator tricked, lied to, or concealed information from her/ [or] not aware of the essential characteristics of the act because the perpetrator fraudulently represented that the sexual penetration served a professional purpose when it served no professional purpose).

A woman is prevented from legally consenting if she is unable to understand the act, its nature, and possible consequences.

Penalties for Conviction for Rape

Conviction for rape/spousal rape is punishable by imprisonment in the state prison for 3-8 years, a $70.00 fine, or both the imprisonment and the fine. Additionally, if the rape victim is a minor, the prison sentence will be extended further (e.g., up to 13 years if the victim was under 14; up to 11 years if the victim was between 14-17; etc.), among other potential penalties that include even more prison time.

Conviction for rape also may subject you to having to register as a sex offender on the state’s Sex Offender Registry, which is available to the public and which can severely limit your ability to choose where you live, your ability to obtain a job, etc.

Legal Defenses to Rape

A defendant is not guilty of Rape/Spousal Rape by Force, Fear, or Threats if he actually and reasonably believed that the woman consented to the intercourse, and actually and reasonably believed that she consented throughout the act of intercourse.

For rape of an Intoxicated Woman/Spouse, a defendant is not guilty of this crime if he actually and reasonably believed that the woman was capable of consenting to sexual intercourse, even if that belief was wrong.

There may be other defenses available as well, including but not limited to being wrongfully accused, alleged victim actually consented, the prosecution failed to prove all of the necessary elements beyond a reasonable doubt, etc. Having experienced defense counsel on your side can significantly affect whether or not you are convicted of rape, and/or what sentence/penalty is imposed on you.

Penal Code section 261.5 – Statutory Rape

California Penal Code section 261.5 makes it illegal to have sexual intercourse with a minor, i.e., a person under the age of 18, unless that person is your spouse. This crime is commonly referred to as “Statutory Rape” and the sexual intercourse does not have to be by force/fear/threats as with other types of rape, as the act will be deemed “unlawful sexual intercourse” because it was done with someone who is under the age of 18, as the law deems these persons unable to give legal consent due to their young age.

The age of the minor, as well as the age difference between the perpetrator and the minor, determines whether the crime will be deemed a misdemeanor or a felony.

Requirements for Conviction of Statutory Rape/Unlawful Sexual Intercourse with a Minor

To be convicted of unlawful sexual intercourse with a minor, aka, statutory rape, the prosecution must prove all the following elements beyond a reasonable doubt:

1.  The defendant had sexual intercourse with another person;

2.  The defendant and the other person were not married to each other at the time of the intercourse; and

3.  Additional elements depending on the type of rape, as follows:

1.  When the defendant is 21 or older:

1.  The defendant was at least 21 years old at the time of the intercourse; and

2.  The other person was under the age of 16 years at the time of the intercourse.

2.  When the minor is more than three years younger than the defendant:

1.  At the time of the intercourse, the other person was under the age of 18 and more than three years younger than the defendant.

3.  When the minor is within three years of defendant’s age:

1.  At the time of the intercourse, the other person was under the age of 18 but not more than three years (younger/older) than the defendant.

Sexual intercourse means any penetration, no matter how slight, of the vagina or genitalia by the penis. Ejaculation is not required.

Penalties for Conviction for Statutory Rape/Unlawful Sexual Intercourse with a Minor

As mentioned above, the age of the minor, as well as the age difference between the perpetrator and the minor, determines whether the crime will be considered a misdemeanor or a felony. Penalties can include imprisonment of up to four (4) years depending on the age of the minor and the perpetrator (the younger the minor, and the larger the age difference between the minor and the perpetrator, the longer the imprisonment sentence). Additionally, conviction under this statute can require a defendant to pay civil penalties up to $25,000.

Conviction for statutory rape may also subject you to having to register as a sex offender on the state’s Sex Offender Registry, which is available to the public and which can severely limit your ability to choose where you live, your ability to obtain a job, etc.

Legal Defenses to Statutory Rape/Unlawful Sexual Intercourse with a Minor

It is not a defense that the other person may have consented to the intercourse. However, a defendant is not guilty of this crime if (he/she) reasonably and actually believed that the other person was age 18 or older.

There may be other defenses available as well, including but not limited to being wrongfully accused, the prosecution failed to prove all of the necessary elements beyond a reasonable doubt, etc. Having experienced defense counsel on your side can significantly affect whether or not you are convicted of statutory rape, and/or what sentence/penalty is imposed on you.

Penal Code section 243.4 – Sexual Battery

California Penal Code section 243.4 defines sexual battery as touching an intimate part of another person against their will/without their consent when such touching is for the purpose of sexual arousal, sexual gratification, or sexual abuse.

Requirements for Conviction of Sexual Battery

To be convicted of sexual battery, the prosecution must prove all the following elements beyond a reasonable doubt:

1.  The defendant [or an accomplice] unlawfully restrained the victim;

2.  While the victim was restrained, the defendant (a) touched an intimate part of the victim; (b) caused the victim to touch his/her own intimate parts; or (c) caused the victim to touch the intimate parts of defendant or someone else;

3.  The touching was done against the victim’s will; and

4.  The touching was done for the specific purpose of sexual arousal, sexual gratification, or sexual abuse.

Someone is unlawfully restrained when his or her liberty is controlled by words, acts, or authority of another and the restraint is against his or her will. Unlawful restraint requires more than just the physical force necessary to accomplish the sexual touching.

An intimate part is a female’s breast or the anus, groin, sexual organ or buttocks of anyone.

Contact must have been made with the victim’s bare skin. This means that the defendant must have touched the bare skin of the victim’s intimate part, or, the victim’s bare skin must have touched the defendant’s/another person’s intimate part either directly or through (his/her) clothing.

A touching is done against a person’s will if that person does not consent to it. To consent, a person must act freely and voluntarily and know the nature of the touching.

Penalties for Conviction of Sexual Battery

Penalties can include imprisonment of up to 4 years and a fine of up to $10,000, where the length of imprisonment and the amount of the fine vary depending on certain underlying circumstances, which are further delineated in California Penal Code section 243.4.

Legal Defenses to Sexual Battery

The defendant is not guilty of sexual battery if (he/she) actually and reasonably, even if mistakenly, believed that the other person consented to the touching and actually and reasonably believed that (he/she) consented throughout the act of touching.

There may be other defenses available as well, including but not limited to being wrongfully accused, the prosecution failed to prove all of the necessary elements beyond a reasonable doubt, etc. Having experienced defense counsel on your side can significantly affect whether or not you are convicted of sexual battery, and/or what sentence/penalty is imposed on you.

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