Penal Code section 647.6 | Annoying or molesting a child under 18 in California
The Penal Code § 647.6 PC prohibits the disturbance or harassment of a minor or an adult who appears to be under 18 and can result in criminal charges. The law does not require actual physical contact with the victim for a conviction. This section of the Penal Code is flexible, and the prosecutor can choose to charge it as a misdemeanor or a felony.
The terms "annoy" and "molest" have the same meaning under as contemplated under Penal Code section 647.6. Both terms are referring to being motivated by a sexual interest in a child or in children in general, and which is likely to annoy, irritate, or be witnessed by a child or children.
In contrast to Penal Code section 288 PC, which requires indecent conduct with a minor, Penal Code 647.6 does not need any touching at all. Words alone may be enough to irritate or molest a child.
The consequences for violating this law depends on whether conviction is for misdemeanor or felony. Prior conviction also affects the penalties upon conviction under this section. In the absence of any aggravating factors, the first offense under Penal Code 647.6 PC is considered a misdemeanor, which can result in a maximum penalty of one year in county jail, and/or a fine not exceeding $5,000.
If the violation of PC 647.6 occurs after entering a dwelling without permission, it becomes a "wobbler" offense. In such cases, the prosecutor has the discretion to charge it as either a misdemeanor or a felony. When charged as a misdemeanor, a wobbler offense under PC 647.6 carries the same fine and/or county jail sentence as stated above.
If prosecuted as a felony, a conviction could result in a maximum sentence of one year in the California state prison. If you have a previous felony conviction for violating PC 647.6, any subsequent violation is considered a felony offense. Subsequent convictions of annoying or molesting a child carry a maximum penalty of one year in the California state prison.
However, even for a first-time offense, violation of Penal Code 647.6 is a felony if you have a prior conviction for specific sex offenses. These offenses (prior conviction) may include (but are not limited to):
- Penal Code 261, which refers to rape of a minor under 16;
- Penal Code 288.5, which refers to continuous sexual abuse of a child; and
- Penal Code 288, which refers to lewd acts with a child.
If you have a previous felony conviction for any of these offenses, violating Penal Code 647.6 could result in a sentence of two, four, or six years in state prison.
To defend against charges of annoying or molesting a child, there are several legal defenses available, which may include:
- Arguing that the accuser was mistaken or lying about the alleged conduct;
- Claiming that someone else manipulated or coerced the child into making false allegations;
- Arguing that the conduct was not likely to disturb or irritate a child;
- Arguing that the conduct was not motivated by sexual interest.
Unfortunately, false accusations of annoying or molesting a child are not uncommon, and they can have serious consequences for the accused, such as damaging their relationships, career, and overall reputation. False allegations can arise from a misplaced desire to protect a child or from ulterior motives, such as in the context of a divorce or other dispute.
“Annoying or Molesting a Child” Explained
The crime penalized under PC 647.5 is committed when the following elements are present:
1. The accused's behavior was targeted towards a minor
2. A reasonable individual would have been unsettled, annoyed, offended, or harmed by such conduct.
3. Furthermore, the accused's actions were driven by an abnormal or unnatural sexual attraction towards the minor,
4. The victim was below the age of 18 years during the occurrence.
[CALCRIM No. 1122 of Judicial Council of California Criminal Jury Instructions (2022 edition)]
“abnormal or unnatural sexual attraction towards the minor”
PC 647.6 is characterized by “general intent crime.” This indicates that it is not necessary for you to have the intention of engaging in lewd or obscene conduct. Your behavior that you perceive as affectionate may be against the law if it can easily irritate an average person. [In re R.C. (2011) 196 Cal.App.4th 741]
Even if no child was bothered by it, engaging in behavior that would disturb an ordinary person and infringe on a child's privacy and safety constitutes a violation of PC 647.6. [People v. Brandao (2012) 203 Cal.App.4th 436, 137 Cal.Rptr.3d 672]. The use of words by itself can be considered as annoyance or molestation. [People v. La Fontaine (1978) 79 Cal.App.3d 176]
“driven by an abnormal or unnatural sexual attraction towards the minor”
Only criminals motivated by an unnatural or abnormal sexual interest or intent in a child or children are subject to Penal Code 647.6 PC. It is not necessary that you intend to seduce a child.
If the act is not motivated by sexual desire, it does not violate Criminal Code 647.6. Therefore, action that is simply inadvertently viewed or heard by a child does not violate this statute. [People v. Phillips (2010) 188 Cal.App.4th 1383]
In proving intent in the commission of the offense, previous activities against a child with whom you had a prior relationship with and circumstantial evidence relating to behavior complained of are taken into consideration.
Proving the intention to annoy or molest a child can be challenging on the part of the prosecution. This often results in a weakness in their case, which a defense attorney can take advantage of.
Challenging PC 647.6 charges
There are a number of legal defenses which may be raised in challenging PC 647.6 charges. However, what applies will depend on the unique set of facts of each case. Few of the more common defenses are discussed below.
1. False Accusations
Conviction under this section more often than not heavily rely on the testimonies of the victims. Therefore, putting their credibility in question can help weaken the prosecution’s case. This is especially true when the defendant can show an underlying motivation and/or ill-will towards him. In such cases, reasonable doubt may exists. Thus could lead to the dismissal of the case.
2. the act complained of was not motivated by sexual interest
Motivation is a state of mind which can only be proven by circumstantial evidence, as opposed to concrete pieces of evidence. In the act, is in fact, innocent by nature such that it can be shown that it was committed for some other legal reason, then the crime under PC 647.6 could not have been committed.
Consequences of Penal Code 647.6 Conviction
Offense under PC 647.6 can be charged either as misdemeanor or felony. It is deemed a “wobbler” offense if the act of annoying or molesting a child was done after entering a residence, trailer coach or inhabited building without consent.
If convicted of misdemeanor charge, potential penalties include maximum of one year to be served in county jail and/or payment of $5,000 fine.
On the other hand, if convicted for a felony charge, harsher penalties are to be imposed, i.e., 16 months, 2 years or 3 years in the California state prison.
Penalties imposed shall increase if the defendant has previously been convicted of certain sec crimes such as child pornography and rape of a minor. In such case, state imprisonment for two, four, or six years shall be imposed.
Probation, however, may be granted instead of spending time in prison or county jail. This is basically determined by whether the court considers you as a threat to children. The judge will also evaluate the circumstances of the offense and if you have a criminal history.
Sex offender registration for “Annoying or Molesting a Child” Conviction
In addition to imprisonment and payment of fine, persons convicted of PC 647.6 will be mandated to register as a sex offender annually. This also means that the information pertaining to the defendant and that fact that he had committed a sex crime will be publicly displayed in the Megan’s Law website. However, in the light of the most recent version of Sex Offender Registration Act, registration will only be for limited number of years.
First time conviction for violation of PC 647.6 entails registration as sex offender for a minimum period of ten (10) years. If committed twice, the offender becomes a Tier II offender raising the minimum period of registration to twenty (20) years. After complying with the minimum period of registration, assuming no other conviction tolls this period, the defendant will become eligible to have his duty to register terminated. Consequently, information pertaining to his conviction will also be removed from the Megan’s Law website.[Penal Code 290]
If you choose to hire a lawyer who is not adequately focused on this area of the law, or who is otherwise unqualified to represent you, these concerns can be complicated and result in unfavorable outcomes. Our firm has decades of experience successfully defending clients in cases that are identical to or similar to yours in the law. The earlier you contact us for your appointment with one of our attorneys, the more you'll be able to prevent the challenges and issues that could occur from choosing a lawyer at the last minute, right before your hearing, or when the deadline is approaching.