Arranging a Meeting with a Minor

California Penal Code 288.4

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, a 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.

2884 PC states that:

“(a) (1) Every person who, motivated by an unnatural or abnormal sexual interest in children, arranges a meeting with a minor or a person he or she believes to be a minor for the purpose of exposing his or her genitals or pubic or rectal area, having the child expose his or her genitals or pubic or rectal area, or engaging in lewd or lascivious behavior, shall be punished by a fine not exceeding five thousand dollars ($5,000), by imprisonment in a county jail not exceeding one year, or by both the fine and imprisonment.

(2) Every person who violates this subdivision after a prior conviction for an offense listed in subdivision (c) of Section 290 shall be punished by imprisonment in the state prison.

(b) Every person described in paragraph (1) of subdivision (a) who goes to the arranged meeting place at or about the arranged time, shall be punished by imprisonment in the state prison for two, three, or four years.

(c) Nothing in this section shall preclude or prohibit prosecution under any other provision of law.”

As can be gleaned from the foregoing provision, the act of arranging a meeting is punishable if it is coupled with any of the following purposes:

1. The defendant exposing his/her genitals or pubic or rectal area;
2. The defendant having the minor expose his/her genitals or pubic or rectal area; and/or
3. Engaging in the kind of “lewd and lascivious” acts outlawed by Penal Code 288 PC, California’s “lewd acts with a minor” law—that is, touching the child anywhere on his/her body for the purpose of sexual arousal.

It should be emphasized that in Penal Code 288.4, the mere act of arranging a meeting with a minor for lewd purposes is punishable even if no actual meeting occurred. In fact, the act of actually going to the place of meeting is punished more severely in a separate subdivision under this penal code.

Penalties

Arranging a meeting with a minor for lewd purposes if punished as a misdemeanor carries a penalty of up to one (1) year in county jail and a fine of up to five thousand dollars ($5,000).

The offense is punished as a felony if the defendant has a prior conviction that requires him/her to register as a sex offender in California or The defendant actually attends the meeting with the minor.

When punished as a felony, penalties will include between sixteen (16) months and four (4) years in California state prison, and/or a fine of up to ten thousand dollars ($10,000).

However, whether convicted as misdemeanor or felony, persons convicted of the offense will be required to register as a sex offender. The distinction lies in the Tier classification. Such that if convicted as a misdemeanor, the offender is classified as Tier one with a minimum sex offender registration requirement of at least 10 years. Whereas, if convicted as a felony, the offender is classified as Tier three subject to lifetime registration as a sex offender.

Felony penalties in cases when there is a previous sex crime conviction

Arranging to meet a minor for lewd purposes will be charged as a felony if the defendant has a previous conviction for a sex crime that requires him/her to register under California’s Sex Offender Registration Act.

For felony convictions under Penal Code 288.4, penalties imposed may be the following:

1. Felony (formal) probation;
2. Sixteen (16) months, two (2) years or three (3) years in California state prison; and/or
3. A fine of up to ten thousand dollars ($10,000).²¹

Felony penalties in cases when offender actually went to the place of meeting

Penal Code 288.4 will also be charged as a felony if the defendant is alleged to have actually shown up for the meeting with the minor.[1]

The potential felony penalties in this kind of case are:

• Felony probation;
• A fine of up to ten thousand dollars ($10,000); and/or
• Two (2), three (3) or four (4) years in state prison.

Legal defenses

The penalties for violation of offense under Penal Code 288.4 seem to be harsh considering that no actual harm to the minor was committed; the offense being preparatory in nature. In some cases, offenders are arrested after police officers pose as minors in their sting operations. Depending on the facts of your case, some of the more common legal defenses are as follows:

1. Defendant was not motivated by a sexual interest in children;
2. No intent to engage in lewd activity at the meeting;
3. The California legal defense of entrapment.

When is the crime under 288.4 committed?

For the prosecution of charges under Penal Code 288.4 to prosper, the prosecutor must prove the following “elements of the crime”:

1. The defendant arranged a meeting with a minor OR a person s/he believed to be a minor;
2. When the defendant did so, s/he was motivated by an unnatural or abnormal sexual interest in children; and
3. At that meeting, the defendant intended to expose his/her genitals, pubic or rectal area, have the minor expose his/her genitals, pubic or rectal area, OR engage in lewd or lascivious behavior.

Let’s take a look at the elements more closely.

1. A minor or a person s/he believed to be a minor

A person is a minor when he/she is younger than eighteen (18) years old. A person is considered to turn 18 on the first minute of his/her 18th birthday.[2]

It is important to note that the law does not limit itself in penalizing instances of arranging a meeting with an actual minor; but also covers arranging a meeting for lewd purposes with someone you only believe to be a minor.[3] This is especially true in cases involving undercover officers who are only pretending to be minors.

2. Motivated by an unusual or abnormal sexual interest in children

It is essential that the prosecutor must be able to prove that you arranged the meeting because you had an unusual or abnormal sexual interest in minors. This element is proven by circumstances such as that which can be gleaned from the context of your previous relationship with the minor—the content of emails, previous conversations, and phone calls, etc.

Thus, if you arranged the meeting because of another, non-sexual motivation, then you are not guilty of arranging a meeting with a minor for lewd purposes.

3. With the intent to engage in lewd conduct

The act of arranging a meeting must be done for the following purposes:

1. Expose your genitals, pubic or rectal area;
2. Have the minor expose his/her genitals, pubic or rectal area; OR
3. Engage in lewd or lascivious conduct with the minor—which means initiating any touching that is supposed to sexually arouse either person.¹³

Going to a meeting with a minor for lewd purposes

The penalties for the act of arranging a meeting with a minor for lewd purposes are enhanced if you actually attend the meeting. In such cases, the prosecutor must be able to prove all the basic elements of the crime listed above and the fact that you went to the arranged meeting place, at the arranged time.[4]

California Sex offender registration requirement

Offense under this code is a sex crime for which conviction will necessarily result to registration requirement on California’s Sex Offender Registration (Penal Code 290 PC). With the advent of SB 384 creating the Three-tiered system registration effective January 1, 2021, persons convicted of a misdemeanor will be designated as a tier-one, carrying a minimum 10-year registration requirement. After complying with the registration requirement for at least a minimum of 10 years, offender will become eligible for termination of duty to register. On the other hand, persons convicted of this offense as a felony will be designated as a tier-three, carrying a lifetime registration requirement.²⁴

The Sex Offender Registration Act requires any convicted sex offender who lives in California to register with the police of the city or county where they live. This registration has to be renewed every year, within five (5) working days of his/her birthday, and every time that s/he moves.[5]

Legal Defenses to Charges of Arranging a Meeting with a Minor for Sexual Purposes

Given that the crime punished under Penal Code 288.4 is a serious crime, it is important that you are being assisted by a competent attorney during your trial. Defenses that may be raised depends on a case-to-case basis and the allegations in the complaint. In any case, it is the prosecution who has the burden that all elements are present in order to hold you guilty beyond reasonable doubt. Absent any of those elements will necessarily result to your acquittal. Some of the more common defenses are as follows:

1. You were not motivated by a sexual interest in children

One of the essential elements to secure a conviction for arranging a meeting with a minor for sexual purposes is that you were motivated by an abnormal sexual interest in children/minors when you arranged the meeting.[6]

It could be that the prosecution cannot present evidence proving such element or that circumstances surrounding the acts complained of are far from being sexual.

In any of these instances, it can be argued that you should not be convicted under Penal Code 288.4 PC.

2. You did not intend to engage in lewd activity at the meeting

Even assuming that your act of contacting the minor was primarily motivated by a romantic or sexual interest in the minor, the prosecution will still have to prove that you arranged the meeting for purposes as stated in Penal Code 288.4 i.e. for the purpose of engaging in sexual conduct.²⁸

Thus, the circumstances of the meeting as arranged may support your argument that the meeting was not intended for lewd purposes. This can be shown by material facts such as meeting in public places in broad daylight. Or that the circumstances for which the meeting was arranged negate the possibility of engaging in lewd conduct.

3. You were a victim of entrapment

Entrapment occurs when a police officer behaves in an overbearing way, and as a result, a defendant engages in behavior s/he otherwise would not have. Entrapment is a valid defense to numerous California crimes, including California prostitution/solicitation.[7] Congress in enacting the criminal statute there at issue could not have intended to punish persons otherwise innocent who were lured into committing the proscribed conduct by governmental instigation. This focus on whether persons were "otherwise innocent" led the majority to adopt what has become known as the subjective or origin-of-intent test under which entrapment is established only if governmental instigation and inducement overstep the bounds of permissibility, and the defendant did not harbor a preexisting criminal intent.[8]

It has become a customary practice for officers to conduct sting operations wherein they pose as minors online and flirt aggressively with potential targets, who may eventually suggest or agree to a meeting. In such cases, it may be argued that you were merely a victim of entrapment.

Offenses related to PC 288.4

Crime under Penal Code 288.4 may be charged alone or together with the following related crimes:

1. Penal Code 288 lewd acts with a minor

Penal Code 288 prohibits lewd and lascivious acts with a child. This covers any touching of a child under the age of 14 for sexual purposes. Penal Code 288 is somewhat related to Penal Code 288.4, since one of the elements of Penal Code 288.4 PC is an intent to either expose the sexual parts of yourself or the minor or engage in “lewd or lascivious acts” with a minor.[9]

Thus, if you arranged a meeting with a minor and thereafter actually engage in “lewd acts” with him/her, you could be charged under both California Penal Code 288.4 and California Penal Code 288 (lewd acts with a minor).

Distinction lies between Penal Code 288 and Penal Code 288.4 in the fact that Penal Code 288 on “lewd acts with a minor” in cases when the minor is under 14 or that the minor is 14 or 15, and the defendant is at least 10 years older than him/her.

On the other hand, the crime of arranging to meet a minor for lewd purposes can be charged even if the minor is between the ages of 16 and 18, even if the defendant is less than 10 years older as long as he is an adult. Thus, we are in a strange situation wherein you can face harsher penalties for arranging and showing up in a meeting as compared to actually committing lewd acts.

Lewd acts with a child are classified as a wobbler offense, which means that it can be charged as a misdemeanor or a felony, but only in cases when the minor is 14 or 15. Otherwise, it is always charged as a felony if s/he is younger than 14.

2. Penal Code 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.

Thus, having a sexual relationship with a person under 18 years of age will make you liable under this code. In addition to that, you may also be charged with violation of Penal Code 288.4 If you arranged to meet a minor for lewd purposes. Both offenses are charged against you simultaneously.

3. Penal Code 288.2 sending harmful material to a minor

Penal Code 288.2 penalizes sending harmful material to a minor is the crime of sending explicit or “obscene” material to a minor (including via email or the internet) for the purpose of sexually arousing yourself and/or the minor, and seducing the minor.[10]

A considerable number of cases involving a violation of Penal Code 288.4 also involve allegations that the defendant shared sexually explicit material with a minor. Thus, it has become common for defendants to be charged with both crimes.

Sending harmful material to a minor is a wobbler for the first offense; it can be charged as a misdemeanor or felony. But, it shall be charged as a felony if committed for the second time and for all subsequent offenses wherein a maximum prison sentence of four (4) years shall be imposed.[11]

4. Penal Code 311 on California child pornography laws

California child pornography laws are primarily governed by Penal Code making it a crime to send, transport, duplicate, print, advertise or possess child pornography, or to hire or persuade minors to participate in making pornographic imagery.

It very likely that in the course of arranging a meeting with a minor, defendant has also committed a violation of child pornography crime. As such, you may be charged for violation of both crimes under Penal Code 288.4 and Penal Code 311.

5. Penal Code 653b loitering at a school

Penal Code 653b penalizes loitering at any school or public place at or near which children attend or normally congregate when there is no lawful purpose to do so and that there is intent to commit a crime.[12]

A violation of this statute is a misdemeanor under California law and is punishable by custody in county jail for up to six months, and/or a fine of up to $1,000

As compared to Penal Code 288.4 on arranging a meeting with a minor, Loitering at a school carries far less consequences and this can be a favorable charge reduction for arranging a meeting with a minor for lewd purposes. Moreover, aside from lighter penalties, Penal Code 653b does not result in a sex offender registration requirement.

Therefore, in some cases when circumstances favorable to you are present, you may want to discuss a plea bargain to PC 653b charges with your lawyer.

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If you have been arrested, or if a loved one has been accused of a crime in California, speak with our criminal defense lawyers as soon as possible. Request your free consultation by calling us at (626) 827-7222.

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