Annoying or Molesting a Child Under 18

Understanding California Penal Code § 647.6

California Penal Code § 647.6 criminalizes conduct that “annoys or molests” any person under the age of 18 when motivated by an unnatural or abnormal sexual interest in children. Unlike many sex offenses requiring physical contact, PC 647.6 prosecutions can proceed based solely on verbal conduct, gestures, or other non-touching behavior that would objectively disturb a reasonable person. The statute’s broad application, combined with mandatory sex offender registration requirements, makes these charges particularly consequential for anyone accused.

The Statutory Framework and Elements

PC 647.6 establishes several distinct violations. Under subsection (a)(1), prosecutors must prove four elements beyond a reasonable doubt, as codified in California Criminal Jury Instruction CALCRIM No. 1122:

First, the defendant engaged in conduct directed at a child. Second, a normal person, without hesitation, would have been disturbed, irritated, offended, or injured by the defendant’s conduct. Third, the defendant’s conduct was motivated by an unnatural or abnormal sexual interest in the child. Fourth, the child was under 18 years of age at the time of the conduct.[libertybelllaw]

Subsection (a)(2) criminalizes similar conduct directed toward an adult whom the defendant believes to be a minor—the provision most commonly invoked in law enforcement sting operations where officers pose as underage persons online. Subsection (b) enhances the offense to a wobbler (chargeable as either a misdemeanor or felony) when the violation occurs after entering an inhabited dwelling without consent. Subsection (c) mandates felony treatment for any second or subsequent conviction, and imposes enhanced sentencing (two, four, or six years in state prison) when the defendant has specified prior sex offense convictions involving minors.

What Distinguishes PC 647.6 from Other Child Sex Offenses

The California Supreme Court’s seminal decision in People v. Lopez (1998) 19 Cal.4th 282 provides the definitive analysis distinguishing PC 647.6 from Penal Code § 288 (lewd acts upon a child). While § 288 requires a touching—even one “outwardly innocuous and inoffensive”—accompanied by intent to arouse sexual desires, § 647.6 prohibits conduct that does not require any physical contact but must be “objectively and unhesitatingly” irritating to a normal person.

The Lopez court explained that § 288’s focus is entirely subjective: “Any touching of a child under the age of 14 violates this section, even if the touching is outwardly innocuous and inoffensive, if it is accompanied by the intent to arouse or gratify the sexual desires of either the perpetrator or the victim.” A father embracing his child with secret lewd intent violates § 288, but would not violate § 647.6 if the embrace appeared innocent to any reasonable observer, because “[a]n act that would appear innocent and inoffensive to a normal observer would not, whatever its secret motivation, have a tendency in fact to disturb, vex, interfere with, inconvenience, irritate, trouble or in any manner harm another person.”

This critical distinction has profound implications: defendants cannot be convicted under PC 647.6 based solely on their undisclosed mental state. The prosecution must prove conduct that would objectively annoy or disturb a reasonable person, independent of the defendant’s subjective motivations.

The Objective Standard: What Conduct Qualifies?

California courts employ an objective test to determine whether conduct “annoys or molests” a child. As the Supreme Court explained in Lopez, “[T]o determine whether the defendant’s conduct would unhesitatingly irritate or disturb a normal person, we employ an objective test not dependent on whether the child was in fact irritated or disturbed.” This standard, first articulated in People v. Carskaddon (1957) 49 Cal.2d 423, 426, asks whether “the conduct of the accused is so lewd or obscene that the normal person would unhesitatingly be irritated by it.”

The words “annoy” and “molest” are synonymous under California law and “generally refer to conduct designed to disturb, irritate, offend, injure, or at least tend to injure, another person.” In People v. Pallares (1952) 112 Cal.App.2d Supp. 895, 901, the court elaborated that “annoy” means “to disturb or irritate, especially by continued or repeated acts,” while “molest” means “to interfere with or meddle with unwarrantably so as to injure or disturb.”

Appellate decisions illustrate the breadth of conduct meeting this objective standard. In People v. Thompson (1988) 206 Cal.App.3d 459, 461-462, 467, a defendant repeatedly drove alongside a 12-year-old girl riding her bicycle, staring at her and making hand and facial gestures (shaking his hand and pursing his lips). He followed her for an extended period, driving slowly and making U-turns to maintain contact. The court held this “behavior would place a normal person in a state of being unhesitatingly irritated, if not also fearful,” thereby satisfying PC 647.6’s conduct element despite the absence of any explicitly lewd or obscene acts.

Similarly, in In re D.G. (2012) 208 Cal.App.4th 1562, 1571, 1574, a stepfather’s repeated offers to give his 14-year-old stepdaughter money and a car in exchange for sex—though rebuffed each time and never involving physical contact—constituted conduct that “would irritate a normal child and invade her privacy and security.” The court emphasized that “[a]n actual touching is not required” and that the stepfather’s “persistent sexual interest in the stepdaughter despite repeated rebuffs would cause any reasonable person to conclude that a substantial risk existed that he would escalate from verbal to physical molestation.”

In People v. Carskaddon (1959) 170 Cal.App.2d 45, the defendant walked alongside a 17-year-old high school student and asked her “extremely lewd and obscene questions” regarding whether she had engaged in specific unnatural sexual acts. The appellate court held that words alone satisfied the statute: “While no case has been reported where the evidence ruled upon was merely spoken words, we do not believe that the statute requires a physical act as contrasted to an utterance.” The court concluded that under the circumstances, the questions “would be irritating and annoying to a normal child of the age of 17 years.”

Conversely, courts have reversed convictions where conduct fell short of the objective standard. In Lopez’s discussion of Carskaddon, the Supreme Court distinguished an earlier case where a defendant sat under a tree with two young children, then walked with one down a public street. Despite suspicion of ill intent, “his conduct would not have unhesitatingly irritated or disturbed a normal person.”

More recently, in People v. Clotfelter (2021) 65 Cal.App.5th 30, 4, the First District Court of Appeal reversed PC 647.6 convictions where the victim (Steven) testified “Steven never felt uncomfortable about being around Clotfelter. Clotfelter never tried to kiss or touch him inappropriately, never discussed sexual matters with him, and never tried to show him anything ‘creepy’ or ‘weird.’ Steven loved and trusted Clotfelter, and thought their hugs and handshakes were appropriate.” This illustrates how even the alleged victim’s testimony can support the defense when carefully analyzed.

The Sexual Motivation Element: Proving Intent Through Circumstantial Evidence

The second prong of PC 647.6 requires that conduct be “motivated by an unnatural or abnormal sexual interest” in children. As articulated in People v. Maurer (1995) 32 Cal.App.4th 1121, 1127, and adopted by the Supreme Court in Lopez, this mental state element distinguishes PC 647.6 from other disturbing but non-sexual conduct toward minors.

People v. Brandao (2012) 203 Cal.App.4th 436, 445, 448, emphasized this “unique motivational requirement” in rejecting an equal protection challenge to mandatory sex offender registration for PC 647.6 convictions. The First District Court of Appeal held that even though the offense may involve “conduct less overtly sexual than other offenses for which registration is discretionary,” the requirement that defendants harbor “an unnatural or abnormal sexual interest or intent with respect to children” sets PC 647.6 apart from offenses involving consensual conduct between minors and young adults.

Because sexual motivation involves the defendant’s internal mental state, prosecutors typically rely on circumstantial evidence. In People v. Phillips (2010) 188 Cal.App.4th 1383, 1394, the court explained that sexual motivation can be inferred from “the nature of the defendant’s conduct” and “the circumstances surrounding” the alleged violations. The Phillips court also clarified that PC 647.6 does not require conduct directed at one specific child; rather, conduct can be “directed at a child or children” generally, such as masturbating in a parked car outside a school at dismissal time, where the intent is to be observed by any child.

Courts examine the totality of circumstances when assessing sexual motivation. Relevant factors include: the nature of the defendant’s words or conduct; whether the defendant engaged in sexually explicit speech; prior relationships (or lack thereof) between defendant and victim; the defendant’s proximity to locations where children congregate; whether the defendant used items commonly associated with child molestation (such as lollipops, candy, or lubricants); admissions or statements by the defendant; and the defendant’s history of similar conduct.

Significantly, the prosecution need not prove the defendant intended to seduce or have sexual contact with a specific child. In People v. La Fontaine (1978) 79 Cal.App.3d 176, 180, a defendant offered a 13-year-old boy a ride, then asked if he wanted to earn “an easy five or ten dollars” in exchange for oral sex. Though the boy immediately exited the vehicle and defendant never touched him, the court upheld the PC 647.6 conviction, noting that defendant’s words were “unmistakably lewd and obscene” and thus “constituted conduct which would ‘annoy or molest’ the 13-year-old victim.”

Conduct Directed at a Child: The First Element

The threshold requirement of PC 647.6 is that the defendant “engaged in conduct directed at a child.” This element has generated substantial litigation, particularly regarding indirect conduct and situations where the defendant cannot see or identify a specific victim.

People v. Phillips resolved a key ambiguity by holding that the statute does not require conduct directed at one particular, identifiable child. In Phillips, the defendant entered a women’s restroom at a public beach, positioned himself in a stall, and masturbated while intentionally making sounds audible to others. Though he could not see whether children were present, he masturbated “hoping” children would hear. The court held this satisfied the “directed at a child” element because the defendant’s conduct and location (a public beach restroom during busy hours) demonstrated intent that children would be exposed to the sounds.

The Phillips court reasoned that requiring identification of a specific victim “would inadvertently add the ‘specific child victim’ element which is not required by the statute and has no basis in the law in light of the statute’s purpose” of protecting children from sexual predators. The court emphasized that “section 647.6, subdivisions (a)(1) and (2) have the same goal to protect children from sexual predators who engage in sexually motivated conduct in the presence of children.”

This interpretation aligns with the hypothetical long recognized by courts: a defendant who masturbates in a parked car outside a school at dismissal time engages in conduct “directed at” children even without targeting any specific student, because the circumstances demonstrate intent that children observe the conduct.

Sentencing, Penalties, and the Tiered Registry System

Misdemeanor Penalties

Absent aggravating factors, a first-time PC 647.6 conviction is a misdemeanor punishable by up to one year in county jail and/or a fine not exceeding $5,000. Courts frequently grant probation in misdemeanor cases, typically for two years, with mandatory counseling as a condition unless the court makes a written finding that counseling would be inappropriate or ineffective.

Wobbler Enhancement

When the offense occurs after the defendant enters an inhabited dwelling, trailer coach, or inhabited building without consent, PC 647.6(b) elevates the offense to a wobbler. Prosecutors have discretion to charge it as either a misdemeanor (with the same penalties as subsection (a)) or a felony, carrying imprisonment in state prison.

Felony Penalties

PC 647.6(c)(1) mandates felony prosecution for any second or subsequent conviction, carrying a state prison sentence. More severely, PC 647.6(c)(2) imposes enhanced punishment of two, four, or six years in state prison when the defendant has a prior felony conviction under § 261 (rape of a minor under 16), § 264.1, § 269, § 285, § 286, § 287, § 288.5 (continuous sexual abuse of a child), § 289, § 288 (lewd acts with a child), or § 311.4 (child pornography involving a minor under 14)—where the prior conviction involved a minor under 16.

Sex Offender Registration: Understanding California’s Tiered System

Every PC 647.6 conviction—whether misdemeanor or felony—requires mandatory registration as a sex offender under Penal Code § 290. Following the 2021 implementation of Senate Bill 384, California replaced lifetime registration for all sex offenders with a three-tiered system based on offense severity.

A first-time PC 647.6 conviction requires registration as a Tier 1 offender for a minimum of 10 years from release from custody. A second or subsequent PC 647.6 conviction elevates the registrant to Tier 2 status, requiring a minimum of 20 years registration. This tier designation applies regardless of whether the conviction is a misdemeanor or felony.

Registrants must update their registration annually within five working days of their birthday, and within five working days of changing residence, employment, or school enrollment. Information about Tier 1 and Tier 2 registrants appears on California’s Megan’s Law public database, though individuals convicted of misdemeanor PC 647.6 may petition for exclusion from the website while still maintaining their registration obligation.

Petition for Termination Under Penal Code § 290.5

Unlike the pre-2021 system, registrants no longer pursue Certificates of Rehabilitation to terminate their registration duty. Instead, Tier 1 and Tier 2 registrants may petition the superior court for termination under PC § 290.5 after completing their mandatory minimum registration period.

Eligibility requirements include:

• The registrant has completed the full mandatory minimum period for their tier (10 or 20 years from release)
• The petition is filed on or after the registrant’s first birthday following expiration of the minimum period
• The registrant is not currently in custody, on parole, probation, or supervised release
• The registrant has not been convicted of a new registerable sex offense since release
• The registrant has not been convicted of any violent felony (as defined in PC § 667.5(c)) since release
• There are no pending charges that could extend the registration period or change tier status

The registrant must serve the petition on the law enforcement agency where they register and the district attorney’s office, along with proof of current registration. The district attorney has 60 days to respond, and if no objection is filed, the court must grant the petition if all statutory requirements are satisfied. If the district attorney objects on public safety grounds, the court conducts a hearing where both sides present evidence regarding the registrant’s rehabilitation and likelihood of reoffense.

Strategic Defenses: Challenging PC 647.6 Prosecutions

Given PC 647.6’s severe collateral consequences—particularly mandatory sex offender registration—developing a comprehensive defense strategy is essential from the moment charges are filed or an investigation commences.

False Accusations and Witness Credibility

Child molestation allegations often arise in contentious family law proceedings, custody disputes, or situations where the accusing child has been influenced by a parent or other adult. In many PC 647.6 prosecutions, particularly those involving non-physical conduct, the case hinges entirely on the complaining witness’s credibility. Absent independent corroboration, defense counsel must conduct exhaustive investigation into the accuser’s background, motivations, and credibility.

California courts do not require corroboration of a child witness’s testimony to sustain a PC 647.6 conviction. People v. Carlson (1946) 73 Cal.App.2d 933, 936, explicitly held that a defendant may be convicted based solely on the child’s testimony. However, vigorous cross-examination and impeachment remain critical.

Defense investigation should include:

• Subpoenaing the child’s school records, counseling records, and medical records (subject to appropriate motions and protective orders)
• Reviewing the child’s social media accounts, text messages, and electronic communications
• Interviewing the child’s friends, teachers, family members, and others who may have knowledge of the child’s reputation for truth and veracity
• Investigating whether the child has made prior false allegations
• Examining whether the child was coached or has a motive to fabricate (such as parental pressure in custody disputes, desire to avoid discipline, or animosity toward the defendant)

In People v. Clotfelter (2021) 65 Cal.App.5th 30, 4, the First District Court of Appeal reversed PC 647.6 convictions where the victim (Steven) testified “Steven never felt uncomfortable about being around Clotfelter. Clotfelter never tried to kiss or touch him inappropriately, never discussed sexual matters with him, and never tried to show him anything ‘creepy’ or ‘weird.’ Steven loved and trusted Clotfelter, and thought their hugs and handshakes were appropriate.” This illustrates how even the alleged victim’s testimony can support the defense when carefully analyzed.

Absence of Sexual Motivation

Because PC 647.6 requires proof that conduct was “motivated by an unnatural or abnormal sexual interest” in children, demonstrating an innocent or non-sexual motive provides a complete defense. This element is particularly susceptible to attack when the defendant’s conduct admits of multiple reasonable interpretations.

For example, in Lopez, the defendant argued (ultimately unsuccessfull,y given his own admissions) that he touched the victim not for immediate sexual gratification but as a “preparatory act” to move her to another location. While this specific defense failed on the facts, it illustrates the principle: if the defendant can establish that conduct was motivated by something other than sexual interest—such as legitimate professional duties, innocent social interaction, or even non-sexual harassment—the prosecution cannot satisfy its burden.

Consider a teacher who asks a student detailed questions about potential sexual abuse at home because the teacher suspects the student is being molested. Though the questions might be explicit and potentially disturbing, the teacher’s motivation is protective, not sexual. As the Supreme Court noted in Lopez, “If the act is not motivated by sexual desire, it does not violate Criminal Code 647.6.”

Defense counsel should investigate and present evidence of:

• The defendant’s professional or familial relationship with the child
• Legitimate reasons for the defendant’s presence or conduct
• The defendant’s reputation and character for appropriate conduct around children
• Expert psychological testimony regarding the defendant’s lack of sexual interest in minors
• Evidence that the conduct was accidental, inadvertent, or misinterpreted

Conduct Not Objectively Annoying or Disturbing

Even when the prosecution establishes that the defendant harbored sexual interest in children, conviction requires proof that the defendant’s conduct would unhesitatingly irritate a reasonable person. This objective standard provides a critical defense where behavior, though perhaps inappropriate or uncomfortable, does not rise to the level of objective annoyance required by statute.

People v. Clotfelter demonstrates this defense’s viability. Though the trial court convicted the defendant, the Court of Appeal reversed, holding that hugs, gifts (including exercise equipment), and affectionate emails—even from a registered sex offender—“do not amount to substantial evidence of conduct that would objectively unhesitatingly disturb a normal person.” The court emphasized that “ambiguous conduct is not enough to satisfy the statute” and that “viewing [defendant’s] objective conduct in light of [his] past blurs the objective and subjective elements of the crime, an approach expressly rejected by Lopez.”

Similarly, in the Supreme Court’s discussion of Carskaddon in Lopez, sitting under a tree with children and walking down a public street with them did not satisfy the objective standard despite suspicions about the defendant’s ultimate intentions. The lesson: prosecutors must prove not merely suspicious or questionable conduct, but behavior that would unhesitatingly irritate any normal person.

Lack of Intent to Direct Conduct at a Child

While Phillips broadened what constitutes conduct “directed at a child” by permitting convictions when defendants intend children generally (not a specific victim) to observe or be affected by their conduct, this element still requires proof that the defendant intended child exposure to the conduct.

Accidental or inadvertent exposure provides a defense. The classic example: a defendant masturbating in his own bedroom with curtains he believes to be fully closed. If schoolchildren passing outside happen to see through a gap in the curtains, the defendant has not engaged in conduct “directed at” children because he lacked intent for them to observe his behavior.

Similarly, conduct that occurs in an adult environment where children are not expected to be present may fail the “directed at a child” element even if a child happens to be nearby. The prosecution must establish that the defendant knew or reasonably should have known children would be exposed to the conduct, and that such exposure was part of the defendant’s purpose or plan.

Constitutional Violations and Suppression of Evidence

Fourth and Fifth Amendment violations can provide grounds for suppressing evidence or statements. Unlawful searches, seizures, detentions, and interrogations frequently occur in PC 647.6 investigations, particularly in online sting operations or when law enforcement conducts warrantless searches of cell phones or computers.

Defense counsel must scrutinize:

• Whether police had reasonable suspicion to detain the defendant
• Whether officers exceeded the scope of a lawful detention
• Whether searches of cell phones, computers, or other electronic devices were conducted pursuant to valid warrants
• Whether the defendant’s statements were voluntary and whether he was properly advised of Miranda rights before custodial interrogation
• Whether officers employed coercive tactics during interrogation

Successful suppression motions can eviscerate the prosecution’s case, particularly where the defendant’s statements provide the primary evidence of sexual motivation.

Private Polygraph Examinations

Defense attorneys sometimes retain former FBI or law enforcement polygraph examiners to conduct private examinations of clients who maintain innocence. While polygraph results are inadmissible in California criminal proceedings absent stipulation by both parties, results indicating truthfulness can be presented to prosecutors during plea negotiations. If the examination supports the defense, it may persuade the prosecution to reduce or dismiss charges. If results are unfavorable, defense counsel simply does not disclose the examination’s existence—attorney-client privilege and work product doctrine protect the results from discovery.

Additional Consequences Beyond Incarceration

PC 647.6 convictions trigger collateral consequences extending far beyond criminal punishment. Registrants face severe housing restrictions, as many municipalities prohibit sex offenders from residing within specified distances (commonly 2,000 feet) of schools, parks, and other places where children congregate. Employment opportunities become drastically limited, with statutory prohibitions barring registrants from working in schools, childcare facilities, or positions involving supervision of minors. Professional licenses may be denied, suspended, or revoked. Immigration consequences for non-citizens include mandatory deportation, inadmissibility, and ineligibility for most forms of relief.

Parents convicted of PC 647.6 frequently lose custody or have visitation restricted to supervised settings. Family courts view sex offender registration as highly probative of risk to children, even when the underlying conduct did not involve the parent’s own children. The social stigma attached to sex offender status profoundly impacts personal relationships, community standing, and mental health. These collateral consequences often prove more devastating than the direct criminal penalties, underscoring why aggressive defense representation is imperative from the investigation’s inception.

Conclusion: The Critical Importance of Early, Aggressive Representation

PC 647.6 prosecutions present unique challenges requiring defense counsel with sophisticated understanding of the statute’s elements, the case law interpreting those elements, and the investigation and litigation strategies necessary to challenge the prosecution’s evidence. The statute’s broad application—covering verbal conduct, gestures, and non-physical behavior—combined with the objective standard for what constitutes “annoying” conduct and the reliance on circumstantial evidence to prove sexual motivation, creates both opportunities and pitfalls for defense counsel.

The stakes could not be higher: even a misdemeanor conviction triggers mandatory sex offender registration for a minimum of 10 years, with profound lifelong consequences for employment, housing, family relationships, and social standing. Second convictions automatically become felonies requiring 20 years minimum registration. For these reasons, individuals accused of PC 647.6 violations must obtain experienced defense representation immediately upon learning of an investigation or accusation—before providing statements to law enforcement, before evidence is collected, and before prosecutors make charging decisions that may prove difficult to undo.

California’s sex offense laws are complex, and the consequences of conviction extend far beyond the courtroom. Understanding your rights, the elements prosecutors must prove, the defenses available, and the collateral consequences at stake is the first step in protecting your future when facing allegations under Penal Code § 647.6.