Dismissal-Focused Representation for California Penal Code Section 288(B)(2): Lewd Acts by a Caretaker Upon a Dependent Person
Second Chances Law Group's Proactive Approach to Preventing Convictions and Mandatory Sex Offender Registration
Second Chances Law Group represents individuals facing accusations under California Penal Code Section 288(b)(2), which criminalizes lewd or lascivious acts committed by caretakers upon dependent persons through force, violence, duress, menace, or fear of immediate and unlawful bodily injury. Our representation philosophy centers upon preventing convictions altogether rather than negotiating plea agreements, recognizing that any conviction under this statute triggers mandatory lifetime sex offender registration obligations. Our legal advocacy extends to individuals seeking to avoid initial conviction and those endeavoring to terminate existing registration requirements, understanding that the consequences of registration extend far beyond the criminal justice system itself.
The gravamen of our practice involves exhaustive investigation, meticulous constitutional challenges, and relentless pursuit of dismissals rather than reduced charges. We recognize that persons accused of Penal Code Section 288(b)(2) violations confront not merely the specter of substantial incarceration but the indelible stigma of sex offender registration, which fundamentally alters employment opportunities, residential options, familial relationships, and fundamental liberty interests. Consequently, our representation prioritizes dismissal-oriented strategies that challenge the prosecution's case at every conceivable juncture, from initial investigation through trial, emphasizing constitutional violations, evidentiary insufficiencies, and procedural irregularities that warrant complete case dismissal.
COMPREHENSIVE STATUTORY FRAMEWORK AND LEGAL DEFINITION
California Penal Code Section 288(b)(2) establishes criminal liability when a caretaker commits a lewd or lascivious act upon a dependent person by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, with the intent described in subdivision (a). The statutory language provides:
"A person who is a caretaker and commits an act described in subdivision (a) upon a dependent person by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, with the intent described in subdivision (a), is guilty of a felony and shall be punished by imprisonment in the state prison for 5, 8, or 10 years."
This provision must be distinguished from California Penal Code Section 288(c)(2), which addresses lewd acts by a caretaker upon a dependent person without the use of force, violence, duress, menace, or fear. Section 288(c)(2) provides:
"A person who is a caretaker and commits an act described in subdivision (a) upon a dependent person, with the intent described in subdivision (a), is guilty of a public offense and shall be punished by imprisonment in the state prison for one, two, or three years, or by imprisonment in a county jail for not more than one year."
The fundamental distinction between these subdivisions concerns the presence or absence of force, violence, duress, menace, or fear, which significantly impacts both sentencing exposure and registration tier designation. The prosecution bears the burden of proving beyond a reasonable doubt that force, violence, duress, menace, or fear accompanied the alleged lewd act to sustain a conviction under subdivision (b)(2) rather than subdivision (c)(2).
CALCRIM 1060: OFFICIAL JURY INSTRUCTIONS FOR DEPENDENT PERSON LEWD ACTS (2025-2026 EDITION)
The Judicial Council of California Criminal Jury Instructions (CALCRIM) Number 1060, as published in the 2025 edition, constitutes the official jury instruction for prosecutions under California Penal Code Sections 288(b)(2) and 288(c)(2). Courts possess a sua sponte duty to instruct juries using CALCRIM 1060 when adjudicating these offenses. The complete text of CALCRIM 1060 provides:
CALCRIM NO. 1060
Lewd or Lascivious Act: Dependent Person (Pen. Code, § 288(b)(2) & (c)(2))
The defendant is charged [in Count ___] with a lewd or lascivious act on a dependent person [by force or fear] [in violation of Penal Code section 288].
To prove that the defendant is guilty of this crime, the People must prove that:
1. The defendant was a caretaker of a dependent person;
2. The defendant willfully (committed/conspired to commit/aided and abetted/facilitated) a lewd or lascivious act on a person;
[AND]
3. The defendant (committed/conspired to commit/aided and abetted/facilitated) the act with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of (himself/herself) or the dependent person(;/.)
[AND
4. In (committing/conspiring to commit/aiding and abetting/facilitating) the act, the defendant used force, violence, duress, menace, or fear of immediate and unlawful bodily injury to the dependent person or someone else.]
A lewd or lascivious act is any touching of a person with the intent to sexually arouse the perpetrator or the other person. A lewd or lascivious act includes touching any part of the person's body, either on the bare skin or through the clothes the person is wearing. [A lewd or lascivious act includes causing someone to touch his or her own body or someone else's body at the instigation of the perpetrator who has the required intent.]
Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage.
A caretaker is an owner, operator, administrator, employee, independent contractor, agent, or volunteer of a public or private facility, including (a/an) <insert specific facility from Pen. Code, § 288(f)(1)>, that provides care for dependent persons or for those aged 65 or older.
A dependent person is someone who has physical or mental impairments that substantially restrict his or her ability to carry out normal activities or to protect his or her rights. This definition includes, but is not limited to, those who have developmental disabilities or whose physical or mental abilities have been significantly diminished by age.
[Actually arousing, appealing to, or gratifying the lust, passions, or sexual desires of the perpetrator or dependent person is not required.]
[The force used must be substantially different from or substantially greater than the force needed to accomplish the lewd and lascivious act itself.]
[Duress is a direct or implied threat of force, violence, danger, hardship, or retribution that causes a reasonable person to do [or submit to] something that he or she would not do [or submit to] otherwise. When deciding whether the act was accomplished by duress, consider all the circumstances, including the age of the dependent person and (his/her) relationship to the defendant.]
[Retribution is a form of payback or revenge.]
[Menace means a threat, statement, or act showing an intent to injure someone.]
[An act is accomplished by fear if the dependent person is actually and reasonably afraid [or (he/she) is actually but unreasonably afraid and the defendant knows of (his/her) fear and takes advantage of it].]
[It is not a defense that the dependent person may have consented to the act.]
EXHAUSTIVE ANALYSIS OF ELEMENTS: WHAT THE PROSECUTION MUST PROVE BEYOND A REASONABLE DOUBT
Element One: Defendant Was a Caretaker of a Dependent Person
California Penal Code Section 288(f)(1) defines "caretaker" as an owner, operator, administrator, employee, independent contractor, agent, or volunteer of any public or private facility that provides care for dependent persons or for those aged sixty-five years or older. The statutory enumeration of qualifying facilities includes, but is not limited to: 24-hour health facilities as defined in Health and Safety Code Sections 1250, 1250.2, and 1250.3; clinics as defined in Health and Safety Code Sections 1200 through 1200.4; community care facilities for the elderly as defined in Health and Safety Code Section 1569.2; residential care facilities for persons with chronic life-threatening illness as defined in Health and Safety Code Section 1568.01; residential care facilities for the elderly as defined in Health and Safety Code Section 1569.2; adult day health care centers; hospices; adult day programs for persons with developmental disabilities; respite care facilities as defined in Health and Safety Code Section 1250; home health agencies licensed pursuant to Health and Safety Code Section 1725 et seq.; agencies that supply in-home supportive services; board and care facilities; and any other protective or public assistance agency providing health services or social services to elder or dependent persons.
Critically, the defendant need not be the victim's actual assigned caretaker; California courts have held that the statute applies to owners, operators, administrators, employees, independent contractors, agents, or volunteers working at qualifying facilities who personally commit, conspire, aid, abet, or facilitate prohibited acts, as provided in Penal Code Section 288(g). However, Penal Code Section 288(h) explicitly exempts caretakers who are spouses of, or in equivalent domestic relationships with, the dependent person.
Element Two: Defendant Willfully Committed a Lewd or Lascivious Act
The concept of "willfully" requires that the defendant acted willingly or on purpose, though it does not require intent to break the law, hurt someone else, or gain any advantage. A lewd or lascivious act encompasses any touching of a person with the intent to sexually arouse the perpetrator or the other person, including touching any part of the person's body either on bare skin or through clothing. The statutory prohibition extends to causing someone to touch his or her own body or someone else's body at the instigation of the perpetrator who possesses the requisite intent.
The California Supreme Court in People v. Martinez (1995) 11 Cal.4th 434, 444, 452 established that any touching with the requisite sexual intent constitutes a lewd act under Penal Code Section 288, explicitly disapproving narrower interpretations that required contact with intimate body parts or bare skin. Consequently, the touching need not involve traditionally recognized erogenous zones; rather, any bodily contact accompanied by the specific intent to arouse, appeal to, or gratify sexual desires satisfies this element.
Element Three: Intent to Arouse, Appeal to, or Gratify Sexual Desires
The prosecution must establish that the defendant committed or facilitated the act with the specific intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of himself or herself or the dependent person. This intent element constitutes the mens rea component distinguishing lewd conduct from innocent touching during legitimate caregiving activities such as bathing, dressing, medical examination, or therapeutic treatment.
Significantly, actual arousal, appeal, or gratification need not occur; the statute requires only that the defendant possessed the requisite intent when committing the act. People v. McCurdy (1923) 60 Cal.App. 499, 502 established this principle, recognizing that requiring proof of actual arousal would create insurmountable evidentiary burdens and enable perpetrators to evade liability based on physiological responses beyond prosecutorial demonstration.
Element Four: Use of Force, Violence, Duress, Menace, or Fear (Required for Subdivision (b)(2) Only)
To sustain a conviction under Penal Code Section 288(b)(2) rather than Section 288(c)(2), the prosecution must prove beyond a reasonable doubt that the defendant employed force, violence, duress, menace, or fear of immediate and unlawful bodily injury to the dependent person or someone else when committing the lewd act.
Force
Courts have determined that "force" in the context of Penal Code Section 288(b) possesses a specialized, technical meaning distinct from its usage in other sexual offense statutes. People v. Griffin (2004) 33 Cal.4th 1015, 1018-1019 and People v. Pitmon (1985) 170 Cal.App.3d 38, 52 established that force must be substantially different from or substantially greater than the force necessary to accomplish the lewd and lascivious act itself. This requirement distinguishes inherent touching from additional compulsion beyond the touching itself.
Duress
California courts have extensively analyzed the meaning of "duress" in Penal Code Section 288(b) prosecutions. People v. Leal (2004) 33 Cal.4th 999, 1004-1010 definitively established that duress in this context means a direct or implied threat of force, violence, danger, hardship, or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to perform an act which otherwise would not have been performed or acquiesce in an act to which one otherwise would not have submitted. The California Supreme Court explicitly held that the definition of "duress" in Penal Code Sections 261 and 262 (rape statutes) does not apply to its usage in Penal Code Section 288, and that duress in Section 288(b) need not establish that the victim believed his or her life would be endangered.
The Leal court emphasized that relevant factors in determining duress include the totality of circumstances, the age of the victim, and the victim's relationship to the defendant. People v. Cochran (2002) 103 Cal.App.4th 8, 13-14 further clarified that relevant duress factors include threats to harm the victim, physically controlling the victim when the victim attempts to resist, warnings that revealing the molestation would jeopardize the family, and that the fact that the victim testifies the defendant did not use force or threats does not require a finding of no duress, as the victim's testimony must be considered in light of her age and relationship to the defendant.
Menace
Menace means a threat, statement, or act showing an intent to injure someone, drawing from the statutory definition in Penal Code Section 261(c) in the rape context. Courts apply this definition in Penal Code Section 288(b) cases, though they possess discretion in instructing on menace absent specific request by the parties.
Fear
An act is accomplished by fear if the dependent person is actually and reasonably afraid, or if the dependent person is actually but unreasonably afraid and the defendant knows of his or her fear and takes advantage of it. People v. Cardenas (1994) 21 Cal.App.4th 927, 939-940 and People v. Iniguez (1994) 7 Cal.4th 847 established these principles in analogous sexual offense contexts.
COMPREHENSIVE PENALTIES, SENTENCING CONSEQUENCES, AND TIER ASSIGNMENT
Imprisonment Terms
California Penal Code Section 288(b)(2) violations constitute felonies punishable by imprisonment in state prison for five years, eight years, or ten years. The trial court possesses discretion to impose the lower term (five years), middle term (eight years), or upper term (ten years) based upon aggravating and mitigating circumstances pursuant to California Rules of Court Rule 4.421 and 4.423. Following the California Supreme Court's decision in People v. Sandoval (2007) 41 Cal.4th 825 and statutory amendments implementing Cunningham v. California (2007) 549 U.S. 270, aggravating factors that would authorize imposition of the upper term must be found true beyond a reasonable doubt by a jury or admitted by the defendant, with limited exceptions for prior convictions and factors based upon defendant's recidivism.
Convictions under California Penal Code Section 288(c)(2) (lewd acts by caretaker without force) constitute felonies or misdemeanors (commonly termed "wobblers"), punishable by imprisonment in state prison for one year, two years, or three years, or by imprisonment in county jail for not more than one year.
Probation Ineligibility
Persons convicted under Penal Code Section 288(b)(2) face presumptive ineligibility for probation pursuant to California Penal Code Section 1203.065(a), which provides that probation shall not be granted to, nor shall the execution or imposition of sentence be suspended for, any person who is convicted of a violation of subdivision (b) of Section 288. This presumption may be overcome only in unusual cases where the interests of justice would best be served if the person is granted probation, and the court specifies on the record and enters into the minutes the circumstances indicating that the interests of justice would best be served by this disposition. However, persons convicted under Penal Code Section 288(c)(2) may be eligible for probation depending on case-specific factors and the court's evaluation of California Rules of Court Rule 4.414.
Sex Offender Registration Requirements
All persons convicted under California Penal Code Sections 288(b)(2) or 288(c)(2) must register as sex offenders pursuant to California Penal Code Section 290. Following the enactment of Senate Bill 384, effective January 1, 2021, California transitioned from lifetime registration for all sex offenders to a three-tier system with registration periods of ten years (Tier One), twenty years (Tier Two), or lifetime (Tier Three) for adult offenders.
Tier Designation for Penal Code Section 288(b)(2) Convictions
Pursuant to California Penal Code Section 290(d)(2)(C), a person convicted under Section 288(b) constitutes a Tier Three offender subject to lifetime registration. This tier assignment applies regardless of whether the conviction occurred under subdivision (b)(1) (lewd acts on a minor by force) or subdivision (b)(2) (lewd acts on a dependent person by force).
Tier Designation for Penal Code Section 288(c)(2) Convictions
The tier designation for Penal Code Section 288(c)(2) convictions depends upon whether the court exercises discretion pursuant to Penal Code Section 290.006. Beginning January 1, 2021, courts possess discretion to order sex offender registration for convictions of offenses not otherwise requiring registration under Penal Code Section 290(c). When a court exercises this discretion and orders registration for a Section 288(c)(2) conviction, the California Department of Justice typically designates the offense as Tier One, requiring ten years of registration, unless the court makes specific findings warranting Tier Two or Tier Three designation and states on the record the reasons for its finding.
One Strike Law Enhancement
California Penal Code Section 667.61, commonly known as the "One Strike" law, may significantly increase sentences for qualifying sex offenses committed under specified circumstances. Penal Code Section 667.61(c)(4) includes lewd or lascivious acts in violation of subdivision (b) of Section 288 among the qualifying offenses.
Under Penal Code Section 667.61(a), any person convicted of an offense specified in subdivision (c) under one or more of the circumstances specified in subdivision (d) or under two or more of the circumstances specified in subdivision (e) shall be punished by imprisonment in state prison for twenty-five years to life. Subdivision (d) circumstances include: the defendant kidnapped the victim and the movement substantially increased the risk of harm; the defendant inflicted aggravated mayhem or torture; the defendant committed the offense during commission of first-degree burglary with intent to commit an offense specified in subdivision (c); and numerous other aggravating factors.
Under Penal Code Section 667.61(b), any person convicted of an offense specified in subdivision (c) under one of the circumstances specified in subdivision (e) shall be punished by imprisonment in state prison for fifteen years to life. Subdivision (e) circumstances include: the defendant personally inflicted great bodily injury; the defendant personally used a firearm or other deadly weapon; and various other specified factors.
Significantly, Penal Code Section 667.61(g) prohibits courts from striking any allegation, admission, or finding of circumstances specified in subdivisions (d) or (e), and Section 667.61(h) prohibits granting probation or suspending execution or imposition of sentence for any person subject to punishment under this section.
Three Strikes Law
Convictions under California Penal Code Section 288(b)(2) constitute serious felonies pursuant to Penal Code Section 1192.7(c)(6) and violent felonies pursuant to Penal Code Section 667.5(c)(6), thereby qualifying as "strikes" under California's Three Strikes law codified in Penal Code Sections 667(b)-(i) and 1170.12. A prior strike conviction doubles the base term for any subsequent felony conviction, and two or more prior strike convictions subject the defendant to an indeterminate term of twenty-five years to life upon conviction of any third felony.
Custody Credits and Parole
Persons convicted under Penal Code Section 288(b)(2) earn conduct credits at a limited rate pursuant to Penal Code Section 2933.1, which restricts conduct credits to fifteen percent of the actual period of confinement for violent felonies as defined in Penal Code Section 667.5(c). Consequently, defendants sentenced under Section 288(b)(2) must serve approximately eighty-five percent of their imposed sentence before becoming eligible for parole.
Upon release from state prison, persons convicted under Section 288(b)(2) remain subject to parole supervision for a period determined by the length of their sentence and the nature of their commitment offense. Additionally, high-risk sex offenders and those convicted of lewd acts with children under fourteen face mandatory GPS monitoring and enhanced parole conditions.
CONSTITUTIONAL AND FOURTH AMENDMENT DEFENSES: SUPPRESSION OF EVIDENCE AND DISMISSAL BASED ON GOVERNMENT MISCONDUCT
Fourth Amendment Protection Against Unreasonable Searches and Seizures
The Fourth Amendment to the United States Constitution, applicable to the states through the Fourteenth Amendment's Due Process Clause as established in Mapp v. Ohio (1961) 367 U.S. 643, prohibits unreasonable searches and seizures. California provides parallel protection through Article I, Section 13 of the California Constitution. These constitutional provisions require that law enforcement obtain a warrant supported by probable cause before conducting searches, subject to narrowly defined exceptions including consent, search incident to lawful arrest, exigent circumstances, the automobile exception, and plain view doctrine.
Exclusionary Rule and Fruit of the Poisonous Tree Doctrine
Evidence obtained through violations of the Fourth Amendment must be suppressed pursuant to the exclusionary rule established in Weeks v. United States (1914) 232 U.S. 383 (federal prosecutions) and Mapp v. Ohio, supra, 367 U.S. 643 (state prosecutions). The exclusionary rule extends beyond directly obtained evidence to encompass derivative evidence discovered as a result of the initial constitutional violation, a principle known as the "fruit of the poisonous tree" doctrine articulated in Silverthorne Lumber Co. v. United States (1920) 251 U.S. 385 and Wong Sun v. United States (1963) 371 U.S. 471.
In the context of Penal Code Section 288(b)(2) prosecutions, Fourth Amendment violations may arise from warrantless searches of residences, care facilities, electronic devices, or vehicles absent probable cause and exigent circumstances. Unlawfully obtained physical evidence, digital files, photographs, biological samples, or witness statements discovered through illegal searches must be suppressed, and if such evidence constitutes the cornerstone of the prosecution's case, dismissal may be warranted based on insufficiency of the remaining admissible evidence.
Miranda Rights and Fifth Amendment Protection Against Self-Incrimination
Miranda v. Arizona (1966) 384 U.S. 436 established that the Fifth Amendment privilege against self-incrimination requires law enforcement to advise custodial interrogation subjects of their right to remain silent, that statements may be used against them in court, their right to counsel, and that counsel will be appointed if they cannot afford an attorney. Failure to provide Miranda warnings renders subsequent statements inadmissible absent voluntary, knowing, and intelligent waiver.
Custodial interrogations of persons accused of Penal Code Section 288(b)(2) violations frequently occur at care facilities, police stations, or suspects' residences. When law enforcement conducts accusatory questioning while the suspect is not free to leave (custody) without first providing Miranda warnings, any incriminating statements obtained must be suppressed pursuant to Miranda and its progeny. Coerced confessions obtained through threats, promises, physical abuse, psychological pressure, or exploitation of mental impairments violate the Fifth Amendment's Due Process Clause and must likewise be excluded.
Sixth Amendment Right to Counsel
The Sixth Amendment guarantees the right to counsel at all critical stages of criminal proceedings following the initiation of adversarial judicial proceedings through formal charge, preliminary hearing, indictment, information, or arraignment. Massiah v. United States (1964) 377 U.S. 201 and Brewer v. Williams (1977) 430 U.S. 387 established that deliberate elicitation of incriminating statements from represented defendants outside the presence of counsel violates the Sixth Amendment.
In Penal Code Section 288(b)(2) cases, Sixth Amendment violations may occur when law enforcement or government agents deliberately elicit statements from formally charged defendants through jail informants, pretext telephone calls, or continued interrogation after counsel has been appointed and the defendant has invoked the right to counsel.
Due Process Violations and Outrageous Government Conduct
The Due Process Clauses of the Fifth and Fourteenth Amendments prohibit government conduct that "shocks the conscience" and violates fundamental fairness. Rochin v. California (1952) 342 U.S. 165. While the defense of outrageous government conduct remains narrow and difficult to establish, egregious law enforcement misconduct including fabrication of evidence, knowing use of perjured testimony, suppression of exculpatory evidence, or entrapment through overbearing coercion may warrant dismissal on due process grounds.
COMPREHENSIVE CRIMINAL DEFENSES: CHALLENGING THE PROSECUTION'S CASE
False Accusations and Fabricated Allegations
False accusations constitute one of the most common defenses in Penal Code Section 288(b)(2) prosecutions. Dependent persons residing in care facilities may fabricate allegations motivated by mental illness, cognitive impairment, desire for attention, misunderstanding of innocent caregiving activities, suggestion by facility staff or family members, or attempts to explain injuries sustained through falls or medical conditions. Additionally, disgruntled employees, facility administrators seeking to deflect liability for neglect, or family members disputing care decisions may fabricate or encourage false allegations.
Defense counsel must conduct an exhaustive investigation into the accuser's mental health history, medication regimen, cognitive functioning, prior false allegations, relationships with facility personnel, and potential motives for fabrication. Expert testimony from forensic psychologists, psychiatrists, and medical professionals may establish alternative explanations for the allegations and demonstrate the accuser's susceptibility to suggestion, confabulation, or deliberate fabrication.
Insufficient Evidence and Reasonable Doubt
The prosecution bears the burden of proving each element of Penal Code Section 288(b)(2) beyond a reasonable doubt. Defense counsel must meticulously identify evidentiary gaps, inconsistencies in witness testimony, lack of corroboration, absence of physical evidence, implausible timelines, and failure to prove specific intent. When the prosecution's case rests primarily or exclusively upon the uncorroborated testimony of a dependent person with credibility issues, reasonable doubt may exist sufficient to warrant acquittal.
Defendant Was Not a "Caretaker" Within Statutory Definition
The statutory definition of "caretaker" in Penal Code Section 288(f)(1) and (g) requires that the defendant be an owner, operator, administrator, employee, independent contractor, agent, or volunteer of a qualifying facility providing care for dependent persons or those aged sixty-five or older. Defendants who do not fall within these categories—such as family members not employed by facilities, independent healthcare providers not affiliated with qualifying facilities, or visitors without formal caregiving responsibilities—do not satisfy the caretaker element.
People v. Montoya (2021) 68 Cal.App.5th 980, 1001 held that the defendant need not be the victim's personally assigned caretaker, but the defendant must nevertheless fall within the statutory definition of persons working at qualifying facilities. Defense counsel should scrutinize employment records, facility licensure status, job descriptions, and the defendant's actual relationship to the alleged victim to establish that the defendant did not constitute a caretaker within the statute's meaning.
Alleged Victim Was Not a "Dependent Person" Within Statutory Definition
California Penal Code Section 288(f)(3) defines "dependent person" as a person, regardless of whether the person lives independently, who has a physical or mental impairment that substantially restricts his or her ability to carry out normal activities or to protect his or her rights, including but not limited to persons who have physical or developmental disabilities or whose physical or mental abilities have significantly diminished because of age. This definition parallels California Welfare and Institutions Code Section 15610.23.
Persons who do not suffer physical or mental impairments that substantially restrict their ability to carry out normal activities or protect their rights do not qualify as dependent persons, even if they reside in care facilities. Defense counsel should obtain comprehensive medical evaluations, functional capacity assessments, cognitive testing, and activities of daily living evaluations to establish that the alleged victim does not meet the statutory definition of dependent person.
Lack of Lewd Intent: Innocent Touching During Legitimate Caregiving
The prosecution must prove specific intent to arouse, appeal to, or gratify sexual desires. Touching during legitimate caregiving activities—bathing, toileting, dressing, wound care, physical therapy, medical examination, or assistance with mobility—does not constitute a lewd act absent proof of sexual intent. Defense counsel should present evidence of standard caregiving protocols, medical necessity for the touching, defendant's professional training, contemporaneous documentation of care provided, and absence of any indicators of sexual motivation.
Absence of Force, Violence, Duress, Menace, or Fear
To sustain a conviction under Penal Code Section 288(b)(2) rather than Section 288(c)(2), the prosecution must prove beyond a reasonable doubt that force, violence, duress, menace, or fear accompanied the alleged lewd act. When the evidence establishes only that a lewd touching occurred without additional coercion beyond the touching itself, the appropriate conviction would be under Section 288(c)(2), which carries substantially reduced sentencing exposure (one to three years rather than five to ten years) and potentially different tier designation.
Defense counsel must carefully analyze the victim's testimony, medical evidence, witness observations, and all circumstances surrounding the alleged touching to establish absence of force substantially different from or greater than the force inherent in the touching itself, absence of threats or coercion constituting duress, and absence of menacing conduct or exploitation of fear.
Consent (Limited Applicability)
People v. Montoya, supra, 68 Cal.App.5th 980, 999 held that lack of consent is not an element of lewd conduct by a caretaker upon a dependent person under Penal Code Section 288(a) and (c)(2). Consequently, consent does not constitute a complete defense to Penal Code Section 288(b)(2) or (c)(2) charges. However, evidence of consent may be relevant to establishing lack of force, duress, menace, or fear, thereby potentially reducing exposure from subdivision (b)(2) to subdivision (c)(2).
Statute of Limitations
California Penal Code Section 801.1 governs statutes of limitations for sex offenses. For offenses under Penal Code Section 288 involving substantial sexual conduct as defined in Section 1203.066(b), prosecution may be commenced within one year of a report to a California law enforcement agency by a person of any age alleging that he or she, while under eighteen years of age, was the victim of a crime, provided there is independent evidence clearly and convincingly corroborating the victim's allegation.
For offenses committed on or after January 1, 2015, involving minors and substantial sexual conduct, prosecution may be commenced at any time. For dependent adult victims, the general felony statute of limitations of three years (Penal Code Section 801) may apply absent specific statutory exceptions. Defense counsel must meticulously analyze the dates of alleged offenses, reporting dates, and applicable limitations periods to determine whether prosecution is time-barred.
Entrapment (Limited Circumstances)
Entrapment occurs when law enforcement officers induce a person to commit a crime that the person was not predisposed to commit. California employs an objective test for entrapment, focusing on whether police conduct would cause a normally law-abiding person to commit the offense. People v. Barraza (1979) 23 Cal.3d 675, 689-690.
While entrapment rarely applies in Penal Code Section 288(b)(2) cases involving actual dependent person victims in care facilities, the defense may be available in sting operations involving undercover officers posing as dependent persons or scenarios where law enforcement engaged in outrageous conduct inducing defendants to commit acts they would not otherwise have committed. The defendant bears the burden of proving entrapment by a preponderance of the evidence.
Alibi and Mistaken Identity
When the alleged victim cannot reliably identify the perpetrator due to cognitive impairments, poor vision, or other limitations, mistaken identity becomes a viable defense. Defense counsel should present alibi evidence establishing the defendant's presence elsewhere during the time of the alleged offense, security camera footage, sign-in/sign-out logs from facilities, cellular telephone location data, witness testimony, and expert testimony regarding the reliability of identifications by dependent persons with cognitive or perceptual impairments.
Insufficient Corroboration of Accomplice Testimony
California Penal Code Section 1111 prohibits conviction upon the uncorroborated testimony of an accomplice. While this rule typically applies to prosecution witnesses who participated in the charged offense, it may extend to situations where facility staff members with potential criminal liability themselves testify against defendants. Defense counsel should carefully analyze whether testifying witnesses qualify as accomplices requiring corroboration under Section 1111.
RELATED OFFENSES UNDER CALIFORNIA LAW
California Penal Code Section 288(a): Lewd Acts Upon a Child Under Fourteen
Penal Code Section 288(a) prohibits any person from willfully and lewdly committing any lewd or lascivious act upon or with the body of a child under fourteen years with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child. Violations constitute felonies punishable by imprisonment in state prison for three years, six years, or eight years. This offense constitutes a Tier Two or Tier Three offense depending on whether the defendant is also subject to lifetime registration as a sexually violent predator based on risk assessment.
California Penal Code Section 288(b)(1): Lewd Acts Upon a Child by Force or Fear
Penal Code Section 288(b)(1) prohibits committing lewd acts described in subdivision (a) by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person. Violations constitute felonies punishable by imprisonment in state prison for five years, eight years, or ten years. This offense constitutes a Tier Three offense requiring lifetime registration.
California Penal Code Section 288(c)(1): Lewd Acts Upon a Child Aged Fourteen or Fifteen
Penal Code Section 288(c)(1) prohibits committing acts described in subdivision (a) with the intent described in that subdivision when the victim is a child of fourteen or fifteen years and the defendant is at least ten years older than the child. Violations constitute public offenses punishable by imprisonment in state prison for one year, two years, or three years, or by imprisonment in county jail for not more than one year.
California Penal Code Section 288(i): Lewd Acts with Infliction of Bodily Harm
Penal Code Section 288(i)(1) provides that a person convicted of a violation of subdivision (a) shall be imprisoned in state prison for life with the possibility of parole if the defendant personally inflicted bodily harm upon the victim. This enhancement significantly increases punishment beyond the base terms in subdivision (a).
California Penal Code Section 243.4: Sexual Battery
Penal Code Section 243.4 criminalizes touching an intimate part of another person while the victim is unlawfully restrained or institutionalized for medical treatment, against the victim's will for the purpose of sexual arousal, sexual gratification, or sexual abuse. Violations may be charged as felonies or misdemeanors depending on the specific subsection and circumstances. This offense may be charged as a lesser included offense or alternative charge to Penal Code Section 288(b)(2).
California Penal Code Section 368: Elder and Dependent Adult Abuse
Penal Code Section 368 prohibits willfully causing or permitting any elder or dependent adult to suffer unjustifiable physical pain or mental suffering, or willfully causing or permitting the person or health of an elder or dependent adult to be endangered. This statute also criminalizes theft, embezzlement, forgery, fraud, and identity theft targeting elders and dependent adults. Prosecutors may charge Section 368 violations in conjunction with or as alternatives to Section 288(b)(2) charges.
COLLATERAL CONSEQUENCES BEYOND INCARCERATION AND REGISTRATION
Immigration Consequences and Deportability
Convictions under California Penal Code Section 288(b)(2) constitute aggravated felonies under the Immigration and Nationality Act, specifically qualifying as sexual abuse of a minor under 8 U.S.C. § 1101(a)(43)(A). Aggravated felony convictions render non-citizens deportable pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii), inadmissible pursuant to 8 U.S.C. § 1182(a)(2), and ineligible for most forms of discretionary relief from removal including cancellation of removal, adjustment of status, and asylum.
California Penal Code Section 1016.5 requires trial courts to advise defendants prior to accepting guilty or no contest pleas that if the defendant is not a citizen, conviction of the offense may result in deportation, exclusion from admission to the United States, or denial of naturalization. Failure to provide this advisement entitles defendants to move to vacate the judgment and withdraw their plea upon showing that conviction may have these immigration consequences.
Professional Licensing Consequences
Convictions under Penal Code Section 288(b)(2) result in automatic or discretionary revocation or denial of professional licenses for healthcare workers, teachers, childcare providers, social workers, therapists, and numerous other professions. State licensing boards including the California Board of Registered Nursing, Medical Board of California, Board of Behavioral Sciences, Commission on Teacher Credentialing, and Department of Social Services Community Care Licensing Division impose severe disciplinary sanctions based on sex offense convictions.
Sexually Violent Predator Civil Commitment
California Welfare and Institutions Code Sections 6600-6609.3 authorize involuntary civil commitment of sexually violent predators (SVPs) following completion of criminal sentences. A sexually violent predator is defined as a person who has been convicted of a sexually violent offense against one or more victims and who has a diagnosed mental disorder that makes the person a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behavior.
When inmates convicted of qualifying sexually violent offenses, including violations of Penal Code Section 288(b), approach parole eligibility, the California Department of Corrections and Rehabilitation refers cases to county district attorneys for SVP screening. If the district attorney files an SVP petition and proves beyond a reasonable doubt that the person meets SVP criteria, the court orders indefinite civil commitment to a state hospital until such time as the person no longer meets SVP criteria.
Residency and Employment Restrictions
While the California Supreme Court in In re Taylor (2015) 60 Cal.4th 1019 invalidated blanket residency restrictions under Jessica's Law (Proposition 83) that prohibited all registered sex offenders from living within 2,000 feet of schools and parks, individualized residency restrictions remain permissible based on the specific circumstances of the offender's crimes and risk to public safety.
High-risk sex offenders, including those convicted of lewd acts involving children under fourteen and persons designated as sexually violent predators, face stringent residency restrictions prohibiting residence within one-half mile of schools where children attend. Additionally, registered sex offenders face employment prohibitions from positions involving regular contact with minors, vulnerable adults, or dependent persons.
GPS Monitoring and Enhanced Supervision
High-risk sex offenders on parole face mandatory lifetime GPS monitoring pursuant to California Penal Code Section 3004. Enhanced parole conditions may include prohibitions on internet access, restrictions on residing with or near minors or dependent adults, warrantless searches of residence and electronic devices, mandatory participation in sex offender treatment programs, polygraph examinations, and other conditions designed to monitor compliance and prevent reoffense.
Social Stigma and Collateral Disabilities
Beyond formal legal consequences, persons convicted under Penal Code Section 288(b)(2) face profound social stigma affecting employment opportunities, housing availability, familial relationships, community acceptance, and fundamental quality of life. Public sex offender registration websites maintained pursuant to Penal Code Section 290.46 (Megan's Law) disseminate registrants' names, photographs, addresses, physical descriptions, and offense information, resulting in social ostracism, harassment, threats, and violence.
POST-CONVICTION RELIEF AND REMEDIES
Direct Appeal
Defendants convicted following trial possess the right to appeal to the California Court of Appeal pursuant to California Rules of Court Rule 8.304. Appellate challenges may include insufficiency of evidence, erroneous jury instructions, improper admission or exclusion of evidence, prosecutorial misconduct, ineffective assistance of counsel, and constitutional violations. Appeals must be filed within sixty days of judgment or the date the trial court mails or delivers the order.
Petition for Writ of Habeas Corpus
Persons in custody may file petitions for writ of habeas corpus challenging constitutional violations that affected the validity of their convictions or sentences. In re Clark (1993) 5 Cal.4th 750 established California's standards for habeas corpus relief. Common habeas claims include ineffective assistance of counsel, newly discovered evidence, prosecutorial suppression of exculpatory evidence, and constitutional violations not apparent in the trial record.
Petition for Writ of Error Coram Nobis
Persons no longer in custody may file petitions for writ of error coram nobis seeking to vacate convictions based on facts not apparent in the trial record that, had they been known, would have prevented the conviction. People v. Kim (2009) 45 Cal.4th 1078 established the requirements for coram nobis relief, which functions as the out-of-custody equivalent of habeas corpus. Common coram nobis claims include immigration consequences, ineffective assistance of counsel regarding plea negotiations, and newly discovered evidence of actual innocence.
Motion to Vacate Judgment Based on Penal Code Section 1016.5
Non-citizen defendants who were not properly advised of immigration consequences pursuant to Penal Code Section 1016.5(a) may move to vacate their convictions and withdraw guilty or no contest pleas. The defendant must show that the court failed to provide the mandatory advisement and that the conviction may result in deportation, exclusion from admission, or denial of naturalization. If these showings are made, the court must vacate the judgment and permit plea withdrawal.
Petition for Termination of Sex Offender Registration
Following enactment of Senate Bill 384, persons designated as Tier One or Tier Two registrants may petition for termination of registration obligations after completing their minimum registration periods (ten years for Tier One, twenty years for Tier Two) and meeting additional statutory requirements including successful completion of supervised release without revocation, no subsequent convictions for offenses requiring registration, and no convictions for felonies punishable by imprisonment in state prison.
Tier Three registrants whose designation derives solely from risk assessment (rather than qualifying offenses) may petition for termination after twenty years if they meet additional statutory criteria. However, persons convicted under Penal Code Section 288(b)(2) face lifetime registration as Tier Three offenders based on their qualifying conviction, rendering termination petitions unavailable absent future legislative amendments.
Second Chances Law Group's commitment to dismissal-oriented representation recognizes that preventing initial conviction constitutes the optimal outcome for persons accused under California Penal Code Section 288(b)(2). Our exhaustive investigation, constitutional challenges, evidentiary challenges, and relentless pursuit of case dismissal distinguishes our practice from traditional criminal defense approaches prioritizing negotiated resolutions. We understand that sex offender registration fundamentally alters every aspect of our clients' lives, and we dedicate our practice to preventing these devastating consequences through aggressive, sophisticated, dismissal-focused advocacy.
For persons seeking to avoid conviction or terminate existing registration requirements, Second Chances Law Group provides the specialized expertise, constitutional knowledge, and dismissal-oriented philosophy necessary to achieve optimal outcomes in these life-altering cases. Our practice prioritizes prevention of conviction over negotiation of reduced charges, understanding that only complete dismissal or acquittal truly protects our clients from the devastating consequences of sex offender registration and the profound collateral consequences that follow these convictions.