California Penal Code 647. 6, prohibits annoying or molesting a minor below eighteen while influenced by abnormal sexual desire towards the minor. Although most people know that touching a minor under eighteen is illegal, they do not realize that words alone can have them behind bars. This is because physical contact is not an element required for a defendant to be convicted under penal code 647.6.
A conviction under this statute can have lifelong consequences, which is why if you or a friend has been accused of annoying or molesting a child, you should reach out to a skilled criminal defense attorney. Our experienced attorneys at Riverside Criminal Defense Attorney can help with your charges and ensure you get the best possible results.
How Does the Law Define Annoying and Molesting a Child?
Under PC 647.6, annoying and molesting share the same meaning. There are two major components of this crime which include:
- The defendant engaged in a conduct/behavior that is likely to cause irritation or disturbance to a child under eighteen years
- The conduct was motivated by a sexual attraction to the minor
Below is the legal and in-depth meaning of the elements listed above.
Conduct/behavior that is likely to cause irritation or disturbance to child below eighteen years
PC 647.6 prohibits that:
- Are motivated by a sexual attraction to the minor, and
- Those that invade the minor’s privacy
The law refers to this crime as a general intent crime. Meaning that intent is not an important element to have you convicted for this crime. Even though you consider your conduct passionate, you can still be convicted if it irritates a normal person beyond a reasonable doubt.
Even though you had not picked a specific child before your conduct, you can still be found guilty if your behavior arises from an abnormal sexual interest in a group of children or a particular child. Note that the conduct does not have to irritate the minor. The law does not focus more on the outcome of the conduct; rather, it focuses on the conduct itself as an objective test.
PC 647.6 does not require any form of contact; actions and words are enough to cause molestation or annoyance to the child. Even if the child does not get offended, but the conduct is probable to irritate a normal person and invade the minor's privacy, you can still be convicted under pc 647.6. Indirect sexual conduct like masturbation is also prohibited under this statute if intended to annoy or molest a minor.
Motivated by sexual interest
Motivation by an abnormal or unnatural sexual desire towards the minor is a key element under this statute. However, you are not required to seduce or intend to seduce a minor. If the motivation behind the conduct is not a sexual interest, then that is not a crime under this statute. Also, conduct that the minor saw or heard accidentally doesn’t count as an offense.
There are certain ways that the court can prove sexual interest in someone’s conduct. They can, for example, use:
- Previous behavior or conduct towards children or a child whom you’ve had a prior relationship with, or
- The evidence provided for your alleged behavior
For instance, Mike resides near a school, and one evening, he decides to masturbate. At the same time, children are walking home from school. Since Mike’s curtains aren’t fully closed, Alexa and her friend see Mike masturbating. Even though they are bothered by Mike’s actions, Mike cannot be convicted under PC 647.6 since his actions were not motivated by a sexual desire in the children.
However, if Mike had driven and parked outside a school gate and waited till hometime for the kids, and as the children left school, he lowered his window, unzipped his pants, and started masturbating, he could have been charged with annoyance or molestation of a minor/minors. This is because he parked at the school gate and waited till children started leaving, which shows his conduct was not accidental. His conduct was influenced by a sexual desire in children.
Penalties for Annoying and Molesting a Minor
If you are convicted under PC 647.6 for the first time, you will be charged with a misdemeanor, and you are likely to face the following:
- Fines of up to $5,000
- Detainment in county jail for one year
There are specific times when this offense is considered a wobbler (meaning the prosecutor has the power to charge it as a felony or misdemeanor). These times are when a defendant enter without consent in:
- A trailer couch
- An occupied dwelling house
- The occupied part of any other building
There are several factors that will help the prosecutor determine whether to charge the crime as a misdemeanor or felony. Some of these factors include:
- Your past criminal history
- The determination of whether you pose any risk to other minors
If the prosecutor decides to charge the offense as a misdemeanor, you will face:
- A maximum fine of $5,000
- Detainment in county jail for up to one year
However, if charged with a felony, you may face imprisonment in California state prison for 16 months to 3 years.
If you have been convicted before for annoying or molesting a child, you will be convicted of a felony. A subsequent charge under penal code 647.6 is punishable by imprisonment in California state prison for three years. Note that if you are a first offender of penal code 647.6 but have a previous conviction for other sex offenses like:
- Child pornography (Penal code 311.4)
- Lewd acts with a minor ( penal code 288)
- Continuous sexual abuse of a minor (penal code 288.5)
- Rape of a minor below 16 years (penal code 261)
With previous felony convictions of the above offenses, you are likely to face imprisonment in state prison for two to six years.
Probation in place of Prison or Jail time
A judge may order you to undergo probation instead of serving a term behind bars. However, this depends on your history, the circumstances and factors surrounding your case, and if you are a danger to children.
If a judge grants you probation, you could either be placed on felony probation, termed formal probation, or misdemeanor probation also termed summary probation. In California, informal probation lasts between one to three years and five years. If placed on misdemeanor probation, you will be expected to participate in community service and pay fines. You will also be expected to show up before a judge to present your progress reports.
On the other hand, felony probation lasts up to five years. If you are placed on felony probation, you are expected to do the following:
- Comply with the regulations set by the probation officer and the judge
- Make victim restitution
- Report to the probation officer
Instead of prison time, the judge may opt to place you on felony probation as well as a one-year detainment in county jail. But if you violate the terms set for your felony probation, the judge may send you back to prison.
If you are placed on either a misdemeanor or felony probation under penal code 647.6, you will be put on a lot of counseling. And, if the court issues a court order prohibiting you from having any form of contact with the victim, the order can only be modified if:
- The victim requests the court to do so, ad
- A court finds that the modification would be in the best interest of the victim
Registration as a Sex Offender
If you are charged with annoying and molesting a child, you are expected to register as a sex offender under California law. If you are a first-time offender, which is classified as a tier-one offense, you are expected to undergo sex offender registration for not less than ten years. A second or subsequent charge is classified as a tier two offense, and if you are convicted under this, you are expected to register as a sex offender for not less than 20 years. The registration information is always public on Megan’s Law Website on the Department of Justice.
Earlier, this offense carried a lifetime registration as a sex offender, but a three-tier registration of sex offenders was created by the California Senate Bill 384. Currently, only tier three offenses hold a lifetime registration as sex offenders.
Note that if you are charged with a misdemeanor under PC 647.6, you can request the court exclude your details from the Megan’s Law Website. However, you will still have to register as a sex offender until you have successfully registered for ten years. Then you got permission from the court to get off the registry, or you obtained a California Certificate of Rehabilitation.
Legal Defenses Against PC 647.6 Charges
There are different defense strategies that you can use to fight your PC 647.6 charges. However, the best defense depends on o the circumstance around your case. Every case is different, which is why you should get help from a criminal defense attorney to ensure you use the most applicable defense for your case.
Below are some of the most common defenses:
Questioning the Credibility of the Witness or the Accuser
After the accused has reported the matter to the law authorities and forwarded the case to the court, getting legal representation is crucial for the defendant. Before the hearing, your attorney may:
- Dig deep into the records of the accused, including their medical, counseling, and school records, not to forget their social network accounts and emails.
- Carry out a thorough background check on the witnesses and the accuser
- Conduct interviews with the accuser’s family, friends, and schoolmates.
These records may help discover more about the accuser and tier credibility. They could prove that the accuser has a lying history or show some pre-existing bias between the accused and the defendant.
For instance, Mary tells her parents that Mike is always standing by the road while coming from school. Mary claims that Mike always makes sexual comments about her body daily. However, Mary posts a different story on Instagram. She posts that her neighbor shouted at her to keep off his lawn. She later makes bad comments about his looks and inspires people to make the same comets. If the prosecutor discovers this evidence, the charges will be dismissed.
Showing that Your Conduct was not Motivated by Sexual Interest towards the Minor
One of the crucial elements of penal code 647.6 is motivation by a sexual desire in a minor. Under this statute, you cannot be convicted if your conduct was innocent or you had a different motive other than sexual interest.
For instance, Mike complains to his parents that his class teacher John keeps asking him about the times he has engaged in sexual acts. However, it turns out that the teacher had heard Mike telling his friends that his best friend at home keeps touching his thighs. John was only asking Mike this question to know if his best friend was molesting him. When the other students are questioned, their testimonies match Bill’s story. Since John’s conduct was not motivated by sexual conduct, he can't be convicted under PC 647.6.
Another example is Mary’s stepdad does not like Mary because he thinks she is ruining his relationship with her mother. While Mary’s mother was away, her stepdad invited his friends for coffee one evening. While Mary was serving them, the stepdad asked him if she was sexually active in front of his friends. He keeps asking her sexual questions to humiliate her. Since his conduct is not motivated by sexual interest, he cannot be charged under PC 647.6.
Private Defense Lie Detector Tests
Polygraph examinations or lie detector tests mainly involve the police. However, the defense also has permission to conduct lie detector tests in California. This helps keep the polygraph results private, not unless the person passes. In most cases, these tests are conducted by a police polygrapher or a former FBI, who the district attorney finds credible.
If the results show that you are telling the truth, your lawyer can take them to the prosecutor. Even if the detector test is inadmissible in court, your defense attorney can help convince the prosecutor to dismiss the case. But the aim of the district attorneys is not to put innocent people in jail. But if your results are not telling the truth, the results will be shredded, and no one can know the polygraph took place.
Although annoying and molesting a minor differs from other sex crimes in that there is no seduction intent or touching required to have one convicted, other crimes are still charged together with or along with PC 647.6.
The voyeurism of a minor (Peeping Tom) —Penal code 647 (j)
Tom is prohibited under penal code 647(j) as a peeping. The law defines this crime as spying or recording a video of another person to invade their privacy. The difference between PC 647.6 and 647(j) is that penal code 647(j) applies to conduct that is not meant to be observed by the minor.
Voyeurism is an offense charged as a misdemeanor in California. If you are charged with a misdemeanor, you are likely to face:
- Fies of up to $2,000
- Detainment in county jail for one year
Sending Harmful Matter with the Intent to Seduce a Minor — Penal Code 288.2
Penal code 288.2 is similar to child annoyance and molestation in that they are both motivated by sexual interest. But sending harmful matter to seduce a minor requires the element of seducing the minor. And the defendant is required to send harmful matter or pornographic material to further their intention.
This offense is convicted as a wobbler in California, meaning the prosecutor can charge it as a misdemeanor or a felony. If charged with a misdemeanor, you are likely to face:
- Maximum fines of $1,000
- Informal probation
- County jail detainment for up to six months
If changed with a felony violation for sharing harmful materials with a minor, you are likely to face:
- Fines of up to $10,000
- State prison detainment for 16 months or three years
- Formal probation
- Registration as a sex offender under PC 290
Lewd Acts with a Minor — CA PC 288
PC 288 prohibits touching a minor intentionally to arouse or gratify self or the minor sexually. Note that for you to be convicted under this statute, you do not have to touch the minor of their private parts or with your private parts. Touching a minor through clothes is rough to have you convicted for lewd acts with a child.
The penalties for this crime vary based on the child's age and any force or threat used. But the offense is charged as a wobbler meaning the prosecutor can charge it as a misdemeanor or a felony. If charged with a felony, you are likely to face:
- Informal probation
- Detainment in county jail for one year
- Fines of up to $1,000
In contrast, if charged with a felony, you are likely to face:
- Detainment in state prison for up to 10 years
- Maximum fines of $10,000
- Formal probation
If the minor was below 14 years, the offense becomes a severe and violent felony, and it counts as a strike under the Three Strikes Law.
Contacting a Child with the Intent to Commit a Felony — Ca PC 288.3
For you to be convicted under this statute, you must have contacted a minor with the intent to commit either of the following felonies:
- Child pornography
- Lewd acts
Note you do not have to commit any of the above offenses for you to be convicted under PC 288.3. You are guilty of just contacting a minor with the intent to commit either of the above offenses.
A violation of this statute can result in detainment in state prison for the same period you would have been detained attempting to commit the specific felony crime. However, for a second or subsequent offender, you will receive five years in state prison for a second or subsequent offender.
Can You Be Subjected to Additional Restrictions If You Are Convicted Under PC 647.6 And Required to Register as a Sex Offender?
When you are convicted for annoying and molesting a minor and must serve parole and pose a risk to children, you may have additional restrictions. These restrictions aim at protecting children from any harm that you are likely to cause. Below are some of the limits that the state and local government may impose:
- City and county residence restrictions —If your state has residential exclusion zones, you may be prohibited from staying up to 2,000 feet away from the residential area.
- Halloween restrictions — If you pose a risk to society, you may also be banned from celebrating Halloween night festivals under operation Boo.
- Parole condition residency restrictions — when you are placed on parole, the CDCR (California Department of Corrections and Rehabilitation) will prohibit you from residing in an area 2,000 feet close to parks or schools, or daycare facilities.
- City and county presence restrictions — you may be ordered to stay 300 to 500 feet away from an area with children. For example, daycare facilities, beaches, parks, schools, arcades, museums, bus stops, and public toilets.
Find a Riverside Criminal Defense Attorney Near Me
If you or your loved one has been convicted under PC 647.6, it is essential to reach out to a skilled criminal defense attorney to help you fight your charges. Our criminal defense attorney at Riverside Criminal Defense Attorney can help you develop a strong defense that will help you fight your charges to get the best possible outcome. Contact us at 951-946-6366 for a free and confidential consultation.