Is California Penal Code 288a(B)(1) a Misdemeanor or Felony

My question involves criminal law for the state of: California

California Penal Code 288a(b)(1):

Any person who participates in an act of oral copulation with another person who is under 18 years of age shall be punished by imprisonment in the state prison, or in a county jail for a period of not more than one year.

If an 18 year old received oral sex from a 15, 16, or 17 year old, would it be a FELONY or MISDEMEANOR? I read that if the perpetrator is above 21 it is a felony. Based on what I've read, 288a(b)(1) is a "wobbler" crime, meaning it can be tried as a misdemeanor or felony. Would a DA pursue such a case if it was a consensual act among teenagers as I mentioned above?

If a MISDEMEANOR, the statute of limitations would be 1 year, correct?

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Would a DA pursue such a case if it was a consensual act among teenagers as I mentioned above?

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The entire issue is that the party which is a minor cannot GIVE consent. That's why it's a crime in the first place. And yes, the DA could pursue it as a felony. Whether they would or not could only reasonably be guessed at by a criminal defense attorney who practices in the SPECIFIC court in question and would have first hand experience with the DAs office, or even the particular ADA in question.

The 1 year SOL for misdemeanors starts running from when the offense is DICSOVERED, which can create leeway.

PC 288a(b)(1) is a wobbler. That means it can be filed as either a misdemeanor or a felony. if the perpetrator is 21 years or older and the victim is under 16 then this is a felony per PC 288a(b)(2).

If charged as a felony, the SOL does not expire until the victim's 28th birthday pursuant to PC 801.1. If a misdemeanor, it can be filed within one year of the report to law enforcement per PC 803(f)(1).

There are a great many conditions and exceptions on the prosecution times, but those are general guidelines.

So, the suspect will have to be walking on pins and needles for many years to come.

And, yes, the DA would very likely pursue this if the case was able to made. We're doing one right now in my agency between otherwise consenting teens.

Thanks for your responses, both of you. Now I realize this is legal forum, so you are answering me based on what the textbooks say. But if this is the case, why aren't thousands of California teens in jail? I mean, high school students engage in this activity. I've read that many counties in California do not prosecute unless there is more than a 3 year age difference. Is this true? Everything I read on the news is about individuals in their 30's + being charged. I've yet to hear of a teenager being charged.

Because it's the 18 year old that goes to jail.

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Quoting calichick253

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Thanks for your responses, both of you. Now I realize this is legal forum, so you are answering me based on what the textbooks say. But if this is the case, why aren't thousands of California teens in jail?

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Because not everyone goes to jail when convicted, and not every crime is reported.

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I mean, high school students engage in this activity. I've read that many counties in California do not prosecute unless there is more than a 3 year age difference. Is this true? Everything I read on the news is about individuals in their 30's + being charged. I've yet to hear of a teenager being charged.

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Individual counties may set their own standards for prosecution if they wish.

And why would you hear about this on the news? The news does not report every conviction or plea deal in a court, and they cannot obtain the specifics on juveniles convicted.

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Quoting aardvarc

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Because it's the 18 year old that goes to jail.

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Actually, in CA, even a minor can be convicted of this. The statute reads "any person ..."

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Quoting cdwjava

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Because not everyone goes to jail when convicted, and not every crime is reported.


Individual counties may set their own standards for prosecution if they wish.

And why would you hear about this on the news? The news does not report every conviction or plea deal in a court, and they cannot obtain the specifics on juveniles convicted.


Actually, in CA, even a minor can be convicted of this. The statute reads "any person ..."

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I did not literally mean go to jail; I meant be charged, have to go to court, etc. The reason I say this is that I'm a junior in high school myself, and I've yet to hear about a single person in my school being charged with this kind of crime. And there are definitely seniors involved with individuals in younger grades. Same goes surrounding high schools; have yet to hear something like this.

The only cases I've really heard of (rarely nonetheless) is statutory rape in high schools, but I mean, I'm pretty sure these individuals who have sex also engage in oral sex. So why don't DAs ever slap on the extra charge?

Also, under what circumstances would a DA try the wobbler as a misdemeanor? And what circumstances to try as a felony?

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Quoting calichick253

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I did not literally mean go to jail; I meant be charged, have to go to court, etc.

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Juvenile court proceedings are not public records, and I suspect that there are a great many cases that are filed in superior court that are not widely publicized. Most cases are not so significant or heinous as to make headlines.

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The reason I say this is that I'm a junior in high school myself, and I've yet to hear about a single person in my school being charged with this kind of crime.
And there are definitely seniors involved with individuals in younger grades. Same goes surrounding high schools; have yet to hear something like this.

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Then no one is reporting it to the police. The police are not mindreaders, and DAs offices need proof beyond a reasonable doubt to take the offense to trial.

Not HEARING about it does not make it legal or mean that you will get away with it. You can commit a crime at your own risk.

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The only cases I've really heard of (rarely nonetheless) is statutory rape in high schools, but I mean, I'm pretty sure these individuals who have sex also engage in oral sex. So why don't DAs ever slap on the extra charge?

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Because they might not have to. There are a host of reasons why they might not charge someone.

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Also, under what circumstances would a DA try the wobbler as a misdemeanor? And what circumstances to try as a felony?

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Depends on the DA. There is no one-size-fits-all answer.

Thank you. So just to clear this up, up until the victims 28th birthday, the perpetrator could possibly be charged. After his/her 28th birthday, s/he can no longer be charged. Is that correct?

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Quoting calichick253

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Thank you. So just to clear this up, up until the victims 28th birthday, the perpetrator could possibly be charged. After his/her 28th birthday, s/he can no longer be charged. Is that correct?

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For that particular charge, yes. There may be other charges that could be alleged depending on the details. But, for that one and for most other juvenile sex crimes, he should be clear.

Thank you. One more question; under what circumstances would one convicted of 288a(b)(1) have to register a sex offender?

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Quoting calichick253

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Thank you. One more question; under what circumstances would one convicted of 288a(b)(1) have to register a sex offender?

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Only if convicted.

http://www.meganslaw.ca.gov/registration/offenses.htm

I read about a case regarding this exact charge, and that one is not required to register a sex offender.

http://calapp.blogspot.com/2006/03/p...upreme-ct.html

Maybe I read it wrong (too many big words).

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Quoting calichick253

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I read about a case regarding this exact charge, and that one is not required to register a sex offender.

http://calapp.blogspot.com/2006/03/p...upreme-ct.html

Maybe I read it wrong (too many big words).

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Nope, you read it right, but subsequent cases have made it not quite the end of the matter. The statute still exists, and a look at the specific details is required.

The defendant's attorney should know if the case is applicable and whether or not it can be applied.