I. What is Penal Code 647.6 PC? (Annoying or Molesting a Child Under 18)
Penal Code 647.6 PC is the California law that prohibits “annoying” or “molesting” a child under the age of 18. It also prohibits “annoying” or “molesting” an adult that you believe is under the age of 18.
Under Penal Code 647.6 PC, there is no legal difference between the definitions of “annoy” and “molest.” The legal definition of “annoy” or “molest” under the context of Penal Code 647.6 PC is comprised of two components. First, the conduct must be motivated out of a sexual interest in a child or children generally. Secondly, the conduct must be likely to disturb or irritate a child or children. Let us examine these components more closely:
A. Conduct that is Motivated by a Sexual Interest in a Child or Children Generally:
A Penal Code 647.6 PC conviction only punishes conduct that is motivated by an unnatural or abnormal sexual interest in a children or children. You can be guilty of a Penal Code 647.6 violation whether or not you actually intended to coax a child into a sexual act. However, Penal Code 647.6 PC does not punish conduct that is derived from an interest other than sexual interest. Furthermore, you cannot be convicted of annoying and molesting a child if you did not intend for the child or children to observe the conduct. Thus, if a child accidentally witnesses a punishable act, you cannot be convicted of a Penal Code 647.6 PC violation.
A prosecutor will try to prove that your conduct was motivated by a sexual interest in children primarily through two methods. First, they will present evidence of previous conduct towards children. Second, they will present circumstantial evidence surrounding your conduct. In these two areas, it is important to have a sharp and thorough criminal defense attorney working on your side. Your defense attorney can lead an investigation into your case. They can then present counter-evidence to the court on your behalf. This puts pressure on the prosecutor to offer favorable plea bargains. It also makes it difficult for them to prove the intent component of the crime.
B. Conduct that is Likely to Disturb or Irritate a Child:
The California legislature’s goal in passing Penal Code 647.6 PC was to penalize behavior that assaults a child’s sense of privacy and security. Therefore, it was classified as a “general intent” crime. This means that a Penal Code 647.6 conviction does not require that you intended for your conduct to be lewd or indecent. It doesn’t matter if you thought your actions were appropriate or proper. The only thing that matters in a
Penal Code 647.6 PC cases are societal standards on how to treat children.
Furthermore, it does not matter if your conduct actually disturbed, annoyed, or irritated the child. Penal Code 647.6 is assessed using an “objective” test. This means that the court will not consider whether the victim was actually harmed. The court will only consider whether or not your conduct would distrurb, annoy, or irritate an average, normal child.
Penal Code 647.6 PC stands in contrast with other sexual offenses in that it does not require actual physical contact with a victim’s body. You can violate Penal Code 647.6 PC through the use of words alone if they would objectively “annoy” or “molest” an average, normal child. Additionally, conduct that does not result in actual touching of the victim, such as masturbating in front of a child, can also violate Penal Code 647.6 PC.
Lastly, Penal Code 647.6 PC does not require a focus on a certain child or group of children before you commit the conduct. Act. The law only requires that your conduct be motivated out of a sexual interest in a child or children generally.
The best way to understand Penal Code 647.6 PC is through examples:
Example: Douglas and Melanie are dating. One evening, Douglas is babysitting Melanie’s son Barton. While watching television, Douglas asks Barton if he would like to receive oral sex. This would be a Penal Code 647.6 PC violation because Douglas’ conduct is motivated from a sexual interest in Barton and it would most certainly be considered as disturbing to a child. Note that just asking Barton the question was sufficient to violate Penal Code 647.6 PC. No actual touching was required.
Example: On a Wednesday afternoon, Rick parks his car in middle school parking lot and masturbates. Rick could be convicted of Penal Code 647.6 PC. The prosecutor would argue that the masturbation is motivated out of a sexual interest in children because he chose to do so in a school parking lot. And Rick did so on a weekday, at time when students typically get out of school. Hence, it was likely that children would observe the masturbation.
Example: Michael’s home is located in the same neighborhood as a middle school. One day, Michael masturbates in his bedroom while watching pornography on his computer. Unfortunately, Michael forgot to close his curtains before doing so. As a result, some students see Michael masturbating as they are walking home. Shocked and disturbed, the students run home and tell their parents who then call the police. In this case, Michael did not commit a Penal Code 647.6 PC violation. His conduct was not motivated out of a sexual interest in a child or children generally. Note, this is the case even if the students were actually disturbed. A conviction for Penal Code 647.6 PC requires that the conduct meet the requirements of all of the law’s components.
II. How can you be punished for a Penal Code 647.6 PC violation?
Penal Code 647.6 PC is considered a “wobbler.” This means that a Penal Code 647.6 PC violation can be charged as a misdemeanor or a felony – depending on your criminal history and the specific circumstances of the crime.
A. Penal Code 647.6 PC as a “Wobbler”
As a “wobbler”, prosecutors have the discretion to charge a Penal Code 647.6 PC violation as a misdemeanor or a felony. A prosecutor will charge the Penal Code 647.6 PC violation as a felony if it involves a particular set of aggravating circumstances. For example, you will be charged with a felony if you entered an inhabited building, without consent, for the purpose of annoying or molesting a child. Additionally, if your criminal history suggests you might be a danger to children, then you will be charged with a felony.
B. Misdemeanor Punishment for Penal Code 647.6 PC
Typically, a first time Penal Code 647.6 PC violator will be charged with a misdemeanor. But as mentioned above, if the case involves aggravating circumstances, a first time offense could be charged as a felony. A misdemeanor conviction for Penal Code 647.6 PC can be punished with up to 1 year in county jail and/or a fine of up to $5,000.
C. Felony Punishment for Penal Code 647.6 PC
If you have any prior felony convictions for annoying or molesting a child, then further violations will be automatically charged as a felony. This is also the case if you have any previous felony convictions for certain specific sex offenses. Some of these sex offenses include: Penal Code 288.5 (continuous sexual abuse of a child), Penal Code 21 (rape of a minor under the age of 16), Penal Code 288 (Lewd Acts with a Child), Penal Code 311.4 (Child Pornography). If you have a felony for any of these offenses, even if it’s your first time violating Penal Code 647.6 PC, then you will be charged with a felony.
The punishment for a felony under Penal Code 647.6 PC is up to 3 years in a California state prison. If you have a previous felony conviction for certain sex offenses, like those listed above, then a subsequent Penal Code 647.6 PC violation is punishable anywhere from 2 to 6 years in California state prison.
D. Probation Punishment for Penal Code 647.6 PC
The court can sentence you to a term of probation instead of jail or prison time. However, the court will only do this if there are no aggravating circumstances. The court will consider the particular circumstances of your offense, your criminal history, and whether or not you pose a danger to the community. These court orders cannot be modified unless the victim requests it or the court conducts a hearing and determines a modification is in the victim’s best interest.
If you are eligible for probation, the type you receive will depend on whether you are charged with misdemeanor or a felony. In addition, the court may issue an order preventing you from contacting the victim.
(i) Misdemeanor Probation (Summary Probation)
In California, misdemeanor probation usually ranges from 1-3 years. If granted probation, you will be required to pay fines, do community service, meet with a counselor, and periodically appear before a judge who will assess your performance of the probation requirements.
(ii) Felony Probation (Formal Probation)
Felony probation under Penal Code 647.6 PC usually ranges between 3-5 years. It typically involves paying restitution to victims, meeting with a probation officer, and fulfilling the requirements set for you by the judge or probation officer. Felony probation does not mean you are off the hook from jail time. You could be required to complete a 1-year term in county jail. Furthermore, a violation of the probation terms and conditions could land you in state prison. Similar to misdemeanor probation, you will probably have to meet with a mental health counselor as one of your terms and conditions.
E. Sex Offender Registration
A Penal Code 647.6 conviction will subject you to registration as a sex offender. Hence, information about you and your offense will be available for the public to see on the Department of Justice’s Meghan’s Law website. In the past, a Penal Code 647.6 PC conviction would subject you to lifetime sex offender registration. However, California currently follows a three-tier system of sex offender registration.
If you are facing a first-time conviction, then it is considered a tier one offense. This will subject you to a minimum of 10 years of sex offender registration. A second-time Penal Code 647.6 PC conviction is considered a tier two offense. This will subject you to a minimum of 20 years of sex offender registration.
You can apply to be excluded from registration on the Meghan’s Law website if your Penal Code 647.6 conviction is only a misdemeanor. In this case, you are still subject to sex offender registration. But you can get removed if you earn and obtain a certification of rehabilitation. Additionally, you can remove yourself from the sex offender registry if you registered for ten years and obtain the court’s permission.
III. How do you fight a Penal Code 647.6 PC charge?
There are a variety of legal defenses to Penal Code 647.6 PC. An experienced and diligent attorney can review the specific circumstances of your case and determine what legal defenses are available. They can then incorporate these defenses into a larger legal strategy to maximize the best possible outcome. Some legal defenses to annoying and molesting a child include:
The victim is not telling the truth.
The victim mistook the conduct as inappropriate.
The behavior does not have a tendency to annoy, disturb, or irritate a child.
The behavior was not derived out of a sexual interest in children.
It is not uncommon for someone to be falsely accused of annoying or molesting a child. In situations involving divorce, one spouse may try to use the welfare of their child as a tactic to gain leverage in marital proceedings. Even though they have the child’s best interest at heart, school officials may wrongly seek charges against an innocent person based on faulty facts or misunderstandings. Sometimes the accuser is simply not telling the truth. This is especially true if someone is coaching the child or manipulating them for nefarious reasons.
Regardless of why you are charged with a Penal Code 647.6 PC violation, being charged with annoying or molesting a child can lead to severe ramifications. A conviction for Penal Code 647.6 PC can destroy a person’s reputation, career, and personal life.
A. Diminishing a Witness’ or Alleged Victim’s Credibility
Unfortunately, annoying or molesting a child cases often turn into he said/she said situations. In these cases, the result will often turn on the credibility of the alleged victim and their witnesses. Thus, it is important to have a zealous and thorough defense attorney on your side that will utilize a variety of methods to attack the credibility of unfavorable witnesses, such as: interviewing the accuser’s friends and family; monitoring social media accounts; subpoena school and medical records; subpoena text messages, phone calls, and email accounts; or background check the alleged victim and witnesses. By using these tactics, a defense attorney can highlight the fact that a particular accuser has a history of being dishonest or fabricating false accusations. Furthermore, it can illuminate any biases or hidden agendas on the part of alleged victims or witnesses.
B. Showing the Conduct was Not Driven by Sexual Interest
A Penal Code 647.6 PC conviction requires that the prosecutor prove the conduct was motivated by sexual interest in a child or children generally. If this cannot be proved or the defense can show the conduct was the result of other motivations, then you cannot be convicted of annoying or molesting a child.
C. Utilizing Polygraph Tests
Polygraph tests are commonly known as lie detector tests. Typically, prosecutors and police most often utilize them. However, California allows for the use of private defense polygraph tests. The results are confidential and the mere fact that you took a polygraph test does not need to be revealed to the public or the court. In fact, your defense attorney will only reveal the results of a polygraph test if it shows that you are telling the truth and it is favorable to your case.
Private polygraph tests are usually performed by former police officers with a good reputation with prosecutors and judges. It is important to note that private polygraph tests are not considered admissible evidence in a court of law. However, they are useful in convincing the court to dismiss or reduce charges.
IV. Penal Code 647.6 Versus other California Sex Crimes.
Penal Code 647.6 primarily differs from other California sex crimes in two ways. First, a conviction for annoying or molesting a child does not require actually touching a child. Secondly, you can be convicted of Penal Code 647.6 PC even if you did not have the intent to seduce the child. Let’s take a look closer look at other California sex crimes and compare them to annoying and molesting a child:
A. Voyeurism of a Minor (Penal Code 647(j) PC)
Penal Code 647(j) PC is known as the “Peeping Tom” crime. You can be convicted of Penal Code 647(j) PC if you spy or record another person. However, unlike the law for annoying and molesting a child, you can only be convicted of Penal Code 647(j) PC if it can be proven you had the intent to invade that person’s privacy. Penal Code 647(j) also differs from annoying and molesting a child in that it applies to acts not intended to be observed by the victim.
A Penal Code 647(j) conviction is a misdemeanor and can result in up to one year in county jail and/or up to a $2,000 fine.
B. Sending Harmful Matter with the Intent to Seduce a Minor (Penal Code 288.2 PC)
Both Penal Code 288.2 PC and annoying and molesting a child are similar in that both crimes punish conduct that is motivated by a sexual interest. However, a Penal Code 288.2 PC conviction also requires prosecutors to prove that there was intent to seduce the minor victim. Additionally, it also requires the sending of harmful or pornographic material to a minor with the aim of seducing the minor.
Penal Code 288.2 PC is categorized as a “wobbler” which means it can be charged as a misdemeanor or felony – depending the circumstances of the crime and your criminal history. A misdemeanor conviction can result in summary probation, up to 6 months in county jail, and/or up to a $1,000 fine. Meanwhile, a felony conviction can result in formal probation, up to 3 years in California state prison, up to a $10,000 fine, and/or subject you to lifetime sex offender registration.
C. Contacting a Minor with Intent to Commit a Felony (Penal Code 288.3 PC)
A Penal Code 288.3 PC conviction can result in a state prison term equal to the punishment for the attempt to commit that particular felony. In order to be convicted of Penal Code 288.3 PC, the prosecutor must prove that you contacted a minor with the intent to commit one of a specified list of felonies. Some of the felonies on this list include, but are not limited to, kidnapping, rape, child pornography, or lewd acts. Note, that a Penal Code 288.3 conviction does not require that these felonies be actually committed. It only matters that you contacted the minor with the intent to commit one of the specified offenses.
D. Lewd Acts with a Child (Penal Code 288 PC)
You can be convicted of Penal Code 288 PC if the prosecutor can prove that you intentionally touched a child with the intent to sexually arouse or satisfy yourself or the victim. The law applies to a broad definition of touching. You can be guilty of Penal Code 288 PC with any type of touching. The law is not limited to touching that involves genitalia. This means you can be convicted even if you simply touched the victim’s clothing.
If convicted of Penal Code 288 PC, the punishment will depend on the age of the child and the methods used to commit the lewd acts. For example, if force or threats were used, it will result in a more severe punishment. Depending on the circumstances of the crime , you could receive a year in county jail or up to a decade in California state prison. Furthermore, if you were convicted of a previous sex offense, then your punishment could reach up to 25 years to life. Additionally, if the victim was under the age of 14, then it is classified as a serious felony and you will receive a strike under the California Three Strikes Law.