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Dimitry Esquire
Dimitry Esquire, Attorney
Category: Criminal Law
Satisfied Customers: 38062
Experience:  I provide general practice and mediation & arbitration services to my clients.
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is calif pc 288a(b)2 a felony or mist What happens if person

Resolved Question:

is calif pc 288a(b)2 a felony or mist? What happens if person conviced of it fails to register new address? Was arrested, but back to work same day; will he go to jail or trial again? answer at email:XXX@XXXXXX.XXX.
Submitted: 4 years ago.
Category: Criminal Law
Expert:  Dimitry Esquire replied 4 years ago.
Thank you for your question.

This is the statute in question. As you can see it is deemed a felony:


(a) Oral copulation is the act of copulating the mouth of one
person with the sexual organ or anus of another person.
(b) (1) Except as provided in Section 288, 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.
(2) Except as provided in Section 288, any person over the age of
21 years who participates in an act of oral copulation with another
person who is under 16 years of age is guilty of a felony.

(c) (1) Any person who participates in an act of oral copulation
with another person who is under 14 years of age and more than 10
years younger than he or she shall be punished by imprisonment in the
state prison for three, six, or eight years.
(2) Any person who commits an act of oral copulation when the act
is accomplished against the victim's will by means of force,
violence, duress, menace, or fear of immediate and unlawful bodily
injury on the victim or another person shall be punished by
imprisonment in the state prison for three, six, or eight years.
(3) Any person who commits an act of oral copulation where the act
is accomplished against the victim's will by threatening to
retaliate in the future against the victim or any other person, and
there is a reasonable possibility that the perpetrator will execute
the threat, shall be punished by imprisonment in the state prison for
three, six, or eight years.
(d) Any person who, while voluntarily acting in concert with
another person, either personally or by aiding and abetting that
other person, commits an act of oral copulation (1) when the act is
accomplished against the victim's will by means of force or fear of
immediate and unlawful bodily injury on the victim or another person,
or (2) where the act is accomplished against the victim's will by
threatening to retaliate in the future against the victim or any
other person, and there is a reasonable possibility that the
perpetrator will execute the threat, or (3) where the victim is at
the time incapable, because of a mental disorder or developmental or
physical disability, of giving legal consent, and this is known or
reasonably should be known to the person committing the act, shall be
punished by imprisonment in the state prison for five, seven, or
nine years. Notwithstanding the appointment of a conservator with
respect to the victim pursuant to the provisions of the
Lanterman-Petris-Short Act (Part 1 (commencing with Section 5000) of
Division 5 of the Welfare and Institutions Code), the prosecuting
attorney shall prove, as an element of the crime described under
paragraph (3), that a mental disorder or developmental or physical
disability rendered the alleged victim incapable of giving legal
consent.
(e) Any person who participates in an act of oral copulation while
confined in any state prison, as defined in Section 4504 or in any
local detention facility as defined in Section 6031.4, shall be
punished by imprisonment in the state prison, or in a county jail for
a period of not more than one year.
(f) Any person who commits an act of oral copulation, and the
victim is at the time unconscious of the nature of the act and this
is known to the person committing the act, shall be punished by
imprisonment in the state prison for a period of three, six, or eight
years. As used in this subdivision, "unconscious of the nature of
the act" means incapable of resisting because the victim meets one of
the following conditions:
(1) Was unconscious or asleep.
(2) Was not aware, knowing, perceiving, or cognizant that the act
occurred.
(3) Was not aware, knowing, perceiving, or cognizant of the
essential characteristics of the act due to the perpetrator's fraud
in fact.
(4) Was not aware, knowing, perceiving, or cognizant of the
essential characteristics of the act due to the perpetrator's
fraudulent representation that the oral copulation served a
professional purpose when it served no professional purpose.
(g) Except as provided in subdivision (h), any person who commits
an act of oral copulation, and the victim is at the time incapable,
because of a mental disorder or developmental or physical disability,
of giving legal consent, and this is known or reasonably should be
known to the person committing the act, shall be punished by
imprisonment in the state prison, for three, six, or eight years.
Notwithstanding the existence of a conservatorship pursuant to the
provisions of the Lanterman-Petris-Short Act (Part 1 (commencing with
Section 5000) of Division 5 of the Welfare and Institutions Code),
the prosecuting attorney shall prove, as an element of the crime,
that a mental disorder or developmental or physical disability
rendered the alleged victim incapable of giving consent.
(h) Any person who commits an act of oral copulation, and the
victim is at the time incapable, because of a mental disorder or
developmental or physical disability, of giving legal consent, and
this is known or reasonably should be known to the person committing
the act, and both the defendant and the victim are at the time
confined in a state hospital for the care and treatment of the
mentally disordered or in any other public or private facility for
the care and treatment of the mentally disordered approved by a
county mental health director, shall be punished by imprisonment in
the state prison, or in a county jail for a period of not more than
one year. Notwithstanding the existence of a conservatorship pursuant
to the provisions of the Lanterman-Petris-Short Act (Part 1
(commencing with Section 5000) of Division 5 of the Welfare and
Institutions Code), the prosecuting attorney shall prove, as an
element of the crime, that a mental disorder or developmental or
physical disability rendered the alleged victim incapable of giving
legal consent.
(i) Any person who commits an act of oral copulation, where the
victim is prevented from resisting by any intoxicating or anesthetic
substance, or any controlled substance, and this condition was known,
or reasonably should have been known by the accused, shall be
punished by imprisonment in the state prison for a period of three,
six, or eight years.
(j) Any person who commits an act of oral copulation, where the
victim submits under the belief that the person committing the act is
the victim's spouse, and this belief is induced by any artifice,
pretense, or concealment practiced by the accused, with intent to
induce the belief, shall be punished by imprisonment in the state
prison for a period of three, six, or eight years.
(k) Any person who commits an act of oral copulation, where the
act is accomplished against the victim's will by threatening to use
the authority of a public official to incarcerate, arrest, or deport
the victim or another, and the victim has a reasonable belief that
the perpetrator is a public official, shall be punished by
imprisonment in the state prison for a period of three, six, or eight
years.
As used in this subdivision, "public official" means a person
employed by a governmental agency who has the authority, as part of
that position, to incarcerate, arrest, or deport another. The
perpetrator does not actually have to be a public official.
(l) As used in subdivisions (c) and (d), "threatening to retaliate"
means a threat to kidnap or falsely imprison, or to inflict extreme
pain, serious bodily injury, or death.
(m) In addition to any punishment imposed under this section, the
judge may assess a fine not to exceed seventy dollars ($70) against
any person who violates this section, with the proceeds of this fine
to be used in accordance with Section 1463.23. The court shall,
however, take into consideration the defendant's ability to pay, and
no defendant shall be denied probation because of his or her
inability to pay the fine permitted under this subdivision.
If a person fails to register, and it is deemed a felony, the person is looking at an additional felony, with 90 days mandatory jail time, up to 36 months in state prison, and revocation of any parole or probation.

Hope that helps.

Edited by Dimitry Alexander Kaplun on 5/26/2010 at 5:01 AM EST
Customer: replied 4 years ago.
How would I know if the failure to register his new address is a felony or not? How can I keep track of this case? He was originally registered in San Bernardino county, now was arrested in Imperial County for failing to register new address. Works with my husband, I get stuck out in the middle of the desert with him alone at times myself; so I really want to keep track of him; he's an independent contractor at the job, is there a way to have an official contact the job (a federal job) as to his status?
Expert:  Dimitry Esquire replied 4 years ago.
The only way to know is to contact the county out of which he is supposed to register, and ask. Otherwise go to the link below for tracking--it has a link on the left hand side to California's sex offender databases. This will permit you to also keep track of his status:

http://www.meganslaw.ca.gov/sexreg.htm


Good luck!

Edited by Dimitry Alexander Kaplun on 5/26/2010 at 5:14 AM EST
Dimitry Esquire, Attorney
Category: Criminal Law
Satisfied Customers: 38062
Experience: I provide general practice and mediation & arbitration services to my clients.
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