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This is an academic question regarding criminal law in

Hi this is an academic...
Hi this is an academic question regarding criminal law in California. Let's suppose for the sake of argument a 19 year old has consensual sex with a 13 year old. Under the law he is guilty of violating California penal code section 288, lewd and lascivious acts with a child under 14. Are there any circumstances in which a prosecutor would reduce this charge to a violation of 261.5, unlawful sexual intercourse with a minor? If so what are they? What is required for a prosecutor to do this?
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9/2/2017
Zoey_ JD
Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
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PC 288 is a wobbler, meaning it can be prosecuted as a misdemeanor or a felony. Probation is even possible. So there's a built-in reduction possibility in the statute already. What will make the difference is whether or not the facts and circumstances show that force or intimidation was used and/or suggest that this person is a danger to all young children as opposed to, say an immature 19 year old with a very mature 13-year old girlfriend.

Statutory rape under these circumstances is also a wobbler and has the same reduction and prison possibilities. In fact, the only difference in the severity of the crime is that a conviction for felony pc 288 also results in a strike, while statutory rape does not.

A prosecutor would have the authority to dismiss the PC 288 for purposes of a disposition and offer the 261.5 felony charge. There's no lawful reason he couldn't do it. All that's required is that is his belief that it's the best way for the case to be resolved.

However, if the facts are mitigating, PC 288 would likely be prosecuted as a misdemeanor, where the strike does not apply. If they are ugly, he would almost certainly want the offender to get the strike.

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Customer reply replied 9 months ago
Ok Zoey so to your knowledge that would mean that there is no cut off age for 261.5 and that a person could be charged with that instead under any number of circumstances, and that sole because of the age of the victim, in this case 13 even the police, let's say, would not be required by law to charge the person with a violation of 288. Correct? Thank you very much by the way.

To charge 261.5 there is no minimum age for the complainant, who just has to be under the age of consent. So yes, theoretically, if no force or intimidation was used, the police could arrest for the 261.5 instead of the 288 even with a 13 year old victim.

That said, the DA reviews all cases and is free to change the charge if he feels that another section of the law is more appropriate. After all, the DA is a lawyer and the police are not. Many a defendant who believes that he is being arrested for one set of charges finds out at his arraignment that he's facing the judge with slightly different ones. It's the DA who determines what the charges are based on what be believes he can prove beyond a reasonable doubt under the facts and circumstances of the case.

Zoey_ JD
Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 30,938
Experience: Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
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Customer reply replied 9 months ago
Yep that's what I thought. Thanks very much Zoey.
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