California punishes a lewd act with a 14- or 15-year-old under Penal Code section 288(c)(1), a wobbler carrying up to 3 years in state prison or 1 year in county jail, but only when the other person is at least 10 years older. With a smaller gap, section 288 generally does not apply; a child under 14 brings the harsher felony in 288(a). A 288(c)(1) conviction requires lifetime registration.
What makes this different from the general lewd act law
Penal Code section 288 punishes a willful, lewd act on a child's body, done with the specific intent to arouse, appeal to, or gratify sexual desire, in very different ways depending on the child's age and the age gap between the child and the other person. The base offense in subdivision (a) applies when the child is under 14, with no age-gap requirement at all, and carries 3, 6, or 8 years in state prison, always as a felony. Subdivision (c)(1) applies instead when the child is 14 or 15 and the other person is at least 10 years older, and the punishment drops to 1, 2, or 3 years in state prison, or up to 1 year in county jail. The same subdivision separately covers a caretaker who commits the act on a dependent person under (c)(2), a different fact pattern not covered here.
If the child is 14 or 15 and the age gap between the two people is less than 10 years, this specific lewd act provision does not apply; depending on the exact conduct, a different statute, such as the law on unlawful sexual intercourse, may apply instead, with its own separate age and penalty rules. The 10-year gap is what brings a 14- or 15-year-old's case into section 288 in the first place.
How the law counts the 10-year age gap
The statute requires the other person to be "at least 10 years older than the child," and it says how to count: the difference in age is measured "from the birth date of the person to the birth date of the child." A gap of 9 years and 11 months does not qualify, no matter how close it is. Separately, the child must have been 14 or 15 at the time of the act. A mistaken belief about the child's age is not a defense to a completed section 288(c)(1) charge (People v. Paz (2000) 80 Cal.App.4th 293), although a mistake-of-fact defense may apply to a charge of attempting the offense (People v. Hanna (2013) 218 Cal.App.4th 455). Both cases are listed in the authority notes to the standard jury instruction, CALCRIM No. 1112, which also tells jurors that a person becomes a year older at the first minute of their birthday.
Why this is a wobbler, and what that changes
A "wobbler" is an offense a prosecutor can file as either a felony or a misdemeanor, and a court can later reduce a felony wobbler conviction to a misdemeanor under Penal Code section 17(b) in appropriate cases. For section 288(c)(1), that choice matters a great deal: a felony conviction carries a possible 1, 2, or 3 years in state prison plus the other consequences of a felony record, while a misdemeanor conviction caps custody at 1 year in county jail. Whether a case is filed and resolved as a felony or a misdemeanor is often the single biggest factor in how much exposure you actually face, which is why the initial charging decision and any later request to reduce it both deserve early attention from a lawyer.
How this can overlap with another charge
Section 288 punishes a lewd touching; it does not require intercourse. If the alleged conduct went further, the same facts can also implicate Penal Code section 261.5, unlawful sexual intercourse with a minor, which has its own separate age-gap tiers: intercourse with a minor within three years of your own age is a misdemeanor; a gap of more than three years makes it a wobbler, punishable by up to a year in county jail or by a felony term under Penal Code section 1170(h); and if you are 21 or older and the other person is under 16, it remains a wobbler, but the felony term is two, three, or four years. These two statutes can overlap on the same facts, and prosecutors sometimes charge both, so the exact conduct alleged, not just the ages involved, decides what you are actually facing.
Sex offender registration still applies
A conviction under section 288(c)(1) requires lifetime sex offender registration. California's three-tier registration law places section 288(c) convictions, including (c)(1), in Tier Three, the lifetime tier, under Penal Code section 290(d)(3)(C)(ix), even though the underlying offense is a wobbler with a comparatively short custody range; tier placement does not track the length of the custodial sentence. Tier One and Tier Two registrants can petition to end registration after their minimum period, but a Tier Three placement that comes from the offense itself, as it does here, has no such petition route under Penal Code section 290.5; see the firm's answer on when you can petition to end California sex registration for how the tiers and timing work. If probation is granted, the conditions can include strict limits on contact with minors; see the firm's answer on contact with minors during California sex-offense probation.
Common defenses
Because every element has to be proven, common defenses focus on disputing one of them rather than arguing the conduct was legal:
- The actual age gap, based on both people's real birth dates, was less than 10 years.
- No lewd intent: the touching, if it happened, was not done to arouse, appeal to, or gratify anyone's sexual desire.
- Mistaken identity or insufficient evidence that the specific touching alleged ever occurred.
- A false or exaggerated accusation, including ones that arise from a custody dispute or a falling-out between families.
Two arguments do not work: consent is not a defense, and, as noted above, neither is a mistaken belief about the child's age for a completed offense.
Every one of these cases turns on exact ages, exact conduct, and the evidence behind the accusation. The Law Offices of David S. Chesley can go over the specific allegations with you; reach the firm at (800) 755-5174.