California Penal Code Section 288 defines a category of very serious California sex crimes which fall under the umbrella of lewd acts. Penal Code 288(b)(2) makes it a crime for a caretaker to commit a lewd act on a dependent person, or someone physically impaired over 65 years old, and to do so by the use of force or fear of a bodily injury.
A “caretaker” is described as an owner, operator, employee, or independent contractor of a facility providing care for dependent people or someone 65 or older. The “facilities” normally include an assisted living home, nursing home, or someone providing care in a personal home. A “dependent person” is described as anyone who has physical or mental impairment that prohibits their ability to perform normal activities or to protect their rights.
Under subsection (a) of Penal Code 288, a lewd or lascivious act is defined as any touching of the body of another person which is done with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desire of either the defendant or the victim.
Importantly, a violation of Section 288 can be accomplished by encouraging or causing the victim to touch themselves or someone else. The defendant does not need to physically touch the victim in order to be prosecuted under Penal Code Section 288.
A particular subset of Section 288 crimes exists for caretakers of dependent individuals who abuse their position of trust to commit a lewd act on the dependent individual under their care.
To give readers a better understanding of lewd acts by a caretaker of a dependent person, our California criminal defense lawyers are providing a detailed review below.
Defining PC 288(b)(2) – Lewd Acts by Caretaker
California Penal Code 288(b)(2) defines lewd acts by a caretaker on dependent adult:
Any person who is a caretaker and commits an act described in subdivision (a) upon a dependent person by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person.
In order to be convicted of PC 288(b)(2), lewd acts by a caretaker, the prosecutor must be able to prove all the elements of the crime listed under CALCRIM 1060 Jury Instructions, lewd or lascivious act on dependent person:
- Defendant was a caretaker of a dependent person, and
- Willfully committed a lewd or lascivious act on that person, and
- Had intent to arouse or gratify a sexual desire, and
- Used force, violence, duress, or fear of unlawful bodily injury
A stated, “lewd or lascivious act” is any touching of a person with the intent to sexually arouse the perpetrator or the other person. It includes touching any part of their body, either on the bare skin or through their clothing, or causing someone to touch their own body or someone else's body.
The related California offenses for PC 288(b)(2), lewd acts by caretaker include:
Penal Code 288 – Lewd Acts on a Minor Penal Code 288(i) – Lewd Acts on Minor with Bodily Harm Penal Code 288(b)(1) – Lewd Acts on Minor with Force or Fear
Penalties for Penal Code 288(b)(2)
Under Penal Code Section 288, subsection (b)(2), a caretaker who commits a lewd act as defined under Penal Code Section 288 on their dependent and uses force, fear, duress, menace, etc. to accomplish the lewd act is guilty of a particularly aggravated form of Section 288 offense.
A Penal Code 288(b)(2) prosecution is subject to enhanced penalties compared to other forms of lewd act prosecution. A violation of this subsection is always a felony – meaning it cannot be reduced to a misdemeanor.
If convicted of a violation of Penal Code Section 288(b)(2), the defendant faces a California state prison sentence of five, eight, or ten years. The defendant will additionally be required to register as a sex offender under Penal Code Section 290, likely for life.
Fighting Lewd Acts by a Caretaker Charges
Defenses to an allegation under Penal Code Section 288(b)(2) will focus on reasonable doubt based on lack of objective independent evidence to establish that the lewd act was committed. By its nature, this type of crime typically occurs behind closed doors outside of the presence of third-party witnesses.
The lack of corroboration for the alleged victim's allegation is an important area which is subject to cross-examination and argument by defense counsel in attempting to raise a doubt that any unlawful conduct occurred. Additionally, a Penal Code Section 288(b)(2) allegation must involve a caregiver and his or her dependent individual. This relationship is an element of the crime which must be proven beyond a reasonable doubt by the prosecution.
While in some cases – such as nursing home settings – the caregiver-dependent relationship cannot be seriously disputed, other settings may give rise to significant factual questions about the existence of the required relationship under the statute.
Even if the prosecution can establish that a lewd act, meaning an inappropriate touching, took place between the caregiver and his or her dependent, the additional element of force, fear, duress, menace, or other unlawful means must still be proven.
If this aggravating factor cannot be shown beyond a reasonable doubt, the defendant is still guilty of a lewd act, but the penalties associated with this offense, which would fall under Penal Code Section 288(c)(2) rather than Penal Code Section 288(b)(2), are much less severe.
A Section 288(c)(2) conviction exposes the defendant to one, two, or three years in the California state prison. This subsection is also a “wobbler,” under California law, meaning it can potentially be reduced to a misdemeanor.
Recent changes in the law suggest that this distinction may also create opportunities to reduce the lifetime sex offender registration under Penal Code 290 to a time-limited registration of 10 or 20 years, which is a substantial benefit to defendants charged with these serious sex offenses.
Contact our California Criminal Lawyers for Help
Given the potentially life altering consequences of being charged, much less convicted, of an extremely serious offense such as a Penal Code Section 288(b)(2) lewd act upon a dependent by a caregiver, immediate intervention by competent defense counsel to address such an allegation is critical.
Through the process of prefiling intervention, substantial doubts about the reliability of evidence as well as mitigating factors about the defendant's background, history, character, and reputation can be most effectively presented to a sex crimes detective and/or prosecuting attorney reviewing the file. Through this process, many charges can be reduced to lesser offenses or rejected completely.
If you or a family member is being accused of, being investigated for, or has already been charged with the serious California sex crime of lewd acts by a caretaker on a dependent pursuant to Penal Code Section 288(b)(2), or a related statute, contact our experienced Los Angeles criminal defense attorneys for an initial consultation. Our focus is on protecting your rights while working aggressively toward achieving the best possible outcome in your case.
Eisner Gorin LLP is a top-ranked criminal defense law firm with a team of highly experienced attorneys. We are located at 1875 Century Park E #705, Los Angeles, CA 90067. Our main office is adjacent to the Van Nuys Court at 14401 Sylvan St #112 Van Nuys, CA 91401. Contact us to review the details of your case at (310) 328-3776.