Newport Beach, PC 261.5(c) and 289(h) Sex Offenses, No Jail

Our client, age 26, was at his sister’s house in Irvine for a Christmas party.  She brought her new boyfriend, who had a sixteen year-old daughter.

During the party, our client noticed the sixteen year-old was flirting with him and seemed to touch him a lot.  He believed she was attracted to him.  She was drinking alcohol and he was, too.

The party eventually drew to a close and our client went to sleep in his sister’s guestroom, while the sixteen year-old went to sleep in another bedroom, alone.

At about 3:00 a.m., our client got up and went into the bedroom where the sixteen year-old was sleeping.  He woke her up and told her to come with him.  She was confused, but got up and allowed him to lead her to his bedroom. 

Once in his bedroom, he began fondling her.  He inserted his fingers in her vagina.  She was confused and allegedly told him to stop, but he ignored her.  He then allegedly took off her clothes and held her down while he had sexual intercourse with her before allegedly apologizing to her and letting her leave to go back to the guestroom.

The following morning, he again pulled her into a closet and tried to have sex with her again, but she successfully extricated herself and got out of the closet.

About two months later, while she was moving from her father’s house to her biological mother’s house pursuant to a custody agreement, her father saw her journal on top of some other items she was moving.  He opened up the journal and started reading.  As he did so, he found a journal entry wherein she described our client having sex with her.

The father then reported this to the Irvine police and the police contacted our client.  Our client refused to speak with the police.  The police then had the sixteen year-old girl call in what is known as a pretext call.

In the call, the sixteen year-old told our client that she could not sleep due to the experience and felt violated.  Our client stated that he felt bad about what he did and apologized.  He said he would get some counseling to understand how to manage his sexual urges better.

About two weeks later, our client received a letter from the Orange County District Attorney’s Office advising him that a felony complaint against him had been filed and that there was an arraignment date set in about a month.

The client, who had no prior criminal history, then called Greg Hill & Associates and described what had happened at the Christmas party and the morning after.  He explained that worked full time at a CBD processing facility and had hopes of finishing his college degree someday. 

He also explained that he had seen recently posted Tik Tok videos of the victim, wherein she dressed provocatively and make sexual gestures that left little to the imagination.  He sent a few of these to Greg Hill.  Greg explained that such videos, which might imply she would consent to sexual activity or even welcome it, were legally irrelevant because of her age and that she could not lawfully consent to sex, although the videos could rebut a claim of sexual intercourse by force.

Greg then told the client that at the arraignment, it would be likely that the judge would require the client to post a bail bond to remain out of custody.  Greg also recommended that the client immediately enroll in and start taking sexual compulsiveness counseling courses.  Greg emailed the client a list of the approved providers in Los Angeles County.

The client later retained Greg Hill & Associates and Greg appeared in the Newport Beach Superior Court with the client for his arraignment.  The client was charged with violation of Penal Code § 261.5(c), unlawful sexual intercourse with a minor more than three years younger, and Penal Code § 289(h), unlawful sexual penetration of a minor.  Both were “wobblers,” meaning the charges could be filed as felonies or misdemeanors.  In this case, the charges were filed as felonies due to the large age difference between our client and the victim and because the victim allegedly told our client to stop repeatedly, but he did not.

Surprisingly, at the arraignment, the judge permitted our client to remain out of custody on his own recognizance.

From the start of the case, the specially assigned prosecutor made it understood that he did not think having our client register for life (now modified by Senate Bill 384) as a sex offender would be necessary, meaning the 289(h) charge, which requires such registration, would be dismissed in a plea, meaning our client would plea to the 261.5(c) charge.

Over the next nine months, our office and the client repeatedly appeared in the Newport Beach Superior Court, always making it clear that our client would agree to a misdemeanor charge of violating 261.5(c) and the prosecutor insisting that he first needed to speak with the victim to find out if she opposed the misdemeanor.

For nine months, the minor refused to speak with the prosecutor and even the minor’s father refused as well. 

In the end, the prosecutor stated he could not offer a misdemeanor and so our client did enter a plea to a felony violation of Penal Code § 261.5(c).  He was placed on two years of formal probation with no jail time, although the judge did sentence him to 120 days, suspended, in county jail, to be discharged after the client completed 52 sexual compulsiveness classes (he completed 21 by the time of his plea) and made a $500 “donation” to a victim witness restitution fund.  There otherwise were no additional terms of probation except to avoid all contact with the victim.

Our office will be filing a motion to reduce the charge from a felony to a misdemeanor once our client completes probation, something the prosecutor probably will not oppose.