LA County DA Applying Substantial Sexual

Conduct Rule Against probation

By:  Roman P. Mosqueda, Esq.

            The Los Angeles County District Attorney’s Office is citing oral copulation as substantial sexual conduct in the Complaint as a special allegation to prevent the grant of probation.

            Worse, it (DA’s Norwalk Office) is considering any offer or sentence with probation as illegal in any oral copulation case with a victim who is under 14 years of age, pursuant to Penal Code Sections 1203.066(a)(8) and 1203.066(b).

            Indeed, the LA County DA’S Office in Norwalk, CA is strictly applying the “substantial sexual conduct” rule in Penal Code Section 1203.066(b), which includes oral copulation, in addition to penetration of the vagina or rectum and masturbation, of either the victim or the offender.

Oral Copulation With Minors

Defined And Punished:

            Oral copulation is defined as “the act of copulating the mouth of one person with the sexual organ or anus of another person,” by Penal Code Section 288a.

            “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 no more than one year,” per Penal Code Section 288a(b)(1).

            “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,” per Penal Code Section 288(a)(2).

            “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,” per Penal Code Section 288a(c)(1).

Amendment Of Felony Complaint

To Allege Substantial Sexual Conduct:

            By Amended Felony Complaint executed on May 5, 2005, in Case No. VA087293 of the Superior Court for the County of Los Angeles (Hill Street/Washington St. Court), the LA County DA’s Office in Norwalk, CA, is applying the “substantial sexual conduct” rule to prevent the grant of a probationary sentence in a child molestation case.

            Indeed, in the above-stated case wherein this Author is the private defense counsel, before the amendment of the Felony Complaint adding substantial sexual conduct of oral copulation as a special allegation, the DA’s Norwalk Office offered in writing: five (5) years felony probation, 364 days in County Jail, 200 hours CalTrans, sex abuse counseling and registration and no contact with victim, if the defendant has a favorable Penal Code Section 288.1 (psychological) report.

            The original Felony Complaint alleges as Count 1 the crime of oral copulation of a person under 14 in violation of Penal Code 288a(c)(1), and as Count 2 the crime of lewd act upon a child in violation of Penal Code Section 288(a), both on the same date.

            The Amended Felony Complaint merely added the substantial sexual conduct of oral copulation by the defendant with the victim under the age of 14 years, as a special allegation to Counts 1 and 2.

            And arguing that “a probationary sentence is not available under the strictures of Penal Code Section 1203.066(a)(8),” the Asst. District Attorney in Norwalk, CA, (whose name is withheld to protect his privacy) has sent on May 4, 2005, an amended offer of low term: three (3) years of state prison, instead of the previous offer of five years felony probation and 364 days in County Jail.

Lack of Uniformity On Implementation

Of Substantial Sexual Conduct Rule:

            In a case involving similar charges of lewd acts upon a child in violation of Penal Code Section 288(a) prosecuted by the LA County DA’s Office in Long Beach and handled by this Author as private defense counsel, the substantial sexual conduct rule was not invoked, even as there were 20 Counts of sexual penetration.

            Thus, the Long Beach Superior Court Judge granted five years of felony formal probation and 364 days in County Jail.  Substantial sexual conduct was not stated as a special allegation in the Count(s) in the Felony Complaint.

            Was that a valid exercise of prosecutorial discretion by the LA County DA’s Office in Long Beach?  Or was that an illegal offer by the prosecutor, or illegal sentence with probation by the Judge, against Penal Code Section 1203.066(a)(8), in relation to Section 1203.066(b)?

            Has the Michael Jackson case, reportedly involving the same charge of lewd act upon a child under 14 years of age, led to stricter enforcement of child molestation laws by the prosecutors?

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