Cal Pen Code § 288 (2004)
§ 288. Lewd or lascivious acts involving children
(a) Any person who willfully and lewdly commits any lewd or
lascivious act, including any of the acts constituting other crimes provided
for in Part 1, upon or with the body, or any part or member thereof, of a child
who is under the age of 14 years, with the intent of arousing, appealing to, or
gratifying the lust, passions, or sexual desires of that person or the child,
is guilty of a felony and shall be punished by imprisonment in the state prison
for three, six, or eight years.
(b) (1) Any person who commits an act described in
subdivision (a) by use of force, violence, duress, menace, or fear of immediate
and unlawful bodily injury on the victim or another person, is guilty of a
felony and shall be punished by imprisonment in the state prison for three,
six, or eight years.
(2) Any person who is a caretaker and commits an act
described in subdivision (a) upon a dependent adult by use of force, violence,
duress, menace, or fear of immediate and unlawful bodily injury on the victim
or another person, with the intent described in subdivision (a), is guilty of a
felony and shall be punished by imprisonment in the state prison for three,
six, or eight years.
(c) (1) Any person who commits an act described in
subdivision (a) with the intent described in that subdivision, and the victim
is a child of 14 or 15 years, and that person is at least 10 years older than
the child, is guilty of a public offense and shall be punished by imprisonment
in the state prison for one, two, or three years, or by imprisonment in a
county jail for not more than one year. In determining whether the person is at
least 10 years older than the child, the difference in age shall be measured
from the birth date of the person to the birth date of the child.
(2) Any person who is a caretaker and commits an act
described in subdivision (a) upon a dependent adult, with the intent described
in subdivision (a), is guilty of a public offense and shall be punished by
imprisonment in the state prison for one, two, or three years, or by
imprisonment in a county jail for not more than one year.
(d) In any arrest or prosecution under this section or
Section 288.5, the peace officer, district attorney, and the court shall
consider the needs of the child victim and shall do whatever is necessary,
within existing budgetary resources, and constitutionally permissible to
prevent psychological harm to the child victim or to prevent psychological harm
to the dependent adult victim resulting from participation in the court
process.
(e) Upon the conviction of any person for a violation of
subdivision (a) or (b), the court may, in addition to any other penalty or fine
imposed, order the defendant to pay an additional fine not to exceed ten
thousand dollars ($ 10,000). In setting the amount of the fine, the court shall
consider any relevant factors, including, but not limited to, the seriousness and
gravity of the offense, the circumstances of its commission, whether the
defendant derived any economic gain as a result of the crime, and the extent to
which the victim suffered economic losses as a result of the crime. Every fine
imposed and collected under this section shall be deposited in the
Victim-Witness Assistance Fund to be available for appropriation to fund child
sexual exploitation and child sexual abuse victim counseling centers and
prevention programs pursuant to Section 13837.
If the court orders a fine imposed pursuant to this
subdivision, the actual administrative cost of collecting that fine, not to
exceed 2 percent of the total amount paid, may be paid into the general fund of
the county treasury for the use and benefit of the county.
(f) For purposes of paragraph (2) of subdivision (b) and
paragraph (2) of subdivision (c), the following definitions apply:
(1) "Caretaker" means an owner, operator,
administrator, employee, independent contractor, agent, or volunteer of any of
the following public or private facilities when the facilities provide care for
elder or dependent adults:
(A) Twenty-four hour health facilities, as defined in Sections 1250, 1250.2, and 1250.3 of the Health and Safety
Code.
(B) Clinics.
(C) Home health agencies.
(D) Adult day health care centers.
(E) Secondary schools that serve dependent adults ages 18 to
22 years and postsecondary educational institutions that serve dependent adults
or elders.
(F) Sheltered workshops.
(G) Camps.
(H) Community care facilities, as
defined by Section 1402 of the Health and Safety Code, and residential care
facilities for the elderly, as defined in Section 1569.2 of the Health and
Safety Code.
(I) Respite care facilities.
(J) Foster homes.
(K) Regional centers for persons with developmental
disabilities.
(L) A home health agency licensed
in accordance with Chapter 8 (commencing with Section 1725) of Division 2 of
the Health and Safety Code.
(M) An agency that supplies in-home supportive services.
(N) Board and care facilities.
(O) Any other protective or public assistance agency that
provides health services or social services to elder or dependent adults,
including, but not limited to, in-home supportive services, as defined in
Section 14005.14 of the Welfare and Institutions Code.
(P) Private residences.
(2) "Board and care facilities" means licensed or
unlicensed facilities that provide assistance with one or more of the following
activities:
(A) Bathing.
(B) Dressing.
(C) Grooming.
(D) Medication storage.
(E) Medical dispensation.
(F) Money management.
(3) "Dependent adult" means any person 18 years of
age or older who has a mental disability or disorder that restricts his or her
ability to carry out normal activities or to protect his or her rights,
including, but not limited to, persons who have developmental disabilities,
persons whose mental abilities have significantly diminished because of age.
(g) Paragraph (2) of subdivision (b) and paragraph (2) of
subdivision (c) apply to the owners, operators, administrators, employees,
independent contractors, agents, or volunteers working at these public or
private facilities and only to the extent that the individuals personally
commit, conspire, aid, abet, or facilitate any act prohibited by paragraph (2)
of subdivision (b) and paragraph (2) of subdivision (c).
(h) Paragraph (2) of subdivision (b) and paragraph (2) of
subdivision (c) do not apply to a caretaker who is a spouse of, or who is in an
equivalent domestic relationship with, the dependent adult under care.