PC 288.3(a)

PC 288.3(a)

Offense

Communicating with a minor or person D knew or had reason to believe was a minor, with intent to commit certain offenses 

Aggravated Felony (AF)

Assume 288.3 is divisible as an AF: it is an AF only if the intended offense, plus 288.3 elements of intent and knowledge, is an AF.

Not AF: Supreme Court held that sexual conduct with a person under age 18 is not an AF as SAM; see 261.5(c). Therefore 288.3 with intent to commit 286(b)(1) 287(b)(1); 289(h) should not be. Good plea.

288.3 with intent to commit 207(a) (at least without a year imposed) should not be an AF. Arguably 288.3 and 288(c)(1), and 273a at least with less than a year, are not AFs in Ninth Cir.

If the intended offense is an AF, 288.3 is one. For example, intent to commit 209(b) or 261.

See Advice.

Crime Involving Moral Turpitude (CIMT)

Ninth Circuit held 288.3 is divisible as a CIMT, based on the elements of the intended offense plus 288.3 elements:

Not a CIMT:

-Court stated that 288.3 with intent to commit 207(a) is not a CIMT

-Same should apply to 288.3 with intent to engage in sexual conduct with minor under age 18, per 286(b)(1), 287(b)(1), 289(h). Section 261.5(c) is not a CIMT, so these should not be. See Advice.

Yes a CIMT:

-Court held 288.3 with intent to commit 288(c)(1) is a CIMT (because 288.3 adds knowledge of age element, which according to the court makes 288(c)(1) a CIMT).

-Likely 288.3 with intent to commit 273a (because 288.3 will add intentionality and subtract negligence)

– any intended offenses that are CIMTs, e.g., 261

See Advice.

Other Removal Grounds

Should avoid a deportable crime of child abuse. See discussion here.1PC 288.3 should not be held a deportable crime of child abuse. The BIA held that the generic definition of a deportable crime of child abuse requires a child as the victim, not a police officer posing as child. See Matter of Jimenez-Cedillo, 27 I&N Dec. 782, 794 (BIA 2020) (“The Department of Homeland Security has argued that the respondent is ineligible for cancellation of removal as one convicted of a crime of child abuse under section 237(a)(2)(E)(i) of the Act, but because no actual child was ever involved in this case, we cannot make such a finding. See generally Matter of Velazquez-Herrera, 24 I&N Dec. 503, 512 (BIA 2008) (holding that a “crime of child abuse” is an offense that “constitutes maltreatment of a child.”). Section 288.3(a) includes communication with a police officer posing as a minor, because it includes attempt. People v. Korwin (2019) 36 Cal. App. 5th 682. Therefore it is overbroad compared to the definition of child abuse in that way.

Section 288.3 also should be held indivisible. While we recommend a specific plea to conduct involving a police officer, or attempt, under the categorical approach no conviction of 288.3 should be held child abuse, even if the record identifies a minor. It should not be held divisible between an officer and a minor because the statute is not phrased in the alternative in that manner (it does not mention police officer), and that is a basic requirement for finding a statute divisible. See Mathis v. United States, 579 U.S. 500, 505 (2016) (“A single statute may list elements in the alternative, and thereby define multiple crimes”) and see generally ILRC, How to Use the Categorical Approach Now (Oct. 2021).  (It is true that the statute is phrased in the alternative for “attempt,” punishing any person “who contacts or communicates with a minor, or attempts to contact or communicate with a minor….” However, to be divisible the statute must be phrased in the alternative including the fact at issue – a police officer versus a minor – not just between attempt and actual communication. Further, attempt and actual communication are not themselves different elements in a divisible statute. See statement of elements at Syed v. Barr, 969 F.3d 1012, 1017 (9th Cir. 2020) (discussed in next endnote) and at CALCRIM 1124. Finally, all violations of PC 288.3(a) are punishable “by imprisonment in the state prison for the term prescribed for an attempt to commit the intended offense.”

The BIA held that a crime of child abuse requires an actual victim, not a police officer posing as a child. Because 288.3, which includes attempt, can involve communicating with an officer posing as a child, no 288.3 should be held a deportable crime of child abuse.

Try to plead to attempt (under 288.3, not under PC 664), or better yet, specifically to communication with an officer, to make this distinction clear to an uninformed immigration judge or official. Or leave the record vague. But even if the record specifically shows a minor rather than an officer, removal defense advocates can establish that the statute is not divisible because it is not phrased in the alternative between an officer and an actual minor. The concern is for unrepresented immigrants.

Advice and Comments

PC 288.3

It appears that 288.3 can range from an immigration-neutral offense to an AF. See case citations, list of enumerated intended offenses, and further discussion here.2288.3 as a CIMT. PC 288.3 provides that any person “who contacts or communicates with a minor, or attempts to contact or communicate with a minor, who knows or reasonably should know that the person is a minor, with intent to commit an offense specified in Section 207, 209, 261, 264.1, 273a, 286, 287, 288, 288.2, 289, 311.1, 311.2, 311.4 or 311.11, or former Section 288a, involving the minor shall be punished by imprisonment in the state prison for the term prescribed for an attempt to commit the intended offense.”

In Syed v. Barr, 969 F.3d 1012, 1017-18 (9th Cir. 2020), the Ninth Circuit held that 288.3 is overbroad and divisible as a CIMT. Section 288.3 is a CIMT only if its elements, combined with the elements of the intended offense, together amount to a CIMT. Syed found that because 288.3 itself requires that the person “knows, or reasonably should know” that the victim is a minor, it adds that element to the intended offense. This allowed the court to find that a conviction for PC 288.3 with intent to commit PC 288(c)(1) is a CIMT, even though PC 288(c)(1) itself was held not to be a CIMT in Menendez v. Whitaker, 908 F.3d 467 (9th Cir. 2018). Syed found that the basis for the Menendez holding that 288(c)(1) is not a CIMT was that 288(c)(1) lacks a requirement that the person knew or should have known that the victim was a minor. (Arguably this oversimplifies the Menendez decision, which based its ruling on various factors. See Menendez at 472-474.) Syed found that when 288(c)(1) is coupled with 288.3, this element of guilty knowledge of age is supplied. “Read together, §§ 288.3(a) and 288 necessarily involve an ‘intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires’ of the offender or the victim child—knowing (or having reason to believe) the child is aged 15 or younger.” Syed at 1019.

Section 288.3 with intent to commit child endangerment under PC § 273a also is likely to become a CIMT. The reason that 273a is not a CIMT is that it can be committed by negligence. Section 288.3 adds the element of intentional conduct, which likely will make the offense a CIMT. 

But other 288.3 offenses are not CIMTs. Syed found that if the intended offense is PC 207(a), then 288.3 is not a CIMT because adding its elements (knowledge of minor age, or intent to commit the offense) to those of 207(a) does not create a CIMT.

Similarly, 288.3 with intent to commit the enumerated offenses that involve consensual sexual conduct with a person under age 18, with no required age difference for the perpetrator, should not be a CIMT. See Penal Code §§ 286(b)(1), 287(b)(1), and  289(h) (respectively, consensual anal sex, oral sex, and sexual penetration with person under age 18; no age difference is required). These should not be CIMTs on their own because they do not cause sufficient harm. For example, PC § 261.5(c), which requires consensual intercourse with a minor under age 18 and also requires a three-year age difference, is not a CIMT. The elements added to these offenses by PC 288.3, such as intent or knowledge of age, do not make them a CIMT.  

Note that pleading to, e.g., PC 288.3 with intent to commit 287(b)(1) (oral sex with a person under 18) has one advantage over pleading to 287(b)(1) alone: section 288.3 should not be held a deportable crime of child abuse (because it can include an officer posing as a child; see above endnote), whereas ICE may argue that 287(b)(1) alone is a crime of child abuse, on the theory that any offense involving sexual conduct with a person under age of 18 is, under Matter of Aguilar Barajas. See discussion at PC § 286(b)(1), above.  It also is possible, however, that immigration authorities would view the § 288.3 as a more serious “premeditated” offense for purposes of discretion. See other alternatives.

Mr. Syed pled guilty to Count 2, which alleged that he violated 288.3 by communication with intent to commit PC “288,” with no allegation of 288(a), (b), or (c). The charge tracks the language of 288.3, which also lists simply “288” as an enumerated offense. That is why Syed had to reach the consequences of 288(c)(1), the least serious offense. Syed held that because Mr. Syed specifically pled guilty to Count 2, he was convicted of those elements, despite his vague statement at the plea hearing.

288.3 as an AF. There is no ruling on this, but based on the Ninth Circuit’s finding that 288.3 is divisible as to the intended offense for CIMT purposes (in Seyd, discussed above), we will assume that its status as an AF will be determined by whether the intended offense, plus the added elements of intentional conduct and knowledge or reason to believe the victim is a minor, is an AF, either as SAM or as a COV with a year imposed. Of these, arguably 288.3 with intent to commit 207(a), the offenses involving consensual sex with a person under the age of 18 (286(b)(1), 287(b)(1), 289(h)), and probably 288(c)(1), 273a, and 311.11 should not be an AF.

Some advantages to a plea to 288.3(a) are 

(1) it should avoid deportability for child abuse (because a posing police officer can be the ‘victim’), and so may be safer than a direct plea to, e.g., 261.5(c) or 287(b)(1) (oral sex with a person under age 18), and 

(2) the sentence may be shorter; it is the same as attempt to commit the intended offense

Plead to intent to commit sexual conduct with a minor under age 18: A plea to 288.3 with intent to engage in sexual conduct with a minor under the age of 18, under PC 286(b)(1) (sodomy), 287(b)(1) (oral sex), or 289(h) (penetration), should not be an AF or CIMT, because those target offenses are not AFs or CIMTs and the addition of 288.3 elements does not change this. 

The 288.3 plea might offer an advantage: while ICE might charge those offenses by themselves as crimes of child abuse under Matter of Aguilar-Barajas, a 288.3 conviction should not be held child abuse because the ‘victim’ can be a police officer posing as a child. See column on child abuse, to the left.

Plead to intent to kidnap, with a sentence of less than a year. The Ninth Circuit held that 288.3 with intent to commit 207(a) is not a CIMT. A kidnapping offense arguably never is a COV, but even if it were held a COV (under the Stokeling decision), it would not be an AF without a sentence imposed of a year or more. 

Beware of 288.3 with 288(c)(1), 273a. When elements of 288.3 are added to target offenses like these, they are no longer immigration neutral. 

-288.3 adds knowing or having reason to believe the victim is a minor. This is why the Ninth Circuit held that 288.3 with intent to commit 288(c)(1) is a CIMT, although 288(c)(1) alone is not a CIMT, partly due to possible mistake of age. Instead, consider a plea directly to 288(c)(1) or attempt.

-288.3 adds intentional conduct. That is why 288.3 with intent to commit 273a is a likely CIMT, just as attempted 273a would be. Section 273a itself is not a CIMT because it can be committed by negligence. But with attempted 273a, or 288.3 trying to arrange for 273a, the conduct is no longer negligent; it is intentional.  It is better to plead directly to 273a(b) or other option. 

2023-07-31T23:08:39+00:00Updated July 31st, 2023|