Monder Law Group - News

Daycare Employee Charged with Child Molestation in Southern California

Understanding Sex Crimes in California under Penal Code § 288

Defendant Jacob Blas was arrested in January of 2017 for repeatedly molesting a child who is under ten years old. This alleged act occurred at the Defendants Parents Daycare business located in Lake Elsinore. The Defendant is currently being held at the Southwest Detention center in Murrieta, Ca. The Sheriff’s investigation showed evidence that the child was molested in the Defendants care. It was said by the sheriff’s office that the Defendant began the acts on her when she was six years old. The investigation started when there was a criminal complaint filed against the Defendant. The current bail is set at $5 million.

The Defendant, in this case, is looking at getting charged with California Penal code §288 (a) which states,

Except as provided in subdivision (i), 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 5, 8, or 10 years.

With the statute listed above the charge for §288(a) essentially breaks down to two elements, which are; (1) the touching of a child’s body, (2) with sexual intent. For the defendant to be found guilty under the statute the prosecution must prove both of the elements beyond a reasonable doubt.

Courts have ruled throughout the state that the touching of the child is constructive. This means that the Defendant does not have to touch the victim in order to fulfill the element, but instead, the required touching can be done by the child. “This would be further explained in without touching the child, compelled the child to remove her own clothing was guilty of violating section 288. Violation of section 288 requires the defendant to either touch the body of a child or willfully cause a child to touch her own body, the defendant’s body, or the body of someone else.” People v. Lopez (2010) 185 Cal.App.4th 1220. Because of this rule, the defendant would not be able to use the defense that they never actually touched the victim, but instead, the victim had actually done the action of touching themselves or even removing their own clothes. Id.185. Thus, the act element of this crime can be interpreted pretty broadly.

The court also requires that the touching committed was with sexual intent. This includes “the intent to arouse, appeal to or gratify the lust of the child or the accused. People v. Villagran (2016) 5 Cal.App.5th 880, 891. The proof of one’s mental state during an act can be hard to prove because one has to show what the defendant was thinking at that time. However, the intent can be inferred from the circumstances. This would go to the jury and they can look to the relationship of the parties and any coercion that could be seen by the surrounding circumstances. In regards to Defendant Blas, this would be important because of his role with the alleged victim. Because the Defendant worked at the daycare and was more of an authority figure to the child, this would all be taken into account when the jury looked into the situation. It is possible that Prosecution shows since the Defendant was in charge of the child that he was in control, and could take advantage of the situation and commit the alleged acts. Therefore, the mental state of sexual intent can look to all of the surrounding circumstances can be looked at while considering this element.

Even though the elements are broad, there would still be applicable defenses for the Defendant. One way would be to question the accuser’s credibility. This would be applicable in the Blas case because even though there was an investigation there were not any facts showing that there was a witness to the claims. As motioned the Prosecution would possibly argue that the Defendant was in a position of power over the child which would seem like he could try to take advantage of the child. However, it could also be possible that the Defendant had disciplined the child for appropriate reasons and the child in return made false allegations of the defendant out of anger or to ensure that she would not be disciplined again. Or that the child did not like going to this daycare and thought this would stop them from going. Because social media and television today children are usually exposed to sexual matters at a younger age, giving them knowledge and the resources to be able to make things up. With this in mind it may be able to show that all the facts that are alleged by the child are not necessarily true.  Another way question the credibility would be looking for other victims. In this situation if the Defendant was truly doing this it would be reasonable to believe that there would be other victims.  This is especially true because of his job being at a day care. It is possible that it would seem odd to the jury if this child was the only victim out of multiple children that attended the day care. This may question the alleged victim and raise a flag in one’s mind.

In addition to questioning one’s credibility, the defense may be able to show an alternative motive. This could be a parent or trusted adult, who prods a child and convinces that these acts happened for an alternate motive. Because the Defendant in this case family owns the daycare where he worked there may be a finical motive of a third party installing to the idea to the alleged victim. With a limited knowledge of facts, it would be hard to say if this is applicable to the certain situation, but very well could be a possibility.

The punishment for conviction of §288(a) can vary in certain circumstances. However, the statute does give a guideline stating that this felony is punishable by three, six, or eight years in state prison. In addition to the prison sentence, the court may impose an additional fine that may not exceed $10,000 of a person who is convicted of §288(a). There can be a difference in the sentencing though when the facts are taken into in consideration. California Penal Code, §288(c)(1) states,

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.

Even though this does apply to the Defendant, in this case, it demonstrates the contrast in sentencing. How it factors in not only the child’s age but also the defendant’s age.

Therefore, under California Penal code §288(a) there are two major elements, a variety of defenses to the charges, and punishment can differ depending on different circumstances.

If you have any question about child abuse in San Diego County, feel free to contact San Diego Criminal Defense Attorney Vik Monder at 619-405-0063 or visit San Diego Criminal Defense Lawyer