Punishment for Rape in California – Penal Code 261 PC
Have you been accused of rape in California? Punishment for rape in California is severe, and it includes prison time and expensive fines. The negative stigma of a rape conviction could affect you for the rest of your life. That is why you should contact an experienced rape defense lawyer immediately if you have been accused of this crime.
Our skilled criminal defense lawyers at Wallin & Klarich have been successfully representing clients facing rape charges for more than 40 years. We’ve helped our clients achieve the best possible outcomes in their case by fighting zealously for them and presenting mitigating factors to the court.
The exact punishment for rape charges depends upon the circumstances of the case and any aggravating and mitigating factors that apply in your case. Let’s explore how sentencing works for rape convictions in California.
Prison Time for Rape Charges Under Penal Code 261
Under California Penal Code Section 261, rape is a felony offense. If you are convicted of this crime, you face three, six or eight years in prison.
Additionally, if the alleged victim sustained great bodily injury (i.e. extensive bruising, vaginal soreness, broken bones or any other measurable physical complication) during the commission of the rape, the judge may enhance your punishment by imposing an additional five years on your sentence.
In addition to your lengthy state prison time for rape convictions, you also may be required to pay a fine of up to $10,000, according to California Penal Code Section 672.
Is Rape a Strike Under California’s Three Strikes Law?
If you are convicted of rape in California, you will receive a “strike” on your criminal record under California’s Three Strikes law. Under this law, you could face harsher penalties if you have previously been convicted of a strike crime.
If you have one prior strike conviction on your record, your sentence for rape could be doubled. This means you could face 6, 12 or 16 years in prison. If you have previously been convicted of two strike crimes, you could face a sentence of 25 years to life in prison.
Does Rape Require Sex Offender Registration?
Perhaps the most severe punishment for rape convictions is the requirement to register as a sex offender with local law enforcement as long as you live, work or attend school in the state of California. As a registered sex offender, your name and personal information may be posted on the Megan’s Law website for anyone to see, and you could face hostility from friends, family and neighbors. You may find it difficult to pursue career opportunities and gain employment due to your sex offender status.
Furthermore, if you fail to register as a sex offender, you could face separate criminal charges under California Penal Code Section 290. Failure to register as a sex offender following a rape conviction is a felony crime that is punishable by up to three years in state prison.
How Does the Court Decide Your Punishment for Rape?
If you are convicted of rape in California, the court will not grant you probation as punishment. You must be sentenced to prison for the lower term (three years), middle term (six years) or upper term (eight years). So, how does a judge decide which term to use when sentencing you?
The court must review California Rules of Court 4.421 and 4.423 when it comes to determining your felony rape sentence.
Under JCR 4.421, the court will look at all of the circumstances in aggravation that pertain to rape. These aggravating circumstances include:
- Whether the crime involved great violence, great bodily harm, threat of great bodily harm or other acts disclosing a high degree of cruelty, viciousness or callousness
- Whether you were armed with or used a weapon during the commission of the crime
- Whether the victim was particularly vulnerable
- Whether you induced others to participate in the commission of the crime or occupied a position of leadership or dominance of other participants in the commission
- Whether you induced a minor to commit or assist in the commission of the crime
- Whether you threatened witnesses, unlawfully prevented or dissuaded witnesses from testifying, suborned perjury, or in any other way illegally interfered with the judicial process
- Whether you were convicted of other crimes for which consecutive sentences could have been imposed but for which concurrent sentences are being imposed
- Whether the manner in which the crime was carried out indicates planning, sophistication or professionalism
- Whether the crime involved an attempted or actual taking or damage of great monetary value
- Whether the crime involved a large quantity of contraban
- Whether you took advantage of a position of trust or confidence to commit the offense; AND
- Whether the crime constitutes a hate crime under PC 422.55 and no hate crime enhancements under PC 422.75 are imposed, and the crime is not subject to sentencing under PC 1170.8
The judge will also look at the aggravating factors that relate to your prior conduct or criminal history, including whether:
- You have prior convictions as an adult or sustained petitions in juvenile delinquency proceedings of increasing seriousness
- You have served a prior prison term
- You were on probation or parole when the crime was committed; and
- Your prior performance on probation or parole was unsatisfactory
Under JCR 4.423, the court will also look at all of the circumstances in mitigation that pertain to rape. These mitigating circumstances include:
- Whether you were a passive participant or played a minor role in the crime
- Whether the victim was an initiator of, willing participant in, or aggressor or provoker of the incident
- Whether the crime was committed because of an unusual circumstance, such as great provocation, that is unlikely to recur
- Whether you participated in the crime under circumstances of coercion or duress, or your criminal conduct was partially excusable for some other reason not amounting to a defense
- Whether you, with no apparent predisposition to do so, were induced by others to participate in the crime
- Whether you exercised caution to avoid harm to persons or damage to property, or no harm was done or threatened against the victim
- Whether you mistakenly believed that your conduct was legal
- Whether were motivated by a desire to provide necessities for your family or self; AND
- Whether you suffered from repeated or continuous physical, sexual, or psychological abuse inflicted by the victim of the crime, and the victim of the crime, who inflicted the abuse, was your spouse, intimate cohabitant, or parent of your child; and the abuse does not amount to a defense
When determining your punishment for rape, the judge may also look to mitigating factors that relate to your prior conduct or criminal history, including whether:
- You have no prior record or have an insignificant record of criminal conduct, considering the recency and frequency of prior crimes
- You were suffering from a mental or physical condition at the time of the incident that significantly reduced culpability for the crime
- You voluntarily acknowledged wrongdoing before arrest or at an early stage of the criminal process
- You are ineligible for probation and, but for that ineligibility, you would have been granted probation
- You made restitution to the victim, AND
- Your prior performance on probation or parole was satisfactory
The court will essentially do a “balancing test” regarding all of these aggravating and mitigating circumstances. If the judge believes that the aggravating factors in your case outweigh the mitigating factors, he or she will impose the upper term of eight years in prison. If the judge believes the mitigating factors outweigh the aggravating factors, he or she will impose the lower term of three years in prison. If the court feels the aggravating and mitigating factors balance each other out, you will be sentenced to the middle prison sentence of six years.
What Percentage of Your Prison Sentence for Rape Will You Serve?
One of the most common questions our rape defense lawyers are asked regarding rape sentencing is “what percentage of my prison sentence will I have to actually serve?” Many people believe that they can receive “good time credits” while serving prison time and be released in about half the time of their sentence. However, that is not true for the crime of rape.
Rape is considered a serious and violent felony under California sentencing laws. The serious and violent distinction for this crime means you will have to serve at least 85% of the actual sentence before being released from prison.
Parole as Punishment for Rape
When you are released from prison after serving at least 85% of your sentence for rape, you will be placed on parole. The length of your parole will be determined by how much time you served in prison.
Under California sentencing laws, the length of your parole cannot exceed the length of the sentence ordered by the judge. So, for example, if you were sentenced to eight years in prison for rape and you’re released after serving seven years in prison (about 85% of your sentence), your parole can only last for the remaining one year of your original sentence.
When on parole for rape, you will be assigned a parole officer whom you will have to meet with on a regular basis. You will likely be ordered to wear a GPS tracking device on your ankle 24/7 and you will be restricted as to where you can live and work.
The terms of your parole will be strict, but it is important that you follow all of your parole terms. If your parole officer believes that you have violated any of the terms of your parole, you could be arrested. If it is determined that you violated parole, you could face a sentence of up to one year in prison.
How to Find an Experienced Rape Defense Lawyer Near Me
When you are convicted of rape, your case is not over. The next step is sentencing, and our skilled rape defense lawyers can fight aggressively for you at your sentencing hearing so that you can obtain the best possible result in your case. Our experienced attorneys will attempt to present mitigating factors to the court so that you get the most favorable sentence possible.
At Wallin & Klarich, our skilled and knowledgeable rape defense lawyers have been successfully defending clients accused of serious sex crimes for more than 40 years. We’ve helped thousands of clients in their time of legal need, and we can help you now.
With offices in Orange County, Riverside, San Bernardino, Victorville, West Covina, Torrance, Los Angeles and San Diego, our rape defense attorneys are available near you no matter where you work or live.
Contact our criminal defense law firm at (877) 4-NO-JAIL or (877) 466-5245 for a free phone consultation regarding your case now. We will get through this together.