Can a defendant appeal against his conviction for an attempted lewd act with a child where there was no actual child involved?

California, United States of America


The following excerpt is from People v. Ong, G040468 (Cal. App. 4/8/2009), G040468. (Cal. App. 2009):

Defendant also argues that "no substantial evidence shows [he] went beyond mere preparation in driving to the library to meet the decoy," in other words, that there was no substantial evidence he attempted to commit the crime of performing a lewd act on a child under age 14. A defendant can be convicted of an attempted lewd act with a child if he attempts, with sexual intent, to commit a lewd and lascivious act on a child under age 14 but fails to complete the crime or is prevented or intercepted before he can complete it. (Pen. Code, 288, subd. (a), 664.) A conviction for an attempt to violate Penal Code section 288 can be upheld even if there was no actual child involved. (See Hatch v. Superior Court (2000) 80 Cal.App.4th 170, 185.)

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