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California Penal Code § (Section) 647(a) – Lewd Conduct In Public

California Penal Code § (Section) 647(a) – Lewd Conduct In Public

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California Penal Code (CPC) §647(a) – Lewd Conduct In Public – In California, the crime of Lewd Conduct In Public occurs whenever anyone behaves lewdly or solicits lewd behavior in a public place. “Lewd”[1]  conduct involves touching private parts – whether yours or someone else's - for the purpose of sexual gratification or to annoy or offend another person. Section 647(a) criminalizes “lewd or dissolute[2]” sexual behavior when you know (or should know) that someone who might be offended is present. 

CPC §647(a) is a Misdemeanor offense. If you're convicted of Lewd Conduct In Public, the penalty can be six months in a county jail, a fine of up to $1,000, or both a fine and imprisonment. A conviction under PC 647(a) does not require registering as a Sex Offender.

What Does California Penal Code §647(a) (Lewd Conduct In Public) Prohibit?

In sum, to be guilty of Lewd Conduct In Public under California Penal Code §647(a), you must:

  • Touch your own body lewdly or solicit someone else to do it; AND,
  • Violate the law in a public place or a place within public view; AND,
  • Be lewd in the presence of someone who might be offended or annoyed by your behavior.

Defining “Lewd Conduct In Public” Under California Penal Code §647(a)

To convict you under §647(a), the prosecutor must prove the following beyond a reasonable doubt:

  • Willfully: You intended on doing whatever was necessary to break the law;[3] AND,
  • Touched Your Body/Solicited[4] Someone To Touch You: You touched your own (or another person's) genitals, buttocks, or female breast; AND,
  • For Sexual Arousal Or Offense: You intended to gratify yourself sexually or to annoy or offend another person; AND,
  • In A Public Place/Open To Public View: At the time of the conduct you were in a place defined as “public” under the statute;[5] AND,
  • In The Presence Of Someone Who Might Be Offended/Annoyed: Someone who was annoyed or offended was near enough to witness the conduct; AND,
  • Knowing Another Person Was Present: You knew or reasonably should've known that someone else was present.

Example:

Here's an example to help you better understand PC §647(a).

Example: Defendant Donovan and his girlfriend go to a softball game played at a busy park. There are families with young children in the area.  At one point, they slip away, find what they think is a secluded area, lie down, and begin to kiss. Donovan removes his girlfriend's shirt and touches her bare breasts. Just then, a park guest, Victim Veronica, who's been gathering flowers, stumbles upon them. Veronica reports Donovan for Lewd Conduct In Public. Can Donovan be convicted of violating CPC §647(a)?

Conclusion: Donovan willfully went to a busy public park, touched and exposed his girlfriend's breasts, and presumably did so for sexual gratification. Veronica can also argue that it was done in her presence, even though Donovan thought there was no one near, because they were reckless enough for her to see them.[6] The issue is whether Donovan knew - or should've known - of Veronica's presence. Given that he was at a busy public park, it's not unreasonable to assume Donovan should've expected someone to be close enough to see him with his girlfriend. Therefore, Donovan could be convicted of violating PC §647(a), Lewd Conduct.

Penalties Under California Penal Code §647(a)

Lewd Conduct In Public can be punished with up to six months in a county jail and a fine of up to $1,000.[7] But remember: it's possible for prosecutors to charge you with a crime under §647(a) and more serious sex offenses in the same case. Although §647(a) does not require registration, if you're convicted of a felony sex crime alongside a Lewd Conduct In Public conviction, you should expect to be required to register as a Sex Offender for a minimum of ten years under CPC §290. 

Misdemeanor Probation, which allows a convicted person to serve at least part of his or her time outside jail, can be assigned as judges see fit. Probation can also be revoked, if the terms are violated.

Defenses To California Penal Code §647(a) – Lewd Conduct In Public 

You Didn't Do Anything Lewd Or Dissolute

Example: Defendant Donovan goes to a busy public park with his girlfriend. At one point, they slip away, find what they think is a secluded area, lie down, and begin to kiss. Donovan removes her shirt. Just then, a park guest, Victim Veronica, who's been gathering flowers, discovers them. Veronica doesn't see that Donovan's girlfriend is wearing a skin-colored brassiere. Veronica reports Donovan for Lewd Conduct In Public. Could Donovan be convicted of violating CPC §647(a)?

Conclusion: Donovan didn't actually expose his girlfriend's breasts. She was wearing a skin-colored bra. Lewd conduct under the statute must involve exposing genitals, buttocks, or a female breast. Therefore, although the other elements of the crime are present, Donovan shouldn't be convicted under PC §647(a).

Touching Didn't Occur For Sexual Gratification Or Annoyance

Example: Defendant Drake has a large, aggressive dog. One day, when he's in his front yard, the dog sneaks up and bites Drake on Drake's rear end. The bite is so painful that Drake instinctively runs across the yard, pulls down his pants, grabs a hose and runs water over his bare buttocks. Drake's next door neighbor, Victim Verne, who's watering his own lawn, sees the display and reports Drake for Lewd Conduct In Public. Should Drake be convicted of violating CPC §647(a)?

Conclusion: Even though Drake bared his buttocks in a public place (his front yard), and although Verne was definitely near enough to be offended by the display (which Drake reasonably should've known, since Verne, Drake's next door neighbor, was standing on his own front lawn at the time), Drake didn't bare his buttocks to sexually gratify himself or even to annoy Verne. He'd been bitten and responded instinctively, running water over the bite.[8] Since defendants must be acquitted if even one element of a charge can't be proven, Drake should be acquitted of violating CPC §647(a).

You Had A Reasonable Belief That No One Who'd Be Offended Was Near

Example: Defendant Denise and her boyfriend are in a public park on a rainy day. They walk the grounds awhile, looking for other people, see no one, find a secluded nook, and begin to kiss. Denise allows her boyfriend to remove her pants and underwear just as an unmanned aerial vehicle (UAV) appears 500 feet overhead. Its operator, Victim Vickie, sees them together and reports Denise for Lewd Conduct In Public. Should Denise be convicted of violating CPC §647(a)?

Conclusion: While other elements of the offense are present – that is, Denise willfully went to a public place and allowed her boyfriend to bare her genitals for sexual gratification – it's debatable whether Denise should've known that Vickie would be watching them from a UAV hundreds of feet in the air. Since reasonable doubts must be resolved in the defendant's favor, Denise shouldn't be convicted of violating CPC §647(a), as she had a reasonable belief that no one who'd be offended was near.

You Weren't In A Place Open To Public View

Example: Defendant Donald and his boyfriend are in Donald's backyard, which is enclosed with high walls, when they decide to remove their clothes and swim in Donald's pool. Hearing their splashing, Donald's neighbor, Victim Viola, looks through her third floor window, sees the men and calls the police. Viola reports Donald for Lewd Conduct In Public. Should Donald be convicted of violating CPC §647(a)?

Conclusion: Donald touched himself to remove his clothing, thereby exposing his genitals and buttocks. Since he was with his boyfriend, who took off his own clothes, we can also assume that both men were naked for some kind of sexual gratification. Donald also had a neighbor, Viola, who lived near enough to see both men in the backyard. This might've been known to Donald. However, Viola looked over high walls enclosing Donald's private backyard. Thus it can't reasonably be said that Donald and his boyfriend were in “public or a place open to public view.” Donald should not be convicted of violating CPC §647(a).

You Were Entrapped Or Arrested Unlawfully 

Example: Defendant Dorrigo is known to frequent public spas and engage in sex. He has been arrested for it.[9] The local police decide to arrest him again. They send an undercover officer, Victim Vincente, to Dorrigo's favorite spa to make a pass at Dorrigo. Once there, Vincente approaches Dorrigo and proposes performing oral sex on him. Dorrigo agrees and removes his bathrobe, exposing his genitals. Vincente has him arrested for Lewd Conduct In Public. Should Donald be convicted of violating CPC §647(a)?

Conclusion: Entrapment, a defense,[10] requires proving the police knew that a particular defendant would likely commit a specific crime and created a trap to persuade the defendant to commit the crime in police presence. Here, the police knew that Dorrigo frequented spas - and had been arrested for sex acts in them - so they targeted him with a trap. Had the police created a trap meant for just anyone who came along (or anyone else), Dorrigo might be convicted. But the police created a trap meant just for Dorrigo because they believed he would commit a specific crime. Then Vincente enticed Dorrigo and Dorrigo was entrapped. Therefore, Dorrigo shouldn't be convicted of violating CPC §647(a).

Join us for a Free Consultation

More information can be found in the Lewd Conduct Lawyer section of the Kann California Defense Group's website. If you or someone you care about has been charged with Lewd Conduct, contact us at any of our local offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County for a free consultation.

Related Offenses

Note: The crimes below are described as “related” because they're frequently charged together and/or have common elements that the prosecutor must prove beyond a reasonable doubt.

The California Penal Code contains several offenses related to Lewd Conduct In Public: Statutory Rape (§261.5), Lewd Conduct With A Minor (§288), Indecent Exposure (§314), Disturbing The Peace (§415), Loitering/Soliciting Inside A Public Restroom (§647(d)), Peeking While Loitering (§647(i)) and Invasion of Privacy (§647(j)).

Statutory Rape

Statutory Rape (CPC §261.5) also referred to as Unlawful Sex occurs in California whenever an adult has “[u]nlawful sexual intercourse[11] […] with a [minor] who is not the spouse of the perpetrator[.]”[12] For purposes of the law, “adult” means a person eighteen years of age or older, while a “minor” is under eighteen.[13] Section 261.5 is written such that prosecutors can charge differently, depending on the ages of the victim and defendant.[14] Statutory Rape can be charged as a felony or a misdemeanor. This makes Statutory Rape a “wobbler”[15] crime in California. However, without aggravating facts (which could increase the penalty), you won't be required to register as a Sex Offender for violating PC §261.5.[16]

While PC §261.5 created multiple crimes,[17] if you're twenty-one or older and you're convicted of Statutory Rape Of A Minor Under Sixteen, the penalty (for a Misdemeanor or a Felony) may be:

  • Imprisonment in a county jail for up to one (1) year;[18] OR,
  • A fine of up to $25,000 (twenty-five thousand dollars);[19] OR,
  • Both imprisonment and a fine, as a misdemeanor.[20]
  • Imprisonment in a county jail or prison for 16 months, 2 years, or three years, as a felony.

Note:  The minor's consent is not a defense to a charge of violating PC §261.5.[21] However, it is a defense that you reasonably believed the other person was eighteen or older. The prosecutor must prove that you didn't reasonably (and actually) believe the other person was at least eighteen.[22]

Contact Us for Help

More information can be found in the Statutory Rape Lawyer section of the Kann California Defense Group's website. If you or someone you care about has been charged with Lewd Conduct, contact us at any of our local offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County.

California Jury Instructions – Statutory Rape

Note: Although Statutory Rape is a single offense, the prosecutor must prove different things to convict you of Statutory Rape of a Minor Within Three Years of yourself, Statutory Rape of a Minor More Than Three Years Younger than yourself and Statutory Rape Of A Minor Under Sixteen if you're a defendant who's twenty-one or older.

To convict you under §261.5(d) (Statutory Rape Of A Minor Under Sixteen, if you're twenty-one or older), the prosecutor must prove the following beyond a reasonable doubt:

You had sex with a person you weren't married to at the time. You were also at least twenty-one years old at the time of the sex and the other person was under sixteen.

Example: Defendant David was twenty when he had sex with his girlfriend, Victim Victoria, who was fifteen at the time. Victoria turned sixteen a few weeks later, which is when Victoria's parents came across a letter in which she confessed to having sex with David. Victoria's parents reported David for Statutory Rape Of A Minor Under Sixteen and had him arrested and charged. David turned twenty-one the following day. Should David be convicted of violating CPC §261.5(d)?

Conclusion: While David had sex with Victoria when she wasn't sixteen, he wasn't twenty-one at the time. By the time he was twenty-one she'd already turned sixteen. The law requires “having unlawful sexual intercourse with a person who was under the age of 16 years at a time after the defendant had reached (his/her) 21st birthday.”[23] (Emphasis added.) Since David wasn't twenty-one at the time he had sex with Veronica (or even when he was charged), he should be acquitted of violating CPC §261.5(d).

Lewd Conduct With A Minor

The crime of Lewd Conduct With A Minor (CPC §288) occurs when an adult engages in a sex act with a minor under fourteen (Section (a)) or a minor who's fourteen or fifteen and a minimum of ten years younger than the adult (Section (c)). Section 288 is written such that prosecutors can charge differently, depending on the ages of the victim and defendant.[24] Some sub-sections of PC Section 288 can be charged as misdemeanors or felonies. This makes Lewd Conduct With a Minor a “wobbler”[25] crime in California in some cases.

While PC §288 created more than one form of the crime,[26] if you're convicted of Lewd Conduct With A Minor Under Fourteen (a Felony), the penalty may be:

  • A term in the state prison of three (3), six (6), or eight (8) years; OR,
  • A fine of up to $10,000 (ten-thousand) dollars;[27] OR,
  • Both a fine and imprisonment.

Note: California Penal Code Section 288 also requires some kind of touching “with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of [the adult] or the child” for the law to be broken - but actual arousal isn't required. Additionally, it is not a defense that the minor consented to the act.[28]

More information can be found in the Sex Offense Lawyer section of the Kann California Defense Group's website. If you or someone you care about has been charged with Lewd Conduct, contact us at any of our local offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County.

California Jury Instructions – Lewd Conduct With A Minor

To convict you under §288(a), the prosecutor must prove the following beyond a reasonable doubt:

You touched a child's body OR got a child to touch your body, the child's own body, or someone else's body on bare skin or through the clothing. You also acted intending to gratify your sexual desires or the child's. Lastly, the prosecutor has to prove that the child was under the age of 14 at the time of the act.

Example:  Defendant Diego is caught taking pictures of the bare leg of ten year old Victim Valentina, one of his two stepdaughters, in his home.[29] Confronted about this by his wife, he admits to being sexually aroused by Valentina's bare leg. Valentina's mother accuses him of molestation and reports Diego to the police, who arrest him for Lewd Conduct With A Minor. Could Diego be convicted of violating §288(a)?

Conclusion: Diego admitted that he was sexually aroused by Valentina's bare skin and Valentina was only ten years old at the time. However, Diego took pictures of Valentina's leg; he didn't touch her, nor did he get her to touch him, herself, or someone else. Therefore, while the other elements are present, Diego shouldn't be convicted of violating CPC §288(a).

Indecent Exposure

 

Indecent Exposure (CPC §314(1)) occurs when a person exposes his or her naked body or genitals and draws attention to the display in front of anyone who could be annoyed or offended. Though most people think it can only happen in public, Indecent Exposure can actually happen in just about any environment. The exposure, however, must be willful and lewd.[30] Section 314(1) is a “wobbler”:[31] meaning that a prosecutor can charge you with a Felony or a Misdemeanor, depending on the facts or whether one has been convicted of PC 314(1) in the past.[32]

While §314(1) created more than one form of the offense,[33] if you're charged with Felony Indecent Exposure, the penalty can be:

  • Imprisonment for up to sixteen (16) months, two (2) years, or three (3) years in a state prison;[34] OR,
  • A fine of up to $10,000 (ten-thousand dollars);[35] OR,
  • Both a fine and imprisonment; AND
  • Required to register as a Sex Offender under California Penal Code Section 290.

If you are charged with a misdemeanor count of PC 314(1), Indecent Exposure the penalty can be:

              * Up to one (1) year in county jail; OR

              * A fine of up to $1000 (one thousand dollars); OR

              * Both a fine and imprisonment; AND

              * Required to register as a Sex Offender under California Penal Code Section 290.

Note: Most California professional organizations requiring licenses consider disciplining license holders convicted of Indecent Exposure but this doesn't mean that you have to give up your professional license. Misdemeanor convictions are an exception to the general disciplinary approach, which otherwise involves the possibility of losing your license.[36]

More information can be found in the Sex Offense Lawyer section of the Kann California Defense Group's website. If you or someone you care about has been charged with Lewd Conduct, contact us at any of our local offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County.

California Criminal Jury Instructions – Indecent Exposure

To convict you under §314(1), the prosecutor must prove the following beyond a reasonable doubt:

You willfully exposed your genitals in the presence of someone who might be offended or annoyed by it and acted intending to direct attention to your genitals to sexually gratify yourself, another person, or to offend someone else.

Example: Defendant Derrick goes swimming in a river adjacent to a busy park. He's wearing swimming trunks. He dives into the river, swims to the bottom, then surfaces and leaps onto the shore. As he does this, his trunks slip off his hips, revealing his genitals. Derrick pulls them up as fast as he can but a guest at the park, Victim Varna, sees him with his trunks down and reports Derrick for Indecent Exposure. Should Derrick be convicted of violating California Penal Code §§314(1)?

Conclusion:  Derrick presented his bare genitals to Varna, who was offended by the display. However, Derrick didn't intend on offending Varna or sexually gratifying himself when he did it. Nor did he attempt to draw attention to his genitals. (In fact, he didn't even expose himself willfully, since his trunks slipped off his hips by accident.) On these facts Derrick can't be convicted of violating §314(1).

Disturbing The Peace

 

Disturbing The Peace (CPC §415) occurs in California whenever anyone unlawfully fights or challenges another person to fight in public, intentionally disturbs another person with unreasonable noise, or uses offensive words likely to provoke violence in public.

If you're convicted of Disturbing The Peace, the penalty may be:

  • A term in the county jail of up to 90 (ninety) days; OR,
  • A fine of up to $400 (four hundred dollars); OR,
  • Both a fine and imprisonment.[37]

Note: Charges such as Penal Code Section 415, Disturbing the Peace can be used by skilled California criminal defense attorneys as an alternative charge to offer the prosecutor in exchange for dismissing a charge like Penal Code Section 314(1), often to protect their client from having to register as a Sex Offender.          

More information can be found in the Disturbing The Peace Lawyer section of the Kann California Defense Group's website. If you or someone you care about has been charged with Lewd Conduct, contact us at any of our local offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County.

California Criminal Jury Instructions – Disturbing The Peace

Note: While the statute creates a single crime, the prosecutor must prove several elements to convict you under §415(1) (fighting), §415(2) (making unreasonable noise), or §415(3) (use of offensive words).

To convict you under §415(1), the prosecutor must prove the following beyond a reasonable doubt:

You unlawfully fought or challenged someone to fight. The prosecutor must also prove that you and the other person were in a public place or building when the fight occurred or the challenge was made.

Example: Defendant DeAndre is standing on a public street outside a bar when Victim Vinton drunkenly exits the bar and assaults him verbally. DeAndre tries to ignore him. Vinton, enraged, attacks DeAndre physically, forcing DeAndre to strike Vinton, although DeAndre uses the same level of force as Vinton. Just then, a police officer appears and arrests DeAndre for Disturbing The Peace. Should DeAndre be convicted of violating CPC §415(1)?

Conclusion: DeAndre fought with Vinton on a public street, which goes a long way in proving a violation of Penal Code §415(1). But it was Vinton who attacked DeAndre, entitling DeAndre to defend himself by using the same level of force that Vinton, his attacker, used.[38] Therefore, while they did fight, DeAndre wasn't fighting unlawfully. DeAndre shouldn't be convicted of violating CPC §415(1).

Trespass

 

Trespass (CPC §602) occurs when a building or property is entered without the owner's permission. It's usually punished as a Misdemeanor but it can be coupled with sex offenses to aggravate the sentence.

If you're convicted of Trespass, the penalty may be:

  • A fine up to $2,000 (two-thousand dollars);[39] OR
  • A term in the county jail up to one (1) year;[40] OR,
  • Both a fine and imprisonment.[41]

Note: Trespass can be used by defendants to plead guilty to a lesser charge when a prosecutor is entertaining charges of Indecent Exposure (CPC §314) inside a house or building or Burglary (CPC §459).

More information can be found in the Trespassing Lawyer Section of the Kann California Defense Group's website. If you or someone you care about has been charged with Lewd Conduct, contact us at any of our local offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County.

California Jury Instructions – Trespass

To convict you under §602, the prosecutor must prove the following beyond a reasonable doubt:

You willfully entered land or a building belonging to someone else without the consent of the owner, the owner's agent,[42] or the person who had lawful possession of the property. You also occupied the land or building continuously until you were removed.

Example:  Defendant Dina has a friend who invites her to stay with her for a few weeks. Dina accepts and moves her things into her friend's rented apartment without her friend telling her landlady about Dina.  The landlady, Victim Vera, encounters Dina inside her friend's apartment one afternoon. Dina tries to explain that she's staying with one of Vera's tenants but Vera doesn't believe her and calls the police. They arrest Dina inside her friend's apartment. Should Dina be convicted of violating CPC §602, Trespass?

Conclusion: Dina willfully entered property that her friend actually had the right to occupy because of her friend's rental contract with Vera. She also stayed inside the property until the police arrived to arrest her. However, Dina was present with her friend's permission – and, as noted, her friend had lawful possession of the apartment. On these facts, Dina shouldn't be convicted of violating PC §602.

Loitering To Solicit (Or Engaging In) Lewd Conduct Inside A Public Restroom, Peeking While Loitering & Invasion Of Privacy

Loitering To Solicit (Or Engage In) Lewd Conduct in any public restroom is a crime under CPC §647(d). This occurs when a person lingers around “any toilet open to the public for the purpose of engaging in or soliciting any lewd or lascivious or [ ] unlawful act.”[43] The crime is essentially the same as Lewd Conduct In Public under CPC §647(a): to violate the law you must ask someone to touch your genitals, your buttocks or your (female) breast. (It's also a crime if you ask to touch someone else lewdly, if you ask a person to touch him- or herself, or if you ask a person to touch another.) The major difference between §§647(a) and (d) is one of location. To violate §647(d) you must be in or around a public toilet.

If you're convicted of Loitering To Solicit (Or Engaging In) Lewd Conduct Inside A Public Restroom, the penalty may be:

  • Imprisonment in a county jail for a term of up to six (6) months; OR,
  • A fine of up to $1,000 (one-thousand dollars); OR;
  • Both a fine and imprisonment.[44]

Note: Just making eye contact with someone who happens to be inside a restroom isn't enough to violate §647(d) - even if the other person felt like you were soliciting him or her. [45]

Peeking While Loitering (CPC §647(i)) occurs in California when a person enters private property to peek “in the door or window of any inhabited building or structure[46] [ ] without visible or lawful business with the owner or occupant.”[47] Peeking While Loitering is related to Lewd Conduct In Public because both involve behavior considered lewd.[48] However, while it's punished as a Misdemeanor, Peeking While Loitering can result in more serious penalties, if aggravating factors like repeat conviction are present.

If you're convicted of Peeking While Loitering, the basic penalty may be:

  • Imprisonment in a county jail for a term of up to six (6) months; OR,
  • A fine of up to $1,000 (one-thousand dollars); OR;
  • Both a fine and imprisonment.[49]

Invasion Of Privacy (CPC §647(j)) is a crime in California whenever a person intentionally looks into or films a room (including bedrooms, changing rooms and tanning booths) without the occupant's consent, so long as there's a reasonable expectation of privacy in occupying the room.[50]

If you're convicted of Invasion Of Privacy, the penalty may be:

  • Imprisonment in a county jail for a term of up to six (6) months; OR,
  • A fine of up to $1,000 (one-thousand dollars); OR;
  • Both a fine and imprisonment.[51]

Note: §§647(l)(1) and (2) carry more serious prison terms and fines, with aggravating facts.[52]

More information can be found in the Solicitation of Lewd Conduct Lawyer section of the Kann California Defense Group's website. If you or someone you care about has been charged with Lewd Conduct, contact us at any of our local offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County.

California Criminal Jury Instructions – Loitering/Soliciting Under §647

To convict you of Soliciting under §647, the prosecutor must prove the following beyond a reasonable doubt:

You solicited another person to touch your (or another person's) genitals, buttocks, or female breast, and did it in a place open to the public. You made the request intending for the conduct to occur in a place open to the public to sexually gratify yourself or someone else or to annoy or offend another. You also knew (or should've known) that someone was likely present who'd be offended by the request.

Example: Defendant Damian drives to Griffith Park in Los Angeles and parks beside a public restroom. He enters the bathroom and sees a young man, Victim Vernon, who's actually an undercover officer. Damian nods to Vernon, who approaches Damian and asks Damian if he wants to “do something.”[53] Damian tells Vernon he wants to have sex with Vernon somewhere other than the bathroom and offers to drive Vernon to Damian's house. Vernon responds by having Damian arrested. Should Damian be convicted of violating §647(d)?

Conclusion: Damian did in fact solicit Vernon for sex, since he specified wanting to go somewhere to have sex with Vernon, and not the reverse. He also made the request in place open to the public - specifically, a restroom inside Griffith Park. The solicitation was clearly made for Damian's sexual gratification. However, Damian didn't request that the sex occur in the public restroom. He went as far as offering to drive Vernon to Damian's home. Therefore, while other elements are present, Damian shouldn't be convicted of violating CPC §647(d).

What Can I Do If I'm Charged With Lewd Conduct In Public?

The State of California regards sex crimes as serious offenses. If you're charged with Lewd Conduct In Public, it's essential that you retain a skilled, dedicated criminal defense attorney as soon as possible. Your rights, freedom, and livelihood are at stake.

Remember, an expert criminal defense attorney may be able to:

  • Negotiate a lesser charge;
  • Reduce your sentence;
  • Or even get charges dismissed completely.

Our attorneys at the Kann California Defense Group have an excellent understanding of the local courts and an extensive knowledge of California's criminal justice system. We can represent you in Ventura, Santa Clarita, Los Angeles, Encino, Pasadena and many other Southern California cities. 

If you or someone you know has been arrested or charged with Lewd Conduct In Public, our attorneys will analyze the facts of your case and plan a defense strategy that will help you obtain the very best possible outcome.

Contact the Kann California Defense Group today to schedule your free and confidential consultation

References

[1] “Lewd behavior, sometimes known as ‘indecent behavior,' refers to many acts, with latitude given to the court as to whether an act is lewd or indecent. In most jurisdictions, indecent exposure, peeping, and lewd phone calls are the most common types of lewd behavior.” See “Lewd Acts: Types Of Lewd Behavior,” LegalDictionary.com.

[2] For purposes of the statute, “lewd” and “dissolute” mean the same thing (i.e., touching someone's genitals, buttocks, or female breast). See definition of “Dissolute” at Merriam-Webster.com.

[3] See California Criminal Jury Instructions 1161 (CALCRIM) (2017). (“Someone commits an act willfully when he or she does it willingly or on purpose.”)

[4] To “solicit” is “1. To seek or to plead, to entreat and ask. 2. To lure or tempt a person.” See definition of “solicit” at TheLawDictionary.org. 

[5] See California Criminal Jury Instructions 1161 (CALCRIM) (2017). (“As used here, a public place is a place that is open and accessible to anyone who wishes to go there.”)

[6] See People v. Honan (186 Cal.App.4th 175 at 181 (2010)). (“[L]ewd conduct can include risqué, consensual touching that is open to public view, not because the parties specifically intended that others watch, but rather as a result of the participants' sheer recklessness.”)

[7] See CPC §19. ("Except in cases where a different punishment is prescribed by any law of this state, every offense declared to be a misdemeanor is punishable by imprisonment in the county jail not exceeding six months, or by fine not exceeding one thousand dollars ($1,000), or by both.")

[8] Drake might also argue that he didn't willingly violate the law, since he reacted instinctively to a painful bite.

[9] Facts paralleling Pryor v. Municipal Court (25 Cal.3d 238, 158 Cal.Rptr. 330 (1979)). (Defendant appealed conviction for soliciting oral sex from police officer on bases including that act wasn't to occur in a public place.)

[10] “The defendant has the burden of proving this defense by a preponderance of the evidence. This is a different standard from proof beyond a reasonable doubt. To meet this burden, the defendant must prove that it is more likely than not that he or she was entrapped. [¶] A person is entrapped if a law enforcement officer or his or her agent engaged in conduct that would cause a normally law-abiding person to commit the crime.” See California Criminal Jury Instructions 3408 (CALCRIM) (2017).

[11] “Sexual intercourse means any penetration, no matter how slight, of the vagina or genitalia by the penis. [Ejaculation is not required.]” See California Criminal Jury Instructions 1070 (CALCRIM) (2017).

[12] See CPC §261.5(a).

[13] Same as above. (“For the purposes of this section, a ‘minor' is a person under the age of 18 years and an ‘adult' is a person who is at least 18 years of age.”)

[14] See §§261.5(b ),(c),(d). (“(b) Any person who engages in an act of unlawful sexual intercourse with a minor who is not more than three years older or three years younger than the perpetrator, is guilty of a misdemeanor. [¶] (c) Any person who engages in an act of unlawful sexual intercourse with a minor who is more than three years younger than the perpetrator is guilty of either a misdemeanor or a felony, and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment pursuant to subdivision (h) of Section 1170. [¶] (d) Any person 21 years of age or older who engages in an act of unlawful sexual intercourse with a minor who is under 16 years of age is guilty of either a misdemeanor or a felony, and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or four years.”)

[15] “In California, ‘Wobbler' refers to a criminal offense that can be classified as either a misdemeanor or a felony. It ‘wobbles' between these two categories of offenses. It signifies a lesser felony offense that specifies fines or jail time as alternative punishments to state prison.” See definition of “Wobbler Law” at USLegal.com.

[16] See CPC §290(c)  for a list of those who must register.

[17] See CPC §261.5(c) (making it  a crime to have sex with a minor who's more than three years younger than yourself) or §261.5(b) (making it a crime to have sex with a minor who's not three years older or three years younger than yourself).

[18] See CPC §261.5(d). (“Any person 21 years of age or older who engages in an act of unlawful sexual intercourse with a minor who is under 16 years of age is guilty of either a misdemeanor or a felony, and shall be punished by imprisonment in a county jail not exceeding one year[.]”)

[19] See CPC §261.5(e)(1)(D). (“An adult over the age of 21 years who engages in an act of unlawful sexual intercourse with a minor under 16 years of age is liable for a civil penalty not to exceed twenty-five thousand dollars ($25,000).”)

[20] Note that §261.5 also created special fines for adults who have sex with minors “at least two years younger than the adult.” See CPC §§261.5(e)(1)(A) and (B).

[21] “It is not a defense that the other person may have consented to the intercourse.” See California Criminal Jury Instructions 1070 (CALCRIM) (2017).

[22] Same as above. (“The defendant is not guilty of this crime if he or she reasonably and actually believed that the other person was age 18 or older. The People must prove beyond a reasonable doubt that the defendant did not reasonably and actually believe that the other person was at least 18 years old. If the People have not met this burden, you must find the defendant not guilty of this crime” [emphasis added].)

[23] See California Criminal Jury Instructions 1070 (CALCRIM) (2017).

[24] See §288(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” [emphasis added].)

[25] See Endnote 15, above.

[26] See §288(b)(1) (establishing the crime of Lewd Conduct With A Minor accomplished by force) and §288(c)(1) (establishing the crime of being ten years or older and having sex with a minor who's aged fourteen or fifteen).

[27] See §288(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).”)

[28] See California Criminal Jury Instructions (CALCRIM) 1110 (2017). (“Actually arousing, appealing to, or gratifying the lust, passions, or sexual desires of the perpetrator or the child is not required.  [¶] It is not a defense that the child may have consented to the act.”)

[29] Facts paralleling People v. Carbajal (56 Cal.4th 521, 155 Cal.Rptr.3d 335, 298 P.3d 835 (2013)) (Defendant appealed issue of whether he could be properly retried on allegation of having multiple molestation victims).

[30] For purposes of CPC §314, “lewd” means the same thing as it does under §647(a).

[31] See Endnote 15, above.

[32] California also has a statute creating the crime of Failing To Register As A Sex Offender, CPC §290.018. If you violate Section 290.018, the penalty is based on the level of your conviction under §314. A Misdemeanor conviction produces a Misdemeanor violation of the duty to register as a Sex Offender, and vice-versa, if you've been convicted of a Felony. The penalty can range from one to three years in state prison.

[33] See §314 (establishing both Misdemeanor and Felony forms of Indecent Exposure).

[34] See CPC §18(a). ("Except in cases where a different punishment is prescribed by any law of this state, every offense declared to be a felony is punishable by imprisonment for 16 months, or two or three years in the state prison unless the offense is punishable pursuant to subdivision (h) of Section 1170.”)

[35] See CPC §672. (“Upon a conviction for any crime punishable by imprisonment in any jail or prison, in relation to which no fine is herein prescribed, the court may impose a fine on the offender not exceeding one thousand dollars ($1,000) in cases of misdemeanors or ten thousand dollars ($10,000) in cases of felonies, in addition to the imprisonment prescribed.”)

[36] See California Business And Professions Code §1687(b)(2). (“This section shall not apply to any of the following: ...(2) An individual who is required to register as a sex offender pursuant to Section 290 of the Penal Code solely because of a misdemeanor conviction under Section 314 of the Penal Code. However, nothing in this paragraph shall prohibit the board from exercising its discretion to discipline a licensee under other provisions of state law based upon the licensee's conviction under Section 314 of the Penal Code" [emphasis added].)

[37] See CPC §415. (“[T]he following persons shall be punished by imprisonment in the county jail for a period of not more than 90 days, a fine of not more than four hundred dollars ($400), or both such imprisonment and fine[…]”.)

[38] See California Criminal Jury Instructions 3470 (CALCRIM) (2017) for the method of proving Self-Defense.

[39] See CPC §602 (detailing Trespass fines and circumstances for imposing fines).

[40] Same as above (detailing jail terms for Trespass and circumstances for imposing sentences).

[41] Same as above (detailing circumstances in which a court may impose both a fine and imprisonment).

[42] “An agent is a person who is authorized to act for someone else in dealings with third parties.” See California Criminal Jury Instructions 2931 (CALCRIM) (2017).

[43] See CPC §647(d).

[44] See Endnote 7, above.

[45] Also known as “cruising.”

[46] “A building or structure is inhabited if someone uses it as a dwelling, whether or not someone is inside at the time of the alleged peeking. [¶] A building or structure is not inhabited if the former residents have moved out and do not intend to return, even if some personal property remains inside.” See California Criminal Jury Instructions 2916 (CALCRIM) (2017).

[47] See CPC §647(i).  

[48] This is true even though Lewd Conduct In Public occurs in the setting opposite of Peeking While Loitering.

[49] See Endnote 7, above.

[50] CPC §647(j)(2) also criminalizes filming “another, identifiable person under or through the clothing being worn by that other person, for the purpose of viewing the body of, or the undergarments worn by, that other person.”

[51] See Endnote 7, above.

[52] See CPC §647(l)(1) (establishing a maximum term “in a county jail not exceeding one year, or by a fine not exceeding two thousand dollars ($2,000), or” both for repeat offenders, and §647(l)(2), establishing the same maximum term and fine if a minor was the target of the crime).

[53] Facts paralleling People v. Lake, 67 Cal.Rptr.3d 452 at 454 (2007). (Defendant “challeng[ed] [his] conviction on [the] grounds:  (1) that the […] People had presented no evidence that anyone who might be offended would be present at the time the solicited act was to occur[.]”)

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