Sex In Public Charges Ca

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Sex In Public Charges Ca
The crime of "lewd or dissolute conduct in public" - a former D.A. explains
California Penal Code 647 PC . Except as provided in subdivision (l), every person who commits any of the following acts is guilty of disorderly conduct, a misdemeanor: (a) Who solicits anyone to engage in or who engages in lewd or dissolute conduct in any public place or in any place open to the public or exposed to public view. Judicial Council of California Criminal Jury Instructions, CALCRIM 1161. Same. California Penal Code 19 Our California criminal defense attorneys represent clients accused of lewd conduct offenses in Los Angeles, Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier. We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities. California Penal Code 647 PC, endote 1, above. CALCRIM 1161 , endnote 2, above. Pryor v. Municipal Court (1979) 25 Cal.3d 238 , 158 Cal.Rptr. 330 The terms “lewd” and “dissolute” in this section are synonymous, and refer to conduct which involves the touching of the genitals, buttocks, or female breast for the purpose of sexual arousal, gratification, annoyance or offense, if the actor knows or should know of the presence of persons who may be offended by his conduct. Same. People v. Williams (1976) 59 Cal.App.3d 225 , 130 Cal.Rptr. 460 (“We do not think that any reasonable person be he juror or defendant would have any difficulty understanding, even under today’s liberal attitudes toward sex, that masturbation in a public place in plain view of anyone who may be on the premises is “lewd and dissolute.”). Same. Same. Pryor v. Municipal Court, endnote 8, above. People v. Rylaarsdam (1982) 130 Cal.App.3d Supp. at p. 11 . People v. Norris (Super. 1978) 152 Cal.Rptr. 134, 88 Cal.App.3d Supp. 32. People v. Perez (App. 2 Dist. 1976) 64 Cal.App.3d 297 . People v. Blatt (App. 2 Dist. 1972) 99 Cal.Rptr. 855, 23 Cal.App.3d 148. Steinke v. Municipal Court for San Jose-Milpitas-Alviso Judicial Dist. (1969) 82 Cal.Rptr. 789, 2 Cal.App.3d 569. See, e.g., People v. Honan (2010) 186 Cal.App.4th 175 , 111 Cal.Rptr.3d 351 (“Given these parameters, lewd 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. An example of such lewd conduct is a couple engaging in a sexual encounter in a public restroom or in a parked car.”). Pryor v. Municipal Court, endnote 8, above. People v. Lake (2007) 156 Cal.App.4th Supp. 1 , 67 Cal.Rptr.3d 452 (holding that because a conversation between an undercover police officer and the defendant was uncertain as to the time and place of a possible sexual encounter, there was “no evidence as to whether there would likely be other people in the vicinity when the proposed conduct was to actually occur. Thus, it would be impossible for a reasonable jury to conclude without speculating that appellant knew or reasonably should have known that someone was likely to be present who could be offended by the requested conduct, particularly where, as here, appellant explicitly maintained he did not want to ‘get caught.'”). California Penal Code 19 , endnote 4, above. See e.g., People v. Honan, endnote 19, above (“[Penal Code S]ection 290 requires mandatory lifetime registration for a person convicted of indecent exposure (§ 314, subd. 1), but not for a person convicted of lewd conduct (§ 647, subd. (a)).”). California Penal Code 314 In Re Smith (1972) 7 Cal.3d 362 , 497 P.2d 807 (“[A] person does not expose his private parts ‘lewdly’ within the meaning of section 314unless his conduct is sexually motivated. Accordingly, a conviction of that offense requires proof beyond a reasonable doubt that the actor not only meant to expose himself, but intended by his conduct to direct public attention to his genitals for purposes of sexual arousal, gratification, or affront.”). California Penal Code 602 California Penal Code 415 People v. Soto (1985) 171 Cal.App.3d 1158, 217 Cal.Rptr. 795. People v. Superior Court (Caswell) (1988) 46 Cal.3d 381 , 758 P.2d 1046. California Penal Code 647 provides, in relevant part: “… every person who commits any of the following acts is guilty of disorderly conduct, a misdemeanor: … (i) Who, while loitering, prowling, or wandering upon the private property of another, at any time, peeks in the door or window of any inhabited building or structure, without visible or lawful business with the owner or occupant…” California Penal Code 647(j). See California Penal Code 647(l). California Penal Code 261.5(a) See California Penal Code 261.5(b)-(d). See California Penal Code 261.5(e).
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Criminal Defense » Penal Code » 647a PC - Lewd Conduct in Public
Penal Code 647a PC makes it a crime to engage in lewd conduct in public – defined as touching your own or another person’s genitals , buttocks , or a female breast , for sexual gratification , when you know or should know there are other people present who would be offended by it.
It is also a crime to solicit lewd conduct in public . A conviction is a misdemeanor punishable by up to 6 months in jail and fines of up to $1000.00. Sex offender registration is not required.
Lewd or dissolute conduct is defined as touching your private parts (or another’s private parts) when you do so:
In and of itself, sexual activity — even in a public place — is not a crime. It only rises to the level of “lewd conduct” when you know — or you reasonably should know — that there is likely to be someone present or watching who would be offended by your conduct.
Violation of 647a PC is a misdemeanor . It is punishable by up to 6 months in county jail and/or a fine of up to $1,000. In reality, many of these charges get reduced to lesser offenses. And many are resolved for misdemeanor probation and little or no jail time.
Currently, a conviction for lewd conduct in public does not require registration as a sex offender . However, prosecutors often charge it together with Penal Code 314 “indecent exposure” . Penal Code 314 does trigger lifetime sex offender registration.
Most lewd conduct arrests involve undercover sting operations. Decoy police officers pose as gay men in bathrooms, parks, and adult bookstores. These undercover cops try to “bait” you into sexual behavior. When you
they arrest you. It often amounts to very clear cases of police entrapment .
Most people arrested in these stings never engaged in “lewd or dissolute conduct” as the law defines it. In fact, quite often the arrested person does nothing more than making eye contact and “cruise” the decoy officer.
Yet police tend to embellish, exaggerate and outright lie in order to make it look like something more than that happened. It’s wrong. Yet it happens all the time.
Legal Defenses to California Charges of Lewd Conduct in Public
Legal defenses to lewd conduct charges include (but are not limited to):
Our lawyers are former prosecutors and cops who have successfully defended thousands of lewd conduct cases. In fact, in almost every case the Penal Code 647(a) PC charges have gotten dismissed.
To help you better understand how we fight charges of lewd conduct in public, our California criminal defense lawyers will discuss the following:
You may also find helpful information in our related articles on:
In and of itself, sexual activity — even in a public place — is not a crime.
You violate California Penal Code 647a when:
To establish this, the prosecutor must prove five facts (called “elements of the crime”):
Let’s take a closer look at these elements.
The terms “lewd” and “dissolute” mean the same thing under this section.
They simply refer to the touching of the genitals, buttocks, or female breast for the purpose of sexual arousal, gratification, annoyance or offense.
The statute does not itself contain any language regarding intent. It merely prohibits “lewd or dissolute conduct.”
However, in keeping with the traditional definition of “lewd,” courts have interpreted this language as pertaining to activity of a sexual nature.
One appellate court has said the test is “whether a reasonable person would understand with reasonable certainty that his conduct is proscribed.”
Activity that is not intended to sexually arouse or annoy anyone is not prohibited under the statute.
Example : You plan to spend the afternoon playing baseball in a public park and then take your girlfriend out to dinner. But the game runs late and you don’t have time to go home and shower. You go into the public bathroom and wash up at the sink.
You pull down your pants so you can wash your genital area. An undercover cop sees you with your penis in your hand, and arrests you for public masturbation. However, because you were holding your penis with no intent to arouse or annoy anyone, you are not guilty of lewd conduct.
It is, of course, helpful if you can establish an innocent reason for your behavior. But the burden is on the prosecutor to prove your unlawful intent. And that can be difficult for a prosecutor unless the circumstances make your intent very clear.
To violate Penal Code 647a, lewd conduct must occur in:
California courts have interpreted the word “public” very broadly. Places they have found to be public include, among others:
Locations such as your home, your hotel room, and your closed place of business, are not public places. However, the section may still be violated if one of these places is exposed to public view. So if the curtains or blinds are open, sexual activity in an otherwise private place may become a crime.
It’s not inherently illegal in California to engage in sexual activity in public. It’s only illegal if you know… or reasonably should know… of the presence of someone who is likely to be offended.
“[Penal Code 647a]… serves the primary purpose of protecting onlookers who might be offended by the proscribed conduct… [E]ven if conduct occurs in a location that is technically a public place, a place open to the public, or one exposed to public view, the state has little interest in prohibiting that conduct if there are no persons present who may be offended.”
More than the mere possibility of being seen by someone else is required. There must be some actual likelihood that third persons are present.
The upshot is that most people arrested for lewd or dissolute conduct are factually innocent. Even if they engaged in public sexual activity, they reasonably believed that:
Lewd conduct can result in a fine and/or jail time.
Lewd conduct is a misdemeanor offense. The maximum punishment is:
As a practical matter, however, judges often grant misdemeanor (also known as “summary” or “informal”) probation with little or no jail time.
Conditions of PC 647a probation often include
A conviction for lewd conduct in public does not require that you register as a sex offender. However, prosecutors often charge it together with indecent exposure, an offense that does require sex offender registration. They will agree to drop the lewd conduct charge only if you plead guilty to indecent exposure.
Many defendants in this situation feel compelled to “take the deal.” They fear that if they go to trial and get convicted, having to register as a sex offender will be an unbearably bad outcome.
In most of the sting operations, the undercover cop is pretending to be a gay man out cruising.
Example : A decoy officer lurks in a park bathroom until a guy who appears to be gay walks in. The officer is dressed in plain clothes. He starts acting flirtatious. He makes heavy eye contact, winks, and touches his penis from outside his pants.
But it’s all an act. He’s trying to bait the suspect into exposing himself, masturbating, or agreeing to a sexual act. When the man does, or agrees to do one of these things, the officer arrests him.
Other lewd conduct sting cases may involve police surveillance of discrete public locations.
Example : Two men are masturbating each other in the bushes in a remote section of Griffith Park. Unbeknownst to them, the LAPD has been surveilling the area for just such an activity. The cops rush in and “bust” the suspects in the act.
In both of these scenarios, the men arrested reasonably believed they were in a place where no one else would be offended by the conduct. In the decoy sting situation, the undercover was pretending to be looking for a hookup. In the Griffith Park example, the guys selected a desolate location precisely so that no one would see and take offense .
They had no reason to believe a third party was present who would be offended. Therefore, their activity (even if it involved sex in public) does not violate the law.
Police tend to set up lewd conduct sting operations in:
The cops claim the undercover stings are in response to “citizen complaints.” Often this means complaints from people who don’t like gay men hanging out and cruising in the area.
While there are numerous places where the stings have occurred, here are a few that we frequently see:
These are only a few of the places where the stings happen most commonly. But they can happen anywhere. Most guys who get arrested didn’t even go to the location looking to cruise or hookup. Rather, they walked unsuspectingly into a trap.
If you enter a bathroom or public location and feel that something’s not right… leave . Undercover cops tend to be bad actors, and are oftentimes clueless and overbearing in their cruising. If your instinct tells you something fishy is happening, don’t look at the decoy and don’t interact with him…just go.
With Penal Code 647a PC violations, sometimes the police will just give you a citation to appear in court. Other times they will arrest you, fingerprint you and book you before releasing you with the court citation.
In either case, call a California criminal defense attorney right away. Usually, there’s a delay between the arrest and when the district attorney reviews the case and files formal charges. Sometimes we can meet with the D.A.s during this intervening period and persuade them not to file charges (i.e., to “reject” the case).
Because it’s a misdemeanor, California criminal defense lawyers can go to court on your behalf. This means that if you hire an attorney, you’ll probably never have to appear in court.
Once we go to court, we obtain the police reports and all the evidence in the prosecutor’s possession.
Usually, we inspect the location. We run a Pitchess motion to check the background of the arresting officers . We try to get statements from others arrested as part of the same operation. We identify the weaknesses in the prosecution’s case and try to get them to dismiss the charges.
Sometimes the district attorney agrees to drop the case if the client pleads to a lesser offense. Charges such as Penal Code 415 disturbing the peace and Penal Code 602 trespassing are common. And since they don’t carry the stigma of a lewd conduct conviction, they are preferred by many clients over going to trial.
If all negotiations with the prosecutor fail, we go to jury trial . In many of these trials, it’s possible to get a “not guilty” verdict.
The best defenses to charges of lewd conduct in public depend on the circumstances of the case. Common defenses include (but are not limited to):
You didn’t engage in the behavior of which you are accused
If you didn’t do what the arresting cop says you did, you aren’t guilty. Remember – the burden is on the prosecution to prove you engaged in lewd conduct.
You touched yourself, but it was not for sexual gratification.
Perhaps you were only touching yourself in a bathroom stall because you needed to urinate. Or maybe you were washing up, or rubbing yourself because your genital area itched.
Whatever the reason, if the prosecution can’t prove your conduct stemmed from a sexual or offensive intent, you aren’t guilty of lewd conduct.
You reasonably believed there was no one present who would be offended.
This is a common defense to charges of lewd conduct. Unless you reasonably should have known that someone would likely see you and be offended, you aren’t guilty under Penal Code 647(a).
You were not in a public place or a place open to public view.
Sexual activity that takes place on private property is not a crime unless the public can view it. If you were engaging in sexual activity in a private place not open to public view, it isn’t lewd conduct.
The police used entrapment or engaged in other misconduct.
California’s entrapment laws forbid the police from inducing a “normally law-abiding citizen” to commit a crime that he was not otherwise predisposed to commit. This includes using pressure, fraud, harassment, threats or flattery. Merely initiating criminal activity, or presenting an opportunity to commit a crime, generally does not constitute entrapment.
Thus whether a 647a PC lewd conduct sting operation amounts to entrapment depends on the facts.
Example : Tom enters a bathroom and the decoy officer smiles at him and makes a motion like he wants to masturbate. Tom responds by dropping his pants and stroking his penis. The officer’s conduct is probably not sufficient provocation to support an entrapment defense.
But … suppose Tom ignores the decoy at first. But the decoy persists with heavy cruising and provocative gestures. The decoy says to Tom: “You’re hot — let’s mess around. I’ll watch to make sure no one is coming.” This more aggressive behavior probably crosses the line into police entrapment.
If we can establish that the police engaged in improper entrapment, that almost always results in the charges being dismissed.
Sometimes prosecutors will “tag on” a charge of Penal Code 314, or more commonly known as indecent exposure.
Sometimes prosecutors will “tag on” a charge of California Penal Code 314 indecent exposure. A conviction under Penal Code 314 is especially devastating. Unlike lewd conduct in public, a conviction for indecent exposure requires you to register as a California sex offender.
“Indecent exposure” consists of willfully exposing one’s genitals in the presence of third parties who would be offended.
Like lewd conduct, Penal Code 314 requires that the exposure is for the purpose of gratifying oneself or sexually offending other people.
And as with lewd conduct, indecent exposure charges are usually without merit. A good California criminal defense attorney can often get all these charges dismissed in plea negotiations or at trial.
Sometimes the prosecutor is unwilling to dismi
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