WHAT DOES THE PROSCUTOR HAVE TO PROVE?
To convict you of lewd conduct under Penal Code section 647(a), the prosecutor has to prove beyond a reasonable doubt the following: a) you engaged in or you solicited someone to engage in b) conduct that was lewd or dissolute c) in a public place or an area open or exposed to the public d) with the intent to sexually arouse or gratify yourself or another, or to annoy or offend another person e) someone was present to witness the conduct, and f) you knew or reasonably should have known that another person who might have been offended by your conduct was present.
CLOSER LOOK AT THE ELEMENTS
“Lewd or Dissolute Conduct”
Lewd or dissolute conduct under code section 647(a) generally means touching your own or another person’s genitals, buttocks, or breast for the purpose of your own or another person’s sexual gratification.
“Intent to sexually arouse or gratify, or annoy or offend”
The language of code section 647(a) lacks language regarding intent. It simply prohibits “lewd or dissolute conduct.” The legislature has construed this language as intent to annoy, offend, or sexually arouse. Whether a specific conduct is lewd or resolute is based on a reasonable person standard—that is, whether a reasonable person would interpret that conduct as such. Activity that objectively cannot be interpreted as intended to sexually arouse or annoy is not considered lewd conduct. For example, while standing next to a urinal in a public bathroom surrounded by other men, Joe pulls down his pants and begins to smear his genitals with a cream that the doctor prescribed to him for a skin condition. A man next to Joe observes the conduct and calls the police. The police arrest Joe for lewd conduct. Joe did not intend to sexually arouse or annoy anybody. Furthermore, a reasonable person would understand that using a cream on your genitals in a manner that clearly does not constitute masturbation is not intended to sexually arouse.
Under code section 647(a), the lewd conduct must have occurred in a public place. The phrase “public place” has generally been interpreted to mean any place that is open to the public or that is publically exposed or accessed. The phrase has been construed to also include places such as a movie booth, an adult bookstore, a car on a street, and a hallway or corridor in a commercial or residential building. Locations such as a private apartment room, hotel room, or closed area of business are not included in that definition. However, if any of these places are exposed to the public view, then code section 647(a) may apply. For example, if the sexual conduct is visible to the public through a transparent window, open blinds, or open curtains, then said conduct could be construed as lewd conduct.
“You knew or reasonably should have known that another person is present to experience the lewd conduct”
Sexual conduct that takes place in a public area in and of itself does not constitute a 647(a) violation. The prosecution in addition must prove that you knew or reasonably should have known that someone else was present to witness the conduct and that this person would likely be offended by the conduct. If there are no such persons present, then the conduct is not a violation of 647(a), even if it took place in a public location. For example, when Joe is about to drop off Jill after a date together, Joe kisses her on the lips. Even though this conduct took place in a public place, no person would find it offensive. As such, the conduct is not lewd or dissolute.
PENALTIES FOR LEWD CONDUCT UNDER SECTION 547(a)
Lewd conduct is prosecuted as a misdemeanor and carries a maximum 6 months in county jail, a fine of up to $1,000.00, and informal probation. As a condition of probation, most judges will also impose fines, counseling, aids test, and a stay away from the location where the alleged lewd conduct took place. Luckily, a conviction for lewd conduct under 657(a) does not require that you register as a sex offender. However, indecent exposure does carry sex registration, and it is often charged with lewd conduct.
LEWD CONDUCT AND UNDERCOVER OPERATIONS
Many instances of alleged lewd conduct are discovered through sting or undercover operations. Undercover police officers frequenting public areas are on the “look-out” for this type of offense. Common public areas frequented by undercover cops are park and beach bathrooms, public parks, massage parlors, shopping malls, adult bookstores, gyms, and alleys.
Undercover cops fishing for lewd conduct do not always successfully disguise their real identities. If you walk into a bathroom or public location and you feel that somebody is closely watching you or watching you in a manner that signifies inappropriate scrutiny, simply leave.
DEFENSES FOR LEWD CONDUCT UNDER 647(a)
- You touched your genitals but it was not for your own or anybody else’s sexual gratification
Assume that you were touching your genitals for the purpose of washing them or applying a cream intended to treat a medical condition. If, as in such instances, the conduct was not for the purpose of sexual gratification and reasonably could not be interpreted as intended to sexually gratify or arouse, then you cannot be found guilty of a 647(a) offense.
- You believed, as a reasonably person would, that nobody was present who would be offended by the conduct
Unless you knew or reasonably should have known that another person would likely see your conduct and be offended by it, you cannot be found guilty of lewd conduct under 647(a). For example, Joe and Jack are masturbating each other at a desolate area of a park at 2 a.m., when no one visits the area. Joe and Jack get arrested by an undercover cop who was lurking around. Joe and Jack reasonably believed that they were in a place that no one visited at that hour of the night, and they chose that time and that desolate place precisely so that no one would see them. Their activity, therefore, cannot constitute lewd conduct under 647(a).
- The alleged activity took place in a private, not public, location
You cannot be convicted of lewd conduct if the alleged activity took place in a private location, such as a hotel room, a private apartment room, or a laundry room that is directly adjacent to your apartment and to which only you should have access.
- You were “entrapped” by the undercover cop
Under California’s entrapment laws, the police cannot coax—via pressure, fraud, harassment, threat, or flattery—an otherwise law-abiding citizen to commit a crime that he was otherwise not predisposed or inclined to commit. You are not “entrapped” if the undercover police agent simply initiated a criminal activity with you or presented to you an opportunity to commit a crime. For example, Jack is examining some material at an adult bookstore. He briefly looks up and sees Joe motion to him that he wants to engage with Jack in sexual activity. Joe is an undercover police officer. Jack walks over to Joe and directs him to a more private sector of the store. There, Jack pulls down Joe’s pants and begins to perform oral sex on him. In this example, Jack has no entrapment defense. His overall demeanor and ready response to the undercover officer’s motion undermines an argument that was not predisposed or inclined to commit lewd conduct. Suppose, however, that Jack initially ignores Joe’s decoy. Joe follows Jack outside of the adult store and provocatively attempts to persuade Jack to engage in oral sex in Joe’s car. In this instance, Jack does have an entrapment defense because of the officer’s aggressive conduct.
HOW CAN WE HELP
If you are accused by the police of a 647(a) violation, you will either be given a citation to appear in court or you will be fingerprinted, cited, booked, and released and then given a citation to appear in court. In either case, there is usually a delay between the arrest and/or citation and when the district attorney files formal charges. Negin Yamini will take advantage of this delay to contact the prosecuting agency and attempt to persuade them not to proceed with charges. Once Negin goes to court, she will obtain all police reports and evidence from the prosecution. She will then run a motion (called a “Pitchess” motion) to run the background of the officers. She will take any and all measures to identify the weaknesses in the government’s case in order to negotiate a better offer or get the charges dismissed.