In order to convict you of loitering with intent to commit prostitution under Penal Code section 653.22, the prosecutor must prove beyond a reasonable doubt the following: a) you were loitering b) in a public place c) with the specific intent to commit prostitution.
Loitering means lingering in a place with no legitimate or justifiable purpose and with the intent of committing a crime should the opportunity arise. The key work here is “lingering.” You are not loitering if you simply pass through a place. For purposes of Penal Code section 653.22, the prosecution has to prove that you had no reason to linger in a particular place other than to commit prostitution. For example, Jack decides to meet his friend at the corner of Hollywood and Vine, an easy landmark and a common meeting place. While waiting for his friend, Jack meets Jill, an undercover, who attempts to solicit Jack for prostitution. Jack is arrested and charged with loitering to commit prostitution. Jack was not lingering at the corner of Hollywood and Vine for the purpose of prostitution. He was waiting for his friend. Therefore, he is not guilty of a 653.22 offense.
Any area open to the public is deemed a public place. An alley, a park, a driveway to a restaurant, a parking lot, a restaurant, and a movoe theater can all be considered public places. If the place where the alleged loitering took place was somebody’s private home or background, no 653.22 offense can be said to have occurred.
“Intent to commit prostitution”
The prosecutor has to prove that you loitered with the specific intent to engage in sex in exchange for money. Note that sexual conduct that is inherent as part of a stage or professional performance does not constitute prostitution. So, if you are paying to get a lap dance or watch a stripper at a strip club, you cannot be charged with prostitution or loitering to commit prostitution.
The intent to loiter for the purpose of committing prostitution can be shown by any conduct that indicates you are soliciting prostitution—e.g., trying to stop passer-by or engaging in conversation with passers-by that suggests you are trying to lure or incite them. But even such conduct does not unequivocally establish loitering for purposes of prostitution. This particular area of law is open to unfair and arbitrary targeting of certain neighborhoods by the police, which makes many individuals vulnerable to erroneous interpretations and distortions by law enforcement.
DEFENSES TO LOITERING WITH INTENT TO COMMIT PROSTITUTION
- There is insufficient evidence that you had the specific intent to commit prostitution
Law enforcement and prosecutors are trained to give a cynical and negative spin to the most innocuous and harmless of human actions. For that reason, what may be a completely innocent conduct can look like loitering or construed as such by a police officer or prosecutor. For example, Jill, a 21-year-old run-away, is attempting to raise money to support herself. Jill discovers a line of men cologne that she attempts to sell on busy streets. She figures that Hollywood and Vine would be a great location for such a sale. Jill stands at the corner of Hollywood and Vine and flirts—at times in an overtly sexual way—with men in order to lure them to buy her product. An undercover cop sees Jill and arrests her for loitering. Jill’s flirtation and sexual behavior may look like loitering for the purpose of committing prostitution, but she had no intention of engaging in sex any of the men with whom she was flirting.
- You were entrapped—entrapment defense
Under the California entrapment defense, you are not guilty of a crime if you were harassed, coerced, induced, or lured to commit a crime that you were otherwise not predisposed to commit. Entrapment applies to prostitution cases mostly in instances when an undercover cop is involved. If the cop posting as a prostitute applied pressure harassment, fraud, flattery, or threats to lure you to engage in prostitution, and if you can show that you otherwise would not have committed such an act, then you have an entrapment defense. For example, Jack goes to a friend’s bachelor party at a strip club. During the party, Jack steps out of the club to make a phone call. It is then that Jill, an undercover cop dressed as a very attractive prostitute, approaches Jack. Jill starts flirting with Jack and tells him that she is free to please him any time that night. Jack, though tempted, tells Jill that he is not interested in her services but that he does think she is very attractive. Jill continues to flirt with Jack and engages in overt sexual talk with him. Jack tells Jill he needs to go back inside. A few minutes later, Jack steps out to smoke a cigarette. Jill approaches him again and continues to makes sexual overtures toward him in the form of touching his crotch and pressing her breasts against him. Jack says another goodbye to Jill and steps back into the club. A bit later, Jack feels tempted and thinks about Jill’s offer. He steps out and waits at the corner, hoping Jill would come back. Jill calls for back-up and arrests Jack for loitering. In this instance, Jill used pressure, flattery, and sexual aggression to lure Jack. Jack’s lawyer can argue that Jack was lured into a situation towards which he otherwise was not predisposed. Jack therefore has an entrapment defense.
PENALTIES FOR LOITERING FOR PROSTITITUTION
It is a misdemeanor crime to loiter for prostitution under Penal Code Section 653.22. A misdemeanor conviction for this offense subjects you to a maximum $1,000 fine, and up to 6 months in county jail. If you suffer a 653.22 as a first conviction, the penalty normally will be probation and additional terms and conditions such as sex education classes or an aide’s test. With each subsequent conviction, however, the penalty increases. Note that you do not have to register as a sex offender for a PC 653.22 conviction.
HOW CAN WE HELP
As mentioned before, loitering to commit prostitution is one of many offenses that often arise entirely out of a police officer’s erroneous assumptions and faulty conclusions. Negin Yamini and her team of skilled lawyers will closely examine the specific circumstances of your case, and aggressively present any and all defenses relevant to your particular facts.