Under California Penal Code Section 647(b), three forms of “prostitution” are prohibited: engaging in sex in exchange for money, offering sex in exchange for money (known as solicitation), and agreeing to receive sex in exchange for money. In other words, both the person who offered the sex in exchange for money, and the person who accepted the sex in exchange for money, are considered culprits and can both be prosecuted.
ENGAGING IN AN ACT OF PROSTITUTION
In order for the prosecutor to prove you guilty of engaging in an act of prostitution, he or she must prove beyond a reasonable doubt that you willfully engaged in an act of prostitution—that is, you willfully engaged in sexual intercourse or lewd act with another individual in exchange for money or other form of consideration. A “lewd” act is any touching of genitals, buttocks, and female breast of another person for the purpose of sexual gratification.
SOLICITING FOR PROSTITUTION
In order to prove you guilty of soliciting for prostitution, the prosecutor must establish beyond a reasonable doubt that you intentionally solicited—i.e., tried to lure, induce, or elicit—another individual to engage in an act of prostitution. Both you and the person who was solicited can be prosecuted. The prosecutor has to prove that you had the specific intent to seek money or other compensation in exchange for the sexual act that you attempted to solicit. An expressed offer to pay any form of compensation for the sexual act clearly establishes this intent. A mere unspoken gesture or appearance in the form of being present in a particular place, waving to passing vehicle, nodding to a stranger, or standing at the corner of a street is insufficient. For example, Jill, an attractive undercover cop, is standing provocatively at the corner of Hollywood and Vine. Jack pulls over in his car, whistles at Jill in a sexual manner, and tells her how hot she is. Jill calls for her back up and Jack gets arrested. Jack’s mere gesture, as sexual as it was, is insufficient to establish solicitation for prostitution. There was no indication that Jack intended to lure Jill for sex in exchange for money or other form of compensation. Imagine the same scenario except that Jack tells Jill he would give Jill whatever that makes her happy if she has intercourse with him. Here, Jack expressed the intent to solicit Jill for some form of compensation. Jack is arguably guilty of solicitation for prostitution.
AGREEING TO ENGAGE IN AN ACT OF PROSTITUTION
For the prosecutor to prove you guilty of agreeing to engage in prostitution, he or she must establish beyond a reasonable doubt that a) you agreed to engage in an act of prostitution with another person, b) you did so with the specific intent to engage in sex in exchange for money, and c) you performed an act in furtherance of the agreement. This is the flip charge to solicitation for prostitution. The person who solicited the sex in exchange for money will be charged with solicitation for prostitution. The person who accepted the offer will be charged with agreeing to engage in prostitution. Note that you can be charged with agreeing to engage in prostitution even if the individual who solicited you did not have the same intent toward the sexual act as you did. For example, Jill, an undercover cop, tries to lure jack to agree to an act of prostitution. Jack can still be charged under Penal Code section 647(b) even though Jill had no intent to engage in sex with him in exchange for money.
It is not enough for the prosecutor to prove that you agreed to engage in prostitution. In addition, the prosecutor has to show that you acted in furtherance of the agreement—that is, you performed conduct that was more than just accepting the solicitation. Some common examples of such conduct are driving to a designated location, handing over cash, and withdrawing money from the ATM in order to pay for the sexual act. It matters not what the act is so long as it indicates an agreement to engage in prostitution. It also matters not whether the act takes place before, during, or after the agreement. For example, Jill, an undercover agent, meets Jack, a customer, at the corner of Hollywood and Vine. Jack solicits Jill for sex. She tells him that he first needs to procure a condom and that he can do so from a convenient store across the street. Jack agrees, and starts walking over to the convenient store. Jack’s act of walking to the convenient store for the agreed purpose of buying a condom is sufficient conduct in furtherance of his agreement to engage in prostitution.
PENALTIES FOR SOLICIATION AND PROSTITUTION
It is a misdemeanor offense to solicit for prostitution, engage in prostitution, or agree to engage in prostitution under Penal Code section 647(b). If convicted of this offense, you are subject to a maxim 6 months in county jail and a maximum fine of $1,000. A 647(b) conviction is a priorable offense, which means that your penalty increases with each subsequent conviction. If you suffer a second conviction for 647(b), then you will be subject to a minimum 45 days in county jail. If you suffer a third conviction for 647(b), you face a minimum of 90 days in county jail. If you committed the alleged offense in your car, the government may seize your vehicle as a form of asset forfeiture.
A conviction for 647(b) does not require you to register as a sex offender. However, if you are a repeat offender, and depending on the specifics of your case, a judge can order you to register as a sex offender as part of your sentence.
LEGAL DEFENSES FOR 647(b)
You were Entrapped—the 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 is an overweight, insecure, and sexually inexperienced young man who meets Jill at a bar. Jill is an undercover cop. Jill compliments Jack at great length, and incessantly tells him that she would love to sleep with him. Jill also tells Jack that all he has to do is pay her $50.00 for the sex. Jack agrees and follows Jill to Jill’s car so the two can have sex. Jack can argue that he was entrapped by Jill. Her incessant come-ons and manipulative behavior toward Jack caused him to engage in an act he otherwise would not have committed.
The prosecution lacks trustworthy evidence
Many prostitution cases arise out of undercover sting operations where the undercover cop solicits an individual—normally called a “John”-- for an act of prostitution. The cop then claims that the John agreed to engage in an act of prostitution. Many of these alleged meetings or agreements are not recorded, and therefore the prosecution’s entire case relies on what the cop supposedly heard from the John. The undercover cop’s failure to record the alleged conversation between himself and the John always raises a red flag for jurors. Was the cop wired? If so, why wouldn’t he or she be if he or she cared about preserving and presenting the best evidence of the alleged agreement to engage in prostitution? If the cop was wired, then why did he or she not bother to record the conversation? Was he or she hiding something? Was he or she exaggerating or distorting the facts? These are questions that your defense attorney can raise in the minds of jurors.
The prosecution’s case relies on insufficient evidence
The prosecution’s case might depend on evidence that does not prove beyond a reasonable doubt that all the elements of a 647(b) offense are met. Perhaps, there was no unequivocal agreement to engage in sex in exchange for money. Perhaps, there was no sufficient conduct or no conduct at all in furtherance of this alleged agreement. Perhaps, the solicitation to engage in sex was in actuality just a gesture of flirtation and there was no actual specific intent to engage in sex or sexual activity.
HOW CAN WE HELP
As mentioned, prostitution arrests are commonly made by undercover police officers, who often target owners and operators of massage parlors and escort services. In these undercover sting operations, often a recording of the communications between the undercover police officer and the accused is used as proof of either solicitation on the part of the accused or an agreement on the part of the accused to engage in prostitution. If no such recording exists, then the prosecution’s case is not as strong, because without hearing or reading the conversations exchanged, jurors may be reluctant to convict. A myriad of other factors can shed doubt on the prosecution’s case, such as whether the accused had the intent to engage in sex in exchange for money, and whether or not the alleged “agreement” was simply the result of a misunderstanding—arising out of a language barrier, etc.—between the undercover officer and the accused. Whatever the circumstances, Attorney Negin Yamini will thoroughly examine and investigate the specific facts alleged against you, and devise the optimal defense strategy for your particular case.
Success case: In People v. Vanny K (Case No. 5PY04684), the defendant, Miss K, was charged with solicitation for prostitution under 647(b). An undercover cop, pursuant to an LAPD sting operation, had sought Ms. K’s massage services at a massage parlor where Ms. K worked. The undercover cop claimed that Ms. K solicited him to engage in sex for money. Though he was wired, the undercover cop did not record his alleged conversation and encounter with Ms. K. The case proceeded to jury trial. Negin methodically and ruthlessly cross-examined the undercover cop with regards to his failure to record the alleged encounter with Ms. K. Negin thereby was able to raise reasonable doubt in the minds of the jurors. After both sides rested, the jury deliberated for 15 months and found Ms. K not guilty.