California considers dissolute conduct as sexual and a lack of morality or principles. Although these acts are legal when they happen in private, you will be subject to criminal charges when you do them in public. Not everyone alleged to have engaged in lewd conduct is guilty. Some people are victims of false identification, thus the need to have the California Criminal Lawyer Group on your defense.
Legal Definition of Lewd Conduct
PC 647a prohibits individuals from taking part in or soliciting another person to engage in lewd conduct in a public place for sexual gratification or to annoy someone else. Sexual conducts that are considered lewd behavior include:
- Masturbating in public
- Touching woman’s breasts in public
- Grabbing a man’s penis in a place other people can see
- Masturbating in a private location open to the public like a strip club
- Fondling with your genitals, breasts, or buttocks, with or without exposure in a public place.
You will face criminal charges for this crime if there is proof you engaged in sexual conduct in public to gratify your sexual desires or those of another person. Requesting another person to engage in lewd conduct for your sexual gratification or that of another person will subject you to similar charges.
Police usually conduct sting operations in public areas like bathrooms, parks, and other places to find those engaging or soliciting lewd conduct. A conviction for this crime comes with a lot of embarrassment and could adversely affect your life. For this reason, it’s essential to have a sex crimes attorney by your side.
Facts of the Crime the Prosecutor Must Prove
The prosecutor in charge of your case must prove individual facts or elements to convince the court beyond moral certainty that you participated in lewd conduct. These facts are:
You Intentionally Participated in Fondling Your Genitals or Female Breast or Buttocks
The prosecuting party must prove that you participated in touching of genitals, buttocks, or female breasts.
Your Behavior was Intended to Sexually Arouse, Gratify Yourself or Someone Else or Annoy Another Person
Proving that you engaged in lewd conduct with the intent to annoy or gratify yourself or someone else sexually is not easy for the prosecution. Remember, the law merely prohibits lewd conduct. But if the prosecutor can prove you had unlawful intent when you engaged in the behavior, then you are not innocent of the crime. The prosecution often finds it challenging to prove you had an illegal purpose unless the nature of your case makes the intent clear.
You Engaged in the Behavior at a Public Location or a Location with Public View
PC 647a is violated if a lewd behavior happens in public or a location with a public view. Note that some of the places you might assume are private under this statute might be considered public. These include:
- A massage parlor
- A vehicle parked in a public place
- A private movie booth at an adult bookstore
- A typical hallway in an apartment building
A location closed for business, your home, or hotel room are private. But you can be charged under this statute if you engage in lewd conduct in any of these places at a section open to public view. For instance, the prosecution will convict you if the police found you masturbating at your hotel room or home with the curtains or blinds open. They will argue that when you engaged in the lewd conduct, you knew someone might walk by and see you in the act.
Someone Else Who Would have been Offended by Your Behavior was Present
When prosecuting you of lewd conduct, the prosecutor must prove that your behavior offended or annoyed another individual. And remember PC 647a is available to protect onlookers who might be annoyed or offended by the lewd act. Otherwise, the state is not interested if you engage in lewd behavior in public or in a place open to the public, if there are no people present to see. For this reason, the prosecution puts a lot of emphasis on proving that there was a mere possibility someone would see you or be present.
With this knowledge in mind, you will realize that a lot of innocent people end up in jail while innocent of this crime. Even if someone engaged in sexual conduct in public, he or she is innocent as long as they had a reasonable conviction that nobody would see them or feel annoyed or offended.
When the prosecutor wants to prove you solicited lewd conduct, he or she must verify the following facts:
- You requested someone else into touching the genitals, which include female breasts and buttocks.
- You asked another person to engage in the act in a public place
- When you made the request, you were in a public setting
- When you made the request, you intended to arouse or gratify yourself or someone else or to offend another person.
- You were aware or ought to have known someone was present or be offended by the behavior.
- The intended party received the communication containing your request for them to engage in lewd conduct.
Consequences of a Lewd Conduct Conviction
Lewd conduct is filed as a misdemeanor. Upon sentencing, the court is likely to impose the following penalties:
- A maximum of six months behind bars
- A fine not exceeding 1,000 dollars
Sometimes the judge might impose summary or misdemeanor probation where you might be required to serve a little or no jail time. Probation comes with conditions that you must adhere to. These conditions include:
- AIDS tests
- A requirement that you stay away from the place where the lewd conduct happened
Note that a conviction under PC 647a doesn’t require you to enter in the registry of sex offenders. But prosecutors often charge this offense alongside indecent exposure, which does need you to register as a sex offender. They will offer you a plea deal where you should plead guilty to indecent exposure so that they can drop lewd conduct charges.
The majority of defendants take the plea deal because they are afraid that they might lose the case if it goes to trial. They opt for the plea deal because a trial conviction for indecent exposure requires sex offender registration, which comes with the social stigma.
Sting Operations in Lewd Conduct
The majority of lewd conduct arrests are made during sting operations. During the operations, a law enforcement officer might pose as a gay man cruising. Others happen through surveillance of isolated public places. Those who engage in lewd conduct in these public places do it believing that no one will see or feel offended. So, even if the police surveillance catches them in the act, they are likely not to be convicted. The reason being, they had no reason to believe a third party would see or feel offended by the behavior.
Most sting operations for lewd conduct happen in the following places:
- Park and beach area bathrooms
- Public parks
- Adult book stores
- Shopping malls
These are some of the places police conduct their operations. However, you could be arrested for lewd conduct anywhere. Most offenders in these cases are people who were walking in someplace without knowing they are walking into a police trap. Therefore, if you ever walk into a public bathroom and sense something is not right, you should follow your instincts and leave because undercover police might be conducting a sting operation, and you might end up entrapped. If you are unlucky to escape the trap, make sure you hire an experienced criminal defense attorney. An excellent attorney will convince the court that you were entrapped, thus getting the charges dismissed.
Steps to Take After a Lewd Conduct Arrest
If you are found violating PC 647a, the police might give you a citation requiring you to appear in court at a later date. Other law enforcement officers will arrest you, take your fingerprints and book you. After the court releases you, but after they have given you a citation.
Whatever the reason for the arrest, make sure you contact your California Criminal Lawyer Group immediately. Because the police report will not be reviewed and charges filed right away by the district attorney, calling your criminal attorney could help a lot. Your attorney can help persuade the DA to drop the case before charges are filed.
The other good thing about hiring an attorney for your lewd conduct charges is that you don’t have to appear in court because the offense is a misdemeanor. Your attorney can appear in court on your behalf.
Your attorney will also obtain the police report and evidence the prosecution has against you. They will evaluate the evidence and probably go back to the location of the incident. The attorney will also file a Pitchess motion so that they can be allowed to conduct background checks on complaints against the arresting officer. By doing so, the attorney finds weaknesses in the prosecution’s evidence, which they exploit to get the charges reduced or removed.
If the prosecution realizes they have a weak case, they might offer you a plea deal if you plead guilty for a lesser charge, such as disturbing peace or trespassing. A lot of people opt to take the plea deal because disturbing peace or trespassing doesn’t carry the social stigma lewd conduct carries.
When the case proceeds to trial, with an attorney by your side, you can get the verdict in your favor. But to do that, you will need to build a strong defense.
Legal Defenses for Lewd Conduct Charges
Each case of lewd conduct is different. As such, the success of the defense you apply will depend on the nature of your case. Some of the legal arguments you could use include:
You didn’t Engage in the Lewd Behavior
Remember, the prosecution has the burden to prove you are guilty and not you to prove you are innocent. So, if you didn’t engage in lewd behavior, you are innocent, and the charges will be dropped.
You Touched Yourself but not for Gratification, Arousal or to Annoy
There are several reasons why people would touch their genitals in private places open to the public. If you reach your penis because you need to urinate and an undercover cop finds you, you are not guilty because you needed to pee. Touching your genitals when bathing or scratching yourself because the genitals are itchy is also not a crime. The prosecution often needs to prove you were fondling the genitals for arousal, to annoy or offend someone or for sexual gratification. If they can’t connect the touching to you wanting to hurt someone or for sexual satisfaction, the charges will be dismissed.
You had Reasonable Belief No One Will See You and Feel Offended
The court can only find you guilty of lewd conduct if you engaged in sexual behavior, knowing someone was likely to see and feel offended. If you reasonably believed no one was present to feel insulted, the charges will be reduced or dismissed since you are innocent.
You were not in a Public Location or Exposed to the Public
Sexual activity in a private setting is allowed as long as the section is not open for the public to view. If you were arrested in your hotel room and the room was not exposed to public view, then you are innocent.
The Police Entrapped you
Although police through undercover police might entrap during a sting operation to make lewd conduct arrests, the law prohibits entrapment. The law prohibits law enforcers from inducing law-abiding citizens by use of pressure, threats, or fraud into commissioning a crime that they could not have otherwise committed. You will, however, not use entrapment as your defense if the police merely initiated a criminal activity or presented an opportunity to commit a crime. Also, if you were arrested in a discrete public location where you couldn’t expect a third party, let alone the police to be present, you could argue entrapment. A reasonable defense attorney can say that the police engaged in misconduct by improperly entrapping you.
Crimes Charged Concurrently with Lewd Conduct
Some of the offenses that are charged together with lewd conduct include:
PC 314 makes it a crime to expose your genitals to somebody else with the exposure intended for sexual or offensive reasons. As mentioned earlier, the prosecution can charge you with both violations of PC 647a and PC 314 indecent exposure. Indecent exposure, however, is a much severer offense because, upon conviction in court, there is a requirement for registration as a sex offender.
Indecent exposure requires that you, as the defendant, expose your genitals to a third party with the intent to gratify yourself or annoy the third party. A lot of Californians know that indecent exposure is illegal, but what they fail to know is that a conviction can have you register as a sex offender.
When it comes to proving you are guilty of PC 314 violation, the prosecution must prove the following facts:
- You intentionally exposed your genitals in the presence of a third party likely to be annoyed or offended by the behavior.
- You acted lewdly, trying to direct the attention of the third party to the genitals with intent to cause arousal or offend the person.
- The third-party doesn’t need to see the genitals as long as you expose them in the presence of a third party.
If you enter a house without permission to expose your genitals to another person, you will be subject to aggravated indecent exposure, which is a felony and carries severe consequences.
Trespassing is defined under PC 602, and it happens when you enter another person’s property without their permission. Prosecutors will not be willing to drop your lewd conduct charges in exchange for nothing. You will have to plead guilty for trespassing even though the offense is not related to lewd conduct so that they can drop your PC 647a charges.
Trespassing is a misdemeanor or infraction and carries lesser penalties. However, this is not the reason why people choose to plead guilty to trespassing instead of lewd conduct. The social stigma and embarrassment that comes with lewd conduct conviction are what make many offenders afraid of going to trial. The other reason is that if you plead guilty to trespassing as an infraction, you will just pay a small fine, but sentencing will not appear in your criminal record. A sentence under lewd conduct will, however, appear on your criminal record, which might make it challenging to get a job or be admitted to the college.
PC 415 refers to disturbing peace as doing the following things:
- Fighting in public
- Using fighting words in public
- Making noise to disturb your neighbors
Engaging in any of the above acts is illegal. However, the crime of disturbing peace is a lesser charge compared to lewd conduct. Because of this, you can use PC 415 in your plea deal to have PC 647a charges dropped. The good thing with pleading guilty to disturbing peace is that the offense is an infraction. There is no jail time, and the conviction will not appear in your criminal record.
Loitering in and About an Open Toilet to Participate or Solicit Lewd Conduct
PC 647 (d) makes it illegal to linger in and about a toilet open to the public with the intent to engage or solicit lewd conduct or unlawful conduct. So, you violate this statute if you loiter in a public toilet with a purpose to engage in lewd behavior.
You might assume that loitering near a public toilet is illegal. However, that’s not true. It is only unlawful where you loiter to engage in lewd conduct. PC 647d is a misdemeanor, just like PC 647a. The two offenses have similar penalties too.
Lewd Acts with a Minor
Many people get confused by the words and think that lewd act with a minor is similar to lewd conduct in public. The two offenses are, however, distinct because PC 647a involves touching yourself or touching another person’s genitals in public. PC 288, on the other hand, is the statute that defines lewd conduct with a minor, and it usually prohibits sexual molestation of minors. Under the law, it is legal to touch a child’s sexual organs or have the child fondle yours. Note that feeling a child’s body for sexual reasons, even if not on the bare skin, is illegal and can get you charged with a felony.
The punishment for PC 647d violation depends on the age of the child who is the victim and your criminal history. The possible sentence for a conviction under PC 647d is felony probation and possible life sentence for repeat offenders. You might also be required to list as a sex offender for life.
As per PC 261.5, it is illegal to engage in sexual intercourse with an individual eighteen years or younger. The crime is also known as unlawful sexual intercourse. The offense is a wobbler, and the type of charges to be filed is dependent on the nature of your case.
One of the factors that determine whether the prosecution charges you with a felony or misdemeanor includes the age difference between you and the minor when the incident occurred. Although a conviction under this statute might not require you to register as a sex offender, it carries civil penalties of between 2,000 to 25,000 dollars. If you are 21 years or older, and the victim is 16 years or younger, a conviction will see you serve up to 48 months in jail.
Find a California Criminal Sex Crime Lawyer Near Me
If you are being alleged to have engaged in lewd conduct, contact the California Criminal Lawyer Group at 408-622-0204. Our attorneys will ensure you don’t become a victim of false identification and will defend your rights until the end of the case.
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