Lewd conduct, found under Penal Code 647 (a), is generally associated with certain activities allegedly engaged in by individuals looking for or soliciting sexual relations with someone of the same or opposite sex or who are engaging in sexual activity in a public place. Under the law, it is a crime to touch your genitals or buttocks, or those of another person or of a female’s breast, with the intention of sexually gratifying yourself while in a public place. Soliciting such conduct is also a crime.
If a person is arrested by police for Lew Conduct there are a number of best and worst case scenarios depending on the stage of the case.
The best possible scenario is that no charges are filed.
After an arrest a prosecuting attorney will review the reports of the investigating officer, witness statements, statements of the accused and any other facts surrounding the matter to determine if sufficient evidence on each element of the offense exists to convict. The goal of a defense attorney after reviewing the facts of the case and the police report would be to contact the prosecuting attorney even before charges are filed. Your attorney can discuss with the prosecutor any likely defenses such as entrapment by the arresting officer or that a witness statement is vague or does not contain sufficient indications that a crime even occurred.
Statute of Limitations For 647(a)
If no charges are brought within one year of your having allegedly committed the offense, then you cannot be prosecuted.
The worst case scenario is that you are charged with Lewd Conduct. Your defense attorney may have used all possible arguments in your defense that the prosecuting attorney either dismissed as unlikely or chose to believe the arresting officer and/or witness’ statements as sufficient to meet the elements of the crime.
Even worse, you could also be charged with violating Penal Code 314 “Indecent Exposure,“ if you did intentionally expose yourself to another person to either offend that person or for sexual gratification. If convicted, you could be required to register for life as a sex offender. It is also a felony if you have a prior conviction or you committed the offense in an inhabited dwelling.
If you are charged, then you will have to at least go to court for your arraignment, the first appearance in the criminal misdemeanor process, though your attorney can appear on your behalf without your presence. An arraignment is an appearance where the charges are read in open court, though this is routinely waived, and you or your attorney is asked to plead guilty, not guilty or nolo contendre, which is essentially a guilty plea.
It is possible that your defense attorney can work out a plea arrangement before the arraignment so that you need not have to make further appearances or continue with the uncertainty of your case outcome. Otherwise, your attorney can discuss disposition at the pretrial conference, which takes place a few to several weeks after the arraignment.
A satisfactory deposition could include:
- Dismissal of all charges
- Continuation of the case for 6 months or one year and then dismissed if no further criminal conduct occurs or charges are filed
- Plea to an infraction such as disturbing the peace under PC 415 or to trespassing under PC 602. Infractions are not criminal violations and only a fine is imposed. These can also be charged as misdemeanors though pleading guilty to any of these is preferable since you would be pleading to a reduced charge.
Otherwise, a trial date is scheduled.
If you have a prior conviction for Lewd Conduct, another sex offense or a felony conviction of any kind, the likelihood of a favorable plea arrangement is considerably reduced.
A first violation of PC 647 (a) subjects you to a 6-month jail term and a fine up to $1000 that could be imposed under these circumstances. Also, if you have a recent misdemeanor or felony conviction, you could still be on probation subjecting you to a county jail for the misdemeanor or state prison sentence for violating the conditions of your felony probation. The court may sentence you to a concurrent sentence, though, with the sentence for the probation violation whether your conviction was for a misdemeanor or a felony.
Further, as indicated above, some Lewd Conduct charges include a charge of Indecent Exposure under PC 314. Although PC 314 is a misdemeanor if a first offense and if no aggravating circumstances exist, you can still be required to file as a sex offender for life. If it is a second offense or aggravating circumstances exist such as exposing yourself in an inhabited building or dwelling, then it is a felony and you face state prison time along with sex offender status.
Obviously, being found not guilty is your best case scenario. In some cases, the court will dismiss your case after the prosecution rests its case if your attorney makes a motion to dismiss based on insufficient evidence or that the state has failed to meet its burden of proof.
It is also possible that the prosecution could offer a plea arrangement on the day of trial or at any time before the jury or judge if a court trial reaches a verdict. This should be considered if the charge is reduced to an infraction, which is not a criminal offense and does not appear on your record. You should rely on your attorney’s judgment any time a plea offer is made or at least seriously consider the consequences if you decide to reject the offer.
Further, if you are convicted of violating PC 647 (a), you can petition the court to expunge the conviction after you have completed your sentence and all conditions of your probation, if any. Contact your criminal defense attorney to discuss post-trial relief.
You are found guilty of Lewd Conduct. You are subject up to:
- 6 months in jail for a first offense
- You may only be placed on probation or spend some time in jail depending on the circumstances of your case if you have a criminal record.
If Indecent Conduct was included as part of your charges and you are convicted of this as well, then you face
- 6 months in jail for a first offense
- 16 months, 2 or 3 years in state prison if it is a second conviction.
Any conviction of Indecent Exposure as a misdemeanor or felony requires that you register for life as a sex offender.