Don’t Mistake The Definition of “Loitering with Intent” to Commit Prostitution

Penal Code Section 653.22

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Overview Of Penal Code 653.22

Prostitution is the act of engaging in a sexual act for compensation or remuneration. You can also be arrested and convicted under Penal Code 653.22 if you were loitering and had the intent to commit prostitution even though you never engaged in the act or were caught offering to engage in it.

Most law enforcement officers look for suspects in certain areas and for certain signs that they are prostitutes and are seeking customers. They look in areas where prostitutes hang out or loiter and for cars or customers who frequent these areas. Also, prostitutes may be wearing provocative or revealing clothing to advertise themselves.

The elements of PC 653.22 are as follows:

  1. You were loitering
  2. In a public area
  3. And you had the intent to commit prostitution

Definition Of Loitering

Loitering is self-evident without much more explanation other than it is lingering in a public place for no reason other than to commit an unlawful act. You loiter or linger unlawfully when you do not make any movement toward going elsewhere. It is not loitering if you are there for a lawful purpose such as waiting for a ride or for someone to appear before going elsewhere or are merely passing through.

There is no law against lingering in a place like a bar or coffee shop so long as you exhibit no intent to commit an illegal act.

A public place may be any of these locations:

  • Park
  • Street
  • Automobile
  • Hotel lobby
  • Bar
  • Restaurant
  • Movie theater
  • Driveway
  • Sidewalk

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How Does The Prosecutor Prove “Intent”?

Most of the time intent is manifested when you agree to engage in a sexual act in exchange for money or some other form of compensation. But there are other ways that the prosecutor can prove that you had the intent to commit prostitution:

  • The police observe you constantly stopping pedestrians and engaging in conversation with them
  • You are observed waving down or hailing cars or making gestures to them
  • You are observed to be in a car that is constantly circling an area while you slow or stop pedestrians and other motorists and attempt to talk to them
  • Your companion has convictions for prostitution
  • When detained, you gave a false name or produced a false identification card
  • If this conduct is in an area known for prostitution or for solicitation, it is stronger evidence of intent

Also, if you were seen to have engaged in any of this conduct in the past 6 months, it can be considered intent. Any conviction you received for loitering with intent to commit prostitution in the past 5 years coupled with this behavior is evidence of intent.

Legal Defenses

Circumstantial evidence can convict you of this or any other crime so long as it strongly infers guilt or in this case, intent to commit prostitution. Defenses generally focus on the lack of evidence.

Insufficient Proof

There are numerous reasons why people loiter in public places. Police who patrol or monitor in areas known for prostitution activity will look for any signs of suspicious activity that indicates you are a prostitute. If you are wearing provocative clothing while waiting for a cab or Uber and passersby continually make comments to you, then you may be suspected. Merely making eye contact or talking to people walking by without more is not much evidence of intent to commit an illegal act.

If you have a reasonable explanation for your being in the area, gave your true identity to police, have no prior record and no “customer” that the police can identify as your having solicited, then there is little evidence to convict you.

Entrapment

Though this is not a common defense, it still arises when a police officer uses extralegal means to catch someone in a criminal act. To be able to assert the defense of entrapment, defendants must show that they did not possess any intent to commit the crime and would not have done so but for the extraordinarily persuasive actions of the police officer.

The officer, who is undercover and posing as a customer or “John,” must have used undue influence, duress, threats, harassment, fraud and even flattery. You probably would have to show that you previously rebuffed numerous efforts to get you to commit the crime and even stated that you were insulted but were pressured or induced to commit the act by the extreme means forced on you. For instance, if the officer after several failed attempts offers you $1000 to engage in oral sex and you then accepted, it may constitute entrapment. It may not be if you had earlier displayed interest in engaging in prostitution but the offered money was insufficient.

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Penalties

A violation of Penal Code 653.22 is a misdemeanor. It carries the following penalties:

  • Up to 6 months in county jail
  • A fine up to $1000
  • Summary probation

Most first time offenders are given probation and even multiple offenders rarely spend the maximum time in jail.

If your conviction was in the San Francisco Bay Area, Fresno or Sacramento, there are local ordinances forbidding you from riding on rail or any other public transportation for a time, though you have to be notified of the prohibition and given a chance to challenge it.

Expungement For Loitering With Intent To Commit Prostitution

PC 653.22 is charged only as a misdemeanor and qualifies you to an expungement of your record under PC 1203.4. An expungement does not totally erase your record though any members of the general public including private employers, landlords or anyone else not associated with the government will see that you have no criminal conviction when a criminal background check is performed.

  • Find Out if You Are Eligible To Have Your Record Expunged
  • Stop Worrying About Employer Background Checks
  • Start Worrying About Landlord Background Checks

Related Offenses

Prostitution and Solicitation of Prostitution—PC 647(b)

Prostitution and solicitation of prostitution is prohibited under PC 647(b). Its elements are:

  1. You solicited another person in a public place to engage in a sexual act
  2. And you did so with the intent to engage in prostitution or for compensation in exchange for sex

A violation is a misdemeanor with the same sentence as a violation of PC 653.22.

Lewd Conduct in Public-PC 647(a)

You can touch yourself or another person’s intimate parts in public, with their consent, for the purpose of sexual arousal. But if there is someone else in the area who is offended by your act, then you may have committed a lewd act in public.

This is a misdemeanor offense with a similar sentence as that under PC 653.22.

Aiding Or Supervising A Prostitute – Penal Code 653.33

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