Lewd or “dissolute” conduct is prohibited under California Penal Code Section 647(a)1. This consists of intentionally touching your private parts (genitals or buttocks) or those of a female, including her breasts, for the purpose of sexual gratification. It also includes soliciting another person for sexual activity2.
To avoid conviction for lewd conduct you must present a valid defense backed up by evidence. There are certain defenses available to you depending on the facts and circumstances of your case. Your defense attorney can contact and discuss these possible defenses with the prosecuting attorney after your arrest but before charges are filed or at any other time during a criminal proceeding.
The criminal penalties for lewd conduct in California are listed below and prosecuted as misdemeanor violations under penal code 647(a).
|Fine||Up to $1,000|
|Probation||Possible Summary Probation|
|County Jail||Up to 6 months|
If convicted do I have to register as a sex offender?
A conviction for lewd conduct is not subject to sex offender registration. Often prosecutors will threaten to charge you with indecent exposure, which is an offense requiring sex offender registration, to obtain a guilty plea for the lewd conduct charge. It is important to have an attorney to fight your charge and defend the possibility of an indecent exposure charge because of the increased penalty that charge carries.
An example is a couple under blankets at a park or in the bushes where no one is able to see what is happening. Also, someone may have misconstrued your activity as sexual. Wearing loose clothing that may expose yourself without being aware of it and not touching your intimate parts should not be considered Lewd Conduct or Indecent Exposure.
Also, a witness who reported you may not have directly observed your genitals but noted other behavior such as heavy breathing or your making certain movements that were interpreted as you sexually gratifying yourself. Your attorney should be able to show that your behavior was innocent and not for the purpose of gratifying yourself.
This is a specific intent offense so merely touching yourself or another person’s genitals is not enough to demonstrate intent to sexually gratify yourself. If you scratch yourself, are washing in a public restroom or slapped someone on the buttocks in a playful manner, then no sexual intent was demonstrated.
Further, your actions in a public restroom might have been interpreted as solicitation. An undercover officer is trained to look for certain signals or gestures indicating a desire to engage in sex but you may have unintentionally or innocently signaled this but were arrested as a result.
Lewd conduct is generally offensive to everyone, including police officers who likely have seen such conduct on a fairly regular basis when dealing with the mentally ill, homeless individuals or prison inmates. In this regard, anyone who reported you as engaged in lewd conduct was offended by your behavior. For all practical purposes, your defense would have to rest on your reasonable belief that no one would see you3. If you were engaging in sexual conduct behind bushes or in a structure where another person deliberately removed an obstruction so as to observe you, then you may have had a reasonable belief that no one would see you. This offense usually requires that you intentionally exposed yourself in a public area where other people were in plain view or in an area where people generally gather or walk by and you were engaged in gratifying yourself.
For instance, you could be sexually gratifying yourself in a parked car or park. By itself, it would appear that you should have known other people would be present but if the car was in a secluded parking area at night and someone just happened to walk by and look into your car, then you likely had a reasonable expectation of privacy.
In conjunction with having a belief that you would not be seen is that your lewd conduct must have been in a public place4. A private home, office or area where the public is not invited such as a fenced yard5 or where you are not exposed is not considered public. However, you are in a public area where you are gratifying yourself in a parked car on a busy street, in a massage parlor or in a booth in an adult bookstore. If your defense attorney can show that you took reasonable steps to hide your conduct but were otherwise observed, then you may have a valid defense.
You can claim entrapment if you can show that you did not originally have the intent to commit the offense but were either provoked or otherwise persuaded to do so. If an undercover officer persists in getting you to engage in lewd conduct or if the officer participates in gratifying you or himself, then you may have a valid defense.
Entrapment can be a difficult defense to show since it is generally only you asserting that the officer harassed, pressured, coerced or even threatened you to engage in criminal conduct that you otherwise were not disposed to engage in. Some officers are wired when undercover and their statements to you and from you can be subpoenaed. If there was a witness who saw and overheard the exchange between you and the officer and can testify that the officer was being aggressive, then you may have an entrapment defense.
Police may not engage in criminal conduct to entice you to commit a criminal act. If an officer exposes himself in a public restroom or allows himself to be massaged in a sexual manner, it is considered outrageous conduct and your attorney should move to dismiss charges brought against you.
As discussed earlier, if you have been charged with lewd conduct you may face threats from the prosecution that without a plea of guilt, they will charge you with indecent exposure and possibly prostitution. Both of these offenses may require sex offender registration. Due to the increased punishment you would face on either charge it is important to contact a criminal defense attorney to defend your rights.
Under the California Penal Code indecent exposure is defined as willfully exposing your genitals to another person, motivated by the desire of sexual gratification for yourself or to offend another. A conviction for indecent exposure subjects you to a misdemeanor, which carries up to 6 months in the county jail and/or a fine of up to $1,000. However, if you are facing a second conviction, the punishment increases to a felony offense. If convicted a second time, you face a minimum of 16 months in the state prison and a maximum of 3 years. Additionally, the court may fine you up to $10,000. As a repeat offender, if you have a prior misdemeanor conviction for indecent exposure, you face a felony charge for your second regardless of how minor the second offense may be.
The California Penal Code prohibits engaging in the act of prostitution and soliciting or agreeing to engage in the act of prostitution. Therefore, the prostitute, the customer and any other person involved in the solicitation are subject to arrest for prostitution in California.
For your first offense, prostitution is charged as a misdemeanor. It carries up to 6 months in the county jail and a fine up to $1,000 or both. While prostitution does not trigger an automatic sex offender registration requirement, a judge does have the discretion to order you to register as a sex offender as part of your judgment.
If you have been arrested for lewd conduct and would like to learn more about what attorneys charge.
If you want to understand why its important to have an attorney represent you.
If you are ready to discuss a pending case with an attorney contact the Aizman Law Firm at 818-938-1274 for a free confidential consultation.
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- “Lewd” and “Dissolute” Synonymous. Pryor v. Municipal Court (1979) 25 Cal.3d 238, 256 [158 Cal.Rptr. 330, 599 P.2d 636]. [↩]
- Lewd Conduct Defined -Pryor v. Municipal Court (1979) 25 Cal.3d 238, 256 [158 Cal.Rptr. 330, 599 P.2d 636]. [↩]
- Need Not Prove Someone Was Offended “It is not the burden of the prosecution to prove that the observer was in fact offended by the conduct but only that the conduct was such that defendant should know that the observer ‘may be offended.’ ” (People v. Rylaarsdam (1982) 130 Cal.App.3d Supp. 1, 11 [181 Cal.Rptr. 723]. [↩]
- Public Place Deﬁned. In re Zorn (1963) 59 Cal.2d 650, 652 [30 Cal.Rptr.811, 381 P.2d 635]; People v. Belanger (1966) 243 Cal.App.2d 654, 657 [ Cal.Rptr. 660]; People v. Perez (1976) 64 Cal.App.3d 297, 300–301 Cal.Rptr. 338] [↩]
- See People v. White (1991) 227 Cal.App.3d 886, 892–893 [278 Cal.Rptr. 48] [fenced yard of defendant’s home not a “public place”]. [↩]