CA Penal Code 647(a) makes it illegal for a person to solicit or engage in lewd acts in public or within public view. Lewd conduct involves touching your private parts (or another person’s private parts) for sexual satisfaction or to offend or annoy other people. A conviction under this statute carries a possible jail time, and it is also likely to negatively impact your employment and reputation. With the help of a sex crimes defense attorney, your penalties might be reduced or the charges against you dropped. Get in touch with us at Riverside Criminal Defense Attorney Law Firm if you are facing lewd conduct charges so that we can help defend you.

What is Lewd Conduct?

Lewd conduct occurs when a person engages in or solicits anyone to engage in dissolute or lewd conduct in a public place or place exposed to public view.

There are five crucial elements that the prosecutor needs to prove beyond reasonable doubt for you to be convicted for lewd conduct. These elements include:

  • You engaged in touching your own or another person’s private parts willfully
  • You intended to arouse or satisfy yourself sexually or another person or to offend/annoy someone else
  • You did so in a public place or an area open to the public view
  • You did so in the presence of someone who might have been offended by your acts
  • You reasonably knew that your conduct might offend a person in your presence

Here are the legal definitions of the elements.

  • Dissolute or lewd conduct — Dissolute and lewd have the same meaning. They both mean touching private parts (buttocks, genitals, or female breast) for sexual gratification, arousal, offense, or annoyance.
  • Public location — For you to be convicted, the lewd conduct must have taken place in a public place, an area exposed to the public view, or an area open to the public. In California, a “public place” is a broad term. Some of the places that are classified as public places include but are not limited to:
  • A massage parlor
  • Areas behind service store in men’s clothing store
  • A common hallway in an apartment
  • A parked car on the public street
  • A private movie booth in a bookstore

Your closed business place, hotel room, or home do not count as public places. But, if the place is exposed to public view, you could still be convicted for lewd conduct. For instance, if the blinds or curtains are open, sexual activities in a “private place” may become an offense.

  • Intent to sexually arouse yourself (or another person) or annoy someone else — There is no information about intent under this statute; it just prohibits dissolute and lewd conduct. However, going by the initial definition of lewd conduct, the courts have interpreted it to pertain to sexual activity. The statute does not prohibit an activity that is not intended to gratify or arouse or annoy another person sexually.

For instance, you attend a soccer match on the day your flight is scheduled. The game runs late, and you realize you have little to no time to shower. You decide to use a public bathroom to freshen up.

As you wash your genitals, the cops find you holding your penis and conclude that you were masturbating. Even if you were holding your penis in public, your intent was not to sexually arouse yourself; hence you cannot be convicted under this Statute.

  • The requirement to offend a third party – California law does not make it illegal to have sex in public. It only becomes illegal when the people involved know, or they should reasonably know that their actions are likely to offend someone in their presence. This element was explained by the supreme court as follows,

The purpose of PC 647 (a) is to protect onlookers who might get offended by lewd conduct. Even though the prescribed conduct happens in a place open to the public view, or a public place, the state’s primary conduct is not to prohibit the prescribed conduct if there are no people around who may be annoyed.“

There should be more than just being seen by other people. The likelihood that a third party is present is vital. Most people who end up being arrested for lewd conduct are innocent. Even though they engaged in the conduct in a public place, they reasonably thought that:

  • No one would see them, or
  • No one seeing them would be annoyed.

Penalties for Lewd Conduct in California

In California, lewd conduct is convicted as a misdemeanor. The punishments often include:

  • Detainment in county jail for six months
  • Fines of up to $1,000

However, depending on various factors, a judge may grant you informal probation, which is also referred to as (misdemeanor probation) and reduce your jail time.

If put under informal probation, you are likely to undergo the following:

  • An AIDS test
  • Counseling
  • Fines
  • A restriction from the location the conduct occurred

If you are convicted for lewd conduct, you will likely not be registered as a sex offender. But, if the judge decides to charge it with indecent exposure, you will be registered as a sex offender under California law. If you plead guilty to indecent exposure, the prosecutor may drop your charges for lewd conduct.

Is Lewd Conduct Sting Operations a Type of Entrapment?

In this case, an undercover cop pretends to be a gay man out cruising. For instance, a male officer goes to a public toilet in a park dressed in plain clothes and looks out for a guy who appears gay. After he spots one, he starts winking and making eye contact, and acting all flirtatious.

But the police officer is just acting and trying to get the suspect to agree to a sexual act or masturbating. When the “gay man” does either of the sexual acts, the police arrest him.

The police may also place surveillance in some discrete public areas and use that as a lewd conduct sting. For instance, two gays are engaging in sexual activities in a remote bush, not knowing someone is watching them through the surveillance. Police officers rush to the area and find them in the act.

In both cases, the men believed that no one was watching them or reasonably no third party could get offended. And even though they engaged in sexual acts in public, they cannot be convicted for lewd conduct because there was no third party present.

Areas Where Lewd Conduct Sting Operations Mainly take Place

In most cases, cops tend to set lewd conduct sting operations in areas like:

  • Alleys
  • Gymnasiums
  • Libraries
  • Shopping malls
  • Public parks
  • Beach and park bathrooms

According to the police officers, the undercover stings are complaints from people. Mainly people who do not like gay men hanging out and doing acts in these areas.

What to do if you Get Arrested for Lewd Conduct?

If you are arrested for violating PC 647 a, the arresting officer will often issue you a citation to appear in court. But the process is not always the same. Some police officers will arrest you and choose to take your fingerprints and book you in before letting you go with your citation.

Regardless of what the arresting officer does after your arrest, the first thing you should do is be a California defense attorney. Since the D.A. takes time reviewing the case before filing formal charges, your attorney can use this time to persuade the District attorney not to file the charges by rejecting the case. They can also use this time to gather evidence and prepare a great defense to fight your charges.

Since lewd conduct is convicted as a misdemeanor, your criminal defense attorney can go to court on your behalf. Meaning you do not have to go to court if you hire a California criminal defense attorney.

If you hire our attorneys at our Riverside Criminal Defense Attorney Law Firm, we will obtain any evidence in the prosecutor’s possession and the police reports and advise you in the best possible way. The D.A can at times agree to dismiss the case if you plead to a lesser offense like pc 602 trespassing or PC 415, disturbing the peace. Many clients prefer going to trial with these lesser charges since they do not have the stigma of lewd conduct.

Possible Defenses for Lewd Conduct

Different defenses work differently depending on the case circumstances. Here are some of the most common defenses:

  • You touched your genitals, but your intent was not to sexually satisfy yourself or another person — You may be touching yourself because you felt itchy and needed to scratch yourself, or you wanted to wash up because you felt uncomfortable. You may also be touching yourself because you wanted to urinate. Whatever reason you had, if the prosecutor cannot prove that you intended to satisfy yourself or another person or offend someone else sexually, you cannot be convicted for lewd conduct.
  • You did not engage in lewd conduct — At times, the cops may arrest you even when you are not guilty. If you did not engage in what they are accusing you of, you have a solid defense. It is up to the prosecutor to prove that you indeed engaged in lewd conduct, and if they can’t prove it, your charges are likely to be dismissed.
  • You believed there was no present person who would get annoyed by your actions — This is one of the most common defenses that defendants use to fight their lewd conduct charges. You cannot be convicted under PC 647(a) if you reasonably believed that no one present would be annoyed. Remember, one of the key elements of this charge is to reasonably know that someone in your presence would likely get annoyed or offended.
  • The arresting officers used entrapment — According to California entrapment laws, the authority officials are not supposed to induce a “law-abiding citizen” to engage in a crime they were not otherwise willing to commit. This means that they are not supposed to harass, use pressure, threats, fraud, or any kind of flirtation. Simply presenting an opportunity to commit an offense or initiating a criminal act does not always constitute entrapment.
  • You were not in a place open to the public view — Any sexual activity that happens behind “closed doors”/ privately is not a crime. It only turns into a crime if the public is exposed to it. You could not be convicted for lewd conduct if you engaged in sexual activities on a private property that is not open to the public view.

Related Offenses

These crimes are described as “related” because they are often charged along with or together with penal code 645(A). These crimes also have common elements that the prosecutor must prove for a person to be convicted under them.

Indecent Exposure (Penal Code 314)

Sometimes when facing lewd conduct charges, the prosecutor might “tag on” a charge for indecent exposure. A conviction under this statute can be frustrating since the offender has to be registered as a sex offender in California.

PC 314 makes it illegal for a person to willfully expose their genitals in the presence of other people who would be offended. Like in lewd conduct conviction, the purpose of your exposure, in this case, must also be for sexual gratification or to annoy other people.

This crime is charged as a wobbler meaning you can either face misdemeanor or felony charges depending on whether you have been convicted for the same or a related offense before and the facts surrounding the case.

If you are charged with a felony indecent exposure, you are likely to face:

  • Detainment in state prison for up to three years
  • Fines of up to $10,000
  • Registration as a sex offender under pc 290

And, if you are charged with a misdemeanor indecent exposure, you are likely to face:

  • Detainment in county jail for one year
  • Fines of up to $1,000
  • Registration as a sex offender under PC 290

Hiring an experienced criminal defense attorney can help have your charges dismissed at trial or in plea negotiations.

Trespassing (Penal code 602)

The prosecutor may sometimes be willing to reduce the lewd conduct charges to a lesser offense if you plead guilty.

Penal code 602 makes it illegal to enter another person’s property without permission. Although this offense has nothing to do with lewd conduct, most defendants plead guilty for it because it has less stigma on a person’s criminal records compared to lewd conduct. This offense can be charged as an infraction or a misdemeanor. If you are charged with an infraction, that will not be put on your criminal records at all.

Lewd Conduct With a Minor

Penal code 288 defines lewd conduct with a minor as when an adult above eighteen years of age engages in sexual activities with a minor below fourteen years or between fourteen and fifteen years and is younger than the adult with a minimum of ten years.

PC 288 is divided into subsections so that prosecutors can convict the defendants differently based on the age of the alleged victim and the defendant. Lewd conduct with a minor is charged as a wobbler since some subunits can be charged as felonies or misdemeanors.

If you are charged with a felony lewd conduct with a minor under fourteen years, you are likely to face the following:

  • Fines of up to $10,000
  • Detainment in state prison for up to 8 years, or
  • Both detainment and fines

For you to be convicted under this statute, there must be the element of touching with the intent to sexually gratify, arouse, or appeal the sexual desires of the child or the adult.

Note that you cannot use the defense of “the acts were contested by the minor,” as it is not considered a valid defense.

Statutory Rape

Penal code 261.5 defines statutory rape, also known as unlawful sex, as when an adult engages in unlawful intercourse with a minor who is not their spouse. According to California law, an adult is above eighteen years, and a minor is below eighteen years.

This statute is divided into subsections giving the prosecutor the option to charge differently based on the age of the alleged victim and the defendant. Statutory rape is a wobbler meaning it can be charged as a felony or a misdemeanor.

If there are no aggravating factors that could increase your penalties, you will not be registered as a sex offender for violating pc 261.5.

If you are charged with statutory rape of a minor, and you are above twenty-one years while the minor is below sixteen years, you are likely to face the following penalties:

  • Fines of up to $25,000
  • Detainment in county jail for up to one year
  • Both fines and imprisonment
  • If you are charged with a felony for the violation of PC 261.5, you may be detained for up to three years in jail

One of the most common defenses for this charge is that you reasonably believed that the minor was above eighteen years. But you cannot use the defense that you had the minor’s consent.

Loitering Inside a Public Restroom to Engage, or Solicit in Lewd Conduct, Peeking When Loitering and Invasion of Privacy

Penal code 647(d) prohibits the act of loitering in a public restroom to engage or solicit in lewd conduct. It is defined as when someone lingers around a public toilet with the intent to engage or solicit in any lewd conduct act. This offense is almost the same as PC 647 (a), lewd conduct in public; you have to ask another person to touch your private parts for you to be convicted under this statute. Note that you can also be convicted for asking someone else if you can touch them lewdly or ask them to touch another person. The main difference between the two violations is the location where the conduct occurs. For you to be convicted under PC 647(d), you must be around a toilet open to the public.

If you are convicted under this statute, you are likely to face the following:

  • Fines of up to $1,000
  • Detainment in county jail for up to six months or
  • Both fines and imprisonment

Making eye contact with a person inside the restroom is not enough to have you convicted under PC 647(d), even if the person felt otherwise.

PC 647(i) Peeking while loitering takes place when someone gets into private property to peek in the window or door of an inhabited property without legal or visible business with the occupant. This act is related to lewd conduct in that both acts involve lewd behavior.

A conviction under PC 647(i) is a misdemeanor, although it could carry serious punishments if aggravated factors like a previous conviction under the same statute. If you are charged with a misdemeanor under this statute, you are likely to face:

  • Detainment in county jail for six months
  • Fines of up to $1,000
  • Both detainment and fines

PC 647 (j) – Invasion of Privacy occurs when a person looks or films a room intentionally (could be tanning booths, changing rooms, or bedrooms) without the occupant’s consent. However, there must be a reasonable expectation of privacy in the room.

Penalties for invasion of privacy include:

  • Fines of up to $1,000
  • Detainment in county jail for six months
  • Both detainment and fines

If there are any aggravating factors, the penalties become harsher.

Find a Riverside Sex Crimes Defense Attorney Near Me

It is important to reach out to a knowledgeable and experienced sex crimes defense attorney if you are facing charges of lewd conduct under Penal Code 647(a). At Riverside Criminal Defense Attorney Law Firm, we have expertise in criminal defense and have successfully handled similar cases like yours. We are committed to offering top-tier legal advice and representation to possibly get you reduced penalties or have your charges dropped. Call us at 951-946-6366 for a free consultation.