The crime of "lewd or dissolute conduct in public" - a former D.A. explains

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Penal Code 647a PC is the California statute that defines the crime of lewd conduct in public. This section states that “…every person who commits any of the following acts is guilty of disorderly conduct, a misdemeanor: (a) An individual who solicits anyone to engage in or who engages in lewd or dissolute conduct in any public place or in any place open to the public or exposed to public view.”

Lewd or dissolute conduct is defined as touching your private parts (or another’s private parts) when you do so:

for the purpose of sexual gratification, or

to annoy or offend someone else.

Private parts refer to

the genitals,

the buttocks, or

a female breast.

In and of itself, sexual activity — even in a public place — is not a crime. It only rises to the level of “lewd conduct” when you know — or you reasonably should know — that there is likely to be someone present or watching who would be offended by your conduct.

Penalties

Violation of 647a PC is a misdemeanor. It is punishable by up to 6 months in county jail and/or a fine of up to $1,000. In reality, many of these charges get reduced to lesser offenses. And many are resolved for misdemeanor probation and little or no jail time.

Currently, a conviction for lewd conduct in public does not require registration as a sex offender. However, prosecutors often charge it together with Penal Code 314 “indecent exposure”. Penal Code 314 does trigger lifetime sex offender registration.

Undercover Sting Operations

Most lewd conduct arrests involve undercover sting operations. Decoy police officers pose as gay men in bathrooms, parks and adult bookstores. These undercover cops try to “bait” you into sexual behavior. When you

expose yourself,

masturbate, or

propose some sexual act,

they arrest you. It often amounts to very clear cases of police entrapment.

Most people arrested in these stings never engaged in “lewd or dissolute conduct” as the law defines it. In fact, quite often the arrested person does nothing more than make eye contact and “cruise” the decoy officer.

Yet police tend to embellish, exaggerate and outright lie in order to make it look like something more than that happened. It’s wrong. Yet it happens all the time.

You can fight back.

Legal Defenses to California Charges of Lewd Conduct in Public

Legal defenses to lewd conduct charges include (but are not limited to):

You didn’t touch your private parts or someone else’s.

You did touch the private parts, but it was not for sexual gratification.

You reasonably believed there was no one present who would be offended.

You were not in a public place or a place open to public view.

The police used entrapment or engaged in other misconduct.

Our lawyers are former prosecutors and cops who have successfully defended thousands of lewd conduct cases. In fact, in almost every case the Penal Code 647(a) PC charges have gotten dismissed.

To help you better understand how we fight charges of lewd conduct in public, our California criminal defense lawyers discuss the following, below:

You may also find helpful information in our related articles on:

1. How does the law define lewd conduct in public?

You violate California Penal Code 647a when:

you engage in… or you solicit anyone to engage in…

lewd or dissolute conduct…

in any public place or in any place open to the public or exposed to public view.

To establish this, the prosecutor must prove five facts (called “elements of the crime”):

you willfully engaged in the touching of your own or another person’s genitals, buttocks, or a female breast; you did so with the intent sexually to arouse or gratify yourself or another person, or to annoy or offend another person; at the time that you did so, you were in a public place or a place open to the public or to public view; someone else who might have been offended was present; and you knew or reasonably should have known that another person who might have been offended by your conduct was present.

Let’s take a closer look at these elements.

1.1. “Lewd” or “dissolute” conduct

The terms “lewd” and “dissolute” mean the same thing under this section.

They simply refer to the touching of the genitals, buttocks, or female breast for the purpose of sexual arousal, gratification, annoyance or offense.

1.2. Intent to arouse or annoy

The statute does not itself contain any language regarding intent. It merely prohibits “lewd or dissolute conduct.”

However, in keeping with the traditional definition of “lewd,” courts have interpreted this language as pertaining to activity of a sexual nature.

One appellate court has said the test is “whether a reasonable person would understand with reasonable certainty that his conduct is proscribed.”

Activity that is not intended to sexually arouse or annoy anyone is not prohibited under the statute.

Example: You plan to spend the afternoon playing baseball in a public park and then take your girlfriend out to dinner. But the game runs late and you don’t have time to go home and shower. You go into the public bathroom and wash up at the sink. You pull down your pants so you can wash your genital area. An undercover cop sees you with your penis in your hand, and arrests you for public masturbation. However, because you were holding your penis with no intent to arouse or annoy anyone, you are not guilty of lewd conduct.

It is, of course, helpful if you can establish an innocent reason for your behavior. But the burden is on the prosecutor to prove your unlawful intent. And that can be difficult for a prosecutor unless the circumstances make your intent very clear.

1.3. “Public” location

To violate Penal Code 647a, lewd conduct must occur in:

a public place,

a place open to the public, or

a place exposed to public view.

California courts have interpreted the word “public” very broadly. Places they have found to be public include, among others:

a private movie booth at an adult bookstore,

a car parked on a public street,

a common hallway in an apartment building,

the area behind the service counter in a men’s clothing store, and

a massage parlor.

Locations such as your home, your hotel room, and your closed place of business, are not public places. However, the section may still be violated if one of these places is exposed to public view. So if the curtains or blinds are open, sexual activity in an otherwise private place may become a crime.

1.4. The requirement that a third party be offended

It’s not inherently illegal in California to engage in sexual activity in public. It’s only illegal if you know… or reasonably should know… of the presence of someone who is likely to be offended.

As the California Supreme Court explained:

“[Penal Code 647a]… serves the primary purpose of protecting onlookers who might be offended by the proscribed conduct… [E]ven if conduct occurs in a location that is technically a public place, a place open to the public, or one exposed to public view, the state has little interest in prohibiting that conduct if there are no persons present who may be offended.”

More than the mere possibility of being seen by someone else is required. There must be some actual likelihood that third persons are present.

The upshot is that most people arrested for lewd or dissolute conduct are factually innocent. Even if they engaged in public sexual activity, they reasonably believed that:

they would not be seen by anyone else, or

no one viewing the activity would be offended.

2. What are the penalties for a 647a PC conviction?

Lewd conduct is a misdemeanor offense. The maximum punishment is:

up to six months in county jail, and/or a fine of up to $1,000.

As a practical matter, however, judges often grant misdemeanor (also known as “summary” or “informal”) probation with little or no jail time.

Conditions of PC 647a probation often include

fines,

counseling,

an AIDS test, and

a requirement that you stay away from the location.

A conviction for lewd conduct in public does not require that you register as a sex offender. However, prosecutors often charge it together with indecent exposure, an offense that does require sex offender registration. They will agree to drop the lewd conduct charge only if you plead guilty to indecent exposure.

Many defendants in this situation feel compelled to “take the deal.” They fear that if they go to trial and get convicted, having to register as a sex offender will be an unbearably bad outcome.

3. Are lewd conduct sting operations a form of entrapment?

3.1. How a sting operation works

In most of the sting operations, the undercover cop is pretending to be a gay man out cruising.

Example: A decoy officer lurks in a park bathroom until a guy who appears to be gay walks in. The officer is dressed in plain clothes. He starts acting flirtatious. He makes heavy eye contact, winks, and touches his penis from outside his pants. But it’s all an act. He’s trying to bait the suspect into exposing himself, masturbating, or agreeing to a sexual act. When the man does, or agrees to do one of these things, the officer arrests him.

Other lewd conduct sting cases may involve police surveillance of discrete public locations.

Example: Two men are masturbating each other in the bushes in a remote section of Griffith Park. Unbeknownst to them, the LAPD has been surveilling the area for just such an activity. The cops rush in and “bust” the suspects in the act.

In both of these scenarios, the men arrested reasonably believed they were in a place where no one else would be offended by the conduct. In the decoy sting situation, the undercover was pretending to be looking for a hookup. In the Griffith Park example, the guys selected a desolate location precisely so that no one would see and take offense.

They had no reason to believe a third party was present who would be offended. Therefore, their activity (even if it involved sex in public) does not violate the law.

3.2. Places where lewd conduct sting operations tend to happen

Police tend to set up lewd conduct sting operations in:

bathrooms (especially park and beach area bathrooms),

public parks,

shopping malls,

adult book stores,

gymnasiums, and

alleys.

The cops claim the undercover stings are in response to “citizen complaints.” Often this means complaints from people who don’t like gay men hanging out and cruising in the area.

While there are numerous places where the stings have occurred, here are a few that we frequently see:

Griffith Park in Los Angeles.

The bathrooms at the Beverly Center, 7th floor outside Bloomingdale’s.

The bathrooms at the Glendale Galleria, outside JC Penny’s.

Davis Park in Valencia.

The bathrooms at Brea Dam Park in Fullerton.

The bathrooms at the beach in Long Beach.

Roeding Park in Fresno.

These are only a few of the places where the stings happen most commonly. But they can happen anywhere. Most guys who get arrested didn’t even go to the location looking to cruise or hookup. Rather, they walked unsuspectingly into a trap.

If you enter a bathroom or public location and feel that something’s not right… leave. Undercover cops tend to be bad actors, and are oftentimes clueless and overbearing in their cruising. If your instinct tells you something fishy is happening, don’t look at the decoy and don’t interact with him…just go.

4. What should a person do if arrested for lewd conduct?

With Penal Code 647a PC violations, sometimes the police will just give you a citation to appear in court. Other times they will arrest you, fingerprint you and book you before releasing you with the court citation.

In either case, call a California criminal defense attorney right away. Usually, there’s a delay between the arrest and when the district attorney reviews the case and files formal charges. Sometimes we can meet with the D.A.s during this intervening period and persuade them not to file charges (i.e., to “reject” the case).

Because it’s a misdemeanor, California criminal defense lawyers can go to court on your behalf. This means that if you hire an attorney, you’ll probably never have to appear in court.

Once we go to court, we obtain the police reports and all the evidence in the prosecutor’s possession.

Usually, we inspect the location. We run a Pitchess motion to check the background of the arresting officers. We try to get statements from others arrested as part of the same operation. We identify the weaknesses in the prosecution’s case and try to get them to dismiss the charges.

Sometimes the district attorney agrees to drop the case if the client pleads to a lesser offense. Charges such as Penal Code 415 disturbing the peace and Penal Code 602 trespassing are common. And since they don’t carry the stigma of a lewd conduct conviction, they are preferred by many clients over going to trial.

If all negotiations with the prosecutor fail, we go to jury trial. In many of these trials, it’s possible to get a “not guilty” verdict.

5. What are the best legal defenses to this charge?

The best defenses to charges of lewd conduct in public depend on the circumstances of the case. Common defenses include (but are not limited to):

You didn’t engage in the behavior of which you are accused

If you didn’t do what the arresting cop says you did, you aren’t guilty. Remember – the burden is on the prosecution to prove you engaged in lewd conduct.

You touched yourself, but it was not for sexual gratification.

Perhaps you were only touching yourself in a bathroom stall because you needed to urinate. Or maybe you were washing up, or rubbing yourself because your genital area itched.

Whatever the reason, if the prosecution can’t prove your conduct stemmed from a sexual or offensive intent, you aren’t guilty of lewd conduct.

You reasonably believed there was no one present who would be offended.

This is a common defense to charges of lewd conduct. Unless you reasonably should have known that someone would likely see you and be offended, you aren’t guilty under Penal Code 647(a).

You were not in a public place or a place open to public view.

Sexual activity that takes place on private property is not a crime unless the public can view it. If you were engaging in sexual activity in a private place not open to public view, it isn’t lewd conduct.

The police used entrapment or engaged in other misconduct.

California’s entrapment laws forbid the police from inducing a “normally law-abiding citizen” to commit a crime that he was not otherwise predisposed to commit. This includes using pressure, fraud, harassment, threats or flattery. Merely initiating criminal activity, or presenting an opportunity to commit a crime, generally does not constitute entrapment.

Thus whether a 647a PC lewd conduct sting operation amounts to entrapment depends on the facts.

Example: Tom enters a bathroom and the decoy officer smiles at him and makes a motion like he wants to masturbate. Tom responds by dropping his pants and stroking his penis. The officer’s conduct is probably not sufficient provocation to support an entrapment defense. But… suppose Tom ignores the decoy at first. But the decoy persists with heavy cruising and provocative gestures. The decoy says to Tom: “You’re hot — let’s mess around. I’ll watch to make sure no one is coming.” This more aggressive behavior probably crosses the line into police entrapment.

If we can establish that the police engaged in improper entrapment, that almost always results in the charges being dismissed.

6. Are there other crimes charged together with 647a?

6.1. Penal Code 314 indecent exposure

Sometimes prosecutors will “tag on” a charge of California Penal Code 314 indecent exposure. A conviction under Penal Code 314 is especially devastating. Unlike lewd conduct in public, a conviction for indecent exposure requires you to register as a California sex offender.

“Indecent exposure” consists of willfully exposing one’s genitals in the presence of third parties who would be offended.

Like lewd conduct, Penal Code 314 requires that the exposure is for the purpose of gratifying oneself or sexually offending other people.

And as with lewd conduct, indecent exposure charges are usually without merit. A good California criminal defense attorney can often get all these charges dismissed in plea negotiations or at trial.

6.2. Penal Code 602 trespassing

Sometimes the prosecutor is unwilling to dismiss a lewd conduct charge outright. Instead, he or she may be willing to reduce it to a lesser offense in exchange for a plea agreement.

Often, the plea bargain is for California Penal Code 602 PC trespassing. Penal Code 602 makes it illegal to enter someone’s property without permission.

Usually, this offense has little or nothing to do with a lewd conduct case. But defendants often accept a plea for it because it carries less of a stigma on one’s criminal record.

Additionally, criminal trespassing can be charged as either a misdemeanor or an infraction. If you plead to it as an infraction, it does not create a criminal record at all.

6.3. Penal Code 415 disturbing the peace

Another common plea bargain offense is Penal Code 415, California’s disturbing the peace law. Under Penal Code 415, it is illegal to:

fight another person in public,

use fighting words in public, or

make unreasonable noise so as to disturb your neighbors.

Like criminal trespassing, disturbing the peace usually has nothing to do with lewd conduct in public. But it, too, carries lesser penalties than 647(a) PC and less of a stigma.

And if plead to as an infraction, it creates no criminal record at all.

6.4. Penal Code 647(d) – loitering in or about an open toilet to engage in or solicit lewd conduct

Subsection (d) of Penal Code 647 PC is very specific. It makes it a crime to loiter in or about a toilet open to the public for the purpose of engaging in or soliciting any lewd, lascivious or unlawful act.

In other words, you violate subsection (d) when you loiter in or about a public restroom with the specific intent of engaging in or soliciting the lewd conduct.

This does not mean that you cannot legally hang out around a public restroom. You are liable under this provision only if your conduct makes it clear that your purpose is to commit or solicit lewd acts.

Loitering in or about a public toilet under this section is a misdemeanor. Punishment and legal defenses are the same as for subsection (a).

For a general discussion of loitering, please see our article on loitering laws in California.

6.5. Penal Code 288 PC – lewd acts with a minor

Penal Code 288 PC is known variously as:

“lewd acts with a minor,”

“lewd acts on a minor under 14,” or

“acts of lewd and lascivious conduct.”

But don’t let the names confuse you. This is a separate and distinct offense from lewd conduct in public. The lewd conduct prohibited by 647(a) PC generally involves touching yourself. And while it can also cover touching another person, the touching must take place in public.

Penal Code 288 PC, on the other hand, specifically prohibits touching a child’s body for sexual purposes. There is no limitation on where this crime can take place.

Penal Code 288 cases usually cover typical acts of “child molestation.” Often this means touching a child’s sexual organ, or having a child touch yours. But you can be charged under Penal Code 288 if you touch any part of a child’s body for a sexual purpose… even if the touching was done over the child’s clothes (rather than on the bare skin).

Lewd conduct with a minor is a felony. Depending on factors such as the child’s age and the defendant’s criminal history, punishment ranges from probation to a possible life sentence for repeat offenders. And a mistaken belief in the minor’s age is not a defense to charges of lewd conduct with a minor.

Additionally, if you are convicted under Penal Code 288 PC, you face a lifetime duty to register as a sex offender.

6.6. Penal Code 647(i) and 647 (j) — California’s “Peeping Tom” laws

Penal Code 647(i) PC and Penal Code 647(j) PC are California’s “Peeping Tom” laws. They are a separate form of “disorderly conduct” under Penal Code 647.

Like PC 647(a), they seek to protect third parties from invasive sexually motivated behavior. But unlike 647(a), acts under subsections (i) and (j) are done in secret.

Subsection (i) is technically known as “peeking while loitering” or “unlawful peeking.” Under this law, it is a crime to peek in the door or window of any inhabited structure while you are loitering on private property without lawful business with the owner or occupant.

Subsection (j) of Penal Code 647 PC is California’s criminal invasion of privacy law. It makes it a crime to use a camera or other device to secretly look at or photograph another person’s body without consent.

Most violations of California’s Peeping Tom laws are misdemeanors. Violators generally face:

up to six months in county jail, and/or a $1,000 fine, OR misdemeanor (informal) probation.

Repeat offenders, and those who violate the privacy of minors, are subject to greater penalties.

6.7. Penal Code 261.5 PC – statutory rape

Penal Code 261.5 PC, California statutory rape, makes it a crime to have sexual intercourse with a person under 18.

This crime is known variously as:

statutory rape;

sexual intercourse with a person under the age of 18;

unlawful sex with a minor, or

unlawful sexual intercourse.

Statutory rape is a “wobbler” offense in California. This means that prosecutors can charge it as either a felony or a misdemeanor, depending on the circumstances.

One of the key factors is the age difference between the defendant and the minor is one of the major factors determining how the crime is tried. If the defendant is 21 or older and the minor is under the age of 16, the penalties are likely to be most severe…and can include up to four (4) years in county jail.

Sex with a minor under 18 does not require you to register as a California sex offender. But it carries the possibility of civil penalties ranging from $2,000 to $25,000.

Call us for help…

Call us for help

If you or loved one is charged with Penal Code 647(a) lewd conduct in public and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in the office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.

Additionally, our Las Vegas Nevada criminal defense attorneys represent clients accused of violating Nevada laws re “Open and Gross Lewdness”. For more information, we invite you to contact our local attorneys at one of our Nevada law offices, located in Reno and Las Vegas.

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