In the state of California, the criminal act of Lewd Conduct in Public is committed when an individual behaves lewdly or solicits lewd behavior in a public place. Such lewd conduct can include touching one’s own or another person’s private parts for the purpose of sexual gratification, or to annoy or offend another individual. Section 647(a) of the California Penal Code deems such sexual behavior to be “lewd or dissolute” when it is conducted in the presence of a person who may be reasonably offended by it.
The offense of Lewd Conduct in Public, as defined under CPC §647(a), is classified as a misdemeanor. A conviction for this offense may result in a sentence of up to six months in a county jail, a maximum fine of $1,000, or both. It should be noted that a conviction under PC 647(a) does not require an individual to register as a Sex Offender.
WHAT COUNTS AS LEWD ACTS UNDER PENAL CODE 647(A) PC?
According to Penal Code Section 647(a), indecent behavior is characterized as intentionally touching intimate body parts in a location visible to the public, with the knowledge or awareness that another person is present to observe it. The reason for your actions may have been to either intentionally cause offense or to derive sexual pleasure.
The nature of the act may have involved touching one’s own intimate body parts, soliciting someone else to touch one’s intimate body parts, or touching another person’s intimate body parts. Cases involving lewd conduct may include:
- sexual activity in a public place,
- public masturbation
- exposing yourself in public.
In all cases, the offense consists of the act of touching intimate body parts, which according to Penal Code Section 647(a), can refer to:
- any portion of the genitals,
- the anus
- female breasts from the top of the areola down
According to the statute, a “public place” is any location that is open to the public or can be seen by members of the public. Public places like:
- public bathrooms
- city parks
- car parked on public street
- common hallway at apartment complex
- street alley
Locations such as:
- your home
- your hotel room
- your closed place of business, are not public places
It can also include lewd conduct through the window of a private residence if in clear public view. However, if one of these places is visible to others from a public location, then its privacy may be violated. If you have the curtains or blinds open, sexual activity in private may be considered public and therefore illegal.
HOW ARE PEOPLE PROSECUTED FOR PC 647(A) LEWD CONDUCT?
To establish guilt, the prosecutor must demonstrate the existence of five specific facts, which are commonly referred to as the “elements of the crime.
- Willfully: You intended on doing whatever was necessary to break the law.
- Touched Your Body or Solicited Someone To Touch You: You made physical contact with your own or another person’s genitals, buttocks, or female breast.
- For Sexual Arousal Or Offense: You either had the intention of seeking sexual pleasure for yourself or the intention of causing annoyance or offense to someone else.
- In A Public Place/Open To Public View: The act took place in a place either open to the public or in public view.
- In The Presence Of Someone Who Might Be Offended/Annoyed: Someone who was annoyed or offended was near enough to witness the conduct.
- Knowing Another Person Was Present: You knew or should’ve known that someone else was nearby.
Example: Defendant Maria and John, a couple, go to a movie theater to watch a film. During the movie, they engage in sexual behavior under a blanket that covers them from the waist down. However, when John accidentally moves the blanket, a fellow moviegoer, Sarah, who is seated right behind them, witnesses them and reports them for Lewd Conduct In Public. Can Maria be convicted of violating CPC §647(a)?
Conclusion: Maria and John intentionally went to a public theater, engaged in sexual behavior under a blanket, and were observed by a member of the public. Even though they believed they were not visible, they should have known that another moviegoer could see them given the proximity of the seats in the theater. Thus, Maria and John could be convicted of violating PC §647(a), Lewd Conduct.
What are the penalties for a 647a PC conviction?
Lewd conduct is considered a misdemeanor offense with a maximum penalty:
- up to six months in county jail, and/or
- a fine of up to $1,000.
In practice, judges frequently opt for misdemeanor (also referred to as “summary” or “informal”) probation, which typically involves minimal or no jail time.
Conditions of PC 647a probation often include:
- an AIDS test
- a requirement that you stay away from the location
While a conviction for lewd conduct in public doesn’t mandate sex offender registration, prosecutors may still combine it with indecent exposure charges, which require registration as a sex offender. To avoid the lewd conduct charge, prosecutors may require a guilty plea for indecent exposure. Numerous defendants in this scenario may feel obligated to accept the plea deal, as the prospect of being required to register as a sex offender if convicted at trial can be an overwhelmingly negative outcome.
What should I do if arrested for lewd conduct?
In cases of Penal Code 647a PC violations, law enforcement may opt to issue a court citation to the individual rather than making an immediate arrest. Other times they will.
- arrest you
- fingerprint you
- book you before releasing you with the court citation
If a person is arrested for lewd conduct under Penal Code 647a PC, the police may either issue a citation to appear in court or take them into custody, fingerprint them, and book them before releasing them with a court citation. In either scenario, it is highly advisable to contact a Los Angeles criminal defense attorney immediately. There is typically a gap of time between the arrest and the district attorney’s review of the case and the filing of formal charges. During this period, an attorney may be able to meet with the district attorney and persuade them to reject the case, thereby avoiding formal charges. It is important to seek legal representation to ensure that your rights are protected and all available options are explored
If you are charged with a misdemeanor, a criminal defense lawyer can typically appear in court on your behalf. This means that if you hire a lawyer, you may not need to personally attend court appearances.
After appearing in court, a criminal defense lawyer will typically obtain the police reports and any evidence that the prosecutor has in their possession.
As part of the defense strategy, a criminal defense lawyer may inspect the location of the alleged offense, file a Pitchess motion to review the background of the arresting officers, and attempt to obtain statements from other individuals who were arrested in the same operation. The goal is to identify any weaknesses in the prosecution’s case and work to have the charges dismissed.
In some cases, the district attorney may agree to drop the original charges if the defendant pleads guilty to a lesser offense. The lesser offense may include charges such as.
- Penal Code 415 disturbing the peace
- Penal Code 602 trespassing is common
Pleading guilty to a lesser offense can be preferred by some clients over going to trial since it avoids the stigma of a lewd conduct conviction. However, if negotiations with the prosecutor are unsuccessful, a criminal defense lawyer may proceed to a jury trial. In such trials, it is often possible to secure a “not guilty” verdict.
What are the best legal defenses to this charge?
The potential defenses to charges of lewd conduct in public vary depending on the specific circumstances of the case. However, some common defenses may include (but are not limited to):
You didn’t engage in the behavior of which you have been accused
In a lewd conduct case, the prosecution bears the burden of proving that the defendant engaged in the alleged behavior. If the defendant did not actually commit the act as described by the arresting officer, they may not be found guilty. Therefore, one possible defense strategy is to challenge the prosecution’s evidence and argue that they have not met the required burden of proof.
Example: Defendant Alex is at a beach with some friends. While playing in the water, one of his friends jokingly pulls down Alex’s swimming trunks, exposing his buttocks for a brief moment. A nearby beachgoer reports Alex for lewd conduct. Could Alex be convicted of violating CPC §647(a)?
Conclusion: In order to be convicted of lewd conduct under the statute, the defendant must have knowingly exposed their genitals, buttocks, or a female breast in a public place or where other people may be offended or annoyed by the conduct. However, in this case, the exposure of Alex’s buttocks was not intentional, and it was a momentary and unintended act. Therefore, although some elements of the crime are present, Alex should not be convicted under PC §647(a).
Any self-touching that may have occurred was not for the purpose of sexual gratification.
It is possible that you were simply touching yourself in a restroom stall to relieve yourself, or perhaps you were cleaning yourself or scratching an itch. Regardless of the reason, if the prosecution cannot demonstrate that your behavior was motivated by a sexual or offensive intent, then you cannot be found guilty of lewd conduct.
Example: Defendant Taylor is at a public beach with a group of friends. While playing beach volleyball, Taylor jumps up to hit the ball and accidentally tears their shorts, leaving their buttocks exposed. They immediately cover up with a towel, but a nearby beach goer, Victim Victoria, reports Taylor for Lewd Conduct In Public. Could Taylor be convicted of violating CPC §647(a)?
Conclusion: Although Taylor’s buttocks were exposed in a public place, they didn’t do so for sexual gratification or to annoy anyone. The exposure was accidental, and Taylor immediately covered up once they realized what had happened. Since the element of intent to sexually gratify or annoy others can’t be proven, Taylor should be acquitted of violating CPC §647(a).
You Had A Reasonable Belief That No One Who’d Be Offended Was Near
The defense of not reasonably knowing that someone would be offended is frequently used in cases of lewd conduct. If you had no reason to believe that someone who could be offended would witness your conduct, you cannot be found guilty under Penal Code 647(a).
Example: Defendant David and his girlfriend are in a public park at night, far from the crowds, and they begin to engage in sexual activity. David has a reasonable belief that no one who would be offended was near. Suddenly, a police officer appears and arrests them for Lewd Conduct In Public. Could David be convicted of violating CPC §647(a)?
Conclusion: Although the other elements of the offense are present, David had a reasonable belief that no one who would be offended was near, and he couldn’t have known that a police officer would show up unexpectedly. Therefore, David shouldn’t be convicted of violating CPC §647(a).
You Weren’t In A Place Open To Public View
Engaging in sexual activity on private property is not considered lewd conduct unless it is visible to the public. Thus, if the sexual activity occurred in a private location not accessible to public view, it cannot be considered a violation of lewd conduct laws.
Example: Defendant David and his girlfriend are in David’s apartment, which has closed curtains, when they start engaging in sexual activity. Suddenly, the curtains fall and their neighbor, Victim Valerie, who lives in the apartment across, sees them and calls the police. Valerie reports David for Lewd Conduct In Public. Should David be convicted of violating CPC §647(a)?
Conclusion: David engaged in sexual activity in a private place, which was not open to public view. Although Valerie could see them because of the curtains falling, it was not a place where anyone could view from the street or any public area. Therefore, David should not be convicted of violating CPC §647(a).
You Were Entrapped Or Arrested Unlawfully
Under California law, entrapment occurs when police officers use pressure, fraud, harassment, threats, flattery, or other coercive tactics to persuade a “normally law-abiding citizen” to commit a crime that they were not already inclined to commit. However, merely providing an opportunity to commit a crime or initiating criminal activity typically does not meet the legal definition of entrapment.
Example: Defendant David is known to have a weakness for prostitutes. The local police decide to arrest him for solicitation. They send an undercover officer, Victim Vanessa, to David’s favorite bar to make a pass at him. Once there, Vanessa approaches David and offers sex in exchange for money. David agrees and hands over the cash. Vanessa then has him arrested for Solicitation. Should David be convicted of violating CPC §647(b)?
Conclusion: As in the previous example, entrapment is a defense. Here, the police knew that David had a weakness for prostitutes and targeted him with a trap. They created a trap meant just for David because they believed he would commit a specific crime. Then Vanessa enticed David, and David was entrapped. Therefore, David shouldn’t be convicted of violating CPC §647(b)
In the event that it can be proven that the police used inappropriate entrapment tactics, it often leads to the charges being dropped.
WHAT ARE THE RELATED CALIFORNIA CRIMES?
- Penal Code 647(d) – loitering around a public toilet
- Penal Code 653.22 – loitering for prostitution
- Penal Code 314 – indecent exposure
- Penal Code 415 – disturbing the peace
- Penal Code 602 – trespassing
- Penal Code 288 – lewd acts with a minor
CRIMINAL DEFENSE FOR LEWD CONDUCT IN PUBLIC CASES
If you or a loved one is facing charges for lewd conduct under Section 647 in Los Angeles, Van Nuys, Beverly Hills, Ventura County, Riverside, San Fernando, Burbank, Santa Monica or Orange County, our criminal defense lawyers are available to assist you. With our top-rated legal expertise, we will evaluate your case and devise the most effective strategy for achieving the best possible outcome.
Time is of the essence, so we recommend contacting you as soon as possible. We may be able to negotiate with the prosecutor to reduce or dismiss your charges before the court date. Additionally, you may be eligible for a diversion program that can help you avoid a criminal conviction and maintain a clean record.
If you need a reliable criminal defense team in Southern California, contact Tabibnia Law Firm. We offer a free immediate response when you call us at 866-713-2159, or you can reach us online. Let us examine your case and provide the skilled legal representation you deserve.