Some acts are only appropriate when done behind closed doors. In California, it is unlawful to get involved in lewd conduct while in public. Generally, lewd conduct involves touching yourself or another person for sexual arousal or gratification. Even a misdemeanor conviction can have a lifelong effect on your criminal record. Therefore, it is essential to exercise your right against self-incrimination by asking to speak to an attorney at the Orange County Criminal Defense Attorney Law Firm immediately.

What is Lewd Conduct in California?

PC 647(a) is the lewd conduct law. A person violates lewd conduct law when:

  • They get involved in or solicit another person to get involved in
  • Dissolute or lewd conduct
  • In a public area or any place that is exposed to public view or open to the public

To convict a defendant of PC 647 (a), the prosecutor should prove the following elements of the crime beyond any reasonable doubt:

  • The defendant willfully got involved in touching their own or somebody else's buttocks, a female breast or genitals,
  • The defendant acted so with an intent to gratify or arouse themselves or somebody else sexually or to offend or annoy somebody else
  • When the defendant acted so, they were in a public location or an area that is open to the public
  • Another person who could have been hurt/offended was there
  • The defendant knew or should have been aware that somebody else who could have been hurt by their act was present

To get a better understanding of the definition, here is an overview of the above elements:

Dissolute or Lewd Conduct

In this context, the terms dissolute and lewd have the same meaning. They mean the act of touching female breasts, genitals, and buttocks with an intent to sexually arouse, gratify, offend, or annoy.

Willful Act

Willful act refers to the willingness or purpose to engage in the act. It doesn't require any intention to break the law, gain any advantage, or injure another person.

Intent to Annoy or Arouse

The statute in question doesn't have any language concerning intent. It only forbids dissolute or lewd conduct.

Nevertheless, about the traditional meaning of lewd, judges have taken the language as relating to sexual conduct. The courts say further that the assessment is whether a reasonable individual will comprehend with rational certainty that their behavior is prohibited.

That means the statute does not forbid any conduct that isn't purposed to annoy or arouse any person sexually.

It is essential if you are in a position to prove an innocent motive for the conduct. However, the prosecution team has the burden to present evidence on your illegal intent. Well, that could be overwhelming for the prosecution unless the case's facts make your intention very clear.

Third Parties were Offended

It is not integrally unlawful to get involved in sexual conduct in public. It is only an offense if a defendant knows or reasonably should have known it was illegal and acted in the company of another person who would be offended.

According to the Supreme Court, Penal Code Section 647 (a) seeks to protect an onlooker who could be upset by the conduct in question. That means even if the conduct took place in a place which is technical public, the law has no interest in banning the conduct provided no person present is offended.

It is worth noting that more than just the likelihood of another person seeing you is needed. There should be an actual possibility that a third person is present.

The result is that many defendants accused of dissolute or lewd conduct are truthfully innocent. Although they got involved in a sexual activity publicly, they reasonably thought that:

  • Another person would not see them, or
  • No person seeing sexual activity could be offended.

Public Location

For you to break Penal Code Section 647 (a) PC, lewd conduct should take place in a place that is open to the public, an area exposed to public view or the public.

The term public can be interpreted broadly. Common public places include:

  • A vehicle that is parked on a busy street
  • Massage parlor
  • A hallway in a building
  • A movie booth at an adult bookstore

Your hotel room, private place of work, or home are not considered public places. Nonetheless, PC 647 (a) can be violated of any of these spaces if exposed to public view. Therefore, if your blinds or curtains are open, sexual activity in the private place could be an offense.

What Penalties Does Penal Code Section 647 (a) PC Carry?

PC 647 (a) is a California misdemeanor. It is punishable by:

  • Up to one thousand dollars in fines, and
  • A maximum of six months in jail.

The judge can also decide to grant informal or summary probation that comes with no time. More often than not, probation comes with conditions like AIDS tests, counseling, keeping off the place, and fines.

It is essential to note that a Penal Code Section 647(a) PC conviction doesn't require a defendant to register as a sex offender. But in most cases, prosecutors charge it alongside indecent exposure, a crime that requires registration as a sex offender. The prosecutor will accept to drop the PC 647 (a) allegations if you plead guilty to indecent exposure.

Most people in this status quo will feel obliged to accept the deal. This is because they are afraid that going to trial, getting convicted, and sex offender registration will affect their life negatively.

PC 647 (a) Sting Operations

In most sting operations, an undercover police officer will pretend to be a homosexual man who is cruising.

Sometimes the sting cases will involve law enforcement surveillance of distinct public places.  For instance, two people are masturbating in a bush in an isolated part of a park. Unknown to the men, the police have been monitoring the location for such activities. The police rush and then bust the accused while in the act.

In the example, the two suspects believed that they were in an area where no person would be upset by their behavior. Therefore, even if their conduct had to do with sex in a public space, they did not break the law.

Common Areas where Sting Operations Normally Occur

Typically, undercover stings operations are a result of complaints from citizens who do not like gay persons cruising and hanging out in a place. The most common where the undercover stings have taken place include:

  • Public parks
  • Bathrooms, particularly beach area and park bathrooms
  • Shopping malls
  • Gymnasiums
  • Adult book stores
  • Alleys

The above areas are just a few places where sting operations are common. The operations can occur anywhere. Most defendants who are put under arrest did not get to the area looking for a hookup or cruise. Instead, they fell into the trap unsuspectingly.

Undercover police officers are bad actors who can be overbearing and clueless in the cruising. If you suspect something fishy, do not explore the decoy or interact with the cop,  instead leave immediately.

What To Do After Being Detained for PC 647(a)

With PC 647(a) allegations, sometimes the arresting police officer will only issue you with a citation to show up in a court of law. Other times the police will arrest a defendant, fingerprint them, and book them before releasing them from custody with a citation.

In both cases, it is wise to consult a criminal defense lawyer immediately. Probably there will be an interruption between when the DA (district attorney) analyses your case before filing formal charges and your arrest. Your attorney should be able to see the district attorney during the intervening period and convince the DA not to bring charges against you.  

Since lewd conduct is a misdemeanor, if you engage a lawyer, you will probably never show up in court.

Moreover, your lawyer will inspect the area. They will run a Pitchess motion to check/analyze the background of the arresting police officers. The attorney will also try to obtain a statement from other defendants arrested in the same sting operation. That way, they will identify a gap in the prosecution and attempt to get the prosecutor to dismiss your charges.

Occasionally the DA will agree to drop your case provided you agree to plead to a less severe crime. The most common charges are trespassing (PC 602) and disturbing the peace (PC 415). And because they do not come with the stigma of a sexual offense conviction, most defendants proceeding to trial prefer them.

In case the negotiation with the prosecution fails to bear fruit, the case will proceed to trial. In the trial, it is likely to receive an innocent verdict.

Legal Defenses to Penal Code Section 647(a) PC Charges

Defenses to Penal Code Section 647(a) PC charges hinge on the case's circumstances. Any experienced criminal defense attorney should be in a position to use either:

  • You Did Not Get Involved in the Conduct which You're Suspected of

If a defendant did not do what the police are saying the defendant did, then the defendant is not guilty. Like mentioned earlier, the prosecutor has the burden to present evidence that the defendant violated the lewd conduct law.

  • You Thought that No Person Present would be Upset

Unless you should have been aware that another person would watch you and then be angry, then you cannot be found guilty of violating PC 647 (a).

If you engaged in sexual activity in a building or behind bushes where somebody else intentionally removed a barrier so that they can see you, then you have a reasonable belief that no person could see you.

  • The Defendant Touched Themselves, but It wasn't for Sexual Gratification (Lack of Intent)

One of the main elements that the prosecutor should prove beyond any reasonable doubt is that you planned to get involved in the act in a sexually arousing, annoying, offensive, and gratifying manner.  Therefore, if a defendant did not intend engaging in the conduct in that way, a criminal defense attorney can present the lack of intent as a defense to the charges.

For instance, assuming you have been swimming all day and plans to meet your girlfriend later in the evening. You lose track of time and do not have time to rush home before meeting your girlfriend. As a result, you decide to change your clothing inside your motor vehicle that is parked on the beach's parking lot. A few meters away is a child and her father, who are packing their belongings in their vehicle, and the minor sees you. The father assumes you're masturbating in public and informs law enforcers. Under these circumstances, it can be difficult for the prosecutor to present evidence that you acted with an intent to gratify, arouse yourself, or annoy another person.

  • The Cops Engage in Misconduct or Used Entrapment

The entrapment law prohibits law enforcers from tempting law-abiding citizens to participate in an offense that they were not otherwise willing to engage in. This involves the use of fraud, threats, harassment, flattery, or pressure.

Proving entrapment can be overwhelming. Some undercover cops are wired, and your conversations may be subpoenaed. If there were witnesses who overheard or saw the exchange between you and the officer and can testify that the cop was aggressive, then you could have a valid legal defense.  

Presenting a chance to engage in an offense or initiating a criminal activity is not entrapment. Therefore, the question of whether the sting operation is an entrapment depends primarily on the case's facts.

You could have a valid legal defense if an undercover cop persists in engaging you in lewd conduct or if the police officer engages in gratifying you or themselves.

  • You Weren't in a Public Place or a Location Open to Public View

A sexual activity that happens in private property isn't an offense unless the public can see it. That means, if you engage in sexual activity in a private place like your hotel room or home, then it is not lewd conduct.

Nevertheless, you are in a public place where you are gratifying yourself in your car on a public street or in a massage parlor. A competent criminal defense lawyer should be able to prove that you took steps to conceal your behavior but was otherwise seen.

  • The Touching was Accidental

You cannot be punished for violation of PC 647a if you touched your or somebody else's intimate parts in a public place accidentally.

For instance, you are playing a game of flag football in a public park when you accidentally touch the groin area of your opponent while reaching for their flag. Since the touch was not intentional, you cannot be found guilty of California Penal Code Section 647(a).

Related Offenses

If you have been charged with Penal Code Section 647(a) PC, you could also be charged alongside or in place of the following offenses:

  • Statutory Rape

According to Penal Code Section 261.5 PC, it is illegal to engage in sexual intercourse with a minor below eighteen years of age.

Statutory rape is a California wobbler. That means, depending on the circumstances of the case, it could be charged either as a California misdemeanor or a felony.

A key factor is the age difference between the minor and the defendant. If the accused is twenty-one or above while the victim is below sixteen years of age, the punishment is likely to be more severe and could include a maximum of four years in jail.

You do not have to register as a sex offender if you engage in sex with a child below eighteen. However, you risk facing civil penalties that range between $2,000 and $25,000.

  • Violation of Peeping Tom Laws (California PC 647 (i) and PC 647 (j))

Under Penal Code section 647, both PC 647 (i) and PC 647 (j) are a different type of disorderly behavior.

Just like Penal Code Section 647 (a), these laws are meant to protect the third party from offensive sexually intended conduct. But unlike lewd conduct in public, conduct under sections (j) and (i) are done secretly.

Penal Code Section 647 (i) PC is commonly known as unlawful peeking or peaking while loitering. It is illegal to look in a window or door of an occupied structure while you're loitering on a private asset without legal business with the occupant or owner.

California PC 647 (j), on the other hand, is a criminal intrusion of privacy law. It's illegal to use any gadget such as a camera to secretly view or take a picture of somebody else's body without their consent.

In most cases, a violation of Peeping Tom law is charged as a misdemeanor. You are likely to face:

  1. Maximum six (6) months in jail
  2. One thousand dollars in fines
  3. Informal probation

You will receive more severe consequences if you are a repeat offender or intrude upon the privacy of a minor.

  • Lewd Conduct with a Minor

PC 288 is lewd conduct with a minor. It is known as a lewd act with a child, acts of lascivious or lewd conduct, or lewd conduct on a child below fourteen.

It is worth noting that PC 288 is a different offense from PC 647(a). The behavior forbidden by the latter entails touching yourself or another person, and the touching should happen in public. PC 288, on the contrary, forbids touching a minor's body with sexual intent. There isn't a restriction on where the offense can occur,

Usually, PC 288 cases involve child molestation acts. In other words, touching a minor's sexual organs or asking the minor to touch yours. You could be charged with Penal Code Section 288 PC in case you touch a child's body part for sexual purpose irrespective of whether the touch was on the minor's clothes or bare skin.

Violation of PC 299 is a California felony. Penalties range from a life sentence to probation, depending on the defendant's criminal history and the minor's age. Moreover, you will be required to register as a sex offender if convicted.

  • Indecent Exposure

Sometimes a prosecutor can choose to charge Penal Code Section 647(a) PC alongside indecent exposure (PC 314). A PC 314 conviction is devastating. This is because you could be registered as a sex offender for life.

It consists of willfully exposing your genitals in the presence of another person who would be offended.

  • Trespassing (PC 602)

There are instances the prosecution is hesitant to dismiss a Penal Code Section 647a PC charge outright. Instead, they will reduce it to a lesser crime like Penal Code Section 602 in exchange for a plea bargain.

According to PC 602, it is unlawful to enter another person's asset without consent.

Although this crime has nothing or little to do with a Penal Code 647a, most people accept a plea for PC 602 because it has less stigma on your criminal record.

Moreover, Penal Code 602 can be charged as an infraction or a misdemeanor. An infraction does not have a criminal record.

  • Loitering in and about an open toilet to solicit or engage in lewd conduct (PC 647d)

This subsection (d) is specific. It's an offense to loiter in a toilet that is open to the public with an intent to solicit or engage in any lewd, illegal, or lascivious act.

However, that doesn't mean an individual can't lawfully hang out around a public washroom. A person is responsible under this statute only if their conduct makes it clear that they intend to solicit or commit lewd acts.

Penal Code 647d is a misdemeanor. Its legal defenses and penalties are similar to Penal Code Section 647(a) PC.

  • Disturbing the Peace (PC 415)

California Penal Code 415 PC is another plea bargain crime. According to the disturbing the peace law, it is unlawful to:

  • Fight somebody else in public
  • Make unnecessary noise that disturbs your neighbors
  • Use offensive words in public

Just like trespass, PC 415 has nothing to do with California Penal Code 647a, but it has less severe consequences and less stigma compared to Penal Code section 647a. Also, an infraction has no criminal record.

Find a Orange County Criminal Attorney Near Me

Having sex at the back of a restroom or in a park's toilet might look fun at the moment, but in California, that is an offense. Although you will not be required to register as a sex offender, lewd conduct in public is a crime with severe and lasting repercussions. On top of the embarrassment the crime carries, often, the district attorney will pursue the crime aggressively. Consequently, it is wise to speak with attorneys at Orange County Criminal Defense Attorney Law Firm, who will fight for your rights. For information about available legal defenses or answers to your questions, call us at 714-740-7848.