In California, lewd conduct is addressed under Penal Code 647(a). This law makes it an offense to engage in actions of a sexual nature that are likely to cause distress to others. The distress is likely due to the act’s offensive, indecent, or obscene nature. Actions like public indecency, sexual exhibitionism, or engaging in inappropriate sexual behavior in public locations or those accessible to the general public will result in criminal charges under Penal Code 647(a).

Despite lewd conduct being categorized as a misdemeanor, the repercussions following a conviction can be considerable, carrying lasting implications. Thus, it becomes imperative for individuals to secure legal representation. At California Criminal Lawyer Group, we will thoroughly scrutinize the particulars of the case, explore diverse potential defenses, negotiate with Anaheim prosecutors, and represent you in court. Our focus is safeguarding your rights while striving for the most favorable resolution possible.

Lewd Conduct as Described Under Penal Code 647(a)

Under California law, lewd conduct in public is defined as the deliberate touching of your or another person's buttocks, genitals, or female breasts to seek sexual gratification when you knew or should have known that third parties would find the conduct offensive.

Furthermore, it is crucial to note that soliciting lewd conduct in public is, indeed, a criminal offense. This entails actively enticing, encouraging, or requesting someone to participate in lewd conduct in a location accessible to the public or endeavoring to organize or enable this behavior.

Prosecutors must substantiate the following five elements in a lewd conduct case:

  1. You intentionally and voluntarily touched your or a third party’s buttocks, genitals, or female breasts.
  2. Your actions were driven by the need for sexual arousal, personal or another person’s gratification, or for annoying or offending a third party.
  3. The conduct occurred in an area accessible to the public or in plain view of others.
  4. When you were engaging in the behavior, another person was present who could have been offended by witnessing the actions.
  5. You were aware or should have reasonably known that someone who could have taken offense at your behavior was present during the incident.

 Let us examine each element in detail.

  • Dissolute or Lewd Conduct

"Dissolute" or "lewd" behavior involves engaging in the deliberate touching of your or a third party’s buttocks, genitals, or female breasts, aiming for:

  1. Sexual gratification.
  2. Sexual arousal.
  3. Annoying someone, or
  4. Offending someone.

This behavior is perceived as offensive, indecent, or unsuitable, and it could lead to criminal charges.

  • Intent to Annoy or Arouse

The statute, in and of itself, does not explicitly reference intent but uses the phrases "dissolute” or "lewd" behavior without further description. Courts have construed this language to mean actions of a sexual nature, drawing upon the traditional understanding of what constitutes "lewd."

In practical application, the litmus test for determining whether the behavior falls within the statute's purview is whether a person of sound judgment would justifiably conclude that the conduct is illegal. Consequently, if a behavior lacks the elements of sexually arousing or annoying others, it is not regarded as prohibited under PC 647(a).

Just to break it down further, courts rely on an individual's actions, focusing on understanding their intent and the context in which the behavior occurred. Since this matter is subjective, it requires analyzing various factors to gain insight into the person's motivations. The following elements are relevant in assessing whether the touching was for sexual gratification:

  • A person's primary purpose — If you intended to seek sexual arousal or gratification, it could indicate a sexual motivation behind the conduct.
  • Context also plays a significant role in this assessment. The circumstances surrounding the touching, particularly if it takes place in a sexual setting or an environment where sexual activity is more likely, could suggest sexual motivation.
  • The observations and testimonies of witnesses are invaluable in gaining insights into your demeanor, behavior, and any signs of sexual arousal or gratification you could have exhibited.
  • Examining your prior history and identifying patterns of similar behavior can be enlightening in understanding whether you have a history of sexual motivations.
  • Your or someone else's reactions to the situation could explain your motivations.
  • Your statements or confessions regarding your intentions or motivations can also be highly relevant in assessing whether the touching was for sexual gratification.

While establishing a justifiable reason for your conduct can be helpful, the ultimate responsibility for proving your criminal intent rests with the prosecution. Proving intent can be challenging for the prosecution unless the circumstances surrounding the conduct make the intent exceedingly clear.

For example:  In a crowded outdoor concert where numerous people are close, jostling and physical contact become inevitable. During this commotion, a bystander observes an unintentional encounter where someone accidentally brushes against another person's buttocks. However, this bystander mistakenly perceives the incident as a lewd or intentional act of inappropriate touching.

In truth, the individual involved in the accidental contact had no intention of engaging in lewd or offensive behavior. The incident occurred entirely by chance due to the bustling and crowded environment. The chaotic nature of the event could have prevented the person from even realizing the accidental contact or its nature, as their attention was focused on navigating through the busy surroundings.

  • Public Area or a Location Accessible to the Public

You violate PC 647(a) when you engage in lewd conduct in a public location, a place accessible to the public, or an area exposed to the public. Courts in California have extensively defined the term public." Per their definition, public includes various settings, like a parked car on a public street, a secluded movie booth within an adult bookstore, the communal hallway of an apartment complex, the space concealed behind the customer service desk in a men's apparel store, and even a massage parlor.

Conversely, specific places, like a private residence, a hotel room, or a shuttered business premises, are not classified as public locations. However, despite the private nature of these spaces, the section could be violated if the conduct therein is exposed to the public.

For example, should blinds or curtains remain ajar, engaging in sexual activity within a private setting could be deemed a criminal offense under the statute.

It is thus best to exercise caution in private spaces to avoid inadvertently exposing your conduct to public view.

  • Someone Else Taking Offense in Your Behavior

In California, engaging in sexual acts in public is not inherently illegal. The critical determinant of the conduct's lawfulness is whether the person involved knows or should reasonably know of the presence of others who could take offense to the acts.

The mere prospect of being observed by another person is insufficient to establish a violation of the law. Rather, there must be a possibility that third parties are present and could be offended by the conduct. The statute mandates a certain level of awareness and comprehension by the individual engaging in the behavior, considering its potential offensiveness to others.

This requirement underscores the significance of proving the defendant's intent and understanding, thereby raising the burden of proof for the prosecution.

Fighting Lewd Conduct Charges

Though lewd conduct charges are grave, they are not indefensible. You can use several defense strategies to challenge the prosecution’s case against you. Here are some of the common defenses against the charge:

  • You Did Not Commit The Act(s) of Which You are Accused

In challenging lewd conduct charges, asserting that you did not engage in the alleged behavior becomes a vital defense. The focus lies on disputing the accuracy and credibility of the accusations.

This aims to undermine the prosecution's case by presenting evidence contradicting the allegations. This could involve providing alibi evidence to establish that you were not present at the location of the supposed lewd conduct during the relevant time. The testimony of witnesses or documentation that places you elsewhere during the alleged incident can bolster this defense.

Moreover, video footage, photographs, or other forms of evidence that challenge the accuracy of the accusations can be utilized. For instance, if surveillance footage demonstrates that you were not involved in the alleged lewd conduct or that the behavior was misattributed, it can serve as compelling evidence to support this defense.

Using this defense requires thoroughly examining the prosecution's evidence and a skilled presentation of evidence that undermines the allegations. The California Criminal Lawyer Group will diligently gather relevant evidence, conduct witness interviews, and construct a compelling defense to demonstrate your innocence.

  • There Was Touch, But it Did Not Aim at Sexual Gratification or With Sexual Intent

You can also assert that the touching was not driven by sexual desires or intended for sexual arousal. Instead, it could have been accidental, unintentional, or purely non-sexual. Supporting evidence for this defense could include witness testimonies attesting to the lack of sexual motivation behind the behavior or circumstances that indicate an innocent purpose for the touching.

Numerous innocent reasons could explain touching yourself in public. For instance, engaging in this behavior in a bathroom stall could be solely due to non-sexual reasons, like urinating, washing up, or addressing an itch or discomfort.

The burden of proving the conduct's sexual or offensive intent lies squarely with the prosecution. Prosecutors must establish this beyond a reasonable doubt to secure a conviction for lewd conduct. Without this proof, you cannot be deemed guilty of the offense.

  • You Were Not in an Area Accessible to the Public

Sexual activity on private property in California is not automatically considered a criminal offense. However, the conduct should remain private and not visible to the public. If you were engaged in sexual activity in a location that maintains a reasonable expectation of privacy and is not accessible to public view, it would not qualify as lewd conduct according to California law.

While asserting this defense, the focus would be on establishing that the sexual activity occurred in a private area shielded from public visibility. This defense can be strengthened through various forms of evidence, including:

  1. Testimonies or statements from witnesses who can affirm the secluded and private nature of the location.
  2. Documentation or records related to the property, for example, proof of ownership or security measures, that solidify the area's private status.
  3. Surveillance footage or photographs from the scene demonstrate the location's privacy, if available. These will confirm that the conduct remained concealed from public view.

The prosecution bears the burden of proof. They must demonstrate beyond a reasonable doubt that the sexual activity occurred in a public place or a location open to public view to secure a lewd behavior conviction. Using this defense, you will challenge the alleged public visibility of the area. Thus, casting doubt on the prosecution's case and potentially avoiding being convicted of lewd behavior.

  • You Reasonably Believed that No One Was Present

Claiming a reasonable belief that no one was present is a valid defense. The claim is centered on your genuine belief that your actions would offend no one present.

Some of the viable evidence you can use to support this belief includes the following:

  1. Your statements or testimony can establish your belief that you were involved in the conduct in a secluded or private area where you reasonably assumed no one would witness or be offended by your actions.
  2. The surrounding circumstances, like evidence regarding the conduct's location and context, also play a crucial role. For example, if the conduct occurred in a remote or isolated area or when others were unlikely to be present, it could support your assertion that you reasonably thought no one was around to be offended.
  3. Surveillance footage or photographs from the scene can be valuable evidence. They can provide insights into whether you had a reasonable basis to believe that no one was present who could be offended.
  4. Testimonies from witnesses present when the incident occurred are equally important. Their accounts can shed light on their observations or the lack of potential offended parties in the vicinity.

This defense does not impose on you the burden of proving beyond a reasonable doubt that no one was offended by your conduct. Instead, the focus is on demonstrating that you had a reasonable belief that no one was present to witness the behavior and be offended.

  • You are a Victim of Entrapment

Entrapment laws safeguard individuals who are generally law-abiding citizens from being induced or coerced by law enforcement into committing crimes they are not naturally inclined to engage in. These laws prohibit law enforcement from using tactics like pressure, threats, fraud, harassment, or flattery to lure individuals into criminal activities.

Merely providing an opportunity to engage in an offense or initiate criminal activity is typically insufficient to establish entrapment. Instead, the focus is on whether you already had a preexisting inclination or predisposition to commit the crime and whether law enforcement's actions went beyond providing an opportunity and actively encouraged or induced the commission of the offense.

Regarding a PC 647(a) lewd behavior sting operation, the determination of whether it is entrapment hinges on the specific facts and circumstances of the case. It could be considered entrapment if the sting operation involves manipulating or coercing individuals with no natural predisposition to engage in lewd conduct.

Effectively defending against allegations of entrapment requires a comprehensive examination of the:

  1. Evidence.
  2. Law enforcement's actions, and
  3. Your predisposition to commit the crime.

Once we establish that Anaheim police officers entrapped you, we stand a better chance of having the charges dismissed.

Potential Penalties for Engaging in Lewd Conduct in Public

Violations of PC 647(a) are misdemeanors. Convictions result in the following penalties:

  1. A jail sentence of up to one year.
  2. A maximum fine of $1,000 or both.
  3. Misdemeanor or summary probation instead of jail time.

Probation comes with specific conditions, notably:

  1. Paying fines.
  2. Taking an HIV-AIDS test.
  3. Mandatory counseling.
  4. Staying away from the location where you were found engaging in lewd behavior.
  5. Not violating any other law.

Though engaging in lewd behavior in public is a sex crime, it does not automatically mandate sex offender registration. However, prosecutors frequently bundle this charge with indecent exposure, an offense that does require sex offender registration upon conviction. To avoid the potentially severe consequences of sex offender registration, prosecutors could propose a plea deal, dropping the lewd conduct charge if the defendant agrees to plead guilty to indecent exposure.

Consequently, many defendants feel compelled to accept the plea deal, driven by their fear of the dire outcomes of a conviction on both charges. However, the potential impact of sex registration is significant. Thus, engaging a criminal defense lawyer before accepting the offer is necessary.

Indecent Exposur

Indecent exposure is a crime under PC 314. The law makes it a crime to willfully and lewdly expose your private parts in a public place or any place where there are others present who could be offended or annoyed by the conduct.

Despite indecent exposure being perceived as a minor offense, a conviction can lead to severe consequences. If found guilty for the first time, indecent exposure is usually classified as a misdemeanor, exposing the offender to potential penalties such as:

  1. A jail sentence not exceeding six months.
  2. A fine of up to $1,000.

For a second offense of indecent exposure in California, the charges escalate to a felony. This change in classification carries harsher penalties, including:

  1. A jail sentence not exceeding one year.
  2. A fine of up to $1,000, or both, if convicted of a misdemeanor violation.

A conviction for a felony violation will result in the following penalties:

  1. 16 months, 2, or 3 years in prison.
  2. A maximum fine of $10,000.

Moreover, a conviction for indecent exposure triggers mandatory sex offender registration. Depending on the case, the offender could be required to register as a Tier 1 sex offender. Offenders must retain this tag for at least ten (10) years.

Offenses Related to Lewd Conduct

The following are the crimes related to lewd conduct. Prosecutors could opt to include the following crimes to your charge sheet or drop the lewd conduct in favor of any of the following offenses:

  • Loitering in a Public Toilet

Penal Code 647(d) makes it a crime to loiter in or around an open toilet, intending to solicit or engage in lewd conduct.

According to the law, it is illegal to linger, remain, or stay near an open toilet or restroom facility to engage in sexually explicit conduct or solicit others to participate in such behavior. The term "lewd conduct" includes acts that are sexually explicit or offensive.

The specific elements prosecutors must prove are:

  1. You must be physically present in or around an open toilet or restroom facility, indicating no valid or lawful reason for being in that location.
  2. You must have intended or planned to commit lewd or sexually explicit acts in or around the restroom area.

Note: The term "open toilet" refers to a public or accessible restroom facility that is open to the public. It does not relate to a private or enclosed restroom.

Penalties for Loitering in a Public Toilet

A violation of Penal Code 647(d) is a misdemeanor. You will face the following penalties if convicted:

  • A jail sentence of up to six months.
  • A fine of up to $1,000.
  • Summary probation.

Find an Experienced Anaheim Criminal Defense Attorney Near Me

If you or someone you know is facing lewd behavior charges in Anaheim, talk to the California Criminal Lawyer Group immediately. We have the expertise to safeguard your rights and develop a winning defense strategy for your case. We navigate the complexities of the law, thoroughly assess the evidence, and diligently work to attain the most favorable outcome possible for you.

Early intervention is crucial in negotiating with the prosecutor to reduce or dismiss your charges, even before heading to court. Should the case proceed to trial, we will represent you and fight the charges. Call us today at 714-766-0965 to schedule an initial, no-obligation case evaluation meeting.

Remember, your future and reputation are on the line. Thus, having a dedicated advocate by your side, fighting relentlessly for your rights and interests, is necessary.