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What Must Be Proven in PC 647(a) Lewd Conduct Cases?

Posted by Ronald D. Hedding | Oct 27, 2022

California Penal Code 647(a) PC describes the sex crime of lewd conduct in public as the touching of genitals, buttocks, female breast, or someone else's, to gratify sexual desires when you knew, or should have known; other people were present that might be offended by your behavior.

This same law also makes it a crime for anyone to solicit lewd conduct in a public place.

California Penal Code 647(a) PC - Lewd Conduct in Public

PC 647(a) says that lewd conduct is committed when a person "solicits somebody to engage in, or who engages, in lewd or dissolute conduct in a public place or any place open to the public or exposed to public view."

Lewd acts are inappropriate sexual behavior in a public setting for sexual gratification or to offend. In other words, Penal Code 647(a) makes it a crime to both participate in and solicit lewd conduct.

Often, PC 647(a) lewd conduct arrests are related to an undercover police sting operation where decoy officers hand out in a public restroom and attempt to bait someone into sexual activity, which defense lawyers challenge as police entrapment.

California courts have broadly defined "public space," including a public bathroom, alley, sidewalk, city park, parking lot, etc. Lewd conduct cases involve any sexual activity in a public place, public masturbation, and exposing yourself in a public place.

California Penal Code 314 PC describes the related misdemeanor sex crime of indecent exposure as when somebody willfully exposes their naked body or genitals in a public setting to someone else who could be offended or annoyed.

The act of somebody “exposing” their intimate has to be done with a specific intent to draw public attention to their genitals for sexual gratification or to offend another person.

Simply put, “intent” is a crucial element of the crime in prosecuting a Penal Code 314 PC indecent exposure case. Our California sex crime defense attorneys will look at this law below.

What Factors Are Prosecutors Looking For?

This is a scenario where prosecutors and judges know it when they see it.  In other words, I've had all sorts of different factual scenarios where you could argue that it was not lewd conduct, and then there are other cases where it is improper contact. So, really what they're looking at is:

  • what are the surrounding circumstances?
  • is there any nudity involved?

For example, if someone is receiving oral sex from a prostitute in a parking lot that is visible to the public and the police see nudity involved and what's going on, that will be lewd conduct.

Lewd Conduct in Public

If someone's walking around with their breasts out or a man is walking around with his penis out, that will also be lewd conduct.  Those are clear examples of lewd conduct. 

But of course, there are other scenarios where the defendant being charged argues that their conduct is innocent.  They did not mean for the public to see whatever the authorities or a victim claimed they saw. 

Then, the authorities are going to look at whether this person has a criminal record for this type of behavior or do they have a clean record.  Then we could give them the benefit of the doubt.  Of course, they're also going to look at the surrounding circumstances.

If the excuse for why the person has engaged in some lewd conduct or showing some body part is ridiculous – it doesn't make any sense that's going to be factored in, and the prosecutors will likely charge that person with a crime.

If, on the other hand, the excuse could go either way and the person has no criminal record, that puts him in a good position to argue against the lewd conduct charge. 

You don't want to get convicted of lewd conduct.  You could be asked to register as a sex offender, which is a horrible mark on your record.

Mistakes Made in Lewd Conduct Cases

Lewd conduct is a severe crime.  The police, a lot of times, will get right in someone's face who has been arrested or charged with lewd conduct and try to get them to admit specific essential facts that are necessary to prosecute them.

The first common mistake would be talking to law enforcement because they're just looking to gather evidence to make sure that you get convicted, go to jail, and possibly have to register as a sex offender.  So, do not speak to law enforcement related to your case if you know you're being investigated or have been arrested for lewd conduct.

Another common mistake is to talk to the individual who is claiming they saw you or that you were involved in some lewd conduct activity.  Do not talk to that person by text or by phone.  A lot of times, the police will do what is called a pretext phone call, where they have the person call you and ask you a bunch of questions, trying to make sure that you incriminate yourself. 

They will tape-record the conversation and now have a compelling piece of evidence against you that they can use to prosecute you moving forward.  The main thing you want to do to avoid these and other types of mistakes related to a lewd conduct charge is to get to an attorney immediately. 

I take control of the issue right away.  We have you come in, we meet and go over the facts and details of the case, and then we get a game plan together for exactly how we will handle the case.  Whether we're going to take the case to trial or whether we're going to try to mitigate the issue so that you don't end up in jail for a lengthy period. 

These charges can be severe because they put a terrible stigma on your record, especially if you get arrested for lewd conduct, fingerprinted, and your photograph taken.  Often, people can find that on the internet for the rest of their life.  So, you want to ensure that whatever you do, you handle things the right way.

What are the Related California Crimes?

  • Penal Code 647(d) PC – loitering around a public toilet,
  • Penal Code 314 PC – indecent exposure,
  • Penal Code 415 PC – disturbing the peace,
  • Penal Code 602 PC – trespassing,
  • Penal Code 288 PC – lewd acts with a minor.

Why Do You Need a Criminal Attorney?

I think the biggest thing you need to do right away is to get a criminal defense attorney with experience dealing with these cases.  I've been handling them for approximately 30 years.

Why Do You Need a Criminal Attorney?

I've worked for the District Attorney's office; I've worked for a Superior Court Judge, so I know a circumstance where a client has a chance to win the case, and I, of course, know an event where the client is not going to be able to win the case.

We might need to negotiate and work out some resolution.

But if the prosecutors think they might lose, that is certainly a scenario in a lewd conduct case where they might give a different charge. 

Maybe a charge that does not involve a sexual connotation is where the stigma and problems come from when it comes to these sorts of cases.

For prosecutors to convict you of violating Penal Code 647(a), they need to prove the elements of the crime:

  • you were in a public place or a place exposed to the public;
  • there was a likelihood that other people would be exposed to the behavior;
  • you touched your genitals or someone else's genitals or female breasts.

What I have you do is come into my office.  We'll sit down and go over all of the factual details, and I'll let you know right from the beginning whether I believe it's a lewd conduct case or not.

Then, we'll begin to devise our plan – whether that be to defend the case, fight it in a jury trial, or try to get a mitigation package together to try to get a different charge and try to keep you from having to register as a sex offender or going to jail.

So, if you need the best and are being investigated or charged with lewd conduct, you need the best.  Pick up the phone now.  Ask for a meeting with Ron Hedding.  I stand at the ready to help you. The Hedding Law Firm provides a free case evaluation by phone or use the contact form.

About the Author

Ronald D. Hedding

What Makes Ronald Hedding Uniquely Qualified To Represent You? I've been practicing criminal defense for almost 30 years and have handled thousands of cases, including all types of state and federal sex crime cases. All consultations are discreet and confidential.

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