Lewd Conduct (California Penal Code 647(a))

California prohibits certain types of crude or offensive conduct, when it is done publicly and for the purpose of sexual arousal/fulfillment or even if it is done just to annoy another person Such behavior is labeled “lewd conduct”. Not only is it illegal to commit lewd conduct, it is also illegal to ask someone to do so. California’s prohibition against lewd conduct is codified in the law books as California Penal Code 647(a) Lewd Conduct.

Note, that sexual conduct, on its own, is not considered illegal. This is the case also if the the sexual conduct occurs in public. The sexual conduct only turns into illegal “lewd conduct” when you knew or should have reasonably knew that there would be people around you who would find your behavior offensive.

To better understand California Penal Code 647(a) Lewd Conduct, and thereby your rights and liabilities, we will examine the legal definition of this sex crime law in more detail.

What is the legal definition of California Penal Code 647(a) Lewd Conduct?

In California, before you can be convicted of a sex crime before a jury or bench trial, the prosecutor must prove all the elements of the particular crime you are charged with. An element is simply a particular fact related to the commission of a sex crime. To recap, if a prosecutor cannot prove all five elements of California Penal Code 647(a) Lewd Conduct, then you cannot be found guilty of this charge in a California trial. (Note however, this does not mean you cannot be convicted at all. If you choose to take a plea agreement offered by the prosecutor, by pleading Nolo Contendere, then for most purposes this is considered a conviction. This just happens outside of a trial decision by either a jury or a judge.)

The elements of California Penal Code 647(a) Lewd Conduct are as follows:

Element #1: You willfully touched your own private parts or the private parts of another person.

Element #2: You committed the act described in Element #1 with the intent to sexually stimulate or satisfy yourself or another person OR You committed the act described in Element #1 with the intent to irritate or upset another person.

Element # 3: The act you committed in Element #1 was committed in a public place, a place viewable by the public, or at a place accessible by the public.

Element # 4: Another person was present when you committed the act described in Element #1 who could have been offended by such behavior.

Element # 5: You either actually knew or should have reasonably knew that someone else was present that could have been offended by the conduct described in Element 1.

Now that you know the elements of California Penal Code 647(a) Lewd Conduct, let us examine the important parts of this sex crime law in more detail. This will help you determine which issues will have larger significance as your criminal case proceeds. Additionally, by understanding which issues are more critical, you can better assist your Sex Crime Attorney in building your defense.

What is a “Private Part”?

Lewd conduct applies to the touching of private parts – either your own or the private parts of another person. For the purposes of California Penal Code 647(a) Lewd Conduct, private parts refer to the buttocks, genitals, or breasts. However, simply touching private parts does not trigger California Penal Code 647(a) Lewd Conduct liability. The other elements of California Penal Code 647(a) Lewd Conduct must also be met before you can be convicted in a jury or bench trial.

Intent to Stimulate Sexually or Irritate

Only sexual conduct that is performed with the intent to sexually stimulate or irritate another person will trigger California Penal Code 647(a) Lewd Conduct liability. Therefore, you cannot be convicted of a California Penal Code 647(a) Lewd Conduct violation if it cannot be proven that you had this intent. Although it is not necessary, if you can show that you had an innocent purpose for committing the charged sexual conduct, it will be really helpful in getting the California Penal Code 647(a) Lewd Conduct charge against you dismissed or reduced. The burden of proof is always on the prosecutor. But having an innocent purpose shown in the evidentiary record can make it tough for a prosecutor to establish their case against you.

What classifies as a “Public Place”?

Remember, one of the elements of California Penal Code 647(a) Lewd Conduct requires that the lewd conduct occur either in a public place, a place accessible by the public, or a place viewable by the public. California takes a broad view of the word “public”. This means there are wide ranges of locations that qualify to trigger California Penal Code 647(a) Lewd Conduct liability. The best way to figure out whether or not the location involved in your particular case would meet Element # 3 is by looking at past cases that resulted in a California Penal Code 647(a) Lewd Conduct conviction.

Locations that resulted in a California Penal Code 647(a) Lewd Conduct conviction: a car parked on a public street, a private booth at an internet café, a shared hallway in a condominium complex, and a private room in a massage shop.

Locations that are found not to trigger California Penal Code 647(a) Lewd Conduct liability as a “public place”: your own home, your room at a hotel, and your own personal place of business if closed to the public. However, these locations could still subject you to California Penal Code 647(a) Lewd Conduct liability if they are open to the view of the public. For example, maybe the blinds were open and people could have seen you. Thus, what is normally considered a private place could satisfy element # 4 of California Penal Code 647(a) Lewd Conduct in some circumstances.

Someone Could Have Been Offended or Irritated

California does not automatically prohibit sexual conduct committed in public. It is only a crime, under California Penal Code 647(a) Lewd Conduct, if you actually knew or should have reasonably knew that there was someone around who likely could have been offended or irritated.

To trigger California Penal Code 647(a) Lewd Conduct, there must be more than just the “mere possibility” that the sexual conduct could have been witnessed by another person. In addition, there must have also been the actual likelihood that another person was present at the public place.

Lastly, if you didn’t know someone else was present, you could still be convicted of California Penal Code 647(a) Lewd Conduct if you reasonably should have knew someone was present that could been offended. Whether you reasonably should have known is based on objective standard. Therefore, a court will consider something reasonable if an average, prudent person could have come up with that conclusion.

What are the potential punishments for California Penal Code 647(a) Lewd Conduct?

California Penal Code 647(a) Lewd Conduct is classified as a misdemeanor sex crime. If convicted of California Penal Code 647(a) Lewd Conduct, then you could receive any of the following punishments: a maximum of 6 months in county jail, fines reaching up to $1,000, summary (or informal) probation.

If you are sentenced to probation, the judge could require you to do any and all of the following: counseling, sex therapy, sexually transmitted disease medical tests, and an order requiring you to keep away from the place where the lewd conduct was committed.

If convicted under California Penal Code 647(a) Lewd Conduct, will I have to register as a Sex Offender?

A California Penal Code 647(a) Lewd Conduct conviction does not carry with it the requirement to register under California’s Sex Offender Registry laws. However, prosecutors often do not charge California Penal Code 647(a) Lewd Conduct on its own. They often charge this sex crime in conjunction with other sex crimes, such as Indecent Exposure, which do carry a requirement to register as a sex offender. In this situation, it might be strategic on your part to plea to a lewd conduct charge if the prosecutor will drop the indecent exposure charge. Of course, this depends on the particular facts of your case and an evaluation of what aspects of your life are important to you and what punishments you are willing to risk.

Most people do end up taking this deal, because registering as a sex offender carries huge repercussions – social, economic, and personal.

California Penal Code 647(a) Lewd Conduct and Sting Operations

Many California Penal Code 647(a) Lewd Conduct charges come out of police sting operations.

A common method used by the police is through an undercover officer pretending to be a flirtatious gay man in a public place, such as a public bathroom. The undercover officer will grab, rub, and aggressively touch the genital area of his pants in the hopes of luring a bathroom-goer to reciprocate with sexual conduct of their own. If they do, they will be arrested and charged with California Penal Code 647(a) Lewd Conduct.

Another common method is through the use of police surveillance of discrete public places. Here, the police will patrol and observe areas they think lewd conduct could potentially occur. If they find such conduct, then they will arrest and charge suspects with California Penal Code 647(a) Lewd Conduct. The problem with this method is that often times, people choose hidden locations, like the bushes in a desolate park night, for the precise reason that people will be not nearby. Therefore, the defendants in these case had a reasonable belief that another person who could have been upset by such conduct would not have been present at the location during that time. Thus, their actions, in these circumstances, would not amount to California Penal Code 647(a) Lewd Conduct.

Common locations for police sting operations include: public restrooms (especially those in parks or at beaches), public parks, malls, pornography stores, gyms, or alleyways. These undercover operations are usually conducted because of complaints from citizens. However, unfortunately, in reality these complaints are often due to homophobic attitudes towards gay men.

In Southern California, the police have some favorite locations that they tend to set up California Penal Code 647(a) Lewd Conduct sting operations. In Los Angeles, these include Griffiths Park, the Beverly Center bathrooms, and the Glendale Galleria bathrooms. In Fullerton, Brea Dam Park is a common site for sting operations, while the beach bathrooms are commonly targeted in Long Beach.

Even though common sites of sting operations are listed above, the truth is the police can set them up anywhere. Most people charged with California Penal Code 647(a) Lewd Conduct did not plan on going to a particular place with the intention of engaging in any sexual acts. Rather, they were enticed and set up to do so through a carefully crafted police trap.

Protect yourself: if you are in a public location and feel something suspicious is going on – just leave the location. Undercover police officers aren’t very good actors. They usually act aggressively and bossy. Don’t engage anyone in these type of situations; the best thing to do is just leave the site.

What are the common legal defenses available to a charge of California Penal Code 647(a) Lewd Conduct?

California Penal Code 647(a) Lewd Conduct is a serious charge. Fortunately, there are many legal defenses available to fight California Penal Code 647(a) Lewd Conduct accusations. A Sex Crime Attorney can review your specific case to determine what legal defenses might be available and to develop a maximally effective strategy. Let’s discuss some of the more common defenses to California Penal Code 647(a) Lewd Conduct. This list is not exhaustive; you should talk to an experienced Sex Crime Attorney to discuss what specific defenses work in your particular case.

You did not commit the conduct you are accused of doing:

It is not uncommon to face false accusations of California Penal Code 647(a). The police might put a different spin on the actual facts of what happened in the police record making it seem like you committed the acts in such a way that did not happen. For example, maybe you were just touching your private parts because they were itchy and the police misinterpreted this as lewd conduct.

You had a reasonable belief that there nobody else was around that would have been upset or irritated by your actions.

It is not uncommon or unusual for people to go out to desolate or abandoned areas to commit sexual acts, especially with other people. However, they are often found and arrested even though they thought they were safe from the public’s eyes. This is commonly seen in police sting operations which purposely set up in desolate areas known for these kind of acts. Fortunately, because the law provides an out for suspects who had a reasonable belief , you can avoid a California Penal Code 647(a) Lewd Conduct conviction if it can be established that you had such a reasonable belief.

You did not commit the allegedly lewd act in a public place or a place viewable by the public.

California Penal Code 647(a) Lewd Conduct does not apply to behavior committed in a private place or in a place not viewable by the public. By providing evidence that a place is in fact private, your Sex Crime Attorney can help you avoid a California Penal Code 647(a) Lewd Conduct conviction.

You are a victim of Police Entrapment or Police Misconduct.

California law prevents police from enticing people into committing a crime that they do not have a predisposition to commit. Police can “entrap” a citizen by lying, harassing, or threatening them. However, there is no entrapment defense if the police only simply provide the opportunity to engage in illegal conduct. Talk to an experienced Sex Crime Attorney to see if Entrapment is an available defense in your case, especially if you were arrested as part of an undercover police sting operation.

What Should You Do If You Are Facing Accusations of California Penal Code 647(a) Lewd Conduct?

California Penal Code 647(a) Lewd Conduct is a serious crime. The penalties can affect your job prospects, housing prospects, and your personal reputation. Because of the severe impacts on your life, it’s important that you contact a Sex Crime Attorney as soon as possible.

In regards to California Penal Code 647(a) cases, the police usually just give you a citation that requires you to appear before a judge on a certain date. However, sometimes they will arrest and book you immediately. Whatever the situation, it is critical that you contact a Sex Crime Attorney immediately. Our Sex Crime Attorneys might be able to get the charges dismissed before formal charges are ever filed. Because the punishment is only a misdemeanor, our Sex Crime Attorneys can appear on your behalf and you may never have to actually show up to Court. We can also obtain copies of all the evidence the police and prosecutor have against you.

Our Sex Crime Attorneys are experienced, intelligent, and passionate. We invite you to contact our office for a free consultation. They will gladly review the specific aspects of your case and discuss with you any questions, concerns, or issues you might have.

With Sex Crimes cases, it is important to contact an attorney immediately. The earlier you do, the more likely your Sex Crime Attorney can preserve the evidence and build a case in your favor. Our Sex Crime Attorney will inform you on the process you are about to face and guide you on the actions that you need to take.

Call 424-835-9799 to talk to one of our Sex Crime Attorneys.