Lewd or Dissolute Conduct in Public

Penal Code 647(a) PC

Most California Penal Code 647(a) "Lewd Conduct in Public" arrests involve undercover sting operations. Decoy police officers pose as gay men in bathrooms, parks and other public locations. These undercover cops will try to "bait" you into exposing yourself, masturbating, or proposing some sexual act. Then they arrest you. It's pure entrapment.

Our California criminal defense lawyers have successfully defended hundreds of PC 647(a) Lewd Conduct entrapment cases. Almost every one of them has gotten dismissed or reduced to a lesser charge. We handle these cases throughout the state, including Los Angeles, Long Beach, Orange County, Fullerton, Glendale, Riverside, Rancho Cucamonga, San Diego and the San Francisco Bay Area.

Much of the time, the alleged acts do not amount to "lewd or dissolute conduct" as the law defines it. In fact, quite often the arrested person does nothing but make eye contact and "cruise" the decoy officer...but the police lie, embellish and exaggerate the facts to make it look like something more than that happened. It's wrong. But it happens all the time. You can fight back...

Below we will discuss...

The Legal Definition of "Lewd or Dissolute Conduct in Public"

The Requirement That a Third Party Be Offended

The Definition of a "Public" Location

Places Where Lewd Conduct Sting Operations Tend to Happen

What Should I Do if I Got Arrested for Lewd Conduct?

Does California Entrapment Law Provide a Legal Defense to Lewd Conduct in Public?

"Indecent Exposure" as a Companion Charge to Lewd Conduct

"Trespass" and "Disturbing the Peace" as Plea Bargains in Lewd Conduct Cases

If you still have questions or would like a confidential meeting with our California criminal defense attorneys, feel free to contact us.

*Note: There are two variants of Penal Code 647(a). This article addresses the offense of "engaging in public lewd conduct." Please see our other article for a discussion of "Solicitation of public lewd conduct." Many people arrested for these offenses also get charged with Penal Code 314 | Indecent Exposure. Finally, sometimes people confuse "lewd conduct in public" with Penal Code 288 |Lewd acts with a minor. Penal Code 288 is a completely separate offense involving allegations of child molestation.

The Legal Definition of "Lewd or Dissolute Conduct in Public"

A person violates California Penal Code 647(a) when he/she "solicits anyone to engage in or engages in lewd or dissolute conduct in any public place or in any place open to the public or exposed to public view."ⁱ

The courts have determined this to mean that the prosecutor must prove five facts (called "elements of the crime") in order to make out a lewd conduct case:

1. The defendant willfully engaged in the touching of his own or another person's genitals, buttocks, or female breast;



2. The defendant did so with the intent sexually to arouse or gratify himself or another person, or to annoy or offend another person;



3. At the time the defendant engaged in the conduct, he was in a public place or a place open to the public or to public view;



4. At the time the defendant engaged in the conduct, someone else who might have been offended was present; and



5. The defendant knew or reasonably should have known that another person who might have been offended by his conduct was present.ⁱⁱ

The Requirement That a Third Party Be Offended

Most people arrested for Penal Code 647(a) "Lewd or dissolute conduct" are factually innocent. We say this because even if they engage in sexual activity in public, they almost always do so in a context in which they reasonably believe that no one else at the location would be offended by it.

The key issue in most "lewd or dissolute conduct in public" cases is elements 4 and 5 above. It's not inherently illegal in California to engage in sexual activity in public. It's only illegal if you know or reasonably should know that other people are present who would be offended by the conduct.

The California Supreme Court explained that "even if conduct occurs in a location that is technically a public place, a place open to the public, or one exposed to public view, the state has little interest in prohibiting that conduct if there are no persons present who may be offended"ⁱⁱⁱ and "the statute thus serves the primary purpose of protecting onlookers who might be offended by the proscribed conduct."^iv

In most Penal Code 647(a) sting operations, the undercover cop is pretending to be a gay man out cruising. He lurks in a park bathroom, for example, until a guy walks in who appears to be gay. The decoy cop then starts acting flirtatious, often by making "hard" eye contact, winking, gesturing towards his penis or other deliberately provocative behavior. When the suspect responds in kind, an arrest is made.

Other lewd conduct cases may involve a couple guys or a group of guys engaged in sexual activity in a discreet public location. Two guys, for example, may be masturbating each other in the bushes in a remote section of Griffith Park. Unbeknownst to them, LAPD has been surveilling the area for just such an activity. The cops rush in and "bust" the suspects in the act.

In any of these scenarios, the "suspects" reasonably believed they were in a place where no one else would be offended by the conduct. In the decoy sting situation, the undercover was pretending to be looking for a hookup. In the Griffith Park example, the guys selected a desolate location so that no one would see and take offense. Because they had no reason to believe a third party was present who would be offended, the activity (even if it involved sex in public) does not amount to PC 647(a) lewd or dissolute acts.

The Definition of a "Public" Location

"Lewd or dissolute conduct in public," by definition, must occur in (1) a public place, (2) a place open to the public, or (3) a place exposed to public view. California courts have found "public" to include, among other places, a private movie booth at an adult bookstore^v, a car parked on a public street^vi, a common hallway in an apartment building^vii, the area behind the service counter in a men's clothing store^viii, and a massage parlor^ix.

So what would be considered "not public" and thus not a place where sexual activity could potentially get you arrested for Penal Code 647(a)? Your home, your hotel room, or your closed place of business, with the curtains or blinds shut so that the outside world cannot see in.

Nevertheless, remember: even if you got arrested for doing something sexual in public, that's not the end of the story. It's not necessarily illegal to engage in sexual activity in public...It's only illegal if you're aware of the presence of others who are likely to be offended by it.

Places Where Lewd Conduct Sting Operations Tend to Happen

Police tend to set up "lewd conduct" sting operations in bathrooms (especially park and beach area bathrooms), public parks, shopping malls, adult book stores, gymnasiums and alleys. The cops say the undercover stings are in response to "citizen complaints." Usually this means complaints from homophobic people who don't like gay men hanging out and cruising in the area.

When you arrive at one of these sting locations, the decoy officer will be dressed in plain clothes and will start cruising you. Often this means heavy eye contact, fondling his penis from outside the pants, and walking in and out of a toilet stall. It's all an act. He's trying to bait you into flashing yourself, jacking off, or agreeing to a sexual act. Then you get arrested.

While the list of places where Penal Code 647(a) stings have occurred is innumerable, here are a few that we see most frequently:

• Griffith Park in Los Angeles



• The bathrooms at the Beverly Center, 7th floor outside Bloomingdale's



• The bathrooms at the Glendale Galleria, outside JC Penny's



• Davis Park in Valencia



• The bathrooms at Brea Dam Park in Fullerton



• The bathrooms at the beach in Long Beach



• Roeding Park in Fresno

While these are a few of the places where we see the stings happen most commonly, the fact is they could happen anywhere. Most guys who get arrested didn't even go to the location looking to cruise or hookup. They walk unsuspectingly into a trap. It could happen to any of us.

If you enter a bathroom or public location and feel that something's not right, get out of there! Usually you'll have a sense that something strange is going on. The undercover cops tend to be bad actors, and often times clueless and overbearing in their cruising. If your instinct tells you something fishy is happening, don't look at the decoy and don't interact with him...just leave!

What Should I Do if I Got Arrested for Lewd Conduct?

First of all, don't despair. We can usually get the situation fixed.

If you get detained for Penal Code 647(a) Lewd Conduct in Public, sometimes the police will just give you a citation to appear in court. Other times they will arrest you, fingerprint you and book you before releasing you with the court citation.

In either case, call us right away. Usually there's a delay between the arrest and when the D.A. reviews the case and files formal charges. Sometimes we can meet with the D.A.s during this intervening period and persuade them not to file charges (i.e. to "reject" the case).

Lewd conduct is a misdemeanor offense. The penalties and sentencing for PC 647(a) can include probation, fines, counseling, an AIDS test, an order to stay away from the location, and sometimes even jail. It does not require you to register as a sex offender. But a conviction will go on your permanent criminal record.

Because it's a misdemeanor, California criminal defense lawyers can go to court on your behalf. This means if you hire an attorney, you'll probably never have to appear in court.

When we go to court, we obtain the police reports and all the evidence in the prosecutor's possession. Usually we inspect the location, check the background of the arresting officers, and try to get statements from others arrested as part of the same operation. We identify where the prosecution's case falls apart, and try to convince them to jettison the case.

We see many lewd and dissolute conduct in public cases get dismissed. Sometimes the client agrees to do a class, and upon completion of it the D.A. agrees to drop the case altogether. Other times the D.A. agrees to reduce the charges to a lesser offense, such as Penal Code 415 Disturbing the Peace or Penal Code 602 Trespassing (neither of which carry the stigma of a lewd conduct conviction).

If all negotiations with the prosecutor fail, we go to jury trial. Most clients hope to avoid trial, because of the stress and embarrassment associated with it. But we find that in most Penal Code 647(a) trials, it's possible to get a "not guilty" verdict.

Does California Entrapment Law Provide a Legal Defense to Lewd Conduct in Public?

California entrapment laws forbid the police from inducing a "normally law-abiding citizen" to commit a crime that he was not otherwise predisposed to commit. This includes using pressure, fraud, harassment, threats or flattery to compel a person to engage in criminal activity. Merely initiating criminal activity, or presenting an opportunity to commit a crime, generally does not constitute entrapment.

Whether a Penal Code 647(a) pc lewd conduct sting operation amounts to entrapment depends of the facts. Suppose Tom enters a bathroom and the decoy officer smiles at him and makes a motion like he wants to masturbate. Tom responds by dropping his pants and stroking his penis. The officer's conduct is probably not sufficient provocation to support an entrapment defense.

On the other hand, suppose Tom ignores the decoy at first. But the decoy persists with heavy cruising and provocative gestures. The decoy tells Tom "You're hot" and "Let's mess around...I'll watch to make sure no one is coming." This more aggressive behavior probably crosses the line into police entrapment.

Regardless of whether California entrapment laws apply, however, the most basic question is always whether your actions even amounted to Penal Code 647(a) Lewd Conduct in Public. If there were no third parties there who appeared likely to be offended, then it simply wasn't a crime.

"Indecent Exposure" as a Companion Charge to Lewd Conduct

Sometimes prosecutors will "tag on" a charge of Penal Code 314 Indecent Exposure. Under California law, "indecent exposure" is willfully exposing one's genitals in the presence of third parties who would be offended.for the purpose of gratifying oneself or sexually offending the other people.

As with lewd conduct, most indecent exposure charges are bogus and can be successfully defended by good California criminal defense attorneys. But a conviction under Penal Code 314 is especially devastating because it, unlike lewd conduct in public, does require you to register as a sex offender.

"Trespass" and "Disturbing the Peace" as Plea Bargains in Lewd Conduct Cases

Even if the prosecutor is unwilling to dismiss the lewd conduct charge outright, often he/she is willing to reduce it to a lesser offense in exchange for a plea agreement. Most often, the plea bargain is for "Trespassing" under Penal Code 602 or "Disturbing the Peace" under Penal Code 415.

Under Penal Code 602, California Trespassing law makes it illegal to enter someone's property without permission. Under Penal Code 415, California Disturbing the Peace law makes it illegal to fight another person in public, use fighting words in public, or make unreasonable noise so as to disturb your neighbors. Either of these can be charged as a misdemeanor or an infraction.

Usually, these two offenses have little or nothing to do with a lewd conduct in public case. But defendants often plea bargain for them because they carry lesser penalties than Penal Code 647(a), and because they carry less of a stigma on one's criminal record. Indeed, if one pleads to the infraction version of these offenses, it does not create a criminal record at all.

To learn about Nevada lewd act laws, go to our information page on Nevada lewd act laws.

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ⁱCalifornia Penal Code 647(a).

ⁱⁱCalifornia Criminal Jury Instructions (CALCRIM) 1161.

ⁱⁱⁱPeople v. Rylaarsdam (1982) 130 Cal.App.3d Supp. at p. 11, 181 Cal.Rptr. 723.

^ivPryor v. Municipal Court (1979) 25 Cal.3d at p. 255, 158 Cal.Rptr. 330, 599 P.2d 636.

^vSee People v. Rylaarsdam, supra.

^viPeople v. Norris (Super. 1978) 152 Cal.Rptr. 134, 88 Cal.App.3d Supp. 32

^viiPeople v. Perez (App. 2 Dist. 1976) 134 Cal.Rptr. 338, 64 Cal.App.3d 297.

^viiiPeople v. Blatt (App. 2 Dist. 1972) 99 Cal.Rptr. 855, 23 Cal.App.3d 148.

^ixSteinke v. Municipal Court for San Jose-Milpitas-Alviso Judicial Dist. (App. 1 Dist. 1969) 82 Cal.Rptr. 789, 2 Cal.App.3d 569.

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