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How to beat a solicitation charge - 3 legal strategies

Posted by Neil Shouse | Mar 27, 2020 | 0 Comments

There are 3 common strategies for how to beat a solicitation charge. These include asserting that the police engaged in illegal entrapment, showing the evidence to be insufficient to support a conviction, and attacking the arresting officers' credibility.

Each of these strategies can undermine the prosecutor's case. It can prevent them from proving the charge beyond a reasonable doubt.

lady of the night solicitation
Solicitation is the crime of requesting someone to engage in an act of prostitution.

What is a charge of solicitation?

Solicitation is the crime of requesting someone to engage in an act of prostitution. In California, it is prohibited by Penal Code 647b PC.

In order to prove a case of prostitution, prosecutors have to show:

  1. you requested someone to engage in an act of prostitution,
  2. you intended to engage in prostitution with that person, and
  3. the other person received that request.1

An act of prostitution is sexual intercourse or a lewd act. It is done in exchange for money or other compensation.2

A lewd act is physical contact of a sexual body part. It has to be done for the purpose of sexual arousal.3

The prosecutor has the burden of proving their case of solicitation. They have to prove this beyond a reasonable doubt.

Is entrapment a defense?

Entrapment can be a strong defense to a charge of solicitation.

Police entrap people by causing them to commit a crime.4 It involves pushing you into committing a crime that you would not have done, otherwise.

Examples of police entrapment include:

  • badgering,
  • persuading someone to commit a crime through coaxing or flattery,
  • repeated and insistent requests,
  • appealing to friendship or sympathy,
  • making the crime strangely attractive or lucrative,
  • guaranteeing that the conduct is not illegal, and
  • promising that you cannot get caught.5

Entrapment is an affirmative defense, though. Defendants accused of solicitation have to raise the defense. They have to prove entrapment by a preponderance of the evidence.6

Example: Wendy is an undercover police officer. She poses as a prostitute. She tries to get Tom to solicit her. Wendy appeals to Tom's sympathy. She tells him the money will pay for her mother's life-saving surgery. Tom would not have hired a prostitute, had it not been for this claim.

When is insufficient evidence a defense?

Insufficient evidence can be a strong defense. When defendants invoke this defense, they argue that law enforcement has not proven at least one element of its case.

The prosecutor has to prove all the elements of solicitation. They have to prove these elements beyond a reasonable doubt. If they leave out one of these elements, their evidence can be insufficient.

The most common missing element is intent. There has to be an intent to engage in an act of prostitution. Without that intent, you are not liable for solicitation. If the prosecutor fails to show this intent, you can argue the evidence is insufficient for a conviction.

Example: Wendy appealed to Tom's sympathies and Tom paid her. Tom is arrested and charged with solicitation. He can argue there is insufficient evidence to prove his intent. He can argue that he was just giving her money for her mother's surgery.

Can I attack the officer's credibility?

Solicitation charges rely on the testimony of police officers. Undermining their credibility can be a good defense strategy.

This defense can be an option when the police did not record the incident. These cases can devolve into conflicting testimony about what happened. The officer's inconsistent statements can undermine their credibility. You can highlight them in your defense. You can point to differences between the written report and the officer's statements. You can even use prior solicitation arrests to undermine their statements.

Example: Wendy insists that Tom offered to pay her for sex. Tom says he was only offering her money for her mother's treatment. The written report says that there was a tape recording of the interaction. Wendy says that it “broke.”

What are the penalties for a conviction?

A conviction for solicitation is a misdemeanor. It is priorable: Later convictions will carry higher penalties.

For a first offense, the penalties are up to:

  • 6 months in county jail, and/or
  • $1,000 in fines.7

A second conviction requires a mandatory minimum of 45 days in jail.8

A third or subsequent conviction carries a mandatory minimum of 90 days in jail.9

A conviction can even hurt your right to drive. This can happen if the offense happened:

  • in a car, and
  • within 1,000 feet of a residence.

These additional penalties include:

  • a license suspension of up to 30 days,10 or
  • a license restriction for up to 6 months.11

Legal References:

  1. California Criminal Jury Instructions (CALCRIM) 1154.

  2. California Penal Code 647(b) PC. See also People v. Hill, 103 Cal.App.3d 525 (1980).

  3. CALCRIM 1154. See also Pryor v. Municipal Court, 599 P.2d 636 (1979).

  4. CALCRIM 3408.

  5. CALCRIM 3408.

  6. People v. McIntyre, 222 Cal.App.3d 229 (1990).

  7. California Penal Code 647(b) PC.

  8. California Penal Code 647(k) PC.

  9. California Penal Code 647(k) PC.

  10. California Penal Code 647(b) PC.

  11. California Vehicle Code 13201.5(c).

About the Author

Neil Shouse

A former Los Angeles prosecutor, attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT). He has been featured on CNN, Good Morning America, Dr Phil, Court TV, The Today Show and Court TV. Mr Shouse has been recognized by the National Trial Lawyers as one of the Top 100 Criminal and Top 100 Civil Attorneys.

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