Penal Code 647(b) PC is the statute that makes it illegal throughout the state of California to engage in or to solicit prostitution. This is defined as offering to pay or accept money or something of value in exchange for a sexual act. The law applies both to prostitutes and to customers or “johns.” A conviction is a misdemeanor that carries a penalty of up to 6 months in county jail and a fine of up to $1000.00.
The law applies to prostitutes and customers
Under California law, when a prostitute and a customer engage in sexual intercourse or lewd acts, both are engaged in an “act of prostitution.” 1 2 3 4
Thus the law applies to both prostitutes and their customers (also known as “johns”).
Some prostitutes also have middlemen, known generally as “pimps.”
Pimps are more likely to be arrested for violating:
- California’s “pimping and pandering” laws, Penal Code 266h and Penal Code 266i,5 or
- “Supervising or aiding” a prostitute, Penal Code 653.23 PC6
- A man offers drugs to a woman in exchange for a “blow job” (even if she is not a prostitute and she says “no”).
- A woman allows a man to fondle her breasts in exchange for money.
- A police officer accepts a woman’s offer to have sex in exchange for not writing her a traffic ticket.
Prostituting and soliciting are both misdemeanor offenses in California.7
For a first prostitution or solicitation offense, potential penalties can include:
- Up to six (6) months in county jail time, and/or
- A fine of up to one thousand dollars ($1,000).8
Penal Code 647(b) is a “priorable” offense. This means punishment for prostitution/solicitation increases with each subsequent conviction as follows:
- Second offense: a mandatory minimum of forty-five (45) days in a county jail.9
- Third or subsequent offense: a mandatory minimum of ninety (90) days in a county jail.10
Additional penalty if committed in a car
Both prostitutes and Johns face a potential additional penalty if:
- The defendant was in a vehicle at the time of the crime, AND
- The defendant was within 1,000 feet of a residence.
These additional penalties can include:
- A suspended driver’s license for up to 30days,11 or
- A restricted driver’s license for up 6 months.12
No mandatory sex offender registration
A conviction for prostituting or soliciting does not trigger automatic registration as a California sex offender.
However, a judge has the discretion to order a defendant to register whenever a crime is “the result of sexual compulsion or for purposes of sexual gratification.13
As a practical matter, 647 b PC convictions seldom result in sex offender registration.
Every prostitution and solicitation case is unique. But some of the most common legal defenses we use in these cases include:
- Police entrapment,
- Lack of trustworthy evidence,
- Insufficient evidence, and/or
- Mistake of fact / lack of intent to prostitute
To help you better understand California prostitution and soliciting law, our criminal defense lawyers will discuss the following, below:
- 1. How does California law define prostitution and solicitation?
- 2. What are the penalties and consequences?
- 3. Does 647 b PC require sex offender registration?
- 4. How can the charges be disputed?
- 5. What crimes are related?
Penal Code 647(b) PC defines “prostitution” as the exchange of money or other consideration (such as goods or services) for sex or lewd conduct.14 But the crime may be complete even if the proposed conduct never actually took place.
Specifically, the section prohibits three types of acts:
- Engaging in an act of prostitution,
- Soliciting an act of prostitution, or
- Agreeing to engage in an act of prostitution.15
Which specific behavior is charged determines what facts (“elements of the crime”) the prosecution must prove in court.
Let’s take a closer look at each of these specific situations.
A person engages in prostitution if he or she:
- willfully engaged in sexual intercourse or a lewd act with someone,
- in exchange for money or other compensation.16
“Willfully” means the defendant engaged in the act willingly or on purpose.17 It does not require an intent to break the law.18
A “lewd” act is defined as:
- any act that involves touching the genitals, buttocks, or female breast of another person,
- with the specific intent to arouse or gratify someone sexually.19
In the state of California, a person solicits prostitution when he or she:
- requests that another person engage in an act of prostitution; and
- with the intention to engage in an act of prostitution with the other person.20
Depending on who initiated the interaction, prosecutors might charge this offense against either the prostitute or the customer.21
Proof of intent required
For a defendant to be guilty of solicitation, he or she must have intended to engage in an act of prostitution.
Intent is typically shown by an offer to pay money or other consideration (often drugs) in exchange for sex.22
However, it is not necessary that the other party shared the same intent.23 For example, a person could still be charged with solicitation even if:
- The person solicited was not a prostitute;
- The “prostitute” was really an undercover decoy officer; or
- The person solicited was a prostitute who didn’t agree to the proposed transaction.
Intent to solicit prostitution must be clear
Some acts may look bad but are potentially innocent. These acts are not – at least, by themselves – proof of the intent to solicit prostitution.
Examples of such acts include:
- Being present in a known area of prostitution,
- Waving to a passing vehicle,
- Nodding to a stranger, or
- Standing on a street corner in a miniskirt.24
Example: Katrina is a police officer participating in an undercover prostitution sting operation. She puts on provocative clothing and stands on a street corner where prostitutes are known to gather.
Frank drives by Katrina several times and then pulls over. He offers Katrina $200 to have sex with him and shows her the cash. Frank’s actions clearly indicate his intent to initiate a prostitution transaction.
But… let’s say that Frank had just propositioned Katrina on a dare from his friends. Since he didn’t intend to act in furtherance of trading sex for money, he would not be guilty of solicitation.
Someone can violate PC 647(b) merely by agreeing to engage in an act of prostitution – but only if he or she means to follow through on it.
To prove this, the prosecutor must establish that:
- The defendant agreed to engage in an act of prostitution with someone else;
- The defendant intended to engage in an act of prostitution with that person; and
- In addition to agreeing, the defendant did something to further the commission of an act of prostitution.25
This variation of the statute is the mirror image of soliciting prostitution.
Someone who makes the offer to engage in a sex act can be charged with solicitation. But the person who gives acceptance of an offer will be charged with agreeing to engage in an act of prostitution.
More than a verbal offer is required
To be guilty of “agreeing to engage in an act of prostitution,” a defendant must have done something to further the commission of an act of prostitution.26
This extra “something” is more than just accepting a solicitation.27
- Handing over the agreed-upon payment,
- Withdrawing money from an ATM in order to pay the other person,
- Driving to an agreed-upon location where the sexual activity will take place,28 or
- Instructing a customer who has accepted a solicitation to undress.29
Children under age 18 cannot be prosecuted for prostitution in California.30
SB 1322 amended California PC 647b so that a child under 18 who commits an act of prostitution is considered a “commercially sexually exploited child.” 32
The child will not go to juvenile hall or jail. Instead, the child may be adjudged a dependent child of the court and taken into temporary custody.33
If taken into temporary custody, the court will order the child placed for up to 15 days with a family member or an emergency shelter.34
Violation of 647 b PC is always a misdemeanor.35 The punishment depends on:
- whether it is a first or subsequent offense, and
- where the violation took place.
Punishment for a first offense can include:
- Up to six (6) months in county jail, and/or
- A fine of up to one thousand dollars ($1,000).36
Prostitution and solicitation are “priorable” offenses. This means that the punishment increases with each subsequent conviction.
Penalties for a second or subsequent violation of California’s prostituting/soliciting law include:
- Second offense: a mandatory minimum of forty-five (45) days in a county jail.37
- Third or subsequent offense: a mandatory minimum of ninety (90) days in a county jail.38
Penalties for prostituting or soliciting in California increase if the defendant committed the crime:
- while using a car, AND
- within 1,000 feet of a residence39
In addition to ordering a jail sentence and/or a fine, the court may:
- Suspend the defendant’s driver’s license for up to thirty (30) days,40 or
- Issue the defendant a restricted license for up to six (6) months.41
A restricted license allows the defendant to drive to and from work or school. It also permits driving for work defendant If driving is a necessary part of the defendant’s employment.42
Local jurisdictions may impose additional penalties for prostituting and/or soliciting
For instance, if a defendant is convicted in Los Angeles for prostitution or while in a car, the government may seize and forfeit the defendant’s vehicle.43 This is a form of California asset forfeiture and is in addition to the other penalties allowed by law.
Defenses to local prostitution and solicitation laws are generally the same as legal defenses to PC 647b.
Neither prostitution nor solicitation requires mandatory sex offender registration under California PC 290.
However, a judge has the discretion to require registration if a criminal offense was “the result of sexual compulsion or for sexual gratification.”44
This description potentially applies to almost any solicitation conviction. As a practical matter, however, sex offender registration is rarely, if ever, imposed in connection with California prostitution or solicitation cases.
There is no “best legal defense” to prostitution or solicitation charges. But there are several defenses that are asserted frequently. These include:
- Lack of trustworthy evidence,
- Insufficient evidence, and/or
- Mistake of fact / lack of intent.
In addition, there are a number of “charge reductions” a defendant might plead guilty to that don’t carry the stigma of a conviction for prostitution. An experienced California sex crimes lawyer can often negotiate these as part of a plea bargain.
Let’s take a closer look at these defenses and charge reductions PC 647(b) charges.
Entrapment occurs when a police officer engages in conduct that would cause a normally law-abiding person to commit a crime.45 It requires something more, however, than merely giving someone an opportunity to commit a crime.46
Depending on the circumstances, behaviors that might constitute entrapment include:
- Flattery or coaxing,
- Repeated and insistent requests,
- An appeal to friendship or sympathy,
- A guarantee that an act is not illegal or that it will go undetected,
- An offer of an extraordinary beneﬁt, or
- Other similar conduct.47
The use of “decoy” officers
The entrapment defense often arises when the defendant is busted in an undercover sting operation.
In a typical sting, a “decoy” officer poses as a prostitute or a potential customer. The decoy then tries to entice the suspect into making an offer for an act of prostitution.
Unfortunately, many of these decoy cops cross the line into police entrapment. They lure otherwise-law-abiding citizens with unfair flattery, promises or enticements.
Example: While on a business trip, Ted meets “Stacy” at the hotel bar. Stacy is really an undercover officer working a prostitution sting. She comes on to him and he invites her to his hotel room. Once there, Stacy starts telling Ted all the things she would like to do him. Once he is worked up, she tells him she needs $500 for her mother’s surgery. She says she would be very, very appreciative if Ted would help her out.
Ted would never have hired a prostitute on his own initiative. But based on Stacy’s actions, he agrees to give her $500. Stacy then discloses that she’s an undercover cop and arrests him.
Entrapment is an affirmative defense
Entrapment is an affirmative defense in California. That means that once the defendant claims he or she was entrapped, the burden of proof shifts to the defendant to prove it.
Fortunately, entrapment does not need to be proved “beyond a reasonable doubt.” The defendant must simply establish the entrapment by a “preponderance of the evidence.”48
“Preponderance of the evidence” means it is “more likely than not” that the police engaged in entrapment. If the defendant can establish this, he or she must be found “not guilty.”
Lack of trustworthy evidence is a common defense to charges under Penal Code 647(b). This is especially true when the alleged agreement to engage in prostitution was not recorded.
This raises a red flag for jurors. If the officer was wired, why didn’t he/she record the conversation? What is the officer hiding?
Without hearing the conversation itself, many jurors are hesitant to conclude guilt beyond a reasonable doubt.
“Insufficient evidence” is a slightly different defense than untrustworthy evidence. In this case, the evidence that exists might be trustworthy, but it might be only part of what the prosecution needs to prove.
Take, for instance, our example of Ted and Stacy from section 3.1, above.
Ted might have agreed to have sex with Stacy. He might even have given her $500. But the prosecution needs to prove intent. Perhaps Ted believed the story “Stacy” told about her mother’s surgery. In other words, he gave her the money, but it wasn’t intended as an exchange for sex.
For someone to be guilty of prostitution or solicitation, he or she must have specifically intended to engage in a sex act. In some cases, a defendant may have made what’s known as a “mistake of fact” under California law.
Example: Bruce falls asleep in a bad position while flying out-of-town for a business trip. Afterwards, his neck really hurts.
When he arrives at his hotel, he asks for a recommendation to a massage parlor. He has no idea that the clerk thinks he asking for a referral to a known place of prostitution.
The most common charge reductions that a defendant might get as part of a plea bargain are:
- Disturbing the peace — California Penal Code 415 PC,
- Criminal trespass — California Penal Code 602 PC, or
- Lewd conduct in public – California Penal Code 647(a).
Neither disturbing the peace nor criminal trespass really has anything to do with prostitution or solicitation.
But they flag for law enforcement agencies that someone may have originally faced a prostitution charge. At the same time, they are less serious offenses that let a defendant avoid the stigma of a prostitution or solicitation conviction.49
As a result, these charges represent a compromise that often suits both the prosecution and the defendant.
Alternatively, the charge might get reduced to Penal Code 647(a), lewd conduct in public (discussed in section 5.3, below).
Lewd conduct in public is a less serious offense than prostitution or solicitation. And unlike 647(b), it isn’t a priorable offense.50
“Pimping” per 266h PC is the crime of knowingly living in whole or in part off of a prostitute’s pay.51 It can – but does not have to – include taking part of a prostitute’s earnings in exchange for finding customers for him or her.
“Pandering” per 266i PC can refer either to:
- recruiting or encouraging someone to become or remain a prostitute, or
- making another person available for the purpose of prostitution.52
Pimping and pandering are felonies in California. Conviction on either of these crimes carries a possible penalty of three (3), four (4), or six (6) years in the California state prison.
Closely related to the crimes of pimping and pandering is Penal Code 653.23, “supervising or aiding a prostitute.”
Basically, anyone who helps someone else commit prostitution or solicitation in any way can be accused of this crime.
For example, if you drive a friend to a location where he plans to hire a prostitute, you might be charged with aiding in prostitution.
Supervising or aiding a prostitute is a misdemeanor and carries the same penalties as prostitution or solicitation:
- Up to six (6) months in county jail, and/or
- A fine of up to one thousand dollars ($1,000).
Penal Code 647(a) PC is California‘s “lewd conduct in public” law. PC 647(a) makes it a misdemeanor to engage in a lewd act in public or to solicit someone else to do so.
Streetwalkers and their potential customers are often charged with both sections.
As Beverly Hills sex crimes defense attorney John Murray53 explains:
“Cops often set up surveillance post to ‘watch’ known prostitutes who work at public intersections. As soon as they see a ‘john’ make contact, they follow the suspects. Once the suspects engage in an act of prostitution (often in a locked car), the police arrest both parties under Penal Code 647(a) and 647(b).”
Since the police are only watching from a distance, lewd conduct charges can be difficult to prove.
But because it is a less serious offense, it can sometimes be a desirable plea bargain.
Penal Code 653.22 PC is California’s law against loitering for the purpose of prostituting. A defendant violates PC 653.22 when he or she loiters in a public place with the specific intent to prostitute.54
The California legislature added this section to help police combat selling sex. It is often charged when there is no evidence of a specific act of prostitution.
Example: The police observe a woman standing on a street corner well-known for prostitution. She is scantily clad and waving to cars as they pass. This alone is probably sufficient to trigger an arrest for loitering to commit prostitution.
Penal Code 653.22 is a misdemeanor. Potential penalties can include:
- Up to six months of jail, and/or
- A fine of up to one thousand dollars ($1,000).55
Penal Code 314 PC, California’s indecent exposure law, prohibits “exposing” one’s genitals in public.56
However, in order to be guilty under PC 314, the defendant must have intended to direct public attention to his or her genitals.57
Many prostitution acts take place in private cars, hotel rooms, or remote, secluded areas. So, while it may seem that an act of prostitution could additionally trigger this charge, this typically wouldn’t be the case.
Indecent exposure is generally a misdemeanor punishable by up to six months in jail.
Under California Penal Code 261 PC “rape” is defined as nonconsensual sexual intercourse.58
Per PC 261, a prostitute has the right to ask a customer to stop at any time. If the customer refuses, he could be charged with both prostitution and rape.
Rape is a serious felony in California. Punishment for rape can include:
- Three (3), six (6) or eight (8) years in California state prison,59 or
- If the alleged victim was a minor, seven (7) to thirteen (13) years in prison.60
For additional help…
We have local criminal law offices in Los Angeles County, San Diego, Riverside, Orange County, Pomona, Pasadena, Santa Monica, San Bernardino, Glendale, Torrance, Newport Beach, Long Beach, Ventura, San Jose, the San Francisco Bay area, and several nearby cities to conveniently serve you.
Our Las Vegas and Reno sex crimes lawyers can also help if you have been charged under Nevada’s prostitution and solicitation laws, NRS 201.354.
Our Denver sex crimes lawyers can also help if you have been charged under Colorado’s prostituting and soliciting laws, CRS 18-7-201.
¿Habla español? Visite nuestro sitio Web en español sobre el delito de la prostitución en California.
- California Penal Code Section 647(b). See also CALCRIM 1153. Prostitution: Engaging in Act: “To prove that the defendant is guilty of this crime, the People must prove that the defendant willfully engaged in sexual intercourse or a lewd act with someone else in exchange for money [or other compensation]. [A lewd act means touching the genitals, buttocks, or female breast of either the prostitute or customer with some part of the other person’s body for the purpose of sexual arousal or gratiﬁcation of either person].” PC 647(b), endnote 1.
- PC 647(b). See also CALCRIM 1154. Prostitution: Soliciting Another and CALCRIM 1155. Prostitution: Agreeing to Engage in Act.
- PC 647 PC.
- Same. See also CALCRIM 1154, endnote 2: “Under the law, when a prostitute and a customer engage in sexual intercourse or lewd acts, both of them are engaged in an act of prostitution.”
- PC 266h and PC 266i, respectively. See also CALCRIM 1150. Pimping and CALCRIM 1151. Pandering.
- PC 653.23(a): “It is unlawful for any person to … (1) Direct, supervise, recruit, or otherwise aid another person in the commission of a violation of subdivision (b) of Section 647 or …(2) Collect or receive all or part of the proceeds earned from an act or acts of prostitution committed by another person in violation of subdivision (b) of Section 647…”
- PC 647(b).
- PC 647(k).
- PC 647(b).
- California Vehicle Code Section 13201.5(c).
- Penal Code 290.005(b): “Any person ordered by any other court, including any state, federal, or military court, to register as a sex offender for any offense, if the court found at the time of conviction or sentencing that the person committed the offense as a result of sexual compulsion or for purposes of sexual gratification.”
- California PC 647(b), endnote 1. See also CALCRIM 1154, endnote 2.
- CALCRIM 1153, endnote 1.
- PC 7(1): “The word ‘willfully,’ when applied to the intent with which an act is done or omitted, implies simply a purpose or willingness to commit the act, or make the omission referred to. It does not require any intent to violate law, or to injure another, or to acquire any advantage.”
- CALCRIM 1153, endnote 1.
- CALCRIM 1154, endnote 2.
- Leffel v. Municipal Court (1976) 54 Cal.App.3d 569.
- People v. Love (1980) 111 Cal.App.3d Supp. 1.
- PC 647(b).
- In re White (1979) 97 Cal.App.3d 141.
- CALCRIM 1155. Prostitution: Agreeing to Engage in Act.
- Kim v. Superior Court (2006) 136 Cal.App.4th 937.
- In re Cheri T. (1999) 70 Cal.App.4th 1400.
- Kim v. Superior Court (2006), endnote 27.
- PC 647(b)(5)
- See California Legislative Counsel’s Digest of Senate Bill 1322 (linked to in text).
- Same. See also Welfare and Institutions Code 300(b)(2).
- Welfare and Institutions Code 305.
- Welfare and Institutions Code 319(f)(1)(A).
- PC 647(b).
- PC 19: “Except in cases where a different punishment is prescribed by any law of this state, every offense declared to be a misdemeanor is punishable by imprisonment in the county jail not exceeding six months, or by fine not exceeding one thousand dollars ($1,000), or by both.”
- PC 647(k).
- Vehicle Code Section 13201.5(c), endnote 10.
- Los Angeles Municipal Code 41.70 — Nuisance vehicles – Prostitution.
- CALCRIM 3408. Entrapment.
- People v. Barraza (1979) 23 Cal.3d 675.
- CALCRIM 3408. Entrapment, endnote 45.
- See California Penal Code 415.
- See Penal Code 647 PC — Disorderly Conduct.
- Penal Code 266h. See also CALCRIM 1150. Pimping
- PC 266i. See also CALCRIM 1151. Pandering.
- Beverly Hills sex crimes defense attorney John Murray is a seasoned criminal defense lawyer and featured legal expert commentator on Fox News. He defends those accused of solicitation throughout Los Angeles and Ventura counties.
- PC 653.22(a). See also CALCRIM 1156. Loitering: For Prostitution.
- PC 653.22(a).
- California PC 314 PC.
- CALCRIM 1160. Indecent Exposure.
- PC 261(a).
- PC 264(a).
- PC 264(c).