Penal Code 653.22 PC - Loitering for Prostitution

Updated


Under Penal Code 653.22 PC, it is a crime in California to loiter in a public place for the purpose of prostitution. This section allows police to arrest someone for intending to solicit or engage in prostitution, even if the person never actually does so.

These are easy arrests to make because officers do not actually have to catch someone in a prostitution transaction. Thus, it easy for an innocent person to find themselves accused.

Examples

  • A woman walks back and forth on a street where all businesses are closed for the night. She approaches several cars with male drivers for short conversations.
  • A young woman in revealing clothing sits at a bus stop for several minutes but doesn't get on the bus when it arrives.  She waves at passing cars with male drivers.
  • A minor female walks slowly through an area known for prostitution activity.  She is with another woman who has a history of prostitution arrests. The two women are paying close attention to cars passing by.

Defenses

The good news is that there are effective legal defenses.  Most important is the defense that there is not enough evidence that you actually intended to engage in prostitution. Entrapment is another potential defense.

Penalties

Loitering with the intent to engage in prostitution is a misdemeanor in California. 1 2 This means that if you are convicted, you may be imprisoned in the county jail for no more than six months, fined no more than one thousand dollars ($1,000), or both.3

In this article, our California criminal defense attorneys4 discuss the following:

If you would like more information after reading this article, we invite you to contact us at Shouse Law Group.

1. What does it mean to loiter for prostitution?

In order to convict you under 653.22 PC, the prosecutor must prove the following facts (also known as "elements" of the crime):

  1. you were loitering,
  2. you did so in a public place, and
  3. you specifically intended to commit prostitution.5

Let's take a closer look at each of these elements in order to better understand their meanings.

1.1. Loitering

no loitering sign
Loitering is defined as delaying or lingering in a place without a lawful purpose and for the purpose of committing a crime if the opportunity arises

Loitering is defined as delaying or lingering in a place without a lawful purpose and for the purpose of committing a crime if the opportunity arises.6

So you are not loitering if you are only passing through a place. You have to stay there for some amount of time.

Also, you cannot be convicted of loitering for prostitution if you can show you had another reason for being in the place. For example, if you are in a bar to drink beer with friends, you are not loitering.

1.2. Public place

It is also only a crime if you were a public place.

A public place is defined as any area "open to the public." It can include an alley, plaza, park, driveway, or parking lot. Both moving and parked cars are considered public places.7

Bars, restaurants, strip clubs, movie theaters, and other buildings open to the general public are also public places. The doorways and entrances to these buildings are public places. So are the grounds surrounding them.8

So, for example, a sidewalk is a public place. So is the drive-through of a fast-food restaurant. Driving around in your car can be loitering in a public place.

However, you cannot be convicted for behavior that took place at a party in someone's private house.

1.3. Intent to commit prostitution

You can only be convicted under Penal Code 653.22 PC if the prosecutor can show that you intended to engage in prostitution.

Prostitution is defined as sexual conduct for money or some other kind of payment. It does not include sexual conduct that is part of a stage performance, play, or other entertainment open to the public (like a strip club performance). 9

2. How can the state prove a person intended to commit prostitution?

This is the trickiest part of this crime-how do police or a judge or jury know what you intended? Los Angeles and San Bernardino County criminal defense attorney Neil Shouse10 says:

"It is all too common for cops to misinterpret the actions of someone who was merely in the wrong place at the wrong time. An experienced California defense attorney can help you find the weaknesses in a prosecutor's argument about whether a defendant actually intended to commit prostitution."

2.1. How intent is shown

You can't be convicted of loitering for prostitution unless you demonstrated intent to commit prostitution. You demonstrate this intent by acting in a manner and under circumstances that openly show that you had the goal of soliciting prostitution, or getting someone else to commit prostitution.11

2.2. Behavior that may show intent

prostitutes loitering by a light pole, a potential violation of 653.22 PC
Penal Code 653.22 PC spells out certain actions that may demonstrate that a person intended to commit prostitution

Penal Code 653.22 PC spells out certain actions that may demonstrate that a person intended to commit prostitution.  These are:

  • The person repeatedly beckons to, stops, engages in conversations with, or tries to stop or engage in conversations with passers-by, in a way that indicates they are soliciting prostitution;
  • The person repeatedly stops or attempts to stop cars by hailing the drivers, waving, or making other gestures, or engages or tries to engage the drivers in conversation, in a way that indicates they are soliciting prostitution;
  • The person circles an area in a motor vehicle and repeatedly beckons to or contacts, or tries to contact or stop, pedestrians or other drivers, in a way that indicates they are soliciting prostitution;
  • The person has engaged in any of the behaviors listed above, or any other behavior that indicates they were soliciting prostitution, within the six (6) months prior to being arrested; or
  • The person has been convicted of loitering for the purpose of engaging in prostitution, or of lewd conduct in public, soliciting lewd conduct, prostitution, or soliciting prostitution, within the past five (5) years.12

Any of these behaviors is more likely to show intent to commit prostitution if it took place in an area that is known for prostitution.13

2.3. Individual determination

But the law is very clear that the circumstances we just listed are not exclusive or determinative.14 This means that you don't have to have done any of those things to be convicted of loitering for prostitution.

Judges and juries can also consider factors other than the ones we listed. For example, they can consider behavior that indicates you committed or solicited prostitution in the past even if this behavior took place more than six (6) months before you were arrested.15

Other behavior that can show that you intended to commit prostitution includes:

  • Giving a fake name or date of birth to a cop if you are questioned;16
  • Being in the company of someone with a history of prostitution offenses;17
  • And even carrying condoms!18

So you see how much discretion police, prosecutors, and judges and juries have in arresting and convicting people for this section. This kind of law opens the door for police to unfairly target certain groups, neighborhoods, or individuals.19

Luckily, the flip side is that you will not necessarily be convicted just because you did any of the things we listed. You can only be convicted if the particular circumstances of your individual case show that you really did intend to commit prostitution.

3. What are some common defenses in a 653.22 PC case?

A conviction for a California sex crime like loitering for prostitution can have terrible repercussions for your career and personal life. But you CAN fight back. There are a number of legal defenses that may apply to Penal Code 653.22, California's law against loitering with intent to commit prostitution. Some of these
California legal defenses are:

3.1. Insufficient evidence that you intended to commit prostitution

As we explained in the previous section, there are lots of factors that can show that you intended to commit prostitution. But the court has to take into account all of the circumstances of your case. There needs to be enough evidence to show that that really was what you intended.

A completely innocent situation can look like loitering with intent to commit prostitution. For example, a female under 21 may have been wearing provocative clothing and making conversation with males walking by because she wanted them to buy her alcohol. Or a woman may have been making eye contact with male drivers of passing cars because she enjoys being flirtatious, or was hoping someone would give her a ride home.

Unfortunately, the law is such that police can arrest someone based on this kind of harmless behavior, especially if it happens in a neighborhood where prostitution often takes place. In theory, you could be convicted for this too, if the court believes the cop's story instead of yours.

Because this law gives so much discretion to police and judges, a skilled criminal defense attorney is incredibly valuable for fighting charges of loitering for prostitution. He or she can help you gather all the important facts and tell your story in the most convincing way possible.

3.2. Entrapment

Entrapment happens when a police officer induces a normally law-abiding person to commit a crime they otherwise would not have committed. Arrests often made by officers operating undercover. This can trigger the entrapment defense.

Entrapment occurs only when a police officer behaves in an overbearing way-for example, by applying pressure, harassment, fraud, flattery, or threats.20

Here is an example:

Maria is nineteen and has been drinking in a bar in a neighborhood where prostitutes sometimes hang out. She is smoking a cigarette outside the bar.

An undercover cop named Frank pulls up in an expensive car and asks Maria if she is working. Maria ignores him. Frank tells her that he would like to hire her and would pay her two hundred dollars for half an hour. She continues to ignore him and goes back into the bar.

Later, Maria comes outside for another cigarette. Frank's car appears again. He tells her she's the most beautiful girl he's ever seen on this street and that he would pay her five hundred dollars for half an hour. Frank shows her a wad of bills. Maria tells him he's wrong about her.

Maria thinks about Frank's extravagant offer while she is at the bar. After the bar closes, she stands on the street outside for a while to see if he will come back. When he does, he arrests her for loitering with intent to commit prostitution.

Frank applied extreme pressure to Maria by offering her a large amount of money. He also used flattery to spark her interest. Maria would not have considered loitering after the bar closed if he had not used these tactics.

This is a classic example of illegal entrapment. With the help of a California criminal defense lawyer who understands the entrapment defense, Maria may be able to avoid conviction.

4. What are the consequences of a conviction?

4.1. Misdemeanor penalties

Penal Code 653.22 PC is a California misdemeanor.21 If you are convicted of loitering for the purpose of committing prostitution, you face a maximum one thousand dollar ($1,000) fine and up to six (6) months in a county jail.22

The exact sentence will be determined by the judge.

4.2. Transit district prohibition orders

If you are convicted of loitering with the intent of engaging in prostitution in the Sacramento, Fresno, or San Francisco Bay Area regions, you could be prohibited from using certain public transportation facilities for a period of time. The transit authority must give you notice and an opportunity to dispute this order before it goes into effect.23

5. What similar crimes could a person be charged with?

There are certain other crimes that are often charged along with Penal Code 653.22 PC, loitering with intent to commit prostitution.  These include:

5.1. Prostitution and solicitation of prostitution

Penal Code 647(b) PC prohibits prostitution and solicitation of prostitution in California.

Sometimes prosecutors will tack a charge of loitering for prostitution onto a prostitution or solicitation charge, because the loitering charges may be easier to prove.

Also, as we explained above, you are more likely to be convicted of loitering for prostitution if you have been convicted of prostitution or solicitation of prostitution in the past five (5) years.

You can be convicted of prostitution if you

  1. engage in an act of prostitution, and
  2. do so willfully, which means deliberately or on purpose.24

In order to convict you of soliciting prosecution, the prosecutor must prove that you

  1. solicited another person to engage in an act of prostitution, and
  2. did so with the specific intent of engaging in prostitution.25

Prostitution and soliciting for prostitution are misdemeanors in California.

5.2. Lewd conduct in public

A prior conviction for A prior conviction for lewd conduct in public under Penal Code 647(a) PC can also make it more likely that you will be convicted of loitering for prostitution. The same is true of a prior conviction for solicitation of lewd conduct.

prostitute and john getting close by a car
A prior conviction for PC 647(a) PC can also make it more likely you will be convicted of loitering for prostitution.

Lewd conduct in public means touching your or another person's private parts for sexual arousal, when you know or reasonably should know that there is someone else nearby who would take offense.

Lewd conduct and solicitation of lewd conduct are misdemeanors in California.

5.3. Local ordinances

When it passed Penal Code 653.22, the California legislature made it clear that it did not want to prevent local governments from passing their own laws.26 So city and county governments can impose tougher restrictions and additional punishments (such as forfeiture of property27) on this behavior.

5.4. Loitering to solicit the purchase of alcohol

Penal Code 303a PC, California's law against loitering to solicit the purchase of alcohol, makes it a misdemeanor to loiter outside of an establishment that serves alcohol to be served on the premises (i.e., a bar or restaurant) for the purpose of persuading other patrons to buy you alcohol.28

Some prostitutes find their customers in bars or clubs and initiate the transaction by persuading the customers to buy them drinks. If you are arrested under circumstances like these, you may be able to get charges reduced to PC 303a charges--which are likely to carry a bit less of a stigma on a criminal record.

Call us for help...

If you or loved one is charged and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California. You may also want to visit our page for a general discussion of loitering laws in California.


Legal References:

  1. Penal Code 653.22 PC - Loitering for the purpose of engaging in a prostitution offense.  ("(a) It is unlawful for any person to loiter in any public place with the intent to commit prostitution. This intent is evidenced by acting in a manner and under circumstances which openly demonstrate the purpose of inducing, enticing, or soliciting prostitution, or procuring another to commit prostitution.")

  2. Penal Code 653.26 PC - Violation is misdemeanor. ("A violation of any provision of this chapter is a misdemeanor.")

  3. Penal Code 19 PC  - Punishment for misdemeanor; punishment not otherwise prescribed.  See also California Penal Code 19.2 PC -- Punishment for misdemeanor; maximum confinement. 

  4. Our California criminal defense attorneys have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier.  We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, Sacramento, and several nearby cities.

  5. CALCRIM 1156 - Jury Instruction for Loitering for Prostitution.

  6. Penal Code 653.20 PC  - Definitions. ("(c) 'Loiter' means to delay or linger without a lawful purpose for being on the property and for the purpose of committing a crime as opportunity may be discovered.")

  7. See same, subdivision (b). ("(b) 'Public place' means an area open to the public, or an alley, plaza, park, driveway, or parking lot, or an automobile, whether moving or not, or a building open to the general public, including one which serves food or drink, or provides entertainment, or the doorways and entrances to a building or dwelling, or the grounds enclosing a building or dwelling.")

  8. See same.

  9. See same, subdivision (a). ("a) 'Commit prostitution' means to engage in sexual conduct for money or other consideration, but does not include sexual conduct engaged in as a part of any stage performance, play, or other entertainment open to the public.")

  10. Our San Bernardino and Los Angeles criminal defense lawyers have successfully defended numerous clients charged with California sex crimes, including loitering for prostitution.  We represent clients at a number of locations of the California courts, including the Rancho Cucamonga courthouse, the Fontana courthouse, the Chino courthouse, the Pasadena courthouse, the Burbank courthouse, the Glendale courthouse, the Alhambra courthouse, and the Clara Shortridge Foltz Criminal Justice Center in downtown Los Angeles.

  11. Penal Code 653.22 PC

  12. See same, subdivision (b).  ("(b) Among the circumstances that may be considered in determining whether a person loiters with the intent to commit prostitution are that the person: (1) Repeatedly beckons to, stops, engages in conversations with, or attempts to stop or engage in conversations with passersby, indicative of soliciting for prostitution. (2) Repeatedly stops or attempts to stop motor vehicles by hailing the drivers, waving arms, or making any other bodily gestures, or engages or attempts to engage the drivers or passengers of the motor vehicles in conversation, indicative of soliciting for prostitution. (3) Has been convicted of violating this section, subdivision (a) or (b) of Section 647, or any other offense relating to or involving prostitution, within five years of the arrest under this section. (4) Circles an area in a motor vehicle and repeatedly beckons to, contacts, or attempts to contact or stop pedestrians or other motorists, indicative of soliciting for prostitution. (5) Has engaged, within six months prior to the arrest under this section, in any behavior described in this subdivision, with the exception of paragraph (3), or in any other behavior indicative of prostitution activity.")

    See also Penal Code 647 PC - Disorderly conduct. 

  13. Same. ("(c) The list of circumstances set forth in subdivision (b) is not exclusive. The circumstances set forth in subdivision (b) should be considered particularly salient if they occur in an area that is known for prostitution activity. Any other relevant circumstances may be considered in determining whether a person has the requisite intent. Moreover, no one circumstance or combination of circumstances is in itself determinative of intent. Intent must be determined based on an evaluation of the particular circumstances of each case.")

  14. See same. See also People v. Pulliam (1998) 62 Cal.App.4th 1430, 1436. (The listed conduct "guides but is not dispositive of whether the loiterer possessed the requisite intent.")

  15. See People v. Johnson (2010), Cal.App.2nd - 2010 WL 367525, at §2. ("Penal Code section 653.22 plainly and clearly does not say no evidence of behavior indicative of prostitution activity that occurred more than six months prior to arrest may under any circumstances be introduced.")

  16. See In re J.J. (2009), Cal.App.1st - 2009 WL 4881911, at §7. 

  17. See same, at §7.

  18. See same, at §6. 

  19. Julia Dahl, You say loitering for sex, I say just hanging out, Salon, Aug. 30, 2010 (quoting a New York attorney who "calls loitering for prostitution arrests both 'arbitrary' and 'discriminatory.'").

  20. See People v. West, (1956) 139 Cal.App.2d Supp. 923, 924. ("Entrapment is the conception and planning of an offense by an officer and his procurement of its commission by one who would not have perpetrated it except for the trickery, persuasion, or fraud of the officer. Persuasion or allurement must be used to entrap.")

  21. Penal Code 653.26 PC - Violation is misdemeanor. ("A violation of any provision of this chapter is a misdemeanor.")

  22. Penal Code 19 PC  - Punishment for misdemeanor; punishment not otherwise prescribed. 

  23. Public Utilities Code 99171 

  24. CALCRIM 1153 - Prostitution. 

  25. Same. 

  26. Penal Code 653.28 PC - Local laws; preemption. 

  27. For example, see Los Angeles Municipal Code 41.70 - Nuisance Vehicles - Prostitution. 

  28. Penal Code 303a - Loitering to solicit the purchase of alcohol.

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