Section 647(a) of the California Penal Code is committed when an individual “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.”
The five elements that constitute this crime are as follows:
1. The accused willfully engaged in the touching of own or another individual’s genitalia, buttocks or breasts;
2. The accused did such act with the intent to sexually arouse or gratify one’s self or another person or to annoy or offend another person;
3. The defendant had engaged the criminal conduct in public or in a public place or a place open to the public or public view;
4. The defendant engaged in the conduct in the presence of another who may be offended;
5. The defendant knew or had reasonable knowledge that another person may be offended by his conduct would be present in the public area.
In California, it is not inherently illegal to engage in sexual activity in public but this act or acts become illegal when other people are present and would be offended by the sexual activity in public. As held by the California Supreme Court:
“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” (People v. Rylaarsdam (1982) 130 Cal.App.3d Supp. at p. 11, 181 Cal.Rptr. 723) and “the statute thus serves the primary purpose of protecting onlookers who might be offended by the proscribed conduct.” (Pryor v. Municipal Court (1979) 25 Cal.3d at p. 255, 158 Cal.Rptr. 330, 599 P.2d 636)
The public location is important as these locations are either a public place, or a place open to the public, or a place exposed to public view. These may include bookstores, a car on a public street, common areas in apartment buildings or a massage parlor.
Another common issue with lewd conduct arrests is the propensity of sting operations that net the arrests. These often occur in a public restroom or public location where many cops are undercover trying to bait individuals to actions considered as a crime under lewd conduct in public.
When arrested for lewd conduct, the common practice is that the accused would be issued a citation to appear in court after being booked for the crime. Since this is a misdemeanor offense, the imposable penalties are probation, fines, counseling, undergoing an AIDS test, orders to stay away from the scene of the crime or even jail time. While the conviction would remain on your criminal record, unlike other sex offenses, there is no need for sex offender registry.
The commission of the crime of lewd public conduct is a serious matter in California. Should you be or know anyone facing any of these charges, do reach out to the lawyers at the Law Offices of Ramiro J. Lluis for a free consultation today.
