Touching another’s buttocks, genitals, or a female’s breast in public could seem harmless. Some couples do so to satisfy their sexual fantasies or thrills. However, these actions could result in criminal prosecution. Under California PC 647(a), touching another’s buttocks, genitals, or a female companion’s breast for sexual gratification when you knew or reasonably should have known that another was present and that the other person would be offended amounts to lewd conduct. A conviction carries with it a possible jail time, fines, and an adverse impact on your social and employment opportunities. Therefore, it is crucial to engage an experienced attorney right away. Darwish Law attorneys are ready to offer legal assistance if you face lewd conduct charges in Santa Ana, CA.
Lewd Conduct as Set Out in PC 647(a)
It is likely the DA pursues criminal charges if you solicit or engage in lewd conduct.
PC 647(a) seeks to punish sexual deviancy, sexual acts that society deems morally reprehensible when done in full view of the public. Prosecutors will also charge you with lewd conduct even if you touched your genitals in public. It follows individuals caught masturbating in a strip club or a movie theater with other patrons nearby will face criminal prosecution.
Prosecutors must prove specific facts of the case for you to be convicted.
- You deliberately engaged in touching your own or another’s genitals, buttocks, or a female’s breast
- You carried out the above actions with the intention to sexually arouse or gratify yourself or another or to annoy an individual nearby
- You were in a public area, or a location open to the public, or in full view of the public at the time you engaged in the behavior
- An individual who was or could have been offended was present
- You were aware or should have reasonably known that a third party present in the vicinity could be offended by your conduct.
An in-depth look at particular elements of the case will help better understand lewd conduct.
Willful Action
An act is only willful if it is done purposefully, deliberately, or intentionally. It lacks coercion or duress. However, you must not have intended to break the law, injure another or acquire an undue advantage.
Intent to Arouse or Annoy
Prosecutors must prove that your sole intent of engaging in the lewd behavior was to arouse or gratify yourself or another sexually. Sexual gratification is provable by establishing the areas of the body touched: buttocks, genitals, or female breasts. In most situations, these body parts are touched with the sole intention of sexual gratification and arousal.
Annoyance will be considered in the absence or as an additional factor to sexual arousal. Annoyance is twofold.
- You could engage in lewd conduct with another to annoy a third party, or a third party in close proximity is annoyed by your behavior.
- Touching or rubbing another’s genital area, buttocks, or breasts without consent. This action is highly offensive.
Note: courts apply a reasonable standard test in determining the nature of the activity. That is, would a reasonable individual understand a defendant’s actions as arousal and annoying with reasonable certainty.
Additionally, prosecutors bear the burden of proof. It is difficult to prove that a defendant’s actions were aimed at annoyance or sexual gratification. Your attorney could argue that your actions were innocent.
Public Location
Lewd conduct must be carried out in public view, in a public area, or in an environment open to the public for you to be criminally liable under PC 647. Locations that fit this description include parks, theaters, common hallways in apartment buildings, massage parlors, strip clubs, public bathrooms, vehicles parked on public streets, and open sidewalks.
Places including hotel rooms, your home, business premises, or booked facilities like an Airbnb apartment are closed off to the public. However, if the area is exposed to the public, you could still be found guilty of lewd conduct. For example, if the curtains or windows are open, sexual activity in an otherwise private environment becomes a crime.
Offended Party
The law considers both the actual or likely presence of a third party as to whether to find you guilty of lewd conduct. To elaborate further, a third party should have witnessed you engaging in lewd conduct. In the absence of an actual witness, you could be found guilty if it is determined that you should have reasonably known that there was a likelihood that an individual nearby could have seen the lewd conduct. The possibility is actual and not just a mere prospect of being seen.
Most individuals engage in lewd behavior, believing that no one else will see their actions or that no one viewing the acts will be offended. However, this will not prevent your arrest and subsequent prosecution.
Entrapment in Lewd Conduct Cases
It is typical for lewd conduct cases to result after sting operations. These operations are two-fold:
- Police officers could be surveilling a remote area to catch offenders engaging in lewd behavior — In this situation, those arrested in the act reasonably believed they were in a desolate place, and no one was or would be offended by the conduct.
- An undercover operative could flirt to lure unsuspecting individuals into participating in a lewd activity — A suspect in this scenario would reasonably believe that the undercover agent was looking for a hookup, in which case he/she assumed no one would be offended.
Note: Responding to heavy eye contact, a wink, or slight touch of your genitals from the undercover police officers could result in your arrest.
Police tend to set up these string operations in public parks, gyms, public bathrooms, adult book stores, shopping malls, and alleys.
Law enforcement agencies justify these operations as necessary owing to complaints from the public about lewd conduct. However, most of the arrestees did not go looking for a hookup. Therefore, the officers lure them into engaging in lewd behavior.
These actions do not meet the standard set out under PC 647. Thus you can always argue entrapment in your defense.
What to Do After Being Arrested for Lewd Conduct
Police officers could either give you a citation requiring you to appear in court on a given date. Alternatively, they could also arrest and book you prior to releasing you with a citation. It is in your best interest to contact a defense attorney immediately.
With your attorney’s help, the District Attorney can be persuaded not to file the charges, or should the DA file charges, to settle the matter without proceeding to trial.
Since lewd conduct is a misdemeanor offense, your attorney can go to court on your behalf.
At Darwish Law, we conduct investigations upon receiving the police report and the evidence provided for your case. It involves visiting the location and taking witness statements—key information in determining the severity of your case. We can also file a Pitchess motion to inspect the arresting officers' conduct and employment file. The information will help establish any pattern of misconduct.
Any evidence or information obtained from our investigations will help in our negotiations with the DA to drop the charges. If the DA is unwilling to drop the charges, we will adequately represent you in court.
Defenses Available to Fight Lewd Conduct Charges
Defense strategies adopted vary based on the cases’ facts and circumstances. Criminal defense attorneys seek to use the defenses to challenge the evidence presented by prosecutors. A strong and thorough strategy will result in a reduced charge, if not an acquittal. Be sure to engage a reputable attorney to best fight your lewd conduct charges.
Here is a look at some defenses the Darwish Law team could employ in your case.
Your Actions Were Not Lewd or Dissolute
Lewd or dissolute conduct, as stated before, is touching your or another’s genitals, buttocks, or a female’s breasts. Prosecutors bear the burden of proving that you did indeed participate in lewd behavior beyond a reasonable doubt. In most cases, proving this conduct is challenging. Therefore, your attorney will argue that you did not engage in lewd conduct.
Lack of Intent or Sexual Gratification or Annoyance
Sexual gratification or annoyance is pivotal for a conviction of lewd conduct. It must be clear that you touched your or another’s genitals, buttocks, or breasts aiming for sexual gratification or annoyance of another.
Proving intent is difficult. Testimonies of police officers and witnesses who walked in or saw you touching your privates are not enough to demonstrate your intent to annoy another or seek sexual gratification.
For example, teammates who slap each other's buttocks for motivation-- without prior knowledge of the act being a motivation ritual, the immediate assumption is that the players do that to annoy or sexually gratify themselves, which is not the case.
Another example is a witness walking in on a friend, helping another clean off her blouse, and touching the friend's breasts in the process. The intent was not sexual gratification nor was it to annoy, which are both assumptions a witness may arrive at initially.
Therefore, your attorney will use the lack of intent defense to challenge the prosecution’s case.
You Were Not in a Public Place or in Public’s View
Sexual activity in private on private property is not illegal. You can only be charged under PC 647 if you engage in the action in full view of the public. However, it must be established that you intended to display your activities to the public.
For example, Jane and Peter enter their bedroom kissing and ready to share an intimate moment. Unknown to them, their bedroom window is open. In a different apartment overlooking their bedroom, Patrick sees Peter touching Jane's breasts and buttocks. Patrick calls the cops and claims he was annoyed by what he saw.
Jane and Peter were engaged in intimacy in their apartment, a private residence. Additionally, they did not know the window was open. Therefore, they cannot be found guilty of lewd conduct.
Reasonable Belief No Third Party Was Present
Courts consider both the actual presence of a third party and reasonable belief that a third party was present for you to be found guilty of a PC 647 violation. Engaging in sexual activity in a public place or public view is not enough for a conviction. Prosecutors must prove the presence of a third party or that you reasonably knew that a third party was nearby. Therefore, if the witness was hiding when you engaged in sexual activity, you cannot be found guilty.
For example, Noah and his girlfriend are kissing as they walk home at 3:00 a.m. They decide to stop in an alley where he touches her genitals and breasts. At the same time, while clearing out trash from her shop, Becky walks out and sees them from a distance, and calls the police.
Is Noah guilty of lewd conduct?
No. The expectation is that no one is out at 3:00 a.m., especially in the alley where Noah and his girlfriend were. Even though Becky saw them, both Noah and his girlfriend did not know, and neither did they reasonably believe she was present.
You Are a Victim of Entrapment
Entrapment laws forbid law enforcement officers from luring law-abiding citizens to commit crimes the citizen was not predisposed to commit. Further, police are forbidden from using flattery, harassment, threats, fraud, or pressure to lure individuals into committing crimes.
Note: merely initiating a crime or presenting an opportunity to commit a crime does not amount to entrapment.
Penalties Upon Conviction for Lewd Conduct
PC 647 violations are misdemeanors. Convictions lead to jail sentences not exceeding six months and fines of up to $1,000. A judge could also issue probation terms. If so, you will do little to no jail time.
Summary probation or informal probation comes with a set of terms you should adhere to-- failure to which would cause a judge to revoke your probation. In such circumstances, you could either end up serving the jail sentence or probation terms would be reinstated along with some added conditions. The likely probation terms may include but are not limited to the following:
- Obey all court orders
- Do not violate any laws
- Pay all court fines and fees
- Stay away from the location you allegedly committed the offense at
- Attend counseling
- Remain in contact with your probation officers as and when required
- Have an AIDS test
PC 647 does not place a requirement for you to register as a sex offender if convicted for lewd conduct. However, the DA could introduce indecent exposure charges that requires the guilty party to register as a sex offender. Prosecutors could drop lewd conduct charges if you plead guilty to indecent exposure.
Indecent exposure seems like a deal and an opportunity to avoid trial compared to the possibility of serving the jail sentence and paying the fines for lewd conduct. However, registering as a sex offender is an adverse outcome.
Crimes Related to Lewd Conduct
There are offenses related to lewd conduct that prosecutors can choose to pursue as independent charges or in addition to PC 647 violations. They include:
- Lewd Acts with a Minor, an Offense Under PC 288
It is an offense to engage in lewd conduct with a child below 14 years. PC 288 criminalizes touching a child’s body for sexual gratification. Unlike in PC 647, it does not matter whether touching a child’s body occurred in a private or a public area. Further, it is also immaterial whether the touching was done over a child’s clothes or on bare skin.
You are also liable for criminal charges under PC 288 if you engage in child molestation. PC 288 describes child molestation as touching or causing a child to touch his/her genitals.
A PC 288 violation is a felony that attracts up to 10 years in prison and fines as high as $10,000.
- Indecent Exposure, an Offense Under PC 314
Willfully exposing your genitals or your naked body for purposes of gratifying yourself or offending another is a crime under PC 314.
Unlike lewd conduct, a conviction for indecent exposure comes with a sex offender registration requirement for a minimum of 10 years. Additionally, first-time offenders will be sentenced to jail for six months and pay $1,000 in fines in addition to the 10-year registration as a sex offender.
You could be convicted of aggravated indecent exposure if you expose yourself in an inhabited building, trailer, or home and you enter the house without permission. For this offense, you can be charged with a misdemeanor or felony violation.
Misdemeanor convictions attract a maximum of one year in jail and 10-year registration period as a sex offender. Felony convictions, on the other hand, result in 16 months, 2, or 3 years in prison, fines of up to $10,000, and a 10-year registration period as a sex offender.
Engage a Santa Ana Criminal Defense Attorney Near Me
If you have been arrested or charged with engaging in lewd conduct in Santa Ana, CA, contact Darwish Law. Our team of experienced attorneys will advise and prepare a robust defense to fight the charges. Call us today at 714-887-4810.