California Penal Code Info

California Prostitution Charges

By Hinkle, Jachimowicz, Pointer & Emanuel

Article provided by Hinkle, Jachimowicz, Pointer & Emanuel. Please visit our Web site at http://www.hjpmlaw.com/.

In California, anyone who engages in prostitution or solicitation is charged with disorderly conduct, a misdemeanor offense. While the crime carries a lesser penalty than more serious sex crimes, there has been an increase in arrests for prostitution and solicitation in the state. Even if the legal penalty is not as severe, it can still require a jail sentence, and those who are charged with it are likely to be embarrassed and concerned about the effect the charges will have on their jobs, families and loved ones.

California's Prostitution Laws

California Penal Code §647(b) punishes those who solicit, agree to participate or actually do participate in prostitution. Prostitution is defined as any "lewd act between persons for money or other consideration." This means that something other than money may be exchanged for the sex act. You agree to participate in prostitution at the point you accept the offer or solicitation to engage in the act. This acceptance does not have to be verbal. It can be an action, such as a wink or head nod, that signifies your acceptance of the offer.

In order to be charged with prostitution, you must do more than merely agree to participate. There must be some act in addition to the agreement in furtherance of committing prostitution. For example, if the customer arrives at a designated meeting place or instructs the prostitute to remove her clothing, puts money on the table, or takes off an article of his own clothing. Money does not even have to change hands.

In the past, enforcement of prostitution laws fell more heavily on the prostitutes. Now prosecutors enforce the laws against the customers (referred to as the "johns") more often. Johns are much easier targets for law enforcement than prostitutes. It is common for police officers to run sting operations to round up prostitutes and johns such as advertise online or in smaller newspapers for erotic services, massage, etc. An undercover female officer may pose as a prostitute and propose a meeting with an unsuspecting customer. Once the customer agrees or provides other means of consent to engage in sex, the undercover officer will suggest they meet at a hotel or other place. Once the customer arrives at the hotel, he is often arrested without further agreement to perform any act.

While prostitution most commonly occurs between a male customer and female prostitute, it can occur between heterosexuals, homosexuals, male prostitutes and female customers.

Penalties

* First time offenders may have to serve time in a county jail (often 5-15 days), perform community service, attend counseling, pay fines and/or be placed on probation usually for three years.
* AIDS testing: first time offenders also are required to submit to testing for AIDS and required to participate in educational training on the causes and consequences of AIDS. If the test for the disease is positive, the offender can be charged with a felony if he or she is charged with the crime again.
* Repeat offenders will face more serious consequences, including mandatory time in a county jail. For example, those committing a second offense must spend 45 days in jail while those committing their third or more offense face 90 days or more.
* Driving restrictions: if the act occurred in a vehicle that was within 1000 feet of a private residence, the court also can suspend the offender's driver's license for up to 30 days or restrict his or her driving privileges for up to 6 months.

In San Francisco, first time offenders can participate in a diversion program in lieu of facing criminal prosecution. The First Offender Prostitution Program (FOPP) is one of these programs and seeks to educate participants on the dangers and risks of prostitution. The participants pay a fee (around $1000) for the program. The money is then used to provide job training and other services to prostitutes looking for a new life. This program is not available in most California counties, which vigorously prosecute first offenders.

The Entrapment Defense

It is possible that a person charged with prostitution or solicitation following a police sting, to claim entrapment as a defense to the charges. Entrapment occurs when the police engage in a type of conduct that would cause an ordinarily law-abiding person to commit a crime or otherwise break the law. It also can occur if a police officer tries to make the commission of a crime attractive to an otherwise law-abiding person.

Whether or not entrapment is available as a defense depends on the specific facts of each individual's case. However, California law provides the police with the ability to conduct undercover operations to ensnare johns and prostitutes. The statute provides that only one party to the agreement must have the specific intent to engage in prostitution. Thus, the other party, whether an undercover officer posing as a customer or as a prostitute, does not have to have specific intent to engage in prostitution in order for a crime to have been committed.

Thus, entrapment may not be an available defense for most people arrested for prostitution or solicitation. It really depends on what happened and what was said and done between the accused and the undercover officer.

There have been attempts in the past to legalize prostitution in certain California cities. The latest effort was in San Francisco in 2008. However, these efforts have not been successful and prostitution continues to be a crime in California.

Persons (prostitutes or johns) arrested for prostitution or solicitation should speak to a criminal defense attorney immediately to discuss the circumstances surrounding your arrest and the legal options available to you. Even if the case cannot be won at trial, there are many things to do to negotiate a plea or sentencing, reduce the charge to a lesser charge or avoid jail time.

PANDERING LAW: 266i	266i. (a) Except as provided in subdivision (b), any person who does any of the following is guilty of pandering, a felony, and shall be punishable by imprisonment in the state prison for three, four, or six years: (1) Procures another person for the purpose of prostitution. (2) By promises, threats, violence, or by any device or scheme, causes, induces, *persuades or encourages* another person to become a prostitute. (3) Procures for another person a place as an inmate in a house of prostitution or as an inmate of any place in which prostitution is encouraged or allowed within this state. (4) By promises, threats, violence or by any device or scheme, causes, induces, persuades or encourages an inmate of a house of prostitution, or any other place in which prostitution is encouraged or allowed, to remain therein as an inmate. (5) By fraud or artifice, or by duress of person or goods, or by abuse of any position of confidence or authority, procures another person for the purpose of prostitution, or to enter any place in which prostitution is encouraged or allowed within this state, or to come into this state or leave this state for the purpose of prostitution. (6) Receives or gives, or agrees to receive or give, any money or thing of value for procuring, or attempting to procure, another person for the purpose of prostitution, or to come into this state or leave this state for the purpose of prostitution. (b) Any person who does any of the acts described in subdivision (a) with another person who is a minor is guilty of pandering, a felony, and shall be punishable as follows: (1) If the other person is a minor over the age of 16 years, the offense is punishable by imprisonment in the state prison for three, four, or six years. (2) If the other person is under 16 years of age, the offense is punishable by imprisonment in the state prison for three, six, or eight years.
PIMPING LAW 266h	266h. (a) Except as provided in subdivision (b), any person who, knowing another person is a prostitute, lives or derives support or maintenance in whole or in part from the earnings or proceeds of the person's prostitution, or from money loaned or advanced to or charged against that person by any keeper or manager or inmate of a house or other place where prostitution is practiced or allowed, or who solicits or receives compensation for soliciting for the person, is guilty of pimping, a felony, and shall be punishable by imprisonment in the state prison for three, four, or six years. (b) Any person who, knowing another person is a prostitute, lives or derives support or maintenance in whole or in part from the earnings or proceeds of the person's prostitution, or from money loaned or advanced to or charged against that person by any keeper or manager or inmate of a house or other place where prostitution is practiced or allowed, or who solicits or receives compensation for soliciting for the person, when the prostitute is a minor, is guilty of pimping a minor, a felony, and shall be punishable as follows: (1) If the person engaged in prostitution is a minor over the age of 16 years, the offense is punishable by imprisonment in the state prison for three, four, or six years. (2) If the person engaged in prostitution is under 16 years of age, the offense is punishable by imprisonment in the state prison for three, six, or eight years.
PROSTITUTION 647 (a), (b), (d)	647. Every person who commits any of the following acts is guilty of disorderly conduct, a misdemeanor: (a) Who solicits anyone to engage in or who engages in lewd or dissolute conduct in any public place or in any place open to the public or exposed to public view. (b) Who solicits or who agrees to engage in or who engages in any act of prostitution. A person agrees to engage in an act of prostitution when, with specific intent to so engage, he or she manifests an acceptance of an offer or solicitation to so engage, regardless of whether the offer or solicitation was made by a person who also possessed the specific intent to engage in prostitution. No agreement to engage in an act of prostitution shall constitute a violation of this subdivision unless some act, in addition to the agreement, is done within this state in furtherance of the commission of an act of prostitution by the person agreeing to engage in that act. As used in this subdivision, "prostitution" includes any lewd act between persons for money or other consideration. (d) Who loiters in or about any toilet open to the public for the purpose of engaging in or soliciting any lewd or lascivious or any unlawful act.
PUNISHMENT FOR VIOLATING PROSTITUTION LAWS:	(k) In any accusatory pleading charging a violation of subdivision (b), if the defendant has been once previously convicted of a violation of that subdivision, the previous conviction shall be charged in the accusatory pleading. If the previous conviction is found to be true by the jury, upon a jury trial, or by the court, upon a court trial, or is admitted by the defendant, the defendant shall be imprisoned in a county jail for a period of not less than 45 days and shall not be eligible for release upon completion of sentence, on probation, on parole, on work furlough or work release, or on any other basis until he or she has served a period of not less than 45 days in a county jail. In all cases in which probation is granted, the court shall require as a condition thereof that the person be confined in a county jail for at least 45 days. In no event does the court have the power to absolve a person who violates this subdivision from the obligation of spending at least 45 days in confinement in a county jail. In any accusatory pleading charging a violation of subdivision (b), if the defendant has been previously convicted two or more times of a violation of that subdivision, each of these previous convictions shall be charged in the accusatory pleading. If two or more of these previous convictions are found to be true by the jury, upon a jury trial, or by the court, upon a court trial, or are admitted by the defendant, the defendant shall be imprisoned in a county jail for a period of not less than 90 days and shall not be eligible for release upon completion of sentence, on probation, on parole, on work furlough or work release, or on any other basis until he or she has served a period of not less than 90 days in a county jail. In all cases in which probation is granted, the court shall require as a condition thereof that the person be confined in a county jail for at least 90 days. In no event does the court have the power to absolve a person who violates this subdivision from the obligation of spending at least 90 days in confinement in a county jail. In addition to any punishment prescribed by this section, a court may suspend, for not more than 30 days, the privilege of the person to operate a motor vehicle pursuant to Section 13201.5 of the Vehicle Code for any violation of subdivision (b) that was committed within 1,000 feet of a private residence and with the use of a vehicle. In lieu of the suspension, the court may order a person's privilege to operate a motor vehicle restricted, for not more than six months, to necessary travel to and from the person's place of employment or education. If driving a motor vehicle is necessary to perform the duties of the person's employment, the court may also allow the person to drive in that person's scope of employment.

653.20	653.20. For purposes of this chapter, the following definitions apply: (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. (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. (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. 653.22. (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. (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.
LEWD ACT DEFINED BY THE CALIFORNIA STATE SUPREME COURT: CALIFORNIA CRTIMINAL LAW MANUAL Sixth Addition Derald D. Hunt	Although the definition is very difficult to find (I have not been able to find it in the California Penal Code), the State of California established the following definition for "Lewd Criminal Conduct" also known as a "lewd act." The touching of the genitals, buttocks or female breast for the purpose of sexual arousal, gratification, annoyance, or offense.
THIS ARTICLE IS PRESENTED TO YOU AS A CONVENIENCE- TO HELP YOU UNDERSTAND THE LAWS IN CALIFORNIA AND WHAT YOU FACE IF YOU ARE ARRESTED. NEITHER ISWFACE OR COYOTE ENDORSES THIS ARTICLE OR THE ATTORNEYS WHO PREPARED IT.	California Prostitution Charges By Hinkle, Jachimowicz, Pointer & Emanuel Article provided by Hinkle, Jachimowicz, Pointer & Emanuel. Please visit our Web site at http://www.hjpmlaw.com/. In California, anyone who engages in prostitution or solicitation is charged with disorderly conduct, a misdemeanor offense. While the crime carries a lesser penalty than more serious sex crimes, there has been an increase in arrests for prostitution and solicitation in the state. Even if the legal penalty is not as severe, it can still require a jail sentence, and those who are charged with it are likely to be embarrassed and concerned about the effect the charges will have on their jobs, families and loved ones. California's Prostitution Laws California Penal Code §647(b) punishes those who solicit, agree to participate or actually do participate in prostitution. Prostitution is defined as any "lewd act between persons for money or other consideration." This means that something other than money may be exchanged for the sex act. You agree to participate in prostitution at the point you accept the offer or solicitation to engage in the act. This acceptance does not have to be verbal. It can be an action, such as a wink or head nod, that signifies your acceptance of the offer. In order to be charged with prostitution, you must do more than merely agree to participate. There must be some act in addition to the agreement in furtherance of committing prostitution. For example, if the customer arrives at a designated meeting place or instructs the prostitute to remove her clothing, puts money on the table, or takes off an article of his own clothing. Money does not even have to change hands. In the past, enforcement of prostitution laws fell more heavily on the prostitutes. Now prosecutors enforce the laws against the customers (referred to as the "johns") more often. Johns are much easier targets for law enforcement than prostitutes. It is common for police officers to run sting operations to round up prostitutes and johns such as advertise online or in smaller newspapers for erotic services, massage, etc. An undercover female officer may pose as a prostitute and propose a meeting with an unsuspecting customer. Once the customer agrees or provides other means of consent to engage in sex, the undercover officer will suggest they meet at a hotel or other place. Once the customer arrives at the hotel, he is often arrested without further agreement to perform any act. While prostitution most commonly occurs between a male customer and female prostitute, it can occur between heterosexuals, homosexuals, male prostitutes and female customers. Penalties * First time offenders may have to serve time in a county jail (often 5-15 days), perform community service, attend counseling, pay fines and/or be placed on probation usually for three years. * AIDS testing: first time offenders also are required to submit to testing for AIDS and required to participate in educational training on the causes and consequences of AIDS. If the test for the disease is positive, the offender can be charged with a felony if he or she is charged with the crime again. * Repeat offenders will face more serious consequences, including mandatory time in a county jail. For example, those committing a second offense must spend 45 days in jail while those committing their third or more offense face 90 days or more. * Driving restrictions: if the act occurred in a vehicle that was within 1000 feet of a private residence, the court also can suspend the offender's driver's license for up to 30 days or restrict his or her driving privileges for up to 6 months. In San Francisco, first time offenders can participate in a diversion program in lieu of facing criminal prosecution. The First Offender Prostitution Program (FOPP) is one of these programs and seeks to educate participants on the dangers and risks of prostitution. The participants pay a fee (around $1000) for the program. The money is then used to provide job training and other services to prostitutes looking for a new life. This program is not available in most California counties, which vigorously prosecute first offenders. The Entrapment Defense It is possible that a person charged with prostitution or solicitation following a police sting, to claim entrapment as a defense to the charges. Entrapment occurs when the police engage in a type of conduct that would cause an ordinarily law-abiding person to commit a crime or otherwise break the law. It also can occur if a police officer tries to make the commission of a crime attractive to an otherwise law-abiding person. Whether or not entrapment is available as a defense depends on the specific facts of each individual's case. However, California law provides the police with the ability to conduct undercover operations to ensnare johns and prostitutes. The statute provides that only one party to the agreement must have the specific intent to engage in prostitution. Thus, the other party, whether an undercover officer posing as a customer or as a prostitute, does not have to have specific intent to engage in prostitution in order for a crime to have been committed. Thus, entrapment may not be an available defense for most people arrested for prostitution or solicitation. It really depends on what happened and what was said and done between the accused and the undercover officer. There have been attempts in the past to legalize prostitution in certain California cities. The latest effort was in San Francisco in 2008. However, these efforts have not been successful and prostitution continues to be a crime in California. Persons (prostitutes or johns) arrested for prostitution or solicitation should speak to a criminal defense attorney immediately to discuss the circumstances surrounding your arrest and the legal options available to you. Even if the case cannot be won at trial, there are many things to do to negotiate a plea or sentencing, reduce the charge to a lesser charge or avoid jail time.