Prostitution is illegal in California. If you are convicted for prostitution and solicitation in California, you will not only ruin your career and reputation but will end up serving jail time and paying hefty fines. It is essential to seek an attorney's help if you want to possibly dismiss the charges against you and move forward with your life without the consequences of prostitution and solicitation charges. Contact us at the Orange County Criminal Lawyer for professional legal representation if you are facing charges of prostitution and solicitation.
Legal Definition of Prostitution and Solicitation in California
California Penal Code 647(b) is the statute that defines prostitution and solicitation in California. Under this statute, prostitution is defined as exchanging money or other things like goods and services for sex or lewd conduct. Anyone can be accused of this crime even if the proposed conduct did not take place.
Specifically, this statute prohibits three types of actions. These actions include:
- Engaging in a prostitution act
- Soliciting a prostitution act
- Agreeing to engage in a prostitution act
There are specific behaviors that a prosecutor must prove while prosecuting you for prostitution and solicitation. These behaviors are referred to as the elements of the crime and are as follows.
Engaging in an Action
You can engage in prostitution if you:
- Willfully engaging in a lewd act or sexual intercourse with another person
- In exchange for compensation like money
The term "willfully" means that you engage in the specific action willfully and with a particular purpose in mind. It does not necessarily require you to break the law to engage in an activity willfully. This term also means that you were not forced into doing the action.
The term "lewd act" includes touching the female breasts, genitals, or buttocks of another person to arouse or gratify that person sexually.
In California, you are considered to have solicited prostitution when you request another person to engage in a prostitution act with you. The prosecutor might charge this offense against the customer or prosecutor, depending on who initiated the interaction.
When a prosecution is prosecuting you for soliciting, they must demonstrate proof of intent and intent to solicit prostitution. Let's have a closer look at these two factors.
Proof of Intent
To be guilty of solicitation, you must have intended to engage in a prostitution act. The intent is demonstrated by offering to pay or other consideration like drugs in exchange for sex.
However, the other party does not necessarily have to share the same intent. For instance, you can be charged with solicitation even if:
- The solicited was not a prostitute
- The "prostitute" was an undercover officer
- The person was a prostitute who disagreed with the proposed transaction
Intention to Solicit Prostitution
Some actions can appear to be wrong but are potentially innocent. Therefore, there are actions that not proof of intent to solicit prostitution but can be mistaken to be such behaviors. This includes actions such as:
- Your presence in a well-known prostitution area
- Waving at a passing car
- Nodding to a stranger
- Standing on a street alley in a miniskirt
Example: Katrina, an undercover cop, puts on provocative clothes and stands in a street alley where prostitutes gather. Frank pull by and offers Katrina $200 to have sex with him. In this case, Frank's actions are intended to initiate a prostitution transaction. However, if Frank had propositioned Katrina on a dare from his friend, he would not be guilty of solicitation since he did not intend to trade money for sex.
Agreeing to Engage in an Action
You could violate this statute if you merely agree to engage in the act of prostitution only if you followed through the action. The prosecution must demonstrate that:
- You decided to engage in a prostitution act with another person
- You had the intention of engaging in the prostitution act with the other person
- Apart from agreeing to the act, you did something that furthered the act
This variation of this law works as a mirror to soliciting prostitution. Therefore, anyone offering to engage in a sex act will be charged with solicitation while the person yielding to the request can be charged for engaging in prostitution.
When you agree to engage in an action as the person guilty of soliciting a sexual act, you must have done something to commission the prostitution action. The extra act is more than the mere acceptance of solicitation. Some of these actions include:
- Withdrawing money from the ATM to pay the prostitute or person agreeing to the act
- Handing over the payment that you had agreed on
- Instructing someone (customer) who has yielded to a solicitation to undress
Prostitution Involving Minors
Children below the age of 18 cannot be prosecuted for prostitution in California. This conclusion came into effect after the passage of the California Senate Bill 1322 on 26th September 2016.
Under this law, a child under 18 years who commits a prostitution act is considered a commercially exploited child. Therefore, the child will not be taken to the juvenile hall or jail as the potential punishment. However, the child will be convicted as a dependent of the court and taken in temporary custody. This means that the court will order the child to be placed at an emergency shelter or with a family member for fifteen days.
Penalties for Prostitution and Solicitation in California
Violation of Penal Code 647(b) is a misdemeanor in California. The resulting penalties depend on whether the crime is a first or subsequent offense and where the violation took place.
Penalties for First Offense
If you are found to have violated Penal Code 647(b) for the first time, the potential penalties include a maximum of six months in county jail and a maximum fine of $1,000.
Penalties for Subsequent Offenses
In California, prostitution and solicitation is a "priorable" offense. This means that the kind of penalties that one can face increases with every subsequent conviction. Therefore, if you are convicted for a second offense, you will face an increased mandatory conviction that involves a minimum of 45 days in county jail. You will face a subsequent compulsory sentence of ninety days in a county jail for a third or subsequent offense.
Penalties for Prostitution and Solicitation in a Car in a Residential Area
The penalties for prostitution and soliciting in California increase if you commit this crime in a car within 1,000 feet of a residential area. This nature of offense attracts an additional jail sentence that includes:
- Driver's license suspension for a maximum of thirty days
- Issuance of a restricted driver's license for a maximum of thirty months
If you are issued a restricted driver, it means that you can only drive to and from your school or work. It also allows you to drive when it is necessary for your employment.
Additional Punishment Imposed by the Local Government
Your local jurisdiction might impose additional penalties for prostitution and soliciting. For instance, the government might seize and forfeit your vehicle as an additional penalty allowed by the law.
Please note, prostitution or solicitation does not necessarily require the offender to register as a sex offender in California under Penal Code 290, despite being a sex crime. However, the judge has the discretion to impose a mandatory registration if the offense resulted from sexual compulsion or sexual gratification.
This kind of description applies in almost every solicitation conviction. However, the requirement to register as a sex offender is rare despite the chances of facing this punishment for your prostitution and solicitation convictions.
Suitable Legal Defenses for Prostitution and Solicitation in California
You should hire an attorney once you are arrested and prosecuted for prostitution and solicitation in California. A reliable attorney should adopt relevant legal defenses to help you achieve the best possible results out of your case. The kind of legal arguments that your attorney develops depends on the nature of your case and the sort of evidence presented against you. Here are a few suitable legal defenses that can work in our case.
Lack of Intention
Sometimes your actual expectations from specific requests can be mistaken as an intention to engage in a sexual act. This is referred to as a mistake of fact and can have your case dismissed. For instance, after sleeping in a bad position, Bruce's neck hurt while flying for a business trip. When he arrives at his hotel, he asks the receptionists for recommendations for a massage parlor. The receptionist thinks that he is requesting a place known for prostitution and reports him to the authorities.
In this situation, there is a mistake of facts that Bruce is trying to engage in a sex act. Therefore, if he can prove to the court that this was not his intention, he can have his case dismissed.
Apart from the mistake of facts, you can be misidentified with the real perpetrator, especially if there are specific similarities between yourselves. For instance, if the prosecution charges you for violating this statute based on information provided by witnesses, there is a high possibility of being mistaken with the actual perpetrator. In most cases, suspects are put in a police lineup where witnesses have to identify the real perpetrator.
Therefore, you should provide relevant evidence proving that you were not involved in the alleged crime to disapprove of your involvement in the crime. You can rely on evidence such as your phone records, credit card information, and witnesses.
Lawyers use this legal defense when the prosecution cannot provide enough evidence that proves your involvement in prostitution and solicitation. Your attorney should be allowed to scrutinize the evidence presented against you as a procedure during the trial. Therefore, if your attorney finds out that there is insufficient evidence that does not hold you liable for prostitution and solicitation, he or she should ask the court to dismiss your case.
Your attorney can use legal impossibility if the alleged actions do not constitute a prostitution or solicitation crime. For instance, suppose the conclusion of your alleged offense was made after your conversation through an electronic media with an alleged prostitution undercover agent posing as a fictitious minor offering a sex act. The court can decide to dismiss your case since there is a legal impossibility of actualizing the sexual act. In cases of this nature, the defendant must actualize the sexual act by paying for the services expecting to be rendered or personally meet with the plaintiff to be guilty of this offense. Therefore, if any of this did not happen, it would be impossible to conclude that you are guilty of prostitution or solicitation.
Your Arrest was as a Result of Entrapment
Entrapment occurs when a law-abiding person commits a crime. It requires something more than allowing the defendant to commit a crime. The kind of behaviors that might lead to entrapment include:
- Flattery or coaxing
- An appeal to sympathy or friendship
- An offer that involves an extraordinary benefit
- A guarantee that the act will go undetected or is lawful
- Other similar conduct
Please note, entrapment is an affirmative defense. Therefore, you must prove that you were entrapped by taking the burden of proof towards this assertion. You do not have to prove "beyond reasonable doubt" that you were trapped, as in the case with other legal facets. You only need to establish your assertion by a "preponderance of the evidence," meaning that it is more likely than not that the officer engaged in entrapment. Once you have established this, you must be considered innocent of committing this crime.
Untrustworthy Testimonials from Witnesses
Untrustworthy evidence is a common defense to charges under PC 647(b). This is true when the prosecution relies on word of mouth from the eyewitnesses without concrete evidence. For instance, if the undercover officer was not wired, this means that there is something that he or she was hiding, raising a red flag to the jurors. Therefore, the court will likely dismiss any evidence presented by this kind of officer.
Police misconduct refers to any inappropriate or illegal actions taken by an officer. It can involve violation of a state or federal law and police department rules and regulations. Other conducts define police misconduct. These includes:
- Coercive interrogation
- Witness tampering
- Use of excessive force and brutality
- Racial profiling
Once you have proven an instance of police misconduct, you can use the exclusionary rule to your benefit. This rule allows the court to exclude any evidence collected through police misconduct. Once a significant part of the evidence has been excluded, there are chances that there would be inadequate evidence to prosecute you under this statute. Therefore, the court will have no other choice but to dismiss your case.
Reduce Your Charges in a Plea Bargain
In every legal process, the defendant can plea a bargain with the court before going to trial. This is an opportunity to have your case reduced to a less severe charge with less severe penalties than the one you would expect. The most common reduced charges that you can get for your prostitution and solicitation charges include:
- Disturbing the peace
- Lewd conduct in public
- Criminal trespass
Please note, even though criminal trespass and disturbing the peace has nothing to do with prostitution and solicitation, they can be suitable bargains for prostitution and solicitation since they attract a less severe charge and avoid the stigma that results from prostitution or solicitation convictions.
Crimes Related to Prostitution and Solicitation in California
There are several crimes related to prostitution and solicitation in California. These crimes are related to prostitution and solicitation by their elements of the crime. They might also be charged along with your Penal Code 647(b) charges. It is recommendable to learn about these crimes since you can opt to use them to reduce your charges. These crimes are as follows.
Penal Code 647(a): Lewd Conduct in Public
Penal Code 64(a) is the statute that makes lewd conduct in public a crime. Under this statute, it is a misdemeanor to engage in lewd conduct in public or solicit another person to do so. Lewd conduct refers to touching your private parts or another person's intimate parts to gratify yourself sexually or offend someone else. When referring to private parts, this includes:
- The buttocks
- Female breast
Please note, these lewd actions are not criminal action even while conducted in public places. However, the conduct becomes a crime if someone watched or was present during the act and was offended by it.
Violation of Penal Code 647(a) is a misdemeanor. The potential punishment includes 6 months in county jail and a maximum fine of $ 1,000.
Lewd conduct in public is a suitable crime to use as your plea bargain since you can reduce your charges to misdemeanor probation and attract little or no jail time.
Penal Code 653.23: Aiding or Supervising a Prostitute
Under Penal Code 653.23, it is a crime to assist or aid anyone who loiters as an act of prostitution or engages in prostitution. This statue also makes it a crime to receive any money earned by someone else in a prostitution transaction.
This kind of offense is usually related and distinct from pimping and pandering. Therefore, it is easier to be arrested and prosecuted for violating this statute than pimping and pandering.
Violation of Penal Code 653.23 is a California misdemeanor offense. Therefore, the potential consequences for this crime include a maximum of six months in county jail, a maximum fine of $1,000, or both.
Penal Code 653.22: Loitering in Public to Engage in Prostitution
Penal Code 653.22 is the statue that makes it a crime to loiter in a public place to engage in prostitution. This statute makes it possible for a police officer to arrest suspects who intend to solicit or engage in prostitution, even when they do not mean to do so.
A conviction under this statute is a misdemeanor. This crime's potential punishment includes six months in county jail and a maximum fine of $1,000.
California Penal Code 314: Indecent Exposure
California Penal Code 314 makes it a crime to expose in public indecently. Under this statute, indecent exposure is the willful exposure of your naked body or genitals to another person who would be offended or annoyed by the act.
Indecent exposure is a California misdemeanor and attracts a potential punishment of a maximum of six months in county jail, a maximum fine of $1,000, and registration as a California sex offender for a minimum of ten years.
California Penal Code 266(h) & 266(i): Pimping and Pandering
Under California Penal Code 266(h), pimping is defined as knowingly living off wholly or partially from a prostitution pay. You can either benefit from prostitution by taking part in the money earned from another person's prostitution in exchange for something like finding customers for him or her.
On the other hand, pandering is defined as either encouraging or recruiting someone to become or remain to be a prostitute or make another person available for prostitution.
Both pimping and pandering are California felonies and carry a potential punishment of 3,4 or 6 years in the California state prison.
Find a Sex Crimes Attorney Near Me
Prostitution and solicitation are some of the common sex crimes in California. You should find the help of a professional attorney once you are accused of this crime. At the Orange County Criminal Lawyer, we are committed to offering credible and excellent services to clients facing these kinds of charges and other sex crimes. We have established a remarkable track record, gained superior knowledge, and are familiar with the local courts and legal procedures. Our lawyers will work hard to try and ensure that you get favorable results by adopting the best legal defenses. For more information, contact us at 714-262-4833 and learn how we can help you.