It a misdemeanor crime to engage in lewd conduct in public, or to solicit someone to do lewd conduct in public under California Penal Code § 647(a). Both crimes have nearly similar elements except for soliciting involves an individual requesting someone else do the lewd conduct instead of the individual performing it directly themselves.
According to CALCRIM 1161, to prove that someone is guilty of lewd conduct in public the prosecution must prove that:
1. The defendant willfully engaged in the touching of their own, or another person’s, genitals or buttocks, or (female) breast.
2. The defendant did so with the intent to sexually arouse or gratify themselves or another person, or to annoy or offend another person.
3. At the time the defendant engaged in the conduct, they were; in a public place, a place open to the public, or in public view.
4. At the time the defendant engaged in the conduct, someone else who might have been offended was present.
AND
5. The defendant knew or reasonably should have known that another person who might have been offended by their conduct was present.
Breaking down the elements and defenses
The conduct must be committed willfully or on purpose, and the prosecution will have to prove the intent of the defendant. Some common defenses are that the individual had no intent of sexual gratification when the alleged conduct was committed. Or if the individual reasonably believed that there was no one present who would be offended by the conduct. Another defense would be if the conduct occurred in a private place or a place not open to public viewing. Also, the acts must be such that the defendant should know that the observer may be offended, but the prosecution will not have to prove that anyone was actually offended by the conduct.
Penalties for a conviction for lewd conduct in public conviction could result in up to six months in a county jail, and/or a fine of up to $1,000, however, a conviction of § 647(a) does not require that you register as a sex offender. Many considerations go into sentencing, including the nature and egregiousness of the conduct, and the criminal history of the defendant to name a few.
Although, § 647(a) does not require sex offender registration if convicted, it is often times charged along with several other offenses that may require sex offender registration. Accordingly, it is best to contact a qualified criminal defense attorney to help you navigate the charges and the legal process, in addition to assisting you in obtaining the best possible resolution of your case.
