Everything You Wanted to Know But Were Afraid to Ask: "Lewd Conduct in Public" Edition

I've previously written here about section 647 of the California Penal Code.  Commonly referred to as "Disorderly Conduct", PC 647 prohibits everything from prostitution to peeping, loitering, sleeping in parks and being drunk in public.  Subsection (a), though, is the topic of today's post.

PC 647(a) makes it a misdemeanor to engage in any "lewd or dissolute conduct" in any public place or in any place that is exposed to public view.  To be convicted of this offense, the prosecutor must establish 5 elements:

• That the defendant willfully touched his or her own genitals, buttocks or female breasts (or the genitals, buttocks or female breasts of another person),
• That the defendant acted with the intent to arouse or gratify him / herself or another person, or to annoy or offend another person, 
• The defendant was in a public place or a place that was open to public view, 
• Someone else who might have been offended was present, AND
• The defendant knew or should have known that another person who might be offended was present. 

That's a lot of unpack, and a lot of elements that may be open to some interpretation and argument.  Put simply though, the DA must prove that the defendant was doing something sexual in public view with the knowledge that he could be seen by someone who might not want to see whatever the defendant was doing.

It's interesting to note that breasts are only considered "lewd" on women.  If a man rubs his own bare nipples (or if someone else rubs a man's nipples) in public, there's no crime.  

In my previous post re: Drunk in Public cases, I explained that the legal definition of "public place" includes any place that is generally open and accessible to members of the public. This includes inside private businesses, on roads, in parking spaces, and even your own front porch.  Since it wouldn't be considered "trespassing" for a salesman to walk up your driveway and knock on your door, those spaces are considered "public places" for the purposes of PC 647.  The same is true for common hallways and courtyards in apartment buildings.  

The next two elements are where a lot of people get tripped up.  To constitute the crime of 647(a), the DA must prove that another person who might have been offended was present.  They do not have to prove that the onlooker was, in fact, offended.  The prosecutor must also prove that the defendant knew or should have known about the onlooker's presence, but they do not have to prove that the defendant intended to be seen.  

Even though PC 647(a) is a non-violent misdemeanor, it may carry heavy penalties, including jail time, probation, mandatory counseling, stay-away orders, fines and community service.  

There are many possible defenses to the charge of 647(a).  The best strategy in your particular case, though, will depend on the unique facts and circumstances surrounding your arrest. 

If you or a loved one has questions about PC 647(a) in California, call us for a free attorney consultation. (714) 449-3335. Ask for John. 

Thanks for reading. 

Fullerton Criminal Defense Attorney