Public Nudity & Indecent Exposure in California: Everything You Never Wanted to Know

The laws regarding public nudity and indecent exposure in California seem to generate a lot of confusion and misconceptions.  Something about nudity makes people very uncomfortable and stokes all kinds of legal myths.  Some of the questions that I hear most often are:

-I was cited for public urination.  Will I be charged with indecent exposure?

-I got caught engaging in some lewd conduct in the locker room at my gym.  Will I be required to register as a sex offender?

-Is it indecent exposure for a woman to expose her breasts in California?

-Is it indecent exposure to "moon" people in California?

I'd like to take this opportunity to clarify some of this confusion and to help you understand your rights when it comes to getting naked in public.

In California, PC 314 makes it a misdemeanor to willfully and lewdly expose your genitals in a public place or in the presence of another person who is likely to be annoyed or offended by the display.

The law sounds pretty straight-forward upon first glance.  As with most things in the law, though, it's more complicated than it appears.  Let's break down the elements of "indecent exposure" to determine what sort of behavior does or does not meet its statutory definition:

-"Willfully":  The prosecutor must prove that the defendant exposed himself on purpose and that he intended to direct public attention to his genitals.  If you forget to zip your fly and you can't figure out why people on the street are giving you funny looks, you haven't "willfully" exposed yourself and you're not guilty of the crime of indecent exposure.

-"Lewdly":  The prosecutor must prove that the defendant "intended by his conduct to direct public attention to his genitals", and that he "acted for purposes of sexual arousal, gratification, or affront". Mere exposure is not enough to sustain a conviction unless the sexual motivation is proven beyond a reasonable doubt.  For example, nude sunbathing at a nude beach, "mooning" traffic as a prank, or urinating between parked cars is not necessarily "lewd" unless the defendant acted with the intent to sexually gratify himself or others.

-"Expose":  As its name implies, the crime of "indecent exposure" requires that the person actually expose himself.  In the case of  People v. Massicot (2002) 97 Cal. App. 4th 920, a defendant was tried for violating PC 314.  He had allegedly lifted his robe to expose flesh-colored women's underwear and a lace bra that he was wearing.  The court found him "not guilty" because he had not actually exposed himself -- underwear isn't enough, even if it's lacy, women's underwear.

-"Genitals":  A conviction for PC 314 requires that the defendant actually exposed his or her genitals.  This does not include the buttocks or breasts.  That's right -- in California, displaying bare female breasts in public does not constitute indecent exposure.  As the court famously ruled in Robins v. Los Angeles County (1967) 248 Cal.App.2d 1, "Display of bare female bosom...does not violate state law, is not regulated by the state and does not constitute criminal sexual activity". Groups such as gotopless.org and FEMEN have recently made headlines around the world for their efforts to protect the rights of women to appear topless in public, and I applaud these heroes.

-"In a public place, or in the presence of another person who is likely to be offended or annoyed":  This is one area where the law gets tricky.  It's sometimes difficult to determine whether or not a particular place qualifies as "public".  For example, if a defendant exposes himself to an undercover cop in a park bathroom during hours that the park is closed to the public, is he "in a public place"?  Does the undercover vice cop qualify as a "person who is likely to be offended or annoyed"?  What about standing in front of an open window and exposing yourself to passing pedestrians?

Courts have determined that the law does not require prosecutors to prove that the defendant was actually in a public place. He can be convicted of indecent exposure if he exposes himself anywhere to another person who is in a public place and who is likely to be offended by his nudity.  The law also does not require the DA to prove that victim actually saw the defendant's genitals, or that the victim was offended -- only that another person was present and that the other person was likely to be offended or annoyed.

As mentioned above, indecent exposure is usually treated as a misdemeanor in California, but there are some exceptions.  It can be treated as a felony if the defendant exposes himself after entering an inhabited building without the consent of the owner (if you break into someone's house and expose yourself to the occupants).  Indecent exposure will also be treated as a felony if you have a prior conviction for indecent exposure or for committing lewd acts with a minor.

A conviction for indecent exposure in California carries mandatory registration as a sex offender.  Of course, this designation may prevent a person from getting a job or holding various professional licenses and could earn you a spot on the Megan's Law website.

Potential defenses to indecent exposure charges may depend on the unique circumstances of your case and your criminal history.  A knowledgeable criminal defense attorney can review the evidence to determine the strengths and weaknesses of the allegations against you.  Once we know what we're up against, we can work with you to ensure that you understand your options and that your rights are preserved throughout the process.  Even in cases where our clients have admitted that they exposed themselves to strangers in public, we have had success in negotiating pleas to reduced charges that do not carry mandatory sex offender registration.

If you or a loved one has any questions about the laws regarding public nudity or indecent exposure in California, call our office for a free attorney consultation.  (714) 449-3335.  Ask for John.

Thanks for reading.

Orange County Indecent Exposure Lawyer

Update: Week 1 of the Kelly Thomas Murder Trial

I had an opportunity to sit in on part of the Kelly Thomas murder trial this morning, currently underway in Department 40 of the Santa Ana Courthouse.

Kelly Thomas is the mentally ill homeless man who was beaten to death by the Fullerton Police in July of 2011.  Officer Manuel Ramos is accused of murder and manslaughter in the case.  Corporal Jay Cicinelli is accused of manslaughter and excessive force.

So far, prosecutors have presented the case chronologically, in the order that events transpired on the evening of July 5, 2011.  The district attorney presented the synchronized audio / video that captures Kelly's last moments.  The audio recording of the confrontation includes threats of violence that Ramos directed at Kelly.  Those threats, the DA contends, escalated an otherwise-mundane encounter into a fatal one.  Prosecutors then called various first-responders, who described the scene immediately after the beating.

Today's proceedings included testimony from Captain John Zillgitt of the Fullerton Fire Department.  He was the lead paramedic responsible for overseeing the team of EMTs who loaded Kelly into the ambulance.  He stated that Kelly was unconscious and "hobbled" when he arrived -- Kelly's handcuffs were attached to his ankles.  "There was a volume of blood matted in his facial hair", said Zillgitt.  He further testified that Kelly's heart stopped while he was being transported in the ambulance and EMTs began performing CPR on their way to St. Jude Medical Center.

Dr. Aruna Singhania, forensic pathologist with the Orange County Coroner, also testified about Kelly's autopsy.  She determined Kelly's cause of death to be "anoxic encephalopathy [lack of oxygen] due to mechanical chest compression along with blunt cranial and facial injuries".

The jury is comprised of 12 jurors, plus 4 alternates.  I could not determine which of the 4 jurors were alternates based on where they were seated.  Of the 16, 6 are male and 10 are female.  They include 1 Asian male, one Hispanic male, and one Asian female.  The rest are Caucasian (the jury is overwhelmingly Caucasian and female).  

I will continue to attend as much of the trial as I can.  There were open seats in the courtroom today.  Members of the public are welcome to attend.  The Thomas family appreciates any support.  Trial will resume tomorrow at 8:45 AM in Department 40 of the Santa Ana Courthouse.  Stop by if you're in the area.  

Stay tuned for updates as they become available.  Thanks for reading.  

I Was Arrested for DUI in Riverside, CA. What Can I Expect?

Riverside County has some of the strictest penalties for first-time DUI offenders in California.  If you're convicted of DUI anywhere in Riverside County, you're likely to receive costly fines, loss of your driving privileges, mandatory classes and at least 3 years of probation.  Unlike other jurisdictions in California, though, anyone convicted of DUI in Riverside is also likely to serve some time in custody, even for a first offense.  The time you spend in custody may vary depending on the circumstances of your case.  You might also qualify for some alternative to jail (home detention, weekends, labor, etc.), depending on a lot of factors.

Anyone convicted of DUI in California is required to attend a mandatory, 3-month alcohol education program, called "AB-541".  Riverside County has chosen to make this process more complicated than necessary.  Rather than simply allowing participants to enroll into the classes, Riverside requires all attendees to participate in a mandatory "orientation" session.  Of course, they charge a fee for this "orientation".  If you fail to schedule your orientation within 5 days of your court appearance, you'll be required to return to court for a new referral.  You could also be accused of violating your probation, which may result in more jail time.

The budget crunch in Riverside County means that more defendants are being crowded into fewer courtrooms, resulting in longer waits in less comfortable seating.  Make sure that you arrive on time to court, though.  Leave plenty of time for the security line.  If you check in late, you'll be turned away.  A warrant will be issued for your arrest and you'll have to request a new court date.

At your arraignment (your first court appearance), the judge will inform you of the charges against you.  You'll have an opportunity to either, 1) admit all the charges and resolve your case on the spot, 2) request the services of the Public Defender, or 3) request some time to speak with a private attorney.

As a private attorney, I'd recommend option #3.  An experienced, local DUI defense attorney can help you navigate the complicated process of fighting a DUI.  We provide peace of mind by helping you understand the legal procedures and your options going forward.  We can review the evidence to determine the strength of the case against you, as well as any possible defenses.  Even if you're guilty as charged, your counsel can often help negotiate a fair deal to resolve your case.  As mentioned above, there may be options available that would allow you to keep your job and take care of your family, even while serving "custody".

A private attorney can often make your court appearances for you, without you being personally present.  Save yourself the headache of appearing in court -- just send your lawyer.

If you or a loved one has been arrested for DUI in Riverside, California, call our office for a free attorney consultation.  951 683 4613.  Ask for John.  Thanks for reading.

Riverside DUI Lawyer

Give a Loved One the Gift of a Fresh Start -- Affordable Expungement Packages Now Available

Does someone in your life have a criminal conviction that's standing between them and the things they want to achieve?  Husband can't find a good job because of an old DUI?  Daughter can't get into school because of mistakes she made years ago?  This holiday season, give someone you love a gift they really need...an expungement!

As I've previously written on this blog.  An expungement is California's way of dismissing a case after someone has successfully completed serving his or her penalties.  After an expungement is granted, it's like the conviction never happened (for most purposes, some exceptions).

An expungement can dramatically improve your job prospects and your chances of holding various professional licenses or being admitted to a good school.  Give someone you love a second chance to accomplish all the things you know they're capable of.

Expungements aren't for everyone.  There are several strict criteria that a petitioner must meet in order to earn the expungement.  Specifically, it's important that the petitioner:

1) Successfully completed probation.  If probation was not granted, petitioner must wait one year from the date of the conviction.

2) Is not currently on probation in any other cases.  If the petitioner is still on probation, we might be able to help terminate probation early.

We provide free consultations to help determine whether or not you or your loved one qualifies for an expungement.  If you do not qualify, there may be other options available for you.  After your consultation, we will prepare all necessary paperwork to begin the process of petitioning for your expungement.  The documents are fairly simple, but any small error can result in a denial of the petition.  After preparing the documents, we will take care of serving those documents on the prosecutor and properly filing them with the court.  We will also appear in court on your behalf for any necessary appearances.  In most cases, you do not need to be personally present in court for these hearings (some exceptions may apply).

Call us for your free consultation at 714 505 2468.  Thanks for reading.

Kelly Thomas Trial Date Approaching

The trial of Fullerton police officers Manny Ramos and Jay Cicinelli is now scheduled to begin in Department C-40 of the Santa Ana Courthouse on December 2, 2013.  Members of the public are encouraged to attend.

Officer Ramos and Corporal Cicinelli are accused in the 2011 beating death of transient Kelly Thomas, pictured, at the Fullerton Transit Center.  Kelly was severely beaten by six Fullerton police officers on the evening of July 5, 2011.  He suffered severe injuries, including facial fractures and broken ribs.  Kelly never regained consciousness.  He died after being removed from life support five days later.

The incident was captured by both audio and video recorders.  Ramos is accused of provoking the fatal encounter by threatening Kelly with unlawful force.  At one point in the recordings, Ramos can be seen putting on latex gloves.  He says to Kelly, "See these fists?  There's getting ready to fuck you up".  As Kelly gets up and attempts to run from Officer Ramos, Officer Joe Wolfe strikes Kelly with a baton.  Wolfe and Ramos quickly take Kelly to the ground as more police arrive to assist.  Corporal Cicinelli deploys his taser several times, then begins striking Kelly repeatedly in the face with the butt of his weapon.  Six officers dog pile onto Kelly and continue their assault until Kelly stops breathing.

After Kelly lost consciousness, the officers made no effort to provide medical attention.  Even as the homeless man lay dying in the parking lot, officers prevented emergency responders from rendering aid to him.

Kelly's death helped to expose a "culture of corruption" within the Fullerton Police Department.  Several other incidents were later revealed in which Fullerton Police had used excessive force, fabricated reports, suppressed exculpatory evidence, and engaged in acts of dishonesty.  Chief Michael Sellers was forced to "resign" in the wake of the investigation.  Fullerton voters also held a special recall election, in which 3 council members were removed from office for their roles in the scandal.

The Fullerton Police Department has a long way to go if it hopes to restore the public's trust.  "Guilty" verdicts for Ramos and Cicinelli will be a crucial first step in the healing process, both for the City of Fullerton and for the Thomas family.

The defense is expected to make two key assertions.  First, they will argue that Kelly caused his own death by refusing to follow the commands of officers and by attempting to flee.  Attorneys will claim that the officers used the appropriate degree of force to restrain a violent, dangerous individual and that their force would have ended immediately upon Kelly's compliance.  Secondly, the defense will likely argue that the cause of Kelly's death cannot be determined with any reasonable degree of certainty and that some reasonable doubt must, therefore, exist.

Stay tuned for developments as they become available.  I will try to attend as much of the trial as possible.

Myth of the Day: Is it Really Illegal to Eat an Orange in Your Bathtub in California?

This is a persistent myth that has made its way around the internet, thanks to social media and the general willingness of gullible people to repeat asinine things that they've heard.  This particular myth, though, has even been repeated by some major, mainstream outlets, including Gerri Willis from Fox Business.  If you're still getting your news from the "Faux" Network...well...there's your first problem.

Despite the many sources that make claim, none actually cite to any relevant statutory authority or case law.  Luckily, I was born with a rare genetic condition called "curiosity", so I decided to devote some valuable time to finding this mysterious and arcane law.  I actually did something that Gerri Willis couldn't be bothered to do -- I checked my sources.

Turns out, no such law exists in California.  Of course not.  Just think for a minute about how absurd a law like that would be.  It would obviously be impossible to enforce and it would likely be stricken down as "without rational basis".

Moral of the story: if you hear a legal myth that sounds too ridiculous to be true, it probably is.  Also, Fox Business is lying to you.

If you or a loved one has questions about any other legal myths, call our office for a free attorney consultation.  (714) 449-3335.  Ask for John.

Thanks for reading.

Orange County Criminal Defense Attorney

How to Clean Up Your Criminal Record, Part II

I've previously written a post, available here, about the process for obtaining an expungement in California.  Today, I want to discuss the procedure for obtaining a Certificate of Rehabilitation & Gubernatorial Pardon.

If you read my post on expungements, you'll know that an expungement dismisses a case against you AFTER you've successfully completed probation and satisfied all terms of your sentence.  An expungement will not "seal" your record -- your criminal record will still exist and it will still be public.  Rather than showing a conviction, however, your criminal record will show a dismissal after the expungement is granted.  This allows you to honestly state that you have no criminal convictions when you apply for jobs in the future.  An expungement will not restore your right to possess firearms and will not relieve you of your duty to register as a (fill-in-the-blank) offender.

If you were sentenced to state prison in a felony case and were not given probation, then you are not eligible to apply for an expungement.  Luckily, there may be another option available to help you clean up your criminal record.

Individuals who have been committed to state prison may apply for Certificate of Rehabilitation (hereinafter, a "CR") after a specified period of time has elapsed.  Unlike an expungement, a CR will not dismiss the charges against you.  It will, however, serve as an official acknowledgement of your reformation and continued good conduct.  When prospective employers run background checks on you, they will see that you made mistakes in your youth, but also that you learned from those mistakes and that you remained law-abiding thereafter.  A CR may also improve your prospects of obtaining various state-issued licenses (e.g. to become a nurse, chiropractor, attorney, etc.).

The amount of time that you must wait before applying for a CR depends on the nature of the crime for which you were convicted.  Generally, an applicant must remain law-abiding for 7-10 years after his or her release from prison before becoming eligible to apply for a CR.  You must also show that you have resided in California for the required period, have not been incarcerated since your release from prison, and are not currently on parole or probation.

To begin the process, an applicant must file several documents with the local court.  These documents are referred to as the "Petition for Ascertainment", the "Declaration of Rehabilitation" and an "Order Declaring Petitioner to be Rehabilitated".  A judge will review the application packet to determine the petitioner's eligibility.  Aside from the factors listed above, the court is specifically looking for 4 criteria:

-Has the petitioner lead an "honest and upright" life since his or her release from prison?
-Has the petitioner conducted himself or herself with "sobriety and industry"?
-Has the petitioner exhibited "good moral character"?, and
-Has the petitioner conformed to and obeyed the laws of the land?

If the court is satisfied that you are eligible for the relief requested, the judge will sign the Order that you provided with your application packet.  Once it is signed by a judge, the Order becomes a "Certificate of Rehabilitation".  A judge has essentially declared you to be "officially rehabilitated".

The court will then send a copy of the signed Order to the governor's office, along with a recommendation that the governor grant the petitioner a full Gubernatorial Pardon.  This is done automatically, without any further requirements of the petitioner.  If granted, a GP will dismiss the charges completely, similar to what an expungement does.  Unlike an expungement, however, a GP may restore firearms rights and may even relieve some petitioners of their duty to register as sex offenders.  A GP also differs from an expungement in another key regard -- having received a pardon does not allow the pardoned person to state on a job application that he or she has no criminal convictions.  It will allow a previously-convicted felon to serve on a jury, but it will not necessarily prevent deportation.

So, that's the process in a nutshell.  There are a lot more boring details that I'd be happy to discuss with anyone who cares to ask.

If you've ever wondered about your eligibility for an expungement, a Certificate of Rehabilitation, and / or a Gubernatorial Pardon, call my office for a free consultation. 714 449 3335.

Thanks for reading.