Prostitution Defenses & Punishment | California Penal Code 647(b)
If someone has been arrested for prostitution, then the government will charge them under PC 647(b). By law, it’s a crime to solicit, agree, or actually engage in a sexual act in exchange for compensation. Prostitution is a misdemeanor offense and a conviction does not require a person to register as a sex offender. Most prostitution arrests result from law enforcement sting operations or suspects caught in the act, such as inside a vehicle. And contrary to popular belief, an undercover police officer does not need to identify themselves as a police officer if asked by a suspect.
A typical example includes an undercover officer responding to an ad posted on the internet for call services. Once the suspect and officer meet, the officer attempts to elicit incriminating information from the suspect in an effort to gain enough probable cause to effectuate an arrest. The officer usually arranges a meeting spot in a populated area, such as an unassuming luxury hotel, to lure the suspect into room to arrest them. Little does the suspect know, the officer and hotel room are ridged with recording equipment to capture the suspect’s statements which will be used against them in court.
Another example includes being caught in the act or substantially close to, when an officer conducts a traffic detention of a person’s vehicle. The officer may prove the meeting for sexual purposes in exchange of money based on the incriminating statements the parties provide or the observations of the officer after viewing a sexual act transpiring within the vehicle.
Prostitution also may be charged when business owners use their employees for sexual services in exchange from money. For instance, it still is common for employees and managers of massage parlors to be arrested after performing sexual acts on customers at the end of the massage. Not only could the business owner face prostitution charges, but may also find themselves facing federal human trafficking accusations, depending on the circumstances.
WE HANDLE PROSTITUTION CHARGES ALL THROUGHOUT CALIFORNIA
If you’ve been arrested or cited for prostitution, contact an experienced Newport Beach Sex Crimes Defense Attorney at the cases earliest juncture. Early Intervention could mean the difference of criminal charges filed against you or having the case rejected completely avoiding criminal charges altogether. Our office handles all prostitution cases in Orange County, Los Angeles, Ventura, San Bernardino, San Diego, and Riverside counties.
WHAT IS THE LEGAL DEFINITION FOR PROSTITUTION AND WHAT MUST THE PROSECUTOR PROVE – PC 647(b)?
Prostitution is a form of disorderly conduct codified under California Penal Code 647(b), making it a crime to solicit or agree to engage in or actually engage in any act of prostitution. Therefore, government may charge someone with prostitution in a number of ways. Moreover, someone can be charged with prostitution under: (1) soliciting; (2) agreeing to engage; (3) actually engaging. Each of the three different versions of prostitution will be explained below. Prostitution is defined as the act of intercourse or lewd act with someone else in exchange for money or other compensation. Additionally, the term lewd act means touching the genitals, buttocks, or female breast of either a prostitute or customer with some part of the other person’s body for the purpose of sexual arousal or gratification.
The first form of prostitution charges is the theory of soliciting another for the purposes of solicitation. Under this theory, there need not be an agreement between the parties. Instead, the crime is completed once a person intentionally requests that another person engage in the act of prostitution. The law punishes the solicitor and not the other person solicited unless they accept and commit an act in furtherance of their agreement (to be discussed more below). And the solicitation charge can apply to either the prostitute or customers.
According to CALCRIM 1154, the government must prove each of the following elements beyond a reasonable doubt to prove a person is guilty of soliciting another for prostitution:
- The defendant requested that a person engage in the act of prostitution;
- The defendant intended to engage in the act of prostitution with another person;
- The other person received the communication containing the request.
EXAMPLE 1: Dan was driving his car on the sunset strip in Hollywood. He noticed a woman standing on the sidewalk waiving down drivers. Dan pulled over and asked the woman for sex in exchange for $500. The woman declined the offer and Dan drove away. In this case, Dan would be charged with solicitation of prostitution because he conveyed a request for sexual services in exchange for compensation (i.e., prostitution). Additionally, the woman received the request because she declined Dan’s offer evidencing she understood the message. Furthermore, Dan would still be charged even though the woman decline because under the solicitation of prostitution theory, the law punishes the act of requesting and not the “agreement”. Thus, it’s not required the woman agree to commit the act to accomplish Dan’s crime of solicitation.
EXAMPLE 2: Suppose that Beth sends a text message to a man who she knows really likes her. Beth says in the text message, “I will have sex with you for $1,000.” The recipient reads the message and forwards the text to law enforcement where Beth is immediately arrested for solicitation. Here, Beth intended to engage in the act of prostitution because she knew the man would pay the money since he liked her. Next, Beth requested to engage in the act of prostitution because conveyed the act of sex in exchange for $1,000. Lastly, the man received the message because he forwarded the message to law enforcement. Therefore, Beth would be charged with prostitution as there is no requirement that solicitation be done in person.
EXAMPLE 3: Gary submits an article on craigslist requesting that someone respond if “they’re interested in having sex for $350.” An undercover police officer responds to the ad and the two agree to meet up. Upon meeting, Gary is immediately arrested for solicitation of prostitution. Here, there is no requirement that Gary actually meet at a location, but it will help the government additionally prove Gary intended to engage in sex, otherwise he would’ve never shown up to the location. In addition, Gary’s conduct comports with the requirement that the message convey the act of prostitution because he requested someone to respond if they’re interest in receiving $350 in exchange for sex. Furthermore, the message was conveyed to another because the undercover officer responded to Gary’s ad.
Agreeing to Engage in Act
In order to violate Penal Code § 647(b) under the agreement theory, there must be an agreement to engage in an act of prostitution and an overt act in furtherance of that agreement. The purpose of the overt act requirement – i.e., to ease concern that ambiguous conduct or statements might lead to false arrests, is best served by requiring proof of an overt act in furtherance of the agreement that clarifies or corroborates that an agreement to engage in the act of prostitution was actually made. This clarifying corroborative act need not follow the agreement. indeed, the conduct that furthers the commission of the act of prostitution may happen before, after, or at the same time as the agreement to engage in prostitution.
Under CALCRIM 1155, in order to prove a person is guilty of agreeing to engage in the act of prostitution, the government must prove each of the following elements beyond a reasonable doubt:
- Defendant agreed to engage in the act of prostitution with someone else;
- Defendant intended to engage in an act of prostitution with that person;
- In addition to agreeing, defendant did something to further the commission of an act of prostitution.
EXAMPLE 1: Allen was in downtown Los Angeles when he was approached by a female undercover police officer. The officer asked Allen whether he would be interested in having sex with her for $200. Allen agreed and both got into Allen’s car where he began to drive to a local hotel. Upon arriving, Allen was arrested for prostitution. In this case, the government would allege that Allen committed prostitution under the theory of “agreeing to engage in the act” because he agreed to the offer for the services of sex in exchange for $200. Furthermore, Allen committed an act in furtherance of the prostitution agreement because he drove to a location with the undercover officer for the designed purpose of committing the sexual acts.
EXAMPLE 2: Sara was a prostitute working in Beverly Hills. She approached a man and offered him sexual services in exchange for $700. The man agreed and booked a room at a local hotel. Police officers subsequently detain the two where it was revealed that both were renting the room for sex. Both Sara and the man were arrested. In this case, the government would charge Sara with solicitation and the government would charge the man with agreeing to engage in the act of prostitution because he accepted Sara’s offer of sex in exchange for $700. In addition, the act performed in furtherance of the agreement was the hotel room rental.
Under the theory of actually engaging in the act of prostitution is just that. Indeed, the crime requires a lewd act between two people in exchange for money or other consideration. Moreover, the act requires willful means. In other words, someone commits an act willfully when he or she does it willingly or on purpose. If no sexual act was performed, then the government cannot charge someone under this theory of prostitution.
Under CALCRIM 1153, in order for a person to be convicted of actually engaging in the act of prostitution, the government must prove each of the following elements beyond a reasonable doubt:
- The defendant willfully engaged in the act of intercourse;
- Intercourse was based on the exchange of money or other compensation.
EXAMPLE 1: Dan was in car with a female he had just met. A Newport Beach Police Officer observed Dan’s break lights illuminating periodically while parked in an alley. The officer approach Dan’s vehicle and observed Dan kissing and grabbing the woman’s breasts. Both individuals were detained. Dan subsequently admitted that he paid the woman in exchange to touch her breasts and kiss her. Dan was arrested and charged with prostitution. In this case, had Dan exercised his right to remain silent, he would never have been charged because there was insufficient evidence to prove prostitution. However, Dan admitted to paying the woman and the officer directly observed Dan engaged in a lewd act in his vehicle. Therefore, the government would charge Dan, and the woman, with engaging in the act of prostitution.
EXAMPLE 2: Deputy Bob from the Newport Beach Sheriff’s Department was on patrol when he observed a man and a woman in an alley in Huntington Beach. He observed the woman stroking the man’s hair and giving him a back massage. The deputy detained the couple where it was revealed that the man paid the woman to perform a massage and stroke his hair. Both individuals were arrested for prostitution. In this case, both the man and the woman would not be guilty of prostitution because the underlying service was not for lewd purposes (sexual acts). The government would have to prove that massaging someone’s back is a lewd act, which it is not.
WHAT IS THE PUNISHMENT FOR PROSTITUTION?
For a first time offender, a conviction for prostitution carries up to six months in the county jail. The court will typically place a person on a period of probation, and order them to perform community service. Furthermore, in all prostitution cases, the court will order the defendant to obtain an HIV test.
Sentencing for prostitution is based largely on the individuals prior criminal record. If a person has been previously convicted, not more than once, of a violation of the prostitution statute, then they must serve a sentence in the county jail for not less than 45 days. Additionally, if a person has been convicted two or more times, then the minimum county jail sentence is 90 days.
In addition to the punishment prescribed above, the judge may also suspend, for not less than 30 days, the privilege of the person to operate a motor vehicle for a violation of PC § 647(b) if it was committed within 1,000 feet of a private residence and with the use of a vehicle. The maximum restriction is up to six months, however the court may permit a person to drive to or from work or school during the suspension period.
WHAT ARE THE LEGAL DEFENSES TO PROSTITUTION CHARGES?
Solicitation Requires Specific Intent
When a person offers, requests, or asks to engage in the act of prostitution in exchange for compensation, the person conveying the offer must harbor the specific intent. Therefore, if a person is joking or horse playing without the actual intentions of carrying out the act of prostitution, then they did not have the specific intent to commit the crime of solicitation.
EXAMPLE: John was walking with his friends on the Hollywood strip. John’s colleague dared him to go up to a prostitute, show her money, and request they have sex. John agreed to do so, but had no intentions of actually going through with the service. After John made the request, he was arrested by the female since she was an undercover prostitute. In this case, John did not have the specific intent to commit the crime of soliciting a prostitute because he merely did it as a joke from his friend, and not through his intentional means of actually following through with his request.
Victim of Sexual Exploitation
In the event, the person arrest or charged is a minor, they may have a viable defense only if the person is a victim of human trafficking. Often, this commercial enterprise consists of threats, force, and duress to young women in an effort to force minors to engage in prostitution in exchange for citizenship, shelter, marriage, or money. The rational under this defense is that a person cannot formulate the intent to commit a crime when they’ve been forced by someone else to carry it out.
EXAMPLE: Sam was a minor from Russia that came to the United States for a better life. She was forced into prostitution by a man who threatened not only to harm her but also to assist her in getting citizenship if she performed sexual services on his clients. Months later, Sam was arrested for prostitution. In this case, Sam would claim that she was a victim of prostitution exploitation operation based on her false promises of getting citizenship and threats to her safety.
Agreeing to Engage in the Act of Prostitution Requires an Act in Furtherance of Agreement
A prostitution violation requires some act, in addition to the agreement, committed within the state that is in furtherance of the commission of the act of prostitution by the person agreeing to engage in the act. Furthermore, mere words alone may be sufficient to constitute an act in furtherance of the agreement. However, if there is no act in furtherance of the agreement, then a person cannot be convicted of this crime. The rational under this charge is that the legislature imposes an additional requirement more than the actual agreement in an effort to deter frivolous arrests and/or police entrapment.
EXAMPLE: Dave pulled up next to Lady in downtown Long Beach. Dave told Lady that he wanted to have a good time and that he had money. Lady entered his vehicle and both went to a local hotel. While inside the room, Dave said he wanted to engage in intercourse for $500. Lady then agreed. Dave then instructed Lady to take off her clothes. Dave was then arrested for prostitution. Here, the issue is whether mere words of Dave saying “take of your clothes” is sufficient to constitute an act in further or he and Lady’s agreement. The California Appellate Court held that it was given the circumstances of going to the hotel room and Dave conveying an “unambiguous and unequivocal” statement instructing Lady to take off her clothes.
No Physical Contact
The definition of “prostitution” as used in Penal Code § 647(b), requires physical contact between the prostitute and the customer. Thus, there is no crime of prostitution when the customer merely observes the prostitute engaging in a sexual act. If the law were to make mere observations of a female performing services on herself, then each strip club and pornographic video would be illegal to possess or watch.
EXAMPLE: Billy was driving his car in Los Angeles when he stopped to speak with a woman on the corner. He told the woman that he would give her $1,000 to masturbate in front of him in his hotel room. The woman agreed and both went to Billy’s hotel room. Once in the room, the woman arrested Billy for prostitution when she revealed she was an undercover LAPD police officer. In this case, Billy would not be guilty of prostitution because there was no evidence that he intended to engage in any physical contact with the woman. Moreover, his only intentions were to observe her masturbate. Merely observing his not the equivalent to engaging in a lewd act.
Nearly all jurisdiction, including California, recognize some form of an entrapment defense. Generally, entrapment may be available as a defense when a government agent (or local police officer) induces someone to commit a crime they would not otherwise commit. The defendant always has the burden of producing evidence to warrant instructing a jury on an entrapment defense by the preponderance of the evidence.
EXAMPLE: Pam was previously convicted of prostitution and was sentenced to complete prostitution counseling classes. Pam was currently in college and was financially strapped. She was approached by Oz, an undercover police officer, who offered her $2,000 in exchange for sexual services. Pam declined, but Oz continued. Because Pam may not be able to afford her monthly rent, she agreed to the money and service. She was then arrested. In this case, Pam would argue entrapment because under the circumstances, she consented to the act because of Oz’s repeated attempts to commit prostitution in which she initially declined to do.
Miranda Rights Violation
Many cases are built upon a suspects incriminating statements made to police officers just prior or after their arrest for prostitution. Additionally, the government normally relies upon their incriminating admissions to prove a suspect’s intent or that they were going to engage in the act of prostitution. Contrary to popular belief, a police officer need not admonish a suspect of their Miranda Rights unless the suspect is subjected to custodial interrogation. In the event someone is subject to custodial interrogation without being told of their Miranda warnings, then they can seek to suppress their statements to prohibit the government from introducing them in their case in chief. An evidentiary hearing will be held to determine the admissibility of the statements. If successful, the judge will order the statements suppressed. Consequently, the government may not be able to proceed, and as a result, they will dismiss the case against you.
HOW IS THE CRIME OF PROSTITUTION DIFFERENT FROM PORNOGRAPHIC ACTORS / ACTRESSES ENGAGING IN SEX FOR MONEY IN ADULT FILMS?
The difference between engaging in the act of prostitution from obtaining money in exchange for sexual services in the adult film industry is the First Amendment of the United States Constitution. Moreover, the First Amendment guarantees free artistic expression. Therefore, the act of filming sex and disseminating the material to millions of viewers is an expression satisfying the entertainment needs of the public. However, private acts of prostitution (i.e., in a motel room) does not consist of any artistic expression and it’s solely a personal benefit. Hence, if an alleged prostitute carries a camera with them, and requires customers to be filmed while engaging in the sexual acts, then the prostitute may have a viable defense in the First Amendment.
WHAT IS THE CRIME OF “LOITERING FOR THE PURPOSES OF COMMITTING PROSTITUTION”?
Loitering with the intent to commit prostitution is charged under California Penal Code 653.22 making it “…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.” This charge has withstood a number of constitutional challenges for being over broad or vague under the First Amendment. To prove someone is guilty under this offense, CALCRIM 1156 provides that the government must prove each of the following elements beyond a reasonable doubt:
- Defendant delayed or lingered in a public place;
- When the defendant did so, he or she did not have a lawful purpose for being there;
- When the defendant did so, he or she intended to commit prostitution.
Per the statute, the prosecutor has multiple ways to circumstantially prove someone was loitering for the purposes of prostitution. Below are a list of circumstances:
- Repeatedly beckons to, stop, engages in conversations with, or attempts to stop or engage in conversations with passersby, indicative or soliciting for prostitution;
- Repeatedly stops or attempts to stop motor vehicles by hailing the drivers, waiving arms, or making any other bodily gestures, or engages or attempts to engage the drivers or passengers of the motor vehicles in conversation;
- Has previously been convicted of loitering with the intent to commit prostitution or prostitution under PC 647(b) within the last 5 years;
- Circles an area in a motor vehicle and repeatedly beckons to, contacts, or attempts to contact or stop pedestrians or other motorists.
IS PROSTITUTION ELIGIBLE FOR EXPUNGEMENT?
A California Expungement is correctly referred to a dismissal. To obtain this remedy, a person must be off probation and file a petition under Penal Code § 1203.4. Prostitution is an offense eligible for expungement. If however, someone suffered from a probation violation, then obtaining an expungement becomes more challenging as the petition must be filed seeking this remedy in the interest of justice. If the court grants the expungement petition, then the court will order the prostitution conviction dismissed. A notation will then be added on the defendant’s permanent record reflecting that the conviction was dismissed per PC 1203.4. While obtaining an expungement is always recommended, the most common reason for seeking it is the employment benefits when applying in the private sector.
CONTACT US TO SCHEDULE A FREE CONSULTATION
If you’ve been cited, arrested, or charged with prostitution under PC 647(b), contact an Newport Beach Criminal Defense Lawyer at the Law Offices of John D. Rogers for a free confidential consultation concerning your rights and defenses. Because prostitution is a misdemeanor offense, we will attend court on your behalf without your personal presence needed. Contact our office today if you’ve been cited or arrested in Hollywood, Beverly Hills, Newport Beach, Orange County, Los Angeles, or any other southern California locality.
WHAT ARE RELATED CHARGES TO PROSTITUTION?
- Lewd Conduct in Public
 California Penal Code § 647, subdivision (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.
 Transporting a person across state lines for immoral purposes is a federal crime under the White Slave Traffic Act (Mann Act; 18 U.S.C., §2421 et seq.). (See 2 Wharton, Crim. Law (15th ed.), §271 et seq.; 23 A.L.R.3d 423[applicability to prosecutions in which element of commercial vice is not present]; 167 A.L.R. Fed 507 [validity, construction, and application of Mann Act to prohibition against transporting minor across state line for sexual purposes]; 186 A.L.R. Fed 555 [validity, construction, and application of Mann Act to prohibition against transporting minor in foreign commerce for sexual purposes or traveling in foreign commerce to engage in sex act with minor].)
 See Leffel v. Municipal Court (1976) 54 Cal.App.3d 569, 575. (“Thus, the language to the effect that soliciting for prostitution’ can only mean the act of the female prostitute in in soliciting patrons for her business is dictum and not blinding as precedent. People v. Handley (1970) 11 Cal.App.3d 277, 282”.)
 CALCRIM No. 1154: https://www.justia.com/criminal/docs/calcrim/1000/1154.html
 In re Aarica S., (2014) 223 Cal.App.4th 1480.
 In re Cheri T., (1999) 70 Cal.App.4th 1400, 1407.
 CALCRIM No. 1155: https://www.justia.com/criminal/docs/calcrim/1000/1155.html
 CALCRIM No. 1153: https://www.justia.com/criminal/docs/calcrim/1000/1153.html
 Pen. Code, § 647(k).
 See Cal Veh. Code, § 13201.5
 See People v. Norris (1978) 88 Cal.App.3d Supp. 32.
 See Californias Against Sexual Exploitation Act (CASE Act); In re Aarica S., (2014) 223 Cal.App4th 1480 [evidence supported juvenile court’s determination that minor was not a victim of human trafficking in relation to the solicitation of prostitution at issue].
 Pen. Code, § 647(b). See Kim v. Superior Court (2006) 136 Cal.App.4th 937 (“Asking an undercover officer to undress is a sufficient act in furtherance of the commission of the act to constitute prostitution.”)
 See same.
 Id. at p. 944.
 Wooten v. Superior Court (2002) 93 Cal.App.4th 422.
 CALCRIM No. 3408: https://www.justia.com/criminal/docs/calcrim/3400/3408.html
 See Miranda v. Arizona (1966) 384 U.S. 436.
 Penal Code (“PC”) 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.”
 See Cal. Pen. Code, 653.22, subdivision (b)(1)-(5).
 California Penal Code 1203.4: “In any case in which a defendant has fulfilled the conditions of probation for the entire period of probation, or has been discharged prior to the termination of the period of probation, or in any other case in which a court, in its discretion and the interests of justice, determines that a defendant should be granted the relief available under this section, the defendant shall, at any time after the termination of the period of probation, if he or she is not then serving a sentence for any offense, on probation for any offense, or charged with the commission of any offense, be permitted by the court to withdraw his or her plea of guilty or plea of nolo contendere and enter a plea of not guilty; or, if he or she has been convicted after a plea of not guilty, the court shall set aside the verdict of guilty; and, in either case, the court shall thereupon dismiss the accusations or information against the defendant and except as noted below, he or she shall thereafter be released from all penalties and disabilities resulting from the offense of which he or she has been convicted, except as provided in Section 13555 of the Vehicle Code. The probationer shall be informed, in his or her probation papers, of this right and privilege and his or her right, if any, to petition for a certificate of rehabilitation and pardon. The probationer may make the application and change of plea in person or by attorney, or by the probation officer authorized in writing. However, in any subsequent prosecution of the defendant for any other offense, the prior conviction may be pleaded and proved and shall have the same effect as if probation had not been granted or the accusation or information dismissed. The order shall state, and the probationer shall be informed, that the order does not relieve him or her of the obligation to disclose the conviction in response to any direct question contained in any questionnaire or application for public office, for licensure by any state or local agency, or for contracting with the California State Lottery Commission.”
 At the Law Offices of John D. Rogers, we handle prostitution matters in Los Angeles, Orange County, Newport Beach, Hollywood, Beverly Hills, Wes Hollywood, Brentwood, Santa Monica, Downtown Los Angeles, San Fernando Valley, Riverside, San Bernardino, San Diego, and Ventura counties.