Prostitution / Solicitation
In California, prostitution is a prohibited conduct that could lead a person to an imprisonment conviction. It is a crime to offer or solicit someone to engage in an act for exchange sex for money, payment, goods or something value. In other words, who solicits or agrees to engage in or who engages in any act of prostitution could be convicted of prostitution, including prostitutes, customer, middleman (pimp). In order for a person being charged of prostitution, the person that is offering or agreeing the act must manifests an acceptance to engage the act for exchange.
- A man approached a woman, who was standing in the corner of a street, asking to have sex in exchange for money. If she agrees, both of them could be charged of prostitution.
- A man approached a woman at the bar and solicited to have sex for money, he thought she was a hooker but she was a undercover police officer.
- A man approached another man offering blow jobs in exchange for money.
In California Penal Code, under section 647(b), established the rules of prostitution crime. In order for a person being convicted of prostitution, the prosecution must prove into court some main elements and fact of the crime, in which are the following:
- The defendant engaged in an act of prostitution.
- The defendant act willfully.
For a better understanding let's explain with details those elements of rape.
Solicit/ engage/ agree to Engage an act of Prostitution
Prostitution is defined as engaging in sexual intercourse or any lewd act with another person in exchange for money, payment or something value. Further, "engaged in an act of prostitutions", means any type of act that agrees, offers, solicits, control, command prostitution. By that, any person that helps, aids or ask for sexual intercourse or lewd act in exchange for money, could be liable and convicted of disorderly conduct. To determine and satisfy the element of agreeing to engage an act of prostitution, the statement of the prostitute or solicitor need to be unambiguous and unequivocal in conveying the agreement of prostitution "will occur and move the parties toward completion of the act" Kim v. Superior Court (2006) 136 C.A.4th 937, 945, 39 C.R.3d 338. This element is a hard prove to the prosecution, since it must prove that the defendant acted in furtherance of prostitution, meaning, that the conduct must be more than just accepting the offer of prostitute.
Example: Matt solicited Joana's service for prostitution, after both of them had made the agreement, Matt instructed Joana to undress.
In this case, the conduct of asking someone to undress after agreeing to engage a sexual intercouse in exchange for money, demonstrate the clear statement directed at completing agreed- to act of prostitution.
Sexual intercourse is defined as sexual contact between individuals involving penetration into another person organ, no matter how slight is the penetration and ejacutation is not necessary to complete this type crime.
A lewd act "means touching the genitals, buttocks, or female breast of either the prostitute or customer with some part of the other person's body for the purpose of secual arousal or gratification of either person."1
Therefore, the main element of this crime is the acceptance, you could be charged of this crime, just agreeing to pay for sex or lewd act, even if you did not complete the act or the sexual intercourse.
Example: Anna is a prostitute, at one night, she went to the bar and offered to give John a blowjob for 100 dollars. John accepts the offer and both of them went to his car. However, before getting inside the car, an undercover police officer saw the scene and stop them.
In this scenario, Anna and John could be charged of prostitution, since both of them accept to the act. However, it is hard for the prosecution to prove the manifestation of commit and engage of the lewd act.
As already explained above, the crime of prostitution also include man and woman who solicits prostitution. Soliciting means to lure, or try to induce or elicit someone. if someone solicit another person to engage in an act of prostitution, it is going to constitute prostitution. Thus, the man/woman who makes an offer or proposal to engage an act of prostitution will be charged as soliciting, however the woman who accepts it will be charged as agreeing with it, so long as he/she intend to pursue the act.
The solicitor could be charged of prosecution, even if the prostitute did not possess the intent to furtherance of prostitution.
- Willfully act.
Finally, the last element that the prosecution needs to prove to initiate the prosecution charge is the willful action of the defendant. A person is acting in a willful way, when the intention is to do something on purpose, when there is no intent to hurt someone, gain advantage or break the law. "A person is not guilty of prostitution unless he or she seriously intends to carry through by performing an act of prostitution. A mere speaking of the words of solicitation is not enough for conviction of this offense." People v. Love (1980) 111 C.A.3d Supp. 1, 13, 168 C.R. 591.
In California Law, a violation of prostitution, codified under the Penal Code 647 (b) is punishment as misdemeanor by a fine not exceeding one thousand dollars ($1,000) or by imprisonment in the county jail not exceeding six months, or by both the fine and imprisonment.
However, the punishment will be aggravate as a felony, if the following circumstances had occurred:
(a) Prior Conviction. A defendant who has one prior conviction of violating the statute must receive a county jail sentence of not less than 45 days, which must be fully served.
A defendant who has two or more prior convictions must receive a county jail sentence of not less than 90 days, which must be fully served. The prior conviction must be charged in the accusatory pleading and found true by the trier of fact or admitted by the defendant. (P.C. 647.)
"(b) Prior Conviction and Positive Blood Test for AIDS.
A violation of the statute is a felony if (a) the defendant has a prior conviction for violation of the statute or of an offense listed in P.C. 1202.1(d) (requiring AIDS testing on conviction of a sex offense); and (b) a blood test for AIDS administered under P.C. 1202.1 or 1202.6 in connection with the prior conviction was positive and the defendant was so informed. The prior conviction and positive blood test results must be charged in the accusatory pleading and found true by the trier of fact or admitted by the defendant. (P.C. 647f; on P.C. 1202.1 and 1202.6, see 1 Cal. Crim. Law (4th), Introduction to Crimes, § 138.)
(c) Use of Automobile Within 1,000 Feet of Private Residence. If the violation of the statute was committed by use of an automobile within 1,000 feet of a private residence, the court, in addition to imposing any other punishment, may suspend the defendant's driver's license for a period not to exceed 30 days, or may order the defendant's driving privilege restricted to necessary travel for not more than 6 months. If driving is necessary to employment, the court may also allow the defendant to drive within the scope of employment. (P.C. 647.)
(d) Additional Fine for AIDS Education. In addition to any other fine assessed for violation of P.C. 647(b), the judge may assess a fine not to exceed $70 for AIDS education. However, no defendant may be denied probation because of an inability to pay the fine. (P.C. 647.1.)
(2) Enhanced Punishment for Child Prostitution. In addition to any other authorized or required enhancement, unlawful sexual intercourse under P.C. 261.5(c) or (d), sodomy under P.C. 286(b)(1), (b)(2), or (c)(1), lewd or lascivious act under P.C. 288(a) or (c)(1), or oral copulation under P.C. 288a(b)(1), (b)(2), or (c)(1), committed with a minor for money or other consideration, is punishable by an additional term of imprisonment in the state prison of 1 year. (P.C. 675; see 3 Cal. Crim. Law (4th), Punishment, § 371.)
In addition to any other penalty or fine imposed, a person who seeks to procure or procures the sexual services of a prostitute under age 18 in violation of P.C. 647(b) must be ordered to pay a fine of not more than $25,000. (P.C. 261.9(a).)" Witkin California Criminal Law, Fourth EditionSex Offenses and Crimes Against Decency.
A prostitution is a misdemeanor crime in California Law, if a person is convicted with this type of crime, the crime is going to be on the person's criminal records. If you are looking for a job and the employer does a criminal background check and there is a prostitution offense registered, it is likely that the employer won't hire someone with a misdemeanor background. If you have been charged with prostitution, you should promptly look for a Lawyer. San Diego Criminal Defense has a great deal of success defending our clients and we can help you build legal defenses that it could be use to contest these types of charges. If you would like more information, please contact our successful staff to help you with your legal problems.
To contest the charges San Diego Criminal Defense would be able to use the following legal defenses:
- Lack of agreement.
- False accusation.
- Mistaken identity.
- Lack of solicitation.
- Insufficient evidence.