San Diego Criminal Attorney is a reputable San Diego-based law firm with experienced criminal defense attorneys. With the number of years in the legal industry, the firm’s attorneys are knowledgeable about criminal laws in California and can tackle all kinds of prostitution and solicitation cases that a client could have. Even though prostitution and solicitation seem to be common, most people fall in trap of the law since the state of California has statutes governing these activities. Consequently, prosecutors file regular cases on this offense, affecting citizens who are otherwise law abiders. Seeking legal help when faced with these charges is instrumental in mounting practical defenses and avoiding life-changing penalties.
When Is A Person Guilty of Prostitution and Solicitation in California?
Penal Code 647 (b) of California law explains the legal intricacies of prostitution and solicitation. The statute dictates activities and situation that would lead to a conviction of the criminal offense. According to this section, it is unlawful for anyone (inclusive of minors) to pay or accept money or any other deliberation in exchange for a sexual act. A person commits prostitution if he/she accepts payments deliberately for sex. On the other hand, anyone who pays someone else deliberately for sexual gratification of themselves or another party would be liable for a solicitation offense. In short, the use of any deliberations for sex would land both parties involved in a legal bind, and charged in accordance of Penal Code 647 (b).
Penal Code 647(b) applies to both the prostitutes and the customers. Some of the prostitutes have middlemen commonly referred to as pimps. In addition to violating Penal Code 647, the pimps can be arrested for the violation of California’s pimping and pandering laws under Penal Code 266(h) and 266(i). They can also be indicted for supervising and aiding a prostitute in accordance with Penal Code 653.23.
Here are some of the violations of the solicitation and prostitution laws. For example, a man offering drugs to a woman in exchange for fellatio. Even if the woman is not a prostitute and she declines the offer, it is still punishable as prostitution and solicitation. Both of them can be charged for breaching Penal Code 647(b). There are also instances where a woman willingly allows a man to caress her breasts for money. In the latter case, both parties would be violating the legal provisions. The fact that both these scenarios involve money makes the parties in violation of the law.
What Determines a Conviction under Penal Code 647 (b) PC
Penal Code 647(b) strongly prohibits any form of prostitution and solicitation. However, conviction under this statute requires a proof beyond doubts of some elements of the crime.
This is the work of the prosecution. Here are some of the prostitution and solicitation elements:
Willful engagement in the act under the influence of money. As a critical element in the prosecution, a deliberate intercourse or lewd activity with money in consideration would land the accused in penalties and punishment. Essentially, willingly means on purpose, meaning that the person had the intent to have sexual intercourse. Regardless of whether the intent was to violate the statute or not, it is still punishable.
Soliciting prostitution. This entails a person requesting another person to engage in prostitution or the defendant intending to engage in sexual intercourse with the other person. The charges will depend on the person who initiated the interaction. The prosecution bench will charge the offense against the prostitute or the client in question.
Before a conviction, there must be proof of intention from the accused. This means that the defendant intended to engage in the act or prostitution. The intent will be determined by the offer made. Such offers could either be compensation such as money or even drugs. Nevertheless, the accused could be charged with solicitation even if the other person was not a prostitute or they had no agreement to the proposed transaction. In other cases, the charge is still applicable if the prostitute was an undercover bait officer.
Viability of the intentions is also a critical component in the trial. Viability depends on clarity of the perpetrator’s intention. Acts which look bad but prospectively innocent after assessment cannot prove solicitation. Some of the acts are being present in a known prostitution area, waving to a passing vehicle, nodding to strangers, or standing on a street corner suggestively dressed.
An agreement between the accused and another person to prostitute. In efforts to enact punishments, the prosecutor must prove that the defendant agreed to engage in prostitution with someone else, intended to engage in the act with that person and after mutual agreement, the defendant did something that suggestively commissioned the act of prostitution. As per the Penal Code 647(b), the person making the offer violates solicitation laws while that accepting the offer faces charges against prosecution.
Form of the offer. To be guilty, there must be more than a verbal offer as a proof that the accused had intent of committing the offense; they must have done something extra to warrant the act of prostitution. The extra act could be; handing over the agreed payment, withdrawing money from an automated machine in efforts to pay the other person involved, driving to the agreed location where the sexual act was to occur as well as instructing the client who has already accepted a solicitation to take of their clothes.
The accused age. A minor cannot be found guilty of prostitution in California. This announcement followed after the then California Governor, Jerry Brown, put into signing the California Bill SB 1322 on September 26th, 2016. According to SB 1322, a minor involved in prostitution is termed a commercially sexually exploited child. Such a victim would not go to juvenile jail for imprisonment. Instead, the victim will be deemed as a dependent child of the court before going into brief custody. When in temporary custody, the court will make an order that the child placed under the care of a family member or a child shelter for a maximum of 15 days. Under this provision, therefore, the prosecutor must prove that the accused is not a minor for a conviction under code 647 (b).
Charges to Prostitution and Solicitation in California
Violating Penal Code 647(b) is a criminal offense, and punishable depending on whether it is a first or subsequent offense to the accused and where the place of the violation actually took place. Here are the penalties.
For a first-time offender, the punishment involves up to six months in a county jail, a maximum fine of one thousand dollars, or both
Under the Penal Code 647(b), subsequent prostitution and solicitation offenses are priorable. This means that the penalty degree increases with every subsequent conviction. A second offense will earn the convict a compulsory minimum of forty-five days in a county jail. The third or additional offense will earn the convict an obligatory minimum of ninety days in the county jail.
The penalties for solicitation and prostitution increase regardless of the place of the act. The perpetrator gets the jail sentence and a fine in addition to the suspension of driver’s license for thirty days, or alternatively, a six-month driver’s license restriction. A restricted license essentially implies that the convict can only drive to or from work or school. The defendant will only get a lift if driving is a necessary part of the defendant’s employment.
Various local governments can as well impose punishments to the accused. If found guilty of prostitution and solicitation in a car while driving within Los Angeles, the person’s property or assets could be forfeited. This is allowed by the law through California asset forfeiture. According to Penal Code 647(b), the defenses to local prostitution and solicitation are same as California legal defenses.
Unlike other sex crime offenses like molestation and rape with the requirement for a sex offender registration, a conviction under code 647 exempts from this requirement. This is under CA Penal Code 290(c). Nevertheless, a judge has no exemption to dispose the sex offense registration if the offense resulted from sexual compulsion or gratification. This occurrence is common when convicted for solicitation.
Common Legal Defenses for Prostitution and Solicitation in California
Even when there is no best legal defense for prostitution and solicitation, there are different ways that an attorney can defend the charges. There are also ways that the defendant can plead guilty to the charges and still not get the conviction stigma. An experienced and knowledgeable lawyer is able to negotiate for charge reductions for the client. Here are some of the legal defenses that are commonly used in Penal Code 647(b) cases.
When describing entrapment, most sources rely on the event whereby a police officer engages in questionable conduct that causes a law-abiding citizen to commit a crime. That is, the victim commits an offense from being trapped by a law enforcer. Nevertheless, for it to qualify as a defense, it must involve something more than the chance to commit a crime. In prostitution and solicitation, the behaviors that could imitate entrapment are; badgering, flattery, repetition and insistency on requests, appealing to friendship or any other similar acts.
In most cases, when entrapment occurs, the defendant is usually a bait officer who is busted while undercover. The office is required to pose as a prostitute or potential client and entice the suspect to make offers so that he or she can be brought in for prostitution and solicitation. Sadly, most of these bait officers cross the line into seemingly entrapping the defendant.
In California, entrapment is an affirmative defense which means that once the defendant states that he or she was entrapped, then the proof automatically goes to the defendant. The best thing about entrapment is that it does not need to be proven beyond reasonable doubt which means that as long as the defendant establishes evidence, then they cannot be found guilty.
When the case lacks trustworthy evidence, then the defense is viable.
If the allegations on the agreement for prostitution engagement are not recorded, then the case lacks trustworthy evidence. Since the jurors have no real-time evidence to the agreement, then they may be hesitant to conclude the guilt of the defendant beyond reasonable doubt.
The insufficiency of evidence is another viable legal defense for Penal Code 647(b).
This is different from the lack of trustworthy evidence. In most cases, it arises when the intent cannot be identified. Even though a woman was given money by a man, the intention to use that as an exchange for sex is not viable.
There is also the mistake of fact which can be classified under the lack of intent.
For the defendant to be pronounced as guilty there must be the intention to specifically engage in a sexual act. Take the example of someone who is new in San Diego and staying at a hotel.
They go to the reception and ask for recommendations for a massage spa or parlor. The receptionist mistakes or rather thinks that he or she wants sex and recommends them to a known place for prostitution. In this scenario, the defendant is innocent as the intentions are mistaken.
Related Offenses (Prostitution and Solicitation)
There are some offenses that are termed as related offenses to prostitution and solicitation. Here are some of these instances.
Pimping and pandering is a crime related to prostitution and solicitation. They are classified under Penal Code 266(h) and 266(i) respectively. Pimping is referred to as the crime of consciously living off of a prostitute’s pay. The defendant does not have to take the earnings in exchange for finding clients for the prostitute for it to be classified as pimping. On the other hand, pandering is recruiting and encouraging someone to become or keep practicing prostitution or even making another person available for prostitution. It is a crime that is punishable. These are felonies that attract three, four or six years in the California state prison.
If one supervises or aids a prostitute, they can be punished under Penal Code 653.23. Anyone who helps a prostitute or solicitation can be accused of this crime. Take the example of a person driving his or her friend to a location where he or she hires a prostitute. Are they not aiding? If one is convicted, they earn themselves up to six months in county jail and/or a fine not exceeding one thousand dollars.
Lewd conduct in public is a related to prostitution and solicitation under Penal Code 647(a). If one engages in lewd act in public or solicits someone else to do the same, they can be arrested for breach of the California law. The potential customers and the solicitor are charged with Penal Code 647(b) and Penal Code 647(a).
Loitering to commit prostitution is also punishable under Penal Code 653.22 California law. If a defendant loiters in a public place with the aim of engaging in prostitution, then they are violating Penal Code 653.22. This charge mostly fails when there is no evidence coining the defendant to practicing prostitution. If one is standing in a street, known for prostitution, dressed suggestively and waving at passing cars, then they will be charged for loitering with the intention to commit prostitution. The convict will earn six months in jail and/ or a fine not exceeding one hundred thousand dollars.
Exposing one’s genitals in public is also punishable under Penal Code 314 California law. Nevertheless, for one to be guilty there must be the intention to directly show the public his or her genitals. In most cases, prostitution will take place in private cars, hotel premises, remote as well as secluded areas. Since it is prostitution and solicitation related case, it attracts six months in the county jail. Very few instances have fines.
Rape under California Penal Code 261 is nonconsensual sexual intercourse, commonly referred to as forced sex. Under this Penal Code, a prostitute has the power to ask the client to stop at any given time. If he or she refuses to stop, then they may be charged with both prostitution and rape. In California, rape is a very serious crime or rather felony and attracts heavy punishment. A defendant will be sent to the California State Prison for three, six or eight years. In the case of a minor victim, then the defendant gets seven to thirteen years in prison, depending on the ruling to the jury.
If you ever find yourself accused of prostitution and solicitation charges, it is essential for you to contact a firm as experienced and reputable as San Diego Criminal Defense Attorney. We have criminal legal professionals who will walk with you on the entire journey and ensure that you get justice. Call us to discuss your case confidentially at 619-880-5474. You never have to go through this alone; we are here for you!