Facing Criminal Charges For Prostitution? The Sooner You Act, the Stronger
Your Defense Will Be.
Penal Code 647(b) PC is the California law that makes it illegal to engage in or to solicit prostitution. This is defined as offering to pay or accept money or something of value in exchange for a sexual act. A conviction is a misdemeanor that carries a penalty of up to 6 months in county jail and a fine of up to $1000.00.
PC 647(b) Applies To Prostitutes and Customers:
Under California law, when a prostitute and a customer engage in sexual intercourse or lewd acts, both are engaged in an “act of prostitution.”
Thus the law applies to both prostitutes and their customers (also known as “johns”).
Some prostitutes also have middlemen, known generally as “pimps.”
Pimps are more likely to be arrested for violating:
California’s “pimping and pandering” laws, Penal Code 266h and Penal Code 266i, or
A man offers drugs to a woman in exchange for a “blow job” (even if she is not a prostitute and she says “no”).
A woman allows a man to fondle her breasts in exchange for money.
A police officer accepts a woman’s offer to have sex in exchange for not writing her a traffic ticket.
Prostitution and solicitation are both misdemeanors in California.
For a first prostitution or solicitation offense, potential penalties can include:
Up to six (6) months in county jail, and/or
A fine of up to one thousand dollars ($1,000).8
Penal Code 647(b) is a “priorable” offense. This means punishment for prostitution/solicitation increases with each subsequent conviction as follows:
Second offense: a mandatory minimum of forty-five (45) days in a county jail.9
Third or subsequent offense: a mandatory minimum of ninety (90) days in a county jail.10
Additional Penalty If Committed In a Car:
Both prostitutes and Johns face a potential additional penalty if:
The defendant was in a vehicle at the time of the crime, AND
The defendant was within 1,000 feet of a residence.
These Additional Penalties Can Include:
A suspended driver’s license for up to 30days,11 or
A restricted driver’s license for up 6 months.12
No Mandatory Sex Offender Registration:
A conviction for prostitution or solicitation does not trigger automatic registration as a California sex offender.
However, a judge has the discretion to order a defendant to register whenever a crime is “the result of sexual compulsion or for purposes of sexual gratification.13
As a practical matter, 647 b PC convictions seldom result in sex offender registration.
Every prostitution and solicitation case is unique. But some of the most common legal defenses we use in these cases include:
Lack of trustworthy evidence,
Insufficient evidence, and/or
Mistake of fact / lack of intent to engage in prostitution.
How does California law define prostitution and solicitation?
Penal Code 647(b) PC defines “prostitution” as the exchange of money or other consideration (such as goods or services) for sex or lewd conduct.14 But the crime may be complete even if the proposed conduct never actually took place.
Specifically, 647(b) PC Prohibits Three Types of Acts:
Engaging in an act of prostitution,
Soliciting an act of prostitution, or
Agreeing to engage in an act of prostitution.15
Which specific behavior is charged determines what facts (“elements of the crime”) the prosecution must prove in court. Let’s take a closer look at each of these specific situations.
Engaging In An Act Of Prostitution:
A person engages in prostitution if he or she:
willfully engaged in sexual intercourse or a lewd act with someone,
in exchange for money or other compensation.16
“Willfully” means the defendant engaged in the act willingly or on purpose.17 It does not require an intent to break the law.
A “lewd” Act Is Defined As:
any act that involves touching the genitals, buttocks, or female breast of another person,
with the specific intent to arouse or gratify someone sexually.19
Under California law, a person solicits prostitution when he or she:
requests that another person engage in an act of prostitution; and
with the intention to engage in an act of prostitution with the other person.20
Depending on who initiated the interaction, prosecutors might charge this offense against either the prostitute or the customer.
Proof Of Intent Required:
For a defendant to be guilty of solicitation, he or she must have intended to engage in an act of prostitution.
Intent is typically shown by an offer to pay money or other consideration (often drugs) in exchange for sex.22
However, it is not necessary that the other party shared the same intent.23 For example, a person could still be charged with solicitation even if:
The person solicited was not a prostitute;
The “prostitute” was really an undercover decoy officer; or
The person solicited was a prostitute who didn’t agree to the proposed transaction.
Intent to solicit prostitution must be clear. Some acts may look bad but are potentially innocent. These acts are not – at least, by themselves – proof of the intent to solicit prostitution.
Examples Of Such Acts Include:
Being present in a known area of prostitution,
Waving to a passing vehicle,
Nodding to a stranger, or
Standing on a street corner in a miniskirt.24
Example: Katrina is a police officer participating in an undercover prostitution sting operation. She puts on provocative clothing and stands on a street corner where prostitutes are known to gather. Frank drives by Katrina several times and then pulls over. He offers Katrina $200 to have sex with him and shows her the cash. Frank’s actions clearly indicate his intent to initiate a prostitution transaction. But… let’s say that Frank had just propositioned Katrina on a dare from his friends. Since he didn’t intend to go through with an act of prostitution, he would not be guilty of solicitation.
Agreeing To Engage In An Act Of Prostitution:
Someone can violate PC 647(b) merely by agreeing to engage in an act of prostitution – but only if he or she means to follow through on it.
To Prove This, The Prosecutor Must Establish That:
The defendant agreed to engage in an act of prostitution with someone else;
The defendant intended to engage in an act of prostitution with that person; and
In addition to agreeing, the defendant did something to further the commission of an act of prostitution.25
This variation of PC 647(b) is the mirror image of soliciting prostitution. Someone who makes the offer to engage in a sex act can be charged with solicitation. But the person who accepts the offer will be charged with agreeing to engage in an act of prostitution. More than a verbal offer is required. To be guilty of “agreeing to engage in an act of prostitution,” a defendant must have done something to further the commission of an act of prostitution.26
This extra “something” is more than just accepting a solicitation.
Handing over the agreed-upon payment,
Withdrawing money from an ATM in order to pay the other person,
Driving to an agreed-upon location where the sexual activity will take place, or
Instructing a customer who has accepted a solicitation to undress.
Children Under 18 Cannot Be Guilty of Prostitution:
Children Under Age 18 Cannot Be Prosecuted for Prostitution in California.
This resulted from passage of California Senate Bill SB 1322, which then California Governor Jerry Brown signed into law on September, 2016.31
SB 1322 amended California PC 647b so that a child under 18 who commits an act of prostitution is considered a “commercially sexually exploited child.”
The child will not go to juvenile hall or jail. Instead, the child may be adjudged a "dependent child of the court" and taken into temporary custody. If taken into temporary custody, the court will order the child placed for up to 15 days with a family member or an emergency shelter.
What are the penalties and consequences?
Violation of 647 b PC Is Always A Misdemeanor. The punishment depends on:
whether it is a first or subsequent offense, and
where the violation took place.
Punishment For a First Offense:
Punishment for a first offense can include:
Up to six (6) months in county jail, and/or
A fine of up to one thousand dollars ($1,000).
Subsequent Prostitution/Solicitation Offenses:
California Penal Code 647b is a “priorable” offense. This means that the punishment increases with each subsequent conviction. Penalties for a second or subsequent violation of California’s prostitution/solicitation law include:
Second offense: a mandatory minimum of forty-five (45) days in a county jail.
Third or subsequent offense: a mandatory minimum of ninety (90) days in a county jail.
Prostitution or Solicitation in a Car in a Residential Area:
Penalties for prostitution or solicitation in California increase if the defendant committed the crime:
while using a car, AND
within 1,000 feet of a residence.
In addition to ordering a jail sentence and/or a fine, the court may:
Suspend the defendant’s driver’s license for up to thirty (30) days,40 or
Issue the defendant a restricted license for up to six (6) months.41
A restricted license allows the defendant to drive to and from work or school. It also permits driving for work defendant If driving is a necessary part of the defendant’s employment.42
Additional Punishment By Local Governments:
Local jurisdictions may impose additional penalties for prostitution and/or solicitation.
For instance, if a defendant is convicted in Los Angeles for prostitution or while in a car, the government may seize and forfeit the defendant’s vehicle.43 This is a form of California Asset Forfeiture and is in addition to the other penalties allowed by law. Defenses to local prostitution and solicitation laws are generally the same as legal defenses to Penal Code 647b.
Does 647 b PC Require Sex Offender Registration?
Neither prostitution nor solicitation requires mandatory sex offender registration under California Penal Code 290 PC. However, a judge has the discretion to require registration if a criminal offense was “the result of sexual compulsion or for sexual gratification.”This description potentially applies to almost any solicitation conviction. As a practical matter, however, sex offender registration is rarely, if ever, imposed in connection with California prostitution or solicitation cases.
How Can The Charges Be Disputed?
There is no “best legal defense” to prostitution or solicitation charges. But there are several defenses that are used frequently in Penal Code 647(b) cases. These include:
Lack of trustworthy evidence,
Insufficient evidence, and/or
Mistake of fact / lack of intent.
In addition, there are a number of “charge reductions” a defendant might plead guilty to that don’t carry the stigma of a conviction for prostitution. An experienced California sex crimes lawyer can often negotiate these as part of a plea bargain. Let’s take a closer look at these defenses and charge reductions PC 647(b) charges.
Entrapment occurs when a police officer engages in conduct that would cause a normally law-abiding person to commit a crime.45 It requires something more, however, than merely giving someone an opportunity to commit a crime.
Depending On The Circumstances, Behaviors That Might Constitute Entrapment Include:
Flattery or coaxing,
Repeated and insistent requests,
An appeal to friendship or sympathy,
A guarantee that an act is not illegal or that it will go undetected,
An offer of an extraordinary beneﬁt, or
Other similar conduct.47
The use of “Decoy” Officers:
The entrapment defense often arises when the defendant is busted in an undercover sting operation.
In a typical sting, a “decoy” officer poses as a prostitute or a potential customer. The decoy then tries to entice the suspect into making an offer for an act of prostitution. Unfortunately, many of these decoy cops cross the line into police entrapment. They lure otherwise-law-abiding citizens with unfair flattery, promises or enticements.
Example: While on a business trip, Ted meets “Stacy” at the hotel bar. Stacy is really an undercover officer working a prostitution sting. She comes on to him and he invites her to his hotel room. Once there, Stacy starts telling Ted all the things she would like to do him. Once he is worked up, she tells him she needs $500 for her mother’s surgery. She says she would be very, very appreciative if Ted would help her out. Ted would never have hired a prostitute on his own initiative. But based on Stacy’s actions, he agrees to give her $500. Stacy then discloses that she’s an undercover cop and arrests him.
Entrapment Is An Affirmative Defense
Entrapment is an affirmative defense in California. That means that once the defendant claims he or she was entrapped, the burden of proof shifts to the defendant to prove it.
Fortunately, entrapment does not need to be proved “beyond a reasonable doubt.” The defendant must simply establish the entrapment by a “Preponderance of the Evidence.” “Preponderance of the evidence” means it is “more likely than not” that the police engaged in entrapment. If the defendant can establish this, he or she must be found “not guilty.”
Lack Of Trustworthy Evidence:
Lack of trustworthy evidence is a common defense to charges under Penal Code 647(b). This is especially true when the alleged agreement to engage in prostitution was not recorded.
This raises a red flag for jurors. If the officer was wired, why didn’t he/she record the conversation? What is the officer hiding? Without hearing the conversation itself, many jurors are hesitant to conclude guilt beyond a reasonable doubt.
“Insufficient evidence” is a slightly different defense than untrustworthy evidence. In this case, the evidence that exists might be trustworthy, but it might be only part of what the prosecution needs to prove.
Take, for instance, our example of Ted and Stacy from section 3.1, above.
Ted might have agreed to have sex with Stacy. He might even have given her $500. But the prosecution needs to prove intent. Perhaps Ted believed the story “Stacy” told about her mother’s surgery. In other words, he gave her the money, but it wasn’t intended as an exchange for sex.
Mistake of Fact / Lack of Intent:
For someone to be guilty of prostitution or solicitation, he or she must have specifically intended to engage in a sex act. In some cases, a defendant may have made what’s known as a “mistake of fact” under California law.
Example: Bruce falls asleep in a bad position while flying out-of-town for a business trip. Afterwards, his neck really hurts. When he arrives at his hotel, he asks for a recommendation to a massage parlor. He has no idea that the clerk thinks he asking for a referral to a known place of prostitution.
Charge Reductions / Plea Bargains:
The most common charge reductions that a defendant might get as part of a plea bargain are:
Neither disturbing the peace nor criminal trespass really has anything to do with prostitution or solicitation.
But they flag for law enforcement agencies that someone may have originally faced a prostitution charge. At the same time, they are less serious offenses that let a defendant avoid the stigma of a prostitution or solicitation conviction. As a result, these charges represent a compromise that often suits both the prosecution and the defendant. Alternatively, the charge might get reduced to Penal Code 647(a), lewd conduct in public.
Lewd conduct in public is a less serious offense than prostitution or solicitation. And unlike 647(b), it isn’t a priorable offense.
What Crimes Are Related to Prostitution?
“Pimping” and “Pandering”-- California Penal Code 266h and 266i:
“Pimping” per 266h PC is the crime of knowingly living in whole or in part off of a prostitute’s pay.51 It can -- but does not have to -- include taking part of a prostitute’s earnings in exchange for finding customers for him or her.
“Pandering” per 266i PC can refer either to:
recruiting or encouraging someone to become or remain a prostitute, or
making another person available for the purpose of prostitution.52
Pimping and pandering are felonies in California. Conviction on either of these crimes carries a possible penalty of three (3), four (4), or six (6) years in the California state prison.
Supervising or Aiding a Prostitute — Penal Code 653.23 PC:
Closely related to the crimes of pimping and pandering is Penal Code 653.23, “supervising or aiding a prostitute.”
Basically, anyone who helps someone else commit prostitution or solicitation in any way can be accused of this crime.
For example, if you drive a friend to a location where he plans to hire a prostitute, you might be charged with aiding in prostitution.
Supervising or aiding a prostitute is a misdemeanor and carries the same penalties as prostitution or solicitation:
Up to six (6) months in county jail, and/or
A fine of up to one thousand dollars ($1,000).
Lewd Conduct in Public — Penal Code 647(a) PC:
Penal Code 647(a) PC is California’s “lewd conduct in public” law. PC 647(a) makes it a misdemeanor to engage in a lewd act in public or to solicit someone else to do so. Streetwalkers and their potential customers are often charged with both Penal Code 647(a) and 647(b).
As Beverly Hills Sex Crimes Defense Attorney John Murray Explains:
“Cops often set up surveillance post to ‘watch’ known prostitutes who work at public intersections. As soon as they see a ‘john’ make contact, they follow the suspects. Once the suspects engage in an act of prostitution (often in a locked car), the police arrest both parties under Penal Code 647(a) and 647(b).”
Since the police are only watching from a distance, lewd conduct charges can be difficult to prove.
But because it is a less serious offense than PC 647(b), it can sometimes be a desirable plea bargain.
Loitering to Commit Prostitution — Penal Code 653.22 PC:
Penal Code 653.22 PC is California’s law against loitering for prostitution. A defendant violates PC 653.22 when he or she loiters in a public place with the specific intent to engage in prostitution.54
The California legislature added this section to help police combat prostitution. It is often charged when there is no evidence of a specific act of prostitution.
Example: The police observe a woman standing on a street corner well-known for prostitution. She is scantily clad and waving to cars as they pass. This alone is probably sufficient to trigger an arrest for loitering to commit prostitution.
Penal Code 653.22 is a misdemeanor. Potential Penalties Can Include:
Up to six months of jail, and/or
A fine of up to one thousand dollars ($1,000).55
Indecent exposure — Penal Code 314 PC:
Penal Code 314 PC, California’s indecent exposure law, prohibits “exposing” one’s genitals in public.56
However, in order to be guilty under PC 314, the defendant must have intended to direct public attention to his or her genitals.
Many prostitution acts take place in private cars, hotel rooms, or remote, secluded areas. So, while it may seem that an act of prostitution could additionally trigger this charge, this typically wouldn’t be the case.
Indecent exposure is generally a misdemeanor punishable by up to six months in jail.
Rape — California Penal Code 261 PC:
Under California Penal Code 261 PC “rape” is defined as nonconsensual sexual intercourse.58
Per PC 261, a prostitute has the right to ask a customer to stop at any time. If the customer refuses, he could be charged with both prostitution and rape.
Rape is a serious felony in California. Punishment for Rape Can Include:
Three (3), six (6) or eight (8) years in California state prison, or
If the alleged victim was a minor, seven (7) to thirteen (13) years in prison.
The attorneys at Monterey Peninsula Law Inc. have an extensive knowledge of California's Criminal Justice system.
If you or someone you know has been arrested for, or charged with, Prostitution or Lewd Acts, our attorneys will analyze the facts of your case and plan a strategy that will help you obtain the best possible outcome.
Our criminal lawyer will give you a FREE initial meeting to discuss your case and recommend a course of action. Even one hour talking to a true professional can change the way you view your case. Don’t face a Prostitution or Lewd Acts Charge without representation. We at Monterey Peninsula Law Inc. are here to help.
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