If you’re arrested in San Diego for engaging in lewd conduct in public under Penal Code Section 647(a) or indecent exposure under Penal Code Section 314, it can be embarrassing and result in significant penalties, which may include a misdemeanor conviction, informal probation, fines and court fees, counseling and other potential consequences. Because either of these offenses constitutes a misdemeanor, a conviction will result in a criminal record that may impact your ability to obtain future employment and limit your housing options.
As a defense attorney with nearly a decade of experience in Southern California, I’ve helped hundreds of people accused of these crimes avoid conviction or obtain a substantial reduction in the charges or penalties. Below is what you need to know about how the law works in these cases, defense strategies that may be successful in your case and the potential consequences of conviction.
If you have questions or want to understand the legal options available for your specific case, I invite you to contact me for a free consultation.
Lewd Conduct in Public
What the Law Says
The prosecutor must prove several facts (called “elements of the offense”) in order to obtain a conviction for engaging in lewd conduct in public under Penal Code Section 647(a):
- You willfully engaged in touching your own or another’s intimate body parts.
- You did so to arouse yourself (or another) or to annoy someone.
- You did so in a public place, a place open to the public, or in public view.
- There was someone present who may have been offended.
- You reasonably should have known that the person present might be offended.
Keep in mind that the notion of a “public place” is construed fairly broadly and may include a private booth inside an adult movie house, a room with a closed door in a massage parlor, a private jacuzzi room in a bathhouse or even inside your car.
The key to defense here usually hinges on the issue of whether you should have known someone else was present who would be offended by your actions. Many times people engage in some form of sexual activity in a public forum like a parking lot, public restroom, park or similar location and believe that they are hidden from public view. Because the essence of this criminal offense is to protect those who might be offended by witnessing a sex act in public, I’m often able to successfully argue that you did not reasonably know someone was present who would be offended.
Additionally, police officers serving as decoys often conduct sting operations where they may make eye contact, flirt, touch their genitals through their pants or engage in other types of conduct to elicit a sexual response from you. A common example might include a police officer winking and making suggestive comments, and perhaps even making a gesture as if the officer were masturbating. However, the way this encounter typically ends is that you drop your pants and the officer suddenly arrests you. If the officer’s advances are too aggressive, I may successfully be able to argue that you were not inclined to engage in the conduct and that the officer entrapped you.
I’ve successfully handled many of these cases in San Diego. I may be able to persuade the prosecutor to agree that if you successfully complete counseling or some classes, the charges will be dismissed.
Alternatively, if the facts of your case do not make this approach feasible, I may be able to convince the prosecutor to reduce the charge to trespassing or disturbing the peace so that you can avoid the negative stigma associated with a conviction for lewd conduct.
What the Law Says
A charge of indecent exposure frequently accompanies a charge of lewd conduct in public in San Diego. Penal Code Section 314 essentially defines indecent exposure as intentionally exposing one’s genitals in the presence of a third party who would be offended and intentionally drawing attention to them to gratify oneself or offend another. Although many assume indecent exposure is a relatively minor offense, a conviction can mean lifetime registration as a sex offender under Penal Code Section 290.
I typically examine all evidence including audio or video evidence, the officer’s investigative report, and prior reports involving similar crimes involving the arresting officer. I have an excellent track record of obtaining dismissals for these types of cases—sometimes before the prosecutor has even decided to formally file charges. When this is not possible, I can usually obtain a substantial reduction of charges.
A charge of indecent exposure often turns on whether or not exposing yourself was done in a public place where someone was likely to be present and offended. Many people arrested for indecent exposure in San Diego reasonably believe they are obscured from public view. I have successfully defended many people charged with indecent exposure, lewd conduct or both based on the fact that my client reasonably believed there was no one present who would be offended.
Additionally, I’m often able to attack the sufficiency of the prosecutor’s evidence that your actions were intended to draw attention to your exposed sexual body parts. Furthermore, charges of both lewd conduct and indecent exposure often arise out of sting operations conducted by law enforcement officers attempting to identify and arrest people engaging in sexual acts in public.
If you’re charged with either offense, know that it is not in and of itself illegal to engage in sexual activity or even expose yourself in public unless other specific conditions exist. Police officers acting as decoys may engage in over-the-top sexual advances or flirtations that cause otherwise law-abiding citizens to feel pressured do something that may constitute lewd conduct or indecent exposure. Entrapment occurs when police action induces individuals to commit an offense they ordinary would be unlikely to commit. I’m often able to allege and prove that my client has been entrapped under these circumstances.
Consequences of Conviction
In San Diego, indecent exposure is typically charged as a misdemeanor. A conviction may result in a maximum six-month term in county jail, a fine of $1,000 plus applicable court fees and the requirement that you register as a sex offender under PC Section 290. The penalties can be even more severe if you are convicted of aggravated indecent exposure, which essentially amounts to engaging in indecent exposure in an inhabited dwelling or building.
If you’re under investigation or have been formally charged with lewd conduct or indecent exposure, do not speak with law enforcement or the district attorney! Always decline to be interviewed by law enforcement or prosecutors until you have consulted an attorney.