The Crime of - Lewd or dissolute conduct in public - A former d.a. explains

-Under penal code section 647a, there's four things that the prosecutor has to approve, or what we call elements of the crime, to prove you guilty of lewd conduct in public. First of all, that you touched your private parts or the private parts of somebody else. And by private parts, the law means either the genitals the butt or the female breast. So first, that you touched your private parts or that of somebody else's. Secondly, that you did so for the purpose of *** gratification. Thirdly, that you did this in public, or in a place open to public view. And fourth, and this is really the key to the whole crime, that you knew or reasonably should have known that there was a third party present who would be offended by it. -Well, what happens is this. The police designate particular officers to go out into the city or wherever, to an adult bookstore, to a public park, or simply on the streets, and to find gay men and initiate affectionate moments, *** moments, moments that would happen in a straight night club, moments that would happen at a high school football game. But because they're happening between gay men, and the officers are seeking gay men, it becomes an arrest. An arrest where, if anybody else was doing it, at any other similar place, absolutely no action would happen. -Most of these lewd conduct arrests happen in the context of an undercover sting operation. The undercover sets up in a park, a bathroom, and alley, an adult bookstore, and is pretending to be gay and cruising you. He's trying to bait you to do something *** so that he can then arrest you. -If you're convicted of lewd conduct in public it's a misdemeanor. You could face probation, fines, and potentially up to a year in county jail. Currently, it's not a registerable offense. That means that a conviction for 647a does not require that you register as a sex offender, although that's something that the legislature could change later on. However, what the prosecutor sometimes does is threaten you that if you don't plead guilty to lewd conduct, that he'll add a charge of indecent exposure and try to convict you of that. And that does require sex registration for life. And so, the prosecutor will often use that as leverage to try to coerce you into pleading guilty to a very weak lewd conduct case. -Well, think of it this way. The person who's receiving and reviewing your criminal record isn't necessarily going to know what a 647a is. When they look it up on Google or Yahoo or whatever, they're going to see lewd conduct in public and they're going to be left free to make the conclusion that you're a *** deviant. Now, that's bad enough, but think about when you really need to your criminal record to be a good one. When you're applying for a job, when you're applying for a promotion, entering the military, applying to adopt a child. So, you don't want the conclusion that you're a *** deviant or you have a criminal record coming up. That is why, when you are facing a 647a you do not want to just take a plea. You want to fight it. We hear at Shouse Law Group have a long track record of either getting these case reduce or dismissed. -As an LGBT firm, we have a niche practice in defending lewd conduct cases. Over the years we have represented hundreds of people who have been charged with this type of offense, and we've had the good fortune in almost universally getting the 647a charge dismissed. There are a lot of people who just want to go to court and plead guilty and just get the whole thing over with. And if that's the case, then we're not the law firm for you because, as a matter of principle, we don't plead our clients guilty to this charge. We understand that people want closure, and we want closure too. But we want closure with the charge dismissed, not with a lewd conduct conviction. -The most common defense in a lewd conduct case really goes to this fourth element of the crime and taking the position that you reasonably believed that there was no third party present who would be offended by it. What people have to realize is that it's not inherently illegal to mess around sexually in public. There's no law in the state of California that says it's illegal to have sex in public. There's no law in California that says it's illegal to be naked in public. It's only illegal if there's people around who would be offended by it. In most of these scenarios when people get arrested, you're alone with this undercover in the bathroom, or in a remote area of Griffith Park, or in a secluded movie room in an adult bookstore. And the only other person who's there is this undercover who's pretending that he's gay, pretending that he's flirting with you, pretending that he wants to mess around, so you can't reasonably be expected to believe that there's others who would be offended by it because you've been led to believe the only one there is looking to mess around. That's the whole point. -Another common defense in 647a lewd conduct cases is that the person did not touch himself sexually. A lot of these are bathroom cases where the person is urinating and, coming to the end of urinating, they will be wiggling their *** in order to get the last few drops of urine out and a cop will see that and say, oh, he's ***. Now, it's true. The person did have his *** in his hand and there was a wiggling motion, but there was nothing *** about it, he was not ***, and it's not lewd conduct. -It's not uncommon in these types of cases to find that the officers just outright lie. Often, in this situation, what we'll do is something called a piteous motion where we will get the personnel file of this officer. And, a lot of times, what we will find is that this officer has a history of fabricating evidence and being insensitive toward particular groups. When we find this, we can use this evidence to attack his credibility in court. -I was a prosecutor in Los Angeles County for five years and I had no trouble prosecuting child molesters and carjackers, legitimate criminals. But I would never prosecute a case like this. If the police brought me one of these cases I would dismiss or I would recuse myself, but I didn't want to be involved because I knew what it is. It's about homophobic police officers harassing and targeting members of our community. And the very fact that these sting operations even exist arises out of institutionalized homophobia in these departments. And let me tell you, this could happen to any of us. I know that these sting operations exist, so when I use a bathroom in public I'm paranoid. I don't make eye contact with anybody, I get in there and I do my business and I get out of there. But if I was unsuspecting, if I didn't know better, I could easily get entrapped and arrested in one of these scenarios for doing nothing more than flirting back at someone who I thought was flirting with me. -We have LGBT lawyers on staff at this law firm. We understand this charge and we take it personally. We want to help people fight this.