Accused of Solicitation of Prostitution?
The Bay Area may have a reputation for being socially progressive when it comes to sex, but prostitution remains a crime under California law. Not only do prosecutors in San Mateo and Santa Clara counties actively pursue solicitation of prostitution charges, the police frequently conduct stings designed to catch people in the act of solicitation. Even when there is no sex and no money actually changes hands, there is often sufficient evidence of “intent” to sustain a conviction.
Solicitation Under Section 647(b)
There are a number of California statutes that address prostitution and related crimes. The most common type of solicitation charge falls under Section 647(b) of the Penal Code. This applies to “[a]n individual who solicits, or who agrees to engage in, or who engages in, any act of prostitution with the intent to receive compensation, money, or anything of value from another person.”
This language is quite broad. Under Section 647(b), an “act of prostitution” encompasses more than just sexual intercourse. It also includes any “lewd act,” which basically refers to touching of the genitals, buttocks, or female breast for the purposes of sexual arousal. In other words, paying someone to masturbate in front of you is considered an act of prostitution, even if you do not touch anything yourself.
With respect to solicitation of prostitution, the burden is on the prosecution to prove–beyond a reasonable doubt–that you had the “specific intent to engage in an act of prostitution” and that you acted on that intent. The phrase “specific intent” is critical. It is easy for a police officer to misconstrue an innocent gesture or communication as solicitation. For example, if you smile and nod to a woman on the street who happens to be a prostitute, that does not necessarily demonstrate specific intent to solicit on your part. Nor does simply standing or parking your car on a street corner frequented by prostitutes. The police have no right to arrest you just because you are in a certain area.
But by the same token, some courts have held that specific intent may be proven by nonverbal actions. If a person pulls up to that same hypothetical street corner and shows a prostitute a $100 bill, that can be considered sufficient evidence of solicitation even if nobody ever says anything overt. While solicitation does not amount to a fully executed contract for sex, in order for solicitation to occur, the other party must actually “receive” the offer. If the purported recipient never saw or heard the defendant’s offer, the prosecution cannot meet its burden of proof on solicitation. Although in this scenario, it may still be possible to charge the offeror with “attempted solicitation,” which is a separate offense under Section 664 of the Penal Code. Attempted solicitation could also, in theory, apply to simply standing on the street corner and nodding at someone known to be a prostitute.
In reality, such charges are difficult to prove. A more common situation is one where an undercover police officer poses as a prostitute and waits for a potential defendant to come and make her an offer. These officers almost always wear a recording device, which can provide valuable evidence if and when someone is arrested for solicitation. In cases we have seen involving police stings, someone knocks on a hotel door after responding to a vague ad for services and is cited for solicitation with little more evidence than someone who is simply knocking on the wrong door. While few would bring a case like this to trial because they want to keep the matter quiet, you should talk to an attorney about your right to keep the case off your conviction record through diversion or a negotiation with the district attorney. Whatever you do, do not try to talk your way out of the citation with police. You have the right to remain silent and should do so to preserve your defenses.
What Are the Penalties for Solicitation of Prostitution?
A Section 647(b) violation is a misdemeanor. So if you are convicted of solicitation of prostitution, the court has the discretion to sentence you to up to six months in the county jail and pay a fine of no more than $1,000. For most first-time offenders, the judge is likely to sentence a defendant to probation instead. For first time offenders, more courts’ District Attorneys are offering diversion programs, which can substitute for But keep in mind that the penalties for solicitation, or any prostitution offense, escalate with each subsequent conviction. So for a second or third conviction, the judge is required to sentence the defendant to jail time.
In addition, a solicitation conviction may affect your driving privileges. Section 647 provides that if the act of solicitation or prostitution is “committed within 1,000 feet of a private residence and with the use of a vehicle,” the court can suspend the defendant’s driver’s license up to 30 days. As an alternative to suspension, the judge may instead issue a “restricted” license that lasts up to 6 months. This allows the defendant to use a motor vehicle only to “travel to and from the person’s place of employment or education” or to drive “in that person’s scope of employment.”
Does a Solicitation Conviction Make Me a “Sex Offender”?
You might be wondering if a single solicitation arrest with no other charges will lead to you being placed on the California Sex Offender Registry. As a general rule, that is very unlikely to happen. While many types of sex crimes automatically require registration upon conviction, misdemeanor solicitation is not one of them.
But under state law, a judge does have the discretion to order registration as a sentencing condition for any crime, including a Section 647(b) violation. Is that likely to happen? No, especially with first-time offenders. California’s Sex Offender Registration Act provides that a judge should only require registration when the defendant “committed the offense as a result of sexual compulsion or for purposes of sexual gratification.”
Defending Yourself Against a Solicitation Charge
As with any criminal charge, the first thing you should do is contact the qualified San Mateo and Santa Clara criminal defense attorney at the Law Office of James Dunn. If this is the first time you have ever been arrested, it can be scary and overwhelming. We can walk you through the process and make sure the police and the prosecution respect your constitutional rights.
Many times, a solicitation charge can be negotiated down to a lesser charge like “disturbing the peace” or “criminal trespass.” These are also misdemeanors, but they do not carry the same level of public embarrassment or social stigma as solicitation of prostitution.
If a negotiated plea is not possible, we will fight for you in court. Solicitation cases are often built on insufficient or untrustworthy evidence. Sometimes the police outright resort to entrapment–essentially pressuring the defendant into breaking the law–which is itself illegal.
Whatever the truth, we can get to the bottom of your case and work to achieve the most favorable outcome. Call us today if you have been charged with any type of prostitution or sex offense and need immediate legal assistance.
A conviction in a California court for this kind of offense on your record can damage your chances of employment, and can pose immigration issues for non-citizens. Employers in Silicon Valley will find these black marks on a prospective employee’s background check and we do not want one moment of indiscretion to affect the rest of your life – which is why we always work to keep these matters off our client’s records. An accusation that you have engaged in any kind of prostitution or solicitation offense is serious, and could result in serious penalties – if you are facing charges you should contact the Law Office of James Dunn immediately to discuss your case with one of our experienced lawyers.
Sex crime charges depend on swift action, which is why the firm offers free case evaluations to all prospective clients. There is too much to lose to be hesitant about retaining a qualified criminal defense attorney who will vigorously defend your freedom. Contact the Law Office of James Dunn today at one of our office locations in Redwood City, Palo Alto or San Jose and Dublin.
Half the Cost, Twice the Work
Jim Dunn fixed my previous lawyers blunders, literally cost half as much, didn’t charge me until my case was settled. He got me the best possible outcome after miscommunications with the courts, mostly my previous lawyer was to blame. There were countless little things that Jim did that won’t get named here, but he visited me in Jail on a Sunday evening, he fixed the miswriting of the court scribe, a last minute catch on Jim’s part, my case was first, his pay was second. I like him, he is personable, he called to check on me, I could call him and actually reach him, not go through a secretary and hope to be reached in the same day like my last lawyer. I would definitely hire him again and even form a partnership to become the family lawyer. If you have a run in with with law, you want Jim Dunn on your side, he only tells you the truth, and genuinely wants to help you!
Reviewer: Charlie M. — September 4, 2015 – San Mateo, CA