Introduction

Engaging in Lewd Conduct (previously referred to as “Lewd and Lascivious Conduct”) encompasses a wide range of crimes that involve both adults and minors. Primarily the former will be discussed in this article as crimes relating to minors can be found on other pages of this website.

Sometimes these crimes can be charged as Indecent Exposure (California Penal Code section 314) or simply as Lewd Conduct in Public (California Penal Code section 647(a)), all the way to various forms of sexual assault stopping short of penetration or intercourse. See, for example, Sexual Battery (California Penal Code section 243.4).

Whatever the form, the underlying conduct is activity that would offend a reasonable person’s sense of decency, and which is carried out for the perpetrator’s sexual pleasure or gratification.

Lewd Conduct, depending on the severity of the act(s), will be charged as a misdemeanor, a felony, or may be classified as a “Wobbler” (California Penal Code section 17(b)), which means the assigned Deputy District Attorney has the power to charge the offense as a misdemeanor or a felony.

Conversely, if you (allegedly) used force or threats to carry out the underlying conduct, or if you’ve previously been convicted of Engaging in Lewd Conduct, then you will definitely be charged with a felony.

If you are convicted of using force or threats, you might even get charged with a “Violent-Felony Strike” pursuant to California Penal Code § 667.5(c)(6) (“lewd or lascivious conduct”), which, if you’re convicted of such, will add anywhere from five to 25 years to your sentence (and possibly even result in a life sentence).

Emergency Bulletin re Non-Violent Sex Offenders Currently in Prison

On or about December 30, 2020, the California Supreme Court upheld all of the previously issued lower Courts of Appeal rulings by unanimously holding that prisoners who were previously convicted, or who will be convicted in the future, of non-violent sex crimes will be afforded the opportunity to be released on early parole.

Going back four years earlier, in 2016, California voters overwhelmingly approved a criminal-justice ballot that provided eligibility for early parole for all non-violent prisoners in our state penitentiaries. Specifically, this was known as Proposition 57. 

However, despite the fact that Prop. 57 stated nothing about excluding non-violent sex offenders, that’s precisely what the California Department of Corrections parole officials did. As a result, numerous lawsuits were filed against the DOC arguing that such wholesale/blanket exclusion of this particular class of prisoners/convicts was unconstitutional.

Fortunately, as indicated above, every single appellate court that heard these cases agreed. And, finally, so did the California Supreme Court.

See: washingtonexaminer.com.

Therefore, if you or someone you care about is currently incarcerated for such an offense – including Lewd Conduct – then please don’t hesitate to contact us to hear about your options.

Sex Crimes – Lewd Conduct -- Pre-Files/Early Dismissals

Fortunately, these types of cases are often resolved at a very early stage in the proceedings – i.e., either before or right after charges are filed. For example, we have enjoyed considerable success in getting these cases rejected before filing or dismissed shortly thereafter. (Please see several examples of these successful Pre-Files below.) If you learn that you are being investigated for a Lewd Conduct charge, contact us immediately to find out what you can do about it.

In a worst-case scenario, we should hopefully be able to plead you out to an infraction for something as minor as:

Disturbing the Peace (California Penal Code section 415);

Trespassing/Unauthorized Entry of a Residence (California Penal Code section 602); and

Disorderly Conduct (California Penal Code section 647).

California Statutes – Sex Crimes -- Lewd Conduct

Lewd Conduct in Public/Solicitation of Lewd Conduct (Pen. Code § 647(a))

Loitering Near Public Toilet to Engage in or Solicit Lewd Conduct (Penal Code section 647(d))

Obviously, if you publicly engage in Lewd Conduct, you’ll be criminally culpable for violating this particular statute. But you will also be charged thereunder if you hired or otherwise convinced someone else to do so.

Other relevant statutes, as indicated above, are discussed in detail in other Sex Crimes articles on this website but some of the defenses relating thereto are nevertheless included below.

Sex Crimes Convictions – Lewd Conduct -- Misdemeanors

Lewd Conduct in Public/Solicitation of Lewd Conduct (Pen. Code § 647(a))

Loitering Near Public Toilet to Engage in or Solicit Lewd Conduct (Penal Code section 647(d))

The maximum jail sentence for these convictions is only six months (as opposed to one year, which is the max for the vast majority of misdemeanor crimes in California). In addition, you could face fines, mandatory counseling, and possibly be subjected to a stay-away order (from the purported victim and/or the public area in which the crime occurred).

Sex Crimes Convictions – Lewd Conduct -- Felonies

Please read the above-described Sex Crimes articles for felony-conviction penalties on related charges.

Sex Crimes – Lewd Conduct -- Registration Requirements

Fortunately, Lewd Conduct convictions where the victim is an adult are not classified as a registerable offense, pursuant to California’s Sex Offender Registration statute (California Penal Code section 290).

Defenses to Sex Crimes Charges -- Lewd Conduct

The Judicial Council of California’s Criminal Jury Instructions (“CALCRIM”) provide for the following defenses to the foregoing charges:

  1. You accidentally touched the purported victim’s genitalia, buttocks, or a woman’s breast;

  2. You did intentionally do so, but not for a sexual purpose (e.g., you patted your fellow football player’s buttocks to congratulate him);

  3. Alternatively, you did willfully do so, but not to annoy or offend anyone (same example);

  4. You did intentionally do so for either a sexual or offensive purpose, but you weren’t in public or a publicly-available area when the incident occurred;

  5. The purported victim actually consented or otherwise was not offended;

  6. The victim was in fact offended but you did not know – nor should you reasonably have known – that he or she had witnessed the incident;

  7. You never requested that anyone else engage in lewd conduct, much less in public;

  8. You did make this request, but the conduct didn’t occur in public or a publicly-available area;

  9. You did make this request, but you didn’t intend for that person to do so in public;

  10. You did make this request, and you did intend for that person to do so in public, but not for a sexual purpose (i.e., a fraternity prank).

See CALCRIM number 1161 (“Lewd Conduct in Public -- Pen. Code § 647(a)”);

CALCRIM number 1162 (“Soliciting Lewd Conduct in Public -- Pen. Code § 647(a)”);

CALCRIM number 1111 (“Lewd or Lascivious Act: By Force or Fear -- Pen. Code § 288(b)(1)”); and

CALCRIM number 1060 (“Lewd or Lascivious Act: Dependent Person -- Pen. Code § 288(b)(2) & (c)(2)).

Examples of Sex Crimes – Lewd Conduct -- Misdemeanors

Homeless man gets almost a decade in prison for secretly filming people in a mall’s restrooms

During a ten-week period in 2015 (May through mid-July), homeless man Antonio Serrano (thirty-eight) allegedly secretly videotaped unsuspecting victims – both adults and minors -- in the public restrooms of several businesses, including a coffee shop and a pizza restaurant, at the Antelope Valley Mall.

Shortly thereafter, he was arrested and prosecuted by the LA County DA’s Office for the following charges:

five felony counts of Unauthorized Invasion of Privacy (California Penal Code section 647(j));

one felony count of Possession of Child Pornography (California Penal Code section 311.11(a)); 

a wobbler count of Identity Theft (California Penal Code section 530.5); and

one misdemeanor count of Loitering Near Public Toilet to Solicit Lewd Conduct (Penal Code section 647(d)).

On August 18, 2015, he pled nolo contendre to all charges and was immediately sentenced to nine-and-three-quarters years in a state penitentiary, a stay-away order, a no-contact order, and lifetime registration. Serrano apparently had at least one prior sex-crime-felony conviction for the judge to give him such a harsh sentence.

See: da.lacounty.gov.

San Diego Co. man accused of Lewd Acts is arrested after video shows him attacking journalists

On January 19, 2020, a seventy-six-year-old business owner in La Mesa (San Diego Co.) named Peter Carzis allegedly physically attacked several local news reporters who tried to interview him about videos that had been posted online which allegedly depicted him grabbing the breasts of a mentally ill, homeless woman. (The alleged assault on the photographers was reportedly captured on film from a news cameraman.)

As a result, the next day, La Mesa PD arrested Carzis, and the day after that he was formally charged by the San Diego Co. DA’s Office with:

One count of felony Vandalism (California Penal Code section 594) (for allegedly destroying an expensive news camera); and

one count of misdemeanor Simple Battery (California Penal Code section 242).

The reporters also tried to question him about reports from several local female residents who claimed Carzis had grabbed their buttocks or their stomach as they passed by his store.

In regard to those incidents, prosecutors added a second misdemeanor Simple Battery charge, as well as a single misdemeanor count of misdemeanor Lewd Conduct in Public (California Penal Code section 647(a)).

If convicted of all charges, he could face several years in jail. His trial has been delayed because of Covid-19.

See: ktla.com.

Sex Crimes – Lewd Conduct -- Examples of Celebrity Cases

Actor Nick Stahl (Terminator 3: Rise of the Machines)

Two days after Christmas 2012, actor Nick Stahl (thirty-three), best known for starring in 2003’s T3, was arrested in an adult bookstore in Hollywood – apparently on suspicion of masturbating in a peep-show booth – for Lewd Conduct in Public (California Penal Code section 647(a)).

LAPD vice squad officers cuffed him while conducting a random search to curb this type of alleged activity. As a result, Stahl was facing a potential misdemeanor charge with a maximum 180-day jail sentence. Fortunately for him, however, he hired a good lawyer who was able to convince the DA’s Office not to proceed with filing an actual criminal complaint (see Pre-Files/Early Dismissals above).

See: latimes.com.

Singer George Michael

In one of the most infamous Lewd Conduct cases ever filed in LA County, world-famous superstar George Michael (then age thirty-four) was arrested on April 7, 1998 on suspicion of Lewd Conduct in Public (California Penal Code section 647(a)) and Loitering Near Public Toilet to Engage in or Solicit Lewd Conduct (Penal Code section 647(d)) at Will Rogers Memorial Park in Beverly Hills. Michael was alleged to have propositioned an undercover male officer while masturbating.

As a result of these two misdemeanor charges, Michael (who was of Greek descent with the birth name of Georgios Panayiotou) was facing up to a year in the county jail.

But he quickly worked out a plea whereby five weeks later (mid-May 1998), he accepted a nolo contendre plea to one count of Lewd Conduct in Public in consideration for no jail time, mandatory sexual compulsion therapy, a small fine, a stay-away order, and eighty hours of volunteer work.

Shortly after his arrest, Michael publicly came out as being gay and wisely made fun of the entire incident and himself, particularly by starring in a hilarious music video about it.

See: rollingstone.com.

Lenny Dykstra (former Major League Baseball star)

Dykstra played center field for the New York Mets for eight seasons, followed by seven seasons with the Philadelphia Phillies. Always a controversial figure, his post-baseball retirement was fraught with a myriad of civil and criminal legal complications and cases.

For example, in March 2012, he pled nolo contendre to, among other things, a felony charge of Grand Theft Auto (“GTA”) (California Penal Code section 487(d)(1)).

One month later, he was arrested by LAPD following the allegations that for months prior thereto, he had been posting ads on Craigslist and other sites, seeking to hire assistants and housekeepers. However, when these women came to his home to be interviewed, Dykstra allegedly exposed his genitals to them. One woman reportedly claimed that he had pressed a knife against her throat, then forced her to massage him.

As a result, he was charged with, among other crimes:

Assault with a Deadly Weapon (ADW) (California Penal Code section 245(a)(1); and

multiple counts of Indecent Exposure (California Penal Code section 314).

He quickly pled nolo contendre to the ADW charge, as well as to a single reduced count of Lewd Conduct (which, considering the fact that the alleged incidents had occurred in a private residence, is odd but certainly not unheard of). As a result, was sentenced to nine months in jail, three years of formal probation, and a three-year ban on posting online ads.

In addition, he was sentenced to three years in a state penitentiary for the GTA conviction.

See: nbclosangeles.com.

A Sampling of Sex Crimes -- Lewd Conduct Cases Handled by the Los Angeles Defense Attorney Law Firm (LADALF)

Charge: 12 felony counts of Lewd Acts with a Minor – facing a decade in prison; result: entire case dismissed

People v. J.G.: After being prosecuted for twelve felony-counts of Lewd Acts with a Minor (California Penal Code section 288) with a max sentence of 10 years in prison, “Joel” hired an attorney to defend him. The only thing that lawyer did was to take his money and request many continuances. He never filed a single motion or conducted any investigation whatsoever. He virtually never visited Joel, who sat in jail for the better part of a year awaiting trial.

After we were retained, we quickly moved to have the entire case dismissed based on the fact that Joel’s Constitutional right to a speedy trial had been violated (based on the grounds that both the judge and prosecutor had failed to move the case along as required by law).

After arguing the motion over the course of two or three hearings, and after we set the case for a jury trial and announced that we were ready to immediately proceed, the DA’s Office dropped all charges, dismissed the case in its entirety, and released Joel from jail.

We did so after convincing the prosecutor to knock the plea offer down to a single count of Unlawful Consensual Sex with a Minor (California Penal Code section 261.5) with zero additional jail time. We accomplished all of this less than sixty days after the client hired us.

Pre-File – Imminent Charge: Lewd Acts with A Child Less than Fourteen Years Old – facing almost nine years in state penitentiary; result: Declined

People v. B.D. (Jan. 2021): LASD sex-crimes detectives informed our client (“Bryan”) that they were conducting a joint investigation with the DA’s Office in anticipation of filing this specific charge against him.

The investigation stemmed from allegations that he had sexually molested a 4-year old child. As a result, the charge would be for Lewd or Lascivious Act: Child Under 14 Years (California Penal Code section 288(a)), which carries an eight-year maximum sentence, as well as mandatory lifetime sex-offender registration (California Penal Code section 290(b)).

They demanded an immediate meeting to go over their evidence against him. Bryan was neither stupid nor naïve – he knew the authorities only wanted to meet with him to obtain incriminating evidence in the form of his own statements against him. Conversely, he also shrewdly suspected they so far may not have had enough evidence to file charges.

So instead of rushing foolishly into the lion’s den, he hired us. With the help of our top P.I., we conducted an in-depth investigation, which included interviewing numerous witnesses. We were thereby able to put together a package of exculpatory evidence, which we presented to the assigned prosecutor during an in-person meeting.

Result: The prosecutor dismissed the case before it was even filed.

Pre-File -- Imminent Charges: Continuous Sexual Abuse of a Child and Lewd Acts on a Minor Under 14; result: Declined

In re R.S. (Feb. 2021): The client -- who was a juvenile at all relevant times -- was alleged to have engaged in dozens of acts of sexual abuse on a relative who was not yet five years old at the time. The client's mother retained us after a sex crimes detective for the local police department informed her that he had already referred the file over to the District Attorney for prosecution. The detective even gave the client (who was now an adult) a summons to appear in court on a specific date in the near future.

If the case were to be filed, the client almost certainly would have been charged with dozens of counts of the following felonies:

Lewd Acts with a Minor Child Under 14 (California Penal Code section 288); and

Continuous Sexual Abuse of a Child (California Penal Code section 288.5).

 

Result: DA’s Office declined to prosecute.

The Los Angeles Defense Attorney Law Firm (LADALF)

After sixteen years of criminal-law practice, including four years as a Deputy PD for LA County, LADALF top criminal attorney Ninaz Saffari has successfully defended hundreds of individuals against almost every imaginable type of sex crime. Many of these cases involved Lewd Conduct involving both adults and minors as purported victims. There is not a single defense attorney in the county who can match her track of success.