5 Elements Prosecutors Must Prove In Lewd Conduct Cases For Conviction

California Penal Code 647(a)

Lewd conduct is a minor sex crime found under Penal Code 647(a). A conviction does not impose sex offender status on you by requiring you to register with authorities for life.

Overview Of The Elements

Although it is a misdemeanor, having a conviction on your record can create critical barriers to your finding decent employment, enrolling in a college or university or in renting a residence. You also face possible county jail time of up to 6-months if a first offense and up to one year for subsequent convictions1.

To be convicted of Lewd Conduct, the prosecution must prove each element of the offense by proof beyond a reasonable doubt and the jury must find you guilty by a unanimous verdict2. PC 647 (a) contains 5 critical elements:

  1. Willful touching of your own genitals or buttocks or those of another person or of a female’s breast3.
  2. The intent to sexually arouse or gratify yourself or another person, or to annoy or offend another person.
  3. The conduct was performed in a public place or area open to the public or to public view4.
  4. The conduct occurred in the presence of someone who may have been offended5 and…
  5. You were aware of or should have been aware that another person who may have been offended by your conduct was present.

The following is an examination of each of these elements and what the state must prove to find you guilty.

Willful Touching with the Intent to Arouse or Annoy

Sexually gratifying yourself or another person is obvious evidence of intent but if your genitals are merely exposed without your knowledge or you slap another person on the buttocks in a playful manner or unintentionally touched a woman’s breast, then you likely have not demonstrated an intent to arouse yourself or another person.

You may also have exposed your genitals briefly in order to change your clothes for example or touched yourself to rearrange clothing or to scratch an itch. This does not convey intent to arouse or annoy a third party without more evidence.

The courts, though, have defined this conduct as whether a reasonable person would construe with reasonable certainty that your conduct was “lewd” or sexual in nature. In other words, to paraphrase a well-known comment made by a Supreme Court justice in a pornography case, a reasonable person would know it when he/she sees it.

Lewd Conduct in a Public Place

A critical element of PC 647 (a) is that the conduct must have occurred in a public place or area open to the public or exposed to public view6.

While your home is private, other areas where you might have felt was not open to public view are considered to be public for purposes of this code section. These include:

  • A massage parlor–it is a commercial establishment and open to the public for a fee
  • Booth in an adult bookstore
  • Movie theater
  • Common area of an apartment building
  • Car on a public street or parking lot
  • Curtains or blinds left open in a private home so that the public can view your activity

If it appeared that you took steps to avoid other people observing you, then the state might not be able to demonstrate that your conduct was public. In other words, you must have had a reasonable belief that it was unlikely that another person would be present.

Presence of Another Person Who was Offended

If no one is around while you are exposing and/or sexually gratifying yourself or another willing partner, then no offense is committed. Also, though it is possible that a third person may suddenly appear or be able to view your activity, the courts will only consider it a crime  if another person was present who observed the lewd behavior and was offended by it.

Engaging in sexual activity of any kind is generally considered offensive, regardless of who is observing you. You cannot argue that a police officer would not be offended by alleging that viewing criminal or lewd conduct is either within the job description or viewed so often as to cause the officer to become inured to it. The only other person who might not be offended is someone who is unconscious, highly inebriated or is a willing observer of the conduct.

Awareness of Another Person’ Presence

As noted above, if it appeared that you took steps to avoid other people observing you, then  you could argue that you had a reasonable belief that it was unlikely that another person would be present. Your belief must have been a reasonable one. For instance, gratifying yourself in a parked car on a city street in mid-afternoon exposes you to public viewing and it is unreasonable to allege that you intended your conduct to be solely private and could charged as indecent exposure under penal code 314.

If you parked your car on an isolated street at 2 am and engaged in such conduct or if someone, suspecting you were engaging in lewd conduct, removed barriers so as to observe you, then this element is likely not proved.

All 5 elements of Lewd Conduct under PC 647 (a) must be proved beyond a reasonable doubt and any jury verdict must be unanimous. If your defense attorney can instill reasonable doubt in the mind of even one juror, or can offer reasonable explanations for your conduct that is not criminal, then at least one element of this offense cannot be sufficiently proved you could be found not guilty in trial.

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  1. Penal Code 19 –  Except in cases where a different punishment is prescribed by any law of this state, every offense declared to be a misdemeanor is punishable by imprisonment in the county jail not exceeding six months, or by fine not exceeding one thousand dollars ($1,000), or by both. California Law []
  2. Judicial Council of California Crimninal Jury Instructions (2017) – CALCRIM 1161. Lewd Conduct In Public [The defendant is charged [in Count ] with engaging in lewd conduct in public [in violation of Penal Code section 647(a)]. To prove that the defendant is guilty of this crime, the People must prove that: 1. The defendant willfully engaged in the touching of ((his/her) own/ [or] another person’s) genitals, buttocks, or female breast; 2. The defendant did so with the intent to sexually arouse or gratify (himself/herself) or another person, or to annoy or offend another person; 3. At the time the defendant engaged in the conduct, (he/she) was in (a public place/ [or] a place open to the public [or to public view]); 4. At the time the defendant engaged in the conduct, someone else who might have been offended was present; AND 5. The defendant knew or reasonably should have known that another person who might have been offended by (his/her) conduct was present. Someone commits an act willfully when he or she does it willingly or on purpose. [As used here, a public place is a place that is open and accessible to anyone who wishes to go there.] []
  3. Willfully Defined. Pen. Code, § 7, subd. 1; People v. Lara (1996) 44 Cal.App.4th 102, 107 [51 Cal.Rptr.2d 402]. []
  4. Public Place Defined. In re Zorn (1963) 59 Cal.2d 650, 652 [30 Cal.Rptr.811, 381 P.2d 635]; People v. Belanger (1966) 243 Cal.App.2d 654, 657 [52 Cal.Rptr. 660]; People v. Perez (1976) 64 Cal.App.3d 297, 300–301 [134Cal.Rptr. 338]; []
  5. “It is not the burden of the prosecution to prove that the observer was in fact offended by the conduct but only that the conduct was such that defendant should know that the observer ‘may be offended.’ ” People v. Rylaarsdam (1982) 130 Cal.App.3d Supp. 1, 11 [181 Cal.Rptr. 723]. []
  6. Penal Code 647 – Except as provided in paragraph (5) of subdivision (b) and subdivision (l), every person who commits any of the following acts is guilty of disorderly conduct, a misdemeanor: (a) An individual who solicits anyone to engage in or who engages in lewd or dissolute conduct in any public place or in any place open to the public or exposed to public view. California Law []

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