Don’t Mistake The Definition of “Loitering with Intent” to Commit Prostitution

Important Update: This law has been repealed in California and is no longer a crime.

California Penal Code 653.22 PC is California’s law on loitering in a public place for the purpose of engaging in prostitution¹.

Overview Of Penal Code 653.22

Prostitution is the act of engaging in a sexual act for compensation or remuneration². You can also be arrested and convicted under Penal Code 653.22 if you were loitering³ and had the intent to commit prostitution even though you never engaged in the act or were caught offering to engage in it.

Most law enforcement officers look for suspects in certain areas and for certain signs that they are prostitutes and are seeking customers.

They look in areas where prostitutes hang out or loiter and for cars or customers who frequent these areas. Also, prostitutes may be wearing provocative or revealing clothing to advertise themselves.

The elements of PC 653.22 are as follows:

1. You were loitering
2. In a public area
3. And you had the intent to commit prostitution

Definition Of Loitering

Loitering is self-evident without much more explanation other than it is lingering in a public place for no reason other than to commit an unlawful act.  

You loiter or linger unlawfully when you do not make any movement toward going elsewhere.

Here are a few examples listed in PC 653.22:

1. Repeatedly beckons to, stops, engages in conversations with, or attempts to stop or engage in conversations with passersby, indicative of soliciting for prostitution
2. Repeatedly stops or attempts to stop motor vehicles by hailing the drivers, waving arms, or making any other bodily gestures, or engages or attempts to engage the drivers or passengers of the motor vehicles in conversation, indicative of soliciting for prostitution.
3. Circles an area in a motor vehicle and repeatedly beckons to, contacts, or attempts to contact or stop pedestrians or other motorists, indicative of soliciting for prostitution.

However these specific circumstances are not exclusive and there may be other ways to be considered loitering for the purposes of being convicted under PC 653.22⁴

It is not loitering if you are there for a lawful purpose such as waiting for a ride or for someone to appear before going elsewhere or are merely passing through.  There is no law against lingering in a place like a bar or coffee shop so long as you exhibit no intent to commit an illegal act.

A public place may be any of these locations⁵:

• Park
• Street
• Automobile
• Hotel lobby
• Bar
• Restaurant
• Movie theater
• Driveway
• Sidewalk

How Does The Prosecutor Prove “Intent”?

Most of the time intent is manifested when you agree to engage in a sexual act in exchange for money or some other form of compensation.

But there are other ways that the prosecutor can prove that you had the intent to commit prostitution:

• The police observe you constantly stopping pedestrians and engaging in conversation with them
• You are observed waving down or hailing cars or making gestures to them
• You are observed to be in a car that is constantly circling an area while you slow or stop pedestrians and other motorists and attempt to talk to them
• Your companion has convictions for prostitution
• When detained, you gave a false name or produced a false identification card⁶
• If this conduct is in an area known for prostitution or for solicitation, it is stronger evidence of intent

Also, if you were seen to have engaged in any of this conduct in the past 6 months, it can be considered intent⁷. Any conviction you received for loitering with intent to commit prostitution in the past 5 years coupled with this behavior is evidence of intent.

Legal Defenses

Circumstantial evidence can convict you of this or any other crime so long as it strongly infers guilt or in this case, intent to commit prostitution. Defenses generally focus on the lack of evidence.

Insufficient Proof

There are numerous reasons why people loiter in public places. Police who patrol or monitor in areas known for prostitution activity will look for any signs of suspicious activity that indicates you are a prostitute. If you are wearing provocative clothing while waiting for a cab or Uber and passersby continually make comments to you, then you may be suspected. Merely making eye contact or talking to people walking by without more is not much evidence of intent to commit an illegal act.

If you have a reasonable explanation for your being in the area, gave your true identity to police, have no prior record and no “customer” that the police can identify as your having solicited, then there is little evidence to convict you.

Entrapment

Though this is not a common defense, it still arises when a police officer uses extralegal means to catch someone in a criminal act⁸.

To be able to assert the defense of entrapment, defendants must show that they did not possess any intent to commit the crime and would not have done so but for the extraordinarily persuasive actions of the police officer.

The officer, who is undercover and posing as a customer or “John,” must have used undue influence, duress, threats, harassment, fraud and even flattery.

You probably would have to show that you previously rebuffed numerous efforts to get you to commit the crime and even stated that you were insulted but were pressured or induced to commit the act by the extreme means forced on you.

For instance, if the officer after several failed attempts offers you $1000 to engage in oral sex and you then accepted, it may constitute entrapment. It may not be if you had earlier displayed interest in engaging in prostitution but the offered money was insufficient.

Penalties

A violation of Penal Code 653.22 is a misdemeanor ((Penal Code 653.26 PC – A violation of any provision of this chapter is a misdemeanor.)).

It carries the following penalties:

• Up to 6 months in county jail
• A fine up to $1000⁹
• Summary probation

Most first time offenders are given probation and even multiple offenders rarely spend the maximum time in jail.

If your conviction was in the following areas:

• San Francisco Bay Area,
• Fresno or
• Sacramento,

Then there are local ordinances forbidding you from riding on rail or any other public transportation for a time, though you have to be notified of the prohibition and given a chance to challenge it.

Expungement For Loitering With Intent To Commit Prostitution

PC 653.22 is charged only as a misdemeanor and qualifies you for an expungement of your record under PC 1203.4. 

An expungement does not totally erase your record though any members of the general public including private employers, landlords or anyone else not associated with the government will see that you have no criminal conviction when a criminal background check is performed.

Related Offenses

Prostitution and Solicitation of Prostitution—PC 647(b)

Prostitution and solicitation of prostitution is prohibited under PC 647(b). Its elements are:

1. You solicited another person in a public place to engage in a sexual act
2. And you did so with the intent to engage in prostitution or for compensation in exchange for sex

A violation is a misdemeanor with the same sentence as a violation of PC 653.22.

Lewd Conduct in Public-PC 647(a)

You can touch yourself or another person’s intimate parts in public, with their consent, for the purpose of sexual arousal. But if there is someone else in the area who is offended by your act, then you may have committed a lewd act in public.

This is a misdemeanor offense with a similar sentence as that under PC 653.22.

Aiding Or Supervising A Prostitute – Penal Code 653.33 PC

1. Penal Code 653.22 PC – (a) (1) Except as specified in paragraph (2), it is unlawful for any person to loiter in any public place with the intent to commit prostitution. This intent is evidenced by acting in a manner and under circumstances that openly demonstrate the purpose of inducing, enticing, or soliciting prostitution, or procuring another to commit prostitution (2) Notwithstanding paragraph (1), this subdivision does not apply to a child under 18 years of age who is alleged to have engaged in conduct that would, if committed by an adult, violate this subdivision. A commercially exploited child under this paragraph may be adjudged a dependent child of the court pursuant to paragraph (2) of subdivision (b) of Section 300 of the Welfare and Institutions Code and may be taken into temporary custody pursuant to subdivision (a) of Section 305 of the Welfare and Institutions Code, if the conditions allowing temporary custody without warrant are met.  (b) Among the circumstances that may be considered in determining whether a person loiters with the intent to commit prostitution are that the person:  (1) Repeatedly beckons to, stops, engages in conversations with, or attempts to stop or engage in conversations with passersby, indicative of soliciting for prostitution. (2) Repeatedly stops or attempts to stop motor vehicles by hailing the drivers, waving arms, or making any other bodily gestures, or engages or attempts to engage the drivers or passengers of the motor vehicles in conversation, indicative of soliciting for prostitution. (3) Has been convicted of violating this section, subdivision (a) or (b) of Section 647, or any other offense relating to or involving prostitution, within five years of the arrest under this section. (4) Circles an area in a motor vehicle and repeatedly beckons to, contacts, or attempts to contact or stop pedestrians or other motorists, indicative of soliciting for prostitution. (5) Has engaged, within six months prior to the arrest under this section, in any behavior described in this subdivision, with the exception of paragraph (3), or in any other behavior indicative of prostitution activity. (c) The list of circumstances set forth in subdivision (b) is not exclusive. The circumstances set forth in subdivision (b) should be considered particularly salient if they occur in an area that is known for prostitution activity. Any other relevant circumstances may be considered in determining whether a person has the requisite intent. Moreover, no one circumstance or combination of circumstances is in itself determinative of intent. Intent must be determined based on an evaluation of the particular circumstances of each case. [↩]
2. California Penal Code 653.20(a) – Definition “Commit prostitution” means to engage in sexual conduct for money or other consideration, but does not include sexual conduct engaged in as a part of any stage performance, play, or other entertainment open to the public. [↩]
3. Penal Code 653.20 PC  – Definition “Loiter” (c) “Loiter” means to delay or linger without a lawful purpose for being on the property and for the purpose of committing a crime as opportunity may be discovered. [↩]
4. People v. Pulliam (1998) 62 Cal.App.4th 1430, 1436. [↩]
5. Penal Code 653.20(b) – “Public place” means an area open to the public, or an alley, plaza, park, driveway, or parking lot, or an automobile, whether moving or not, or a building open to the general public, including one which serves food or drink, or provides entertainment, or the doorways and entrances to a building or dwelling, or the grounds enclosing a building or dwelling. [↩]
6. In re J.J. (2009), Cal.App.1st – 2009 WL 4881911, at §7 [↩]
7. People v. Johnson (2010), Cal.App.2nd 142 – 2010 WL 367525, at §2 [↩]
8. People v. West, (1956) 139 Cal.App.2d Supp. 923, 924 [↩]
9. California Penal Code 19 [↩]