Summit Defense Attorneys believe strongly that these are minor, almost victimless offenses. We have developed effective legal strategies to protect your clean record, avoid registration and keep you out of jail. These cases are often misunderstandings that can be cleared up before trial.
INDECENT EXPOSURE – DEFINITIONS, DEFENSES AND ANALYSIS
The offenses of ‘lewd conduct in a public place’ and ‘indecent exposure’ prohibit certain behavior in public places, or within view of public places. Sexual activity in a public place in California is not, by itself, illegal – but if you knew, or reasonably should have known, that someone was present who might see and be offended by your conduct, then the behavior can be considered ‘lewd conduct in a public place’. As for public nudity, it will not necessarily lead to a charge of indecent exposure in California – what makes that kind of activity ‘indecent’ is when it is done with a desire to either sexually gratify yourself or to offend another person.
A charge of lewd conduct or indecent exposure might not seem very serious but the consequences can be devastating – including time in prison and lifetime registration as a sex offender. In the past, these offenses were usually seen as a kind of ‘nuisance’ offense, and sex offender registration was rarely an issue. However, with so much hysteria surrounding sex offenses today, these matters have been drawn into that category – when they are not in the same league at all – and judges and DAs usually push hard for charges where sex offender legislation applies, even on a first offense. This means that these charges cannot be taken lightly and you need the best representation possible.
Summit Defense Criminal attorneys have handled hundreds of indecent exposure and lewd conduct matters and, in many cases, we are able to prevent charges being filed altogether. To discuss what we can do in your case, call Summit Defense Criminal Attorneys today.
What is lewd conduct in public?
It is an offense under California Penal Code 647(a) to engage in ‘lewd or dissolute conduct’ in a public place, or in a place that is open to the public or exposed to public view. ‘Lewd or dissolute’ conduct means that you touch your private parts, or someone else’s, and you do so for your own sexual gratification or to offend someone else. It is also considered lewd conduct to ‘solicit’ someone else to engage in this kind of behavior – which simply means that you ask or encourage someone else to commit the offense.
The law in this area is fairly vague, which means that it can cover behavior that might not be thought of as serious enough to warrant criminal charges in this day and age. For example, if a woman ‘flashes’ her breasts at her boyfriend in a crowded bar, and her intention is to sexually excite herself or her boyfriend, then she could be charged with committing a lewd act in a public place. It would also be an offense for a man in a car to flash his buttocks – usually referred to as ‘mooning’ – at a lady driving another car with the intention of offending her. Nevertheless, this is a serious charge with potentially serious consequences.
What is indecent exposure?
It is an offense under California Penal Code 314 to engage in ‘indecent exposure’. ‘Indecent exposure’ refers to willfully exposing your genitals to someone else, either for your own sexual gratification or to sexually offend the other person. It is also considered an offense to ask or assist someone else to do this.
This is considered a more serious charge than lewd conduct in a public place – and a conviction will result in an obligation to register as a sex offender.
What is aggravated indecent exposure?
Under California Penal Code 314 there is also a more serious form of indecent exposure, usually referred to as ‘aggravated’ indecent exposure. This is where the exposure happens after someone has entered a home, trailer, or building that someone else is living in, and that they entered without permission. This is a more serious offense because of the added element of entering someone’s home without permission, and the potential penalties are more serious.
Can I settle this out of court?
Yes – it may be possible to settle your matter out of court with the assistance of an Summit Defense Criminal Attorney. Depending on what stage your case is at, and the exact nature of the charges against you, we may be able to intervene to have less serious charges filed, or to have your charges dismissed altogether.
It is essential, however, to try to settle any matter as soon as possible, and certainly before charges are filed. Your best chance of doing this is with the assistance of a lawyer who has experience in these kinds of matters. Summit Defense attorneys include a former District Attorneys, former investigator, and former police officer – they have their own experience in investigating these kinds of matters and know how things work from the other side. This means you will have persuasive negotiators with a full range of experience on your side.
There is usually a short time between arrest and when the DA will file formal charges in your case – and that time period is the perfect time for your attorney to negotiate with the DA on your behalf. Our goal is always the complete dismissal of the charges against you. However, even if the charges are not dismissed entirely, there is still scope in these matters to have much less serious charges filed, and to significantly reduce your exposure to the most serious penalties.
Do I really need a lawyer?
Yes, you do. Not only is it your right, but your best chance of fighting the case against you is by having an experienced lawyer on your side. Our attorneys have handled many cases of lewd conduct in public and indecent exposure that never saw the inside of a courtroom – we are your best chance of making sure that you can avoid court too.
At Summit Defense, we know that early intervention is your best chance of success – this is because there will be opportunities to settle or negotiate your case at the start that won’t exist later. In a recent case, a client was charged with both indecent exposure and lewd conduct in public. He was arrested and released on bail, and contacted us right away. He had been charged based on the fact that he exposed his genitals in public. He told us that he was actually urinating behind a tree, beside someone’s house, and he thought no one could see him. However, a child did see him, and told her mother about it, who saw our client drive off in his car, and wrote down his license plate number. The mother called the police, and the man was arrested. We were able to speak to the DA before charges were filed, however, and negotiated a plea to the lesser, non-sex offense of trespass. In the end, our client only had to pay a fine – and avoided having a conviction for a sex offense on his record.
Any criminal accusation is a serious matter and, in the case of indecent exposure charges, may involve having to register as a sex offender for the rest of your life. If you are facing an accusation of indecent exposure or lewd conduct in public, contact Summit Defense Attorneys as soon as possible for a free consultation with one of our experienced lawyers.
When you have your first consultation with us, we will discuss the estimated cost of your case with you. Every case is considered on a case-by-case basis, and depends on various factors, such as the seriousness of the charges against you and the stage that the case is up to. We will always act in your best interests, and that means keeping costs as reasonable as possible while defending your matter to the full.
One thing is certain though – the sooner you have an attorney involved in your case, the better. With early intervention, we can do our best to reach an early resolution and keep your case out of court, which also reduces your legal fees dramatically. Call one of our attorneys today to set up your first, free consultation.
I was caught by an undercover police officer – what should I do?
You should not say anything to the officer, and you should contact an attorney as soon as possible. Unfortunately, it is not unknown for undercover police to engage in ‘sting’ operations, where police conduct surveillance of public places, or where decoy officers try to lure people into behaving in inappropriate ways in public places. These operations are usually targeted at gay men, and when officers go too far, their actions can be seen as entrapment.
What sometimes happens is that a police officer pretends to be a gay man who is cruising in an area known to be popular with gay men – such as certain public toilets, secluded areas of public parks, or adult bookstores. When he encounters a man who he thinks is gay, he will start flirting with the man, perhaps touching his genital area through his clothes, and generally encouraging the man to expose himself or agree to engage in some kind of sexual act. Once the man does so, however, the officer will arrest him. In this kind of case, the accused person may have a defense of entrapment available to them – if the police officer baited them and encouraged their behavior, and if the accused would not have done the act if not for the actions of the undercover officer.
In cases where the police are conducting covert surveillance, they might catch two people in a sexual act in a public place – for example, in a secluded area of a public park at night time. However, those accused people were probably in an area where they thought that no one could see them, or be offended by their actions. In that situation, they would have a valid defense to charges filed against them.
What is common to these kinds of actions by the police is that they often arrest and charge people with serious offenses when they are not guilty. To fight this kind of discriminatory behavior by the police, you need a lawyer from Summit Defense Attorneys – we are experienced in exposing the unfair actions of the police, and will urge the DA to drop the matter or, if necessary, fight the matter at trial.
What should I say to the police if I am questioned or arrested?
Nothing – you only have to tell them your name and address, and show some identification if requested. Other than that, it’s best to not say anything at all to the police – your lawyer will speak for you. If you are arrested, you or your family should contact Summit Defense Attorneys immediately – in an emergency, we’re available to help you 24 hours a day, 7 days a week.
In some cases, the police will attempt to question a suspect before arresting them. This could be by the police calling you, or coming to speak to you, about an allegation. If the police do contact you and ask you questions about an alleged offense, you should not speak to them. The only thing that the police are trying to do in that kind of situation is to get an admission. For example, there may be a case where someone has made a report that they thought they saw a man masturbating in a parked car, and given the car license plate number to the police. The police will then trace the number, and contact the owner of the vehicle. However, without an admission from that person, they are not likely to be able to prove who was in the car at the time. On the other hand, if the suspect does confirm that they were in the car at the time, the police will probably charge them – regardless of any other explanation for what might have happened.
If you are arrested and the police want to question you, they are required to tell you about your rights. These include your right to silence, and your right to a lawyer. These rights are important and you should take full advantage of them. Being charged and going through the arrest process can be a scary and intimidating process, and it’s natural for you to want to defend or explain yourself. Keep in mind, though, that nothing you say at that point is likely to stop the police from charging you. Your best chance of presenting a good defense is by remaining silent and consulting a lawyer as soon as you can. Summit Defense has defended thousands of cases and it has never, ever helped someone when they’ve spoken to the police – in fact, many people have hurt their cases by doing so. The early intervention of an experienced attorney is by far your most effective defense strategy.
No, probably not – it is extremely unlikely that anyone charged with indecent exposure or lewd conduct in public will have to remain in custody. In these kinds of cases, the usual course is for the police to arrest an accused person, take them through the booking process at the police station, and the release them – either on their own recognizance, or on a low to moderate bail.
SECTION B – ELEMENTS, DEFENSES
Is lewd conduct in public a felony or a misdemeanor?
In California, lewd conduct in public is a misdemeanor.
If you are charged with Penal Code 647(a) lewd conduct, it means that you are accused of an offense of ‘disorderly conduct’ – in this case, engaging in lewd conduct in a public place – which is a misdemeanor. The possible penalties for a misdemeanor are lower than for a felony, and can be reduced substantially with the assistance of an experienced lawyer.
Is indecent exposure a felony or a misdemeanor?
In California, indecent exposure is treated as a misdemeanor for a first offense, and a felony for any second or subsequent convictions.
If you are charged with Penal Code 314 indecent exposure, it means that you are accused of ‘willfully and lewdly’ exposing your private parts (or asking or helping someone else to) in a public place, or in a place where there are other people around to be offended or annoyed. That charge will be treated as a misdemeanor, except if :
- you have been convicted of this offense before; or
- you have been convicted of Penal Code 288 (lewd act with a child) before.
If you have either of those previous convictions on your record, then you will be charged with indecent exposure as a felony.
The penalties and consequences that result from being convicted of a felony can be quite serious. Further, whether or not you are facing a misdemeanor or a felony indecent exposure charge, a conviction will mean that you have to register for the rest of your life as a sex offender. If you are charged with indecent exposure, you need to contact Summit Defense Attorneys to discuss your options to reduce or dismiss the charges, and to fight for the best result possible.
Is aggravated indecent exposure a felony or a misdemeanor?
If you are facing an aggravated indecent exposure charge under Penal Code 314, you have been charged with entering someone’s home without permission and exposing yourself.
Aggravated indecent exposure is a “wobbler”, which means that it can be treated as either a felony or a misdemeanor. The prosecution will decide how you will be charged, depending on the circumstances and seriousness of the case, as well as any criminal record that you may have. The penalties and consequences that result from being convicted of a felony can be very serious, but whether you are charged with a felony or a misdemeanor, you are also facing lifetime registration as a sex offender.
What evidence will the Prosecutor use to try to prove a lewd conduct in public charge against me?
To prove a Penal Code 647(a) lewd conduct in public charge against you, the Prosecutor must prove specific elements of the charge in order to secure a conviction against you. The Prosecutor will need evidence to prove these five things beyond reasonable doubt:
- that you willfully touched your own or another person’s genitals, buttocks, or a female breast;
- that you did so with the intent to sexually arouse or gratify yourself or another person, or to annoy or offend another person;
- that at the time you did the touching, you were in a public place, or in a place open to the public, or exposed to public view;
- that someone else who might have been offended was present; and
- that you knew, or reasonably should have known, that another person who might have been offended by the conduct was present.
You commit an act ‘willfully’ when you do it willingly or on purpose. So, for example, if the touching is accidental, then there is no way that you have committed an offense under this section.
Lewd or dissolute conduct
The law states that it is an offense to engage in ‘lewd or dissolute’ conduct – which, for the purposes of this section, refers to the touching of genitals, buttocks, or female breasts, for the purpose of sexual arousal, gratification, or to cause annoyance or offense. The touching can be either on the naked skin or through clothing
Intent to sexually arouse or gratify, or annoy or offend
The prosecution not only has to prove that the conduct – the touching – occurred, but they also have to prove that you did it with a certain, specific intent. The courts have held that the definition of ‘lewd’ means to do something “for purposes of sexual arousal, gratification, or affront.” In the case of this offense, it could also be done with the intention of annoying or offending someone else.
For example, if a man and a woman are in a public park, and they are kissing, and the man starts fondling the woman’s breasts, then that could be considered ‘lewd conduct in public’. This is because it would be reasonable to conclude that the man was touching the woman’s breasts for either his own or for her sexual gratification or arousal – or both. On the other hand, if some touching happens that is not for sexual gratification – such as a woman touching and exposing her breast to breastfeed her child – then there is no intent, and the person has not committed any offense.
In a public place
The prosecutor must prove that you engaged in lewd conduct either in a public place, or in a place that was open to the public, or within public view. The definition of a ‘public’ place is quite broad, and includes places that are obviously ‘public’ such as parks and sidewalks, and other less obvious locations such as a car parked on the street, a common hallway inside an apartment building or hotel, the change rooms in stores, and massage parlors. Basically, a place open to the public is “a place that is open and accessible to anyone who wishes to go there.”
If you are in your home, or a hotel room, or in a closed store, then places like that are considered ‘private’ locations. However, those places could be considered exposed to public view if activity going on inside them can be seen from a public place. So, for example, if two people are having sex in their bedroom, but the curtains are open and their activity can be seen from the street, then they may be committing an offense under this section.
Someone else present
To prove this element, the Prosecutor has to prove that there was someone else around who might have been offended by your conduct. They do not have to prove that someone else was actually offended, just that they may have been.
You knew, or reasonably should have known, someone else was present
This element requires the prosecution to prove that you had this knowledge when you engaged in the lewd conduct. It is not enough for them to prove that you thought it was possible that someone else was present – rather, they have to prove that you actually knew or should have known. For example, if two adults engage in sexual behavior in a park in the evening, but purposely go to an area where they believe no one is around and where they cannot be seen by anyone passing by, then they may not be guilty of lewd conduct in public.
What evidence will the Prosecutor use to try to prove an indecent exposure charge against me?
To prove the offense of Penal Code 314 indecent exposure in California, the Prosecutor needs to establish the following elements beyond reasonable doubt:
- that you willfully exposed your genitals/private parts in the presence of another person/s who might be offended or annoyed by your actions; and
- that you intended to direct public attention to your genitals for the purpose of either sexually gratifying yourself or someone else, or to sexually offend someone else.
This means to do the act willingly or on purpose. So, for example, if the exposure is accidental, then there is no way that you have committed an offense under this section. For example, if a man uses a restroom at a mall and forgets to zip up his pants properly, leaving part of his penis exposed when he leaves the restroom, this is not an offense – even if someone saw it and was offended by the exposure.
For the purposes of this offense, ‘private parts’ means the exposure of your bare genitals – it does not refer to things such as the exposure of underwear or bare female breasts.
In the presence of another person/s who might be offended or annoyed
This means that the prosecution has to show that, when you exposed yourself, you were around someone else. They do not need to prove, however, that the other person actually saw your exposed genitals. Even if you were in a public area, if you believed you were in a place where no one could see you, then this element is not satisfied.
As to the fact of someone else who might be offended or annoyed, again, the prosecution does not need to show that another person was actually offended or annoyed – just that there was someone around who might have been. This means that who that person is does not really matter – the other person could be a school girl who is offended or upset, or it could be an male doctor who doesn’t really care – either way, their presence will be sufficient to prove this element.
With intent to direct public attention to your genitals.
This element requires the Prosecutor to prove that you had the specific intent of drawing attention to your genitals when exposing them. It does not require them to prove, however, that anyone actually saw them. For example, imagine a man who opens his jacket to expose his bare genitals to a woman in a dark street – if she turns her head and runs away in the opposite direction and doesn’t actually see the man’s genitals, he would still be guilty because his intention was to expose them and draw public (her) attention to them.
On the other hand, the courts have held that if someone goes to a public beach to sunbathe and, if no one is around, takes all their clothes off and falls asleep while nude, they are not guilty of an offense – even if other people later come to the beach and see them. This is because the nude sunbather is not intending to draw public attention to their genitals in any way.
For the purpose of sexual gratification, or to sexually offend
The other specific intent that the Prosecutor must prove to establish a charge of indecent exposure is that you had the intent of sexually gratifying yourself or someone else, or of sexually offending someone else, when you exposed your genitals. This means that exposing yourself is not enough – you had to have done it with this intent.
Take, for instance, a man who urinates on a public street in front of someone’s house, exposing his penis when he does so. If he is motivated to do this to offend the owner of the house – but by the act of urination and in a non-sexual way – then he would not be guilty of the offense of indecent exposure. On the other hand, if a man stands out the front of someone’s house and masturbates with the intent of sexually offending the person inside, he would be guilty of the offense, even if the person inside the house did not see him.
What evidence will the Prosecutor use to try to prove an aggravated indecent exposure charge against me?
To prove the offense of aggravated indecent exposure, also under Penal Code 314, the Prosecutor needs to prove the same elements as for an indecent exposure charge, with the addition of the following two elements:
- that you exposed yourself in an inhabited dwelling house, part of a building, or trailer
- that the exposure occurred after you entered the premises without consent.
Inhabited dwelling house, part of a building, or trailer coach
This basically means any kind of house, building, or trailer that someone is living in at the time of the act, as well as any kind of structure that is attached to it and functionally connected with it, such as a garage. The person who lives there, however, does not need to be present when the indecent exposure happens.
Entered the premises without consent
To satisfy this element of the charge, the Prosecutor has to prove that you entered the premises without permission.
What is the difference between lewd conduct in public and indecent exposure?
The police often charge people with both of these offenses because they cover similar behavior. However, even though they are often charged together, there are some important differences between the two. Further, even if both offenses are charged, they might not necessarily succeed – the Prosecutor still has to prove the elements of each charge individually.
The main differences are, firstly, that while indecent exposure charges can only relate to the exposure of someone’s bare genitals, a charge of lewd conduct in a public place can cover a broader range of activities – such as the exposure of buttocks or female breasts, or the touching of those body parts through clothing.
Secondly, a charge of indecent exposure requires the accused person to have intended to direct public attention to their genitals, whereas this is not required in a charge of lewd conduct in public. So, indecent exposure might be thought of as a charge that targets those people who purposely expose themselves to others, while lewd conduct in public charges might apply to the same behavior, but more broadly also seeks to protect the public from other people’s lewd behavior – whether directed at others or not.
Other offenses that are commonly charged.
There are some other charges that commonly come up in cases where there are accusations of lewd conduct in public or indecent exposure. These other charges can become relevant in two ways – firstly, the police will sometimes charge people with other offenses besides those under Penal Code 647(a) and/or 314, depending on the circumstances of the offense.
Secondly, in situations where the case against an accused person for charges under 647(a) or 314 is not particularly strong, the Prosecutor may still not be willing to drop the charges altogether – which means that they may accept a plea to a lesser charge. In those kinds of situations, however, you need an attorney from Summit Defense to negotiate with the Prosecutor on your behalf – we are experts in this area of the law, and we can intervene on your behalf before charges are formally filed.
This is an offense under California Penal Code 602, which makes it illegal to enter someone’s private property without permission. This is a relatively minor charge, and can be dealt with as either a misdemeanor or an infraction – which does not appear on a criminal record at all. It may be charged in addition to lewd conduct in public or indecent exposure if the accused is said to have trespassed on private property at the time.
Disturbing the peace
This is an offense under California Penal Code 415, and covers behavior such as making unreasonable noise that disturbs your neighbors, or getting into a fight in public. This is also a relatively minor charge in most cases, and can be dealt with as a misdemeanor or an infraction. It does not really have anything to do with lewd conduct in public or indecent exposure but, depending on the circumstances of the offense, it may be a suitable lesser charge – and it does not carry the stigma of being a sex-related offense.
Loitering in or about a public toilet for the purpose of soliciting or engaging in lewd acts
This is a misdemeanor and an offense under California Penal Code 647(d). It relates to the very specific behavior of loitering around a public bathroom for this purpose. To be able to prove this charge against someone, the prosecution has to show that the person’s conduct made it clear that they were hanging around the bathroom for the specific purpose of soliciting or engaging in lewd acts. If they cannot do so, then the charge will fail.
Lewd act with a minor
This is an offense under California Penal Code 288. It may sound similar to the offense of ‘lewd conduct in public’ but it is a very different, and much more serious, offense. It involves touching a child, or having a child touch you, for a sexual purpose. It does not have to be done in public. This offense is a felony and, depending on the age of the child and other circumstances of the offense, the possible penalties can be very serious, and include lifetime registration as a sex offender.
We prove more detailed information on the offense of ‘lewd act with a minor’, and explain how our attorneys can assist you if you are facing that charge, here.
‘Peeping Tom’ offenses
There are two ‘disorderly conduct’ offenses that seek to protect people from ‘peeping Toms’. Under California Penal Code 647(i), it is an offense to ‘peek while loitering’ – which refers to being on private property without a lawful reason, and looking in the door or window of any inhabited place. Under Penal Code 647(j), it is an offense to use a camera or other device to secretly look at, photograph, or record another person’s body without their consent. These offenses are usually treated as misdemeanors.
This is an offense under California Penal Code 459. Burglary is defined as entering any structure with the intention of committing a felony once you are inside – usually people think of breaking into someone’s house to steal something as a burglary, but burglary is not restricted to those situations where someone wants to, or actually does, steal someone else’s property.
So, this charge usually comes up in the case of aggravated indecent exposure charges – where someone enters someone’s home without permission, and intends to expose themselves while they are in there (or actually does expose themselves). Even if the exposure never happened, a separate charge of burglary could still succeed.
What defenses can I use to fight lewd conduct in public or indecent exposure charges?
There are many defenses that can be used to fight a lewd conduct in public or indecent exposure charge. But don’t forget that early intervention is your best ‘defense’ – dealing with an accusation before charges are filed is the best approach, and something Summit Defense Attorneys specializes in.
Once the DA has filed charges, defending them can be a difficult and complex matter, so your best chance of beating indecent exposure or lewd act in public charges is to have an experienced attorney fighting for you.
But I didn’t do it!
Perhaps you have been falsely accused, perhaps someone else did it, or maybe the evidence that the Prosecutor has is wrong or misleading – whatever the case, we can help. Summit Defense Attorneys will investigate the case further, closely examine the evidence that the prosecution intend to use against you, and find any holes in their case. As always, the burden is on the prosecution to prove all of the elements in the case against you.
In one case that we handled, a man was charged with lewd conduct in public and indecent exposure when a woman reported that he had been masturbating in his car, which was parked near a school. When we became involved in the case, our client told us that he had done no such thing – he was actually sitting in his car, and waiting for his child, who attended the nearby school. We investigated the matter further, and found that the woman who reported the matter to the police had not seen our client’s penis at all.
The witness reported seeing “a man sitting in a car, with one hand on the steering wheel and the other moving around in his lap. He was looking down into his lap and seemed to be breathing heavily and excited.” What had, in fact, happened was that the woman saw our client playing a game on his iPad, which was sitting in his lap. We were able to point out the deficiencies in the police evidence to the DA, and tell them our client’s version of events. In the circumstances, the DA reviewed the case and decided that she would not file any charges against our client.
I didn’t do it for sexual gratification or to sexually offend!
For both charges of lewd conduct in a public place and indecent exposure, the prosecution has to prove that the conduct was engaged in for the purpose of sexually gratifying yourself or another person, or to sexually offend or annoy someone. If they cannot prove that you had this specific intent when doing the act, then you are not guilty.
There are various non-sexual reasons why someone might touch or expose their ‘private parts’ in public – for example, a man might expose his penis to urinate, or a woman might be rubbing her breasts or genital area because she has an itch. Remember, it is not enough for the prosecution to prove that you might have been motivated by a desire for sexual gratification or to offend someone – this is an element of both offenses and, accordingly, it must be proved beyond reasonable doubt.
I didn’t think anyone was around!
In the case of a lewd conduct in public charge, the prosecution must prove that you knew, or reasonably should have known, that someone was around who might be offended by your conduct. For an indecent exposure charge, there must be proof that you exposed yourself in the presence of another person. So, in both offenses, one of the elements does require you to have knowledge that other people, or another person, were around.
If you thought that you were in a secluded place, or reasonably thought that no one was around when the act occurred, then it is likely that you are not guilty of the offense. Take, for example, a case of a man who is masturbating in his parked car. That activity is not, by itself, illegal. What the prosecution would need to prove is that he was doing it in a place where he knew people were around, or he reasonably should have known, or else he was intentionally masturbating in the presence of someone else.
This will depend on the circumstances, and where the man had parked his car. If the car was parked on a regular, suburban street in daylight hours, even if he did not see anyone around at the exact time when he parked his car and started masturbating, he might be guilty of lewd conduct in public if someone did see him – this is because it is reasonable to expect that someone would be around on a public street during the day. On the other hand, if the man had parked his car at a secluded lookout spot late at night, and when he went there he did not see anyone else around, then he would probably not be guilty of any offense – that is because it is reasonable to believe that no one would be around that kind of place, late at night, especially when it was isolated when he arrived.
I wasn’t in a public place/in public view!
For a lewd conduct in public charge to succeed, the Prosecutor needs to prove that you engaged in lewd conduct in public, or in a place that was open to the public, or exposed to public view. This means that any kind of activity that happens in private is not an offense.
Consider the example of a couple who are having sex in their backyard. If the couple have a relatively low fence around their backyard and are aware that their neighbors and someone who passes by the back of the house can see into their yard, then even though they are on their private property they are in an area that is ‘exposed to public view’. If, however, they were having sex inside a cabana next to their pool, and this protected their activity from being seen by anyone who was outside of the backyard area, then they would not have committed the offense.
It wasn’t me!
Cases of mistaken identity happen all the time in the criminal law – and indecent exposure and lewd act in public charges are no exception. As experienced criminal defense lawyers, Summit Defense attorneys know that mistakes in identification happen all the time, and that there are many factors that can affect someone’s ability to accurately identify someone.
Depending on the circumstances of the alleged offense, there can be a very good chance that the wrong person has been mistakenly identified as the person who exposed him or herself, or engaged in some other kind of lewd conduct.
For example, if the offense happened in the dark, it can be very difficult to identify someone. Often, offenders will keep their face or features hidden so it’s harder to identify them. In other cases, an offender will have certain characteristics – such as hair cut and color, or build – that make them resemble someone else. Further, when someone is shocked or upset, it can be easy for them to make a mistake about what they have seen.
In other cases, the police may be relying on circumstantial evidence in order to connect someone to one of these offenses. It is common, for example, for police to use car license plate numbers to identify the owner of a vehicle, and they will then usually assume that it was the owner who was in the car at the time. That information, combined with a general description from a witness, may be enough for the police to charge someone with an offense – but an experienced attorney knows that it is not enough to prove the identity of the offender beyond reasonable doubt.
It was a case of police entrapment!
As we have outlined previously, there are cases where the police will engage in undercover operations in an attempt to catch people who are committing lewd act in public or indecent exposure offenses. In some cases, however, the police will go too far and their behavior can amount to entrapment.
Whether or not the police actions amount to entrapment will depend on the facts of the case. What is prohibited is behavior that induces a “normally law-abiding” person to commit an offense – such as excessive pressure, harassment, or threats. If an officer merely initiates criminal activity, or gives someone an opportunity to commit a crime, then it is not entrapment.
For example, if a man enters a public bathroom and an undercover police officer makes eye contact with him and makes a motion as if he wants to give the man a ‘blow job’, and the man immediately walks over to the officer and takes his pants down, then the officer did not really engage in behavior that amounts to entrapment. If, however, the man initially refused and went to leave the bathroom, but the undercover officer grabbed his arm and kept on harassing him and said things like “no one will see us, come on, it’s ok”, and then the man eventually agreed to the act, then it might be a case of entrapment.
SECTION C – PENALTIES
What are the penalties for lewd conduct in public?
If you are convicted, the penalties that are imposed for lewd conduct in a public place differ based on the circumstances of the offense. Further, when sentencing, the judge will take into account various personal factors as well as any criminal history that you have. This means that the penalty that you receive for a lewd act in public conviction could vary widely, depending on the case you are able to put before the judge.
The maximum penalties for a lewd act in public offense are up to six months in a country jail, or a fine of up to $1,000, or both. However, if the right arguments are placed before the judge, they can impose a non-custodial penalty such as misdemeanor probation (sometimes referred to as ‘summary’ or ‘informal’ probation), which involves little or no jail time at all.
To put your best case forward, you should have an experienced attorney who is able to advise you and plan your strategy right from the start of your case through until the end. Early intervention is key, and our ultimate goal is always the complete dismissal of charges against you. Even if dismissal is not possible, we will be able to help you achieve the most lenient penalty for your case.
What are the penalties for indecent exposure?
The penalties imposed in an indecent exposure case will vary depending on the circumstances of the offense, the personal circumstances of the offender, and whether it is a first offense or a second, or subsequent, offense.
If you are a first-time offender, indecent exposure is treated as a misdemeanor. This means that the maximum penalty that you are exposed to is either six months in a county jail, or a fine of $1,000, or both. If, however, you have previously been convicted of either indecent exposure or of lewd acts with a child (Penal Code 288), then this charge will be dealt with as a felony. This means that the maximum penalty is up to three years in state prison.
For any indecent exposure conviction – whether a misdemeanor or a felony – you will be required to register as a sex offender for life. This is one of the most severe and debilitating consequences of being convicted of a criminal offense, and why you should engage a Summit Defense attorney to fight indecent exposure charges from the outset.
What are the penalties for aggravated indecent exposure?
Aggravated indecent exposure can be treated as either a misdemeanor or a felony, depending on the circumstances of the case and any criminal history that the accused has. As with regular indecent exposure charges, if you have previously been convicted of indecent exposure or lewd acts with a child, you will be charged with felony aggravated indecent exposure.
If this offense is charged as a misdemeanor, you could face one year in a county jail, or a fine of $1,000, or both. If it is charged as a felony, the maximum penalty becomes up to three years in state prison, and up to $10,000 in fines. In both cases, there is also a lifetime requirement that you register as a sex offender.
What factors will the judge take into account when sentencing me?
Apart from any criminal history, in every matter the judge will consider the specific circumstances of each case before passing sentence. Some of the things that the judge will consider are known as aggravating and mitigating circumstances – these are factors that might either increase (aggravate) or decrease (mitigate) the eventual sentence.
There are some common factors that occur in many indecent exposure and lewd act in public cases – for example, it is common for people who are charged with these offenses to have no serious criminal history, or no criminal history at all. In some lewd act in public matters, the judge might consider mitigating facts such as the offense happening at night time, or in a place where there were no children or other vulnerable people around. On the other hand, if a lewd act or indecent exposure happened outside a school or public playground where there were children around, that might be considered an aggravating factor.
We have represented thousands of people who were being sentenced, and we know that every defendant needs help to explain to the court why they might have committed the offense, and the steps that have been taken to ensure it won’t happen again. We are highly experienced in crafting the best case to put before the judge, and know how to get the best results.
I’ve been diagnosed as having a compulsion relating to exhibitionism that requires treatment – will the judge take that into account?
Yes – the judge must take that kind of evidence into account. There are recognized mental disorders that can effect a person’s behavior in this way, and we understand that those defendant’s need help and understanding – not harsh punishment.
Some people describe having a ‘compulsion’ to do certain things in their every day life, something that they have no control over. You may have heard, for example, of Obsessive Compulsive Disorder – sometimes referred to as ‘OCD’ – where people feel a compulsion to engage in certain obsessive or repetitive behaviors, without which they feel increasingly anxious. Examples might be having to turn a light switch on and off a certain number of times. Most of us understand that people with OCD are ‘compelled’ to engage in that kind of behavior and cannot help it.
As similar, but less well known, disorder exists where people have certain compulsions that are sexual, or sexually related, and that they are unable to control. One of these is exhibitionism – the compulsion to expose or exhibit their naked body, or genitals – which is a kind of paraphilia. ‘Paraphilia’ describes a wide range of behaviors, which basically refer to when someone is sexually aroused by something unusual. There are kinds of ‘paraphilia’ that we might ordinarily think of as fetishes, depending on the circumstances – and, in a lot of cases, the paraphilia does not actually take the form of a disorder. However, there are some cases where the paraphilia is so intense that they cause the person distress, or they interfere with the person’s life so much, that psychiatric treatment is needed.
Understandably, many people are very embarrassed by these strange ‘urges’ or compulsions, and do their best to hide them. That also means, however, that many people do not seek the help that they need. If they are caught and charged with a criminal offense, however, they are then pushed into the criminal justice system and risk being branded a sex offender. We do not believe that these kinds of people should be demonized as sex offenders – rather, your Summit Defense attorney will help you to get the kind of help and treatment you need to deal with the issues that you face. We will also explain to the court why your treatment should be prioritized over harsher punishment, and how such a course of action will significantly lower the risk of you offending ever again.
Will I have to register as a sex offender if I am convicted of a lewd act in a public place?
No, you won’t – a conviction for the offense of committing a lewd act in a public place does not require the person to register as a sex offender. However, in many cases this charge will be accompanied by a charge of indecent exposure – and a conviction for that offense does require registration.
Will I have to register as a sex offender if I am convicted of indecent exposure?
Yes, conviction for any form of indecent exposure offense requires the person to register for life as a sex offender, under California Penal Code 290. This is regardless of whether you are convicted of indecent exposure as a felony or a misdemeanor.
What consequences does registration as a sex offender have?
We recognize how debilitating lifetime registration is, and will do everything possible to help you avoid having to register as a sex offender. However, if you do have to register, you should make sure that you are aware of your obligations to the authorities – and also aware that the authorities must protect you if you are being harassed in any way.
Registration means that you keep the authorities updated on your contact and identity details. Sex offender registration has been around for decades, however, it is only in more recent times that the information of offenders was made available to the public via the internet. In California, a law known as ‘Megan’s Law’ dictates that certain information about some registered sex offenders must be posted on the internet, on what is known as Megan’s List. This online listing will usually record a person’s name, the details of their offense and sentence, and where they live.
Not all offenders have to have their information published online, however. We provide more detailed information about registration, and also ways in which you can apply to have your name removed from Megan’s List, or from the obligation to register altogether, in this section of our website.
One of the other significant consequences of registration is that, for some professionals, having to be registered as a sex offender will mean that their professional association will remove their license. This can occur in the case of people with doctor’s medical board licenses, nursing licenses, physical therapist licenses, and other similar professionals. However, there are some situations where a misdemeanor conviction will be an exception to this rule, and you may be allowed to keep your license. If you are a professional who has been accused of indecent exposure, you should speak to an attorney from Summit Defense as soon as possible sowe can defend your matter and work to protect your professional reputation and livelihood.
 Judicial Council of California Criminal Jury Instructions, Instruction 441.
 Judicial Council of California Criminal Jury Instructions, Instruction 1161.
 In re Smith (1972) 7 Cal.3d 362, 365–366
 Judicial Council of California Criminal Jury Instructions, Instruction 1161.
 People v. Rylaarsdam (1982) 130 Cal.App.3d Supp. 1
 Judicial Council of California Criminal Jury Instructions, Instruction 1160.
 Judicial Council of California Criminal Jury Instructions, Instruction 1160.
 In re Smith (1972) 7 Cal.3d 362, 365–366
 Judicial Council of California Criminal Jury Instructions, Instruction 1160.
 See California Business and Professions Code.