Loitering for the Purpose of Engaging in Prostitution – California Penal Code § 653.22
California Penal Code § 653.22 makes it a crime to loiter in a public place with the intent to commit prostitution. This is a very similar, but distinct, crime to solicitation of prostitution, which also constitutes a misdemeanor.
Whether or not someone is loitering in a specific location with the intent to commit prostitution is a fact-intensive case-by-case inquiry which is typically undertaken using circumstantial evidence.
Individuals very rarely announce their intent explicitly, so the prosecution will rely on evidence that the manner and circumstances of the loitering openly demonstrate that the individual’s purpose is to induce, entice, or solicit prosecution.
Penal Code § 653.22 does not apply to children under the age of 18 whose conduct would, if committed by an adult, qualify as unlawful loitering for the purpose of engaging in a prostitution offense. However, children found in such circumstances may be found to be a dependent child of the court and be sent to foster care.
In order to give readers an understanding of California's law on loitering for the purpose of engaging in a prositution offense, our California criminal defense lawyers are providing an overview below.
Definition of Loitering for Prostitution – Penal Code 653.22
California Penal Code 653.22 defines loitering for the purpose of engaging in a prostitution offense as follows:
It’s unlawful for anyone to loiter in a public place with the intent to commit prostitution. The intent is evidenced by acting in a manner and under circumstances that openly demonstrate the purpose to induce, entice, or solicit prostitution, or procure another person to commit prostitution.
The statutory language provides several examples of conduct which may be considered when determining whether the defendant has the intent to commit a prostitution offense. These include repeatedly beckoning to, stopping, or engaging in conversations with passersby as might indicate solicitation for prostitution.
These also include repeatedly stopping or attempting to stop vehicles by hailing the driver or making other gestures which indicate a desire to engage the drivers in conversation regarding prostitution. This conduct also includes circling an area in a vehicle and repeatedly beckoning to, contacting, or attempting to contact pedestrians or other motorists.
Having been convicted of a prostitution-related offense within 5 years is also a factor which law enforcement may consider in determining if a given individual possess the intent to engage in a prostitution offense. Engaging in any of the above-described activity within the last six months is also a factor which may be considered.
Penal Code § 653.22 makes clear that the circumstances indicative of unlawful intent listed in the code section are not exclusive. The circumstances described are particularly relevant if they occur in and are which is notorious for prostitution activity.
No single factor is determinative of intent. Rather, law enforcement and a prosecuting agency will engage in a common-sense determination of whether a particular individual is loitering for prostitution purposes or simply loitering in general.
Elements of the Crime to Convict – Penal Code 653.22
In order for the prosecutor to convict you of loitering for the purpose of prostitution under California Penal Code Section 653.22, the must be able to prove all the “elements of the crime” listed under CALCRIM 1156 Jury Instructions:
- You were loitering, which is described as lingering without a lawful purpose for being the property, but rather for the purpose of committing a crime if the opportunity occurs
- You were in a public place, which is defined as an area that is open to the general public. This includes a wide range of areas, such as public park, streets, alleys, parking lot, restaurant, clubs, bars, driveway, movie theater, a vehicle, business doorways, among many others.
- You had intent to commit prostitution, which is defined as engaging in sexual activity in exchange for money of other types of compensation. Sexual activity is described as sexual intercourse, touching of genitals, buttocks or female breast for sexual arousal or gratification.
As stated above in many examples, it’s important to note how police know you had intent to commit prostitution. In some cases, it’s possible for a police officer to misinterpret actions of someone who just happens to be in the wrong public place.
Penalties for Loitering for Prostitution – PC 653.22
Loitering for the purpose of engaging in a prostitution offense is a misdemeanor under California law. The maximum punishment for a violation of Penal Code § 653.22 is six months incarceration in county jail, a $1,000 fine plus penalty assessments, or both.
While it is uncommon for a first offender to face jail time for a violation of this subsection, all factors including the defendant’s prior criminal history, probation or parole status, if any, and the egregiousness of the particular conduct will be considered.
A conviction for Penal Code § 653.22 may also have adverse licensing or employment consequences depending on the defendant’s occupation.
Related California Offenses for Penal Code 653.22
Penal Code 647(b) – Solicitation for Prostitution
Penal Code 315 – Keeping a House of Prostitution
Penal Code 309 – Admit a Minor in House of Prostitution
Penal Code 314 – Indecent Exposure
Penal Code 647(a) – Lewd Conduct in Public
Penal Code 2661 – Pandering
Penal Code 266h – Pimping
Penal Code 236.1 – Human Trafficking
Penal Code 266 – Seduction of Minor for Prostitution
Penal Code 267 – Abduction of Minor for Prostitution
Penal Code 415 – Disturbing the Peace
Penal Code 602 - Trespassing
Defenses for Loitering for Prostitution – PC 653.22
If you have been accused of loitering for the purpose of prostitution, you need to retain an experienced defense lawyer. Depending on the circumstances of your case, we might be able to argue a valid defense to get the charges dismissed. Common defenses include:
Lack of Intent
Common defenses to a charge of Penal Code § 653.22 include lack of intent to commit a prostitution offense. Assuming the defendant was objectively loitering - i.e. remaining for an extended period of time in a public place with no apparent purpose to be there. The prosecutor must still additionally prove that said loitering was motivated by a desire to engage in a prostitution offense.
As stated above, the statute provides a non-exhaustive list of factors, or “clues,” which law enforcement and the prosecuting agency will attempt to use to infer an unlawful intent on the part of the defendant.
Ultimately, a jury must find beyond a reasonable doubt that the defendant’s loitering was motivated by the desire to induce, entice, or solicit a prostitute.
The defense of entrapment may also be relevant in a Penal Code § 653.22 case. Entrapment occurs when law enforcement, by its own conduct, inspires the defendant to commit, or attempt to commit, a crime which he or she was not previously disposed to commit but for law enforcement’s intervention.
Put another way, a defendant cannot be held responsible for unlawful conduct which was largely inspired by law enforcement.
However, proving entrapment requires that the defendant meet a high burden as the prosecution can most often argue that the defendant would have engaged in the unlawful conduct anyway and that law enforcement’s involvement was not the primary motivating factor.
Contact Eisner Gorin LLP for Help
If you, or someone you know, is charged with Loitering for the Purpose of Committing a Prostitution Offense under Penal Code § 653.22, call our Los Angeles criminal defense attorneys for an initial consultation.
It’s important to consult with our defense lawyers right way as early intervention into your case by our law firm could make a huge different in the outcome. We have a track record of success with pre-filing intervention and may be able to avoid the filing of formal charges.
At Eisner Gorin LLP, we have over 60 years of combined experience defending all types of prostitution related case. Contact us at 877-781-1570 to review the details.