Loiter With Intent to Commit Prostitution
California Penal Code 653.22(a)
To Loiter With Intent to Commit Prostitution (also Loitering W/ Intent to Commit Prostitution) means to delay or linger on property without lawful purpose and for the purpose of committing the crime of prostitution.
Prostitution is generally defined as engaging in, agreeing to, or soliciting sexual services for compensation. For more information on the definition of prostitution please visit PC 647(b) [defining prostitution].
To be found guilty of loiter to commit prostitution the district attorney must prove beyond a reasonable doubt that the defendant specifically intended to engage in the crime of prostitution. Both the prostitute or the person seeking prostitution services may be charged with loitering with intent to commit prostitution. The person seeking prostitution services is also known as the "John."
PC 653.22(a) provides a list of loitering type circumstances that may be considered to prove specific intent by the prostitute or the John to commit prostitution. These loitering circumstances are not exclusive as other types of evidence may also be used to prove specific intent to commit prostitution. The circumstances include:
1) Repeatedly beckons to, stops, engages in conversations with, or attempts to stop or engage in conversations with passersby, indicative of soliciting for prostitution [PC 653.22(b)(1)];
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 [PC 653.22(b)(2)];
3) Has been convicted of violating PC 653.22(a), subdivision (a) or (b) or section 647 (prostitution), or any other offense relating to or involving prostitution, within five years of the arrest under this section [PC 653.22(b)(3)];
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 [PC 653.22(b)(4)];
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 [See PC 653.22(b)(5)].
As stated, this list is not intended to serve as the exclusive list of the type evidence that might prove the intent of the defendant to commit the crime. Other evidence could include the defendant's confession, officer surveillance video or pictures, the presence of condoms on either the prostitute or the John, the location of the crime (as known to be frequented by prostitutes), and more.
PC 653.22(a) is not intended to cover strip clubs, adult film industry shooting locations, or massage parlors, even if the defendant is arguably loitering with intent to commit prostitution (See PC 653.20(b) concerning adult entertainers, strip clubs, and more). Presumably, the crime of loiter with intent to commit prostitution could be charged no matter where the defendant was located, but the legislative intent behind PC 653.22(a) was designed to curb street prostitution.
Furthermore, even if there are no prostitutes, the defendant may still be charged with loitering with intent to commit prostitution if the defendant believed that prostitutes were present and the defendant loitered in an area for the purpose of engaging in, agreeing to, or soliciting prostitution [PC 647(b) & 653.22(a))].
Punishment / Penalty for violations of PC 653.22(a):
Loiter with intent to commit prostitution is classified as a misdemeanor. if found guilty, the defendant could face up to one hundred eighty days (180) in the county jaill (Penal Code 19 & 653.22(a)).
Other punishments for PC 653.22(a) violations include possible harsh probation terms and conditions, monetary fines, restraining orders, loss of professional license, loss of immigration rights, family law consequences, mandatory classes and HIV AIDS testing, loss of vehicle or driving privileges, and more.
For a complete list of the penalties, including fines and other punishments for PC 653.22(a) violations please see this page at top right column by clicking PC 653.22(a) Penalties.
Defense to Loiter With Intent To Commit Prostitution:
Below is a list of the most common defenses related to the charge loiter with intent to commit prostitution (PC 653.22(a):
S.B. 1322: Per California Senate Bill 1322 (SB-1322), which was signed into law by Governor Jerry Brown on 9/26/2016, the crimes defined in Penal Code section 647(b), prostitution, and 653.22(a), loitering with intent to commit prostitution, no longer apply to minors under the age of 18.
Per SB-1322, a new California Penal Code section was added as PC 647(b)(2), which excludes minors prosecution under both PC 647(b) prostitution, and 653.22(a) loiter with intent to commit prostitution. This defense applies to minors under the age of 18 even if all of the elements of the crimes otherwise exist; however, if a minor commit an act that otherwise would constitute prostitution under PC 647(b) or loitering with intent to commit prostitution under PC 653.22(a), he or she may be committed as a dependant child of the state in a juvenile proceeding (WIC 300 & 305). SB 1322 does not apply to defendants who solicit minors for prostitution (PC 647(m)(1)).
SB 1322 was designed to protect exploited children of human trafficking from suffering the stigma of a PC 647(b) prostitution, or 653.22(a) loitering with intent to commit prostitution, conviction. Additionally, SB 1322 does not allow for a child prostitute to be an uncharged accomplice to the crime of pimping, which was previously allowed under PC 266h.
Insufficient Evidence: If the prosecuting attorney can not prove to a judge or jury that the defendant loitered in an area with the intent to commit prostitution then the defendant is entitled to a finding of not guilty.
The evidence must be proved beyond a reasonable doubt, which means that the juror, or jury, must unanimously believe, to an abiding conviction, that the allegation is true, and that any doubt as to the truth of the charge is unreasonable as to the individual juror, or as to the jury as a whole.
In the case of a PC 653.22(a) charge, the prosecuting attorney would have to prove that the defendant did all of the following:
1) intended to commit prostitution when he or she 2) loitered in 3) a public area.
All three elements must be present before any conviction can be sustained by the prosecutor. (See Penal Code 653.20 at right for more on the definitions of loiter, commit prostitution, and public place). If any juror, or the jury as a whole, have not been persuaded beyond a reasonable doubt as to any of the three elements then the defendant is entitled to a verdict of not guilty.
Entrapment Defense: Entrapment occurs when the police encourage or promote a crime by way of their overbearing conduct. Most entrapment cases are associated with undercover sting operations by law enforcement.
In entrapment defense cases, even if the defedant admits guilt to a crime, he or she may never the less be entitled to a not guilty verdict if the defense can prove, by a preponderance of evidence, that the defendant committed the crime as a result of the encouragement, pressure, or enticement by law enforcement.
Preponderance of evidence simply means more likely than not. A preponderance of the evidence is a lower burden of proof than beyond a reasonable doubt.
Note: Defendant does not have to admit guilt in order to assert that he or she was entrapped (People v. Perez (1965)). Also, it is the defendant that must prove that he or she was entrapped after an admission of the crime by the defendant or after a finding of guilt by the judge or jury.
Evidence of entrapment can include flattery or coaxing by an officer to a defendant to commit a crime. It can also include repeated or insistent requests to commit a crime by an officer, or even an appeal to sympathy or friendship to commit a crime by an officer.
The conduct of the officers is the primary focus on an entrapment defense. lf the conduct of the officers would cause a normally law-abiding citizen to commit a crime then the defendant may have been entrapped (People v. Barraza (1979).
Entrapment defenses are more commonly found in prostitution charges filed under PC 647(b) [agree, solicit, or engage in prostitution]; however, an entrapment defense can be used in just about any criminal charge, including the criminal charges of loiter with intent to commit prostitution charged under PC 653.22(a), and keeping a house of prostitution or ill fame (ill repute) charged under PC 315.
Statute of Limitations: The statute of limitations is a time limit that is place on the police and prosecutors that limits the amount of time they have to file formal charges against the defendant. Prosecutors only have one year from the date of the offense in PC 653.22(a) crimes in which to bring formal charges against the defendant (Penal Code 802).
Not a Public Place: PC 653.22(a) is charged where the defendant is loitering in a public place, meaning a street, alley, parking lot, driveway, etc. Therefore, it is a defense to PC 653.22(a) charges to show that any loitering, regardless of the defendant's intent, did not take place in public.
Police Misconduct & Miranda Violations: The topic of police officer misconduct as it applies to a possible defense to the crime of loitering with intent to commit prostitution is a very lengthy and in-depth legal topic; therefore, for brevity, only the most basic description of police officer misconduct, as it relates to any defense to a PC 653.22(a) charge, is discussed in this section.
In some loitering with intent to commit prostitution cases the police must have a search warrant, supported by Probable Cause, before any officer may search the defendant's vehicle. This is true even if the police believe the defendant is using his or her vehicle in connection with loitering with intent to commit prostitution.
In addition, the police must obtain a suspect's waiver of right to remain silent before being questioned by law enforcement (U.S. Constitution 4th Amendment, Miranda v. Arizona (1966)).
Warrantless searches of vehicles, and seizures of evidence without warrants, might be considered a violation of the defendant's constitutional rights to privacy, and as such, any evidence obtained during a search or seizure without a warrant may be inadmissible in a criminal case. The same may be true for defendants who make incriminating statements to the police without first waiving his or her right to remain silent, or his or her right to have an attorney present during any questioning by the police.
Other police misconduct issues that might lead to a defense in a PC 653.22(a) case include, racial profiling by police officers, coercive strategies by police to gain confessions, excessive force by police, failure to turn over exculpatory discover (evidence favorable to defendant), false reporting by police, entrapment by officers, and more.
Police misconduct is not always intentional. In fact, in most warrantless search or seizure cases, or entrapment cases, the officers are not intentionally trying to violate the defendant's rights, but rather, like any of us, police officers are human and sometimes they make mistakes..
Mistake of Fact: The defense of mistake of fact occurs when the defendant mistakenly presumed a fact to be true, but instead, is untrue, and therefore, the crime can not be completed. For example, under PC 647(b) it is a crime to commit a lewd act in exchange for compensation (See PC 647(b) for definitions of prostitution). If the defendant loitered with the intent to commit what he or she believed to be prostitution, but the defendant was loitering with intent to commit was not in fact prostitution, then the defendant is entitled to the defense of mistake of fact.
A mistake of fact case might occur where a defendant loitered in a public place, such as outside a hotel, with the intent to go inside the hotel and watch others who are actually engaged in the crime prostitution. Mere presence during a crime is not a crime (Wooten v. Superior Court (2001)); because the defendant only loitered with intent to do something that is not a crime (watch others engaged in prostitution) he or she did not commit a crime. This defense might arise from strip clubs, sex clubs, swing clubs, or lifestyle clubs, that employ prostitutes and the defendant merely loitered outside the club with the intent to later watch other engage in sex.
Jury Nullification: Jury nullification in a prostitution criminal trial is the process whereby a jury, or any individual juror, decides to vote not guilty despite the fact that the jury, or juror, believes beyond a reasonable doubt that the defendant is guilty of the crime of prostitution.
This happens when a jury, or any individual juror, has a moral, personal, or ethical objection to finding the defendant guilty. A jury, or juror, can nullify the verdict in any criminal case, but it is more common in prostitution cases, simple drug possession cases, and domestic violence without injury.
Jury nullification is not technically a defense to PC 653.22(a), but it is something that occurs as many jurors do not believe that the crime of prostitution charged under PC 647(b), or loiter with intent to commit prostitution charged under PC 653.22(a), should be criminalized, at least in the context of adult prostitution crimes filed as misdemeanors.
Plea Bargain for Lesser Crime or Lighter Sentence
The best result for a defendant charged with loiter with intent to commit prostitution is a complete dismissal of the charges. In some cases, that might be possible depending on the weight of the evidence. in cases of loiter with intent to commit prostitution the defendant may still have a chance at bargaining for a lighter sentence or reduction of the charge itself, or both.
Depending on the evidence, it might be possible to avoid the stigma that is attached with PC 653.22(a) and PC 647(b) convictions because the word "prostitution" is in the language of convictions. Instead, the defendant might have his or her criminal charge reduced to something less dramatic; for example: trespass charged under PC 602, or disturbing the peace charged under PC 415.
Even if the possibility of reducing the PC 653.22(a) criminal charge is not available the defendant may still argue for a lighter sentence, such as probation only (without jail, work release, or electronic monitoring [house arrest].
The biggest factors that are used in deciding whether a plea bargains can be struck in a PC 653.22(a) case include, 1) the strength of the evidence in the case, and 2) the defendant's criminal history.
Why Should I Hire a Prostitution Attorney
All loiter with intent to commit prostitution cases are different as the facts of every case are different. But whatever the evidence reveals you need someone in your corner that knows how to handle the suppression or admission or negative or positive evidence. You will need that attorney to know how to argue the remaining evidence in your favor. Only experienced attorney who have successfully handled hundreds of prostitution cases can bring you the best results. Thats who we are...the best at what we do.
Our record of sex crimes defense, including victory at trial and hundreds of successfully negotiated prostitution cases in the defendant's favor have given us the experience to handle you prostitution case...competently, aggressively, and most importantly...successfully.
We handle all prostitution and prostitution related crimes, including: attempted prostitution (PC 664/647(b)), agree to, engage in, or solicit prostitution (PC 647(b)), keeping a house of prostitution or ill fame (PC 315), loiter with intent to commit prostitution (PC 653.22(a)), and more.
Our attorneys are available six days a week to answer question for no charge at an initial consultation. If you have been charged with PC 653.22(a), loiter with intent to commit prostitution, call our office today!
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PC 653.22(a) Loiter With Intent to Commit Prostitution 1st Offense Possible Penalties:
Jail: up to 180 days in jail, work release, or electronic monitoring [house arrest]. There is no requirement for a minimum amount of actual jail custody time as there is with multiple convictions of PC 647(b) agree to, engage in, or solicit prostitution.
Probation: Probation for misdemeanor convictions is "summary probation" or "court probation," which means that the defendant does not have a probation officer but must not violate any law that amounts to a misdemeanor or felony subsequent to the PC 653.22(a) conviction. The defendant may also be ordered to stay away from certain areas where prostitution is prevalent, pay fines and penalties, and other probation terms and conditions Penal Code 1203). If the defendant violates his or her probation the court may further punish the defendant. This additional punishment is separate to any punishment associated with any new crime committed while on probation (Penal Code 1203);
Mandatory HIV Testing: The court, upon conviction for any prostitution crime, including PC 653.22(a) loiter with intent to commit prostitution, may order that the defendant submit to a test for AIDS or HIV. The test is used in future prosecutions if the defendant is convicted of multiple prostitution charges. (Penal Code 1202.1, 1202.6, 647(b), & 647(m)(1));
Sex Education Classes: In addition to all other penalties, if convicted of PC 653.22(a), the defendant may be ordered to attend and complete a "sex education" class. The class is designed to educate the defendant as to the prevalence of STDs and to provide therapy for any sexual deviant behaviors. This class is mandatory in PC 647(b) cases. (Penal Code 1001.1 & 1202.6).
Restraining Orders: The judge may order, as part of informal probation, that the defendant keep away from certain parts of a city that are known to be frequented by prostitutes, or keep away from certain websites that are known to advertise prostitution services (See Penal Code 1203)
Monetary Fines: Penalty fines, court security fines, and restitution costs may be ordered by the court upon any conviction of a prostitution crime, including PC 653.22(a) Loiter with intent to commit prostitution and PC 647(b) prostitution crimes (Penal Code 1202.4 & 1202.43 [Restitution fines] & 647.1 [Court's ability to grant probation despite defendant's inability to pay the fine associated with prostitution charges]);
Loss of professional, occupational, or massage license: Doctors, Dentists, Lawyers, Therapist, Psychologist, Boxers, Teachers, Cosmetologists, and other professionals may have their license revoked, suspended, or denied based on criminal convictions and/or the evidence used to support criminal charges, including evidence used to support a conviction of loiter with intent to commit prostitution under PC 653.22(a). (California Code of Regulations Title 16 concerning Board, Bar, and Commission license requirements and disciplinary proceeding & Penal Code 51032 [Massage License Revocation]);
Immigration consequences: Defendants that are not citizens of the United States at the time of any conviction, including a conviction of misdemeanor loiter with intent to commit prostitution, may be denied entry into the U.S. In addition, for any immigrant convicted of PC 653.22(a), that immigrant may be deported or lose certain privileges previously granted to that immigrant, such as a work visa, green card, permanent resident alien status, and more. (U.S Code 8, Section 1227);
Website publication as John on county website: In some counties, any person convicted of a prostitution offense, include Penal Code 647(b) agree, solicit, or engage of prostitution, and PC 653.22(a) loiter with intent to commit prostitution, may have his or her picture published on the county website under a "Convicted John" section or some equivalent;
Sex offender registration: In some cases of loiter with intent to commit prostitution, (aka loiter w/intent to commit prostitution), the judge may order that the defendant register as a sex offender. This is an unusual penalty and is not usually a penalty for a first offense conviction of PC 653.22(a) or 647(b). However, the judge may order sex offender registration in any criminal case if the the judge finds that the defendant committed the act for sexual compulsion or for sexual gratification. (See Penal Code 290.006).
Suspension of driver's license or impound of vehicle: As stated, the defendant may lose his or her driving license privilege if a vehicle was used to commit the crime of loiter with intent to commit prostitution. This is also the penalty for completed crime of prostitution charged under PC 647(b) (Penal Code 647(b), Vehicle Codes 13201.5 & 22659.5).
Family Law Penalties: possible punishment for any criminal conviction, including prostitution convictions charged under PC 653.22(a) and 647(b), can extend to other areas of law and may include loss of family law rights to adoption and child custody (See Family Code 3000 et seq & 8700 et seq), and revocation of insurance, including health, life, and vehicle.
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PC 653.22(a) Loiter w/intent to commit prostitution
The law of California Penal Code 653.22(a)
Per California Penal Code 653.22(a) & 653.20, 'it is unlawful for any person to loiter in any public place with the intent to commit prostitution. This intent is evidence by acting in a manner and under circumstances which openly demonstrate the purpose of inducing, enticing, or soliciting prostitution, or procuring another to commit prostitution' [PC 653.22(a)]
For purposes of this misdemeanor crime, the following defintions are used:
a) Commit prostitution means "to engage in, agree to, or solicit sexual services for money or other consideration (Penal Code 647(b), but does not include sexual conduct engaged in as a part of any state performance, play, or other entertainment open to the public." [PC 653.20(a) Paraphrasing];
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." [PC 653.20(b)];
Generally, PC 653.20(b) does not include the lobby of a business such as a massage parlor, strip club, or house. Where the defendant is accused of loitering in these locations with the intent to commit prostitution the criminal activity is usually charged as attempted prostitution under PC 664/647(b), or keeping a house of prostitution or ill fame (Ill repute) charged under PC 315. For more information on attempted prostitution or keeping a house of prostitution or ill fame (ill repute) crimes please visit attempted prostitution at PC 647(b) or keeping a house of prostitution or ill fame (ill repute) at PC 315.
c) Loiter means "to delay or linger without a lawful purpose for being on the property and for the purpose of committing crime (including Penal Code 647(b) crimes), as opportunity may be discovered." [PC 653.20(c)] (Paraphrasing).
Closely Related Crimes to Penal Code 653.22(a)
PC 315 Keeping a house of prostitution or il fame
PC 647(b) Agree to, solicit, or engage prostitution
PC 309 Admit or keep minors in house of prostitution
PC 314 Indecent Exposure
PC 647(a) Disorderly conduct
PC 266i Pandering
PC 266h Pimping
PC 236.1 Human Trafficking
PC 11225 Red Light Abatement Law
GC51302 Massage parlor license denial law
PC 647(m)(1) Prostitution soliciting a minor
PC 266g Prostituting wife
PC 266 Prostitution w/prior and positive AIDS result
PC 267 Abduction of minor for prostitution
PC 266 Seduction of minor for prostitution
PC 602 trespassing
PC 415 Disturbing the peace
PC 316 Keeping disorderly house of prostitution
PC 266e Purchasing person for prostitution
PC 266d Receiving value for forced cohabitation
SB 1322 (SB-1322) & 647(b)(2) Underage Prostitution
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