Avoid a Criminal Record
SOLICITATION – DEFINITIONS, PENALTIES AND ANALYSIS.
What is prostitution and solicitation?
Engaging in an act of prostitution is a crime under Penal Code 647(b) in California.
This means that it is illegal to engage in sexual intercourse or a lewd act with someone else in exchange for money, or some other form of compensation. It is also an offense to agree to engage in an act of prostitution – even if the act never happens – or to solicit another person to engage in an act of prostitution. So, the law covers many different situations, including things such as:
A conviction for this kind of offense on your record can damage your chances of employment, and can pose immigration issues for non-citizens. We do not want one moment of indiscretion to affect the rest of your life – which is why we always work to keep these matters off our client’s records. An accusation that you have engaged in any kind of prostitution or solicitation offense is serious, and could result in serious penalties – if you are facing charges you should contact Summit Defense Criminal Defense Attorneys immediately to discuss your case with one of our experienced lawyers.
Can I settle this out of court?
Yes – it might be possible for us to settle your matter out of court. How we can assist you will depend on what stage your case it at, and the exact nature of the accusations against you – but whatever the case, our goal is always the full dismissal of all charges against you.
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 cases. Summit Defense attorneys include a former District Attorney, former investigator, and former police officer – so we have experience in investigating and prosecuting these kinds of matters. This means that we are powerful and persuasive negotiators because we know how things work from the other side.
In prostitution and solicitation cases, we are often able to avoid having charges filed at all. And in cases where the evidence against our client is strong or the Prosecutor is not willing to let the matter go completely, there is still usually scope to have less serious charges filed or to achieve an outcome that will not result in a permanent conviction.
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 Summit Defense lawyer on your side. We have handled many cases of prostitution and solicitation that never saw the inside of a courtroom – we are your best chance of making sure that you can avoid court too.
In one matter that we handled, our client was charged with soliciting another person to engage in an act of prostitution. This was based on his online correspondence with a woman who had posted an advertisement for escort services on the ‘My Redbook’ site (www.myredbook.com). It turned out that the ad was actually placed by an undercover police officer in an attempt to catch out people who use that site to find prostitutes. Our client told us, however, that he did not definitely intend to engage in an act of prostitution with anyone – he was just kidding around, and seeing if the woman would offer anything more than services as an escort.
When our client showed us the emails that he had exchanged with the undercover officer, we saw that there was no explicit request for sex or a sex act made by our client – rather, he had asked things like “what kind of extra services do you offer on a date?” and “what will you do if I offer you an extra $100?” In the circumstances, we were able to convince the DA to drop the charges against our client.
It is important to contact a lawyer as soon as you can, because there will be opportunities to settle or negotiate your case at the start that won’t exist later. Further, if you are a non-citizen, these kinds of offenses can raise immigration issues – which is why we will fight to keep a conviction from being recorded against you. We have an expert immigration attorney who is ready to help you navigate any immigration issues that arise in your case.
Who can be charged with solicitation and prostitution offenses?
It is important to remember that both the prostitute and the client (sometimes referred to as the ‘john’) can be charged with these offenses. Solicitation and prostitution offenses apply to anyone who is involved in the transaction, or the attempted transaction.
So, for example, if a male customer approaches the owner of a massage parlor and offers to pay extra if one of the women working there gives him a ‘happy ending’ (that is, masturbates him at the end of the massage), and both the owner and the female worker agree to it, then all three of them – the customer, the owner, and the worker – are guilty of prostitution and solicitation offenses.
How do people usually get caught committing prostitution and solicitation offenses?
The most common way that someone is caught committing one of these offenses is by an undercover police officer – either online, or when police conduct operations in areas that are well-known beats for sex workers.
There are several popular websites that are well known for being used by people who engage in sex work, including My Red Book (www.myredbook.com) and Craigslist (craigslist.org). In order to catch people who are using those sites to either advertise their services as prostitutes or to find prostitutes, the police will commonly respond to existing ads, or they will place ads and correspond with people who respond to them.
For example, the police place an ad that says a woman is available to provide certain sexual services in local hotels. A man responds to the ad, and via an exchange of emails, agrees to meet her at a hotel and pay her $200 to have sex with him. When the man arrives at the hotel room at the pre-arranged time, he is arrested by the police and charged with solicitation.
Undercover sting operations
The police know the streets and areas where prostitutes operate, and they often conduct undercover sting operations in those locations. They may have an officer pose as a prostitute to catch people who proposition them or they might pose as ‘johns’ in order to catch out people who are working as prostitutes. At other times, they may conduct surveillance of those areas to catch people. In some cases, they may have information that a particular business – such as a massage parlor – is being used as a brothel. In those cases they will pose as customers of the business and arrest anyone who is engaged in illegal activity on the premises.
For example, a female police officer dresses in provocative clothing and stands on the street in an area of the Tenderloin neighborhood in San Francisco known for prostitution. She is wearing a wire and her partner is in an unmarked vehicle across the street, recording all of the conversations that she has. A man drives up and stops near her, winds the window down, and beckons her over. They engage in a conversation, where the man offers her money to come in his car with him and give him a ‘blow job’. The conversation is recorded, and the man is arrested for solicitation.
What should I say to the police?
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.
When you are arrested, the police 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 scary and intimidating, 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.
What is the cost?
When you have your first consultation with an attorney from Summit Defense, we will discuss the estimated cost of your case with you. Every matter is considered on a case-by-case basis, and we will always act in your best interests – which means keeping costs as reasonable as possible while defending your matter to the full. One thing is for 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, which also reduces your legal fees dramatically. Call one of our attorneys today to set up your first, free consultation.
SECTION B – ELEMENTS & DEFENSES
If I’m arrested, will I go to jail?
No, probably not – it is extremely unlikely that anyone who is charged with a prostitution or solicitation offense will go into 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 with a citation that requires them to appear in court in the future. In some situations, you might not be taken back to the police station – for example, when police are conducting sting operations they might have a van set up where people can be processed on the spot.
Are solicitation and prostitution offenses felonies or misdemeanors?
In California, solicitation and prostitution offenses are misdemeanors. The possible penalties for a misdemeanor are lower than for a felony, and can be reduced substantially with the assistance of one of our experienced lawyers.
An important factor to keep in mind with these charges is that the law specifies that the punishment must become more serious with each offense. So if you have ever committed one of the specified prostitution or solicitation offenses before, the penalty that you face on a second or subsequent conviction will be higher – and will include a minimum amount of time in a county jail.
What are the solicitation and prostitution offenses?
There are several different offenses related to prostitution and solicitation, as follows:
Depending on which particular offense you are facing, the Prosecutor will have to prove different elements that are specific to each charge to secure a conviction against you.
What evidence will the Prosecutor use to try to prove a charge of engaging in an act of prostitution?
Where you are facing a charge of engaging in an act of prostitution in California, the Prosecutor will need evidence to prove beyond reasonable doubt that you:
This means that the Prosecutor must prove that you did the act willingly or on purpose. In the case of this offense, it implies that you knew the nature of the act and you meant to do it.
Sexual intercourse or a lewd act
To prove this offense, the Prosecutor must establish that you actually had sexual intercourse with someone else, or that you engaged in a lewd act with him or her. A ‘lewd act’ means “touching the genitals, buttocks, or female breast of either the prostitute or customer with some part of the other person’s body for the purpose of sexual arousal or gratiﬁcation of either person.”
In exchange for money or some other compensation
There has to be some form of payment made, or agreed to be made, between the parties. This can be money, or anything else of value.
For example, imagine that someone picks up a prostitute on the street at night and they go to nearby park together. On the way to the park, they agree that the customer will pay $50 to receive a ‘blow job’ from the prostitute. However, once they are at the park, the customer tells the prostitute that he doesn’t have any cash. Instead, he offers her a small plastic bag of cocaine that he has in his pocket. If the prostitute agrees to this, this still fulfills the requirement of the offense, even if no money changes hands – this is because the cocaine is still a form of compensation that is being paid for oral sex.
What evidence will the Prosecutor use against me to try to prove a charge of soliciting another person to engage in an act of prostitution?
To prove this charge against you, the Prosecutor would need to establish the following elements beyond a reasonable doubt:
This charge could be filed against either the customer or the sex worker, or both, depending on the nature of the transaction – this charge is really aimed at whoever initiates the transaction by making an offer.
Asked another person to engage in an act of prostitution
This is the element of ‘solicitation’ and requires the prosecution to prove that you did something that amounted to asking another person to engage in an act of prostitution with you. This really means that you have to have done something that amounted to a direct offer – such as, either to pay someone to have sex with you, or to offer to have sex with someone if they pay you.
It is not enough for the prosecution to establish that this might have been what you were seeking. The court has said that it is not enough to do things such as “waving to a passing vehicle, nodding to a passing stranger, or standing on a street corner in a miniskirt” – even in an area known for street prostitution.
So, if there is any ambiguity in the exchange, the Prosecutor might not be able to prove this charge. For example, imagine a scenario where a man pulls up in his car across the road from an undercover police officer, who is posing as a prostitute. He waves a $20 bill at her and, when she smiles and goes over to his car, he asks her what she would do for the $20. She replies “nothing for $20 honey, I’m worth more than that”. He then drives off. Even if the police then pulled him over and charged him with soliciting, the charge would be unlikely to succeed. This is because it is not clear that the man was asking the woman to engage in an act of prostitution – in fact, he didn’t ask her to do anything at all.
Intended to engage in an act of prostitution
To establish this element, the prosecution needs to prove that you had the specific intention of engaging in an act of prostitution with the other person. It is not sufficient for the Prosecutor to prove that this is probably what you wanted to do – so, again, if there is any ambiguity in the exchange, the charge will not succeed.
Consider an example where a woman sees an advertisement online for in-home, erotic massages. The advertisement describes a ‘sensual massage’ performed by an ‘attractive male or female masseuse’ in ‘the comfort of your own home’. She sends an email to the address provided in the advertisement, and asks for a man to come to come to her home and give her an ‘extra-special sensual massage’. Neither the masseuse or the woman are guilty of any offense at that stage because there is no definite evidence that a ‘sensual massage’ involves anything illegal, and no evidence that either of them intend to engage in anything more – and certainly not an act of prostitution.
Other person received the communication
There is a requirement that the other person received the communication – that is, they must have heard your offer, seen the message, etc. This element is not usually an issue in these kinds of cases but it might be relevant where, for example, someone asked a third party (such as a pimp) to convey their offer to a prostitute, but that was never done. If something like that happened, then the police could only charge the person with attempted solicitation – not actual solicitation.
What evidence will the Prosecutor use to try to prove a charge of agreeing to engage in an act of prostitution?
To establish that you committed this offense, the Prosecutor needs to prove the following elements beyond reasonable doubt:
Either the customer or the prostitute, or both, can commit this offense. Whereas solicitation is an offense that targets the person who makes the offer, this offense of agreeing to engage in an act of prostitution targets the person on the other side of the transaction – that is, the person who agrees to the offer.
This offense contains the same two elements as the offense of soliciting another person to engage in an act of prostitution, but the third element requires that the accused person do something else that goes toward committing the offense.
Did something to further the commission of an act of prostitution
This means that the Prosecutor must prove that, apart from agreeing to engage in the act of prostitution, you did something beyond that – that you took another step that moved you further towards actually engaging in the act of prostitution.
For example, it could be an additional act to do any of the following:
It doesn’t matter what the act is, or when it happens – as long as the Prosecutor can prove that it did happen.
What evidence will the Prosecutor use against me to try to prove a charge of loitering with intent to commit prostitution?
Apart from the offenses related to engaging in prostitution or solicitation, or agreeing to, it is also an offense under Penal Code 653.22(a) to loiter in a public place with the intent of committing prostitution. To prove this offense, the Prosecutor needs to establish three elements beyond reasonable doubt:
This is an offense that can be used to target either sex workers, or ‘johns’ who might be cruising and looking for prostitutes.
To ‘loiter’ means that you to “delay or linger” in the public place. The idea behind this element is that you are waiting around a particular area, and waiting for an opportunity to commit the crime of prostitution.
A ‘public place’ is anywhere that is open to the public and includes “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.”
Did not have a lawful purpose
To prove this element of the offense, the Prosecutor has to show that you did not have any other lawful reason for being in the public place. For example, if you were charged with loitering on a street corner, but were actually there because you were waiting for a friend, the charge against you would fail.
Intended to commit prostitution
This means that the prosecution has to prove that you had a specific intent when you were loitering, that is, that you intended to engage in sexual conduct for money. This does not, however, “include sexual conduct engaged in as a part of any stage performance, play, or other entertainment open to the public.”
Obviously, it is very rare that someone who is charged with this offense actually admits to the police that they are a prostitute waiting around for clients, or that they were in the area looking for a prostitute. Rather, this intention is usually proved by considering the circumstances at the time. The law lists several different things that can be taken into account in deciding whether someone was loitering with intent to commit prostitution, including:
Keep in mind, however, that it is not enough for one, or even several, of these factors to exist – the jury needs to decide each case individually, and consider whether the Prosecutor has really proved beyond reasonable doubt that the accused person had this specific intent.
For example, a woman is charged with loitering with intent to commit prostitution. She is picked up one night by the police when they see her wearing a short skirt, low-cut top, fishnet stockings, and high heels, and hanging around an area known for street prostitution. The police know that she was arrested for soliciting three months earlier. However, all of that evidence combined may not be enough to convict the woman of loitering with intent – unless the police have some other evidence that proves that she had no other reason for being in the area, and that she was doing something to indicate she was looking for customers, then they might not be able to prove that she is guilty of the offense.
I have been accused of picking up an under-age prostitute – is that more serious?
Yes – you may face more serious charges if you are accused of engaging or attempting to engage in any acts of prostitution with a person who is under 18 years old. Besides being charged with any of the prostitution or solicitation offenses that we have outlined above, you might also be facing child sex or child molestation charges. These include offenses such as:
Sex offenses that involve juveniles can involve very severe penalties. If you are accused of any offense that involves a minor, you should contact an attorney at Summit Defense immediately – you cannot afford to take these kinds of allegations lightly, and you need an experienced defense lawyer working on your case right from the start. To read more detailed information about our expertise in this area, you can go to the section of our site that deals with these kinds of offenses here.
What defenses can I use to fight a solicitation or prostitution charge?
There are several defenses that can be used to fight a solicitation or prostitution charge, and an experienced criminal defense attorney will know which ones are most suited to your case. But you should always remember that early intervention is by far your best ‘defense’ – we know that it’s best to deal with any allegations before formal charges are filed, and getting results at that stage of a case is something that we specialize in.
Once formal charges have been filed, however, defending your matter can become more complex. Your best chance of success is to have Summit Defense Attorneys fighting for you – we know how the police and the prosecution work, and we know how to beat these kinds of charges. And even in cases where the evidence is strong, we are often successful in negotiating lesser charges or keeping matters off our client’s record altogether.
I didn’t do it!
In prostitution and solicitation matters, it is often the case that the prosecution simply don’t have enough evidence to prove the offense beyond reasonable doubt, or it may be that there is serious doubt about what the defendant was intending to do. In those kinds of matters, Summit Defense will investigate the case further, closely examine the evidence that the prosecution intend to use against you, and find any holes in their case. And remember – the burden is always on the prosecution to prove all of the elements in the case against you.
In a recent case that we handled, our client was accused of engaging in an act of prostitution. The police caught him when he was receiving oral sex from a woman in his car. Our client had met the woman at a nearby bar, had bought her a drink, and afterwards the two of them had gone back to his car.
The police alleged that the woman was a known prostitute, and they said that they had a statement from her where she said that they had discussed payment for oral sex in the bar. Our client insisted that he had no idea the woman was a prostitute and that during his conversation with the woman in the bar, they not spoken about him paying her for oral sex. Further, at the time the police caught the couple, no money had been exchanged. Our attorney saw this case for what it was – a classic case of ‘his word against hers’. In negotiations with the Prosecutor, our attorney insisted that there was no other evidence supporting the charge, and also pointed out that it was very unusual for an alleged prostitute to not get payment before the act. In the circumstances, the Prosecutor agreed to withdraw the charge against our client.
I didn’t intend to engage in prostitution!
If you didn’t have the specific intention to engage in a sex act – either as a prostitute or a customer – then you cannot be found guilty of a prostitution or solicitation offense. There are many cases when the police charge people with these kinds of offenses but where they cannot prove that the accused had this specific intent, or where there is some other explanation for the accused’s actions.
This means that if you are charged in relation to being a customer, the Prosecutor has to prove that you specifically wanted to pay someone for sex, or to engage in a lewd act. For example, if you respond to an ad from an escort service for a ‘call girl’, the police might charge you with soliciting. However, without any further evidence that you actually intended to engage in an act of prostitution, that charge would likely fail – that is because they cannot really prove that you wanted anything more than a date, or some company for the evening.
If, on the other hand, you are charged as being a prostitute, the Prosecutor has to prove that you were actively engaged in prostitution, or in seeking people that would pay you for sex acts. For example, if the police ‘bust’ a massage parlor that they believe is being used as a front for a brothel, they may charge all of the women working there with prostitution and solicitation offenses. However, they would need to prove the offense in relation to each woman individually – and that means proving that each woman had the specific intent of engaging in prostitution. Just because someone is in a place known for prostitution does not, on its own, prove anything.
The police trapped me!
Charges of prostitution and solicitation are often brought as a result of undercover police operations. In some cases, however, the police can go too far and their actions can actually lead someone who would otherwise be a law-abiding citizen to commit an offense. If the police lure or tempt someone like that into committing a crime, then it might be a case of entrapment. If that has happened in your case, you need to contact Summit Defense Attorneys so we can expose the unlawful police behavior and ensure that you are not unfairly convicted.
When deciding if a case involved police entrapment the court will look at the facts of the case and, specifically, the behavior of the officers involved. If the officer acted in an overbearing way – such as by applying excessive pressure, by harassing the person, or by making threats – then it is likely that it was a case of entrapment. It is not entrapment, however, if the police merely provide an opportunity for someone to commit an offense.
Consider an example of a police officer posting an online ad for escort services on a site such as www.myredbook.com. If someone replies to that advertisement and says that he will pay an escort $250 for a date and sex, then the police officer has not engaged in entrapment – they merely posted the ad.
However, imagine if the man responding to the ad simply asked for a date for the evening. The police officer then replies and offers ‘extra’ services, to which the man responds by refusing and saying he only wants company for the evening. The officer responds again, and offers specific prices for sex acts. The man again refuses, saying that he does not want to have sex. The officer responds again, and urges him to agree to pay her for sex, and quotes a lower price than in the previous message. The man finally agrees to pay for sex and he is charged with agreeing to engage in an act of prostitution. However, in this case, the man probably has a defense of entrapment because, despite his refusals, the police officer repeatedly pressured him.
SECTION C – PENALTIES
What are the penalties for solicitation and prostitution offenses?
If, despite our best efforts, you are convicted of a solicitation or prostitution offense, the penalty will differ based on the circumstances of the case, and whether or not you have previously been convicted of one of these offenses. Further, when sentencing, the judge will take into account various personal factors. The penalty that you receive for solicitation or prostitution – and whether or not a conviction ends up on your record – can vary widely, depending on the case you are able to put before the judge.
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, and avoid jail time wherever possible.
The offenses of:
are all misdemeanors. If you are convicted of any of those offenses, you can face up to six months in a country jail, up to $1,000 in fines, or both.
Those are the maximum penalties that apply to a first conviction. However, there are many cases where the expertise of one of our attorneys has resulted in a much less serious penalty being imposed. We may be able to negotiate a lesser charge with the Prosecutor, or persuade the judge to impose a much more lenient penalty in your case – for example, we are often successful in having our clients sentenced to a period of probation and, in some cases, ensuring that a conviction is not permanently recorded.
If you have been convicted of a solicitation or prostitution offense before, however, the law says that the judge must impose a harsher penalty. If you are convicted of a second offense of prostitution, solicitation, or agreeing to engage in prostitution, then the judge will impose a sentence that includes at least 45 days in jail. If you are convicted of a third offense, the sentence increases to at least 90 days in jail.
In any matter, the judge will consider the circumstances of each specific 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. An experienced Summit Defense attorney will best know how to put together a positive case on sentencing that brings together as many mitigating circumstances as possible, and reduces the negative effect of any aggravating circumstances.
What other consequences can occur as a result of being convicted of a prostitution or solicitation offense?
The law in this area also allows the judge to impose penalties that affect your driver’s license. If you commit an offense (not including loitering with intent) while using a car, and within 1000 feet of a residence, the court can either:
A restricted license allows you to drive to and from work or school only or, if driving is an essential part of your job, to drive only for work purposes.
Further, if you are convicted of prostitution or solicitation, your immigration status could be affected, and your chances of future employment may be seriously damaged. If you want to try to avoid these very serious consequences, you should get legal advice and assistance at the earliest opportunity. Contact Summit Defense Attorneys to speak to our expert immigration attorney, and to discuss how we can help you try to avoid any negative consequences.
Can I get a prostitution or solicitation conviction expunged from my record?
Maybe – but that is not always the most effective route to take.
Many people are very concerned about having a conviction permanently on their record – and with good reason. Prostitution or solicitation convictions carry a particular stigma, and can be very embarrassing and hard to explain. Most employers these days will run background checks on potential employees and there are also numerous private online sites where, for a small fee, you can get all kinds of information about a person’s background. This means that finding out someone’s criminal record – even events that happened ten or twenty years ago – is almost as simple as doing a quick Google search.
There is a system in California that allows people to apply for their criminal records to be expunged. Lean more about expungement here. Unfortunately, however, that is still an imperfect process, and a conviction that has been expunged can still sometimes show up in a background check. This is why, if you are charged with a prostitution or solicitation offense, the best thing to do is to try to avoid a conviction being placed on your record in the first place.
 Judicial Council of California Criminal Jury Instructions, Instruction 1153.
People v. Hill (1980) Cal. App. 3d 525.
 California Penal Code 647(b).
 California Penal Code 647(k).
 Judicial Council of California Criminal Jury Instructions, Instruction 1153.
 Judicial Council of California Criminal Jury Instructions, Instruction 1153.
 Judicial Council of California Criminal Jury Instructions, Instruction 1154.
 People v. Superior Court (Hartway) (1977), 19 Cal.3d 338.
 Judicial Council of California Criminal Jury Instructions, Instruction 1155.
 Judicial Council of California Criminal Jury Instructions, Instruction 1155.
 California Penal Code 653.22(a).
 California Penal Code 653.20(c).
 California Penal Code 653.20(b).
 California Penal Code 653.20(a).
 California Penal Code 647(k).