AB 336, as amended, Ammiano. Crimes: prostitution: evidence.
Under existing law, a person is guilty of disorderly conduct, a misdemeanor, based on various acts, including when a person solicits or agrees to engage in or engages in any act of prostitution, as specified. Existing also law makes it unlawful for any person to loiter in any public place with the intent to commit prostitution and, in determining whether a person has violated this provision, permits consideration of circumstances including, but not limited to, that the person repeatedly beckons to, stops, engages in conversations with, or attempts to stop or engage in conversations with, passersby, indicative of soliciting for prostitution.end delete
This bill would, for purposes of both crimes, exclude the possession of one of more condoms as evidence of a violation of that crime.end delete
The California Constitution provides for the Right to Truth in Evidence that requires a 2⁄3 vote of the Legislature to exclude any relevant evidence from any criminal proceeding, as specified.end delete
Because this bill would exclude possession of one or more condoms as evidence of crimes, it requires a 2⁄3 vote of the Legislature.end delete
begin delete2⁄3 end delete.
Fiscal committee: no.
State-mandated local program: no.
The people of the State of California do enact as follows:
Section 647 of the Penal Code is amended to read:
Except as provided in subdivision (l), every person who
3commits any of the following acts is guilty of disorderly conduct,
5(a) Who solicits anyone to engage in or who engages in lewd
6or dissolute conduct in any public place or in any place open to
7the public or exposed to public view.
8(b) Who solicits or who agrees to engage in or who engages in
9any act of prostitution. A person agrees to engage in an act of
10prostitution when, with specific intent to so engage, he or she
11manifests an acceptance of an offer or solicitation to so engage,
12regardless of whether the offer or solicitation was made by a person
13who also possessed the specific intent to engage in prostitution.
14No agreement to engage in an act of prostitution shall constitute
15a violation of this subdivision unless some act, in addition to the
16agreement, is done within this state in furtherance of the
17commission of an act of prostitution by the person agreeing to
18engage in that act. Possession of one or more condoms shall not
19be used as evidence of a violation of this subdivision. As used in
20this subdivision, “prostitution” includes any lewd act between
21persons for money or other consideration.
22(c) Who accosts other persons in any public place or in any
23place open to the public for the purpose of begging or soliciting
25(d) Who loiters in or about any toilet open to the public for the
26purpose of engaging in or soliciting any lewd or lascivious or any
28(e) Who lodges in any building, structure, vehicle, or place,
29whether public or private, without the permission of the owner or
30person entitled to the possession or in control of it.
31(f) Who is found in any public place under the influence of
32intoxicating liquor, any drug, controlled substance, toluene, or any
33combination of any intoxicating liquor, drug, controlled substance,
34or toluene, in a condition that he or she is unable to exercise care
35for his or her own safety or the safety of others, or by reason of
36his or her being under the influence of intoxicating liquor, any
37drug, controlled substance, toluene, or any combination of any
38intoxicating liquor, drug, or toluene, interferes with or obstructs
39or prevents the free use of any street, sidewalk, or other public
P5 1(g) When a person has violated subdivision (f), a peace officer,
2if he or she is reasonably able to do so, shall place the person, or
3cause him or her to be placed, in civil protective custody. The
4person shall be taken to a facility, designated pursuant to Section
55170 of the Welfare and Institutions Code, for the 72-hour
6treatment and evaluation of inebriates. A peace officer may place
7a person in civil protective custody with that kind and degree of
8force which would be lawful were he or she effecting an arrest for
9a misdemeanor without a warrant. No person who has been placed
10in civil protective custody shall thereafter be subject to any criminal
11prosecution or juvenile court proceeding based on the facts giving
12rise to this placement. This subdivision shall not apply to the
14(1) Any person who is under the influence of any drug, or under
15the combined influence of intoxicating liquor and any drug.
16(2) Any person who a peace officer has probable cause to believe
17has committed any felony, or who has committed any misdemeanor
18in addition to subdivision (f).
19(3) Any person who a peace officer in good faith believes will
20attempt escape or will be unreasonably difficult for medical
21personnel to control.
22(h) Who loiters, prowls, or wanders upon the private property
23of another, at any time, without visible or lawful business with the
24owner or occupant. As used in this subdivision, “loiter” means to
25delay or linger without a lawful purpose for being on the property
26and for the purpose of committing a crime as opportunity may be
28(i) Who, while loitering, prowling, or wandering upon the private
29property of another, at any time, peeks in the door or window of
30any inhabited building or structure, without visible or lawful
31business with the owner or occupant.
32(j) (1) Any person who looks through a hole or opening, into,
33or otherwise views, by means of any instrumentality, including,
34but not limited to, a periscope, telescope, binoculars, camera,
35motion picture camera, camcorder, or mobile phone, the interior
36of a bedroom, bathroom, changing room, fitting room, dressing
37room, or tanning booth, or the interior of any other area in which
38the occupant has a reasonable expectation of privacy, with the
39intent to invade the privacy of a person or persons inside. This
P6 1subdivision shall not apply to those areas of a private business
2used to count currency or other negotiable instruments.
3(2) Any person who uses a concealed camcorder, motion picture
4camera, or photographic camera of any type, to secretly videotape,
5film, photograph, or record by electronic means, another,
6 identifiable person under or through the clothing being worn by
7that other person, for the purpose of viewing the body of, or the
8undergarments worn by, that other person, without the consent or
9knowledge of that other person, with the intent to arouse, appeal
10to, or gratify the lust, passions, or sexual desires of that person and
11invade the privacy of that other person, under circumstances in
12which the other person has a reasonable expectation of privacy.
13(3) (A) Any person who uses a concealed camcorder, motion
14picture camera, or photographic camera of any type, to secretly
15videotape, film, photograph, or record by electronic means, another,
16identifiable person who may be in a state of full or partial undress,
17for the purpose of viewing the body of, or the undergarments worn
18by, that other person, without the consent or knowledge of that
19other person, in the interior of a bedroom, bathroom, changing
20room, fitting room, dressing room, or tanning booth, or the interior
21of any other area in which that other person has a reasonable
22expectation of privacy, with the intent to invade the privacy of that
24(B) Neither of the following is a defense to the crime specified
25in this paragraph:
26(i) The defendant was a cohabitant, landlord, tenant, cotenant,
27employer, employee, or business partner or associate of the victim,
28or an agent of any of these.
29(ii) The victim was not in a state of full or partial undress.
30(k) (1) In any accusatory
pleading charging a violation of
31subdivision (b), if the defendant has been once previously convicted
32of a violation of that subdivision, the previous conviction shall be
33charged in the accusatory pleading. If the previous conviction is
34found to be true by the jury, upon a jury trial, or by the court, upon
35a court trial, or is admitted by the defendant, the defendant shall
36be imprisoned in a county jail for a period of not less than 45 days
37and shall not be eligible for release upon completion of sentence,
38on probation, on parole, on work furlough or work release, or on
39any other basis until he or she has served a period of not less than
4045 days in a county jail. In all cases in which probation is granted,
P7 1the court shall require as a condition thereof that the person be
2confined in a county jail for at least 45 days. In no event does the
3court have the power to absolve a person who violates this
4subdivision from the obligation of spending at least 45 days in
5confinement in a county jail.
6(2) In any accusatory pleading charging a violation of
7subdivision (b), if the defendant has been previously convicted
8two or more times of a violation of that subdivision, each of these
9previous convictions shall be charged in the accusatory pleading.
10If two or more of these previous convictions are found to be true
11by the jury, upon a jury trial, or by the court, upon a court trial, or
12are admitted by the defendant, the defendant shall be imprisoned
13in a county jail for a period of not less than 90 days and shall not
14be eligible for release upon completion of sentence, on probation,
15on parole, on work furlough or work release, or on any other basis
16until he or she has served a period of not less than 90 days in a
17county jail. In all cases in which probation is granted, the court
18shall require as a condition thereof that the person be confined in
19a county jail for at least 90 days. In no event does the court have
20the power to absolve a person who violates this subdivision from
21the obligation of spending at least 90 days in confinement in a
23(3) In addition to any punishment prescribed by this section, a
24court may suspend, for not more than 30 days, the privilege of the
25person to operate a motor vehicle pursuant to Section 13201.5 of
26the Vehicle Code for any violation of subdivision (b) that was
27committed within 1,000 feet of a private residence and with the
28use of a vehicle. In lieu of the suspension, the court may order a
29person’s privilege to operate a motor vehicle restricted, for not
30more than six months, to necessary travel to and from the person’s
31place of employment or education. If driving a motor vehicle is
32necessary to perform the duties of the person’s employment, the
33court may also allow the person to drive in that person’s scope of
35(l) (1) A second or subsequent violation of subdivision (j) is
36punishable by imprisonment in a county jail not exceeding one
37year, or by a fine not exceeding two thousand dollars ($2,000), or
38by both that fine and imprisonment.
39(2) If the victim of a violation of subdivision (j) was a minor at
40the time of the offense, the violation is punishable by imprisonment
P8 1in a county jail not exceeding one year, or by a fine not exceeding
2two thousand dollars ($2,000), or by both that fine and
Section 653.22 of the Penal Code is amended to read:
(a) It is unlawful for any person to loiter in any public
6place with the intent to commit prostitution. This intent is
7evidenced by acting in a manner and under circumstances that
8openly demonstrate the purpose of inducing, enticing, or soliciting
9prostitution, or procuring another to commit prostitution.
10(b) Among the circumstances that may be considered in
11determining whether a person loiters with the intent to commit
12prostitution are that the person:
13(1) Repeatedly beckons to, stops, engages in conversations with,
14or attempts to stop or engage in conversations with passersby,
15indicative of soliciting for prostitution.
16(2) Repeatedly stops or attempts to stop motor vehicles by
17hailing the drivers, waving arms, or making any other bodily
18gestures, or engages or attempts to engage the drivers or passengers
19of the motor vehicles in conversation, indicative of soliciting for
21(3) Has been convicted of violating this section, subdivision (a)
22or (b) of Section 647, or any other offense relating to or involving
23prostitution, within five years of the arrest under this section.
24(4) Circles an area in a motor vehicle and repeatedly beckons
25to, contacts, or attempts to contact or stop pedestrians or other
26motorists, indicative of soliciting for prostitution.
27(5) Has engaged, within six months prior to the arrest under this
28section, in any behavior described in this subdivision, with the
29exception of paragraph (3), or in any other behavior indicative of
31(c) The list of circumstances set forth in subdivision (b) is not
32exclusive. The circumstances set forth in subdivision (b) should
33be considered particularly salient if they occur in an area that is
34known for prostitution activity. Any other relevant circumstances
35may be considered in determining whether a person has the
36requisite intent. Moreover, no one circumstance or combination
37of circumstances is in itself determinative of intent. Intent must
38be determined based on an evaluation of the particular
39circumstances of each case.
P9 1(d) Possession of one or more condoms shall not be used as
2evidence of a violation of this section.