Amended in Assembly May 8, 2013

California Legislature—2013–14 Regular Session

Assembly Bill No. 336

Introduced by Assembly Member Ammiano

February 13, 2013

An act to amend begin delete Section end delete begin insert Sections end insert 647 begin insert and 653.22 end insert of the Penal Code, relating to crimes.

LEGISLATIVE COUNSEL’S DIGEST

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. begin insert 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 insert

This bill would begin insert , for purposes of both crimes, end insert exclude the possession of one of more condoms as evidence of a violation of that begin delete provision end delete begin insert crime end insert .

begin insert

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 insert begin insert

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 insert

Vote:  begin delete majority end delete begin insert ²⁄₃ end insert . Appropriation: no. Fiscal committee: no. State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 1.  

Section 647 of the Penal Code is amended to
read:

647.  

Except as provided in subdivision (l), every person who
commits any of the following acts is guilty of disorderly conduct,
a misdemeanor:

(a) Who solicits anyone to engage in or who engages in lewd
or dissolute conduct in any public place or in any place open to
the public or exposed to public view.

(b) Who solicits or who agrees to engage in or who engages in
any act of prostitution. A person agrees to engage in an act of
prostitution when, with specific intent to so engage, he or she
manifests an acceptance of an offer or solicitation to so engage,
regardless of whether the offer or solicitation was made by a person
who also possessed the specific intent to engage in prostitution.
No agreement to engage in an act of prostitution shall constitute
a violation of this subdivision unless some act, in addition to the
agreement, is done within this state in furtherance of the
commission of an act of prostitution by the person agreeing to
engage in that act. Possession of one or more condoms shall not
be used as evidence of a violation of this subdivision. As used in
this subdivision, “prostitution” includes any lewd act between
persons for money or other consideration.

(c) Who accosts other persons in any public place or in any
place open to the public for the purpose of begging or soliciting
alms.

(d) Who loiters in or about any toilet open to the public for the
purpose of engaging in or soliciting any lewd or lascivious or any
unlawful act.

(e) Who lodges in any building, structure, vehicle, or place,
whether public or private, without the permission of the owner or
person entitled to the possession or in control of it.

(f) Who is found in any public place under the influence of
intoxicating liquor, any drug, controlled substance, toluene, or any
combination of any intoxicating liquor, drug, controlled substance,
or toluene, in a condition that he or she is unable to exercise care
for his or her own safety or the safety of others, or by reason of
his or her being under the influence of intoxicating liquor, any
drug, controlled substance, toluene, or any combination of any
intoxicating liquor, drug, or toluene, interferes with or obstructs
or prevents the free use of any street, sidewalk, or other public
way.

(g) When a person has violated subdivision (f), a peace officer,
if he or she is reasonably able to do so, shall place the person, or
cause him or her to be placed, in civil protective custody. The
person shall be taken to a facility, designated pursuant to Section
5170 of the Welfare and Institutions Code, for the 72-hour
treatment and evaluation of inebriates. A peace officer may place
a person in civil protective custody with that kind and degree of
force which would be lawful were he or she effecting an arrest for
a misdemeanor without a warrant. No person who has been placed
in civil protective custody shall thereafter be subject to any criminal
prosecution or juvenile court proceeding based on the facts giving
rise to this placement. This subdivision shall not apply to the
following persons:

(1) Any person who is under the influence of any drug, or under
the combined influence of intoxicating liquor and any drug.

(2) Any person who a peace officer has probable cause to believe
has committed any felony, or who has committed any misdemeanor
in addition to subdivision (f).

(3) Any person who a peace officer in good faith believes will
attempt escape or will be unreasonably difficult for medical
personnel to control.

(h) Who loiters, prowls, or wanders upon the private property
of another, at any time, without visible or lawful business with the
owner or occupant. As used in this subdivision, “loiter” means to
delay or linger without a lawful purpose for being on the property
and for the purpose of committing a crime as opportunity may be
discovered.

(i) Who, while loitering, prowling, or wandering upon the private
property of another, at any time, peeks in the door or window of
any inhabited building or structure, without visible or lawful
business with the owner or occupant.

(j) (1) Any person who looks through a hole or opening, into,
or otherwise views, by means of any instrumentality, including,
but not limited to, a periscope, telescope, binoculars, camera,
motion picture camera, camcorder, or mobile phone, the interior
of a bedroom, bathroom, changing room, fitting room, dressing
room, or tanning booth, or the interior of any other area in which
the occupant has a reasonable expectation of privacy, with the
intent to invade the privacy of a person or persons inside. This
subdivision shall not apply to those areas of a private business
used to count currency or other negotiable instruments.

(2) Any person who uses a concealed camcorder, motion picture
camera, or photographic camera of any type, to secretly videotape,
film, photograph, or record by electronic means, another,
identifiable person under or through the clothing being worn by
that other person, for the purpose of viewing the body of, or the
undergarments worn by, that other person, without the consent or
knowledge of that other person, with the intent to arouse, appeal
to, or gratify the lust, passions, or sexual desires of that person and
invade the privacy of that other person, under circumstances in
which the other person has a reasonable expectation of privacy.

(3) (A) Any person who uses a concealed camcorder, motion
picture camera, or photographic camera of any type, to secretly
videotape, film, photograph, or record by electronic means, another,
identifiable person who may be in a state of full or partial undress,
for the purpose of viewing the body of, or the undergarments worn
by, that other person, without the consent or knowledge of that
other person, in the interior of a bedroom, bathroom, changing
room, fitting room, dressing room, or tanning booth, or the interior
of any other area in which that other person has a reasonable
expectation of privacy, with the intent to invade the privacy of that
other person.

(B) Neither of the following is a defense to the crime specified
in this paragraph:

(i) The defendant was a cohabitant, landlord, tenant, cotenant,
employer, employee, or business partner or associate of the victim,
or an agent of any of these.

(ii) The victim was not in a state of full or partial undress.

(k) (1) In any accusatory pleading charging a violation of
subdivision (b), if the defendant has been once previously convicted
of a violation of that subdivision, the previous conviction shall be
charged in the accusatory pleading. If the previous conviction is
found to be true by the jury, upon a jury trial, or by the court, upon
a court trial, or is admitted by the defendant, the defendant shall
be imprisoned in a county jail for a period of not less than 45 days
and shall not be eligible for release upon completion of sentence,
on probation, on parole, on work furlough or work release, or on
any other basis until he or she has served a period of not less than
45 days in a county jail. In all cases in which probation is granted,
the court shall require as a condition thereof that the person be
confined in a county jail for at least 45 days. In no event does the
court have the power to absolve a person who violates this
subdivision from the obligation of spending at least 45 days in
confinement in a county jail.

(2) In any accusatory pleading charging a violation of
subdivision (b), if the defendant has been previously convicted
two or more times of a violation of that subdivision, each of these
previous convictions shall be charged in the accusatory pleading.
If two or more of these previous convictions are found to be true
by the jury, upon a jury trial, or by the court, upon a court trial, or
are admitted by the defendant, the defendant shall be imprisoned
in a county jail for a period of not less than 90 days and shall not
be eligible for release upon completion of sentence, on probation,
on parole, on work furlough or work release, or on any other basis
until he or she has served a period of not less than 90 days in a
county jail. In all cases in which probation is granted, the court
shall require as a condition thereof that the person be confined in
a county jail for at least 90 days. In no event does the court have
the power to absolve a person who violates this subdivision from
the obligation of spending at least 90 days in confinement in a
county jail.

(3) In addition to any punishment prescribed by this section, a
court may suspend, for not more than 30 days, the privilege of the
person to operate a motor vehicle pursuant to Section 13201.5 of
the Vehicle Code for any violation of subdivision (b) that was
committed within 1,000 feet of a private residence and with the
use of a vehicle. In lieu of the suspension, the court may order a
person’s privilege to operate a motor vehicle restricted, for not
more than six months, to necessary travel to and from the person’s
place of employment or education. If driving a motor vehicle is
necessary to perform the duties of the person’s employment, the
court may also allow the person to drive in that person’s scope of
employment.

(l) (1) A second or subsequent violation of subdivision (j) is
punishable by imprisonment in a county jail not exceeding one
year, or by a fine not exceeding two thousand dollars ($2,000), or
by both that fine and imprisonment.

(2) If the victim of a violation of subdivision (j) was a minor at
the time of the offense, the violation is punishable by imprisonment
in a county jail not exceeding one year, or by a fine not exceeding
two thousand dollars ($2,000), or by both that fine and
imprisonment.

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begin insert SEC. end insert begin insert 2 end insert begin insert . end insert   

end insert

begin insert Section 653.22 of the end insert begin insert Penal Code end insert begin insert is amended to read: end insert

653.22.  

(a) It is unlawful for any person to loiter in any public
place with the intent to commit prostitution. This intent is
evidenced by acting in a manner and under circumstances begin delete which end delete
begin insert that end insert openly demonstrate the purpose of inducing, enticing, or
soliciting prostitution, or procuring another to commit prostitution.

(b) Among the circumstances that may be considered in
determining whether a person loiters with the intent to commit
prostitution are that the person:

(1) Repeatedly beckons to, stops, engages in conversations with,
or attempts to stop or engage in conversations with passersby,
indicative of soliciting for prostitution.

(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.

(3) Has been convicted of violating this section, subdivision (a)
or (b) of Section 647, or any other offense relating to or involving
prostitution, within five years of the arrest under this section.

(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.

(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.

(c) The list of circumstances set forth in subdivision (b) is not
exclusive. The circumstances set forth in subdivision (b) should
be considered particularly salient if they occur in an area that is
known for prostitution activity. Any other relevant circumstances
may be considered in determining whether a person has the
requisite intent. Moreover, no one circumstance or combination
of circumstances is in itself determinative of intent. Intent must
be determined based on an evaluation of the particular
circumstances of each case.

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(d) Possession of one or more condoms shall not be used as
evidence of a violation of this section.

end insert