California Legislature—2013–14 Regular Session

Assembly Bill No. 1718

Introduced by Assembly Member Wagner

February 13, 2014

An act to amend Section 647 of the Penal Code, relating to disorderly conduct.

LEGISLATIVE COUNSEL’S DIGEST

AB 1718, as introduced, Wagner. Disorderly conduct: prostitution.

Existing law provides that a person is guilty of disorderly conduct, a misdemeanor, when a person solicits or agrees to engage in or engages in any act of prostitution, as defined. Existing law imposes certain additional requirements on an accusatory pleading charging a violation of those provisions, and provides for certain enhanced penalties for violations of those provisions, if the defendant has been previously convicted of a violating those provisions.

This bill would instead provide that a person who solicits or who agrees to engage in or who engages in any act of prostitution in exchange for his or her receipt of money or other consideration from another person is guilty of disorderly conduct, a misdemeanor.

The bill would also provide that a person who solicits or who agrees to engage in or who engages in any act of prostitution in exchange for his or her payment, or offer to pay, another person money or other consideration, is guilty of disorderly conduct. The bill would make that offense punishable by confinement in a county jail for a minimum of 48 hours and a maximum of 6 months, and by a fine of not less than $1,000 and not more than $10,000. If the other person is a minor, as defined, 16 years of age or older, the bill would make that offense punishable by confinement in the state prison for 16 months, or 2 or 3 years, and by a fine of not less than $1,000 and not more than $25,000. If the other person is a minor, as defined, 16 years of age or younger, the bill would make that offense punishable by confinement in the state prison for 16 months, or 2 or 3 years, by a fine of not less than $1,000 and not more than $25,000, and by requiring the defendant to register as a sex offender. The bill would also impose additional requirements on an accusatory pleading charging a violation of its provisions, and require certain enhanced penalties for multiple convictions of violations of its provisions or certain existing provisions of law. By creating new crimes and increasing the obligations of county jail facilities, the bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.

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 begin delete subdivision (l) end delete begin insert subdivisions (b), (k),
and (l) end insert , 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)  begin insert (1) end insert begin insert   end insert Who solicits or who agrees to engage in or who engages
in any act of prostitution begin insert in exchange for his or her receipt of
money or other consideration from another person end insert . begin delete A end delete begin insert For purposes
of this subdivision, a end insert 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.
begin delete No end delete begin insert For purposes of this subdivision, an end insert agreement to engage in
an act of prostitution begin delete shall end delete begin insert in exchange for the receipt or payment
of, or offer to pay, money or other consideration does not end insert 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. begin delete As used in this subdivision, “prostitution”
includes any lewd act between persons for money or other
consideration. end delete

begin insert

(2) (A) Who solicits or who agrees to engage in or who engages
in any act of prostitution in exchange for his or her payment, or
offer to pay, another person money or other consideration.

end insert begin insert

(B) A violation of this paragraph is punishable as follows:

end insert begin insert

(i) Confinement in a county jail for a minimum of 48 hours and
a maximum of six months, and a fine of not less than one thousand
dollars ($1,000) and not more than ten thousand dollars ($10,000).

end insert begin insert

(ii) Confinement in the state prison for 16 months, or two or
three years, and a fine of not less than one thousand dollars
($1,000) and not more than twenty-five thousand dollars ($25,000)
if the other person is a minor who is 16 years of age or older.

end insert begin insert

(iii) Confinement in the state prison for 16 months, or two or
three years, a fine of not less than one thousand dollars ($1,000)
and not more than twenty-five thousand dollars ($25,000), and
registration as a sex offender pursuant to Section 290 if the other
person is a minor who is 15 years of age or younger.

end insert begin insert

(C) For purposes of this paragraph, “minor” means a person
who is 17 years of age or younger.

end insert begin insert

(D) Neither of the following is a defense to a violation of this
paragraph:

end insert begin insert

(i) Consent of the other person who the defendant pays, or offers
to pay, money or other consideration.

end insert begin insert

(ii) Mistake of fact as to the age of the other person at the time
the defendant pays, or offers to pay, money or other consideration.

end insert begin insert

(E) This paragraph does not prohibit prosecution of a defendant
under any other applicable law.

end insert

(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. A person who has been placed
in civil protective custody shall not 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.

(4) (A) Any person who photographs or records by any means
the image of the intimate body part or parts of another identifiable
person, under circumstances where the parties agree or understand
that the image shall remain private, and the person subsequently
distributes the image taken, with the intent to cause serious
emotional distress, and the depicted person suffers serious
emotional distress.

(B) As used in this paragraph, intimate body part means any
portion of the genitals, and in the case of a female, also includes
any portion of the breasts below the top of the areola, that is either
uncovered or visible through less than fully opaque clothing.

(C) Nothing in this subdivision precludes punishment under
any section of law providing for greater punishment.

(k)  begin insert (1) end insert begin insert   end insert begin insert (A) end insert begin insert   end insert In any accusatory pleading charging a violation of
begin insert paragraph (1) of end insert subdivision (b), if the defendant has been once
previously convicted of a violation of that begin delete subdivision end delete begin insert paragraph end insert ,
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.

begin insert

(B) In any accusatory pleading charging a violation of clause
(i) of subparagraph (A) of paragraph (2) of subdivision (b), if the
defendant has been once previously convicted of a violation of that
clause or paragraph (1) of subdivision (b), 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 90 days and not more than one year.

end insert begin insert

(C) In any accusatory pleading charging a violation of clause
(i) of subparagraph (A) of paragraph (2) of subdivision (b), if the
defendant has been once previously convicted of a violation of
clause (ii) or (iii) of that subparagraph, or if the defendant has
been twice previously convicted of another violation of subdivision
(b), the previous conviction or convictions shall be charged in the
accusatory pleading. If the previous conviction or 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 the state prison for a period of 16 months, or two
or three years, and the defendant shall be punished by a fine of
not less than one thousand dollars ($1,000) and not more than
twenty-five thousand dollars ($25,000).

end insert

begin insert (2) end insert begin insert   end insert begin insert (A) end insert begin insert   end insert In any accusatory pleading charging a violation of
begin insert paragraph (1) of end insert subdivision (b), if the defendant has been
previously convicted two or more times of a violation of that
begin delete subdivision end delete begin insert paragraph end insert , 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.

begin insert

(B) In any accusatory pleading charging a violation of clause
(ii) or (iii) of subparagraph (A) of paragraph (2) of subdivision
(b), if the defendant has been once previously convicted of a
violation of subdivision (b), 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 the state prison for a period of three, four, or six
years, and the defendant shall be punished by a fine of not less
than one thousand dollars ($1,000) and not more than twenty-five
thousand dollars ($25,000).

end insert

begin insert (3) end insert begin insert   end insert 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.

SEC. 2.  

No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of
the Government Code, or changes the definition of a crime within
the meaning of Section 6 of Article XIII B of the California
Constitution.