Amended in Senate August 15, 2016

Amended in Senate June 28, 2016

Amended in Senate June 15, 2016

Amended in Assembly May 5, 2016

Amended in Assembly April 13, 2016

Amended in Assembly March 15, 2016

California Legislature—2015–16 Regular Session

Assembly Bill No. 1708

Introduced by Assembly Member Gonzalez

(Coauthor: Senator Anderson)

January 25, 2016

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

LEGISLATIVE COUNSEL’S DIGEST

AB 1708, as amended, Gonzalez. Disorderly conduct: prostitution.

Existing law provides that a person who solicits or agrees to engage in or engages in any act of prostitution is guilty of disorderly conduct, a misdemeanor, punishable by imprisonment in the county jail for no more than 6 months or by a fine not exceeding $1,000, or by both that fine and imprisonment. Existing law also imposes increased minimum terms of imprisonment for a violation of that provision if a person has previously been convicted of soliciting or agreeing to engage in or engaging in any act of prostitution. Existing law defines “prostitution” to include any lewd act between persons for money or other consideration. Existing law additionally makes prostitution involving soliciting a minor punishable by imprisonment of not less than 2 days and not more than one year and a fine not exceeding $10,000. Existing law allows a court to, when the interests of justice are best served, reduce or eliminate the mandatory 2 days in the county jail.

begin delete

This bill would recast the provisions regarding prostitution to distinguish between a person who commits prostitution with intent to receive compensation, in exchange for providing compensation to a person who is 18 years of age or older, or in exchange for providing compensation to a minor. The bill would require a conviction either upon proof of the intent to receive compensation, money, or anything of value and with the specific intent to engage in an act of prostitution, or upon the individual providing compensation, money, or anything of value to the other person. The bill would require a person who commits prostitution by providing money or other consideration to serve at least 72 continuous hours in the county jail, to be served on days other than days of regular employment of the person, as specified. In all cases in which probation is granted, the bill would also require as a condition of probation that the person be confined in a county jail for at least 24 hours. The bill would expand the scope of prostitution by soliciting a minor to include a situation where the person who was solicited is posing as a minor and the person engaged in the solicitation had specific intent to solicit a minor. The bill would provide that the provisions involving soliciting a minor apply only to persons who commit prostitution by providing money or other consideration. The bill would require a person who commits prostitution by soliciting a minor to serve a period of at least 72 continuous hours in the county jail, to be served on days other than days of regular employment of the person, as specified, and would prohibit the court from eliminating the mandatory minimum sentence. In all cases in which probation is granted, the bill would also require as a condition of probation that the person be confined in a county jail for at least 48 hours. The bill would additionally make a person who commits prostitution by providing money or other consideration punishable by a minimum fine of $1,000. The bill would require a portion of those fines, as specified, to be used by the county where the offense occurred for services for victims of human trafficking. The bill would clarify that nothing in these provisions shall preclude prosecution under any other provision of law. By revising the scope of a crime, the bill would impose a state-mandated local program.

end delete begin insert

This bill would recast these provisions to distinguish between the different individuals who are guilty of disorderly conduct by soliciting, agreeing to engage in, or engaging in, any act of prostitution based on whether the person is soliciting or agreeing to receive compensation, money, or anything of value for an act of prostitution, as specified, or the person is soliciting or agreeing to provide compensation, money, or anything of value for an act of prostitution with a minor or with an adult, as specified. The bill would provide that committing disorderly conduct by soliciting or agreeing to provide compensation is punishable by a fine of not less than $250 but not exceeding $1,000, and imprisonment in a county jail for not less than 72 hours, or if probation is granted, not less than 48 hours, as specified, and not exceeding 6 months. The bill would provide that committing disorderly conduct by soliciting or agreeing to provide compensation when the defendant knew or should have known that the person solicited was a minor or the person was posing as a minor, is punishable by a fine of not less than $1,000 but not exceeding $10,000, and imprisonment in a county jail for not less than 72 hours, or if probation is granted, not less than 48 hours, as specified, and not exceeding one year. By imposing those mandatory terms of incarceration, this bill would impose a state-mandated local program.

end insert

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.

The 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 subdivision (l), a person who
commits any of the following acts is guilty of disorderly conduct,
a misdemeanor:

(a) An individual 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) (1) An individual who solicits, or who agrees to engage in,
or who engages in, any act of prostitution with the intent to receive
compensation, money, or anything of begin delete value, and with the specific
intent to so engage. end delete begin insert value from the other person. An individual
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 by another person to so engage, regardless of whether
the offer or solicitation was made by a person who also possessed
the specific intent to engage in an act of prostitution. end insert

(2) An individual who solicits, or who agrees to engage in, or
who engages in, any act of prostitution with another person who
is 18 years of age or older in exchange for the individual providing
compensation, money, or anything of value to the other person.
An individual 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 by another person who is 18 years of age
or older to so engage, regardless of whether the offer or solicitation
was made by a person who also possessed the specific intent to
engage in an act of prostitution.

(3) An individual who solicits, or who agrees to engage in, or
who engages in, any act of prostitution with another person who
is a minor in exchange for the individual providing compensation,
money, or anything of value to the minor. An individual 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
by someone who is a minor to so engage, regardless of whether
the offer or solicitation was made by a minor who also possessed
the specific intent to engage in an act of prostitution.

(4) A manifestation of acceptance of an offer or solicitation to
engage in an act of prostitution shall not constitute a violation of
this subdivision unless some act, in addition to the manifestation
of acceptance, is done within this state in furtherance of the
commission of the act of prostitution by the person manifesting
an acceptance of an offer or solicitation to engage in that act. As
used in this subdivision, “prostitution” includes any lewd act
between persons for money or other consideration.

(5) Except as provided in paragraph (6) and subdivision (k), a
violation of paragraph (2) or (3) is punishable by imprisonment in
a county jail for not less than 72 hours and not more than six
months and by a fine of not less than two hundred fifty dollars
($250) but not exceeding one thousand dollars ($1,000). begin delete An amount
of two hundred fifty dollars ($250) of the fine shall be deposited
in the treasury of the county in which the offense occurred and
used by the county to fund services for victims of human
trafficking. end delete Upon a violation of paragraph (2) or (3), a person is
not 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 24 continuous
hours in a county jail. In all cases in which probation is granted,
the court shall require as a condition of probation that the person
be confined in a county jail for at least 24 hours. The court shall
order that a person punished under this begin delete subdivision, end delete begin insert paragraph, end insert
who is to be punished by imprisonment in the county jail, be
imprisoned on days other than days of regular employment of the
person, as determined by the court. If the court determines that 24
hours of continuous imprisonment would interfere with the person’s
work schedule, the court shall allow the person to serve the
imprisonment whenever the person is normally scheduled for time
off from work. The court may make this determination based upon
a representation from the defendant’s attorney or upon an affidavit
or testimony from the defendant.

(6) If a defendant violates paragraph (3) and knew or should
have known that the person who was solicited was a minor at the
time of the offense, or if a defendant violates paragraph (2) and
the person who was solicited was a person posing as a minor and
the defendant had specific intent to solicit a minor, the violation
is punishable by imprisonment in a county jail for not less than 72
hours and not more than one year and by a fine not less than one
thousand dollars ($1,000) but not exceeding ten thousand dollars
($10,000). begin delete The fine imposed shall be deposited in the treasury of
the county in which the offense occurred and used by the county
to fund services for victims of human trafficking. end delete Upon a violation
of this paragraph, a person is not 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 48 continuous hours in a county jail. In all
cases in which probation is granted, the court shall require as a
condition of probation that the person be confined in a county jail
for at least 48 hours. The court shall order that a person punished
under this paragraph, who is to be punished by imprisonment in
the county jail, be imprisoned on days other than days of regular
employment of the person, as determined by the court. If the court
determines that 48 hours of continuous imprisonment would
interfere with the person’s work schedule, the court shall allow
the person to serve the imprisonment whenever the person is
normally scheduled for time off from work. The court may make
this determination based upon a representation from the defendant’s
attorney or upon an affidavit or testimony from the defendant.

(7) This subdivision does not prohibit prosecution under any
other law.

(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 intentionally distributes the image of
the intimate body part or parts of another identifiable person, or
an image of the person depicted engaged in an act of sexual
intercourse, sodomy, oral copulation, sexual penetration, or an
image of masturbation by the person depicted or in which the
person depicted participates, under circumstances in which the
persons agree or understand that the image shall remain private,
the person distributing the image knows or should know that
distribution of the image will cause serious emotional distress, and
the person depicted suffers that distress.

(B) A person intentionally distributes an image described in
subparagraph (A) when he or she personally distributes the image,
or arranges, specifically requests, or intentionally causes another
person to distribute that image.

(C) As used in this paragraph, “intimate body part” means any
portion of the genitals, the anus 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 clearly visible through clothing.

(D) It shall not be a violation of this paragraph to distribute an
image described in subparagraph (A) if any of the following
applies:

(i) The distribution is made in the course of reporting an
unlawful activity.

(ii) The distribution is made in compliance with a subpoena or
other court order for use in a legal proceeding.

(iii) The distribution is made in the course of a lawful public
proceeding.

(5) This subdivision shall not preclude punishment under any
section of law providing for greater punishment.

(k) 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 is not 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. The court shall not
absolve a person who violates this subdivision from the obligation
of spending at least 45 days in confinement in a county jail.

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 is not 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. The court shall not 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.

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.