The change in the charge to PC 647(a) is not necessarily for the better; for the wording of "dissolute conduct" is open to more court discretion which makes it perhaps more difficult to defend against.
To help in that proof of innocence, I have quickly copied and pasted
Below are 100 case citations which involved the terms "lewd" and/or "dissolute conduct." MOST OF THE 100 WILL NOT LIKELY APPLY TO OUR SPECIFICS, research or each case is needed. BTW, the 100 were very randomly selected, so many other cases (perhaps even better ones) do exist for your expanded research.
key: lewd and or dissolute conduct
(The source is Westlaw.)
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Negative History Available
1. People v. Deyhle,
76 Cal.App.3d Supp. 1, 143 Cal.Rptr. 135, Cal.App.Super., Oct 17, 1977
...lewd or dissolute conduct. Section 647, subdivision (a) condemns both
soliciting and engaging in lewd or dissolute conduct in a public place. The
trial court in Williams defined "lewd and dissolute" conduct in the following
manner: "As used in the foregoing instruction, the words 'lewd' and 'dissolute'
are synonymous and mean lustful, lascivious, unchaste, wanton, or loose in
morals and conduct." (The language is that of CALJIC No. 16.402.) The Court of
Appeal held that the phrase "lewd and dissolute" was not constitutionally vague
as defined by the trial court. The Williams court disagreed with the decision by
the Court of Appeal in Silva insofar as that opinion seems to hold that "lewd
and dissolute" must be defined synonymously with "obscene" in cases not
involving theatrical performances. We agree with the decision in the Williams
case that the definition of "lewd or dissolute" conduct ...
Negative History Available
2. People v. Babb,
103 Cal.App.2d 326, 229 P.2d 843, Cal.App. 2 Dist., Apr 09, 1951
"...Lewd" and "dissolute" are terms often used interchangeably, and each applies
to the unlawful indulgence in lust whether in public or private. (11) Sodomy §
2--Nature and Elements. One cannot commit the infamous crime against nature
without being lewd and dissolute. (12) Sodomy § 2--Nature and Elements. Lewdness
and dissoluteness are necessary elements of the infamous crime against nature.
(13) Sodomy § 2--Nature and ElementsVagrancy § 2--Nature and Elements. The
infamous crime against nature and vagrancy, where the offense is that of a lewd
and dissolute person, involve essentially the same elements of conduct and have
a common basis. (14) Sodomy § 2--Nature and Elements. Although a person can be
lewd and dissolute without committing the infamous crime against nature, the
converse is not true. (15) Vagrancy § 2--Nature and Elements. A single act of
lewdness or dissoluteness may constitute a person a vagrant if it is of such
a...
Negative History Available
3. People v. Deyhle,
76 Cal.App.3d Supp. 1, 143 Cal.Rptr. 135, Cal.App.Super., Oct 17, 1977
...lewd or dissolute conduct. Section 647, subdivision (a) condemns both
soliciting and engaging in lewd or dissolute conduct in a public place. The
trial court in Williams defined "lewd and dissolute" conduct in the following
manner: "As used in the foregoing instruction, the words 'lewd' and 'dissolute'
are synonymous and mean lustful, lascivious, unchaste, wanton, or loose in
morals and conduct." (The language is that of CALJIC No. 16.402.) The Court of
Appeal held that the phrase "lewd and dissolute" was not constitutionally vague
as defined by the trial court. The Williams court disagreed with the decision by
the Court of Appeal in Silva insofar as that opinion seems to hold that "lewd
and dissolute" must be defined synonymously with "obscene" in cases not
involving theatrical performances. We agree with the decision in the Williams
case that the definition of "lewd or dissolute" conduct ...
Negative History Available
4. People v. Williams,
59 Cal.App.3d 225, 130 Cal.Rptr. 460, Cal.App. 2 Dist., Jun 17, 1976
...Lewdness, Indecency, and Obscenity § 2--Definitions--"Lewd"; "Dissolute." In
the context of Pen. Code, § 647, subd. (a), punishing lewd or dissolute conduct
in public as a misdemeanor, "lewd" and "dissolute" are terms often used
interchangeably, each term applying to the unlawful indulgence in lust whether
in public or private. "Lewd" is defined to mean lustful; libidinous; lascivious;
unchaste. "Dissolute" is defined to mean loose in morals and conduct; wanton;
lewd; debauched. [See Cal.Jur.3d, Criminal Law, § 3060; Am.Jur.2d, Lewdness,
Indecency, and Obscenity, § 1.] (2) Lewdness, Indecency, and Obscenity §
2--Definitions--Obscenity Standards Vis-a-vis Lewd Conduct. Except in the
context of conduct ...
Negative History Available
5. People v. Williams,
59 Cal.App.3d 225, 130 Cal.Rptr. 460, Cal.App. 2 Dist., Jun 17, 1976
...Lewd' and 'dissolute' are terms often used interchangeably. Each applies to
the unlawful indulgence in lust whether in public or private. (Citation.) 'Lewd'
is defined to mean: '4. Lustful; libidinous; lascivious; unchaste.' 'Dissolute'
is defined to mean: '2. . . . loose in morals and conduct; wanton; lewd;
debauched.' (Citation.)' Loignon, relying upon the latter definitions in Babb,
rejected an argument that the terms 'lewd and dissolute' were unconstitutionally
vague, indefinite and uncertain. The definitions of 'lewd' and 'dissolute' ...
Negative History Available
6. Pryor v. Municipal Court,
25 Cal.3d 238, 599 P.2d 636, 158 Cal.Rptr. 330, Cal., Sep 07, 1979
...Lewdness, Indecency, and Obscenity § 2--Lewdness and Obscenity-- Definitions
and Distinctions--Lewd or Dissolute Conduct. The statutory terms lewd and
dissolute are not technical legal terms, but words of common speech. In ordinary
usage, they do not imply a definite and specific referent, but apply broadly to
conduct which the speaker considers beyond the bounds of propriety. All
definitions of the term "lewd" in ordinary usage are subjective, dependent on
the speaker's social, moral and cultural bias. The term "dissolute" is, if
anything, even less specific. While the term "lewd" implies a sexual act,
"dissolute" can refer to nonsexual acts which exceed subjective limits of
propriety. (5a, 5b, 5c, 5d) Disorderly Conduct § 3--Validity and Construction of
Statutes--Statute Declaring Lewd or Dissolute Conduct as Disorderly
Conduct--Vagueness. The facial language of Pen. Code, § 647, subd. (a),
declaring that a person is guilty of disorderly conduct who solicits anyone to
engage in...
Negative History Available
7. People v. Rodrigues,
63 Cal.App.3d Supp. 1, 133 Cal.Rptr. 765, Cal.App.Super., Sep 09, 1976
...Lewdness, Indecency, and Obscenity § 2--Definitions--"Lewd or Dissolute."
Pen. Code, § 647, subd. (a), prohibiting "lewd or dissolute conduct" in public,
is not unconstitutionally vague. "Lewd and dissolute" is equated with the
constitutionally sufficient term "obscene." [See Cal.Jur.3d, Criminal Law, §
3060; Am.Jur.2d, Lewdness, Indecency, and Obscenity, § 16 et seq.] (2)
Disorderly Conduct § 4--Acts Prohibited--Lewd or Dissolute Conduct in Public.
Pen. Code, § 647, subd. (a), prohibiting "lewd or dissolute conduct" in public,
is violated by that sort of sexual conduct that is grossly repugnant and
patently offensive to generally accepted notions of what is appropriate and
decent according to statewide contemporary community standards. (3) Disorderly
Conduct § 4--Acts Prohibited--Lewd or Dissolute Conduct in Public--Homosexual
Conduct. Pen. Code, § 647, subd. (a), prohibiting "lewd or dissolute conduct"
...
8. Ex parte McCue,
7 Cal.App. 765, 96 P. 110, Cal.App. 2 Dist., Mar 25, 1908
...lewd, or dissolute person or associate of known thieves to be a vagrant,
constituted a valid exercise of the Legislature's power, with reference to the
elements of lewdness and dissoluteness. 399 Vagrancy 399k1 k. Nature and
Elements of Offenses. Pen.Code, § 647, subd. 5, declaring every idle, lewd, or
dissolute person to be a vagrant, was not defective for failure of the
Legislature to specify the evil and corrupt practices which might constitute one
a lewd or dissolute person. 399 Vagrancy 399k2 k. Indictment or Information. One
charged with being an idle, lewd, and dissolute ...
Negative History Available
9. Pryor v. Municipal Court,
25 Cal.3d 238, 599 P.2d 636, 158 Cal.Rptr. 330, Cal., Sep 07, 1979
...lewd or dissolute" by pointing to specific acts, but by pejorative
adjectives. "(T) he words 'lewd' and 'dissolute' are synonymous, and mean
lustful, lascivious, unchaste, wanton, or loose in morals and conduct." (CALJIC
(misdemeanor) No. 16.402, quoted in People v. Williams (1976) 59 Cal.App.3d 225,
229, 130 Cal.Rptr. 460, 462; see People v. Babb (1951) 103 Cal.App.2d 326, 330,
229 P.2d 843.) [FN4] "Dissolute" behavior is that which is " 'loosed from
restraint, unashamed, lawless, loose in morals and conduct, recklessly abandoned
to sensual pleasures, profligate, wanton, lewd, debauched.' " (People v.
Jaurequi, supra, 142 Cal.App.2d 555, 561, 298 P.2d 896, 900; People v. Scott
(1931) 113 Cal.App.Supp. 778, 783, 296 P. 601.) A dissolute person is one who is
" 'indifferent to moral restraint' " and " 'given over to dissipation . . . .' "
(People v. Jaurequi, supra, 142 Cal.App.2d 555, 560, 298 P.2d 896, 900.) The...
Negative History Available
10. People v. Mesa,
265 Cal.App.2d 746, 71 Cal.Rptr. 594, Cal.App. 4 Dist., Sep 16, 1968
...Conduct 129k1 k. Nature and Elements of Offenses. Statute making it
disorderly conduct to solicit anyone to engage in or who engages in lewd or
dissolute conduct in a public place is intended to proscribe at least the
engaging in lewd or dissolute conduct in a public place and the soliciting of
lewd or dissolute conduct in a public place. West's Ann.Pen.Code, § 647(a). [4]
129 Disorderly Conduct 129k1 k. Nature and Elements of Offenses. Section of
disorderly conduct statute regarding the solicitation or engaging in lewd or
dissolute conduct in public place prohibits public solicitations of lewd or
dissolute conduct regardless of where solicited acts are to be performed. West's
Ann.Pen.Code, § 647(a). [5] 129 Disorderly Conduct 129k1 k. Nature and Elements
of Offenses. Solicitation in a public bar of a homosexual act constituted
violation of statute making it disorderly conduct to solicit or engage in lewd
or dissolute...
Negative History Available
11. People v. Babb,
103 Cal.App.2d 326, 229 P.2d 843, Cal.App. 2 Dist., Apr 09, 1951
...Lewd' and 'dissolute' are terms often used interchangeably. Each applies to
the unlawful indulgence in lust whether in public or private. In re McCue, 7
Cal.App. 765, 766, 96 P. 110. 'Lewd' is defined to mean: '4. Lustful;
libidinous; lascivious; unchaste.' 'Dissolute' is defined to mean: '2. * * *
loose in morals and conduct; wanton; lewd; debauched.' Webster's New Inter.Dict.,
2d Ed. [10][11] One cannot commit the infamous crime against nature without
being lewd and dissolute. Lewdness and dissoluteness are necessary elements of
that offense. The infamous crime against nature and vagrancy, where the offense
is that of a lewd and dissolute person, involve essentially the same elements of
conduct. They have a common basis. It is true that a person can be lewd and
dissolute ...
Negative History Available
12. People v. Deibert,
117 Cal.App.2d 410, 256 P.2d 355, Cal.App. 2 Dist., Apr 23, 1953
...dissolute person is given sufficient warning of the nature of his offense.
(20) Words and Phrases--"Lewd" and "Dissolute." "Lewd" and "dissolute" are terms
often used interchangeably. (21) Words and Phrases--"Dissolute." "Dissolute"
means loose in morals and conduct; wanton, lewd, ...
Negative History Available
13. Silva v. Municipal Court,
40 Cal.App.3d 733, 115 Cal.Rptr. 479, Cal.App. 1 Dist., Jul 19, 1974
...Conduct--Lewd or Dissolute Conduct--Solicitation. Pen. Code, § 647, subd.
(a), declaring a person who "solicits anyone to engage in ... lewd or dissolute
conduct in any public place," guilty of a misdemeanor, refers to public
solicitations of lewd or dissolute conduct regardless of where the solicitated
acts are to be performed. (2) Disorderly Conduct--Lewd or Dissolute Conduct. The
words "lewd or dissolute conduct" as used in Pen. Code, § 647, subd. (a),
proscribing engaging in or soliciting anyone to engage in such conduct in any
public place or in any place open to the public or exposed to public view, are
not unconstitutionally vague. The terms "lewd" and "dissolute" are properly
interpreted as identical to "obscene." [Vagueness as invalidating statutes or
ordinances dealing with disorderly persons or conduct, note, 12 A.L.R.3d 1448.
See also Cal.Jur.3d, Criminal Law (Cal.Jur.2d, Rev., Disorderly Conduct, § 2);
Am.Jur.2d, Lewdness, Indecency and Obscenity, §§ 1,...
14. Ex parte McCue,
7 Cal.App. 765, 96 P. 110, Cal.App. 2 Dist., Mar 25, 1908
...lewd and dissolute person is sufficiently advised of the character of his
offense. To say that the legislature must specify the many evil and corrupt
practices which might constitute one a lewd or dissolute ...
Negative History Available
15. West's Ann.Cal.Penal Code § 647
WEST'S ANNOTATED CALIFORNIA CODES PENAL CODE PART 1. OF CRIMES AND PUNISHMENTS
TITLE 15. MISCELLANEOUS CRIMES CHAPTER 2. OF OTHER AND MISCELLANEOUS OFFENSES §
647. Disorderly conduct
...conduct to solicit anyone to engage in or who engages in lewd or dissolute
conduct in a public place is intended to proscribe at least the engaging in lewd
or dissolute conduct in a public place and the soliciting of lewd or dissolute
conduct in a public place. People v. Mesa (App. 4 Dist. 1968) 71 Cal.Rptr. 594,
265 Cal.App.2d 746. Disorderly Conduct Key Number graphic 1 Solicitation in a
public bar of a homosexual act constituted violation of this section making it
disorderly conduct to solicit or engage in lewd or dissolute conduct in any
public place. People v. Mesa (App. 4 Dist. 1968) 71 Cal.Rptr. 594, 265
Cal.App.2d 746. Disorderly Conduct Key Number graphic 1 This section regarding
the solicitation or engaging in lewd or dissolute conduct in public place
prohibits public solicitations of lewd or dissolute conduct regardless of where
solicited acts are to be performed. People v. Mesa (App....
Negative History Available
16. Silva v. Municipal Court,
40 Cal.App.3d 733, 115 Cal.Rptr. 479, Cal.App. 1 Dist., Jul 19, 1974
...lewd or dissolute conduct' unconstitutionally vague in their meaning? Second:
Does the statute contravene the First Amendment's guarantee of freedom of
speech? Third: If constitutional fault is absent, what meaning is to be given
the words 'lewd or dissolute conduct' in order that 'citizens, law enforcement,
judges or jurors can determine what is lawful?' [1] Preliminarily we note that
it is now settled that the language of the statute: '. . . Solicits anyone to
engage in . . . lewd or dissolute conduct in any public place,' refers to
'public solicitations of lewd or dissolute conduct ...
Negative History Available
17. Dixon v. Municipal Court of City and County of San Francisco,
267 Cal.App.2d 789, 73 Cal.Rptr. 587, Cal.App. 1 Dist., Dec 02, 1968
...Lewdness, Indecency and Obscenity § 2--Statutes. Pen. Code, § 647, subd. (a),
proscribing lewd and dissolute conduct in a public place, is not
unconstitutionally vague as applied to entertainment before an audience; in such
cases the words 'lewd and dissolute' refer to that which is obscene under the
contemporary standards test of Pen. Code, § 311, subd. (a), which test is
applicable to live entertainment as well as to fixed representations. (2)
Lewdness, Indecency and Obscenity § 2--Statutes. Pen. Code, § 647, subd. (a),
proscribing lewd and dissolute conduct in a public place, applies to
performances within a theatre which patrons must pay to enter, provided the
tests for obscenity (Pen. Code, § 311, subd. (a)) are met. (3) Lewdness,
Indecency and Obscenity § 2--Statutes. The fact that Pen. Code, § 290, requires
registration of persons convicted of sexual offenses including those found
guilty of lewd and dissolute conduct ...
Negative History Available
18. People v. Deibert,
117 Cal.App.2d 410, 256 P.2d 355, Cal.App. 2 Dist., Apr 23, 1953
...dissolute' and 'immoral' meet the constitutional standards of certainty and
definiteness. A person charged with being a dissolute person is given sufficient
warning of the nature of his offense. In re McCue, 7 Cal.App. 765, 766, 96 P.
110. "Lewd' and 'dissolute' are terms often used interchangeably. * * *
'Dissolute' is defined to mean: '2. * * * loose in morals and conduct; wanton;
lewd; ...
19. People v. Scott,
113 Cal.App.Supp. 778, 296 P. 601, Cal.App.Super., Feb 20, 1931
...LEWD AND DISSOLUTE PERSONS--INFERENCES--EVIDENCE. Certain acts are of such a
nature as to reasonably justify an inference that no one not of a lewd or
dissolute character would do the act even once, and in a prosecution for
vagrancy, where the charge is based upon subdivision 5 of section 647 of the
Penal Code, relating to lewd and dissolute ...
Negative History Available
20. People v. Mesa,
265 Cal.App.2d 746, 71 Cal.Rptr. 594, Cal.App. 4 Dist., Sep 16, 1968
...lewd and dissolute conduct to take place only in a public place as contended
by defendant or whether it also prohibits the solicitation in a public place of
lewd and dissolute conduct regardless of where the act is to be performed as
contended by the prosecution. In pertinent part, section 647 reads: 'Every
person who commits any of the following acts shall be guilty of disorderly
conduct, a misdemeanor: (a) Who solicits anyone to engage in or who engages in
lewd or dissolute conduct ...
21. People v. Scott,
113 Cal.App.Supp. 778, 296 P. 601, Cal.App.Super., Feb 20, 1931
...dissolute person, but rather that under the facts as stated, such species of
vagrancy cannot be committed by a single act observable at one point of time.
Webster's Unabridged Dictionary defines dissolute as "loosed from restraint,
unashamed, lawless, loose in morals and conduct, recklessly abandoned to sensual
pleasures, profligate, wanton, lewd, debauched". We conclude that the evidence
is sufficient to support the judgment of the trial court that the defendants are
dissolute ...
22. People v. Scott,
113 Cal.App.Supp. 778, 296 P. 601, Cal.App.Super., Feb 20, 1931
...dissolute person, but rather that, under the facts as stated, such species of
vagrancy cannot be committed by a single act observable at one point of time.
[2][3] Webster's Unabridged Dictionary defines "dissolute" as "loosed from
restraint, unashamed, lawless, loose in morals and conduct, recklessly abandoned
to sensual pleasures, profligate, wanton, lewd, debauched." We conclude that the
evidence is sufficient to support the judgment of the trial court that the
defendants are dissolute ...
Negative History Available
23. People v. Rodrigues,
63 Cal.App.3d Supp. 1, 133 Cal.Rptr. 765, Cal.App.Super., Sep 09, 1976
...lewd and dissolute conduct in a place exposed to public view, that he
"probably" would not have arrested a mixed couple for the same conduct did not
establish invidious discrimination; furthermore, such conduct by officer would
not be based on an unjustifiable standard, for defendants' conduct was "lewd and
dissolute", ...
Negative History Available
24. In re Steinke,
2 Cal.App.3d 569, 82 Cal.Rptr. 789, Cal.App. 1 Dist., Dec 12, 1969
...Lewdness 236k1 k. Nature and Elements of Offenses. Terms "lewd" and
"dissolute" often are used interchangeably. [3] 236 Lewdness 236k1 k. Nature and
Elements of Offenses. Statute making soliciting anyone to engage in or engaging
in lewd or dissolute conduct in any public place or in any place open to public
or exposed to public view a misdemeanor was not intended to create a new
substantive offense which would make any lustful, libidinous, lascivious or
unchaste conduct not otherwise prohibited by law a crime even though committed
in private, and conduct committed in private does not violate the statute.
West's Ann.Pen.Code, §§ 268, 269a, 269b, 285, 286, 288, 288a, 647(a). [4] 236
Lewdness 236k1 k. Nature and Elements of Offenses. Statute making soliciting to
engage in or engaging in lewd or dissolute conduct in any public place or in any
place open to public or exposed to public view a...
25. People v. Fitzgerald,
106 Cal.App.3d Supp. 1, 165 Cal.Rptr. 271, Cal.App.Super., Nov 13, 1979
...conduct are lewd or dissolute conduct; and the First Amendment issues. By
holding that the terms lewd and dissolute refer to sexually motivated conduct,
the first constitutional problem was avoided. However, unlike section 647,
subdivision (a), which serves the purpose of protecting onlookers who might be
offended by the prescribed conduct, ...
Negative History Available
26. People v. Hill,
103 Cal.App.3d 525, 163 Cal.Rptr. 99, Cal.App. 2 Dist., Mar 19, 1980
...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." If the term "prostitution," as used in
Penal Code sections 266h (pimping) and 266i (pandering), is to be construed to
cover "lewd or dissolute acts between persons in return for money or other
consideration," as set forth by the trial court in the instructions given in the
case before us, a limitation of the meaning of the terms "lewd" and "dissolute,"
...
27. People v. Rylaarsdam,
130 Cal.App.3d Supp. 1, 181 Cal.Rptr. 723, Cal.App.Super., Feb 17, 1982
...Conduct § 2--Definitions and Distinctions--Lewd or Dissolute
Conduct--Elements of Offense. The offense defined by Pen. Code, § 647, subd. (a)
(disorderly conduct-lewd or dissolute conduct), contains the following elements:
sexually motivated conduct by a defendant involving the touching of the
genitals, buttocks or female breast; the conduct must be accompanied by a
specific intent, i.e., for purposes of sexual arousal, gratification or affront;
the conduct must occur "in any public place or in any place open to the public
or exposed to public view;" the conduct must occur in the presence of another
person or persons who may be offended; and defendant must know or should know of
the presence of persons who may be offended by his conduct. [See Cal.Jur.3d,
Criminal Law, § 3060; Am.Jur.2d, Breach of Peace and Disorderly Conduct, § 30.]
(2) Disorderly Conduct § 4--Acts Prohibited--Lewd or Dissolute Conduct. In a
prosecution for violating Pen. Code,...
28. People v. Lund,
137 Cal.App.Supp. 781, 27 P.2d 958, Cal.App.Super., Dec 21, 1933
...dissolute person is a vagrant while he remains such dissolute person, and a
conviction should be upheld even though the acts, which warrant the conclusion,
occurred outside the jurisdiction. [3]
ID.--JURISDICTION--MISDEMEANORS--DISSOLUTE PERSONS. Where a person charged with
being a vagrant, in that he is an idle, lewd and dissolute ...
Negative History Available
29. People v. Hill,
103 Cal.App.3d 525, 163 Cal.Rptr. 99, Cal.App. 2 Dist., Mar 19, 1980
...lewd"conduct and "dissolute" conduct in a well defined, limited manner so as
to make the statutory provision satisfy constitutional standards of specificity.
Accordingly, the Pryor court held that, in Penal Code section 647, subdivision
(a), "(t)he terms 'lewd' and 'dissolute' in this section are synonymous, and
refer to conduct ...
30. People v. Meeker,
208 Cal.App.3d 358, 256 Cal.Rptr. 79, Cal.App. 1 Dist., Mar 01, 1989
...Lewdness, Indecency, and Obscenity § 9--Indecent Exposure--Elements of
Offense. A person violates Pen. Code, § 314, subd. 1 (indecent exposure), when
he intends by his conduct to direct public attention to his genitals for
purposes of sexual arousal, gratification, or affront. [Criminal offense
predicated upon indecent exposure, note, 94 A.L.R.2d 1353. See also Cal.Jur.3d
(Rev), Criminal Law, § 841; Am.Jur.2d, Lewdness, Indecency and Obscenity, § 17.]
(4) Lewdness, Indecency, and Obscenity § 3--Lewd or Dissolute Conduct--
Definition. "Lewd or dissolute conduct" has been construed to mean conduct that
involves the touching of the genitals, buttocks, or female breast for the
purpose of sexual arousal, gratification, annoyance, or offense. (5) Lewdness,
Indecency, and Obscenity § 9--Indecent Exposure--Lesser Included Offenses--Lewd
Conduct. Lewd conduct (...
Negative History Available
31. People v. Soto,
171 Cal.App.3d 1158, 217 Cal.Rptr. 795, Cal.App. 2 Dist., Sep 06, 1985
...conduct. Accordingly, the term "unlawful act" as used in § 647, subd. (d),
also must necessarily be construed as referring to sexually motivated conduct
that can be described as lewd or lascivious. Consequently, the phrase "lewd or
dissolute conduct" as used in Pen. Code, § 647, subd. (a) (prohibiting engaging
in or soliciting anyone to engage in lewd or dissolute conduct in any public
place or any place open to the public or exposed to public view), and the phrase
"lewd or lascivious or any unlawful act" (§ 647, subd. (d)) are, in the context
of Pen. Code, § 647, synonymous and characterize identical conduct. It thus
follows that § 647, subd. (d), is violated by a person who loiters in or about a
public restroom with the specific intent of violating § 647, subd. (a). (4)
Disorderly Conduct § 4--Acts Prohibited--Lewd or Lascivious Acts. Before a
police officer can...
Negative History Available
32. People v. Dudley,
250 Cal.App.2d Supp. 955, 58 Cal.Rptr. 557, Cal.App.Super., Apr 10, 1967
...Conduct 129k1 k. Nature and Elements of Offenses. Statute providing that
every person 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 is guilty of disorderly conduct prohibits the soliciting
in public of lewd or dissolute conduct irrespective of where such conduct ...
Negative History Available
33. People v. Swearington,
71 Cal.App.3d 935, 140 Cal.Rptr. 5, Cal.App. 2 Dist., Jul 25, 1977
...lewd' conduct in a public place. In Silva v. Municipal Court (1974), 40
Cal.App.3d 733, 739, 115 Cal.Rptr. 479, 482, the court defined in part the lewd
conduct proscribed by Penal Code section 674, subdivision (a), in the following
language: 'The lewd or dissolute or obscene conduct alluded to in Penal Code
section 647, subdivision (a), concerns sexually related or motivated conduct,
whether normal or perverted.' The CALJIC (misdemeanor) instruction which is
commonly given in cases involving an alleged violation of Penal Code section
647, subdivision (a), defines the term 'lewd' or 'dissolute' in CALJIC
Instruction 16.402 by stating: 'As used in the foregoing instruction, the words
'lewd' and 'dissolute' are synonymous and mean lustful, lascivious, unchaste,
wanton, or loose in morals and conduct.' CALJIC (misdemeanor) Instruction 16.402
was held to be a correct instruction by People v. Williams (1976), 59 Cal.App.3d
225, 130 Cal.Rptr. 460. The Williams court stated...
Negative History Available
34. In re Steinke,
2 Cal.App.3d 569, 82 Cal.Rptr. 789, Cal.App. 1 Dist., Dec 12, 1969
...lewd and dissolute person' is a vagrant. It departs from the concept of
status and deals directly with socially harmful lewd or dissolute conduct, that
is, such conduct ...
Negative History Available 35. People v. Swearington,
71 Cal.App.3d 935, 140 Cal.Rptr. 5, Cal.App. 2 Dist., Jul 25, 1977
...lewd" conduct in a public place. In Silva v. Municipal Court (1974) 40
Cal.App.3d 733, 739 [115 Cal.Rptr. 479], the court defined in part the lewd
conduct proscribed by Penal Code section 674, subdivision (a), in the following
language: "The lewd or dissolute or obscene conduct alluded to in Penal Code
section 647, subdivision (a), concerns sexually related or motivated conduct,
whether normal or perverted." The CALJIC (misdemeanor) instruction which is
commonly given in cases involving an alleged violation of Penal Code section
647, subdivision (a), defines the term "lewd" or "dissolute" in CALJIC
instruction No. 16.402 by stating: "As used in the foregoing instruction, the
words 'lewd' and ' dissolute' are synonymous and mean lustful, lascivious,
unchaste, wanton, or loose in morals and conduct." CALJIC (misdemeanor)
instruction No. 16.402 was held to be a correct instruction by People v.
Williams (1976) 59 Cal.App.3d 225 [130 Cal.Rptr. 460]. The Williams...
36. People v. Callahan,
112 Cal.App.3d Supp. 10, 169 Cal.Rptr. 574, Cal.App.Super., Aug 04, 1980
...charge of willfully and unlawfully engaging in lewd and dissolute conduct in
a public place and in a ...
37. People v. Fitzgerald,
106 Cal.App.3d Supp. 1, 165 Cal.Rptr. 271, Cal.App.Super., Nov 13, 1979
...conduct are lewd or dissolute conduct; and the First Amendment issues. By
holding that the terms lewd and dissolute refer to sexually motivated conduct,
the first constitional problem was avoided. However, unlike section 647,
subdivision (a), which serves the purpose of protecting onlookers who might be
offended by the prescribed conduct, ...
38. Wooten v. Superior Court,
93 Cal.App.4th 422, 113 Cal.Rptr.2d 195, 1 Cal. Daily Op. Serv. 9338, 2001 Daily
Journal D.A.R. 11,606, Cal.App. 4 Dist., Oct 30, 2001
...lewd or dissolute acts between persons" but had never defined "lewd or
dissolute acts." First, it noted that "lewd conduct," ...
39. People v. Loignon,
160 Cal.App.2d 412, 325 P.2d 541, Cal.App. 2 Dist., May 13, 1958
...dissolute' and 'immoral' meet the constitutional standards of certainty and
definiteness. A person charged with being a dissolute person is given sufficient
warning of the nature of his offense. (In re McCue, 7 Cal.App. 765, 766 [96 P.
110].) 'Lewd' and 'dissolute' are terms often used interchangeably ...
'Dissolute' is defined to mean: " 2. ... loose in morals and conduct; wanton;
lewd; ...
Negative History Available
40. In re Smith,
7 Cal.3d 362, 497 P.2d 807, 102 Cal.Rptr. 335, Cal., Jun 13, 1972
...issue, i.e., whether the vagrancy statute prohibiting 'lewd or dissolute
conduct in a public place' (Pen.Code, s 647, ...
41. People v. S. P.,
115 Cal.App.3d Supp. 12, 170 Cal.Rptr. 478, Cal.App.Super., Oct 10, 1980
...similar provision prohibiting solicitation to engage in lewd or dissolute
conduct, and did not punish status as opposed ...
Negative History Available
42. People v. Bence,
222 Cal.Rptr. 692, Ordered Not Published, Previously published at: 177
Cal.App.3d 81, (Cal. Rules of Court, Rules 976, 977, 979),, Cal.App. 4 Dist.,
Jan 31, 1986
...lewd or dissolute conduct, it is a specific form of lewd or dissolute conduct
which the Legislature could legitimately believe constituted a greater problem
or deserved greater punishment if repeated than other forms of lewd or dissolute
conduct. ...
43. Wooten v. Superior Court,
93 Cal.App.4th 422, 113 Cal.Rptr.2d 195, 1 Cal. Daily Op. Serv. 9338, 2001 Daily
Journal D.A.R. 11,606, Cal.App. 4 Dist., Oct 30, 2001
...lewd or dissolute acts between persons" but had never defined "lewd or
dissolute acts." First, it noted that "lewd conduct," ...
Negative History Available
44. In re Reed,
33 Cal.3d 914, 663 P.2d 216, 191 Cal.Rptr. 658, Cal., May 26, 1983
...conduct. (Barrows v. Municipal Court (1970) 1 Cal.3d 821, 825 [83 Cal.Rptr.
819, 464 P.2d 483].) Section 647(a) now declares that a person "[w]ho 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" is guilty of
disorderly conduct, a misdemeanor. Holding that the phrase "lewd or dissolute"
was impermissibly vague, in Pryor v. Municipal Court (1979) 25 Cal.3d 238, 244
[158 Cal.Rptr. 330, 599 P.2d 636], we construed the statute to prohibit only
public solicitation or commission of conduct "which involves the touching of the
genitals, buttocks, or female breast, for who knows or should know of the
presence of persons who may be offended by the conduct." (See also Note, Pryor
v. Municipal Court: California's Narrowing Definition of Solicitation for Public
Lewd Conduct (...
45. People v. Adult World Bookstore,
108 Cal.App.3d 404, 166 Cal.Rptr. 519, Cal.App. 3 Dist., Jul 21, 1980
...lewd act, that lewdness, assignation and prostitution are prohibited on the
premises, and that a violation of any prohibition may result in criminal
prosecution under Penal Code sections 647, subdivision (a) (lewd or dissolute
conduct), ...
Negative History Available
46. In re Smith,
7 Cal.3d 362, 497 P.2d 807, 102 Cal.Rptr. 335, Cal., Jun 13, 1972
...issue, i.e., whether the vagrancy statute prohibiting "lewd or dissolute
conduct in a public place" (Pen. Code, ...
Negative History Available
47. People v. Austin,
111 Cal.App.3d 110, 168 Cal.Rptr. 401, Cal.App. 5 Dist., Oct 10, 1980
...lewd and dissolute conduct" as contained in Penal Code section 647,
subdivision (a). Concerning that section, it held that to engage in lewd and
dissolute conduct requires a touching of certain parts of the body (id. at p.
244, 158 Cal.Rptr. 330, 599 P.2d 636) and that the terms "lewd", "dissolute" ...
48. People v. S. P.,
115 Cal.App.3d Supp. 12, 170 Cal.Rptr. 478, Cal.App.Super., Oct 10, 1980
...prohibits the solicitation of or engaging in lewd or dissolute conduct in a
public place or in any ...
Negative History Available
49. People v. Austin,
111 Cal.App.3d 110, 168 Cal.Rptr. 401, Cal.App. 5 Dist., Oct 10, 1980
...lewd and dissolute conduct" as contained in Penal Code section 647,
subdivision (a). Concerning that section, it held that to engage in lewd and
dissolute conduct requires a touching of certain parts of the body ( id., at p.
244) and that the terms "lewd," "dissolute" ...
50. People v. Wilhite,
49 Cal.App. 246, 193 P. 151, Cal.App. 3 Dist., Sep 10, 1920
...dissolute, lewd, or immoral life." This instruction was proper as informing
the jury that it was not necessary that the evidence should actually show that
the alleged acts of defendant caused the prosecuting witness to lead an idle,
dissolute, lewd, or immoral life, but that it was only necessary to show by the
evidence that the alleged acts did "tend" to cause said prosecuting witness to
lead an idle, dissolute, lewd ...
Negative History Available
51. People v. Lane,
2003 WL 133617, Nonpublished/Noncitable, (Cal. Rules of Court, Rules 976, 977),,
Cal.App. 6 Dist., Jan 15, 2003
...lewd or dissolute conduct in any public place ....' (§ 647, subd. (a).) The
Supreme Court has construed 'lewd or dissolute conduct' to mean 'conduct ...
52. People v. Loignon,
160 Cal.App.2d 412, 325 P.2d 541, Cal.App. 2 Dist., May 13, 1958
...dissolute' and 'immoral' meet the constitutional standards of certainty and
definiteness. A person charged with being a dissolute person is given sufficient
warning of the nature of his offense. In re McCue, 7 Cal.App. 765, 766, 96 P.
110. "Lewd' and 'dissolute' are terms often used interchangeably * * *.
'Dissolute' is defined to mean: '2. * * * loose in morals and conduct; wanton;
lewd; ...
Negative History Available
53. People v. Dudley,
250 Cal.App.2d Supp. 955, 58 Cal.Rptr. 557, Cal.App.Super., Apr 10, 1967
...to engage in or who engages in lewd or dissolute conduct in any public place
or in any ...
Negative History Available
54. People v. Soto,
171 Cal.App.3d 1158, 217 Cal.Rptr. 795, Cal.App. 2 Dist., Sep 06, 1985
...lewd or lascivious or unlawful act, had standing to challenge on vagueness
grounds enforcement infirmities that appeared on face of statute. [3] 236
Lewdness 236k1 k. Nature and Elements of Offenses. Terms "lewd" and "lascivious"
as used in West's Ann.Cal.Penal Code § 647(d), prohibiting loitering for purpose
of engaging in or soliciting any lewd or lascivious or unlawful act, are
synonymous and refer to sexually motivated conduct, and term "unlawful act" must
necessarily be construed as referring to sexually motivated conduct that could
be described as "lewd or lascivious"; thus, that subdivision is violated by
person who loiters in or about public restroom with specific intent of violating
West's Ann.Cal.Penal Code § 647(a), which prohibits engaging in or soliciting
anyone to engage in lewd or dissolute conduct ...
55. People v. Bay Side Land Co.,
48 Cal.App. 257, 191 P. 994, Cal.App. 2 Dist., Jun 21, 1920
...lewdness, assignation and prostitution, ... and during all of said times said
premises and said cafe in said building has borne the reputation in the
community in which it is situated as a house of lewdness, assignation and
ill-fame, and a place where lewdness, prostitution and assignation are
encouraged and allowed. That on the 30th day of November, 1918, said building
and premises were occupied by Beatrice Swanner, Viola Johnson and Irene Fucha as
lewd and dissolute persons, and then and there solicited acts of sexual
intercourse." It is claimed that there is "an utter absence of any allegation
that any acts of lewdness, ...
56. People v. Wilhite,
49 Cal.App. 246, 193 P. 151, Cal.App. 3 Dist., Sep 10, 1920
...dissolute, lewd, or immoral life." This instruction was proper as informing
the jury that it was not necessary that the evidence should actually show that
the alleged acts of defendant caused the prosecuting witness to lead an idle,
dissolute, lewd, or immoral life, but that it was only necessary to show by the
evidence that the alleged acts did "tend" to cause said prosecuting witness to
lead an idle, dissolute, lewd, ...
Negative History Available
57. People v. Souter,
178 Cal.Rptr. 111, Ordered Not Published, (Cal. Rules of Court, Rule 976),,
Cal.App. 2 Dist., Oct 13, 1981
...lewd and dissolute" conduct to determine whether such acts constitute acts of
prostitution. But, such is not the case here. FN9. The Pryor court stated the
following construction of section 647, subdivision (a): "The terms 'lewd' and
'dissolute' in this section are synonymous, and refer to conduct which involves
the touching of the genitals, buttocks, or female breast for the purpose of
sexual arousal, gratification, annoyance or offense, if the actor knows or
should know of the presence of persons who may be offended by his conduct. The
statute prohibits such conduct only if it occurs in any public place or in any
place open to the public or exposed to public view; it further prohibits the
solicitation of such conduct ...
Negative History Available
58. In re Reed,
33 Cal.3d 914, 663 P.2d 216, 191 Cal.Rptr. 658, Cal., May 26, 1983
...conduct. (Barrows v. Municipal Court (1970) 1 Cal.3d 821, 825, 83 Cal.Rptr.
819, 464 P.2d 483.) Section 647(a) now declares that a person "[w]ho 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" is guilty of
disorderly conduct, a misdemeanor. Holding that the phrase "lewd or dissolute"
was impermissibly vague, in Pryor v. Municipal Court (1979) 25 Cal.3d 238, 244,
158 Cal.Rptr. 330, 599 P.2d 636, we construed the statute to prohibit only
public solicitation or commission of conduct "which involves the touching of the
genitals, buttocks, or female breast, for purposes of sexual arousal,
gratification, annoyance or offense, by a person who knows or should know of the
presence of persons who may be offended by the conduct." (See also Note, Pryor
v. Municipal Court: California's Narrowing Definition...
59. People v. Meeker,
208 Cal.App.3d 358, 256 Cal.Rptr. 79, Cal.App. 1 Dist., Mar 01, 1989
...lewd or dissolute conduct in any public place...." (§ 647, subd. (a).) The
Supreme Court has construed "lewd or dissolute conduct" to mean "conduct ...
60. Velasco v. Municipal Court,
147 Cal.App.3d 340, 195 Cal.Rptr. 108, Cal.App. 1 Dist., Sep 26, 1983
...lewd or licentious acts, as defined by Pryor. [FN2] However, Penal Code
section 647, subdivision (a), interpreted by Pryor, already prescribes a
punishment for any person "[w]ho solicits anyone to engage in or who engages in
lewd or dissolute conduct ...
61. Velasco v. Municipal Court,
147 Cal.App.3d 340, 195 Cal.Rptr. 108, Cal.App. 1 Dist., Sep 26, 1983
...lewd or licentious acts, as defined by Pryor. [FN2] However, Penal Code
section 647, subdivision (a), interpreted by Pryor, already prescribes a
punishment for any person "[w]ho solicits anyone to engage in or who engages in
lewd or dissolute conduct ...
Negative History Available
62. In re Birch,
10 Cal.3d 314, 515 P.2d 12, 110 Cal.Rptr. 212, Cal., Oct 26, 1973
...his conviction of the misdemeanor charge of lewd or dissolute conduct, under
Pen. Code, § 647, subd. (...
Negative History Available
63. Dixon v. Municipal Court of City and County of San Francisco,
267 Cal.App.2d 789, 73 Cal.Rptr. 587, Cal.App. 1 Dist., Dec 02, 1968
...lewd and dissolute conduct in a public place and a place open to the public.'
The asserted lewd ...
Negative History Available
64. In re Giannini,
69 Cal.2d 563, 446 P.2d 535, 72 Cal.Rptr. 655, Cal., Nov 14, 1968
...conviction under statutes relating to willful and lewd exposure and lewd or
dissolute conduct must be reversed. West's Ann.Pen.Code, §§ 314, ...
Negative History Available
65. In re Giannini,
69 Cal.2d 563, 446 P.2d 535, 72 Cal.Rptr. 655, Cal., Nov 14, 1968
...Lewdness, Indecency and Obscenity, § 4; Am.Jur., Lewdness, Indecency and
Obscenity (1st ed § 4). (7) Lewdness, Indecency and Obscenity §
19.5(1)--Trial--Instructions-- Contemporary Standards. In a prosecution of a
'topless' dancer and a nightclub manager for wilful and lewd exposure (Pen.
Code, § 314, subd. (1)), and lewd or dissolute conduct (...
Negative History Available
66. People v. Bobb,
207 Cal.App.3d 88, 254 Cal.Rptr. 707, Cal.App. 3 Dist., Jan 12, 1989
...dissolute, lewd or immoral life. In 1975, the Legislature deleted from
section 601 the language referring to a minor "in danger of leading an idle,
dissolute, lewd ...
67. People v. Mitchell,
148 Cal.App.2d 733, 307 P.2d 411, Cal.App. 3 Dist., Feb 26, 1957
...dissolute, lewd, or immoral life. It is not necessary to show that the act
actually did so. Deliberately grabbing the genitals of a minor boy could tend to
cause or encourage him to lead a dissolute, lewd, or immoral life. Essentially,
whether the conduct ...
Negative History Available
68. Mitchell v. Superior Court,
49 Cal.3d 1230, 783 P.2d 731, 265 Cal.Rptr. 144, Cal., Dec 28, 1989
...lewd, or that the "performances" at the theater constituted acts of
prostitution. In Pryor, supra, 25 Cal.3d 238, we construed as synonymous the
terms "lewd" and "dissolute" as they are used in section 647, subdivision (a),
which prohibits "lewd or dissolute conduct in any public place or in any place
open to the public or exposed to public view." (See ante, fn. 5.) We held that
the conduct ...
69. People v. Adult World Bookstore,
108 Cal.App.3d 404, 166 Cal.Rptr. 519, Cal.App. 3 Dist., Jul 21, 1980
...lewd act, that lewdness, assignation and prostitution are prohibited on the
premises, and that a violation of any prohibition may result in criminal
prosecution under Penal Code sections 647, subdivision (a) (lewd or dissolute
conduct), ...
70. People v. Mitchell,
148 Cal.App.2d 733, 307 P.2d 411, Cal.App. 3 Dist., Feb 26, 1957
...dissolute, lewd, or immoral life. It is not necessary to show that the act
actually did so. Deliberately grabbing the genitals of a minor boy could tend to
cause or encourage him to lead a dissolute, lewd, or immoral life. Essentially,
whether the conduct ...
71. People v. Brandt,
306 P.2d 1069, Cal.App.Super., Nov 01, 1956
...dissolute or lewd individual and is liable to conviction for vagrancy, but
such situation arises only in event that single act of lewdness constituting the
violation is of such a nature that it reasonably justifies an inference that no
one not of lewd or dissolute ...
Negative History Available
72. Barrows v. Municipal Court,
1 Cal.3d 821, 464 P.2d 483, 83 Cal.Rptr. 819, Cal., Jan 30, 1970
...Lewdness, Indecency, and Obscenity § 5.5--Obscenity:Theaters § 3--Regulation.
The Legislature did not intend Pen. Code, § 647, subd. (a), designating as
disorderly conduct the engaging in lewd or dissolute conduct ...
Negative History Available
73. In re Birch,
10 Cal.3d 314, 515 P.2d 12, 110 Cal.Rptr. 212, Cal., Oct 26, 1973
...entered guilty plea to misdemeanor charge of "lewd or dissolute conduct in
any public place or any place ...
Negative History Available 74. People v. Bobb,
207 Cal.App.3d 88, 254 Cal.Rptr. 707, Cal.App. 3 Dist., Jan 12, 1989
...dissolute, lewd or immoral life. [2] In 1975, the Legislature deleted from
section 601 the language referring to a minor "in danger of leading an idle,
dissolute, lewd ...
Negative History Available
75. Mitchell v. Superior Court,
49 Cal.3d 1230, 783 P.2d 731, 265 Cal.Rptr. 144, Cal., Dec 28, 1989
...lewd, or that the "performances" at the theater constituted acts of
prostitution. In Pryor, supra, 25 Cal.3d 238, 158 Cal.Rptr. 330, 599 P.2d 636,
we construed as synonymous the terms "lewd" and "dissolute" as they are used in
section 647, subdivision (a), which prohibits "lewd or dissolute conduct in any
public place or in any place open to the public or exposed to public view." (See
ante, fn. 5.) We held that the conduct ...
Negative History Available
76. People v. Superior Court (Caswell),
46 Cal.3d 381, 758 P.2d 1046, 250 Cal.Rptr. 515, 57 USLW 2152, Cal., Aug 22,
1988
...lewd, lascivious or unlawful act, is synonymous with a "lewd" act. (9a, 9b)
Lewdness, Indecency, and Obscenity § 2--Definitions and Distinctions--Lewdness.
The terms "lewd" and "dissolute" are synonymous, and refer to conduct ...
Negative History Available
77. In re Anders,
25 Cal.3d 414, 599 P.2d 1364, 158 Cal.Rptr. 661, Cal., Oct 04, 1979
...convicted of solicitation of or engaging in lewd or dissolute conduct in a
public place in violation of ...
78. Barrows v. Municipal Court,
1 Cal.3d 821, 464 P.2d 483, 83 Cal.Rptr. 819, Cal., Jan 30, 1970
...status and deals directly with socially harmful lewd or dissolute conduct,
that is, such conduct when it occurs in public view.' (...
79. In re Anders,
25 Cal.3d 414, 599 P.2d 1364, 158 Cal.Rptr. 661, Cal., Oct 04, 1979
...solicitation to engage in or engaging in lewd or dissolute conduct in public
place was final was entitled ...
80. People v. Codina,
30 Cal.2d 356, 181 P.2d 881, Cal., Jun 24, 1947
...dissolute, lewd, or immoral life.' (Subd. (k), sec. 700, Welfare &
Institutions Code.) It is obvious that the commission of 'a lewd and lascivious
act upon and with the body' of a minor person would tend to cause such minor to
be a 'lewd' person. Such conduct ...
Negative History Available
81. People v. Drolet,
30 Cal.App.3d 207, 105 Cal.Rptr. 824, Cal.App. 1 Dist., Jan 26, 1973
...dancer and a night club manager for lewd exposure and lewd or dissolute
conduct. It held, in effect, that the ...
82. People v. Baker,
38 Cal.App. 28, 175 P. 88, Cal.App. 3 Dist., Aug 02, 1918
...is in danger of leading an idle, dissolute, lewd and immoral life; contrary,"
etc. Tried ...
83. People v. Norris,
88 Cal.App.3d Supp. 32, 152 Cal.Rptr. 134, Cal.App.Super., Dec 11, 1978
...Lewd Conduct-'Lewd and Dissolute'- DEFINED As used in The foregoing
instruction, the word ... 'lewd' ... mean[s] lustful, lascivious, unchaste,
wanton, or loose in morals and conduct.' ...
Negative History Available
84. People v. McDougal,
74 Cal.App. 666, 241 P. 598, Cal.App. 2 Dist., Oct 24, 1925
...conduct toward the child at least manifestly tended to cause her to lead a
dissolute, lewd, ...
85. People v. Bay Side Land Co.,
48 Cal.App. 257, 191 P. 994, Cal.App. 2 Dist., Jun 21, 1920
...lewdness, assignation, and prostitution, * * * and during all of said times
said premises and said cafe in said building has borne the reputation in the
community in which it is situated as a house of lewdness, assignation, and ill
fame, and a place where lewdness, prostitution, and assignation are encouraged
and allowed; that on the 30th day of November, 1918, said building and premises
were occupied by Beatrice Swanner, Viola Johnson, and Irene Fucha as lewd and
dissolute persons, and then and there solicited acts of sexual intercourse." [1]
It is claimed that there is "an utter absence of any allegation that any acts of
lewdness, ...
86. People v. Lew,
78 Cal.App.2d 175, 177 P.2d 60, Cal.App. 1 Dist., Feb 20, 1947
...dissolute and lewd life within statute is fact question for jury. West's
Ann.Welfare & Inst.Code, § 702. [7] 110 Criminal Law 110XX Trial 110XX(E)
Arguments and Conduct ...
87. People v. Lund,
137 Cal.App.Supp. 781, 27 P.2d 958, Cal.App.Super., Dec 21, 1933
...conduct on his part which stamped him as a vagrant did not reveal any such
conduct in Los Angeles city. [1] Defendant was charged with being an idle, lewd,
and dissolute ...
88. People v. Allington,
103 Cal.App.2d Supp. 911, 229 P.2d 495, Cal.App.Super., Mar 30, 1951
...lewd and dissolute. We are inclined to agree with the defendant as he argues
that the facts revealed in connection with the peeping Tom affair were
insufficient to show that he was a lewd ...
89. People v. Freeman,
46 Cal.3d 419, 758 P.2d 1128, 250 Cal.Rptr. 598, 57 USLW 2162, 15 Media L. Rep.
2072, Cal., Aug 25, 1988
...lewd act." In Pryor v. Municipal Court (1979) 25 Cal.3d 238, 158 Cal.Rptr.
330, 599 P.2d 636 this court construed the term "lewd conduct" for purposes of
prosecution under section 647, subdivision (a), proscribing lewd or dissolute
conduct in a public place, a provision related to the prohibition against
prostitution contained in section 647, subdivision (b). In Pryor we held that a
"lewd act" requires "touching of the genitals, buttocks, or female breast for
the purpose of sexual arousal, gratification, annoyance or offense...." (Italics
added. Id., at p. 256, 158 Cal.Rptr. 330, 599 P.2d 636.) The definition of a
"lewd act" for purposes of section 647, subdivision (b) evolved from Pryor and
was applied to "prostitution" in People v. Hill (1980) 103 Cal.App.3d 525, at
pages 534-535, 163 Cal.Rptr. 99 as follows: "[F]or a 'lewd' or 'dissolute' ...
Negative History Available
90. People v. McDougal,
74 Cal.App. 666, 241 P. 598, Cal.App. 2 Dist., Oct 24, 1925
...conduct toward the child at least manifestly tended to cause her to lead a
dissolute, lewd, ...
91. People v. Wilkerson,
99 Cal.App. 123, 278 P. 466, Cal.App. 2 Dist., May 23, 1929
...is in danger of leading, an idle, dissolute, lewd or immoral life"; and by
section 21 ...
92. People v. Baker,
38 Cal.App. 28, 175 P. 88, Cal.App. 3 Dist., Aug 02, 1918
...is in danger of leading an idle, dissolute, lewd, and immoral life;
contrary," etc. Tried ...
93. Whitney v. Municipal Court of City and County of San Francisco,
58 Cal.2d 907, 377 P.2d 80, 27 Cal.Rptr. 16, Cal., Dec 18, 1962
...Lewdness § 3--Ordinances--Validity. The Legislature, by means of Pen. Code, §
311, relating to indecent exposures, writings, and the like, Pen. Code, § 647,
subd. 5, providing that every lewd or dissolute ...
94. People v. Gavin,
50 Cal.App. 424, 195 P. 436, Cal.App. 1 Dist., Dec 16, 1920
...lewd and immoral act, which tended to and did encourage, cause, and
contribute to such boy becoming and remaining a person under the age of 21 years
leading an idle, dissolute, lewd, and immoral life, within Juvenile Court Law, §
1, subd. 11 (repealed 1947), held sufficient, on general demurrer, as alleging
that he is leading an idle, dissolute, ...
95. Hora v. City and County of San Francisco,
233 Cal.App.2d 375, 43 Cal.Rptr. 527, Cal.App. 1 Dist., Mar 31, 1965
...lewdness) and section 647, subdivision (a) of the Penal Code (soliciting
anyone to engage in, or engaging in, lewd or dissolute conduct ...
96. In re Moss,
58 Cal.2d 117, 373 P.2d 425, 23 Cal.Rptr. 361, Cal., Jul 17, 1962
...lewd thoughts or acts ... is guilty of a misdemeanor. ..." Section 647,
subdivision 5, of the Penal Code at the time of the commission of the alleged
offense provided, in part: "Every lewd or dissolute ...
Negative History Available 97. People v. Cohen,
62 Cal.App. 521, 217 P. 78, Cal.App. 2 Dist., Jun 15, 1923
...there in danger of leading an idle, dissolute, lewd, and immoral life by
reason of the ...
98. People v. Wilkerson,
99 Cal.App. 123, 278 P. 466, Cal.App. 2 Dist., May 23, 1929
...is in danger of leading, an idle, dissolute, lewd or immoral life"; and by
section 21 ...
99. In re Boyd,
48 Cal.2d 69, 307 P.2d 625, Cal., Mar 01, 1957
...§ 647, subd. 5, declaring that every lewd or dissolute person is a vagrant
and punishable as ...
100. In re Moss,
58 Cal.2d 117, 373 P.2d 425, 23 Cal.Rptr. 361, Cal., Jul 17, 1962
...lewd thoughts or acts, is guilty of a misdemeanor. * * *' Section 647,
subdivision (5), or the Penal Code at the time of the commission of the alleged
offense provided, in part: 'Every lewd or dissolute ...
*********************
*********************
*********************
208 Cal.App.3d 358, 256 Cal.Rptr. 79
View Cal./Cal.App. version
Court of Appeal, First District, Division 3, California.
The PEOPLE of the State of California, Plaintiff and Respondent,
v.
Dennis MEEKER, Defendant and Appellant.
No. A040905.
March 1, 1989.
Certified for Partial Publication [FN*]
FN* Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion
is certified for publication with the exception of parts A, C, and D.
Review Denied May 31, 1989.
Defendant was convicted of indecent exposure, battery on a police officer and
three counts of resisting without force or violence by a jury in the Superior
Court, Contra Costa County, David A. Dolgin, J. In a separate trial, the court
found defendant had served two prison for prior felony convictions. Defendant
appealed. The Court of Appeal, White, P.J., held that lewd conduct was not a
lesser included offense of indecent exposure.
Affirmed.
West Headnotes
Key Number graphic110 Criminal Law
Key Number graphic110XX Trial
Key Number graphic110XX(H) Instructions: Requests
Key Number graphic110k824 Necessity in General
Key Number graphic110k824(3) k. Instructions as to Grade or Degree of Offense.
Key Number graphic210 Indictment and Information
Key Number graphic210XIII Included Offenses
Key Number graphic210k191 Different Offense Included in Offense Charged
Key Number graphic210k191(.5) k. In General.
(Formerly 210k191)
Lewd conduct is not a necessarily included offense of indecent exposure such
that judge had sua sponte duty to instruct on lewd conduct for defendant charged
with indecent exposure; offense of lewd conduct required touching but offense of
indecent exposure did not. West's Ann.Cal.Penal Code §§ 314, 647, 647(a).
*359 **80 Clifford J. Baker, Oakland, for defendant and appellant.
John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., John H.
Sugiyama, Asst. Atty. Gen., Martin S. Kaye, Supervising Deputy Atty. Gen.,
Laurence K. Sullivan, Supervising Asst. Atty. Gen., San Francisco, for plaintiff
and respondent.
*360 WHITE, Presiding Justice.
A jury convicted appellant Dennis Meeker of indecent exposure (Pen.Code, § 314,
subd. 1) [FN1], battery on a peace officer (243, subd. (c)), and three counts of
resisting without force or violence (§ 148). In a separate trial, the court
found appellant had served two separate prison terms for prior felony
convictions (§ 667.5, subd. (b)). He was sentenced to four years in state
prison.
FN1. Unless otherwise indicated, all further statutory references are to the
Penal Code.
Appellant raises numerous issues on appeal. We conclude that none of appellant's
arguments are meritorious, and consequently affirm the judgment.
Facts
On an afternoon in February of 1987 Ms. Denise Vansandt-Boyd was driving on the
road that led to her Walnut Creek house when she saw appellant, who was dressed
in a bathrobe, walking two dogs on the opposite side of the road. As she passed
appellant at about 15 or 20 miles per hour he turned and spat at her car. Ms.
Vansandt-Boyd looked at appellant in her rear view mirror as she slowed her car
before turning into her driveway. As she did so, she saw appellant open his
robe, exposing to her his nude front torso, including his genital area.
Ms. Vansandt-Boyd went directly into her house, locked the door, and telephoned
911. Appellant stood briefly in the street in front of Ms. Vansandt-Boyd's home
before walking on.
Shortly afterwards, Sheriff's deputy Kathleen Samuels went to appellant's
residence, which is across the street from Ms. Vansandt-Boyd's home, to
investigate her complaint. Appellant calmly denied leaving his house that day
when Deputy Samuels told him about Ms. Vansandt-Boyd's complaint. However, he
became "violently angry" and began screaming when the deputy continued
questioning him and attempted to inform him of his constitutional rights. He
demanded that she leave his property and she complied.
Minutes later, appellant "came stomping up" Ms. Vansandt-Boyd's driveway and
began beating and yelling incoherently at her front door. She again telephoned
the police from inside her home.
Deputy Samuels returned to appellant's residence, this time accompanied by
Deputies Wagner, Krepps and Quirk. Appellant met the deputies outside his
residence in an openly aggressive and hostile mood.
*361 Deputy Wagner instructed appellant to turn around and began pat-searching
him. Appellant turned suddenly, backed Wagner into a wall, and began gouging at
Wagner's eyes, causing him injury. When the other deputies intervened, appellant
resisted **81 their attempts to pull him off Deputy Wagner until Wagner subdued
him with a carotid restraint hold.
Deputy Wagner testified that he pat-searched appellant for his own safety due to
appellant's demeanor, his clothes--Levis and an untucked T-shirt--which could
conceal a weapon, and his knowledge of appellant's prior violent conduct in
which he had used a weapon. Specifically, a neighbor had reported that appellant
was walking the street beating a manhole cover with a hammer. A deputy sheriff
had reported that appellant threatened another person in the same area by
holding a knife to his throat. Finally, appellant had wrestled with another
deputy who responded to a complaint at appellant's house after appellant refused
to remove his hands from his pockets.
Based on this evidence, the jury convicted appellant of battery on a police
officer with respect to Deputy Wagner (§§ 243, subd. (c), 69), resisting without
force with respect to Deputies Samuels, Krepps and Quirk (§ 148), and indecent
exposure with respect to Ms. Vansandt-Boyd (§ 314, subd. 1).
Discussion
A. Substantial Evidence [FN**]
FN** See footnote *, ante.
B. Lewd Conduct (§ 647, subd. (a)) Is Not a Lesser Included Offense of Indecent
Exposure (§ 314, subd. 1).
"It is well settled that the trial court is obligated to instruct on necessarily
included offenses--even without a request--when the evidence raises a question
as to whether all of the elements of the charged offense are present and there
is evidence that would justify a conviction of such a lesser offense." (People
v. Ramkeesoon (1985) 39 Cal.3d 346, 351, 216 Cal.Rptr. 455, 702 P.2d 613.)
Appellant contends that a violation of section 647, subdivision (a) (lewd
conduct) is a necessarily included offense of section 314, subdivision 1
(indecent exposure) and that the evidence warranted a sua sponte instruction on
this lesser included offense. We conclude lewd conduct is not a necessarily
included offense of indecent exposure; consequently, there was no sua sponte
duty to instruct on lewd conduct. *362 (People v. Geiger (1984) 35 Cal.3d 510,
530, 199 Cal.Rptr. 45, 674 P.2d 1303.)
"The test in this state of a necessarily included offense is simply that where
an offense cannot be committed without necessarily committing another offense,
the latter is a necessarily included offense." (People v. Greer (1947) 30 Cal.2d
589, 596, 184 P.2d 512; accord People v. Pendleton (1979) 25 Cal.3d 371, 382,
158 Cal.Rptr. 343, 599 P.2d 649.) We conclude it is possible to violate section
314, subdivision 1 (indecent exposure) without violating section 647,
subdivision (a) (lewd conduct).
Section 314 makes it criminal for a person to "[e]xpose[ ] his person, or the
private parts thereof, in any public place, or in any place where there are
present other persons to be offended or annoyed thereby...." (§ 314, subd. 1.) A
person violates section 314, subdivision 1, when he "intend[s] by his conduct to
direct public attention to his genitals for purposes of sexual arousal,
gratification or affront." (In re Smith (1972) 7 Cal.3d 362, 366, 102 Cal.Rptr.
335, 497 P.2d 807, fn. omitted.) Section 647, on the other hand makes it
criminal for a person to "solicit[ ] anyone to engage in or [to] engage in lewd
or dissolute conduct in any public place...." (§ 647, subd. (a).) The Supreme
Court has construed "lewd or dissolute conduct" to mean "conduct which involves
the touching of the genitals, buttocks, or female breast for the purpose of
sexual arousal, gratification, annoyance or offense...." (Pryor v. Municipal
Court (1979) 25 Cal.3d 238, 256, 158 Cal.Rptr. 330, 599 P.2d 636, emphasis
added.) Since it is possible for a person to expose and direct attention to his
genitals for the purpose of sexual arousal, gratification or affront (In re
Smith, supra, 7 Cal.3d at p. 366, 102 Cal.Rptr. 335, 497 P.2d 807) without
touching them or soliciting others to touch them, it is possible to violate
section 314, subdivision 1 (indecent exposure) without violating **82 section
647, subdivision (a) (lewd conduct), which requires touching. Consequently, lewd
conduct is not a lesser included offense of indecent exposure.
The two cases appellant cites to the contrary (People v. Curry (1977) 76
Cal.App.3d 181, 187, 142 Cal.Rptr. 649 and People v. Swearington (1977) 71
Cal.App.3d 935, 944, 140 Cal.Rptr. 5) are not persuasive authority because they
were decided before the Supreme Court defined the elements of lewd conduct in
Pryor, supra. This definition makes it clear that lewd conduct is not a
necessarily included offense of indecent exposure.
*363 C.-D. [FN***]
FN*** See footnote *, ante.
Disposition
The judgment is affirmed.
MERRILL and STRANKMAN, JJ., concur.
Cal.App. 1 Dist.,1989.
People v. Meeker
208 Cal.App.3d 358, 256 Cal.Rptr. 79
END OF DOCUMENT
*********************
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7 Cal.3d 362, 497 P.2d 807, 102 Cal.Rptr. 335
View Cal./Cal.App. version
Supreme Court of California,
In Bank.
In re Chad Merrill SMITH on Habeas Corpus.
Cr. 15986.
June 13, 1972.
Habeas corpus proceeding by petitioner who was under constructive restraint of
probation following conviction of indecent exposure. The Supreme Court, Mosk,
J., held that in absence of additional conduct intentionally directing attention
to his genitals for sexual purposes, petitioner who simply sunbathed in the nude
on isolated beach did not 'lewdly' expose his private parts, within meaning of
statute proscribing indecent exposure, and was thus entitled to habeas corpus
relief.
Writ granted.
West Headnotes
[1]
Key Number graphic281 Obscenity
Key Number graphic281k3 k. Indecent Exposure.
Separate requirement, in statute proscribing indecent exposure, that intent of
actor be "lewd" is an essential element of the offense. West's Ann.Pen.Code, §
314, subd. 1.
[2]
Key Number graphic281 Obscenity
Key Number graphic281k3 k. Indecent Exposure.
Conviction of indecent exposure requires proof beyond a reasonable doubt that
actor not only meant to expose himself, but intended by his conduct to direct
public attention to his genitals for purpose of sexual arousal, gratification,
or affront. West's Ann.Pen.Code, § 314, subd. 1.
[3]
Key Number graphic281 Obscenity
Key Number graphic281k3 k. Indecent Exposure.
Mere nudity does not constitute a form of sexual "activity."
[4]
Key Number graphic281 Obscenity
Key Number graphic281k3 k. Indecent Exposure.
In absence of additional conduct intentionally directing attention to his
genitals for sexual purposes, defendant who simply sunbathed in the nude on
isolated beach did not "lewdly" expose his private parts within meaning of
statute proscribing indecent exposure. West's Ann.Pen.Code, § 314, subd. 1.
[5]
Key Number graphic197 Habeas Corpus
Key Number graphic197II Grounds for Relief; Illegality of Restraint
Key Number graphic197II(B) Particular Defects and Authority for Detention in
General
Key Number graphic197k463 Authority for Detention Under Statute or Ordinance
Key Number graphic197k463.1 k. In General.
(Formerly 197k463, 197k25.1(1))
Petitioner whose conduct was not prohibited by statute under which he was
convicted was entitled to habeas corpus relief.
***336 **808 *363 Odorico & Franklin and J. David Franklin, San Diego, for
petitioner.
Evelle J. Younger, Atty. Gen., Herbert L. Ashby, Chief Asst. Atty. Gen., Doris
H. Maier, Asst. Atty. Gen., Mark L. Christiansen and Alexander B. McBonald,
Deputy Attys. Gen., for respondent.
MOSK, Justice.
This is a petition for writ of habeas corpus by Chad Merrill Smith, who is under
the constructive restraint of probation following his conviction of indecent
exposure. (Pen.Code, s 314, subd. 1.)
The issue is whether the act of sunbathing in the nude on an isolated *364
beach, without intent to engage in sexual activity, is punishable under a
statute which makes it a crime to 'willfully and lewdly' expose the private
parts of the body. We conclude that the conduct in question is not prohibited by
this statute, and hence that the writ should issue.
The facts are undisputed. On the morning of August 7, 1970, petitioner and a
male friend went to a beach for the purpose of sunbathing. Although the beach
was open to the public, it was not in a residential area and was apparently used
by relatively few people.[FN1] Petitioner removed all his clothes, lay down on
his back on a towel, and fell asleep.
FN1. According to petitioner's statement to the probation officer, he and his
friend 'walked down the beach for enough that we were out of sight from anyone
and appeared to be isolated.'
Some hours later police appeared on the scene and arrested petitioner on a
charge of indecent exposure. By that time several other persons were present on
the beach.[FN2] It was stipulated, however, that petitioner at no time had an
erection or engaged in any activity directing attention to his genitals.
FN2. The trial court summarized the police report as stating that 'A young
couple had just walked by (Smith). A group of juvenile boys came out of the surf
about fifty feet west of Smith. Three juvenile girls were lying on the beach
approximately fifty feet south of Smith. One of the girls was looking up,
looking in Smith's direction.'
Petitioner was found guilty as charged; the imposition of sentence was suspended
for three years, and he was placed on informal probation to the court on the
condition he pay a fine of $100. He subsequently learned he was also required to
register as a sex offender pursuant to Penal Code section 290. He appealed, but
the superior court appellate department affirmed the conviction and the Court of
Appeal denied his application to transfer the case for further review.
Penal Code section 314, the statute which petitioner was convicted of violating,
provides in relevant part that: 'Every person who Willfully and lewdly, either
***337 **809 '1. Exposes his person, or the private parts thereof, in any public
place, or in any place where there are present other persons to be offended or
annoyed thereby . . . is guilty of a misdemeanor.' (Italics added.)
As used in our penal statutes, the word 'willfully' 'implies simply a purpose or
willingness to commit the act' (Pen.Code, s 7, subd. 1). There is no doubt that
a person, as here, who fully disrobes in a public place for the purpose of
sunbathing, 'willfully'--i.e., intentionally--exposes himself within the meaning
of section 314. The issue is whether he also does so 'lewdly.'
*365 [1] The separate requirement that the intent of the actor be 'lewd' is an
essential element of the offense declared by section 314. (In re Mikkelsen
(1964) 226 Cal.App.2d 467, 472, fn. 2, 38 Cal.Rptr. 106; In re Correa (1918) 36
Cal.App. 512, 172 P. 615 (construing s 311, predecessor to s 314).) The relevant
dictionary meaning of 'lewd' is sexually unchaste or licentious,' 'dissolute,
lascivious,' 'suggestive of or tending to moral looseness,' 'inciting to sensual
desire or imagination,' 'indecent, obscene, salacious.' (Webster's New
Internat.Dict. (3d ed. 1961) p. 1301.)
The term has most often been judicially defined in cases applying the statute
which makes it a crime to 'wilfully and lewdly commit any lewd or lascivious
act' upon a child (Pen.Code, s 288.) In that context 'lewd' is said to mean
'dissolute,' 'wanton,' 'debauched' (People v. Loignon (1958) 160 Cal.App.2d 412,
420, 325 P.2d 541), and 'lustful, immoral, seductive or degrading' (People v.
Webb (1958) 158 Cal.App.2d 537, 542, 323 P.2d 141). The statute itself declares
that to commit such an act 'wilfully and lewdly' means to do so 'with the intent
of arousing, appealing to, or gratifying the lust or passions or sexual desires'
of the persons involved.
We are referred to no case defining 'lewdly' as used in section 314; but in the
reported decisions upholding convictions of that offense against a claim of
insufficient evidence, something more than mere nudity has usually been shown.
Thus in People v. Succop (1967) 67 Cal.2d 785, 787, 63 Cal.Rptr. 569, 570, 433
P.2d 473, 474, the defendant stood naked outside his home and 'moved his hand
over his private parts' in the presence of women and children. In People v.
Merriam (1967) 66 Cal.2d 390, 392--393, 58 Cal.Rptr. 1, 3, 426 P.2d 161, 163,
the defendant in one count stood masturbating in front of the female tenant
whose apartment he had entered, while in another count he entered a laundromat
and a female customer 'looked up and saw that he had exposed himself and was
holding his penis in his hand, facing her.' In People v. Sanchez (1965) 239
Cal.App.2d 51, 53, 48 Cal.Rptr. 424, the defendant was seen to masturbate in the
doorway of an apartment house, and admitted to the police that he had taken out
his penis and 'played with it.' In People v. Williams (1960) 183 Cal.App.2d 689,
690, 7 Cal.Rptr. 56, the defendant exposed himself by positioning his body so
that his head was inside his parked car while the lower portion of his body was
outside. In People v. Evans (1956) 138 Cal.App.2d 849, 850--851, 292 P.2d 570,
the defendant exposed himself while seated in his car and invited a 14-year-old
girl, whom he had previously followed on a number of occasions, to look inside.
And in In re Bevill (1968) 68 Cal.2d 854, 862, 69 Cal.Rptr. 599, 442 P.2d 679,
we held *366 that a defendant who masturbated in the presence of two children
should have been convicted of violating section 314 rather than another
statute.[FN3]
FN3. The People's reliance on People v. Kerry (1967) 249 Cal.App.2d 246, 57
Cal.Rptr. 289, is misplaced. There the issue was not sufficiency of the evidence
but the propriety of admitting proof of prior offenses of the same nature. In
any event, in one count in that case the defendant stepped naked from behind
some trash cans in the presence of two schoolgirls, while in the second count he
appeared naked in a laundromat, 'touched his private parts, knelt to his knees
in front of (a female customer) and performed an act.' (Id. at p. 249, 57
Cal.Rptr. at p.
290.)
***338 **810 [2] From the foregoing definitions and cases the rule clearly
emerges that a person does not expose his private parts 'lewdly' within the
meaning of section 314 unless his conduct is sexually motivated. Accordingly, a
conviction of that offense requires proof beyond a reasonable doubt that the
actor not only meant to expose himself, but intended by his conduct to direct
public attention to his genitals for purposes of sexual arousal, gratification,
or affront.[FN4]
FN4. Wainwright v. Procunier (9th Cir. 1971) 446 F.2d 757, is in accord. There a
Berkeley policeman on evening patrol observed the defendant urinate against the
wall of an abandoned service station. When questioned, the defendant explained
he had recently undergone surgery making it necessary for him to urinate
frequently. No other persons were present but the defendant's own companions.
The federal appellate court rejected the People's contention that the officer
had probable cause to arrest the defendant for indecent exposure under section
314, subdivision 1. Emphasizing the sexual connotations of the requirement that
the act be performed 'lewdly,' the court held the statute inapplicable as a
matter of law to the defendant's conduct.
[3][4] The necessary proof of sexual motivation was not and could not have been
made in the case at bar. It is settled that mere nudity does not constitute a
form of sexual 'activity.' (See, e.g., Manual Enterprises Inc. v. Day (1962) 370
U.S. 478, 490, 82 S.Ct. 1432, 8 L.Ed.2d 639; Sunshine Book Co. v. Summerfield
(1958) 355 U.S. 372, 78 S.Ct. 365, 2 L.Ed.2d 352 (per curiam); In re Panchot
(1969) 70 Cal.2d 105, 108, 73 Cal.Rptr. 689, 448 P.2d 385; People v. Noroff
(1967) 67 Cal.2d 791, 794 & fn. 6, 63 Cal.Rptr. 575, 433 P.2d 479; cf. Boreta
Enterprises, Inc. v. Department of Alcoholic Beverage Control (1970) 2 Cal.3d
85, 101--102, 84 Cal.Rptr. 113, 465 P.2d 1; Robins v. County of Los Angeles
(1966) 248 Cal.App.2d 1, 10--11, 56 Cal.Rptr. 853.) Absent additional conduct
intentionally directing attention to his genitals for sexual purposes, a person,
as here, who simply sunbathes in the nude on an isolated beach does not 'lewdly'
expose his private parts within the meaning of section 314.
Our reading of the statute is reinforced by a consideration of its consequences.
Since 1969, the fingerprints and description of every person arrested on a
charge of violating section 314 must immediately be filed with the State Bureau
of Criminal Identification and Investigation--i.e., *367 before the suspect is
even convicted of the offense. (Pen.Code, s 11112; see also Pen.Code, s 11107.)
If he is convicted, Penal Code section 290 then compels him to register as a sex
offender with the chief of police of the city in which he temporarily or
permanently resides. The required registration documents include a signed
informational statement, fingerprints, and photographs, all of which are
promptly forwarded to the above-mentioned state bureau. Every change of address
must thereafter be reported within 10 days by the registrant, and failure to
comply with any of the terms of the law is punishable as a misdemeanor. Section
290 comes automatically into operation upon a conviction of violating section
314, and results in a lifelong regime of registration and reregistration unless
and until a court releases the offender from disabilities of that conviction
(see Pen.Code, s 1203.4).
In Barrows v. Municipal Court (1970) 1 Cal.3d 821, 83 Cal.Rptr. 819, 464 P.2d
483, we had occasion to consider the bearing of section 290 on a similar issue,
i.e., whether the vagrancy statute prohibiting 'lewd or dissolute conduct in a
public place' (Pen.Code, s 647, subd. (a)) was intended to apply to live
theatrical performances. Conviction under that statute also triggers the
operation of section 290. We explained that 'The purpose of section 290 is to
assure that persons convicted of the crimes enumerated therein shall be readily
available for police surveillance at all times because **811 ***339 the
Legislature deemed them likely to commit similar offenses in the future.' (Id.
at pp. 825--826, 83 Cal.Rptr. at p. 822, 464 P.2d at p. 486.) Turning to the
nature of the offense actually charged, we reasoned (at pp. 826--827, 83
Cal.Rptr. at p. 822, 464 P.2d at p. 486): 'It would be irrational to impose upon
an actor in a theatrical performance or its director a lifetime requirement of
registration as a sexual offender because he may have performed or aided in the
performance of an act, perhaps an obscene gesture, in a play. It is an errant
concept we cannot attribute to the Legislature that persons convicted of such an
offense will require constant police surveillance in order to prevent them from
committing similar crimes against society in the future.' (Fn. omitted.) We
concluded that section 647, subdivision (a), was therefore not intended to apply
to live theatrical performances.
By parity of reasoning, we cannot attribute to the Legislature a belief that
persons found to be sunbathing in the nude on an isolated beach 'require
constant police surveillance' to prevent them from committing such 'crimes
against society' in the future. Lacking that belief, the Legislature could not
reasonably have intended that section 314, subdivision 1, apply to the conduct
here in issue.
[5] It follows that on the undisputed facts of this case petitioner's conduct
was not prohibited by the statute under which he was convicted. In such *368
circumstances, he is entitled to the relief of habeas corpus. (In re Zerbe
(1964) 60 Cal.2d 666, 668, 36 Cal.Rptr. 286, 388 P.2d 182; In re Bevill (1968)
supra, 68 Cal.2d 854, 863, 69 Cal.Rptr. 599, 442 P.2d 679.)
The writ is granted. The judgment is vacated, and petitioner is discharged from
the restraints thereof.
WRIGHT, C.J., and McCOMB, PETERS, TOBRINER, BURKE and SULLIVAN, JJ., concur.
Cal. 1972.
In re Smith,
7 Cal.3d 362, 497 P.2d 807, 102 Cal.Rptr. 335
END OF DOCUMENT