1156. Loitering: For Prostitution
The defendant is charged [in Count ______] with loitering with the intent to commit prostitution.
To prove that the defendant is guilty of this crime, the People must prove that:
1. The defendant delayed or lingered in a public place;
2. When the defendant did so, (he/she) did not have a lawful purpose for being there;
3. When the defendant did so, (he/she) intended to commit prostitution.
As used here, a public place is (a/an/the) (area open to the public[(,/;)]/[or] alley[(,/;)]/ [or] plaza [(,/;)]/ [or] park[(,/;)]/ [or] driveway[(,/;)]/ [or] parking lot[(,/;)]/ [or] automobile[(,/;)]/ [or] building open to the general public[, including one that serves food or drink or provides entertainment][(,/;)]/ [or] doorway or entrance to a building or dwelling[(,/;)]/ [or] grounds enclosing a building or dwelling).
A person intends to commit prostitution if he or she intends to engage in sexual conduct with someone else in exchange for money [or other compensation]. Sexual conduct means sexual intercourse or touching the genitals, buttocks, or female breast of either the prostitute or customer with some part of the other person's body for the purpose of sexual arousal or gratification. [Prostitution does not include sexual conduct engaged in as a part of any stage performance, play, or other entertainment open to the public.]
The intent to commit prostitution may be shown by a person acting in a manner and under circumstances that openly demonstrate the intent to induce, entice, or solicit prostitution or to procure someone else to commit prostitution. In deciding whether the defendant acted with intent to commit prostitution, you may consider whether (he/she):
[Repeatedly beckoned to, stopped, engaged in conversations with, or attempted to stop or engage in conversations with passersby in a way that indicated the solicitation of prostitution (./;)]
[Repeatedly stopped or attempted to stop vehicles by hailing, waving, or gesturing, or engaged or attempted to engage drivers or passengers in conversation, in a way that indicated the solicitation of prostitution(./;)]
[Circled an area in a vehicle and repeatedly beckoned to, contacted, or attempted to contact or stop pedestrians or other motorists in a way that indicated the solicitation of prostitution(./;)]
[Has engaged in any behavior indicative of prostitution activity within the six months before (his/her) arrest in this case(./;)]
[Has been convicted of this crime or of any other crime relating to or involving prostitution within five years of (his/her) arrest in this case.]
You should also consider whether any of these activities occurred in an area known for prostitution.
This list of factors is not intended to be a complete list of all the factors you may consider on the question of intent. The factors are provided only as examples to assist you in deciding whether the defendant acted with the intent to commit prostitution. Consider all the evidence presented in this case for whatever bearing you conclude it has on the question of the defendant's intent. Give the evidence whatever weight you decide that it deserves.
The court has a sua sponte duty to give this instruction defining the elements of the crime.
Elements. Pen. Code, § 653.22(a).
Factors to Consider to Prove Intent. Pen. Code, § 653.22(a), (b) & (c).
Prostitution Defined. Pen. Code, § 653.20(a); see also Pen. Code, § 647(b); People v. Hill (1980) 103 Cal.App.3d 525, 534-535 [163 Cal.Rptr. 99]; Wooten v. Superior Court (2001) 93 Cal.App.4th 422, 431-433 [113 Cal.Rptr.2d 195]; Pryor v. Municipal Court (1979) 25 Cal.3d 238, 256 [158 Cal.Rptr. 330, 599 P.2d 636].
Public Place Defined. Pen. Code, § 653.20(b).
Loiter Defined. Pen. Code, § 653.20(b).
Statute Constitutional. People v. Pulliam (1998) 62 Cal.App.4th 1430, 1434-1439 [73 Cal.Rptr.2d 371].
2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against Public Peace and Welfare, § 54.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 144, Crimes Against Order, §§ 144.11, 144.20 (Matthew Bender).
(New January 2006)