California Criminal Jury Instructions (CALCRIM) (2017)

1161. Lewd Conduct in Public

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1161.Lewd Conduct in Public (Pen. Code, § 647(a))
The defendant is charged [in Count ] with engaging in lewd
conduct in public [in violation of Penal Code section 647(a)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant willfully engaged in the touching of ((his/her)
own/ [or] another person’s) genitals, buttocks, or female breast;
2. The defendant did so with the intent to sexually arouse or gratify
(himself/herself) or another person, or to annoy or offend
another person;
3. At the time the defendant engaged in the conduct, (he/she) was
in (a public place/ [or] a place open to the public [or to public
view]);
4. At the time the defendant engaged in the conduct, someone else
who might have been offended was present;
AND
5. The defendant knew or reasonably should have known that
another person who might have been offended by (his/her)
conduct was present.
Someone commits an act willfully when he or she does it willingly or on
purpose.
[As used here, a public place is a place that is open and accessible to
anyone who wishes to go there.]
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of
the crime.
AUTHORITY
• Elements. Pen. Code, § 647(a); Pryor v. Municipal Court (1979) 25 Cal.3d
238, 256–257 [158 Cal.Rptr. 330, 599 P.2d 636]; People v. Rylaarsdam (1982)
130 Cal.App.3d Supp. 1, 3–4 [181 Cal.Rptr. 723].
• Willfully Defined. Pen. Code, § 7, subd. 1; People v. Lara (1996) 44
Cal.App.4th 102, 107 [51 Cal.Rptr.2d 402].
• “Lewd” and “Dissolute” Synonymous. Pryor v. Municipal Court (1979) 25
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Cal.3d 238, 256 [158 Cal.Rptr. 330, 599 P.2d 636].
• Lewd Conduct Defined. Pryor v. Municipal Court (1979) 25 Cal.3d 238, 256
[158 Cal.Rptr. 330, 599 P.2d 636].
• Public Place Defined. In re Zorn (1963) 59 Cal.2d 650, 652 [30 Cal.Rptr.
811, 381 P.2d 635]; People v. Belanger (1966) 243 Cal.App.2d 654, 657 [52
Cal.Rptr. 660]; People v. Perez (1976) 64 Cal.App.3d 297, 300–301 [134
Cal.Rptr. 338]; but see People v. White (1991) 227 Cal.App.3d 886, 892–893
[278 Cal.Rptr. 48] [fenced yard of defendant’s home not a “public place”].
Secondary Sources
2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against Public
Peace and Welfare, §§ 46–47.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 144,
Crimes Against Order, § 144.20 (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:16, 12:17
(The Rutter Group).
RELATED ISSUES
Need Not Prove Someone Was Offended
“It is not the burden of the prosecution to prove that the observer was in fact
offended by the conduct but only that the conduct was such that defendant should
know that the observer ‘may be offended.’ ” (People v. Rylaarsdam (1982) 130
Cal.App.3d Supp. 1, 11 [181 Cal.Rptr. 723].)
Does Not Apply to Live Theater Performance
“It seems evident from the foregoing that the vagrancy law, [Penal Code] section
647, subdivision (a), was not intended to apply to live performances in a theater
before an audience.” (Barrows v. Municipal Court (1970) 1 Cal.3d 821, 827–828
[83 Cal.Rptr. 819, 464 P.2d 483].)
SEX OFFENSES CALCRIM No. 1161
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