1162. Soliciting Lewd Conduct in Public
The defendant is charged [in Count ______] with soliciting another person to engage in lewd conduct in public.
To prove that the defendant is guilty of this crime, the People must prove that:
1. The defendant requested [or <insert other synonyms for "solicit," as appropriate>] that another person engage in the touching of ((his/her) own/ [or] another person's) genitals, buttocks, or female breast;
2. The defendant requested that the other person engage in the requested conduct in (a public place/ [or] a place open to the public [or to public view]);
3. The defendant intended for the conduct to occur in (a public place/ [or] a place open to the public [or to public view]);
4. When the defendant made the request, (he/she) did so with the intent to sexually arouse or gratify (himself/ herself) or another person, or to annoy or offend another person;
5. When the defendant made the request, a third person who might have been offended by the conduct was present;
6. The defendant knew or reasonably should have known that someone who might have been offended by the conduct was present(;/.)
<Give element 7 when instructing that person solicited must receive message; see Bench Notes.>
7. The other person received the communication containing the request.]
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.]
The court has a sua sponte duty to give this instruction defining the elements of the crime.
One court has held that the person solicited must actually receive the solicitous communication. (People v. Saephanh (2000) 80 Cal.App.4th 451, 458-459 [94 Cal.Rptr.2d 910].) In Saephanh, the defendant mailed a letter from prison containing a solicitation to harm the fetus of his girlfriend. (Id. at p. 453.) The letter was intercepted by prison authorities and, thus, never received by the intended person. (Ibid.) If there is an issue over whether the intended person actually received the communication, give bracketed element 7.
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].
Solicitation Requires Specific Intent. People v. Norris (1978) 88 Cal.App.3d Supp. 32, 38 [152 Cal.Rptr. 134].
Solicitation Defined. People v. Superior Court (1977) 19 Cal.3d 338, 345-346 [138 Cal.Rptr. 66, 562 P.2d 1315].
Person Solicited Must Receive Communication. People v. Saephanh (2000) 80 Cal.App.4th 451, 458-459 [94 Cal.Rptr.2d 910].
"Lewd" and "Dissolute" Synonymous. Pryor v. Municipal Court (1979) 25 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"].
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).
(New January 2006)