California Criminal Jury Instructions (CALCRIM) (2017)

1162. Soliciting Lewd Conduct in Public

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1162.Soliciting Lewd Conduct in Public (Pen. Code, § 647(a))
The defendant is charged [in Count ] with soliciting another
person to engage 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 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 in public view]);
3. When the defendant made the request, (he/she) was in (a public
place/ [or] a place open to the public [or in public view]);
4. The defendant intended for the conduct to occur in (a public
place/ [or] a place open to the public [or in public view]);
5. 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;
[AND]
6. The defendant knew or reasonably should have known that
someone was likely to be present who could be offended by the
requested conduct(;/.)
<Give element 7 when instructing that person solicited must receive
message; see Bench Notes.>
[AND
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.]
New January 2006; Revised August 2006, December 2008
918
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BENCH NOTES
Instructional Duty
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.
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, 8–9 [181 Cal.Rptr. 723].
• Willfully Defined. Pen. Code, § 7(1); People v. Lara (1996) 44 Cal.App.4th
102, 107 [51 Cal.Rptr.2d 402].
• Likely Defined. People v. Lake (2007) 156 Cal.App.4th Supp. 1 [67
Cal.Rptr.3d 452].
• 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”].
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).
SEX OFFENSES CALCRIM No. 1162
919
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RELATED ISSUES
See the Related Issues sections of CALCRIM No. 1161, Lewd Conduct in Public
and CALCRIM No. 441, Solicitation: Elements.
1163–1169. Reserved for Future Use
CALCRIM No. 1162 SEX OFFENSES
920
0212