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Cal Pen Code 647(a)

(Any material pertaining to sub-sections other then (a) have been removed. The complete document can be found here.)

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DEERING'S CALIFORNIA CODES ANNOTATED
Copyright (c) 2004 by Matthew Bender & Company, Inc.
a member of the LexisNexis Group.
All rights reserved.

*** ARCHIVE MATERIAL ***

*** THIS SECTION IS CURRENT THROUGH THE 2004 SUPPLEMENT ***
(2003 SESSION)

PENAL CODE
PART 1. Crimes and Punishments
TITLE 15. Miscellaneous Crimes
CHAPTER 2. Other and Miscellaneous Offenses

Cal Pen Code 647 (2004)

647. Disorderly conduct; Restrictions on probation

Every person who commits any of the following acts is guilty of disorderly 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.



HISTORY:
Added Stats 1961 ch 560 2. Amended Stats 1965 ch 1959 1; Stats 1967 ch 1317 1; Stats 1969 ch 204 1, ch 1319 2; Stats 1970 ch 26 1, effective March 23, 1970; Stats 1971 ch 1581 1; Stats 1977 ch 426 1; Stats 1984 ch 1633 1, ch 1635 80; Stats 1986 ch 264 1, ch 1276 1; Stats 1987 ch 828 41; Stats 1988 ch 524 1; Stats 1st Ex Sess 1993-94 ch 21 1 (AB 116 X), effective November 30, 1994; Stats 1995 ch 91 126 (SB 975); Stats 1996 ch 1019 2 (AB 2949), ch 1020 2 (AB 2051); Stats 1998 ch 758 1 (AB 1788).
Amended Stats 1999 ch 231 1 (AB 182).

NOTES:
FORMER SECTIONS:
Former 647, relating to vagrants, was enacted Stats 1872, amended Stats 1891 ch 117 1, Stats 1903 ch 89 1, Stats 1911 ch 316 1, Stats 1929 ch 35 1, Stats 1931 ch 288 1, Stats 1939 ch 1078 1, Stats 1947 ch 989 1, Stats 1955 ch 169 2, and repealed Stats 1961 ch 560 1.

AMENDMENTS:
1969 Amendment:
(1) Deleted the former introductory clause which read: "Every person who commits any of the following acts shall be guilty of disorderly conduct, a misdemeanor:";
1970 Amendment:
(1) Added the introductory clause;

CROSS REFERENCES:
Indecent exposures and exhibitions: Pen C 314.

COLLATERAL REFERENCES:
Cal Forms Pl & Practice (Matthew Bender) ch 429 "Privacy" II(F), ch 304 "Insane and Other Incompetent Persons".
Witkin & Epstein, Criminal Law (2d ed) 23, 31, 33, 44, 50, 58, 60, 101, 125, 794, 802, 807, 809, 414, 865-875, 1417, 1779, 2068, 2159, 2220, 2389, 2810, 3039.
Witkin Summary (9th ed) Constitutional Law 327; Torts 161, 203.
Cal Jur 3d (Rev) Criminal Law 731, 841, 842, 1951-1958, 1962, 1963, 1965, 2145, 2474, 2537, 2549, 2818; Government Tort Liability 11.

LAW REVIEW ARTICLES:
California disorderly conduct statute violates due process clause. 5 Whittier LR 585.

ATTORNEY GENERAL'S OPINIONS:
Offenses denounced by subd (a) and (d) of this section as "sex offenses" under Ed C 13207 respecting revocation of teaching credentials. 39 Ops. Cal. Atty. Gen. 304.

ANNOTATIONS:
Vagueness as invalidating statutes or ordinances dealing with disorderly persons or conduct. 12 ALR3d 1448.
Larceny as within disorderly conduct statute or ordinance. 71 ALR3d 1156.
Validity and construction of statute or ordinance proscribing solicitation for purposes of prostitution, lewdness, or assignation--modern cases. 77 ALR3d 519.
Validity, construction, and operation of federal disorderly conduct regulation (36 C.F.R. 2.34). 180 ALR Fed 637.

 

 

NOTES OF DECISIONS

1. In General
2. Constitutionality
3. Preemption of Local Acts
4. Construction, Generally
5. Public Place
6. Solicitation; Prostitution
7. Loitering; Wandering; Prowling
8. Intoxicated; Under the Influence
9. Police Investigation; Arrest; Search
10. Procedural Questions

 

1. In General

The Legislature did not intend Pen Code, 647, subd (a), designating as disorderly conduct the engaging in lewd or dissolute conduct in a place open to the public, or Pen Code, 311.6, prohibiting the speaking of obscene words in a public place, to apply to theatrical performances. Barrows v Municipal Court of Los Angeles Judicial Dist. (1970) 1 Cal 3d 821, 83 Cal Rptr 819, 464 P2d 483.

Theatrical performances do not fall within the purview of the vagrancy law, Pen Code, 647, subd (a). Barrows v Municipal Court of Los Angeles Judicial Dist. (1970) 1 Cal 3d 821, 83 Cal Rptr 819, 464 P2d 483.

 

2. Constitutionality

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. Dixon v Municipal Court of San Francisco (1968, 1st Dist) 267 Cal App 2d 789, 73 Cal Rptr 587.

The basic purpose of Pen Code, 647, is to punish the crime of vagrancy in its various overt aspects, and nothing in the legislative history of that section indicates that it was intended to apply to activities, such as theatrical performances, which are prima facie within the ambit of First Amendment protection. Barrows v Municipal Court of Los Angeles Judicial Dist. (1970) 1 Cal 3d 821, 83 Cal Rptr 819, 464 P2d 483.

The registration requirements of Pen. Code, 290, as applied to one convicted of lewd or dissolute conduct in public (Pen. Code, 647, subd. (a)), do not constitute cruel and unusual punishment as being out of all proportion to the offense. People v Rodrigues (1976, App Dep't Super Ct) 63 Cal App 3d Supp 1, 133 Cal Rptr 765 (disapproved in part on other grounds by Pryor v Municipal Court for Los Angeles Judicial Dist., 25 Cal 3d 238, 158 Cal Rptr 330, 599 P2d 636).

Pen. Code, 647, subd. (a), declaring a person is guilty of disorderly conduct who solicits anyone to engage in or who engages in lewd or dissolute conduct in any public place, prohibits only the solicitation or commission of conduct in a public place or one open to the public or exposed to public view, which involves the touching of the genitals, buttocks, or female breasts, 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. As so construed, the statute does not abridge the right of freedom of speech and association, nor does it invade the right to privacy or violate equal protection of the laws. Pryor v Municipal Court for Los Angeles Judicial Dist. (1979) 25 Cal 3d 238, 158 Cal Rptr 330, 599 P2d 636.

The requirement that persons convicted of soliciting to engage in, or engaging in, lewd or dissolute conduct in any public place or any place exposed to public view (Pen. Code, 647, subd. (a)) register with the chief of police of the city in which they reside (Pen. Code, 290) imposes a lifelong stigma on offenders that is out of all proportion to the crime, and is therefore void under Cal. Const., art. I, 17, as cruel and unusual punishment. In re Reed (1983) 33 Cal 3d 914, 191 Cal Rptr 658, 663 P2d 216.

Showing a specific intent on the part of law enforcement to punish defendant for membership in a particular class was not necessary to establish discriminatory prosecution for Cal. Penal Code 647(a). Baluyut v Superior Court (1996) 12 Cal 4th 826, 50 Cal Rptr 2d 101, 911 P2d 1.

 

3. Preemption of Local Acts

City ordinance attempting to make certain acts of indecent exposure and obscene exhibition criminal is in conflict with State law and is void. In re Moss (1962) 58 Cal 2d 117, 23 Cal Rptr 361, 373 P2d 425.

 

4. Construction, Generally

The fact that Pen. Code, 290, requires registration of persons convicted of sexual offenses including those found guilty of lewd and dissolute conduct in a public place (Pen. Code, 647, subd. (a)), does not indicate a legislative intent that 647, subd. (a), shall not apply to performances wherein the participants exhibit or communicate ideas or impressions to an audience; whether 290 is applicable to a performer convicted on evidence of a simulated act, as well as to a person actually committing a sexual offense, may be decided only on a direct challenge by a performer so convicted. Dixon v Municipal Court of San Francisco (1968, 1st Dist) 267 Cal App 2d 789, 73 Cal Rptr 587.

The holding in Barrows v Municipal Court, 1 Cal 3d 821[83 Cal Rptr 819, 464 P2d 483] that Pen Code, 647 subd (a), 311.6, do not apply to live theatrical performances, i.e., stage productions, did not preclude prosecution of bottomless dancing in a bar as an occurrance of indecent exposure proscribed by Pen Code, 314, even though the dances in question fell within the category of live theatrical performances; in addition to other distinctions in the statutes involved, the wording of subd 2 of Pen Code, 314, makes it clear that the Legislature intended to make the statute applicable to exhibitions on stage whether "model artist" exhibits or some other kind. People v Newton (1970, App Dep't Super Ct) 9 Cal App 3d Supp 24, 88 Cal Rptr 343.

Pen Code, 647, relating to disorderly conduct stated a valid offense even though there had been an inadvertent legislative deletion of the introductory clause of the statute declaring acts set forth therein to be misdemeanors, where the intent of the legislature to punish the prohibited conduct was clear; under such circumstances, words inadvertently omitted from a statute may be supplied in the process of construction in order to effectuate the legislative intent. People v Medina (1971, 2nd Dist) 15 Cal App 3d 845, 93 Cal Rptr 560.

For conduct to constitute indecent exposure (Pen. Code, 314, subd. 1), just as for conduct to constitute lewd or dissolute conduct (Pen. Code, 647, subd. (a)), sexual motivation is a prime requisite. People v Swearington (1977, 2nd Dist) 71 Cal App 3d 935, 140 Cal Rptr 5.

 

5. Public Place

By specifically prohibiting in subd (a) "lewd or dissolute conduct in any public place or in any place open to public or exposed to public view," and prohibiting in subd (c) begging in "any public place or in any place open to the public," and then in subd (f) prohibiting intoxication only in "public place," legislature has by implication provided that intoxication in place which is not public place but is exposed to public view should not be criminal. In re Koehne (1963) 59 Cal 2d 646, 30 Cal Rptr 809, 381 P2d 633.

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. Dixon v Municipal Court of San Francisco (1968, 1st Dist) 267 Cal App 2d 789, 73 Cal Rptr 587.

 

8. Intoxicated; Under the Influence

The facial language of Pen. Code, 647, subd. (a), declaring that a person is guilty of disorderly conduct who solicits anyone to engage in or engages in lewd or dissolute conduct in any public place, does not supply a sufficiently clear definition of the term "lewd or dissolute conduct" to bring the statute into compliance with due process standards. The legislative history reveals the statute to be the lineal descendent of the archaic vagrancy statutes which were purposely drafted to grant police and prosecutors a vague and standardless discretion. Thus, the legislative history of the statute does not supply a clear and definite content to the meaning of the statute. Furthermore, the judicial cases interpreting the statute also fail to provide a clear and consistent definition of the term "lewd or dissolute conduct" as used in the statute. Pryor v Municipal Court for Los Angeles Judicial Dist. (1979) 25 Cal 3d 238, 158 Cal Rptr 330, 599 P2d 636.

The terms "lewd" and "dissolute" 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. It is limited to situations where the actor knows or should know of the presence of persons who may be offended by the conduct. The limitation serves not only to define the reach of the law, but also to add a requirement of specific intent, thereby avoiding problems of unconstitutional vagueness. People v Superior Court (Caswell) (1988) 46 Cal 3d 381, 250 Cal Rptr 515, 758 P2d 1046.

 

9. Police Investigation; Arrest; Search

 

10. Procedural Questions

Reversal of a conviction of the misdemeanor of lewd or dissolute conduct in violation of Pen. Code, 647, subd. (a), under a guilty plea entered without representation by counsel, was required by failure of the record to explicitly demonstrate that before acceptance of the plea, the accused had been informed that a conviction under that statute would compel him to register as a sex offender, pursuant to Pen. Code, 290. In re Birch (1973) 10 Cal 3d 314, 110 Cal Rptr 212, 515 P2d 12.

Absent a knowing and intelligent waiver, no person may be imprisoned for any sentence, whether classified as petty, misdemeanor, or felony, and including violations of municipal ordinances, unless he was represented by counsel at his trial, and the denial of assistance of counsel will preclude the imposition of a jail sentence. Thus, a municipal court judge erred in imposing a jail sentence upon defendant following his conviction for intoxication in a public place, where the judge had denied defendant appointed counsel on the ground that the offense wasn't of a sufficiently serious nature. In re Dellasala (1977, 1st Dist) 66 Cal App 3d 453, 136 Cal Rptr 99.

Habeas corpus relief could not be granted to one convicted of solicitation of or engaging in lewd or dissolute conduct in a public place in violation of Pen C 647 subd (a). Though the statute is to be construed to prohibit only the solicitation or commission of conduct in a public place or one open to the public or exposed to public view, which involves the touching of the genitals, buttocks, or female breasts, for purposes of sexual arousal, gratification, annoyance or offense, by a person who knows or should know of the presence of persons who might be offended by the conduct, the record did not touch on questions crucial to such application of the statute, in particular, the question whether petitioner knew or should have known of the presence of persons who might be offended by his conduct. However, relief is available to a person whose conviction is final if there is no material dispute as to the facts relating to his conviction and if his conduct did not violate the statute as so construed, and denial of relief was therefore without prejudice to petitioner's right to seek relief by writ of habeas corpus in the proper trial court. In re Anders (1979) 25 Cal 3d 414, 158 Cal Rptr 661, 599 P2d 1364.

 

SUGGESTED FORMS


ALLEGATION CHARGING DISORDERLY CONDUCT

------, being duly sworn, states on information and belief that the defendant[s] did in the ------ [City of ------, County of ------ or ------ Judicial District, County of ------], State of California, on or about ------ [date] , commit a misdemeanor, that is: A violation of Section 647, subsec. ------, of the Penal Code of the State of California, in that ------ [he or she or they] ------ [insert one of the following allegations]:
[Subd (a)] ------ did ------ [solicit another to engage or engage] in lewd or dissolute conduct, that is: ------ in ------ [a public place or a place open to the public or a place exposed to public view], that is: ------.
 

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Terms: cal pen code sec 647 (Edit Search)
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Date/Time: Saturday, August 21, 2004 - 1:06 AM EDT

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