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Primer for Attorneys
My focus is on lewd conduct issues relating to public cruising. I also concentrate on cruising on the internet, and possession of erotic materials including the use of computers.
I am devoted to the legal problems that Gays encounter because of their sexuality.
LAW OFFICE
OF
Bruce W. Nickerson
Primer for Attorneys: Lew Conduct Cases
In California, regardless of your criminal law background, you need to read this letter very carefully, because lewd conduct is absolutely the most misunderstood and mishandled "crime" in California Penal law.1/
First, please permit me present to you my qualifications to write this primer.
I am an attorney who for his entire career has focused and specialized in defending lewd conduct arrests, having personally handled over one thousand cases. More important, In 1988, I was one of the attorneys who argued People v. Superior Court (Caswell), (1988) 46 Cal. 3rd 388, 758 P. 2d 1046 which held that in order to violate Penal Code section 647(d), a person must loiter with the specific intent of engaging in or soliciting genital, buttock, or female breast touching, intending to perform the act in a public place, a place open to the public or one exposed to public view under circumstances where the actor knew or should know there would be third persons present at the proposed location who might observe the solicited conduct and who might be offender thereby. (See Caswell, supra pp. 390-392.
In 1990 I persuaded the CALJIC Committee to revise element 3 of CALJIC 16.400, the jury instructions for Penal Code section 647(a), lewd conduct, by creating separate instructions for "engaging" and "soliciting" cases. A copy of their letter to me and their 1990 Revision are attached.
Finally, in 1996, I personally argued my career case. Baluyut v. Superior Court, (1996) 12 Cal.4th 826, 911 P. 2d 1 which held that sting operations analogous to that recently conducted by the Fresno Sheriff's Department may violate the Equal Protection clause of the 14th Amendment to the United States Constitution.
I have taught criminal law relating to this type of arrests at national conferences of Lavender Law, sponsored by the National Gay and Lesbian Task Force in Los Angeles, Portland, New Orleans, and Dallas.
In California, and in many states, there is a unique problem with lewd conduct which is not present in any other portion of the Penal Code in that the language in the Penal Code bears absolutely no relation to the crime or its elements. In fact the language in the Penal Code has been determined by the California Supreme Court to be unconstitutionally void for vagueness. However, instead of striking down the statute, the Supreme Court completely redefined the elements in two seminal cases, Pryor v. Municipal Court (1979) 25 Cal.3rd 238, 599 P.2d 636 and my Caswell case, cited above. You absolutely must read these two cases plus People v. Rylaarsdam, (1982) 130 Cal.App.3rd Supp. 1 before you attempt to represent any person for lewd conduct. (CALJIC 16.400 both the hardcover version and the pocket portion also are very helpful in understanding what is and what is not lewd conduct).
The following is an outline on how to handle this case.
• First, when you initially meet your client inquire if the arrest (or the observation leading to the arrest) was made by an undercover decoy officer.
This is crucial, because if he was, then you must immediately assure him that he did not violate California law.
The reason of course is that all lewd conduct (including the loitering portion) require that the defendant must "know or should know of the presence of persons who are likely to be offended by his conduct." (CALJIC 16.400, element 3) Clearly, if the decoy is pretending to be sexually interested in the defendant (and they all do this type of play acting) then the defendant's belief that the person who is observing him is not likely to be offended is a reasonable one and no crime has been committed.
• Second, it is very important to immediately inform your client of this central fact because he is likely to be consumed by shame and guilt over whatever conduct he may have engaged in, even if it only amounted to being there. You must help him overcome his feelings of guilt (which frequently is due to religious and cultural teachings) by stressing the fact that he didn't violate the law.
• Third, as soon as possible have your client write down all the things the decoy deputy did to gain his confidence. Such things as eye contact, suggestive body language, lingering for long periods of time around the toilet, following the client into and out of the bathroom, suggestive conversation all are relevant to the fundamental defense: That at no time did your client reasonably expect to offend anyone.2/ These things may well acquit him later.3/
• Fourth, carefully examine the citation and note the things he was cited for. The possibilities are PC 647(a) (soliciting lewd conduct, PC 647(a) (engaging in lewd conduct), PC 647(d), loitering around a toilet, or some combination of the three.4/
• Fifth, carefully question your client to determine the gravamen of his offense: Whether or not he allegedly masturbated somewhere in or around the toilet, whether or not he simply engaged in conversation (i.e. solicited the undercover decoy) or if he simply was there, (loitering). You may have to wait until you get the police report to determine this since, in many cases, the client is so traumatized by his arrest that he won't know precisely what he was arrested for.
• Sixth, inform your client that there may be several ways to have the charges dismissed, short of trial. These include:
a. A demurrer if the facts do not constitute a public offense
b. A motion in arrest of judgement (also if the facts do not constitute a public offense)
c. A motion to suppress evidence (if the viewing was through a crack between the door jam and the stall, or the decoy peered over or under the partition)
d. A motion to dismiss based on discriminatory prosecution pursuant to Murguia v. Municipal Court of Bakersfield (1975) 15 Cal.3rd 286, 540 P.2d 44, and Baluyut v. Superior Court (1996) 14 Cal.4th 826, 911 P. 2d 1, the case I personally argued. I have all of these motions in my computer and am willing to share these with you. However, the last option is very involved and your client must know that such a motion takes several months to matriculate.5/
• Seventh, when you obtain the police report carefully determine what you client is alleged to have done. If the allegation is that he simply "loitered" around the bathroom and that is the only charge, you must file a demurrer or a motion in arrest of judgement, because there is no crime. Following my Caswell case, (cited above), I have never lost a "loitering" case that did not also include an allegation of actual sexual conduct.
If the allegation is that your client solicited the decoy for some sexual activity, then carefully determine where the solicited act was to be performed. If the act was to be performed at home or at a motel, immediately file a demurrer or a motion in arrest of judgement. Not only will you acquit your client but I will take his case on a contingency basis and sue the Sheriff's department for false arrest.
If the solicitation proposed sexual conduct without specifying where, immediately file a demurrer or a motion in arrest of judgement. In the absence of any specific location, there is no evidence one way or the other that your client intended to perform the act in a public place, and the presumption of innocence will acquit him.
If the solicitation proposed to go to a nearby vehicle or some other remote place, file the demurrer and/or the motion in arrest of judgement. This is precisely the scenario in Baluyut, supra, and the Supreme Court took pains to opine on page 830 that such arrests did not comply with the provisions of Pryor, supra.
If the solicitation proposed that the act take place inside a toilet stall quickly determine whether or not the stall had a door.6/ If it had a door, set the matter for a court trial and call me to argue it. A toilet that has a door is a private place as held in Pryor, supra fn. 12, page 256.7/
Only if the solicitation proposed something truly outrageous, such as: "Lets have sex right here" and "here" is outside the restroom or in the wash basin area, should you consider pleading your client. (I have never encountered such a solicitation in reviewing some 6,000 cases pursuant to various Murguia Motions).
If the allegation is that your client masturbated in a toilet stall, carefully determine how the observation was made. If it was made by a decoy peering through a crack in the partition or above or below the partition file a motion to suppress. If the observation was of four legs appearing below the partition, (but no observation of genital touching) file a demurrer.8/
If the touching was observed through an open door or at the urinal, then focus on the preceding behavior of the decoy. Look for eye contact, suggestive conversation, following the client, foot tapping, standing at a urinal withouturinating, standing at a toilet when a urinal is available, remaining for long periods of time in and around a urinal. This is recognized cruising behavior on the part of the decoy and as such is designed to gain the confidence of your client. While this is permissible in ordinary decoy situations it is not in lewd conduct cases because of the "knows or should know" element which is unique to this offense.
Finally, if the report admits to no such cruising behavior on the part of the decoy and unequivocally states that your client masturbated in his presence without any encouragement, and your client tells you something different, in this case believe your client. From my experience, about 20 per cent of decoy police reports (as opposed to reports made by uniformed officers) contain deliberate falsehoods, sometimes reaching to the gravamen of the offense. You then need to consult with me, other attorneys who may have similar cases, and the public defender's office to see if they are getting the same thing from their clients. If you can find three or more persons whose arrest reports contain similar falsehoods, you can gang up on the cop at trial pursuant to Evidence code 1101 and 1103, habit, pattern of behavior i.e. the Method of Operation ("MO") of the decoy.
Finally, if you have an engaging type arrest, you should consider filing a Murguia Motion pursuant to my Baluyut case. this you need to organize with myself, other local attorneys, and the local Public Defender's office because this is a huge undertaking. This is the ultimate way to stop these arrests.