There are 3 common strategies for how to beat a solicitation charge in California. These include:
- asserting that the police engaged in illegal entrapment,
- showing the evidence to be insufficient to support a conviction, and
- attacking the arresting officers’ credibility.
Each of these strategies can undermine the prosecutor’s case.
What is a charge of solicitation?
Solicitation (California Penal Code 647b PC) is the crime of requesting someone to engage in an act of prostitution.
In order to prove a case of prostitution, California prosecutors have to show:
- you requested someone to engage in an act of prostitution,
- you intended to engage in prostitution with that person, and
- the other person received that request.1
An act of prostitution is sexual intercourse or a lewd act. It is done in exchange for money or other compensation.2
A lewd act is physical contact of a sexual body part. It has to be done for the purpose of sexual arousal.3
The prosecutor has the burden of proving their case of solicitation. They have to prove this beyond a reasonable doubt.
Is entrapment a defense?
Entrapment can be a strong defense to a California charge of solicitation.
Police entrap you by causing you to commit a crime.4 It involves pushing you into committing a crime that you would not have done, otherwise.
Examples of police entrapment include:
- badgering,
- persuading you to commit a crime through coaxing or flattery,
- repeated and insistent requests,
- appealing to friendship or sympathy,
- making the crime strangely attractive or lucrative,
- guaranteeing that the conduct is not illegal, and
- promising that you cannot get caught.5
Entrapment is an affirmative defense in California, though. This means you have to prove entrapment by a preponderance of the evidence.6
Example: Wendy is an undercover police officer. She poses as a prostitute. She tries to get Tom to solicit her. Wendy appeals to Tom’s sympathy. She tells him the money will pay for her mother’s life-saving surgery. Tom would not have hired a prostitute, had it not been for this claim.
When is insufficient evidence a defense?
Insufficient evidence can be a strong defense. When you invoke this defense, you argue that law enforcement has not proven at least one element of its case.
California prosecutors have to prove all the elements of solicitation beyond a reasonable doubt. If they leave out one of these elements, their evidence can be insufficient.
The most common missing element is intent. There has to be an intent to engage in an act of prostitution. Without that intent, you are not liable for solicitation. If the prosecutor fails to prove this intent, you can argue the evidence is insufficient for a conviction.
Example: Wendy appealed to Tom’s sympathies and Tom paid her. Tom is arrested and charged with solicitation. He can argue there is insufficient evidence to prove his intent. He can argue that he was just giving her money for her mother’s surgery.
Can I attack the officer’s credibility?
Solicitation charges in California rely on the testimony of police officers. Undermining their credibility can be a good defense strategy.
This defense can be an option when the police did not record the incident. These cases can devolve into conflicting testimony about what happened.
The officer’s inconsistent statements can undermine their credibility. You can point to differences between the written report and the officer’s statements. You can even use prior solicitation arrests to undermine their statements.
Example: Wendy insists that Tom offered to pay her for sex. Tom says he was only offering her money for her mother’s treatment. The written report says that there was a tape recording of the interaction. Wendy says that it “broke.”
What are the penalties for a conviction?
A conviction for solicitation of prostitution is a misdemeanor in California. It is priorable, which means later convictions will carry higher penalties.
For a first offense, the penalties are up to:
- 6 months in county jail, and/or
- $1,000 in fines.7
A second conviction requires a mandatory minimum of 45 days in jail.8
A third or subsequent conviction carries a mandatory minimum of 90 days in jail.9
A conviction can even hurt your right to drive. This can happen if the offense happened:
- in a car, and
- within 1,000 feet of a residence.
These additional penalties include:
- a license suspension of up to 30 days,10 or
- a license restriction for up to 6 months.11
Additional resources
If you are a sex worker in need of help, refer to the following:
- National Harm Reduction Coalition – Resource library for sex workers to remain safe or find means to escape.
- Red Umbrella Fund – Sex worker-led participatory fund to advance the interest of sex workers.
- Sex Workers Project – Medical, financial, and mental health resources for sex workers.
- National Human Trafficking Hotline – Immediate help for victims of sex trafficking.
- Sex Workers Outreach Project Los Angeles – Guidance for current and former sex workers to receive legal help, housing, food assistance, abortion access, and more.
Legal References:
- California Criminal Jury Instructions (CALCRIM) 1154.
- California Penal Code 647(b) PC. See also People v. Hill, 103 Cal.App.3d 525 (1980).
- CALCRIM 1154. See also Pryor v. Municipal Court, 599 P.2d 636 (1979).
- CALCRIM 3408.
- CALCRIM 3408.
- People v. McIntyre, 222 Cal.App.3d 229 (1990).
- California Penal Code 647(b) PC.
- California Penal Code 647(k) PC.
- California Penal Code 647(k) PC.
- California Penal Code 647(b) PC.
- California Vehicle Code 13201.5(c).
