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    Penal Code § 653.22 PC – Loitering for Prostitution

    Penal Code 653.22 PC is a law (that was repealed in 2022) that made it a crime in California to loiter in a public place with the intent to commit prostitution. Prior to the repeal, a conviction was a misdemeanor punishable by up to 6 months in jail and a fine of up to $1000.00.

    If you have a past conviction for loitering for prostitution, PC 653.29 allows you to pursue a record seal right away.

    The full language of the now-repealed statute read as follows:

    653.22. (a) (1) Except as specified in paragraph (2), it is unlawful for any person to loiter in any public place with the intent to commit prostitution. This intent is evidenced by acting in a manner and under circumstances that openly demonstrate the purpose of inducing, enticing, or soliciting prostitution, or procuring another to commit prostitution.

    (2) Notwithstanding paragraph (1), this subdivision does not apply to a child under 18 years of age who is alleged to have engaged in conduct that would, if committed by an adult, violate this subdivision. A commercially exploited child under this paragraph may be adjudged a dependent child of the court pursuant to paragraph (2) of subdivision (b) of Section 300 of the Welfare and Institutions Code and may be taken into temporary custody pursuant to subdivision (a) of Section 305 of the Welfare and Institutions Code, if the conditions allowing temporary custody without warrant are met.

    (b) Among the circumstances that may be considered in determining whether a person loiters with the intent to commit prostitution are that the person:

    (1) Repeatedly beckons to, stops, engages in conversations with, or attempts to stop or engage in conversations with passersby, indicative of soliciting for prostitution.

    (2) Repeatedly stops or attempts to stop motor vehicles by hailing the drivers, waving arms, or making any other bodily gestures, or engages or attempts to engage the drivers or passengers of the motor vehicles in conversation, indicative of soliciting for prostitution.

    (3) Has been convicted of violating this section, subdivision (a) or (b) of Section 647, or any other offense relating to or involving prostitution, within five years of the arrest under this section.

    (4) Circles an area in a motor vehicle and repeatedly beckons to, contacts, or attempts to contact or stop pedestrians or other motorists, indicative of soliciting for prostitution.

    (5) Has engaged, within six months prior to the arrest under this section, in any behavior described in this subdivision, with the exception of paragraph (3), or in any other behavior indicative of prostitution activity.

    (c) The list of circumstances set forth in subdivision (b) is not exclusive. The circumstances set forth in subdivision (b) should be considered particularly salient if they occur in an area that is known for prostitution activity. Any other relevant circumstances may be considered in determining whether a person has the requisite intent. Moreover, no one circumstance or combination of circumstances is in itself determinative of intent. Intent must be determined based on an evaluation of the particular circumstances of each case.

    These were easy arrests to make because officers did not actually have to catch someone in a prostitution transaction. Thus, it was easy for innocent people to find themselves wrongfully accused.

    Examples

    • A woman walks back and forth on a street where all businesses are closed for the night. She approaches several cars with male drivers for short conversations.
    • A young woman in revealing clothing sits at a bus stop for several minutes but doesn’t get on the bus when it arrives.  She waves at passing cars with male drivers.
    • A minor female walks slowly through an area known for prostitution activity.  She is with another woman who has a history of prostitution arrests. The two women are paying close attention to cars passing by.

    In this article, our California criminal defense attorneys answer the following key questions:

    If you would like more information after reading this article, we invite you to contact us at Shouse Law Group.

    1. What did it mean to loiter for prostitution?

    In order to convict you under 653.22 PC prior to 2023, the prosecutor had to prove the following facts (also known as “elements” of the crime):

    1. you were loitering,
    2. you did so in a public place, and
    3. you specifically intended to commit prostitution.

    Now that 653.22 PC has been repealed, loitering for prostitution is no longer a crime. The act of prostitution itself does remain a crime.1-9

    2. How did the state prove a person intended to commit prostitution?

    prostitutes loitering by a light pole, a potential violation of California Penal Code 653.22 PC

    Penal Code 653.22 PC spelled out certain actions that may demonstrate that a person intended to commit prostitution

    Penal Code 653.22 PC spelled out certain actions that may demonstrate that a person intended to commit prostitution.  These are:

    • The person repeatedly beckons to, stops, engages in conversations with, or tries to stop or engage in conversations with passers-by, in a way that indicates they are soliciting prostitution;
    • The person repeatedly stops or attempts to stop cars by hailing the drivers, waving, or making other gestures, or engages or tries to engage the drivers in conversation, in a way that indicates they are soliciting prostitution;
    • The person circles an area in a motor vehicle and repeatedly beckons to or contacts, or tries to contact or stop, pedestrians or other drivers, in a way that indicates they are soliciting prostitution;
    • The person has engaged in any of the behaviors listed above, or any other behavior that indicates they were soliciting prostitution, within the six (6) months prior to being arrested; or
    • The person has been convicted of loitering for the purpose of engaging in prostitution, or of lewd conduct in public, soliciting lewd conduct, prostitution, or soliciting prostitution, within the past five (5) years.10-14

    Judges and juries were also able to consider factors other than the above. For example, they were able to consider behavior that indicated you committed or solicited prostitution in the past even if this behavior took place more than six (6) months before you were arrested.15

    Other behavior that could show that you intended to commit prostitution included:

    • Giving a fake name or date of birth to a cop if you were questioned;16 and/or
    • Being in the company of someone with a history of prostitution offenses.17

    Note that police could not use the fact that the suspect was carrying condoms to form probable cause that the person was loitering for prostitution.18

    So you see how much discretion police, prosecutors, and judges and juries had in arresting and convicting people for this section. This kind of law opened the door for police to unfairly target certain groups, neighborhoods, or individuals.19

    3. What were some common defenses to Penal Code 653.22 PC?

    A conviction for a California sex crime like loitering for prostitution had terrible repercussions for your career and personal life. Though there were a number of legal defenses that could get these charges dismissed:

    3.1. Insufficient evidence that you intended to commit prostitution

    A completely innocent situation can look like loitering with intent to commit prostitution.

    For example, a female under 21 may have been wearing provocative clothing and making conversation with males walking by because she wanted them to buy her alcohol. Or a woman may have been making eye contact with male drivers of passing cars because she enjoyed being flirtatious, or was hoping someone would give her a ride home.

    Because this law gave so much discretion to police and judges, a skilled criminal defense attorney was incredibly valuable for fighting charges of loitering for prostitution.

    3.2. Entrapment

    Entrapment happens when a police officer induces a normally law-abiding person to commit a crime they otherwise would not have committed. Arrests are often made by officers operating undercover. This can trigger the entrapment defense.

    Entrapment occurs only when a police officer behaves in an overbearing way-for example, by applying pressure, harassment, fraud, flattery, or threats.20

    Here is an example involving the now-repealed 653.22 PC:

    Maria was nineteen and had been drinking in a bar in a neighborhood where prostitutes sometimes hang out. She was smoking a cigarette outside the bar.

    An undercover cop named Frank pulled up in an expensive car and asked Maria if she was working. Maria ignored him. Frank told her that he would like to hire her and would pay her two hundred dollars for half an hour. She continued to ignore him and went back into the bar.

    Later, Maria came outside for another cigarette. Frank’s car appeared again. He told her she’s the most beautiful girl he’d ever seen on this street and that he would pay her five hundred dollars for half an hour. Frank showed her a wad of bills. Maria told him he’s wrong about her.

    Maria thought about Frank’s extravagant offer while she was at the bar. After the bar closed, she stood on the street outside for a while to see if he would come back. When he did, he arrested her for loitering with intent to commit prostitution.

    Frank applied extreme pressure to Maria by offering her a large amount of money. He also used flattery to spark her interest. Maria would not have considered loitering after the bar closed if he had not used these tactics.

    This is a classic example of illegal entrapment. With the help of a California criminal defense lawyer who understands the entrapment defense, Maria may have been able to avoid conviction.

    4. What were the consequences of a conviction?

    4.1. Misdemeanor penalties

    Penal Code 653.22 PC was a California misdemeanor.21 If you were convicted of loitering for the purpose of committing prostitution, you faced a maximum one thousand dollar ($1,000) fine and up to six (6) months in a county jail.22

    The exact sentence was determined by the judge.

    4.2. Transit district prohibition orders

    If you were convicted of loitering with the intent of engaging in prostitution in the Sacramento, Fresno, or San Francisco Bay Area regions, you could have been prohibited from using certain public transportation facilities for a period of time. The transit authority must have given you notice and an opportunity to dispute this order before it went into effect.23

    5. What similar crimes could a person be charged with?

    There are certain other crimes that were often charged along with Penal Code 653.22 PC, loitering with intent to commit prostitution. These included:

    5.1. Prostitution and solicitation of prostitution

    Penal Code 647(b) PC prohibits prostitution and solicitation of prostitution in California.

    You can be convicted of prostitution if you

    1. engage in an act of prostitution, and
    2. do so willfully, which means deliberately or on purpose.24

    In order to convict you of soliciting prosecution, the prosecutor must prove that you

    1. solicited another person to engage in an act of prostitution, and
    2. did so with the specific intent of engaging in prostitution.25

    Prostitution and soliciting for prostitution are misdemeanors in California.

    5.2. Lewd conduct in public

    prostitute and john getting close by a car - loitering for prostitution is a crime in California

    A prior conviction for PC 647(a) PC made it more likely you would be convicted of loitering.

    Lewd conduct in public under Penal Code 647(a) PC means touching your or another person’s private parts for sexual arousal, when you know or reasonably should know that there is someone else nearby who would take offense.

    Lewd conduct and solicitation of lewd conduct are misdemeanors in California.

    5.3. Local ordinances

    City and county governments can impose their own restrictions in line with state law.26-27

    5.4. Loitering to solicit the purchase of alcohol

    Penal Code 303a PC, California’s law against loitering to solicit the purchase of alcohol, makes it a misdemeanor to loiter outside of an establishment that serves alcohol to be served on the premises (such as a bar or restaurant) for the purpose of persuading other patrons to buy you alcohol.28

    Some prostitutes find their customers in bars or clubs and initiate the transaction by persuading the customers to buy them drinks. If you are arrested under circumstances like these, you may be able to get charges reduced to PC 303a charges–which are likely to carry a bit less of a stigma on a criminal record.

    6. Did loiterers have immunity if they reported serious crimes?

    Yes. As of 2020, people were immune from being prosecuted for loitering if they reported any of the following serious offenses to the police:

    In addition to being immune from loitering charges for reporting the above crimes, people were also immune to charges of:

    1. misdemeanor drug offenses,
    2. engaging in, or soliciting, prostitution (Penal Code 647(b) PC),
    3. creating or maintaining a public nuisance (Penal Code 372 PC), and
    4. engaging in lewd conduct (Penal Code 647(a) PC).

    The purpose of granting immunity was to encourage sex workers to report serious crimes without fear that they would be punished too.29

    Call us for help…

    If you or a loved one is charged and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a consultation in the office or by phone.

    We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California. You may also want to visit our page for a general discussion of loitering laws in California.

    Legal References:

    1. Penal Code 653.22 PC – Loitering for the purpose of engaging in a prostitution offense.  (“(a) It is unlawful for any person to loiter in any public place with the intent to commit prostitution. This intent is evidenced by acting in a manner and under circumstances which openly demonstrate the purpose of inducing, enticing, or soliciting prostitution, or procuring another to commit prostitution.”). Senate Bill 357 (2022). Hannah Wiley, California repeals anti-loitering law that sparked debate over decriminalizing sex work, LA Times (July 1, 2022).
    2. Penal Code 653.26 PC – Violation is misdemeanor. (“A violation of any provision of this chapter is a misdemeanor.”)
    3. Penal Code 19 PC  – Punishment for misdemeanor; punishment not otherwise prescribed.  See also California Penal Code 19.2 PC — Punishment for misdemeanor; maximum confinement.
    4. Our California criminal defense attorneys have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier.  We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, Sacramento, and several nearby cities.
    5. CALCRIM 1156 – Jury Instruction for Loitering for Prostitution. LADA Special Directive 20-07.
    6. Penal Code 653.20 PC  – Definitions. (“(c) ‘Loiter’ means to delay or linger without a lawful purpose for being on the property and for the purpose of committing a crime as opportunity may be discovered.”)
    7. See same, subdivision (b). (“(b) ‘Public place’ means an area open to the public, or an alley, plaza, park, driveway, or parking lot, or an automobile, whether moving or not, or a building open to the general public, including one which serves food or drink, or provides entertainment, or the doorways and entrances to a building or dwelling, or the grounds enclosing a building or dwelling.”)
    8. See same.
    9. See same, subdivision (a). (“a) ‘Commit prostitution’ means to engage in sexual conduct for money or other consideration, but does not include sexual conduct engaged in as a part of any stage performance, play, or other entertainment open to the public.”)
    10. Our San Bernardino and Los Angeles criminal defense lawyers have successfully defended numerous clients charged with California sex crimes, including loitering for prostitution.  We represent clients at a number of locations of the California courts, including the Rancho Cucamonga courthouse, the Fontana courthouse, the Chino courthouse, the Pasadena courthouse, the Burbank courthouse, the Glendale courthouse, the Alhambra courthouse, and the Clara Shortridge Foltz Criminal Justice Center in downtown Los Angeles.
    11. Penal Code 653.22 PC
    12. See same, subdivision (b).  (“(b) Among the circumstances that may be considered in determining whether a person loiters with the intent to commit prostitution are that the person: (1) Repeatedly beckons to, stops, engages in conversations with, or attempts to stop or engage in conversations with passersby, indicative of soliciting for prostitution. (2) Repeatedly stops or attempts to stop motor vehicles by hailing the drivers, waving arms, or making any other bodily gestures, or engages or attempts to engage the drivers or passengers of the motor vehicles in conversation, indicative of soliciting for prostitution. (3) Has been convicted of violating this section, subdivision (a) or (b) of Section 647, or any other offense relating to or involving prostitution, within five years of the arrest under this section. (4) Circles an area in a motor vehicle and repeatedly beckons to, contacts, or attempts to contact or stop pedestrians or other motorists, indicative of soliciting for prostitution. (5) Has engaged, within six months prior to the arrest under this section, in any behavior described in this subdivision, with the exception of paragraph (3), or in any other behavior indicative of prostitution activity.”)See also Penal Code 647 PC – Disorderly conduct.
    13. Same. (“(c) The list of circumstances set forth in subdivision (b) is not exclusive. The circumstances set forth in subdivision (b) should be considered particularly salient if they occur in an area that is known for prostitution activity. Any other relevant circumstances may be considered in determining whether a person has the requisite intent. Moreover, no one circumstance or combination of circumstances is in itself determinative of intent. Intent must be determined based on an evaluation of the particular circumstances of each case.”)
    14. See same. See also People v. Pulliam (1998) 62 Cal.App.4th 1430, 1436. (The listed conduct “guides but is not dispositive of whether the loiterer possessed the requisite intent.”)
    15. See People v. Johnson (2010), Cal.App.2nd – 2010 WL 367525, at §2. (“Penal Code section 653.22 plainly and clearly does not say no evidence of behavior indicative of prostitution activity that occurred more than six months prior to arrest may under any circumstances be introduced.”)
    16. See In re J.J. (2009), Cal.App.1st – 2009 WL 4881911, at §7.
    17. See same, at §7.
    18. California Senate Bill 233 (2019).
    19. Julia Dahl, You say loitering for sex, I say just hanging out, Salon, Aug. 30, 2010 (quoting a New York attorney who “calls loitering for prostitution arrests both ‘arbitrary’ and ‘discriminatory.'”).
    20. See People v. West, (1956) 139 Cal.App.2d Supp. 923, 924. (“Entrapment is the conception and planning of an offense by an officer and his procurement of its commission by one who would not have perpetrated it except for the trickery, persuasion, or fraud of the officer. Persuasion or allurement must be used to entrap.”)
    21. Penal Code 653.26 PC – Violation is misdemeanor. (“A violation of any provision of this chapter is a misdemeanor.”)
    22. Penal Code 19 PC  – Punishment for misdemeanor; punishment not otherwise prescribed.
    23. Public Utilities Code 99171
    24. CALCRIM 1153 – Prostitution.
    25. Same.
    26. Penal Code 653.28 PC – Local laws; preemption.
    27. For example, see Los Angeles Municipal Code 41.70 – Nuisance Vehicles – Prostitution.
    28. Penal Code 303a – Loitering to solicit the purchase of alcohol.
    29. California Senate Bill 233 (2019).

     

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