Tips for Attorneys
Human and Civil Rights of
Bruce Nickerson, Attorney
Primer for Attorneys: Lewd Conduct Cases
This primer is designed to introduce attorneys, particularly those in California, but also those in other jurisdictions, to the various ways that arrests made pursuant to police decoy sting operations may be defended. It is particularly relevant in states which have decriminalized sodomy laws, but where the police continue to make arrests under the various public sex i.e. vagrancy statutes.
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 judgment (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 judgment, 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 judgment. 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 judgment. 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 judgment. 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 without urinating, 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.
FOOTNOTES (back to top)
1/ In the 23 years I have practiced law, I have successfully had granted by courts over a dozen Writs of Error Coram Nobis on cases where defendants plead to conduct that was not a crime. Many of these persons were represented by counsel and these found themselves defendants in lawsuits for malpractice.
2/ This is similar to but different from entrapment. Although I always get an entrapment instruction on a decoy arrest (not without a fight usually), this defense based on Element 3 of CALJIC 16.400 requires far less police affirmative conduct. It only needs to be conduct which leads the defendant to the reasonable conclusion that far from being offended by sexual conduct, the decoy is looking for it.
3/ If you ever get a police report where the officer admits to "foot tapping" inside a rest room stall, call me immediately. Foot tapping is a common signal whereby a person inside a restroom stall communicates to a person in an adjacent stall that he is there for a sexual encounter. I have in my possession a written (but unpublished) opinion from the Appellate Department of the Superior Court, Orange County no less, that reversed a jury conviction where the decoy cop admitted to foot tapping to entice the defendant to masturbate through a "glory hole" between the two stalls. 4/ He also may have been arrested for a violation of PC 314.1, indecent exposure and/or 243.4(d)(1), sexual battery. These require special care because they contain the potential for sex registration pursuant to PC 290, which PC 647(a) and (d) do not. 290 registration for PC 314.1 is completely inappropriate for arrests made by decoys (See In Re Reed, (1983) 33 Cal.3d 914, In Re King, (1984) 157 Cal.App.3d 554, and People v. King, (1996) 16 Cal. App. 4th 557) and may be reversible error to impose it. Registration for sexual battery (where the decoy is inviting the grope) is also inappropriate, but is not so clearly error.
5/ I win approximately one third of these "Murguia" motions. However, even those that are lost, uncover such damning evidence of prejudice and questionable law enforcement practices that many jurisdictions have abandoned decoy operations even after successfully defeating a Murguia Motion. The best example of this is the Fresno Police who have not conducted such a sting operation in three years following a Murguia Motion I filed. Although it was ultimately defeated on procedural grounds, the client was ultimately acquitted by Judge Gene M. Gomes (now on the Court of Appeal) in a court trial based on the police report. Judge Gomes also found my client factually innocent pursuant to PC 851.8 so that he may resume his teaching career. 6/ An immediate visit to the site of the arrest, camera in hand, is always important. Doors may be removed, bushes may be trimmed or cut, a thicket may lose its leaves in the Winter, all of which may mean that a setting which made it very unlikely that a member of the public would be offended by the conduct does not now provide such assurances.
7/ This was the alleged fact situation in the Fresno case I court tried before Judge Gomes, who correctly ruled that a solicitation to engage in oral sex to be performed inside a nearby toilet stall was a legal solicitation.
8/ The Superior Court in Modesto, Stanislaus County, granted a demurrer with this fact situation.
The following links may be of interest to Gays and Lesbians and their families:
Gay and Lesbian Family Values
Gay Parent Magazine
Article: Meet the Same-Sex Parents Next Door
Article: 13 Countries Where Gay Marriage is Legal
Information on Gay Rights-Gay and Lesbian Rights-Gay Legal News
Gay & Lesbian Advocates & Defenders
Gay and Lesbian Parents Coalition International
Human Rights Campaign
Federation of Gay Games
The Aids Memorial Quilt
Advice for Surfing the Internet
COMPUTER PERILS FOR THE UNWARY
Many persons of both orientations enjoy surfing the Web for adult erotica. This activity, while legal, is fraught with many dangers for the unwary. The primary danger is that while searching for adult material they may inadvertently get images of children engaging in sexual conduct. This may happen any number of ways.
They may click on a website that advertises legal material and end up with a website that features children. They may be inside an adult website and click on a thumbnail featuring an adult and instead of the adult appearing on the screen, a child appears. They may click on a newsgroup supposedly featuring adult material or even non sexual information--asparagus, for example--and end up with tons of "kiddie porn." Even if none of this is saved, the images remain on your computer and can be retrieved later by the government using special programs not readily available to the general public. Then some police "expert" who is really no more than a whore for the prosecution will take the stand and swear under penalty of perjury that these items on your computer are readily assessable--like taking it from one filing cabinet and placing it in another. This of course is bullshit.
I have experts which will testify that items on the deleted portion of your hard drive are inaccessible to most of you without a special program which usually only the government has. I will then cite certain important Federal cases which require you to know that you can still obtain these images off your hard drive in order to be guilty of "knowingly possessing illegal images." (footnote)
Unfortunately, although I certainly will be able to acquit you, the cost may be high. Expert testimony does not come cheap and is essential to winning these cases.
One thing you can do to partially insulate yourself from the above scenario is to invest in wiping software. In fact if you regularly surf the web for erotica or have ever received any questionable images you must either invest in software to wipe your computer clean or hire a trusted expert to do it for you. Be sure you explain to the expert that you acquired these images inadvertently. Otherwise he may believe that he has a duty to report you to the authorities.
If your interest is in older (18-19) teenagers then you must take other very special precautions. There are many websites which specialize in young adults. The legal ones all contain a statement that they comply with the provisions of 18 U.S.C. 2257 which require them to have for each model proof on file of the person's age when the images were produced. Do not download any images from a site that does not contain this statement. If you mistakenly obtain images from a site which does not have this statement, delete and wipe the images from your computer using either an expert or the programs available.
You may still encounter problems. however. Many legal websites contain images which appear to be younger than 18. My experts have informed me that this is done in two ways: a model is found who is 18 but appears younger, or a legal model is "morphed" to appear younger than he is. The first situation is clearly legal. The Supreme Court in Ashcroft v. Free Speech Association has stated that the government must prove a child was used to create the image. That means that to convict you the government must prove that this particular image was that of a particular child who was under the age of 18 at the time the image was created.
Experts in child development have long been aware that children in modern societies mature two to three years earlier than they did several generations ago. This is because of improvements in diet and living conditions. However, children in Eastern European countries or those in underdeveloped countries mature similar to our ancestors because their societies have not yet advanced nutritionally to where we are. This means that persons can still be found who are in fact 18 but appear to be 15 or 16. My experts tell me that certain of these adults earn quite a good living modeling for photos because of their youthful appearance.
Your problem again will come from unscrupulous and biased so called "experts" routinely retained by the government. These persons frequently arrive in court with a personal agenda resulting from possibly their own childhood sexual molestations, or have occupations which bring them into frequent contact with children who have been molested e.g. homeless shelters, facilities for runaway youths, etc. These persons will take the stand and swear under penalty of perjury that the image is that of a person under the legal age. Unless your attorney has the experts and resources to rebut this testimony, you are dead in the water. I have a stable of experts to counter this biased testimony.
Regarding the second possibility, morphing, where an adult was used for the photo which subsequently was changed digitally to produce the appearance of a younger person, the Supreme Court has not yet ruled on the legality of possessing such images. My recommendation is not to possess these images until the High Court gives its OK.
STING OPERATIONS ONLINE
Another area where unsuspecting persons are entrapped by the police are sting operations designed to catch those persons who enjoy communicating with teenagers. If you enjoy communicating with teens here are some important rules: if the person is under the age of 18 do not discuss sexual matters with this person at all. Particularly if the person initiates a sexual conversation after identifying himself or herself as being under 18, immediately shift the conversation to non-sexual matters, and if the person persists, terminate the conversation and do not contact that person again. There is an overwhelming likelihood that the "youth" is a decoy cop trolling the net for unsuspecting persons.
If you wish to mentor a person under the age of 18 this must be done with the greatest of care. Do not, I repeat, do not agree to met this person if you have previously discussed sexual matters over the net. It is likely the person is a cop and you will be arrested and charged with "attempted child molestation" simply for showing up. To repeat, if you have previously discussed sexual matters over the net with person under the age of 18, stop immediately, wipe all traces of the conversation from your computer, terminate the relationship, and never, never agree to meet the person. (You are not out of the woods yet because the conversation is likely to be on the other person's computer which may be found by the teen's parents who are likely to call the police if in fact the computer doesn't belong to the police in the first place).
Suppose you truly desire to mentor a teenager you have met on the net who is under 18. (see footnote below) Do not discuss sexual matters on the Web. Agree to meet in a public place, with many other persons around, such as a restaurant, and do not bring anything which might be construed by the government as "preparation" for a potential molest. Never, ever step over the boundary between mentor and lover even if the feelings are mutual. Remember, in most states in the US, the age of consent is 18; that means that the young person cannot legally consent to sexual relations and you, the adult, will be prosecuted.
FOOTNOTES: (back to top)
KNOWING POSSESSING ILLEGAL IMAGES (back to top)
In closing arguments before a celebrated judge, called out of retirement to hear this case involving a nationally known gay newspaper reporter, I countered the government's "file cabinet" analogy with one of my own: Having these items on the deleted portion of my clients' hard drive where they are retrievable only using a program the government possesses is analogous to a person receiving an unwanted photo in the mail, burning it in his fireplace, and having the government come in the next day, reassemble the carbon atoms using a program unavailable to the general public, recreating the picture, and then claiming that the person still "possessed it." The judge not only acquitted my client but found him factually innocent as well. This of course resulted in a total destruction of all records; afterwards my client was able to truthfully say that he had never been arrested for that offense.
Absolutely do not attempt to "mentor" a teen under 14. If that is your desire go through an organization like Big Brothers where you will meet the youth's parent first. Be aware that penalties for sexual activity with a person under the age of 14 increase exponentially. The cops know this, and frequently will pose as a 15 or 16 year old and then, at the last minute (after you have agreed to meet) change the age of your mythical friend to 13. If this happens--if your "friend" suddenly confides in you that he is only 13-- you must know that he doesn't exist and his persona is being created by law enforcement.
Bruce Nickerson © 2002-2016 | BruceNickerson@BruceNickersonAttorney.com