Penal Code Section 647(b). Prostitution: Agreeing to Engage in Act
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Elements of the Crime
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Example Case
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Punishment
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Maximum / Worst Case Scenario
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Typical Probationary Sentence
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Defense Strategy
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Statute for Reference
1. Elements of the Crime
In accordance with CalCrim 1155, to prove you guilty of agreeing to engage in act of prostitution in violation of Penal Code section 647(b), the prosecution must prove the following:
1.1. Agreement. They must prove you agreed to engage in an act of prostitution with someone else.
An act of prostitution means sexual intercourse or a lewd act with someone else in exchange for money (or some other compensation). A lewd act means touching the genitals, buttocks, or female breast of either the prostitute or customer with some part of the other person’s body for the purpose of sexual arousal or gratification. To be clear, the prosecution doesn’t have to prove you actually engaged in sexual intercourse or a lewd act; they just have to be able to prove you agreed to have sexual intercourse or perform a lewd act for compensation.
As evidence, the prosecution, for example, may call as a witness an undercover officer who testifies that he and an alleged prostitute verbally agreed to engage in an act of prostitution.
1.2. Intent. They must prove you specifically intended to engage in an act of prostitution with that person.
The prosecution does not need to show an actual act of prostitution occurred to prove a person intended to engage in an act of prostitution. (Otherwise, the undercover officer would have to go through with the sexual act to arrest the suspect.) To prove intent, they will rely on the circumstances of your interaction and what statements, if any, you made. If the conversation clearly indicated money for sex or you admitted your intent was to engage in an act of prostitution when later questioned by police, then a reasonable inference can be drawn that you, in fact, intended to engage in an act of prostitution. But an admission isn’t necessary to show intent; the prosecution can prove intent by showing other facts like having an officer testify that you showed up at a motel room (based on a fake escort ad) with money, condoms, and a cell phone on you with text messages discussing the terms of meeting at he motel room for sex in exchange for money.
1.3. Further Act. In addition to showing there was an agreement, they must prove you did something to further the commission of an act of prostitution.
There must be conduct beyond simply an agreement. That conduct may happen before, after, or at the same time as the agreement to engage in prostitution.
For example, further conduct may include an actual exchange of money. Certainly, any kind of intimate physical touching would qualify as an act in furtherance of the agreement. If your case lacks any further conduct beyond an agreement, the prosecution will struggle to prove all the elements of the crime at trial.
2. Example Case
Police are surveilling a motel where alleged incidents of prostitution frequently occur. They see a gentleman leave room 101 with a woman in lingerie at the door. They stop and question the man, who admits to having sex in exchange for money with the woman in Room 101. He says he responded to an escort ad online and provided the officers with the phone number from the ad. The officer then texts the same phone number seeking sex. A person replies and provides details about how much it will cost to meet up for 30 minutes or 1 hour. The text message exchange includes vulgar sexual details about what sexual experiences are included based on the price provided. The text conversation also says to go to Room 101 at the same motel the officer is surveilling. He goes to Room 101. The lady in lingerie opens the door. She’s alone. She has a lot of condoms and wet wipes out on the bed. The officer reveals his identity and asks to look through her cell phone. She agrees. Inside the phone, he sees the explicit text conversation that he had previously.