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supposed LEWD conduct, fighting it

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dcfan

Junior Member
Los Angeles, California
I need help. I was recently arrested and charged with lewd conduct in Los Angeles. According to the police, they saw me having sex with several guys in a wooded area of Elysian Park, but the truth is that I was only walking through the area while others were engaging in sex. When the police came in, the ones having sex ran and so they grabbed me.

What do I do? I have so many questions.
1) Do I plead Not Guilty? If I plead Not Guilty and they convict me anyway, will the penalty be worse than if I had just plead Guilty?
2) Is it possible that they will send me to jail for this, my first offense, especially if I try to plead Not Guilty?
3) Will they notify my employer (a college), and could my college fire me?
4) Isn’t it true that for a lewd conduct charge to stick, there has to have been a third party present who was offended OTHER than the arresting officer(s)? I’ve heard this but don’t know if it’s true. If it’s true, does that mean the charge will be thrown out?
5) Will I be questioned as to my sexual orientation or history, or asked whether I’ve ever had sex in that park before? If so, should I lie about these things?
6) Can anyone refer me to an attorney? Other than attorney, is there a resource I should contact that takes an interest in bogus ‘lewd conduct’ arrests here in Los Angeles?
7) Based on what I’ve shared, is there any chance the charge might be thrown out? What does that even mean exactly?

And in general, WHAT SHOULD I DO to fight this?

Thanks so much for any help
Dcfan
 


Happy Trails

Senior Member
dcfan said:
Los Angeles, California
I need help. I was recently arrested and charged with lewd conduct in Los Angeles. According to the police, they saw me having sex with several guys in a wooded area of Elysian Park, but the truth is that I was only walking through the area while others were engaging in sex. When the police came in, the ones having sex ran and so they grabbed me.

What do I do? I have so many questions.
1) Do I plead Not Guilty? If I plead Not Guilty and they convict me anyway, will the penalty be worse than if I had just plead Guilty? ***If you plead guilty it's a misdemeanor. If you're found guilty it's a misdemeanor. They may have you pay court fees if you go through a jury trial. I'm not sure about California though.
2) Is it possible that they will send me to jail for this, my first offense, especially if I try to plead Not Guilty? ***Of course it is possible, I don't have all the facts.... Such as what was the age of the other people involved... What the officer observed... A misdemeanor can carry jail time and/or a fine.
3) Will they notify my employer (a college), and could my college fire me? ***Can't answer that. It will be a matter of public record, assuming you are over the age of 18.
4) Isn’t it true that for a lewd conduct charge to stick, there has to have been a third party present who was offended OTHER than the arresting officer(s)? I’ve heard this but don’t know if it’s true. If it’s true, does that mean the charge will be thrown out? ***I think you are thinking of § 314. (See below)
5) Will I be questioned as to my sexual orientation or history, or asked whether I’ve ever had sex in that park before? If so, should I lie about these things? ***Talk to an attorney and take his/her advice. You shouldn't offer any information without advising an attorney.
6) Can anyone refer me to an attorney? Other than attorney, is there a resource I should contact that takes an interest in bogus ‘lewd conduct’ arrests here in Los Angeles? ***I have no referrals, try the yellow pages or hit the red rectangular box beneath your post. Try using Google.
7) Based on what I’ve shared, is there any chance the charge might be thrown out? What does that even mean exactly?***If the magistrate makes a finding that there are grounds for dismissal, the finding shall be entered in the record and the charges dismissed.

And in general, WHAT SHOULD I DO to fight this? ***Hire an attorney.
Thanks so much for any help
Dcfan
From CA statutes:

§ 314. Indecent exposure [section 314 only if committed after 9/15/61]
Every person who willfully and lewdly, either:
1. Exposes his person, or the private parts thereof, in any public place, or in any place where there are present other persons to be offended or annoyed thereby; or,
2. Procures, counsels, or assists any person so to expose himself or take part in any model artist exhibition, or to make any other exhibition of himself to public view, or the view of any number of persons, such as is offensive to decency, or is adapted to excite to vicious or lewd thoughts or acts, is guilty of a misdemeanor.

***It sounds like you were charged with the citation below.

§ 647. Every person who commits any of the following acts is guilty of disorderly conduct, a misdemeanor:
(a) Who solicits anyone to engage in or who engages in lewd or dissolute conduct in any public place or in any place open to the public or exposed to public view.

***I'm not an attorney, but I think you should get one.
 
offend others

I need to read over your post again to see about giving you any more information but the offend other part is wrong in public. the offend other part was meant for in private places. you are guilty according to the law if you have sex in public OR offend others. the keyword being OR
 
should you lie?

No don't lie to them in fact don't tell them a thing. Under no circumstances should you talk to any law enforcement officer. you'd be smart to not even tell anybody else in these forums, let them find out on thier own. nobody can offer you any leniency except for the DA and he's not going to do that if you give anything for free to anybody else that could later get back to him. giving anything to them without it WILL not help anybody it can ONLY hurt. once the DA gets ahold of it he has no reason to offer any leniency after having except matters relating to the time in court, supenaing any withnesses, double pay for officers testifing, etc.
 
walking through

did you have clothes on? you might want to bring that up in the court if you did. if you didn't then you might have a problem.
 

You Are Guilty

Senior Member
pittsmark6 said:
did you have clothes on? you might want to bring that up in the court if you did. if you didn't then you might have a problem.
That might be the understatement of the year.


Is this park known as being a homo hangout? Or was this sort of a one-time thing where a bunch of naked, greased-up guys decided to have sex in a public park?
 

calatty

Senior Member
First, get a lawyer. You can call the LA County bar association and ask for a referral to a criminal law specialist. Then you can look them up on the California State Bar website to check their qualifications. Then just do what he or she says you should do. Generally you plead not guilty, and then if the DA offers a favorable plea bargain, you can plead guilty. It is very unlikely you will go to jail. In general, the plea bargain sentence is more favorable than the sentence you will get after conviction. Your sexual orientation and what you have done in the past are irrelevant, and no one is going to ask you about them. No one will notify your employer. No, it is not true that a third party has to be offended. The requirement for conviction is that that defendant knew or should have known that other people could observe him, and could be offended by the conduct. Since you were in a public park, that requirement would be satisfied. You have not provided any reason for the case to be thrown out. No one is going to believe your version of what happened over the police version. Just get an experienced lawyer and get the best deal you can.
 

dcfan

Junior Member
Thanks...

Thanks everybody for your insights.

Calatty, your words did reassure me somewhat regarding my employer and jail time, and I thank you for that. I know you don't have a crystal ball, but in your educated opinion...when you said that the plea-bargain sentence is usually better than the post-conviction sentence, did you mean to imply that the post-conviction sentence could carry jail time? I am so scared of that, that I could probably be made to plead guilty just by the thought of going to jail. Do they tell you what both sentences would be before you choose, or do you have to choose blindly?

About the offended third party, that seems so stupid to me that it is still a crime even if there is nobody hurt or complaining about it, but I guess there are a lot of stupid things about the law. It also seems appalling that no hard proof is needed. I guess a police officer's word is considered absolutely infallible, and "innocent until proven guilty" really just means "innocent unless a police officer says you are guilty"?

Do you think any of the following factors might mitigate?.... 1) Although it was a public park, it is an urban wilderness park, by which I mean that the area in question was secluded, difficult to access (ducking and pushing branches aside to enter), frequented by nobody except for cruising homosexuals. It's not used for hiking or any kind of recreation, and as the police dept itself well knows, it's 100% populated by men having sex. 2) As my pictures of the area will also indicate, it is really quite impossible for the police to have seen who was doing what if they were at any kind of distance from this little alcove/clearing.

Don't worry, I'm getting a lawyer. But I just like to check what he may say against other people's experiences.

Thanks again...
 

calatty

Senior Member
You will be told what your "exposure" is, i.e. what you maximum sentence would be if you were convicted after a trial, when and if you are offered a plea. Jail time after conviction is unlikely, but always possible. I don't know what you mean by "mitigate." Either you will be found to have committed the offense or not, and if the police say they saw you, you will not be able to convince a jury that they didn't, particularly if, as you say, sex is the only reason people go there. As far as it being stupid to prosecute this behavior, I disagree. Public parks are reserved for the general public to enjoy hiking and picnicing with friends and family, not for men to have anonymous sex with each other, and hikers and families should not have to worry that they will encounter an orgy if they stray off the beaten path.
 
calatty said:
You will be told what your "exposure" is, i.e. what you maximum sentence would be if you were convicted after a trial, when and if you are offered a plea. Jail time after conviction is unlikely, but always possible. I don't know what you mean by "mitigate." Either you will be found to have committed the offense or not, and if the police say they saw you, you will not be able to convince a jury that they didn't, particularly if, as you say, sex is the only reason people go there. As far as it being stupid to prosecute this behavior, I disagree. Public parks are reserved for the general public to enjoy hiking and picnicing with friends and family, not for men to have anonymous sex with each other, and hikers and families should not have to worry that they will encounter an orgy if they stray off the beaten path.
Oh man, does anyone have a ten foot pole? Calatty, he's also been busted for oral sex in a car. Read his other post. DC, it seem you might be a little out of control when it comes to risky behavior.
 

dcfan

Junior Member
Why is my lawyer advising me to plead No Contest?

So I got a lawyer who specializes in lewd conduct cases, but so far after several thousand dollars, I seem to have nothing to show for it. The DA offered me $150 fine or 5 days in jail, a year of probation, a stay-away from the place, and a charge of lewd conduct. Isn't this what I would have been offered without having paid for a lawyer? It doesn't seems like any plea bargaining has taken place. I'm not being offered a lesser charge or an alternate sanctioning program, nor has my lawyer filed any sort of motion to dismiss.

Strangest of all, he seemed to think I should plead no contest, but when I asked if there were any drawbacks to going to trial (like a stiffer sentence) he said no. And with lewd conduct on my record I could lose my job. I thought my lawyer was going to pressure the DA to drop the case, not pressure me to do so! And all along, people have been telling me to fight it to the end, so it's very weird that he's now saying I should give up to save a couple of thousand dollars in legal fees if my job/living is on the line. Is it time for a new lawyer, or does anyone see a method to his madness?

Also, some people have told me that if I go ahead with a trial and lose, the DA may ask for jail time instead of a fine.

is that something I would know about before choosing to go ahead with a trial, or is it a "surprise" that would not be disclosed until the end? In other words, do I get to know fully the consequences I am choosing between?

As far as something I am not telling, the facts are very simple. I was walking through the trails of a park, which yes, is known to be a homo hangout. I entered a clearing where 2 guys were having sex. I wasn't interested and left the clearing but the police arrived seconds later, tried to arrest the 2 guys (but they ran and the police didn't chase) and arrested me because they saw me leaving that immediate area. I returned another today to photograph the area, and the pictures show it's impossible for anyone to have seen who was doing what in the clearing from even a dozen paces away, but they said they "saw" me and that all of us were masturbating (by the way, the other 2 guys were ****ing, so I KNOW the police are fabricating it all).

My lawyer said that in his opinion, the place is NOT reasonably exposed to public view and that there is not a reasonable expectation that we could be accidentally seen by the public, however he still seems to think I will lose anyway. he says the jury will be so unfavorably impressed with the fact that there were multiple men involved, that they will vote guilty out of moral repulsion.
 

CdwJava

Senior Member
No amount of money is going to make a dog of a case go away. You may pay a lot of money, but if the case against you is tough, then even the late Johnny Cochran wouldn't be able to get you off.

And in case you weren't aware, a "motion to dismiss" is often pointless. You have to make the motion on some kind of grounds ... what would those grounds be? And they are usually NOT granted.

Your attorney may be a realist. Maybe he knows that your case is not a strong one from the defense side. But, ultimately he works for you. YOU tell him what you want to do and you hope that he can make the best possible defense for you. And if you aren't satisfied you can go with another attorney, but you risk getting a dog of an attorney or one that won't have time to ramp up on the case before you are compelled to go to trial. A new attorney does NOT necessarily mean more time.

- Carl
 

stephenk

Senior Member
"I thought my lawyer was going to pressure the DA to drop the case,"

Based upon what? you were caught in an area notorious for public sex. The DA has no incentive to drop the case. Be lucky you have been given an offer that does not include mandatory jail time.

since you seem to like having sex in public be prepared to lose your job. The lewd conduct charge is a moral turpitude crime that typically bars any type of teaching job.
 

calatty

Senior Member
Misdemeanors carry up to six months in jail, so $150 fine is a great deal. You should be thanking your attorney, not disparaging him. If you are arrogant enough to disbelieve your attorney and think a jury of your peers will buy your story that you were just an innocent hiker, then take it to trial.
 

Happy Trails

Senior Member
calatty said:
Misdemeanors carry up to six months in jail, so $150 fine is a great deal. You should be thanking your attorney, not disparaging him. If you are arrogant enough to disbelieve your attorney and think a jury of your peers will buy your story that you were just an innocent hiker, then take it to trial.
I totally agree with you!
 

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