Metropolitan News-Enterprise


Tuesday, October 23, 2007


Page 1


Appellate Panel Throws Out Sex Solicitation Conviction


By STEVEN M. ELLIS, Staff Writer


A conviction of disorderly conduct for soliciting lewd conduct in a public place requires a showing that the defendant knew or should have known that third persons who might be offended by the conduct were likely to be present at the time the conduct was to occur, the Fresno Superior Court Appellate Division has ruled.

In a modified opinion dated Sept. 13 and published yesterday after the Fifth District Court of Appeal declined to review it, the panel reversed the decision of Fresno Superior Court Judge W. Kent Hamlin and acquitted Stephen M. Lake. The prosecution, the panel said, failed to introduce evidence as to when the act was to occur, thereby requiring the jury to speculate in order to find that Lake knew or should have known that other people would be in the vicinity at such time.

The case was one of a number filed as the result of a law enforcement decoy operation targeting engagement and solicitation of unlawful sexual activity in Fresno County’s Roeding Park. Defendants in the sting were either accused of engaging in lewd or dissolute conduct, primarily in park restrooms, or of soliciting such conduct in a public place.

The arresting officer testified he approached Lake in the park at around 7:42 p.m. in response to a nod by Lake. During the course of their conversation, Lake told the officer several times that he just wanted to “get it on” inside the park, and said that they could go “just about anywhere” but not the nearby restrooms.

The officer testified that Lake said that he wanted to wait until after dark so they would not get caught, so they separated and Lake drove off. About an hour later, the officer said, he saw Lake parked near the restroom, at which time there were still people in the park.

The officer arrested Lake for misdemeanor disorderly conduct in violation of Penal Code Sec. 647(a), which prohibits engaging in or soliciting “lewd or dissolute” conduct in a public place, or a place otherwise open to the public or exposed to public view.

Before the case was submitted to the jury, Lake moved for acquittal, arguing that the prosecution had presented no evidence that anyone who might be offended would be present at the time the solicited act was to occur, and that the decoy operation, which targeted only male-male sexual activity, constituted invidious discriminatory prosecution.

The trial court denied the motion but, on appeal, the panel held that the trial court should have granted it.

Writing for the panel, Presiding Judge Donald S. Black said that the statute presented a difficulty in determining exactly what the crime required: whether the defendant knew or reasonably should have known that someone who could be offended by the requested conduct, might be present, was likely to be present, or would be present.

Pointing out that this difficulty was illustrated by at least eight different versions of the standard jury instruction over the years, Black concluded in light of caselaw that the proper standard was proof beyond a reasonable doubt that the defendant knew or reasonably should have known that someone was likely to be present who could be offended when the act was actually to occur.

He said that the conversation between Lake and the officer was completely uncertain as to the time and place where the activity was to occur. As a result, there was no evidence as to whether other people would likely be in the vicinity when the proposed conduct was to actually occur, and it was impossible for a reasonable jury to conclude without speculating that Lake knew or reasonably should have known that someone was likely to be present, particularly when Lake had explicitly maintained to the officer that he did not want to “get caught.”

Noting that the court did not endorse Lake’s conduct, Black clarified that the panel’s holding did not mean that the prosecution could not succeed in future solicitation cases, or that the prosecution needed to prove that third parties would actually be present at the time and place solicited acts were to occur – merely that the defendant knew or had reason to know that third parties who would be offended by the conduct were likely to be present at such time.

Concluding that the prosecution’s failure to introduce substantial evidence of this element required acquittal, Black said that the panel therefore did not need to consider Lake’s claim of discriminatory prosecution.

Lake’s attorney, Bruce W. Nickerson, pronounced himself “ecstatic” at the outcome, calling it an “extremely eloquent, accurate and good policy statement of what the jury instruction should be.”

He also predicted that, when finally forced to confront the issue, courts would determine similar enforcement operations against male-male sexual activity to be discriminatory.

Representatives of the Fresno County District Attorney’s Office were unavailable for comment.

Black was joined in his opinion by Judges W. Kent Levis and Debra J. Kazanjian.

The case is People v. Lake, JAD05-07.


Copyright 2007, Metropolitan News Company