CONVICTION FOR PROSTITUTION: CRIMINAL AND IMMIGRATION CONSEQUENCES 

By Roman P. Mosqueda, Esq.

            Any person may be convicted of soliciting, or agreeing to, or engaging in, any act of prostitution, under section 647(b) of the California Penal Code, a misdemeanor.

            Soliciting, agreeing to, and engaging in, any act of prostitution constitute separate counts of criminal misconduct.  But no agreement to engage in an act of prostitution shall constitute a violation of section 647(b) of the Penal Code, unless some act is done in furtherance of the commission of an act of prostitution.

            And as used in the California Penal Code, “prostitution” includes any lewd act between persons for money or other consideration.  It includes lewd acts short of sexual intercourse.  A person need not be a “professional” prostitute to be convicted under Section 647(b) of the Penal Code. 

Massage Therapist’s Violations of Prostitution Statute:

            For a massage therapist to violate section 647(b) of the Penal Code, he or she must solicit, agree to engage in, or engage in, any lewd act with another person for money or other consideration, such as a gift.

            There is no violation of the prostitution statute, if only a regular massage is done, without any lewd act, no specific intent to engage in any lewd act, nor to solicit any lewd act.

            Undercover vice detectives remove all of their clothing because female masseuses in some illegal massage parlors/chiropractic clinics reportedly believe that undercover police officers will not remove all their clothing while conducting undercover vice operations.

            Detectives also know that the female masseuse  often relies on the male patron to make the first physical contact or sexual suggestion, such as rubbing her leg or breast, and offering “tip” for a very special massage, a “happy ending”.

            But if the detective cannot convince the female masseuse to do the lewd act, he usually convinces her to agree to do it by giving an initial “tip”, gets a commitment to meet and do it at a later time, and gets her do initial sexual contact in furtherance of the agreed commission of prostitution.

            Thus, a female masseuse may be the subject of a “sting”, undercover operation, in which enough evidence on agreeing to, and even engaging in, any act of prostitution could be gathered by audio tapes and testimony of the undercover detective or police.

Other Municipal Code Violations: 

            The massage therapist/masseuse way also violate the following Municipal Code regulations:

            1.   city business license requirement;

            2.            massage practitioner permit requirement;

            3.            massaging the private parts of a patron violation;

            4.            accepting “tips” not in the confines of the front lobby of the business violation; and

            5.      sexually oriented/adult business permit requirement for exposure of his/her private parts. 

            The vice detectives and the City Attorney or District Attorney usually add the aforesaid Municipal Code violations as additional counts to the Misdemeanor Complaint Warrant, as misdemeanors. 

Sentence On Section 647(b) Penal Code Violation: 

            For a first time offender, the defendant charged with violation of agreeing to engage in an act of prostitution, of engaging in an act of prostitution, and of violations of the Municipal Code on permit requirements and other violations, may plea bargain to plea guilty or no contest to a single count of agreeing to engage in an act of prostitution, if there is evidence of commission of some act in furtherance of the agreed act of prostitution, and if the Assistant City Attorney or Deputy District Attorney agrees to such plea and dismiss the other counts on violations of the prostitution statute and of the applicable Municipal Code.

            The prosecutor may agree to suspension of a three-year sentence, three-years of informal probation, plus fines of $100 for State Restitution and $20 as Security fee, and penalty assessments, or payment of about $400 to the Victim/Witness Emergency Fund, in lieu of penalty assessments.

            The sentencing Judge may accept the plea and disposition, or render a different sentence, but usually agrees to the disposition arrived at by the defense counsel and the prosecutor.

            Conditions of the probation usually include: no violation of any law, AIDS test, prohibition from working as a massage therapist or masseuse or escort, modified street terms, etc. as required by the Judge.

Immigration Consequence of Prostitution Conviction: 

            Unless a person is convicted of a felony for conducting a prostitution business, under the pandering statute (Section 266i of the Penal Code), a misdemeanor conviction under Section 647(b) of the Penal Code is not an “aggravated felony” under Section 101(43)(K)(i) of the Immigration and Naturalization Act, which refers to owning, controlling, managing or supervising of a prostitution business.

            But, an alien who is convicted of “prostitution” may have problem adjusting to lawful permanent resident status; and the conviction or commission of prostitution may affect his/her application for naturalization, because it is a crime involving moral turpitude.

            Indeed, any alien who has engaged in prostitution within 10 years of the date of application for a visa, admission, or adjustment of status  is inadmissible, under Section 212(a)(2)D)(i) of the Immigration and Naturalization Act, unless a waiver is granted. 

            Waiver of such inadmissibility is provided by Section 212(h) of the Act for an immigrant alien who is inadmissible only under such subsection, or the act of prostitution occurred more than 15 years before application for admission; the admission would not be contrary to the welfare, safety or security of the United States; and the alien has been rehabilitated.

            Or in case of an immigrant who is the spouse, parent, son or daughter of a U.S. citizen or lawful permanent resident, the alien’s denial of admission would result in extreme hardship to the U.S. citizen or lawful resident spouse, parent, son or daughter of such alien.

            And a lawful permanent resident to be eligible for naturalization must be a person of good moral character, under Section 316(a)(3) of the Immigration and Naturalization Act.

            Although it is the world’s oldest profession, prostitution is still criminalized in California.  Not so of adultery between two consenting adults.  As the biblical passage goes: “Let him without sin cast the first stone at her.”