If you or a loved one is being charged with a violation of California Penal Code § 315, what must the jury or judge find to convict? What are the defenses? What is the punishment? How can this charge be resolved on terms that are less stigmatizing?
About This Article Briefly: Penal Code § 315 makes it a misdemeanor to own, operate or work in a home or business where prostitution takes place. This can be a “massage parlor,” topless bar or any other place. Lack of knowledge or the business going on is probably the best defense.
To convict someone of violating § 315, the jury or judge must find beyond a reasonable doubt that defendant “willfully kept a house of ill-fame . . . resorted to for purposes of prostitution or lewdness . . ., or who willfully resides in such house” and at the time, the building was used for prostitution. In other words, defendant must know that prostitution was occurring in the house, aka a “whore house.” Penal Code § 315 can also apply to a strip club, bar or massage parlor.
Defendant does not have to be the owner, lessor or renter of the house or business. Defendant can also be anyone who works there, lives there or otherwise derives some benefit from the house and knows that prostitution and / or lewd acts regularly take place there and people visit the house or business for that purpose.
Defenses to this charge commonly involve entrapment or “blackmail,” but these defenses are not easy to prove. To prove entrapment, one must show that police coerced or used overbearing tactics to induce someone to commit a crime. In the context of prostitution, the typical fact pattern involves a flirty conversation wherein the john and the prostitute say somewhat playful things to each other from the outset and then discuss exchanging money in return for specific sex acts. There is zero coercion or overbearing tactics.
Blackmail on the other hand, involves threatening adverse legal consequences, i.e., being reported to the police, if a defendant does not perform an illegal act against his or her will. Like entrapment, this would be very unusual in a prostitution case, although it could in fact theoretically happen, particularly if a police officer threatened to report a prostitute, who is not a U.S. citizen and in the United States illegally, to immigration authorities unless she performs certain sex acts in exchange for money.
A false accusation also certainly could be a defense. In other words, there was no sex and no discussion of exchanging money for sex. This defense could also include a defense that defendant did not know that the house, bar, strip club or massage parlor engaged in prostitution or lewd acts.
Lastly, when the facts support this, there may be a coerced confession, again perhaps involving a threat by police to report someone to immigration authorities if defendant is not a U.S. citizen and not here in the United States legally, or to report someone to their probation or parole officer if defendant is on probation or parole.
The punishment for violating Penal Code § 315 involves a maximum of 180 days in county jail and/or a fine of $500, plus penalties and assessments (that could push the total owed to close to $2,400). More significantly, however, is the punishment that the judge can order an injunction that closes the bar, strip club or massage parlor, although the majority of its business may be entirely legitimate.
In addition, if defendant is a licensed massage therapist, a conviction for violation of Penal Code § 315 could result in suspension or even revocation of that state license. There certainly can also be immigration consequences.
While such punishment indeed is significant, judicial diversion under Penal Code §§ 1001.95 and 1001.96 certainly should be requested if defendant has not had a form of diversion in the past. Judicial diversion is a request that the judge suspend judicial proceedings for up to two years while defendant completes certain obligations from the judge such as performing community service, taking an HIV / AIDS education and awareness class (including an HIV / AIDS test) and obeys all laws.
If defendant fulfills all the conditions ordered by the judge and stays out of trouble for the time period ordered, the case is dismissed under Penal Code § 1385 (in the interests of justice), permitting defendant to then seek sealing of the record under Penal Code § 851.91(a), which is an order to destroy the police report and erase or delete the record of the case filing from one’s Department of Justice (DOJ) record.
For more information about Penal Code § 315, please click on the following articles: