What is Considered Solicitation in California?
While the rules undoubtedly change based on the particular case, in general, the solicitation element is satisfied "when the targeted persons are asked to take some action the target would not have taken but for the demand." People v. Gallo, (2006) 144 Cal.App.4th 776, 787-788. In determining whether or not a threat has been made, all the circumstances surrounding the conduct, including the relationship between the parties, the manner of the conduct, and the context in which the statements were made, must be considered. In re Jeremy , (1980) 104 Cal.App.3d 1008, 1013. Furthermore, the purported demands made must be capable of reasonable eliciting a fearful response in the victim. Ibid. The question of whether the communication reasonably created fear – or merely a desire to avoid harm – is generally a jury question. People v. Shiver, (2003) 110 Cal.App.4th 986, 1000. However, in this current age, it is prudent to remember that solicitation by means of email or internet communications will qualify as solicitation because people fear those types of communications as well.
Punishments for Solicitation Crimes
The penalties for solicitation offenses vary according to the applicable offense, and whether aggravating factors apply. In many cases, solicitation is charged as a misdemeanor, but felony charges are possible for crimes that involve violence or other aggravating factors.
If solicitation is charged as a misdemeanor, the maximum punishment includes up to six months in county jail, three years summary probation, restitution and fines up to $1,000.
Felony solicitation may be penalized by up to three years in state prison, $10,000 in fines, five years of probation that may or may not include mental health treatment, and restitution (though the court may indemnify the defendant against restitution if this occurs).
In addition, whether felony or misdemeanor, defendants convicted of solicitation face mandatory registration as a sex offender in compliance with Penal Code Section 290.
Aggravating Factors
Several factors can heighten the severity of these offenses. These include:
Even when a defendant is charged with solicitation of a nonprostitute, if the defendant forced or persuaded the victim to commit a sex crime, sexual assault, or human trafficking, the crime is subject to an increased penalty (i.e., the solicitation of murder or rape generally carries a life sentence).
Defenses to Solicitation Crimes
If you are accused of solicitation charges in California, there are several defenses that can be used to fight those charges.
False Allegations
In some instances, a person finds themselves being wrongfully accused of committing solicitation. In these cases, the person might be in the wrong place at the wrong time, or they may be an innocent third party who has been brought into the situation. If you have been accused of sexual solicitation, it is crucial that you contact a qualified criminal law attorney in order to mount the best defense possible for your case.
Evidence
One common defense to solicitation charges is that there was not evidence available to prove that the solicitation in fact occurred. For instance, maybe the individual was not present at the time the solicitation occurred. Or it could have been a case of mistaken identity. Whatever the scenario, when the prosecution cannot prove that the solicitation in fact happened, the defendant must be found innocent.
Consent
When it comes to some solicitation offenses, such as trafficking a person for sexual purposes, there are other legal defenses available to the defendant. Perhaps the individual who was solicited for sexual favors did so willingly. This would nullify the solicitation and eliminate any charges of human trafficking.
Entrapment
Another common defense against solicitation offenses is entrapment. This is often used when a police sting operation led to the arrest of the defendant. If a defendant has been arrested for solicitation trading sexual favors over the Internet, the individual may have been lured into the situation or threatened with illegal action from the police. In these situations, there was no solicitation occurring in the first place and the individual may have been tricked into soliciting the officer online.
Prostitution vs. Solicitation
While many people use the terms prostitution and solicitation interchangeably, there are legal distinctions made between the two that can change the charges facing a defendant considerably. An individual does not need to engage in sex acts to be charged with solicitation; simply agreeing to pay someone for a sexual act is enough to bring charges. In California, this is considered prostitution, or working as or hiring a prostitute under Penal Code 647(b).
Having a skilled defense team by your side will better equip you to fight the charges that are against you. Working with a lawyer who understands the ins and outs of solicitation laws can mean the difference between harsher penalties or being found innocent.
Impact of the Solicitation Laws on California Businesses
The impact of solicitation laws on businesses in California is substantial, particularly for organizations involved in marketing and sales activities. Depending on the industry, specific rules may apply to interaction with prospects or targets, affecting how companies approach potential customers and the manner in which they collect contact data. Violations of these laws can lead to unnecessary legal entanglements for organizations, which are better off complying with the regulations.
There are a few compliance strategies companies can use to stay on the right side of the law . One of the most effective methods is to restrict marketing activities to areas in which the organization is located, to target the audience that resides there. While this will not eliminate business risk, it can reduce exposure. Additionally, limiting the hours in which a given area is targeted can be helpful in this regard, as many solicitation laws contain guidelines regarding what times organizations can solicit prospects.
For many industries, training is a core compliance concern. Regularly employing training sessions for employees about compliance can help avoid mistakes that lead to costly legal action. Combined with enhanced monitoring of operations, these practices lead to the best results for compliance efforts.
Recent Developments and Trends in California Solicitation Laws
In the last couple of years, California courts and the legislature have taken steps to clarify and shape the rules surrounding solicitation of clients and prospective clients. In June 2015, the Supreme Court of California published its decision in Fenning v. Glenfed Design/Build, Inc. (May 29, 2015, H040072) ___Cal.App.4th. The Court held that when a construction contract does not expressly protect a contractor’s right to solicit a client – even where the contract includes a non-solicitation provision – the contractor is free to solicit past, present, and prospective clients, and need not compete through bidding. This decision aligns with the intent of the California Legislature, which amended the former Business and Professions Code ยง 7157 (subsection (c)) to read: "It is not a violation of subdivision (a) or (b) for a licensee or employee of a licensed contractor to enter into a contract with a property owner that allows the licensee or employee to provide to that property owner goods, services, or materials in violation of subdivisions (a) and (b)." (Emphasis added.)
Previously, California case law made it difficult to avoid inquiries into how the contract was negotiated, and created an extraterritorial doctrine which discouraged doing business in California while allowing larger businesses to prevent new competition from small businesses who worked for them.
With these recent measures, new issues are likely to arise, and the complications of solicitation laws may continue to catch unaware business people in California.
Case Examples for California Solicitation Law
A good way to consider the ramifications of California solicitation laws is through real-life examples. The cases below highlight how the law is applied and can give context to the scenarios found in day-to-day business.
Captain & Sons Brokerage
In April 2011, an appellate court affirmed an injunction against a firm that had tried to take its entire team from a former employer and solicited customers without giving appropriate notice. The firm, Captain & Sons Brokerage, set up a competing business without following the required notice procedures. Further, they took actions to deliberately divert money from their ex-employer such as requiring clients to pay outstanding balance to Captain & Sons and not telling them about the new company name. The injunction against Captain & Sons and its principals was upheld in the appellate decision.
MacKenzie v. Cooper
In the case of MacKenzie v. Cooper, an insurance agent wanted to send out an advertisement through email that would include 32 different individuals from other financial services companies. One of these people complained and the mailing was enjoined . Some of the concerns in the mailing included: disclosures were inadequate; it was to "members" when not all were members; and it used "joining" language that can imply membership.
Reed, Cole, Tanaka v. Weinstein
In February 2010, an appellate court lifted the injunctions against four insurance agents. In this case, they approached the plaintiffs and asked questions to help figure out whether their services were right for them. The court said they were "risky" because of the potential impact on the solicitation laws and because the attorneys didn’t ask the agents what they were talking about with clients. However, the appellate court disagreed, saying that the solicitation laws didn’t apply in this case, that the letter was allowed and that it did not violate the laws.
In many cases, the specific details matter. A situation that seems to be clearly within the bounds of the law may not be that clear-cut. On the other hand, an individual solution could be in violation of state laws. Understand the local laws, the case history and your specific situation carefully, and you will be able to create a solution that works for you.