California Supreme Court
419, 758 P.2d 1128, 250 Cal.Rptr. 598, 57 USLW 2162, 15 Media L. Rep.
Supreme Court of
California, In Bank.
The PEOPLE, Plaintiff
Defendant and Appellant.
was convicted in the Superior Court, Los Angeles County, James A.
of pandering, and he appealed.
Court of Appeal, 233
Cal.Rptr. 510, affirmed. The
Supreme Court granted review, superseding opinion of Court of Appeal. The Supreme
Court, Kaufman, J., held
that: (1) defendant
did not “procure
another person for the purpose of prostitution” within meaning of
statute when he hired and paid actors to perform in nonobscene
which portrayed sexually explicit acts, and (2) First Amendment
application of pandering statute to hiring of actors to perform in
of nonobscene motion picture which portrayed sexually explicit acts.
C.J., and Eagleson, J., concurred in judgment.
Goldfarb and Dennis A. Fischer, Santa Monica, for defendant and
Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Mark Alan
R. Anderson and Lauren E. Dana, Deputy Attys. Gen., for plaintiff and
Harold Freeman hired and paid actors to perform in a nonobscene
which portrayed sexually explicit acts.
On that account he was charged with and convicted of five
pandering-procurement of persons “for the purpose of
Code section 266i. He appealed
contending his conduct did not
constitute the crime of pandering.
Court of Appeal affirmed the judgment of conviction.
granted review because of First Amendment concerns and the statewide
significance of the issues.
the language of the statutes involved and because construction of the
statute to make it applicable to the hiring and payment of actors to
a nonobscene motion picture would unlawfully impinge upon protected
Amendment rights, we are compelled to conclude the pandering statute
intended to and does not apply to the conduct here involved and that
convictions of pandering must be reversed.
Freeman is the president of Hollywood Video Production Company
Video), which is in the business of producing and marketing “adult”
September 1983 defendant produced and directed a
film called “Caught from Behind, Part II.”
Defendant hired actors and actresses to
perform in the film. As
part of their
roles, the performers engaged in various sexually explicit acts,
sexual intercourse, oral copulation and sodomy.
filming was done in the private residence of Nancy Conger, and was not
the public. Conger
was paid for the use
of her home in the making of the film.
She also asked if she could act in the film. Defendant agreed
Conger could be in the
the exception of Nancy
Conger, all the actors and actresses in the film were cast through the
Modeling Agency operated by Jim South.
Defendant paid each actor for his or her performance in
the film, and
paid an additional fee to South for each performer from World Modeling
who had been cast for a role in the film.
was charged with five counts of pandering (Pen.Code,
based on the hiring of five actresses who performed sex acts in the
*423 Defendant was not charged with
any violation of the obscenity laws (Pen.
Code, § 311
et seq.) in connection with production or distribution of the film and
was no determination the film was obscene.
FN1. Although both
male and female actors were hired and paid and although both
the sexually explicit conduct, the criminal charges were based solely
conduct of the female actors.
FN2. All further
statutory references are to the Penal Code unless otherwise stated.
jury trial, defendant was found guilty on all five counts. Defendant was
placed on five years probation
FN3 and ordered as
conditions of probation to serve 90 days in the county jail and pay
of $10,000 under Penal
Code section 1203.04 and a
$100 restitution fine
Code section 13967,
FN3. Section 1203.065
prohibits the granting of probation for a conviction of pandering. The trial court
found, however, that imposition
of a prison term would constitute cruel and unusual punishment for
conduct and placed defendant on probation notwithstanding section
People appealed the
granting of probation, which was affirmed by the Court of Appeal. Review of that
decision is pending in this
court in a separate proceeding (S000319, review granted Apr. 16, 1987). In view of our
conclusion the judgment of
conviction must be reversed because the conduct did not constitute
the review of the probationary sentence will become moot.
and contentions in this case and their resolution are pervaded by a
film was not determined to be
obscene and for purposes of this review must be deemed to be not
the prosecution of defendant under the
pandering statute must be viewed as a somewhat transparent attempt at
run” around the First Amendment and the state obscenity laws. Landmark
decisions of this court and the
United States Supreme Court compel us to reject such an effort.
pandering statute under which defendant was convicted
provides in pertinent part: “Any
who: (a) procures
another person for the
purpose of prostitution ... is guilty of pandering, a felony....” FN4
266i reads in full as follows: “Any person who: (a) procures another
person for the purpose
of prostitution; or
(b) by promises,
threats, violence, or by any device or scheme, causes, induces,
encourages another person to become a prostitute;
or (c) procures for another person a place as
inmate in a house of prostitution or as an inmate of any place in which
prostitution is encouraged or allowed within this state; or (d) by promises,
threats, violence or by
any device or scheme, causes, induces, persuades or encourages an
inmate of a
house of prostitution, or any other place in which prostitution is
or allowed, to remain therein as an inmate;
or (e) by fraud or artifice, or by duress of person or
goods, or by
abuse of any position of confidence or authority, procures another
the purpose of prostitution, or to enter any place in which
prostitution is encouraged
or allowed within this state, or to come into this state or leave this
for the purpose of prostitution; or
receives or gives, or agrees to receive or give, any money or thing of
for procuring, or attempting to procure, another person for the purpose
prostitution, or to come into this state or leave this state for the
prostitution, is guilty of pandering, a felony, and is punishable by
imprisonment in the state prison for three, four, or six years, or,
other person is under 16 years of age, is punishable by imprisonment in
state prison for three, six, or eight years.”
not defined in section
Rather, the definition of “prostitution” derives from Penal
Code section 647, subdivision
‘[P]rostitution’ includes any lewd act
between persons for money or other consideration.” (Italics added.)
argue that the actors and actresses in the film engaged in acts of
prostitution-i.e., sexual acts for money-because they performed the
the movie cameras “for the money they received.”
Thus, the People argue, defendant was guilty
of procuring the actors “for the purpose of prostitution.” The People's
syllogism is flawed in
definition of “prostitution” (and ultimately, therefore, the definition
depends on the definition of a “lewd act.”
In Pryor v. Municipal Court (1979) 25
Cal.3d 238, 158 Cal.Rptr. 330, 599 P.2d 636 this
court construed the term “lewd conduct” for purposes of prosecution
647, subdivision (a),
proscribing lewd or
dissolute conduct in a public place, a provision related to the
against prostitution contained in section
647, subdivision (b). In Pryor
we held that a “lewd act”
requires “touching of the genitals, buttocks, or female breast for
purpose of sexual arousal, gratification, annoyance or
at p. 256, 158 Cal.Rptr. 330, 599 P.2d 636.)
The definition of a “lewd act” for purposes
647, subdivision (b) evolved
and was applied to “prostitution” in People v. Hill
Cal.App.3d 525, at pages 534-535, 163 Cal.Rptr. 99
as follows: “[F]or
a ‘lewd’ or ‘dissolute’
act to constitute ‘prostitution,’ the genitals, buttocks, or female
either the prostitute or the customer must come in contact with some
the body of the other for the purpose of sexual arousal or
the customer or of the prostitute.”
contention of defendant is that requisite to the crime of prostitution
existence of a “customer” and there being no “customer” here, no
was involved and therefore no procurement for purposes of
prostitution and no pandering. We
it unnecessary to address that contention.
Whether or not prostitution must always involve a
“customer,” it is
clear that in order to constitute prostitution, the money or other
consideration must be paid for the purpose of sexual arousal
payment of acting fees was the only payment
involved in the instant case.
payment was made to the actors for performing in a nonobscene film. There is no
evidence that defendant paid the
acting fees *425
for the purpose
of sexual arousal or gratification, his own or the actors'. Defendant, of
course, did not himself
participate in any of the sexual conduct.
Defendant, the payor, thus did not engage in either the
conduct nor did he have the requisite mens rea or purpose to establish
procurement for purposes of prostitution.FN5
FN5. There is also
something tautological in the argument that the very acting fees by
defendant “procured” the actors (“for the purpose of prostitution”) also
constitute the payment necessary to establish the “prostitution” for
actors are assertedly being “procured.”
First Amendment Considerations
even if defendant's conduct could somehow be
found to come within the definition of “prostitution” literally, the
application of the pandering statute to the hiring of actors to perform
production of a nonobscene motion picture would impinge
First Amendment values.
It is the
duty of this court in construing a statute to ascertain and give effect
intent of the Legislature. (Scala
Jerry Witt & Sons, Inc. (1970) 3
Cal.3d 359, 366, 90 Cal.Rptr. 592, 475 P.2d 864;
State Compensation Ins. Fund v. Workers'
Comp. Appeals Bd. (1979) 88
Cal.App.3d 43, 53, 152 Cal.Rptr. 153.) And it is
fundamental that the
Legislature will not be presumed to intend unconstitutional results. (People
v. Smith (1983) 34
Cal.3d 251, 259, 193 Cal.Rptr. 692, 667 P.2d 149;
In re Kay (1970) 1
Cal.3d 930, 942, 83 Cal.Rptr. 686, 464 P.2d 142.)
“[W]here ‘ “the terms of a statute are by
fair and reasonable interpretation capable of a meaning consistent with
requirements of the Constitution, the statute will be given that
rather than another in conflict with the Constitution.” ’ [Citations.]”
(People v. Davenport (1985) 41
Cal.3d 247, 264, 221 Cal.Rptr. 794, 710 P.2d 861;
United States v. Delaware & Hudson Co.
U.S. 366, 407-408, 29 S.Ct. 527, 535-536, 53 L.Ed. 836.)
of our view of the social utility of this particular motion picture,
analysis must begin with the premise that a nonobscene motion picture
protected by the guarantee of free expression found in the First
Burstyn, Inc. v. Wilson (1952) 343
U.S. 495, 502, 72 S.Ct. 777, 780, 96 L.Ed. 1098;
Burton v. Municipal Court (1968) 68
Cal.2d 684, 689, 68 Cal.Rptr. 721, 441 P.2d 281;
Flack v. Municipal Court (1967) 66
Cal.2d 981, 988, 59 Cal.Rptr. 872, 429 P.2d 192;
Barrows v. Municipal Court (1970) 1
Cal.3d 821, 824, 83 Cal.Rptr. 819, 464 P.2d 483.)
v. Municipal Court, supra,
1 Cal.3d 821, 83 Cal.Rptr. 819, 464 P.2d 483 this
court considered the applicability of criminal penalties under the
subdivision (a), to the live performance of a play in a theater before
the opinion does not
detail precisely what occurred, two performers, the producer and the
of the play apparently were prosecuted on account of sexually related
that occurred during the performance of the play.
noted that performance of a live play comes within the same First
protection as motion pictures.
vagrancy law there at issue, section
647, subdivision (a), with its
requirement of lifetime registration as a sex offender, was allied to
sections prohibiting various kinds of sexual misconduct. Nothing in its
history or context suggested
that it was intended to apply to theatrical performances that came
ambit of the First Amendment.
The criminal penalties of the statutes there at issue, if
applied to a
live theatrical performance, would not only have involved serious equal
protection problems, but as we stated, it was “too evident to require
elaboration” that such penalties “would have an inhibiting effect upon
exercise of First Amendment rights.”
v. Municipal Court, supra,
1 Cal.3d 821, 827, 83 Cal.Rptr. 819, 464 P.2d 483.)
We concluded that section
647, subdivision (a), was not
intended to apply
to live theatrical performances before an audience.
acts involved here have not been adjudged obscene, they are within the
protection of the First Amendment.
subject the producer and director of a nonobscene motion picture
sexual conduct to prosecution and punishment for pandering, including a
provision for ineligibility for probation attendant on such a
fn. 2, ante), would rather obviously place a substantial burden on the
of protected First Amendment rights.
include the hiring and paying of actors for acting in such a film
definition of pandering would therefore unconstitutionally infringe on
Amendment liberties. Consistent
Burstyn, Burton and Flack and consistent
with the principles of
statutory construction outlined above we are thus compelled to conclude
the Legislature did not intend the antipandering law to apply to the
acting fees for performance in a nonobscene motion picture. We observe that
266i were applied in the
manner urged by the
People, it would include within the literal sweep of the statutory
films of unquestioned artistic and social merit, as well as films made
medical or educational purposes.
reaffirm our observation in Barrows, “any more
restrictive rule could
annihilate in a stroke much of the modern theater and cinema.” (Barrows
v. Municipal Court, supra,
1 Cal.3d 821, 831, 83 Cal.Rptr. 819, 464 P.2d 483.)
Placing reliance on People
Cal.App.3d 321, 128 Cal.Rptr. 363,
argue that there is a distinction between
*427 “speech” (e.g., a film), which is
under the First Amendment so long as it is not obscene, and “conduct”
making of the film), which may be prohibited without reference to the
a distinction is
untenable in this case.
States v. O'Brien (1968) 391
U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672
United States Supreme Court set forth standards to determine the
propriety of governmental regulation of “conduct” which also contains
of “speech.” The
factors to be
considered are (1) whether the regulation is within the constitutional
the government, (2) whether the governmental interest is important or
substantial, (3) whether the governmental interest is unrelated to the
suppression of free expression, and (4) whether the incidental
alleged First Amendment interests is no greater than is essential to
furtherance of the interest. (Id.,
at p. 377, 88 S.Ct. at p. 1679.)
the regulation attempted here were within the constitutional power of
Legislature and the governmental interest could be found to be
application of section
266i in the manner advocated
would clearly run
afoul of the requirement that the governmental interest be unrelated to
suppression of free expression.
People have advanced two possible governmental interests: First, is the prevention
of profiteering from
prostitution, and second is a public health purpose, e.g., prevention
spread of sexually transmitted diseases, such as AIDS.
The governmental interest served by section
266i has been stated to be the
recruitment to prostitution or of augmentation of the supply of
Cal.App.3d 862, 867, 126 Cal.Rptr. 848; People v. Courtney
Cal.App.2d 731, 741, 1 Cal.Rptr. 789.) Punishment of a
motion picture producer for
the making of a nonobscene film, however, has little if anything to do
purpose of combatting prostitution.
Rather, the self-evident purpose of the prosecuting
bringing these charges was to prevent profiteering in pornography
without the necessity of proving obscenity. The fact that
the People concede that a film
identical to that in this case could be made lawfully if the performers
not paid also belies the asserted “public health” interest. Both these
suggested “interests” not only
directly involve the suppression of free expression but are, in the
a pandering prosecution for the making of a nonobscene motion picture,
People's reliance upon People
v. Fixler, supra,
56 Cal.App.3d 321, 128 Cal.Rptr. 363
defendant's conviction otherwise is also misplaced.
First, the Fixler court failed to
give sufficient consideration to the whole holding of this court in Barrows,
1 Cal.3d 821, 83 Cal.Rptr. 819, 464 P.2d 483.
Secondly, Fixler is factually
distinguishable from the instant case in a rather fundamental way. In Fixler,
the defendants were a
photo editor and photographer for American Art
*428 Enterprises, a publisher of
photographers obtained “models”
from modeling agencies and paid fees to the models, who were
engaging in various types of sexual activity, from masturbation to oral
copulation and sexual intercourse.
defendants in that case were convicted of pandering based on the use of
a 14-year-old girl. The
Court of Appeal
upheld the conviction, making the flat statement that “There can be no
but that Patricia engaged in lewd acts and sexual intercourse for money
56 Cal.App.3d at p. 325, 128 Cal.Rptr. 363) and
that the defendants had therefore procured her “for purposes of
conclusion reached by Fixler, and reiterated in the
related case of People
ex rel. Van de Kamp v. American Art Enterprises, Inc. (1977) 75
Cal.App.3d 523, at page 529, 142 Cal.Rptr. 338,
that “sexual intercourse for hire by ... models [or actors] whose
photographed for [publication] ... is prostitution” simply ignores the First Amendment
compel our contrary conclusion here.FN6
FN6. To the extent
v. Fixler, supra,
56 Cal.App.3d 321, 128 Cal.Rptr. 363,
ex rel. Van de Kamp v. American Art Enterprises, Inc., supra,
75 Cal.App.3d 523, 142 Cal.Rptr. 338,
v. Zeihm (1974) 40
Cal.App.3d 1085, 115 Cal.Rptr. 528
hold that the
payment of wages to an actor or model who performs a sexual act in
photographing for publication constitutes prostitution regardless of
obscenity of the film or publication so as to support a prosecution for
pandering under section
266i, they are disapproved.
the Fixler court's conclusion was based primarily
on a misinterpretation
of a portion of this court's opinion in Barrows
v. Municipal Court, supra,
1 Cal.3d 821, 830, 83 Cal.Rptr. 819, 464 P.2d 483.
We there stated that “acts which are independently
prohibited by law [cannot] be consummated without sanction
because they occur during the course of a theatrical play. Dramatic license
would not supply indulgence
for the actual murder of the villain, the rape of the heroine, or the
of the hero.” (Italics
court correctly paraphrased our language in Barrows
in stating: “The
fact that a motion picture of an actual
murder, rape or robbery in progress may be exhibited as a news film or
length movie without violating the law does not mean that one could
impunity hire another to commit such a crime simply because the primary
motivation was to capture the crime
on film ...” (Fixler,
56 Cal.App.3d at p. 326, 128 Cal.Rptr. 363), but
erroneously concluded that the defendants there had “hired” the
model to commit the independent crime of “prostitution.” The conduct was,
to be sure, independently
unlawful, but it was not prostitution or the procurement of
crime was aiding and abetting unlawful
sexual intercourse with a minor in violation of section 261.5. (See also People
v. Zeihm, supra,
40 Cal.App.3d 1085, 115 Cal.Rptr. 528
[cited in Fixler,
in which the court states (without citation to authority) that
women in *429
movies is prostitution, but the gravamen of which involved the use of
under the age of consent, a violation of section 261.5].)
one cannot lawfully hire another to commit murder, rape or robbery for
purpose of photographing the act. Murder,
rape and robbery and aiding and abetting intercourse with a minor for
that matter, are crimes independent of and totally apart from any
the right to photograph the conduct.
contrast, the acts of alleged “prostitution” in this case were not
independent of and apart from payment for the right to photograph the
pandering and prostitution occurred here was entirely dependent on the
for the right to photograph.
under the People's theory the payment was used to establish not only
but also elements of both the “pandering” (procuring) and the
(i.e., lewd acts “for money”).
considered aside from the payment of the acting fees, itself fully
otherwise, the sexual acts depicted in the motion picture here were
sexual conduct was between
consenting adults and occurred in a place not open to the public.FN7
And as we have stated, the film was not
determined to be obscene.
decriminalization in 1975, oral copulation and sodomy performed in
between consenting adults are lawful and no longer constitute
defined crimes. (Stats.1975,
ch. 71, §
§ 7, 10, pp.
ch. 877, § § 1, 2,
pp. 1957-1958.) Thus
People v. Drolet (1973) 30
Cal.App.3d 207, 105 Cal.Rptr. 824,
cited in Fixler,
does not support the result in Fixler.
also rely on a number of other California and out-of-state cases to
defendant's conviction, but in each instance their reliance is
court in People v. Kovner (1978) 96
Misc.2d 414, 409 N.Y.S.2d 349,
legislative intent on the part of the New York Legislature to include
for acting in a film containing sexually explicit conduct within the
of prostitution. However,
relied uncritically on Fixler, failing to
the Fixler conviction was based on unlawful sexual
conduct with a minor.
v. Maita (1984) 157
Cal.App.3d 309, 203 Cal.Rptr. 685,
a provider of
live nude entertainment was convicted of multiple counts of both
convictions, the court relied on Fixler, and to the
extent it did so its
opinion is infirm. Nevertheless,
is also fundamentally distinguishable from the instant case because it *430
did involve prostitution, the
payment by members of the “theater” audience for sexual conduct with
hired by the theater owner for that purpose.
Thus although the theater owner was acquitted on charges
of obscene live conduct (§ 311.6),
convictions for procuring persons for purposes of prostitution could
be affirmed. The
Court of Appeal held
that the pimping and pandering laws did not prohibit live nude
but “that the entertainer cannot have sexual relations with the
at p. 316, 203 Cal.Rptr. 685.) Thus, the result
in Maita was sound,FN8 but it has no
application to this case.
FN8. It appears to us
the conduct in Maita might also have supported a
conviction of section
647, subdivision (a) [lewd
conduct in a public
place], but that offense was apparently not charged.
People's reliance on an Oregon case, State v. Kravitz
Or.App. 243, 511 P.2d 844, is
case, like Maita,
157 Cal.App.3d 309, 203 Cal.Rptr. 685,
sexual conduct between a member of the audience and a performer at the
defendant's entertainment establishment.
States v. Roeder (10th Cir.1975) 526
F.2d 736, the defendant was
prosecuted for a
violation of the Mann Act (18
U.S.C. § 2421 et seq.) for transporting a woman
across state lines for the purpose of
performing in a sexually explicit motion picture.
The purpose of the Mann Act is, however,
quite removed from and has no direct impact upon First Amendment
Mann Act is directed to the conduct of
transportation across state lines for an immoral purpose. So far as the
Mann Act is concerned the
identical conduct would not be criminal if done within a single state. Moreover, Roeder
distinguishable from the instant case:
There the defendant film producer actually participated in
conduct in the film, for which he transported the woman across
cases relied upon by the People do not support a result different from
which we have reached in this case.
foregoing reasons, the judgment of the Court of Appeal affirming
pandering conviction based solely on the payment of wages to the
his film, which was not determined to be obscene, is reversed.
MOSK, BROUSSARD, PANELLI and
KLINE,FN* JJ., concur.
FN* Presiding Justice,
Court of Appeal, First Appellate District, Division Two, assigned by
Chairperson of the Judicial Council.
C.J., and EAGLESON, J., concur in the judgment.
419, 758 P.2d 1128, 250 Cal.Rptr. 598, 57 USLW 2162, 15 Media L. Rep.
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