KEENAN v. Frank Sinatra, Jr., Real Party in Interest.

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Court of Appeal, Second District, Division 1, California.

Barry KEENAN, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent; Frank Sinatra, Jr., Real Party in Interest.

No. B128379.

Decided: May 27, 1999

Rohde & Victoroff and Stephen F. Rohde, Los Angeles, for Petitioner. Corbett & Steelman, Richard B. Specter, Irvine, and Mark M. Monachino, for Real Party in Interest. No appearance for Respondent.

The issue in this case is whether Civil Code section 2225 (California's “Son of Sam” statute) is constitutionally overinclusive.   We hold that it is not, and also hold that it may be applied to a story based upon a crime that occurred before its enactment.

FACTS

Frank Sinatra, Jr., was kidnapped in 1963.   His captors (one of whom was Barry Keenan) demanded ransom, which was paid by Sinatra's father.   Keenan was apprehended, tried, convicted of kidnapping (a felony), and sentenced to federal prison.   He completed his sentence and was released.   In January 1998, Sinatra learned that Keenan had entered an agreement with New Times, Inc., pursuant to which Keenan was to be interviewed by Peter Gilstrap (a reporter for New Times Los Angeles magazine) for a story about the 1963 kidnapping, which was to be offered for sale to the media, with the profits to be shared by Keenan, Gilstrap and New Times.   The January 15 issue of New Times Los Angeles carried an article by Gilstrap about the kidnapping (“Snatching Sinatra”).   Shortly thereafter, Keenan, Gilstrap and New Times sold the movie rights to “Snatching Sinatra” to Columbia Pictures.

Sinatra's lawyers objected to Columbia's payment of money to Sinatra's kidnappers and demanded Sinatra's “beneficiary's interest” under Civil Code section 2225.1  When Columbia refused to turn over any money to Sinatra without a court order, Sinatra filed this action against Keenan, Gilstrap, New Times and Columbia.   A week later, Sinatra asked for and was granted a preliminary injunction directing Columbia to withhold any payments due to Keenan pending the resolution of this action.

Keenan demurred and moved to dissolve the preliminary injunction, contending that section 2225 violates his constitutional free speech rights and the constitutional prohibition against ex post facto legislation.   The trial court rejected Keenan's arguments, overruled the demurrer, denied the motion to dissolve the preliminary injunction, and directed Keenan to answer Sinatra's complaint.   Keenan then filed a petition for a writ of mandate in which he asked us to direct the trial court to issue the opposite orders.   We decided that this was an appropriate case for early review, and therefore issued an order to show cause and set the matter for hearing.

DISCUSSION

I.

Keenan contends the statute impermissibly interferes with his rights under the First Amendment of the United States Constitution.   We disagree.

A.

“In the summer of 1977, New York was terrorized by a serial killer popularly known as the Son of Sam. The hunt for the Son of Sam received considerable publicity, and by the time David Berkowitz was identified as the killer and apprehended, the rights to his story were worth a substantial amount.   Berkowitz's chance to profit from his notoriety while his victims and their families remained uncompensated did not escape the notice of New York's Legislature.”  (Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd. (1991) 502 U.S. 105, 108, 112 S.Ct. 501, 116 L.Ed.2d 476.)   New York quickly enacted a statute, thereafter to be known as the first “Son of Sam” law, to “ ‘ensure that monies received by the criminal under such circumstances shall first be made available to recompense the victims of that crime for their loss and suffering.’ ”  (Ibid.)

New York's Son of Sam law, as later amended, required any entity contracting with an accused or convicted person for a depiction of the crime to submit a copy of the contract to the New York State Crime Victims Board, and to turn over any income under that contract to the Board, which in turn was required to deposit the money into an escrow account for the benefit of and payable to specified victims.2  (Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., supra, 502 U.S. at p. 109, 112 S.Ct. 501.)   Between 1977 (when it was enacted) and 1991 (when New York's Son of Sam law was before the United States Supreme Court), the statute was “invoked only a handful of times.   As might be expected, the individuals whose profits the [state of New York] sought to escrow [had] all become well known for having committed highly publicized crimes.   These include[d] Jean Harris, the convicted killer of ‘Scarsdale Diet’ Doctor Herman Tarnower;  Mark David Chapman, the man convicted of assassinating John Lennon;  and R. Foster Winans, the former Wall Street Journal columnist convicted of insider trading.   Ironically, the statute was never applied to the Son of Sam himself;  David Berkowitz was found incompetent to stand trial, and the statute at that time applied only to criminals who had actually been convicted․  According to the [state of New York], Berkowitz [nevertheless] voluntarily paid his share of the royalties from the book Son of Sam, published in 1981, to his victims or their estates.”  (Id. at p. 111, 112 S.Ct. 501.)

The Son of Sam law (as amended to include those “accused” as well as those “convicted”) reached the United States Supreme Court after the state of New York learned that admitted organized crime figure Henry Hill had entered a contract with Nicholas Pileggi for the production of a book about Hill's life and that they, in turn, had signed a contract with Simon & Schuster, Inc.3 The result of Hill and Pileggi's collaboration was Wiseguy, which depicts, in colorful detail, the day-to-day existence of organized crime, primarily in Hill's first-person narrative.4  After an investigation, the state of New York ordered Simon & Schuster to suspend all payments to Hill. Simon & Schuster, in turn, filed a declaratory relief action in which it claimed the Son of Sam statute violated the First Amendment.   Ultimately, the United States Supreme Court concluded that New York's Son of Sam statute, as then drafted, was overinclusive.  (Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., supra, 502 U.S. at p. 115, 112 S.Ct. 501.)   As relevant, this is what Simon & Schuster holds:

“A statute is presumptively inconsistent with the First Amendment if it imposes a financial burden on speakers because of the content of their speech․  [¶] ․ In the context of financial regulation, ․ the government's ability to impose content-based burdens on speech raises the specter that the government may effectively drive certain ideas or viewpoints from the marketplace․  The First Amendment presumptively places this sort of discrimination beyond the power of the government․  ‘ “The constitutional right of free expression is ․ intended to remove governmental restraints from the arena of public discussion, putting the decision as to what views shall be voiced largely into the hands of each of us ․ in the belief that no other approach would comport with the premise of individual dignity and choice upon which our political system rests.” ’ ․

“The Son of Sam law is such a content-based statute.   It singles out income derived from expressive activity for a burden the State places on no other income, and it is directed only at works with a specified content.   Whether the First Amendment ‘speaker’ is considered to be Henry Hill, whose income the statute places in escrow because of the story he has told, or Simon & Schuster, which can publish books about crime with the assistance of only those criminals willing to forgo remuneration for at least five years, the statute plainly imposes a financial disincentive only on speech of a particular content.”  (Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., supra, 502 U.S. at pp. 115-116, 112 S.Ct. 501.)

“The Son of Sam law establishes a financial disincentive to create or publish works with a particular content.   In order to justify such differential treatment, ‘the State must show that its regulation is necessary to serve a compelling state interest and is narrowly drawn to achieve that end.’  ․ [¶] The [state of New York] disclaims, as it must, any state interest in suppressing descriptions of crime out of solicitude for the sensibilities of readers․  As we have often had occasion to repeat:  ‘ “[T]he fact that society may find speech offensive is not a sufficient reason for suppressing it.   Indeed, if it is the speaker's opinion that gives offense, that consequence is a reason for according it constitutional protection.” ’  ․ The [state of New York] thus does not assert any interest in limiting whatever anguish Henry Hill's victims may suffer from reliving their victimization.

“There can be little doubt, on the other hand, that the State has a compelling interest in ensuring that victims of crime are compensated by those who harm them.   Every State has a body of tort law serving exactly this interest.   The State's interest in preventing wrongdoers from dissipating their assets before victims can recover explains the existence of the State's statutory provisions for prejudgment remedies and orders of restitution․  [¶] The State likewise has an undisputed compelling interest in ensuring that criminals do not profit from their crimes.   Like most if not all States, New York has long recognized the ‘fundamental equitable principle’ ․ that ‘[n]o one shall be permitted to profit by his own fraud, or to take advantage of his own wrong, or to found any claim upon his own iniquity, or to acquire property by his own crime.’  ․ The force of this interest is evidenced by the State's statutory provisions for the forfeiture of the proceeds and instrumentalities of crime․  [¶] ․ We ․ conclude that the State has a compelling interest in depriving criminals of the profits of their crimes, and in using these funds to compensate victims.”   (Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., supra, 502 U.S. at pp. 118-119, 112 S.Ct. 501.)

“In short, the State has a compelling interest in compensating victims from the fruits of the crime, but little if any interest in limiting such compensation to the proceeds of the wrongdoer's speech about crime.   We must therefore determine whether the Son of Sam law is narrowly tailored to advance the former, not the latter, objective.  [¶] As a means of ensuring that victims are compensated from the proceeds of crime, the Son of Sam law is significantly overinclusive.   As counsel for the [State] conceded at oral argument, the statute applies to works on any subject, provided that they express the author's thoughts or recollections about his crime, however tangentially or incidentally․  In addition, the statute's broad definition of ‘person convicted of a crime’ enables the [State] to escrow the income of any author who admits in his work to having committed a crime, whether or not the author was ever actually accused or convicted. ․

“These two provisions combine to encompass a potentially very large number of works.   Had the Son of Sam law been in effect at the time and place of publication, it would have escrowed payment for such works as The Autobiography of Malcolm X, which describes crimes committed by the civil rights leader before he became a public figure;  Civil Disobedience, in which Thoreau acknowledges his refusal to pay taxes and recalls his experience in jail;  and even the Confessions of Saint Augustine, in which the author laments ‘my past foulness and the carnal corruptions of my soul,’ one instance of which involved the theft of pears from a neighboring vineyard․

“Should a prominent figure write his autobiography at the end of his career, and include in an early chapter a brief recollection of having stolen (in New York) a nearly worthless item as a youthful prank, the [State] would control his entire income from the book for five years, and would make that income available to all of the author's creditors, despite the fact that the statute of limitations for this minor incident had long since run.   That the Son of Sam law can produce such an outcome indicates that the statute is, to say the least, not narrowly tailored to achieve the State's objective of compensating crime victims from the profits of crime.”  (Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., supra, 502 U.S. at pp. 120-123, 112 S.Ct. 501, italics added.)

“The Federal Government and many of the States have enacted statutes designed to serve purposes similar to that served by the Son of Sam law.   Some of these statutes may be quite different from New York's, and we have no occasion to determine the constitutionality of these other laws.   We conclude simply that in the Son of Sam law, New York has singled out speech on a particular subject for a financial burden that it places on no other speech and no other income.   The State's interest in compensating victims from the fruits of crime is a compelling one, but the Son of Sam law is not narrowly tailored to advance that objective.   As a result, the statute is inconsistent with the First Amendment.”  (Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., supra, 502 U.S. at p. 123, 112 S.Ct. 501, italics added.)

B.

 Keenan “accepts the Supreme Court's conclusion that ‘the State has a compelling interest in depriving criminals of the profits of their crimes, and in using these funds to compensate victims,’ ” and concedes that section 2225 “purports to serve the same compelling purpose identified by the Supreme Court [with regard to New York's Son of Sam law].”   As a result, Keenan's First Amendment contention is limited to one point, and only one point-that California's statute, like New York's Son of Sam law, is overinclusive.   We disagree.5

According to Simon & Schuster, the New York statute was overinclusive (1) because it applied to works on any subject, provided they expressed the “author's thoughts or recollections about his crime, however tangentially or incidentally,” (2) because the statute's broad definition of “person convicted of a crime” enabled the state of New York to seize the income of any author who admitted in his work that he had “committed a crime, whether or not the author was ever actually accused or convicted,” and (3) because an author's admission of a youthful offense would permit the State to “control his entire income from the book for five years, and would make that income available to all of the author's creditors, despite the fact that the statute of limitations for this minor incident had long since run.”  (Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., supra, 502 U.S. at pp. 121-123, 112 S.Ct. 501.)

Our statute does not include any of these defects.  Section 2225 is not triggered by a “tangential” or “incidental” reference to a past criminal act.   To the contrary, a convicted felon's ability to profit from his crimes is affected only when he sells the “story of a felony for which [he] was convicted.” (§ 2225, subd. (b)(1).)  “Story” is defined as “a depiction, portrayal, or reenactment of a felony,” and any “passing mention of the felony, as in a footnote or bibliography,” is expressly excluded. (§ 2225, subd. (a)(7).)   Moreover, section 2225 narrowly defines a “convicted felon” as someone who has been “convicted of a felony, or found not guilty by reason of insanity of a felony.” (§ 2225, subd. (a)(1).)   Stated another way, our statute does not allow the state to escrow or otherwise confiscate the income of an author who was never actually accused or convicted.   Indeed, the only pre-conviction remedy available under section 2225 is a motion for a preliminary injunction regarding a person against whom a felony indictment or information has been filed, and then only when a potential beneficiary or the Attorney General can establish (1) probable cause to believe that the proceeds of a story would be subject to an involuntary trust upon conviction of the person charged, and (2) that the injunction is necessary to prevent waste. (§ 2225, subd. (f)(2).)

It follows that Keenan's claim of overinclusiveness was properly rejected by the trial court.6

II.

 Keenan's crimes were committed in 1963.  Section 2225 was enacted in 1986.  (Stats.1986, ch. 820, § 8, p. 2730.)   His story deal was made in 1997 or 1998.   It follows, he says, that the application of the statute to his story about his 1963 crimes violates the ex post facto prohibitions of both the federal and state constitutions by imposing an additional punishment that did not exist in 1963.   He is mistaken.

 Although “ex post facto” literally encompasses any law passed “after the fact,” it has long been recognized by the United States Supreme Court “that the constitutional prohibition on ex post facto laws applies only to penal statutes which disadvantage the offender affected by them.”  (Collins v. Youngblood (1990) 497 U.S. 37, 41, 110 S.Ct. 2715, 111 L.Ed.2d 30.) 7  For this reason, the ex post facto prohibition applies to (1) penal legislation that “ ‘punishes as a crime an act previously committed, which was innocent when done,’ ” (2) penal legislation that “ ‘makes more burdensome the punishment for a crime, after its commission,’ ” and (3) penal legislation that “ ‘deprives one charged with crime of any defense available according to law at the time when the act was committed.’ ”  (Id. at p. 42, 110 S.Ct. 2715.)   The fact that legislation “ ‘alters the situation of a party to his disadvantage’ ” is legally irrelevant to the determination whether the statute violates the ex post facto prohibition.  (See People v. McVickers (1992) 4 Cal.4th 81, 84, 13 Cal.Rptr.2d 850, 840 P.2d 955 [the same analysis applies under the California Constitution].)

Section 2225 is not “penal legislation” because it was enacted to accomplish a “legitimate governmental purpose” unrelated to punishment-as Keenan concedes, the purpose of the statute is to prevent convicted criminals from profiting from their own wrongs, and to redirect such profits to those who were victimized by the criminal's wrongful acts.  (People v. McVickers, supra, 4 Cal.4th at pp. 84-89, 13 Cal.Rptr.2d 850, 840 P.2d 955;  see also Jones v. Murray (4th Cir.1992) 962 F.2d 302, 309;  U.S. v. Bodre (1st Cir.1991) 948 F.2d 28, 32;  State v. Burke (1991) 109 Or.App. 7, 818 P.2d 511, 513-515;  Payne v. Fairfield Hills Hosp. (1990) 215 Conn. 675, 578 A.2d 1025, 1029;  State v. Noble (1992) 171 Ariz. 171, 829 P.2d 1217, 1224.)   Section 2225 does not retroactively alter the definition of any crime or increase the punishment for any criminal act.

It follows that Keenan's demurrer was properly overruled.8

DISPOSITION

The petition is denied.   The order to show cause is vacated and the stay previously issued is dissolved.   Sinatra is entitled to his costs of these writ proceedings.

FOOTNOTES

1.   Unless otherwise stated, all further section references are to the Civil Code. As relevant at this point, section 2225 provides that “[a]ll proceeds from the preparation for the purpose of sale, the sale of the rights to, or the sale of materials that include or are based on the story of a felony for which a convicted felon was convicted, shall be subject to an involuntary trust for the benefit of the beneficiaries set forth in this section.   That trust shall continue until five years after the time of payment of the proceeds to the felon or five years after the date of conviction, whichever is later.   If an action is filed by a beneficiary to recover his or her interest in a trust within those time limitations, the trust character of the property shall continue until the conclusion of the action.   At the end of the five-year trust period, any proceeds which remain in trust that have not been claimed by a beneficiary shall be transferred to the Controller ․” (§ 2225, subd. (b)(1).)   “ ‘Convicted felon’ means any person convicted of a felony, or found not guilty by reason of insanity of a felony committed in California, either by a court or jury trial or by entry of a plea in court.” (§ 2225, subd. (a)(1).)  “ ‘Beneficiary’ means a person who, under applicable law, other than the provisions of this section, has or had a right to recover damages from the convicted felon for physical, mental, or emotional injury, or pecuniary loss proximately caused by the convicted felon as a result of the crime for which the felon was convicted.” (§ 2225, subd. (a)(4)(A).)   “ ‘Materials' means books, magazine or newspaper articles, movies, films, videotapes, sound recordings, interviews or appearances on television and radio stations, and live presentations of any kind.” (§ 2225, subd. (a)(6).)  “ ‘Story’ means a depiction, portrayal, or reenactment of a felony and shall not be taken to mean a passing mention of the felony, as in a footnote or bibliography.” (§ 2225, subd. (a)(7).)

2.   As relevant, the Son of Sam Law considered by the United States Supreme Court (N.Y. Exec. Law § 632-a) included these provisions:  “Every ․ legal entity contracting with any person ․ accused or convicted of a crime in [the state of New York], with respect to the reenactment of such crime, by way of a movie, book, magazine article, ․ radio or television presentation, ․ or from the expression of such accused or convicted person's thoughts, feelings, opinions or emotions regarding such crime, shall submit a copy of such contract to the [New York Crime Victims Board] and pay over to the board any moneys which would otherwise, by the terms of such contract, be owing to the person so accused or convicted or his representatives.”  (Id., subd.(1).)  The Board was required to deposit the payments into an escrow account “for the benefit of and payable to any victim ․ provided that such victim, within five years of the date of the establishment of such escrow account, brings a civil action in a court of competent jurisdiction and recovers a money judgment for damages against such [accused or convicted] person or his representatives.”  (Ibid.) After five years from the date on which the escrow account was established, if no actions were pending, the Board was required to “immediately pay over any moneys in the escrow account to such [accused or convicted] person or his legal representatives.”  (Id., subds.(4), (7).)   A “person convicted of a crime” was defined to include “any person convicted of a crime in [the state of New York] either by entry of a plea of guilty or by conviction after trial and any person who ․ voluntarily and intelligently admitted the commission of a crime for which such person is not prosecuted.”  (Id., subd.(10)(b).)

3.   “Looking back from the safety of the Federal Witness Protection Program, Henry Hill recalled:  ‘At the age of twelve my ambition was to be a gangster.   To be a wiseguy.   To me being a wiseguy was better than being president of the United States.’   N. Pileggi, Wiseguy:  Life in a Mafia Family 19 (1985)․   Whatever one might think of Hill, at the very least it can be said that he realized his dreams.   After a career spanning 25 years, Hill admitted engineering some of the most daring crimes of his day, including the 1978-1979 Boston College basketball point-shaving scandal, and the theft of $6 million from Lufthansa Airlines in 1978, the largest successful cash robbery in American history․  Most of Hill's crimes were more banausic:  He committed extortion, he imported and distributed narcotics, and he organized numerous robberies.  [¶] Hill was arrested in 1980.   In exchange for immunity from prosecution, he testified against many of his former colleagues.   Since his arrest, he has lived under an assumed name in an unknown part of the country.”  (Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., supra, 502 U.S. at p. 112, 112 S.Ct. 501.)

4.   “Throughout Wiseguy, Hill frankly admits to having participated in an astonishing variety of crimes.   He discusses, among other things, his conviction of extortion and the prison sentence he served․  [¶] Wiseguy was reviewed favorably [and a] few years later, the book was converted into a film called Goodfellas, which won a host of awards as the best film of 1990.[¶]  From Henry Hill's perspective, however, the publicity generated by the book's success proved less desirable.   The [New York] Crime Victims Board learned of Wiseguy in January 1986, soon after it was published.”  (Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., supra, 502 U.S. at pp. 113-114, 112 S.Ct. 501.)

5.   Keenan says Simon & Schuster holds that an “underinclusive” statute (as well as one that is overinclusive) may violate the First Amendment.   He is wrong.   The majority opinion in Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., supra, 502 U.S. 105, 112 S.Ct. 501, 116 L.Ed.2d 476, is decided solely on the basis of overinclusiveness, and the justices expressly refused to decide the issue of underinclusiveness.  (Id. at pp. 122, fn.  *, 112 S.Ct. 501.)   Since Keenan does not otherwise elaborate on the issue of underinclusiveness, we do not reach that point.   And since Keenan's attack on section 2225 is limited to those issues considered in Simon & Schuster, our discussion of the statute is similarly limited.

6.   We summarily reject Keenan's conclusory and unsupported assertion that section 2225 constitutes a prohibited prior restraint of speech in violation of the free speech clause of the California Constitution.  (Cal. Const., art.   I, § 2.) Section 2225 does not restrain storytelling, publication or dissemination.

7.   Collins v. Youngblood, supra, 497 U.S. 37, 110 S.Ct. 2715, 111 L.Ed.2d 30, clarifies the “confusion” that existed in earlier ex post facto decisions.  (Id. at p. 45, 110 S.Ct. 2715.)   For this reason, we do not discuss the pre-Collins cases cited by Keenan.

8.   Keenan's request to us for an order dissolving the preliminary injunction is based almost entirely on the legal arguments rejected in the text, and we deny that request for the reasons previously stated.

MIRIAM A. VOGEL, J.

ORTEGA, Acting P.J., and MASTERSON, J., concur.

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