PEOPLE v. SOUTER

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Court of Appeal, Second District, Division 3, California.

The PEOPLE, Plaintiff and Appellant, v. James Marvin SOUTER, Jr., Mike Stephen Henderson, and Royce Shepard, Defendants and Respondents.

Cr. 39149.

Decided: October 13, 1981

John K. Van de Kamp, Dist. Atty., Harry B. Sondheim, Head, Appellate Division, and John W. Messer, Deputy Dist. Attys., for plaintiff and appellant. Abelson, Harris & Brunon and Elliot J. Abelson, Beverly Hills, for defendant and respondent James Marvin Souter, Jr. Norman R. Atkins, Beverly Hills, for defendant and respondent Mike Stephen Henderson. Weitzman, Fidler & Re, Howard L. Weitzman, Donald M. Re and Larry Fidler, Los Angeles, for defendant and respondent Royce Shepard.

Statement of the Case

A preliminary hearing was conducted in the Municipal Court of the Los Angeles Judicial District subsequent to the filing of a felony complaint.   At the conclusion of the preliminary hearing, each of the respondents was held to answer.   An information was filed in the Los Angeles Superior Court charging each of the respondents with conspiracy (Pen.Code, § 182.2) 1 to commit pandering, a felony, in violation of section 266i (count I) and with violations of section 266i (counts II to V).2

Following arraignment and other proceedings in the superior court, the respondents' motion to set aside the information pursuant to section 995 was heard and submitted subject to additional testimony.   On October 17, 1980, the superior court granted the respondents' motion to dismiss the information.   The People appeal the granting of the motion to dismiss.3

Facts

We shall summarize the evidence presented at the preliminary hearing.4  Respondent Souter (sometimes known as “South”), was connected with a business known as the World Modeling Agency (“World”).   Barbara Sobel, Marilyn Petersen, Jolande Van Amersfoorth and Michelle Leroy each went to World seeking employment.   At some stage in their contact with World, Souter offered them work in movies and referred them to either respondents Henderson and/or Shepard (sometimes known as “Sinclair”).

Sobel contacted Henderson and Shepard and then made two movies.   In the first film, Sobel performed oral copulation and sexual intercourse with a Caucasian actor portraying a dance instructor and was paid $100.   Henderson was the cameraman and director of the film.   A second film involving sex acts was made by Sobel in Palm Springs and directed by Shepard, Henderson and Tom Cobb.   Sobel was paid $300 by check and then flown back to Los Angeles by Henderson.   Upon her return to Los Angeles, Sobel contacted Souter, told him how much she was paid and said that she was upset about having had to perform sex with a black person.

Marilyn Peterson worked for World as a model for a couple of weekends over several months.   Souter then suggested that she do a movie in which she would perform sex acts, including oral sex.   Souter referred Petersen to Shepard, who drove her to Palm Springs in May 1979.   There she made a movie directed by Tom McQuade in which she performed sexual intercourse and oral sex for which she was paid $325.   In June 1979, Souter contacted Peterson about making a commercial which actually turned out to be another film in which Petersen engaged in sex and for which she was paid $900.

In January 1978, Jolande Van Amersfoorth was introduced to Shepard by Souter at World's offices.   Subsequently, she was paid $200 to make a movie which involved sex acts, including oral sex.   She made a second movie, also involving sex, for Shepard about a year later for which she was paid $200 or $250.

Michelle Leroy went to World in April 1979, where she met Souter.   After agreeing to make a movie, she was given Shepard's phone number.   She met Shepard, and discussed making a movie and the fee involved.   She later made the movie involving sex acts and was paid by the cameraman.   None of the respondents was present at the making of the first movie.   Leroy made a second movie one or two months later which was arranged after discussions with Souter and Shepard.   In the second movie, Leroy performed sexual intercourse and oral copulation.   She was paid $300 by Henderson after she performed.

Some general statements can be made about the testimony concerning the films.   The women engaged in sex acts with male actors who were also paid.   They stated they were not prostitutes and that they performed the sex acts in the movies as actresses for money rather than for personal sexual gratification.   In fact, the witness Petersen indicated that the male actors in the films she made had difficulty maintaining sexual arousal or an erection.   Prior to making the films, a story line and script were discussed.   A director was present and artificial lighting was utilized.   On several occasions, the women were provided wardrobes from which they selected clothing to be used in the films.   Still photographs were occasionally taken during the filming.   The filming took longer than normal sexual activity due to the shooting of the film and changing of cameras.   In some instances, a filming session consumed up to five or six hours.

Tom McQuade, a professional cameraman, worked for and was paid by Shepard from 1978 until the preliminary hearing.   During this period, he made approximately 30 films, all involving sex.   He filmed movies involving Sobel, Van Amersfoorth, Petersen and Leroy.   The sex acts depicted in the movies he filmed actually occurred and were not simulated.   McQuade considered his employment as that of a professional film maker.   He received his bachelor's degree in radio and television filming from the University of Maryland in 1975, worked as an editor for commercial production houses and now freelances.   McQuade stated that he made the films with high quality equipment and with the goal of achieving the highest quality given budgetary limitations.

Issue Presented

The issue presented in this appeal is whether persons who pay others to perform sexual activities in motion pictures can be prosecuted for pandering under section 266i.5

Discussion

The superior court based its order setting aside the information primarily on its interpretation that our Supreme Court's decision in Barrows v. Municipal Court (1970) 1 Cal.3d 821, 83 Cal.Rptr. 819, 464 P.2d 483, is controlling in the instant case because the First Amendment prohibits the use of the pandering statute where sexual activity is filmed for inclusion in a motion picture.6  The lower court was of the opinion that the obscenity statutes and not the pandering statute should be utilized by the prosecution.

In Barrows, supra, the plaintiffs actor, actress, producer and director of the live theatrical play entitled “The Beard,” were charged with disorderly conduct in violation of section 647, subdivision (a), and with speaking obscene words in a public place in violation of section 311.6 7 for their participation in a live theatrical performance.   The asserted lewd act was a simulation of an act of oral copulation.

Our Supreme Court's decision in Barrows is directed at a statutory interpretation of sections 647, subdivision (a), and 311.6.  Barrows indicates that these two sections are not applicable to live theatrical performances.   The trial court's reliance on Barrows to allow respondents immunity from prosecution under the pandering statute is misplaced.

In Barrows, our Supreme Court stated, 1 Cal.3d at pages 830–831, 83 Cal.Rptr. 819, 464 P.2d 483:  “Our holding here does not suggest that acts which are independently prohibited by law may be consummated without sanction on the stage merely 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 maiming of the hero․  [In re Giannini (1968) 69 Cal.2d 563, 72 Cal.Rptr. 655, 446 P.2d 535] makes it clear that ‘acts which are unlawful in a different context, circumstance, or place, may be depicted or incorporated in a stage or screen presentation and come within the protection of the First Amendment, losing that protection only if found to be obscene.’  (69 Cal.2d at p. 572, 72 Cal.Rptr. 655, 446 P.2d 535.)   We particularly reaffirm this portion of the decision in Giannini, for any more restrictive rule could annihilate in a stroke much of the modern theater and cinema.   The loss to culture and to First Amendment rights would be equally tragic.”  (Emphasis added.)

 Barrows protects the right of the theater to portray conduct by simulated activity if the portrayal is not obscene.  Barrows does not offer the cloak of First Amendment protection to actual activity which violates the law.  Barrows does not protect the producer of a theatrical play or motion picture who employs an artist to commit a crime to intensify the drama depicted therein.   The solicitation of an artist to commit an actual violation of our penal statutes is not protected by virtue of its depiction in a play or movie.   Thus, the procurement of a person to commit an act of sexual intercourse or oral copulation for compensation is a violation of the pandering statute even if depicted in a play or movie.

Respondents' reliance on the First Amendment of the United States Constitution and the California Constitution article I, section 2, is misplaced.   The prosecution here is focused on the conduct in making the film and not on prohibiting the communication of ideas, impressions or feelings.   Here, we are not faced with questions related to the dissemination or exhibition of the films which would require scrutiny under the First Amendment.   Instead, our attention is directed to the manner in which the material incorporated in the film was originally obtained.  (See People v. Fixler (1976) 56 Cal.App.3d 321, 128 Cal.Rptr. 363.)

 Respondents next argue that the activities engaged in by the models did not constitute acts of prostitution under our Supreme Court's recent decision of Pryor v. Municipal Court (1979) 25 Cal.3d 238, 158 Cal.Rptr. 330, 599 P.2d 636.   We are not persuaded by respondents' arguments that Pryor is applicable in the instant case.   Section 647, subdivision (b), provides that:  “Every person ․ [w]ho solicits or who engages in any act of prostitution” is guilty of disorderly conduct, a misdemeanor.   As used in this subdivision, “ ‘prostitution’ includes any lewd act between persons for money or other consideration.”  (Emphasis added.)   In Pryor, our Supreme Court prescribed a new construction of section 647, subdivision (a),8 “to establish a specific, constitutionally definite test of what conduct does or does not violate [section 647, subdivision (a)].”  (Pryor, supra, 25 Cal.3d at p. 258, 158 Cal.Rptr. 330, 599 P.2d 636.)

That new construction was as to the term “lewd and dissolute” 9 conduct and not to the term “prostitution.”   Section 647, subdivision (b), prohibits prostitution which includes any “lewd act” for money or other consideration.   In our view, an act of sexual intercourse or oral copulation for compensation is prostitution.   Other acts which do not involve sexual intercourse or oral copulation may require reference to the Pryor definition of “lewd and dissolute” conduct to determine whether such acts constitute acts of prostitution.   But, such is not the case here.

Respondents also rely on People v. Hill (1980) 103 Cal.App.3d 525, 163 Cal.Rptr. 99.  Hill involved the prosecution of a defendant for pimping and pandering.   The defendant procured a 17-year old male, Eugene, for an undercover police officer.   The officer testified that Hill offered Eugene for sex acts and that Eugene agreed to perform acts of oral copulation and sodomy for $300.   Hill and Eugene both testified that Eugene's services would be solely for a nude photo session for which the officer was to pay $40.   Therefore, a factual dispute was present in Hill as to what services were offered by the defendant, viz, nude modeling or oral copulation and sodomy.   Consequently, the Hill court reversed the conviction on the failure of the trial court to instruct the jury, sua sponte, on the defendant's asserted defense that Eugene's services were offered solely for nude modeling for photographs.   The Hill court's concern was directed at that part of section 647, subdivision (b), which states that prostitution includes any “lewd act.”   The Hill court declined to choose the definition of prostitution proposed by earlier Court of Appeal decisions in Fixler, supra, People v. Grow (1978) 84 Cal.App.3d 310, 148 Cal.Rptr. 648, and People v. Schultz (1965) 238 Cal.App.2d 804, 48 Cal.Rptr. 328, but relied on the Pryor test of “lewd or dissolute conduct” because a factual dispute was present as to whether any touching of Eugene was to occur by virtue of the negotiations between Hill, Eugene and the undercover officer.   The court in Hill stated:  “As we have pointed out herein, nude modeling for photographic purposes, which involves no bodily contact between model and photographer, does not fall within the concept of prostitution.   Such conduct by the model cannot be deemed a ‘lewd’ act between persons for money in light of the views of the California Supreme Court set forth in the Pryor case.”  (Hill, supra, 103 Cal.App.3d 525, 536, 163 Cal.Rptr. 99.)

In the instant case, there is no such factual dispute as was present in Hill.   The testimony at the preliminary hearing was unrebutted as to the type of activity involved in these films—sexual intercourse and oral copulation.   Consequently, we need not refer to that part of section 647, subdivision (b), which states that “prostitution includes any lewd act between persons for money or other consideration.”

Section 266i contains no definition of prostitution.   Section 647, subdivision (b), states “[a]s used in this subdivision, ‘prostitution’ includes any lewd act between persons for money or other consideration.”  (Emphasis added.)   The language of section 647, subdivision (b), is expressly limited to that subdivision by its own terms and should not be read into section 266i in the absence of a specific reference.

 In our view, the term “prostitution” as used in section 266i means performing acts of sexual intercourse for compensation.   It is not our intent to set forth a definition of prostitution and to state all the possible variations of activity which could be encompassed within the term.   We approve the definition set forth in Black's Law Dictionary (5th ed. 1979), which states at page 1100, “prostitution is performing an act of sexual intercourse for hire, or offering or agreeing to perform an act of sexual intercourse or any unlawful sexual act for hire.”   This is a clear and concise definition of the term prostitution which is not subject to question and which would include within its meaning both acts of sexual intercourse and oral copulation as is present in the instant case.

 Thus, section 266i is violated if a person procures another person to commit an act of sexual intercourse or oral copulation for compensation.

 Respondents also assert that the use of the pandering statute in the instant case is unfair and violates notions of due process because respondents could not reasonably have been on notice that the statute would be utilized in the prosecution of their activity.   This argument is untenable.  Fixler, supra, and People ex rel Van de Kamp v. American Art Enterprises, Inc. (1977) 75 Cal.App.3d 523, 529, 142 Cal.Rptr. 338, unequivocally held that sexual intercourse for hire by models whose activity is photographed for publications is prostitution.  Fixler approved the use of section 266i to prosecute a photo editor and a photographer who had been hired to perform sexual activity for compensation while being photographed.   There is no essential difference between the shooting of photographs for publications and filming for production of movies.   The procurement of models to perform the acts in question falls squarely within the ambit of section 266i.   As stated in People v. Lax (1971) 20 Cal.App.3d 481, 487, 97 Cal.Rptr. 722:  “ ‘The Statute [section 266i] endeavors “to cover all the various ramifications of the social evil of pandering and include them all in the definition of the crime, with a view of effectively combating the evil sought to be condemned.”  [Citing People v. Montgomery (1941) 47 Cal.App.2d 1, 24, 117 P.2d 437 and People v. Charles (1963) 218 Cal.App.2d 812, 816, 32 Cal.Rptr. 653.]’ ”

We interpret section 266i to effect the intent and objective of the Legislature, which must be to prohibit the procurement of persons to perform sexual activity in exchange for money.   As stated in section 4, “[t]he rule of the common law, that penal statutes are to be strictly construed, has no application to this Code.   All its provisions are to be construed according to the fair import of their terms, with a view to effect its objects and to promote justice.”

 Finally, respondent Henderson contends that the trial court below improperly denied his motion to dismiss for lack of sufficient evidence.   According to the rule governing appellate review, we must view the evidence in the light most favorable to upholding the magistrate's decision and if there is any competent evidence in the transcript which would justify the magistrate's entertaining a reasonable belief that defendants had committed a felony, a motion to set aside should have been denied.  (People v. Haybron (1980) 108 Cal.App.3d 31, 35, 166 Cal.Rptr. 264.)   We have reviewed the transcript of the preliminary hearing.   In our view, the evidence is sufficient to sustain the magistrate's decision holding the respondent Henderson to answer.

The order granting the motion to dismiss the information as to each respondent is reversed.

FOOTNOTES

1.   Hereinafter all references are to the Penal Code unless otherwise indicated.

2.   Count II charged respondent Royce Shepard (“Shepard”) with procurement of Jolande Van Amersfoorth to become a prostitute;  count III charged James Marvin Souter, Jr. (“Souter”) and Shepard with procurement of Marilyn Petersen to become a prostitute, and counts IV and V charged all respondents with the procurement of Michelle Leroy to become a prostitute.   The counts in the information alleged that the violations occurred in the months of February, May, June, and July 1979.

3.   Section 1238, subdivision (a)(1), authorizes the People to appeal from an order setting aside an information.

4.   There is no material dispute as to the facts presented by the testimony of various witnesses at the preliminary hearing and discussed in the respective briefs filed by counsel.

5.   Section 266i provides in pertinent part as follows:  “Any person who:  (a) procures another person for the purpose of prostitution; ․ is guilty of pandering, a felony, and is punishable by imprisonment in the state prison for two, three, or four years.”

6.   In making its ruling, the lower court expressed concern with the use of the pandering statute, which if made applicable herein, would subject to prosecution eminent producers, directors and world renowned artists portraying roles in classic works in motion pictures involving acts of sexual intercourse for compensation.   The court below was also concerned with the applicability of the pandering statute to producers of a film which involved legitimate medical research on human sexuality if persons were compensated for performing acts of sexual intercourse to be depicted in the film.

7.   Section 647, subdivision (a), provides, “[e]very person who ․ solicits anyone to engage in or who engages in lewd or dissolute conduct in any public place or in any place open to the public or exposed to public view” shall be guilty of disorderly conduct, a misdemeanor.Section 311.6 then provided:  “Every person who knowingly sings or speaks any obscene song, ballad, or other words, in any public place is guilty of a misdemeanor.”

8.   Ibid., footnote 7.

9.   The Pryor court stated the following construction of section 647, subdivision (a):  “The terms ‘lewd’ and ‘dissolute’ in this section are synonymous, and refer to conduct which involves the touching of the genitals, buttocks, or female breast for the purpose of sexual arousal, gratification, annoyance or offense, if the actor knows or should know of the presence of persons who may be offended by his conduct.   The statute prohibits such conduct only if it occurs in any public place or in any place open to the public or exposed to public view;  it further prohibits the solicitation of such conduct to be performed in any public place or in any place open to the public or exposed to public view.”  (Pryor, supra, 25 Cal.3d at pp. 256–257, 158 Cal.Rptr. 330, 599 P.2d 636.)

LUI, Associate Justice.

KLEIN, P. J., and POTTER, J., concur.