PEOPLE v. FREEMAN (1987)

Defendant is a motion picture producer.   He produced a film entitled, “Caught From Behind, Part II.”   This was a picture containing numerous explicit sexual acts and defendant was prosecuted under section 266i of the Penal Code ¹ for procuring actresses and actors to perform in said picture.   We affirm his conviction.

I

 Much of appellant's opening brief is devoted to a discussion of the application of the First Amendment.   That discussion is out of place in this appeal.   It is well settled that the distribution of a movie or book is protected by the First Amendment.   However, a criminal act is not protected under the First Amendment merely because it occurs within the context of a motion picture production.

II

 It is immaterial to defendant's conviction that the actors and actresses may or may not obtain any sexual gratification from their participation in the sexual acts depicted in the film.   The actors and actresses herein involved were employed to engage in acts or prostitution, which is defined in numerous California cases as the engaging in sexual acts for money.   The people herein engaged agreed to and did engage in sexual conduct and testified that they “acted” before the cameras in the production of the motion picture herein in question “for the money they received.”   The guilt of the defendant of the crime charged and of which he was convicted is clear.

The judgment is affirmed.

I concur.

People v. Fixler (1976) 56 Cal.App.3d 321, 128 Cal.Rptr. 363, and People ex rel. Van de Kamp v. American Art Enterprises, Inc. (1977) 75 Cal.App.3d 523, 529, 142 Cal.Rptr. 338, have unequivocally held that sexual intercourse for hire by models whose activity is photographed for publication is prostitution.  Fixler specifically approved the use of Penal Code section 266i to prosecute a photographer and a photo editor of a pornographic firm for the hiring of a young female, for photographic purposes, to engage in lewd acts and sexual intercourse with another male.   There is no essential difference between the taking of still photographs for publications and filming for the production of motion pictures.

The dissent interprets Barrows v. Municipal Court (1970) 1 Cal.3d 821, 83 Cal.Rptr. 819, 464 P.2d 483, as clothing the defendant with First Amendment protection from prosecution under California's common pandering statute.   Yet a unanimous court of our own District in Fixler cites Barrows as authority for a different principle of law, stating:  “The California Supreme Court held in Barrows v. Municipal Court ․, that acts which are independently prohibited by law cannot be consummated without sanction merely because they occur in a theatrical setting and we conclude they cannot be consummated without sanction because they occur in the course of preparing material which may ultimately be exhibited in a manner protected by the Constitution.  [Citations.]”  (People v. Fixler, supra, 56 Cal.App.3d at p. 326, 128 Cal.Rptr. 363.)

“The prosecution [for violating section 266i] here was based on conduct and was not aimed at prohibiting any communication of ideas.   The manner of obtaining the photographs and the ultimate use to which those photographs might be put are separate and unrelated issues.   While First Amendment considerations may protect the dissemination of printed or photographic material regardless of the manner in which the material was originally obtained, where a crime is committed in obtaining the material, the protection afforded its dissemination would not be a shield against prosecution for the crime committed in obtaining it.”  (People v. Fixler, supra, 56 Cal.App.3d at pp. 325–326, 128 Cal.Rptr. 363.)

The Supreme Court's majority decision in Barrows, supra, was directed to interpreting Penal Code sections 647, subdivision (a), and 311.6, in the context of live theatrical performances.   I do not view Barrows so broadly as to afford the cloak of First Amendment protection to actual illegal prostitution activities.   In my judgment, the procurement for money of models to perform the acts involved in the case before us clearly falls within the ambit of section 266i.

I respectfully dissent.

In Burton v. Municipal Court (1968) 68 Cal.2d 684, 689, 68 Cal.Rptr. 721, 441 P.2d 281, our Supreme Court, citing Joseph Burstyn, Inc. v. Wilson (1952) 343 U.S. 495, 72 S.Ct. 777, 96 L.Ed. 1098, concluded that “[i]t can no longer be questioned that expression by means of motion pictures is included within the free speech and press guarantees of the First and Fourteenth Amendments.”

Barrows v. Municipal Court (1970) 1 Cal.3d 821, 830–831, 83 Cal.Rptr. 819, 464 P.2d 483, was a case in which two actors of a play entitled “The Beard,” allegedly involving lewd conduct and speaking obscene words, were charged with violating Penal Code sections 647, subdivision (a) and 311.6, for the performance of the lewd conduct and the utterance of those words.   The play's producer and director were charged with wilfully and unlawfully aiding and abetting them in committing those violations.   All four defendants petitioned for a writ of prohibition to restrain the respondent court from proceeding to trial.   The California Supreme Court reversed the trial court's denial of the writ with directions to issue the writ of prohibition as prayed for.

In doing so, the Barrows court first explained that it began “with the premise that live plays performed in a theater before an audience are entitled to the same protection under the First Amendment as motion pictures․”  (1 Cal.3d at p. 824, 83 Cal.Rptr. 819, 464 P.2d 483.)   It concluded that “such [theatrical] performances do not fall within the purview of [the vagrancy law] section 647, subdivision (a).”  (Id., at p. 829, 83 Cal.Rptr. 819, 464 P.2d 483.)   It also held that “the conclusion is inescapable under these circumstances that theatrical performances are not included within the prohibition of [Penal Code] section 311.6.”  (Id., at p. 830, 83 Cal.Rptr. 819, 464 P.2d 483, fn. omitted.)

The Barrows court went on to explain:

“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.   Neither do we intend to imply, however, that conduct or speech in a theatrical production is to be judged by the same standards as conduct or speech occurring on the street or other public place.  Giannini [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.”  (1 Cal.3d at pp. 830–831, 83 Cal.Rptr. 819, 464 P.2d 483.)

While the motion picture “Caught From Behind, Part II” may be of little value to our culture, the record does not reflect that petitioner has been charged with or found to have violated any obscenity law.   I cannot conclude that the purpose of the Legislature in enacting Penal Code section 266i was to prevent the production or distribution of theatrical plays or motion pictures depicting sex acts between consenting adults.   Had it wished to do so the Legislature could have added the production of such plays or films to the list of proscribed acts and conduct listed in that section.   It did not do so.   It is not our right to interpret a criminal statute broadly to aid a finding of guilt, especially where to do so invades a First Amendment protection.   It is plain to me that the defendant's purpose here was to profit from making a motion picture and not “to procure a person, or attempt to procure a person, for the purpose of prostitution” within the meaning of Penal Code section 266i.

The concurring opinion relies in large measure on People v. Fixler (1976) 56 Cal.App.3d 321, 324, 326, 128 Cal.Rptr. 363, to limit the holding of Barrows.   Fixler involved “essentially ․ the use of ․ a 14 year old girl who was hired ․ to perform ․ in return for money ․” depraved and perverted sex acts which were photographed and were allegedly to be published in a magazine.   The difficulty with taking that position is that Fixler focuses on only one part of the Barrows formulation in quoting Barrows as stating “ ‘that acts which are independently prohibited by law cannot be consummated without sanction merely because they occur in a theatrical setting and we conclude they cannot be consummated without sanction because they occur in the course of preparing material which may ultimately be exhibited in a manner protected by the Constitution.  [Citations.]’ ”

Neither Fixler nor the lead or concurring opinions deal with the equally important language in Barrows that states “[n]either do we intend to imply, however, that conduct or speech in a theatrical production is to be judged by the same standards as conduct or speech occurring on the street or other public place” and goes on to cite In re Giannini, supra, 69 Cal.App.2d 563, 72 Cal.Rptr. 655, 446 P.2d 535, for the proposition 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.App.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 theatre and cinema.   The loss to culture and to First Amendment rights would be equally tragic.”  (1 Cal.3d at pp. 830, 831, 83 Cal.Rptr. 819, 464 P.2d 483.)

I don't think Barrows can be discussed fairly without considering its entire holding.   More importantly, I don't see how we can be obedient to the principle of stare decisis if we disregard an important part of the Supreme Court's holding in Barrows.   The Barrows court recognized that such serious crimes as murder, rape and maiming are excluded from the protection of the First Amendment but reaffirmed the portion of Giannini that held 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.App.2d at p. 572, 72 Cal.Rptr. 655, 446 P.2d 535.)

In his dissent in Barrows, Justice Burke expressed his view that the effect of the holding in that case “is to allow acts, however obscene, to be performed on the stage with complete immunity unless they are proscribed by other statutory provisions.”  (1 Cal.3d at p. 831, 83 Cal.Rptr. 819, 464 P.2d 483.)   Even if that be so, Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 20 Cal.Rptr. 321, 369 P.2d 937, makes clear that it is not the prerogative of an intermediate court to attempt to overrule a majority opinion of the Supreme Court.   Auto Equity Sales requires us to follow the rule of Barrows.   I therefore cannot concur in either the lead or concurring opinion.

I think also that the import of Barrows forecloses the distinction the lead opinion attempts to draw between the production of the motion picture and its distribution, attempting to afford the protection of the amendment to the distribution while withholding its protection from the production.  Barrows makes no such distinction.   In that case the Supreme Court held that the producer's petition for the writ of prohibition should have been granted along with that of the director and actors.   It is true that the producer and director in Barrows were charged only with aiding and abetting the actors in committing the violations, but the principle is the same and reflects the truth that the production of a motion picture is but an integral step from the conception of the idea of a film or a play to its viewing by an audience.   It is obvious that the strictures of the First Amendment may be just as effectively violated by penalizing production as by penalizing distribution or viewing.

I would, therefore, reverse.

FOOTNOTES

1.   Penal Code section 266i reads:  “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, persuades or 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 encouraged 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 person for 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 state for the purpose of prostitution;  or (f) receives or gives, or agrees to receive or give, any money or thing of value for procuring, or attempting to procure, another person for the purpose of prostitution, or to come into this state or leave this state for the purpose of prostitution, is guilty of pandering, a felony, and is punishable by imprisonment in the state prison for three, four, or six years, or, where the other person is under 16 years of age, is punishable by imprisonment in the state prison for three, six, or eight years.”

KINGSLEY, Acting Presiding Justice.