PEOPLE v. FREEMAN (1987)

By an opinion filed January 6 of this year, we affirmed the defendant's conviction for a violation of the pandering statute, Penal Code section 266i.  (People v. Freeman (Jan. 6, 1987, B015697).   In that opinion, we held that the defendant had violated this statute by his employment of actors and actresses to appear in a pornographic motion picture.  Penal Code section 266i states that conviction under this statute is punishable by imprisonment for a period of three, four, or six years.   In addition, Penal Code section 1203.065 forbids the court to grant probation or suspend the sentence of a defendant found guilty of violating that section.¹  Following the defendant's conviction, however, the trial court sentenced the defendant to five years probation, with the first 90 days to be served in county jail, and assessed the defendant the maximum restitutionary fine of $10,000.   The court declined to sentence the defendant to the mandatory minimum three-year prison term required by Penal Code section 1203.065, ruling that the application of that statute to the facts of this case would constitute cruel and unusual punishment.

The People have appealed from that order.   They cite the recent opinion in People v. O'Connor (1987) 188 Cal.App.3d 645, 233 Cal.Rptr. 529 and People v. Jeffers (1987) 188 Cal.App.3d 840, 233 Cal.Rptr. 692 for the proposition that the pandering statute does not impose inherently cruel and unusual punishment.   With this we agree.   We see nothing in that opinion, however, that limits a trial court's discretion to determine that a sentence is disproportionate to a defendant's individual culpability, as the trial court did here.  (People v. Dillon (1983) 34 Cal.3d 441, 194 Cal.Rptr. 390, 668 P.2d 697.)

In In re Lynch (1972) 8 Cal.3d 410, 425–429, 105 Cal.Rptr. 217, 503 P.2d 921, the Supreme Court identified a number of criteria useful in determining whether a particular sentence was so disproportionate to the crime as to constitute cruel and unusual punishment.   These included considering both “the nature of the offense and/or the offender, with particular regard to the degree of danger both present to the society” and comparing “the challenged penalty with the punishments prescribed in the same jurisdiction for different offenses․”  (In re Lynch, supra, 8 Cal.3d at pp. 425–426, 105 Cal.Rptr. 217, 503 P.2d 921;  emphasis in original.)

We note that defendant's mandatory sentence of three, four, or six years for hiring adult actors to appear in a pornographic film is the same the defendant would receive if he had committed an armed robbery.²  In addition to carrying a penalty comparable to the most severe offenses, the actual danger this crime poses to the public is minimal.³  While there is undeniably a valid societal interest in preventing the exploitation of the naive actors and actresses who may have appeared in defendant's films, it is generally conceded that this interest is somewhat less than that involved in protecting the public from holdups.   While we have no difficulty in holding that Penal Code section 1203.065 is constitutional, we conclude, as did the trial court, that the application of a minimum three-year prison sentence to the defendant in this case constitutes cruel and unusual punishment.

The order is affirmed.

I reluctantly concur in the affirmance of the trial court's order of July 15, 1985.   This appeal (People v. Freeman (B016295)) arises from an appeal by the People from the trial court's order of July 15, 1985, suspending proceedings and granting probation for five years on the conditions, among others, that the defendant spend the first 90 days in county jail and pay the maximum restitution fine of $10,000 pursuant to Government Code section 13967, subdivision (a).

In People v. Freeman (Jan. 6, 1987, B015697), I dissented from my colleagues' affirmance of the conviction of defendant for the violation of Penal Code section 266i,¹ in the production of the film “Caught From Behind, II.”   I did so based on my belief (1) that sound principles of stare decisis (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 20 Cal.Rptr. 321, 369 P.2d 937) compel us as an inferior court to follow the majority opinion of the California Supreme Court in Barrows v. Municipal Court (1970) 1 Cal.3d 821, 83 Cal.Rptr. 819, 464 P.2d 483, and (2) that the First Amendment to the United States Constitution and article I, section 2 of the California Constitution, under the circumstances of this case, prohibit defendant's conviction for the crime of violating section 266i.

Having done so, I now find myself in the uncomfortable position of having to participate in the appellate review of the July 15, 1985, order of the trial court.

I start from the premise that there is nothing inherently unconstitutional in the provisions of section 1203.065, prohibiting the suspension of imposition of sentence and the grant of probation to any person properly convicted of violating section 266i.  (See People v. O'Connor (1987) 188 Cal.App.3d 645, 233 Cal.Rptr. 529 and People v. Jeffers (1987) 188 Cal.App.3d 840, 233 Cal.Rptr. 692.)

In making its July 15, 1985, order the trial court held that “the sentence prescribed by law in this case, the mandatory three years in State Prison, under the facts of this case, is cruel and unusual and grossly disproportionate to the offense committed, and to the offender, the defendant.”  People v. Fixler (1976) 56 Cal.App.3d 321, 128 Cal.Rptr. 363, which involved unlawful acts with a 14 year old, is clearly distinguishable from the case at bench which involves only consenting adults performing lawful acts in a private residence, a place not open to the public.

In People v. Dillon (1983) 34 Cal.3d 441, 480, 194 Cal.Rptr. 390, 668 P.2d 697, the Supreme Court held that “․ a punishment which is not disproportionate in the abstract is nevertheless constitutionally impermissible if it is disproportionate to the defendant's individual culpability.”

I agree with Justice Kingsley that the application of section 1203.065, subdivision (a) to the defendant on the facts of this case would constitute cruel and unusual punishment and would be grossly disproportionate to the offense found by the majority to have been committed in case number B016295.   I consequently concur that given the affirmance in said case number B016295 that the sentence imposed should be affirmed.

I respectfully dissent.

In 1976, this appellate district held that, “The purpose of the anti-pandering statute (Pen.Code, § 266i) is 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.’   [Citations.]”  (People v. Fixler (1976) 56 Cal.App.3d 321, 327, 128 Cal.Rptr. 363.)

Engaging in the process of inductive reasoning to ascertain just what “evil” the anti-pandering statute seeks to condemn, we can trace that evil from the statute's language.  “The term ‘procure,’ as it is used in the statute with relation to the crime of pandering, has a very definite and well understood meaning.   A procurer is one who exploits the virtue of a female by soliciting trade for a lewd and lascivious woman to gratify the lusts of other persons.   A procurer is an agent who promotes prostitution.  [Citations.]  The result of soliciting patronage as the agent of a depraved woman is equally harmful to society whether the procurer carries on his loathsome trade with or without her consent.”  (People v. Cimar (1932) 127 Cal.App. 9, 13, 15 P.2d 166, emphasis added.)

As far as the Legislature and the courts are concerned, the evils of promoting prostitution did not change between the time People v. Cimar, supra, 127 Cal.App. 9, 15 P.2d 166, was decided and the time People v. Fixler, supra, 56 Cal.App.3d 321, 128 Cal.Rptr. 363, was decided 44 years later, just as the Legislature's three amendments to the anti-pandering statute in the 10 years that have passed since Fixler was decided have not specifically excepted still picture photographers or photo editors (or movie producers) from those who are subject to prosecution and conviction for pandering under the statute just because they are snapping pictures or rolling film.

While the “evil” to be condemned has not changed, the form of the promotion (of prostitution) and exploitation (of others' virtue for lustful gratification) has changed.   When Cimar was decided, the “evil” usually took form in houses of prostitution (see Pen.Code, § 266i, subds. (c), (d));  as the court there concluded, “the legislature evidently intended to discourage the nefarious business of replenishing houses of prostitution with inmates.”  (People v. Cimar, supra, 127 Cal.App. at p. 14, 15 P.2d 166.)   Now, however, the “evil” may also take the form of celluloid film or magnetic videotape of sex acts, performed for money, that can be played and replayed in movie theatres and on home video cassette players.   I do not, however, believe that this change in form has changed the nature of the promotion and exploitation involved.   One need look no further than count II here to see that the defendant promoted the prostitution of, and exploited, the owner of the residence where the filming occurred, a woman who had no acting experience and considered herself naive but had a desire or fantasy to be an “actress.”   Defendant promoted the loss of, and exploited, her naivete in the gratification of others' lust through the medium of filmed sexual acts by employing her to engage in various sexual acts including intercourse before the camera, for which he paid her $200.   Such on-location recruiting of neophytes is the same “nefarious business of replenishing,” with respect to an industry which exploits the performance of sex acts for money, that the Cimar court found the Legislature intended to discourage with respect to houses of prostitution.¹  Then, as now, the person's consent is immaterial.

In the light of this review of the “evil” proscribed by the pandering statute, I am unpersuaded by the sentencing court's reasoning that the Legislature intended the statute to apply only to those connected with the urban blight, violence and squalor of “street” pandering when the court refused to impose the prescribed minimum three-year sentence without probation (Pen.Code, § 1203.065, subd. (a)) as cruel and unusual as applied here, pursuant to People v. Dillon (1983) 34 Cal.3d 441, 194 Cal.Rptr. 390, 668 P.2d 697.   If it were only “force, violence, threats,” victimization of neighborhoods, engendering of “street crime, litter or the repulsive specter [sic] of prostitutes soliciting people walking down the street in front of innocent citizens and school children in decent neighborhoods” that made pandering pernicious enough to warrant a state prison sentence, as reasoned by the sentencing judge here, then certainly that commercially successful class of prostitution sometimes referred as “out-call” and operated like, or more often under the guise of, an escort service must also be exempt from the minimum three-year state prison sentence of the anti-pandering statute.   Is the defendant here, holding himself out as a legitimate movie producer, so unlike a panderer of “out-call” prostitution of the type described by the recently-publicized “Mayflower Madam”?   Is the nature of the exploitation of virtue and promotion of prostitution significantly different as between “out-call” prostitution panderers and “streetwalker” prostitution panderers so that a lenient three-month jail term is justified in the former while a mandatory three-year prison term is statutorily required in the latter?   Not only do I not think so, but I do not believe the Legislature thinks so either.

This is not to say that panderers who employ force, violence, threats, drugs and any manner of vile and despicable coercive techniques of procuring are undeserving of more severe punishment than panderers who operate out of penthouse office suites without using such techniques.   That is the very reason why the statute provides alternative sentences of three, four, or six years.   That is the proportionality that should have been applied here—the very proportionality provided by the Legislature within the statute and left intact by it even after People v. Fixler, supra, 56 Cal.App.3d 321, 128 Cal.Rptr. 363 was decided.

As for the concern that state prison sentences will have a chilling effect on constitutionally protected creative expression in the theatre or film industries, that concern can only come from the mercenary voices of those who profit by the kind of exploitation involved here.   If people performing sex acts before cameras are truly “actors” and “actresses,” then let them act.   Sex has been simulated effectively in the theatre and on the screen for years, just as violence and death have.   But prostitution and pandering are not entitled to legal protection or less severe punishment just because such crimes are committed for an “adult sex film,” just as murder deserves no protection or mitigated punishment when committed for a so-called “snuff film.”

For these reasons, I would reverse the sentence and remand the matter for resentencing in a manner consistent with the views I have expressed.

FOOTNOTES

1.   Penal Code section 1203.065, subdivision (a), provides:  “Notwithstanding any other provision of law, probation shall not be granted to, nor shall the execution or imposition of sentence be suspended for, any person convicted of violating subdivision (2) of Section 261, or Section 264.1, or Section 266h, or Section 266i, or Section 266j, or 289, or of committing sodomy or oral copulation in violation of Section 286 or 288a by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person or subdivision (c) of Section 311.4.”

2.   Penal Code sections 211, 212.5, 213, 12022, subdivisions (a) and (b), and 1203.06, subdivision (a)(1)(iii).

3.   The only danger that can plausibly be suggested is that it exploits those few gullible actors and actresses who entertain visions of stardom, and who may be embarrassed later in life by their celluloid histories.   Unlike the dissent, we fail to see how either of these evils would be eliminated by having the actors engage in simulated intercourse, or, for that matter, how they would be less exploited if they had performed the same acts on film, but had gone without pay—conduct which would not constitute pandering.

1.   Unless otherwise expressly noted, all statutory references herein are to the Penal Code.

1.   Defendant, as a purveyor of what he, himself, calls “filth” and “smut,” was charged with pandering as to four other women who were veteran adult film “actresses” employed to engage in such sex acts as vaginal intercourse, oral copulation and anal intercourse before the cameras on the same film.   By his own account, defendant has produced more than 100 full-length sex films since 1968.

KINGSLEY, Acting Presiding Justice.