People v. Cochran

Decision Date11 July 2002
Docket NumberNo. S099260.,S099260.
Citation121 Cal.Rptr.2d 595,28 Cal.4th 396,48 P.3d 1148
CourtCalifornia Supreme Court
PartiesThe PEOPLE, Plaintiff and Respondent, v. Mac David COCHRAN, Defendant and Appellant.

Gregory Marshall, under appointment by the Supreme Court, Palo Cedro, for Defendant and Appellant.

Bill Lockyer, Attorney General, David P. Druliner and Robert R. Anderson, Chief

Assistant Attorneys General, Gary W. Schons, Assistant Attorney General, Janelle M. Boustany, Laura Whitcomb Halgren, Steven T. Oetting and Arlene Aquintey Sevidal, Deputy Attorneys General, for Plaintiff and Respondent.

CHIN, J.

Penal Code section 311.4 proscribes employing a minor to produce child pornography. (Further statutory references are to the Penal Code.) Subdivision (b) of that section provides for a longer prison sentence than otherwise if the defendant makes the pornography "for commercial purposes." We granted review to decide whether producing child pornography and posting it on the Internet in order to induce others similarly to trade such pornography on the Internet (without making a monetary profit), satisfies the statute's commercial requirement. A major reason for providing additional punishment for defendants who produce child pornography for a commercial purpose (rather than solely for personal use) is to deter and punish the production of pornography for purposes of exchanging it for other child pornography. Because courts have broadly construed the commercial purpose concept in many contexts, we conclude that posting child pornography on the Internet under the circumstances of this case satisfies the requirements of section 311.4, subdivision (b). Accordingly, we reverse the Court of Appeal judgment, which had reversed defendant's conviction for violating that provision.

FACTS

After receiving information that someone had posted child pornography on three Internet newsgroup sites,1 the FBI traced the e-mail to defendant. In conducting the warrant-based search of defendant's home, the police found a videotape defendant had made of his nine-year-old daughter and himself engaging in various sexual acts. The videotape is the source of the numerous still photographs defendant posted on the Internet. The videotape displays the child's vagina to the camera, showing her digitally penetrating herself, and inserting into her vagina a dildo and a vibrator. The videotape also shows defendant digitally penetrating the child's vagina with his finger, a dildo, a vibrator, his penis, and sodomizing her. The videotape was the primary evidence used against defendant.

From defendant's computer room, agents also recovered a packet of eight pieces of paper that had been printed from the same newsgroups to which defendant had posted the still photos of his daughter. The printed material consisted of defendant's messages and child pornography. In one message, defendant indicated he was trading in pornographic material. The message stated: "[I] did my part ... now it[`]s everyone else['s] turn [sic] no nudies." In a second message, defendant stated: "[I] did my part. [D]on't complain if you don't post...." Still another message read: "Hi there. I have tons of Preteens & Animal pics. If you [want to] trade big time please email me to: royr@hotmail.com [¶] Bye, Roy. [¶] P.S. [H]ere is some [samples] of the things [I] have...." After his arrest, defendant commented: "When you're caught, you're caught." He admitted posting the photographs on the Internet, and stated he made the pictures in the two months prior to the search of his home. He also admitted having engaged in sexual intercourse with his daughter over the four months prior to his arrest.

The child testified that the sexual relationship with her father began in the summer before the search, when she was about to enter fourth grade. She stated that her father filmed her with the video-camera once. She was not afraid of him, and he would hurt her "a little bit, but not that much." When she told him he was hurting her, he would stop. After the sexual acts, defendant would give his daughter money, school items, or candy. He told her not to say anything to anyone because he would get into trouble and go to jail. The child indicated she was both sad and angry about the things her father did to her.

Following a court trial, defendant was convicted and sentenced under numerous felony counts, including violating section 311.4, subdivision (b). The Court of Appeal reversed defendant's conviction for violating section 311.4, subdivision (b), after concluding his conduct was insufficient to support the conviction for employing a minor to produce pornography for "commercial purposes" under the statute. The dissent would have affirmed the conviction, concluding that the statute intended to punish pornographers who intend to trade the material on a widespread basis, which includes trading over the Internet.

The single issue for review is whether the Court of Appeal properly reversed defendant's conviction under section 311.4, subdivision (b), because the evidence failed to show that the photographs were produced and posted on the Internet for commercial purposes. The court modified the conviction after concluding that defendant used the child to produce pornographic images for noncommercial purposes, a violation of section 311.4, subdivision (c).

DISCUSSION
1. Statutory Construction

The "`goal of statutory construction is to ascertain and effectuate the intent of the Legislature.'" (People v. Jefferson (1999) 21 Cal.4th 86, 94, 86 Cal. Rptr.2d 893, 980 P.2d 441.) In approaching this task, we must first look at the plain and commonsense meaning of the statute because it is generally the most reliable indicator of legislative intent and purpose. (People v. Valladoli (1996) 13 Cal.4th 590, 597, 54 Cal.Rptr.2d 695, 918 P.2d 999.) If there is no ambiguity or uncertainty in the language, the Legislature is presumed to have meant what it said, and we need not resort to legislative history to determine the statute's true meaning. (People v. Hendrix (1997) 16 Cal.4th 508, 512, 66 Cal.Rptr.2d 431, 941 P.2d 64.)

2. Section 311.4, Subdivision (b)

Section 311.4, subdivision (b), provides in part: "Every person who, with knowledge that a person is a minor under the age of 18 years ... knowingly promotes, employs, uses, persuades, induces, or coerces a minor ... to engage in ... preparing any representation of information, data, or image, including, but not limited to, any ... photograph ... videotape ... or any other computer-generated image that contains or incorporates in any manner ... a live performance involving, sexual conduct by a minor under the age of 18 years alone or with other persons ... for commercial purposes, is guilty of a felony and shall be punished by imprisonment in the state prison for three, six, or eight years."2 (Italics added.)

The statute also covers a parent or guardian who knowingly permits his or her child to participate in the production of pornography for commercial purposes. Therefore, under section 311.4, subdivision (b), the elements of the crime of the use of a child in the production of pornography for commercial purposes are as follows: For any person, the defendant must: (1) knowingly have caused a child, (2) who is known or should be known to be a child, (3) to participate in the production of any representation of sexual conduct by a child, (4) for commercial purposes. For a parent or guardian of a child under his or her control, a defendant must: (1) knowingly have permitted the child, (2) to participate in the production of any representation of sexual conduct by a child, (3) for commercial purposes.

Section 311.4, subdivision (c), is substantially identical to subdivision (b), except that it provides for a lesser degree of punishment by providing that: "It is not necessary to prove commercial purposes in order to establish a violation of this subdivision." (See § 18 [defining felony punishment not otherwise prescribed as imprisonment for 16 months, or two or three years].) Section 311.4, subdivision (c), therefore provides for a less serious offense with a less severe sentencing range than subdivision (b).

Enacted in 1961, section 311.4 is part of a statutory scheme "`to combat the exploitive use of children in the production of pornography.'" (People v. Cantrell (1992) 7 Cal.App.4th 523, 540, 9 Cal. Rptr.2d 188.) The statute is "aimed at extinguishing the market for sexually explicit materials featuring children." (Ibid.) The Legislature was particularly concerned "with visual displays such as might be found in films, photographs, videotapes and live performances," and section 311.4 thus "prohibits the employment or use of a minor ... in the production of material depicting that minor in `sexual conduct.'" (Cantrell, supra, at p. 540, 9 Cal.Rptr.2d 188.)

Although section 311.4, subdivision (b), does not define the term "commercial purposes," the Court of Appeal majority agreed with defendant's principal claim that it "is a phrase generally associated with a profitmaking enterprise." (People v. Tatman (1993) 20 Cal.App.4th 1, 13, 24 Cal.Rptr.2d 480.) In construing the meaning of commercial purposes, the majority concluded no evidence showed defendant intended to make a profit from the pornographic photographs he posted on the Internet. The court reasoned that the posting of defendant's photographs on the Internet for trading with other pedophiles did not show he had a commercial purpose when he posted them. The court observed that "[t]he [posting] of the photographs may demonstrate the invidious nature of the Internet in perpetuating the appearance of material even after it has been removed from a particular site, but it does not show that [the] person posting the material had a commercial purpose, i.e., an intent to make a profit, when he posted the material."

The Court of Appeal majority also rejected the Attorney General's claim that defendant's...

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