People v. Fixler

• Decision Date: 17 March 1976
• Docket Number: Cr. 27157
• Citation: 128 Cal.Rptr. 363,56 Cal.App.3d 321
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Fred FIXLER and Harry Lee Utterback, Jr., Defendants and Appellants.

Page 363

128 Cal.Rptr. 363

56 Cal.App.3d 321

The PEOPLE of the State of California, Plaintiff and Respondent, v. Fred FIXLER and Harry Lee Utterback, Jr., Defendants and Appellants.

Cr. 27157.

Court of Appeal, Second District, Division 2, California.

March 17, 1976.

Hearing Denied May 14, 1976.

Fleishman, McDaniel, Brown & Weston by David M. Brown, Los Angeles, for defendants and appellants.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Howard J. Schwab and Jack T. Kerry, Deputy Attys. Gen., for plaintiff and respondent.

COMPTON, Associate Justice.

In a nonjury trial defendants Fixler and Utterback were convicted of conspiring to violate Penal Code section 266i (pandering). In addition, Fixler was convicted of two substantive counts of pandering and Utterback was convicted of one substantive count of pandering. They appeal from the judgment of conviction.

There is little dispute as to the facts underlying the judgment. Utterback was one of several photographers employed by American Art Enterprises, a concern that publishes various magazines devoted to the depiction of sexual activity. Fixler was a 'photo editor' for American Art Enterprises. In that capacity he directed the work of the photographers and from time to time held meetings at which the quality and content of the pictures was discussed. At one meeting Fixler gave instructions to the photographers as to what they should do in the case of arrest.

The photographers obtained the services of their subjects from independent modeling agencies and paid various fees to these 'models' for engaging in several types of sexual activity while being photographed. This activity ran the gamut from masturbation through homosexual oral copulation to heterosexual oral copulation and sexual intercourse.

The instant prosecution was based essentially on the use of one Patricia, a fourteen year old girl who was hired on some 8 to 15 occasions to perform for Utterback and one Robert Kanters, ¹ in return for money which was provided by American Art Enterprises.

Penal Code section 266i condemns among other things the procuring of another person for the purpose of prostitution or the causing, inducing, persuading or encouraging another to become a prostitute.

Prostitution is defined as 'Common lewdness of a woman for gain' (Black's Law Dictionary (4th ed.)) 'act or practice of engaging in sexual intercourse for money.' (Random House Dictionary of the English Language (Unabridged Ed.)) or '. . . any lewd act between persons for money or other consideration.' (Pen.Code, § 647(b).)

There can be no question but that Patricia engaged in lewd acts and sexual intercourse for money and that defendants, by providing the money and directing her performances, procured, caused and induced her to do so. (See People v. Bradshaw, 31 Cal.App.3d 421, 107 Cal.Rptr. 256; People v. Montgomery, 47 Cal.App.2d 1, 117 P.2d 437; People v. Courtney, 176 Cal.App.2d 731, 1 Cal.Rptr. 789.) There is nothing in statute or case law which would remove this conduct from the ambit of the statute (Pen.Code, § 266i) simply because the money was provided by nonparticipants in the sexual activity or because the defendants' primary motivation was to photograph the activity.

It seems self-evident that if A pays B to engage in sexual intercourse with C, then B is engaging in prostitution and that situation is not changed by the fact that A may stand by to observe the act or photograph it. A criminal act is not made any the less criminal by pictorial recordation of the act. (See People v. Zeihm, 40 Cal.App.3d 1085, 115 Cal.Rptr. 528.)

Although defendants couch their claims of error in a number of differently phrased arguments, their basic contention is the ingenuous but fallacious one that because their intent was to publish some of the photographs in a magazine their conduct in procuring Patricia to engage in lewd conduct for money is somehow clothed with First Amendment protection and that they cannot be convicted of pandering without proof that use of the photographs in the magazine would violate the obscenity statutes. To buttress this position defendants made an offer in the trial court to produce an 'expert' witness to testify that these pictures of Patricia that found their way into the magazines had important social value. That offer was properly rejected as irrelevant.

The prosecution 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...