People v. Freeman

• Decision Date: 06 January 1987
• Citation: 233 Cal.Rptr. 510,198 Cal.App.3d 292
• Court: California Court of Appeals Court of Appeals
• Parties: Previously published at 198 Cal.App.3d 292 198 Cal.App.3d 292 The PEOPLE, Plaintiff and Respondent, v. Harold FREEMAN, Defendant and Appellant. B015697.

Page 510

233 Cal.Rptr. 510

Previously published at 198 Cal.App.3d 292

198 Cal.App.3d 292

The PEOPLE, Plaintiff and Respondent, v. Harold FREEMAN, Defendant and Appellant.

B015697.

Court of Appeal, Second District, Division 4, California.

Jan. 6, 1987.

Review Granted April 16, 1987.

John K. Van de Kamp, Atty. Gen., Mark Alan Hart and Lauren E. Dana, Deputy Attys. Gen., for plaintiff and respondent.

Stuart Goldfarb, Beverly Hills, for defendant and appellant.

KINGSLEY, Acting Presiding Justice.

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.

ARGUELLES, Associate Justice, concurring.

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.

McCLOSKY, Associate Justice, dissenting.

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...