People v. Freeman

• Decision Date: 25 August 1988
• Docket Number: No. S000070,S000070
• Citation: 46 Cal.3d 419,250 Cal.Rptr. 598,758 P.2d 1128
• Court: California Supreme Court
• Parties: , 758 P.2d 1128, 57 USLW 2162, 15 Media L. Rep. [PG2072 The PEOPLE, Plaintiff and Respondent, v. Harold FREEMAN, Defendant and Appellant.

Page 598

250 Cal.Rptr. 598

46 Cal.3d 419, 758 P.2d 1128, 57 USLW 2162, 15 Media L. Rep. [PG2072

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

No. S000070.

Supreme Court of California In Bank.

Aug. 25, 1988.

Stuart Goldfarb and Dennis A. Fischer, Santa Monica, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Mark Alan Hart, Robert R. Anderson and Lauren E. Dana, Deputy Attys. Gen., for plaintiff and respondent.

KAUFMAN, Justice.

Defendant Harold Freeman hired and paid actors to perform in a nonobscene commercial film which portrayed sexually explicit acts. On that account he was charged with and convicted of five counts of pandering--procurement of persons "for the purpose of prostitution"--under Penal Code section 266i. He appealed contending his conduct did not constitute the crime of pandering. The Court of Appeal affirmed the judgment of conviction.

This court granted review because of First Amendment concerns and the statewide significance of the issues. Because of the language of the statutes involved and because construction of the pandering statute to make it applicable to the hiring and payment of actors to perform in a nonobscene motion picture would unlawfully impinge upon protected First Amendment rights, we are compelled to conclude the pandering statute was not intended to and does not apply to the conduct here involved and that defendant's convictions of pandering must be reversed.

I. FACTS

Defendant Freeman is the president of Hollywood Video Production Company (Hollywood Video), which is in the business of producing and marketing "adult" films. In September 1983 defendant produced and All the filming was done in the private residence of Nancy Conger, and was not open to the public. Conger was paid for the use of her home in the making of the film. She also asked if she could act in the film. Defendant agreed Conger could be in the film. With the exception of Nancy Conger, all the actors and actresses in the film were cast through the World Modeling Agency operated by Jim South. Defendant paid each actor for his or her performance in the film, and paid an additional fee to South for each performer from World Modeling Agency who had been cast for a role in the film.

                directed a film called "Caught from Behind, Part II."   Defendant hired actors and actresses to perform in the film.  As part of their roles, the performers engaged in various sexually explicit acts, including sexual intercourse, oral copulation and sodomy
                

Defendant was charged with five counts of pandering (Pen.Code, § 266i) based on the hiring of five actresses who performed sex acts in the film. ¹ Defendant was not charged with any violation of the obscenity laws (Pen. Code, § 311 et seq.) in connection with production or distribution of the film and there was no determination the film was obscene. ²

After a jury trial, defendant was found guilty on all five counts. Defendant was placed on five years probation ³ and ordered as conditions of probation to serve 90 days in the county jail and pay restitution of $10,000 under Penal Code section 1203.04 and a $100 restitution fine under Government Code section 13967, subdivision (a).

II. DISCUSSION

The issues and contentions in this case and their resolution are pervaded by a central fact. The film was not determined to be obscene and for purposes of this review must be deemed to be not obscene. Thus the prosecution of defendant under the pandering statute must be viewed as a somewhat transparent attempt at an "end run" around the First Amendment and the state obscenity laws. Landmark decisions of this court and the United States Supreme Court compel us to reject such an effort.

A. The Statutory Language

The pandering statute under which defendant was convicted provides in pertinent part: "Any person who: (a) procures another person for the purpose of prostitution ... is guilty of pandering, a felony...." ⁴ ( § 266i.)

"Prostitution" is not defined in section 266i. Rather, the definition of "prostitution" derives from Penal Code section 647, subdivision (b): " '[P]rostitution' includes any lewd act between persons for money or other consideration." (Italics added.)

The People argue that the actors and actresses in the film engaged in acts of prostitution--i.e., sexual acts for money--because they performed the acts before the movie cameras "for the money they received." Thus, the People argue, defendant was guilty of procuring the actors "for the purpose of prostitution." The People's syllogism is flawed in significant regards.

First, the definition of "prostitution" (and ultimately, therefore, the definition of "pandering") depends on the definition of a "lewd act." In Pryor v. Municipal Court (1979) 25 Cal.3d 238, 158 Cal.Rptr. 330, 599 P.2d 636 this court construed the term "lewd conduct" for purposes of prosecution under section 647, subdivision (a), proscribing lewd or dissolute conduct in a public place, a provision related to the prohibition against prostitution contained in section 647, subdivision (b). In Pryor we held that a "lewd act" requires "touching of the genitals, buttocks, or female breast for the purpose of sexual arousal, gratification, annoyance or offense...." (Italics added. Id., at p. 256, 158 Cal.Rptr. 330, 599 P.2d 636.) The definition of a "lewd act" for purposes of section 647, subdivision (b) evolved from Pryor and was applied to "prostitution" in People v. Hill (1980) 103 Cal.App.3d 525, at pages 534-535, 163 Cal.Rptr. 99 as follows: "[F]or a 'lewd' or 'dissolute' act to constitute 'prostitution,' the genitals, buttocks, or female breast, of either the prostitute or the customer must come in contact with some part of the body of the other for the purpose of sexual arousal or gratification of the customer or of the prostitute." (Italics added.)

One contention of defendant is that requisite to the crime of prostitution is the existence of a "customer" and there being no "customer" here, no prostitution was involved and therefore no procurement for purposes of prostitution and no pandering. We find it unnecessary to address that contention. Whether or not prostitution must always involve a "customer," it is clear that in order to constitute prostitution, the money or other consideration must be paid for the purpose of sexual arousal or gratification.

The payment of acting fees was the only payment involved in the instant case. This payment was made to the actors for performing in a nonobscene film. There is no evidence that defendant paid the acting fees for the purpose of sexual arousal or gratification, his own or the actors'. Defendant, of course, did not himself participate in any of the sexual conduct. Defendant, the payor, thus did not engage in either the requisite conduct nor did he have the requisite mens rea or purpose to establish procurement for purposes of prostitution. ⁵

B. First Amendment Considerations

However, even if defendant's conduct could somehow be found to come within the definition of "prostitution" literally, the application of the pandering statute to the hiring of actors to perform in the production of a nonobscene motion picture would impinge unconstitutionally upon First Amendment values.

It is the duty of this court in construing a statute to ascertain and give effect to the intent of the Legislature. (Scala v. Jerry Witt & Sons, Inc. (1970) 3 Cal.3d 359, 366, 90 Cal.Rptr. 592, 475 P.2d 864; State Compensation Ins. Fund v. Workers' Comp. Appeals Bd. (1979) 88 Cal.App.3d 43, 53, 152 Cal.Rptr. 153.) And it is fundamental Regardless of our view of the social utility of this particular motion picture, our analysis must begin with the premise that a nonobscene motion picture is protected by the guarantee of free expression found in the First Amendment. (Joseph Burstyn, Inc. v. Wilson (1952) 343 U.S. 495, 502, 72 S.Ct. 777, 780, 96 L.Ed. 1098; Burton v. Municipal Court (1968) 68 Cal.2d 684, 689, 68 Cal.Rptr. 721, 441 P.2d 281; Flack v. Municipal Court (1967) 66 Cal.2d 981, 988, 59 Cal.Rptr. 872, 429 P.2d 192; Barrows v. Municipal Court (1970) 1 Cal.3d 821, 824, 83 Cal.Rptr. 819, 464 P.2d 483.)

that the Legislature will not be presumed to intend unconstitutional results. (People v. Smith (1983) 34 Cal.3d 251, 259, 193 Cal.Rptr. 692, 667 P.2d 149; In re Kay (1970) 1 Cal.3d 930, 942, 83 Cal.Rptr. 686, 464 P.2d 142.) "[W]here ' "the terms of a statute are by fair and reasonable interpretation capable of a meaning consistent with the requirements of the Constitution, the statute will be given that meaning, rather than another in conflict with the Constitution." ' [Citations.]" (People v. Davenport (1985) 41 Cal.3d 247, 264, 221 Cal.Rptr. 794, 710 P.2d 861; accord: United States v. Delaware & Hudson Co. (1909) 213 U.S. 366, 407-408, 29 S.Ct. 527, 535-536, 53 L.Ed. 836.)

In Barrows v. Municipal Court, supra, 1 Cal.3d 821, 83 Cal.Rptr. 819, 464 P.2d 483 this court considered the applicability of criminal penalties under the vagrancy law, section 647, subdivision (a), to the live performance of a play in a theater before an audience. Although the opinion does not detail precisely what occurred, two performers, the producer and the director of the play apparently were prosecuted on account of sexually related conduct that occurred during the performance of the play.

We first noted that performance of a live play comes within the same First Amendment protection as motion pictures. The vagrancy law there at issue, section 647, subdivision (a), with its attendant requirement of lifetime registration as a sex offender, was allied to other sections prohibiting various kinds of sexual misconduct. Nothing in its history or context suggested that it was intended to apply to theatrical performances that came within the ambit of the First Amendment. The criminal penalties of the statutes there at issue, if applied to a live...