People v. Kongs

• Decision Date: 21 December 1994
• Docket Number: No. B081574,B081574
• Citation: 37 Cal.Rptr.2d 327,30 Cal.App.4th 1741
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Appellant, v. Eric John KONGS, Defendant and Respondent.

Page 327

37 Cal.Rptr.2d 327

30 Cal.App.4th 1741

The PEOPLE, Plaintiff and Appellant, v. Eric John KONGS, Defendant and Respondent.

No. B081574.

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

Dec. 21, 1994.

As Modified Jan. 18, 1995.

Review Denied April 23, 1995.

Gil Garcetti, Dist. Atty., and Brent Riggs, Ronald M. Geltz and Dirk L. Hudson, Deputy Dist. Attys., for plaintiff and appellant.

Michael P. Judge, Public Defender, and Albert J. Menaster, Douglas Goldstein and Kathy Quant, Deputy Public Defenders, for defendant and respondent.

BOREN, Presiding Justice.

Eric John Kongs was charged with the crimes of annoying or molesting a minor, using a minor to pose for visual depictions of sexual conduct, and possessing child pornography.

After Kongs was held to answer by a magistrate, the superior court set aside the information. We find that there was sufficient evidence to support the magistrate's ruling, and reverse the order setting aside the information.

FACTS

Kongs encountered the victim in this case, Amanda C., at "family photo shoots." These are events at which numerous photographers take pictures of models of varying ages so that both the photographers and the models can develop portfolios. Amanda started posing as a model at photo shoots when she was nine years old.

Kongs photographed Amanda when she was ten or eleven years old. His photography made her uncomfortable. Kongs would ask her to sit on a fence rail or playground attraction and spread her legs apart. He also instructed her to put a finger on her chin and her other hand on her waist, in a suggestive manner. Sometimes, he would ask her to perform cartwheels or flips. Kongs would focus his camera on the area below her waist. He did not point the camera at her face. Amanda objected to her family and friends about Kongs's photography.

Amanda's mother recalled seeing Kongs at many photo shoots. He would always take pictures of children and young girls. She did not like the photographs she received from Kongs because he posed Amanda as if she were sixteen or seventeen years old instead of ten and focused on Amanda's crotch. She was appalled when Kongs sent her a picture which made it appear that Amanda was nude beneath a tiny jacket.

The Los Angeles County Sheriff's Department launched an investigation to identify pedophiles who attend photo shoots. An undercover officer pretended to be a photographer and attended the photo shoots. He observed Kongs photographing girls under the age of fourteen in poses where their legs would be spread and their panties or genitalia would be showing. While the girls were The sheriff's department executed a search warrant at Kongs's residence. They discovered numerous photographs and videotapes, the majority of which depicted "crotch shots of minors," according to an investigating officer. He could not verify whether Kongs took these photographs. There were also photographs of nude children under the age of eleven.

wearing shorts or skirts, Kongs would direct them to lift their legs and knees up in the air so as to expose their underwear, then focus his camera on the area between their legs. None of the models was nude during these photo shoots.

Kongs was arrested on April 9, 1993. He waived his right to remain silent. When asked about the photographs of young girls' panties, Kongs analogized the feeling he obtained from these to the exhilaration one experiences during a roller coaster ride. Kongs described the exposure of the girls' panties as "a fetish."

Kongs was charged in an amended information with eight counts of annoying or molesting a child (Pen.Code, § 647.6), three counts of using a minor to pose for visual depictions of sexual conduct (Pen.Code, § 311.4, subd. (c)), and one count of possessing child pornography (Pen.Code, § 311.11, subd. (a)).

A magistrate held Kongs to answer on the charges following a preliminary hearing. Kongs demurred to the information. His demurrer was overruled. However, the superior court set aside the information pursuant to Penal Code section 995, finding that Kongs had not committed a lewd and lascivious act with a minor, nor was any sexual conduct involved. The People appeal.

DISCUSSION

1. Standard of Review

Penal Code section 995 permits the court to set aside an information on a finding that the defendant was committed without reasonable or probable cause. On appeal, the superior court's decision to set aside the information is disregarded, and the magistrate's determination holding the defendant to answer is directly reviewed. (People v. Laiwa (1983) 34 Cal.3d 711, 718, 195 Cal.Rptr. 503, 669 P.2d 1278.)

" 'Our task is to determine whether the magistrate, acting as a person of ordinary prudence, could conscientiously entertain a reasonable suspicion that the defendant committed the crime charged. (People v. Stansbury (1968) 263 Cal.App.2d 499, 502 .) To that end, we draw every legitimate inference supported by the competent evidence and refrain from substituting our judgment for that of the magistrate. If the record demonstrates some showing of every element of the charge (People v. Love (1988) 203 Cal.App.3d 1505, 1507 ), we must affirm the magistrate's ruling denying the motion to set the charge aside.' " (People v. Hwang (1994) 25 Cal.App.4th 1168, 1175, 31 Cal.Rptr.2d 61, quoting People v. Alonzo (1993) 13 Cal.App.4th 535, 538, 16 Cal.Rptr.2d 656.)

2. Freedom of Expression

Kongs grounds his argument on the First Amendment right to freedom of expression. He asserts that the state's prosecution violates his constitutional right because it attempts to regulate his thoughts rather than child pornography.

In New York v. Ferber (1982) 458 U.S. 747, 756, 102 S.Ct. 3348, 3354, 73 L.Ed.2d 1113, the Supreme Court acknowledged that states are entitled to greater leeway in the regulation of child pornography than the court otherwise allows in obscenity cases. ¹

The Ferber opinion offers five reasons for allowing states to restrict pornographic depictions of children. First, the states have an interest in " 'safeguarding the physical and psychological well-being of a minor.' " (458 U.S. at pp. 756-757, 102 S.Ct. at p. 3354.) Second, these depictions are sexually The Supreme Court placed some limits on the category of child pornography which, like obscenity, is unprotected by the First Amendment. It specified that the prohibited conduct must be adequately defined by the applicable state law and that the offense be limited to works that visually depict sexual conduct by children below a certain age. The types of sexual conduct must also be limited and described. (Id. at p. 764, 102 S.Ct. at p. 3358.) Forbidding "lewd exhibition of the genitals" is an example of a permissible regulation. (Id. at p. 765, 102 S.Ct. at p. 3359.) The trier of fact need not find that the material appeals to the prurient interest of the average person, nor find that it portrays sexual conduct in a patently offensive manner. The material at issue need not be considered as a whole. Criminal responsibility may not be imposed without some element of scienter on the part of the defendant. (Id. at pp. 764-765, 102 S.Ct. at p. 3358.)

                abusive in that they are a permanent record of a child's participation and lead to the creation of networks which foster further exploitation.  (Id. at p. 759, 102 S.Ct. at p. 3355.)   Third, the advertising and selling of child pornography provides an economic motive for the illegal production of these materials.  (Id. at p. 761, 102 S.Ct. at p. 3356.)   Fourth, the value of these depictions is de minimis.  (Id. at p. 762, 102 S.Ct. at p. 3357.)   Fifth, recognizing that child pornography is outside the protections of the First Amendment is compatible with decisions making the content of speech sanctionable if the evils of the speech outweigh the expressive interests at stake.  (Id. at pp. 763-764, 102 S.Ct. at pp. 3357-3358.)
                

Mindful of these guidelines, we shall examine the charges against Kongs to determine whether his freedom of expression is abridged by the charges against him.

3. Charges of Annoying or Molesting a Child

Penal Code section 647.6 makes it a felony to "annoy or molest any child under the age of 18" if the individual charged with this crime has a prior felony child molestation conviction. ² "Annoy and molest" are synonymous and mean to disturb or irritate, especially by continued or repeated acts; to vex, to trouble; to irk; or to offend. (People v. Carskaddon (1957) 49 Cal.2d 423, 426, 318 P.2d 4; People v. Thompson (1988) 206 Cal.App.3d 459, 463, 253 Cal.Rptr. 564; CALJIC No. 16.441.)

In interpreting Penal Code section 647.6, the courts have focused on the defendant's intent and an objective assessment of the defendant's conduct. " 'When the words annoy or molest are used in reference to offenses against children, there is a connotation of abnormal sexual motivation on the part of the offender. Although no specific intent is prescribed as an element of this particular offense, a reading of the section as a whole in the light of the evident purpose of this and similar legislation enacted in this state indicates that the acts forbidden are those motivated by an unnatural or abnormal sexual interest or intent with respect to children. It should be noted further that the section must be construed reasonably as setting up an objective test for annoyance or molestation; a childish and wholly unreasonable subjective annoyance, arising, for example, from a child's dislike for proper correction by a teacher, is not covered by the section. The annoyance or molestation which is forbidden is in no sense a purely subjective state on the part of the child.' " (People v. Tate (1985) 164 Cal.App.3d 133, 139, 210 Cal.Rptr. 117. Accord: In re Gladys R. (1970) 1 Cal.3d 855, 867-868, 83 Cal.Rptr. 671, 464 P.2d 127.)

For the most part, Penal Code section 647.6 has been applied to incidents of explicit sexual conduct, where a defendant:...