Super Pose Book Nude Ver Pdf
Edelira Longinotti
Robert Michael Pecci was convicted of committing various sexual offenses including filming sexual conduct with a minor for a noncommercial purpose in violation of Penal Code section 311.4 subdivision (c). fn. 1 Section 1203.065 subdivision (a) expressly prohibits a grant of probation if this enumerated offense has been committed. The trial court adhered to the letter of the law, ruled that appellant was not eligible for probation, and sentenced him to prison for the upper three-year term. It also imposed consecutive terms for other sexual offenses for an aggregate term of five years.
Appellant committed the offenses against his 16-year-old niece, J. J. told appellant that she was interested in modeling and appellant offered to pay her to pose nude. They went to a motel room where he videotaped and [72 Cal. App. 4th 1503] photographed her in several explicit poses. Appellant told J. that she would be performing sexual acts with an anonymous l8-year-old male model and that she would be blindfolded. Appellant blindfolded J., and pretended that the male model entered the room. Then appellant performed several sex acts with her. He filmed this activity.
The punishment for violation of section 311.4 subdivision (c), is sixteen months, two years, or three years in state prison and section 1203.065 subdivision (a) expressly prohibits probation. Section 311.4, subdivision (b) criminalizes the same conduct with one additional element. If the offense is committed for commercial purposes, the punishment is three years, six years, or eight years in prison but probation is theoretically possible.
Reliance on Palermo v. Stockton Theatres, Inc. (1948) 32 Cal. 2d 53 [195 P.2d 1] is misplaced. The dissent utilizes the Palermo rule to construe section 1203.065 subdivision (a) as being directed only to commercial filmers. But, when section 1203.065 subdivision (a) was amended in 1981 to refer to section 311.4, it only applied to filmers who preyed upon minors under the age of 14 for commercial purposes. Here the minor was 16 years old and section 1203.065 subdivision (a) would not have applied in any event. In such circumstances, the dissent should not be able to use only a selective portion of the 1981 version of the statute to strike the present legislative preclusion of probation. Moreover, the Palermo rule is not to be applied in a vacuum. The determining factor is legislative intent. (In re Jovan B. (1993) 6 Cal. 4th 801, 816 [25 Cal. Rptr. 2d 428, 863 P.2d 673].) The Legislature is presumed to have meant what it said and the plain meaning of the language governs. The dissent should not be construing the statute at all. [72 Cal. App. 4th 1506]
The punishment scheme for the commercial filmer is greater than for the noncommercial filmer. However, in fact, it may be that the commercial filmer poses less of a danger to the victim than the noncommercial filmer. The commercial filmer wants to make money. In the commercial setting there may be additional personnel available and so, at least in theory, it may be physically safer for the victim. In the noncommercial setting, it may be less safe for the victim for there may not be any additional people present to prevent impromptu assaults. The noncommercial filmer wants sexual gratification. The facts of this aggravated case show that it is debatable which offense is more serious. Here the victim was blindfolded and would not have engaged in sex with appellant. Alone and fooled, she participated in these sex acts. Just which offense is "more serious" is addressed to the sound judgment of the Legislature. The courts do not judge the wisdom of statutes. (Wells Fargo Bank v. Superior Court (1991) 53 Cal. 3d 1082, 1099 [282 Cal. Rptr. 841, 811 P.2d 1025].) fn. 4
We concede the possibility of legislative oversight. If so, the Legislature should provide the remedy. (See, infra, at p. 1507) But a variation of this theory can be advanced to support affirmance of the judgment. That is to say, the Legislature intended to preclude probation for both commercial and noncommercial filmers. The only oversight was not precluding probation for the commercial filmer. This argument is bolstered by the Attorney General's observation that the Legislature has imposed greater penalties for those who commit crimes against children and it is just as logical to conclude that the Legislature intended to preclude probation for both types of filmers.
[5] " ' "The literal meaning of the words of a statute may be disregarded to avoid absurd results...." ' [Citation.]" But this "exception should be used most sparingly by the judiciary and only in extreme cases else we violate the separation of powers principle of government. [Citation.] We do not sit as a 'super-legislature.' [Citation.]" (Unzueta v. Ocean View School Dist., supra, 6 Cal.App.4th at p. l698.)
Penal Code section 1203.065, subdivision (a) fn. 1 provides that a court may not grant probation to a defendant convicted of violating "subdivision (c) of Section 311.4." Section 311.4, subdivision (c) currently prohibits filming or videotaping sexual conduct by a minor for noncommercial purposes. In 1981, when section 1203.065 was first amended to include section 311.4 among its list of probation-ineligible offenses, subdivision (c) defined a different and more serious crime: the filming or videotaping of a minor under age 14 for commercial purposes.
I believe that under the rule of Palermo v. Stockton Theatres, Inc. (1948) 32 Cal. 2d 53 [195 P.2d 1], section 1203.065, subdivision (a) incorporated the 1981 version of section 311.4, subdivision (c). Persons convicted of filming a minor for noncommercial purposes under the current version of section 311.4, subdivision (c), like the appellant in this case, are thus eligible for probation. Because the trial court denied appellant probation based on the belief that he was statutorily ineligible, I would remand for resentencing.
Section 1203.065 was originally enacted in 1979 and listed a number of sexual offenses for which a prison sentence was mandatory. (Stats. 1979, ch. 944, 15, p. 3262.) In 1981, it was amended to include section 311.4, subdivision (c), as such an offense. (Stats. 1981, ch. 1043, 5, p. 3996, urgency, eff. Sept. 30, 1981; ch. 1064, 3.5, pp. 4094-4095 .) The version of section 311.4, subdivision (c) which was then in effect prohibited filming a minor under 14 for commercial purposes. (Stats. 1981, ch. 1043, 4, pp. 3995-3996, urgency, eff. Sept. 30, 1981.) Section 311.4, subdivision (c) has been amended several times since 1981 and now prohibits filming a person under 18 age for noncommercial purposes. [72 Cal. App. 4th 1509]
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], citing In re Duncan (1987) 189 Cal. App. 3d 1348, 1360 [234 Cal. Rptr. 877].) It was enacted in 1961 and originally prohibited the use of minors in the sale and distribution of obscene matter. (People v. Cantrell, supra, 7 Cal.App.4th at p. 540.) The statute was amended in 1977 to add subdivision (b), which prohibited filming sexual conduct by a minor under age 16 for commercial purposes. (Stats. 1977, ch. 1148, 3, p. 3688, urgency, eff. Sept. 29, 1977.) Subdivision (c) defined the term "sexual conduct." (Cantrell, at p. 540.)
In 1981, section 311.4 was again amended. The definition of "sexual conduct" was moved from subdivision (c) to subdivision (d), and a newly created subdivision (c) made it a felony to film sexual conduct by a minor under the age of 14 for commercial purposes. Subdivision (b) remained unchanged, and provided lesser penalties for the same offense against minors under age 16. (Stats. 1981, ch. 1043, 4, p. 3995, urgency, eff. Sept. 30, 1981.) It was this version of the statute which was in effect when section [72 Cal. App. 4th 1510] 1203.065 incorporated section 311.4, subdivision (c) as a probation ineligible offense. Significantly, section 311.4 did not then penalize any noncommercial conduct.
Section 311.4 was substantially revised in 1984. Both subdivisions (b) and (c) were changed to apply to minors under age 17, the reference to "commercial purposes" was deleted from subdivision (c), and a sentence was added to subdivision (c) providing that, "It shall not be necessary to prove commercial purposes in order to establish a violation of this subdivision." The sentencing ranges of subdivisions (b) and (c) were also changed so that the filming of a minor for commercial purposes under subdivision (b) was punishable by three, six or eight years in prison, whereas a person convicted of filming a minor for noncommercial purposes under subdivision (c) was "guilty of a felony" (Stats. 1984, ch. 1489, 2, pp. 5215-5216), and hence subject to imprisonment for sixteen months, two years or three years ( 18). Further amendments to section 311.4 in 1994 and 1996 made subdivisions (b) and (c) applicable to victims under age 18, and amplified the definition of the forms of visual media which violate the statute. (Stats. 1994, ch. 55, 3; Stats. 1996, ch. 1079, 5; Stats. 1996, ch. 1080, 5.)
Before the 1984 amendment to section 311.4, subdivisions (b) and (c) had both prohibited filming a minor for commercial purposes, but higher penalties were available under subdivision (c) based on the age of the child. Subdivision (c) thus defined the more serious of the two offenses. After 1984, both subdivisions extended to minors under 17 (and later, to minors under 18), but subdivision (c) applied to cases where the filming lacked a commercial purpose. Subdivision (c) thus became the less serious offense, and accordingly carried a less severe sentencing range than subdivision (b).
If section 1203.065 is construed to incorporate the present version of section 311.4, defendants convicted of filming minors for noncommercial purposes under subdivision (c) will be subject to mandatory prison sentences, while those convicted of committing the same actions, but with the additional element of a commercial purpose under subdivision (b), will be eligible for probation. It is improbable that the Legislature intended such an anomalous result.
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