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 [***599] 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.
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.
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 [*423] 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
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1 Although both male and female actors were hired and paid and although both participated in the sexually explicit conduct, the criminal charges were based solely on the conduct of the female actors.
2 All further statutory references are to the Penal Code unless otherwise stated.
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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 [**1130] of 10,000 under Penal Code section 1203.04 and a 100 restitution fine under Government Code section 13967, subdivision (a).
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3 Section 1203.065 prohibits the granting of probation for a conviction of pandering. The trial court found, however, that imposition of a prison term would constitute cruel and unusual punishment for defendant’s conduct and placed defendant on probation notwithstanding section 1203.065. The People appealed the granting of probation, which was affirmed by the Court of Appeal. Review of that decision is pending in this court in a separate proceeding (S000319, review granted Apr. 16, 1987). In view of our conclusion the judgment of conviction must be reversed because the conduct did not constitute pandering, the review of the probationary sentence will become moot.
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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.)
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4 Section 266i reads in full as follows: “Any person who: (a) procures another person for the purpose of prostitution; or (b) by promises, threats, violence, or by any device or scheme, causes, induces, persuades or encourages another person to become a prostitute; or © procures for another person a place as inmate in a house of prostitution or as an inmate of any place in which prostitution is encouraged or allowed within this state; or (d) by promises, threats, violence or by any device or scheme, causes, induces, persuades or encourages an inmate of a house of prostitution, or any other place in which prostitution is encouraged or allowed, to remain therein as an inmate; or (e) by fraud or artifice, or by duress of person or goods, or by abuse of any position of confidence or authority, procures another person for the purpose of prostitution, or to enter any place in which prostitution is encouraged or allowed within this state, or to come into this state or leave this state for the purpose of prostitution; or (f) receives or gives, or agrees to receive or give, any money or thing of value for procuring, or attempting to procure, another person for the purpose of prostitution, or to come into this state or leave this state for the purpose of prostitution, is guilty of pandering, a felony, and is punishable by imprisonment in the state prison for three, four, or six years, or, where the other person is under 16 years of age, is punishable by imprisonment in the state prison for three, six, or eight years.”
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Prostitution" is not defined in section 266i. Rather, the definition of “prostitution” derives from section 647, subdivision (b): “’[Prostitution]’ includes any lewd act between persons for money or other consideration.” (Italics added.)
(1a) 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.) 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: “[For] 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 [1131] involved and therefore no procurement for purposes of prostitution and no pandering. We find it unnecessary to address that contention. (2) 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.**
(1b) 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 [*425] 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
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5 There is also something tautological in the argument that the very acting fees by which defendant “procured” the actors (“for the purpose of prostitution”) also constitute the payment necessary to establish the “prostitution” for which the actors are assertedly being “procured.”
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B. First Amendment Considerations
(3a) 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.
(4) 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].) (5) And it is fundamental [***601] 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].) “[Where] ‘“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 [53 L.Ed. 836, 848-849, 29 S.Ct. 527].)
(3b) 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 guaranty of free expression found in the First Amendment. (Joseph Burstyn, Inc. v. Wilson (1952) 343 U.S. 495, 502 [96 L.Ed. 1098, 1106, 72 S.Ct. 777]; 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].)
In Barrows v. Municipal Court, supra, 1 Cal.3d 821 this court considered the applicability of criminal penalties under the vagrancy law, section 647, [*426]
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 [**1132] of the First Amendment. The criminal penalties of the statutes there at issue, if applied to a live theatrical performance, would not only have involved serious equal protection problems, but as we stated, it was “too evident to require elaboration” that such penalties “would have an inhibiting effect upon the exercise of First Amendment rights.” (Barrows v. Municipal Court, supra, 1 Cal.3d 821, 827.) We concluded that section 647, subdivision (a), was not intended to apply to live theatrical performances before an audience.
Since the acts involved here have not been adjudged obscene, they are within the protection of the First Amendment. To subject the producer and director of a nonobscene motion picture depicting sexual conduct to prosecution and punishment for pandering, including a special provision for ineligibility for probation attendant on such a conviction (see fn. 2, ante), would rather obviously place a substantial burden on the exercise of protected First Amendment rights. To include the hiring and paying of actors for acting in such a film within the definition of pandering would therefore unconstitutionally infringe on First Amendment liberties. (1c) Consistent with Barrows, Burstyn, Burton and Flack and consistent with the principles of statutory construction outlined above we are thus compelled to conclude that the Legislature did not intend the antipandering law to apply to the payment of acting fees for performance in a nonobscene motion picture. We observe that if section 266i were applied in the manner urged by the People, it would include within the literal sweep of the statutory language films of unquestioned artistic and social merit, as well as films made for medical or educational purposes. We reaffirm our observation in Barrows, “any more restrictive rule could annihilate in a stroke much of the modern theater and cinema.” (Barrows v. Municipal Court, supra, 1 Cal.3d 821, 831.)
[***602] Placing reliance on People v. Fixler (1976) 56 Cal.App.3d 321 [128 Cal.Rptr. 363], the People argue that there is a distinction between [*427] “speech” (e.g., a film), which is constitutionally protected under the First Amendment so long as it is not obscene, and “conduct” (the making of the film), which may be prohibited without reference to the First Amendment. Such a distinction is untenable in this case. In United States v. O’Brien (1968) 391 U.S. 367 [20 L.Ed.2d 672, 88 S.Ct. 1673] the United States Supreme Court set forth standards to determine the constitutional propriety of governmental regulation of “conduct” which also contains elements of “speech.” (6) The factors to be considered are (1) whether the regulation is within the constitutional power of the government, (2) whether the governmental interest is important or substantial, (3) whether the governmental interest is unrelated to the suppression of free expression, and (4) whether the incidental restrictions on alleged First Amendment interests is no greater than is essential to the furtherance of the interest. (Id., at p. 377 [20 L.Ed.2d at p. 680].)
(3c) Even if the regulation attempted here were within the constitutional power of the Legislature and the governmental interest could be found to be important, the application of section 266i in the manner advocated would clearly run afoul of the requirement that the governmental interest be unrelated to the suppression of free expression. The People have advanced two possible governmental interests: First, is the prevention of profiteering from prostitution, and second is a public health purpose, e.g., prevention of the spread of sexually transmitted diseases, such as AIDS. The governmental interest served by section 266i has been stated to be the prevention of recruitment to prostitution or of augmentation of the supply of available prostitutes. (People v. Hashimoto (1976) 54 Cal.App.3d 862, 867 [126 Cal.Rptr. 848]; People v. Courtney (1959) 176 Cal.App.2d 731, 741 [1 Cal.Rptr. 789].) Punishment of a motion picture producer for the making of a nonobscene film, however, has little if anything to do with the purpose of combatting prostitution. Rather, the self-evident purpose of the prosecuting authority in bringing these charges was to prevent profiteering in pornography without the necessity [**1133] of proving obscenity. The fact that the People concede that a film identical to that in this case could be made lawfully if the performers were not paid also belies the asserted “public health” interest. Both these suggested “interests” not only directly involve the suppression of free expression but are, in the context of a pandering prosecution for the making of a nonobscene motion picture, not credible.
