People v. Pecci

Opinion YEGAN, J. 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).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 contends: “The sentence must be vacated and this matter remanded for reconsideration of appellant’s application for probation because the probation ineligibility provision as applied to appellant violated principles of substantive due process, equal protection of the law, and the prohibition against cruel and unusual punishment.” We affirm. 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 — 1503 — photographed her in several explicit poses. Appellant told J. that she would be performing sexual acts with an anonymous 18-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. Constitutional Challenges At no time below did appellant object to the probation ineligibility section on theories that it deprived him of substantive due process of law, or equal protection of the law, or resulted in a cruel and unusual punishment. He may not change theories for the first time on appeal. (People v. Borland (1996) 50 Cal.App.4th 124, 129 [57 Cal.Rptr.2d 562]; see also People v. Garceau (1993) 6 Cal.4th 140, 173 [24 Cal.Rptr.2d 664, 862 P.2d 664]; cf. People v. Vera (1997) 15 Cal.4th 269, 272 [62 Cal.Rptr.2d 754, 934 P.2d 1279]; People v. Mills (1978) 81 Cal.App.3d 171, 175-176 [146 Cal.Rptr. 411] [rule relaxed where only a question of law is presented arising from undisputed facts]; People v. Butler (1980) 105 Cal.App.3d 585, 588 [164 Cal.Rptr. 475] [same].) These claims also fail on the merits. The Legislature is the sole judge of what acts are punishable as crimes and what constitutes appropriate punishment therefor. (See, e.g., In re Lynch (1972) 8 Cal.3d 410, 414 [105 Cal.Rptr. 217, 503 P.2d 921].) It would be difficult, if not impossible, for an appellate court to conclude that a defendant who is convicted of section 311.4, subdivision (c) should be eligible for probation as a matter of law or that a five-year prison sentence deprives him of substantive due process of law. Even if appellant has been convicted of a lesser included offense of commercial sexual filming of a minor, for which probation is legislatively allowed, the two offenses are separate and distinct. Persons convicted of different offenses can be punished differently. (E.g., People v. Kilborn (1996) 41 Cal.App.4th 1325, 1330 [49 Cal.Rptr.2d 152].) There is no constitutional impediment for the Legislature to declare that probation is precluded for a separate and distinct crime. As to cruel and unusual punishment, it is sufficient to conclusionally observe that appellant has not demonstrated that the probation ineligibility provision and the resulting five-year prison term “ ‘shocks the conscience and offends fundamental- notions of human dignity. . . .’ ” (E.g., People v. Macias (1982) 137 Cal.App.3d 465, 475 [187 Cal.Rptr. 100]; In re Lynch, supra, 8 Cal.3d 410, 424.) Probation Eligibility The properly framed issue, the one actually litigated in the trial court, concerns the disparity in probation eligibility for the commercial — 1504 — versus the noncommercial filmer of sexual conduct. The trial court denied the motion to strike the applicability of section 1203.065 “. . . on the grounds that there is a valid statutory construction, which makes sense legally, and the Court is unwilling to try to define the state of mind of the Legislature.” It also said that it was “not appropriate for the court to say, ‘well, the Legislature must have meant something else.’ ” 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. The premise to appellant’s contention is that he is eligible for probation if he commits the greater offense, but not so if he commits the lesser offense. To rule in appellant’s favor, we would have to erase an enumerated felony offense (§ 311.4, subd. (c)) from the list of offenses which the Legislature has declared are so serious that the court is without power to consider a grant of probation. (§ 1203.065, subd. (a).) An appellate court should be “loathe to construe a statute which has the effect of ‘adding’ or ‘subtracting’ language.” (People v. Buena Vista Mines, Inc. (1996) 48 Cal.App.4th 1030, 1034 [56 Cal.Rptr.2d 21].)2 Traditional principles of judicial restraint compel us to refrain from rewriting a statute. (Unzueta v. Ocean View School Dist. (1992) 6 Cal.App.4th 1689, 1700 [8 Cal.Rptr.2d 614].) This is simply not one of the “extreme cases” where the judiciary should itervene. (Id., at p. 1698.) Phrased otherwise, the judiciary “should not interfere . . . unless a statute prescribes a penalty ‘out of proportion to the offense . . . I ” (In re Lynch, supra, 8 Cal.3d at p. 424; People v. Martinez (1999) 71 Cal.App.4th 1502, 1516 [84 Cal.Rptr.2d 638]; People v. Cooper (1996) 43 Cal.App.4th 815, 827 [51 — 1505 — Cal.Rptr.2d 106].) Exclusion of probation eligibility for a noncommercial filmer of sexual conduct is not “out of all proportion.” Nonambiguity of Sections 311.4, Subdivision (c) and 1203.065, Subdivision (a) The literal language of sections 311.4, subdivision (c) and 1203.065, subdivision (a) is not ambiguous, there is nothing to construe, and we should not look to legislative history. The rules are recently restated by our Supreme Court: “The function of the court in construing a statute ‘is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted, or to omit what has been inserted; and where there are several provisions or particulars, such a construction is, if possible, to be adopted as will give effect to all.’ [Citation.] ‘If there is no ambiguity in the language of the statute, “then the Legislature is presumed to have meant what it said, and the plain meaning of the language governs.” ’ [Citation.] Therefore, if a statute is unambiguous, it must be applied according to its terms. Judicial construction is neither necessary nor permitted.” (Ventura County Deputy Sheriffs’ Assn. v. Board of Retirement (1997) 16 Cal.4th 483, 492 [66 Cal.Rptr.2d 304, 940 P.2d 891]; see also People v. Loeun (1997) 17 Cal.4th 1, 9 [69 Cal.Rptr.2d 776, 947 P.2d 1313]; Unzueta v. Ocean View School Dist., supra, 6 Cal.App.4th at p. 1697.)3 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. — 1506 — The More Serious Offense Appellant theorizes that the commercial filmer is more serious than the noncommercial filmer, and because the former offender may obtain probation while the latter one cannot, there has been a legislative oversight, resulting in an absurdity. 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].)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. People v. King Nothing in People v. King (1993) 5 Cal.4th 59 [19 Cal.Rptr.2d 233, 851 P.2d 27], relied on by appellant, compels us to declare that appellant and every other person convicted of violating section 311.4, subdivision (c) is eligible for probation. — 1507 — In People v. King the Supreme Court held a defendant convicted of either attempted premeditated murder or first degree murder, committed while the defendant was under the age of 18 years, is eligible for commitment to the California Youth Authority (CYA). The court so held, in part, because the statutory scheme provided that the person who succeeded in murder would be eligible for CYA but not the person who failed. In addition, the legislative history showed that the Legislature did not intend this result. (5 Cal.4th at pp. 65-70.) The tortuous legal history which led to the King decision is not present here. The most that can be said is that the legislative history is silent on whether probation ineligibility was exclusively reserved for the commercial sexual filmer. This is a far cry from an unmistakable showing of oversight. (See, e.g., People v. Wingo (1975) 14 Cal.3d 169, 174 [121 Cal.Rptr. 97, 534 P.2d 1001].) The Absurdity Rule Plus Latent Ambiguity Without expressly so stating, the dissent finds a latent ambiguity upon which to engage in statutory construction and apply the “absurd results” rule. The dissent seeks to jettison a specifically enumerated offense from a list of offenses for which the Legislature has said probation shall not be granted. Even when both the commercial and noncommercial sections are considered with section 1203.065, there are no absurd consequences which follow. There is nothing absurd about a commercial filmer being able to receive probation while a noncommercial filmer must go to prison. At most, such a differentiation in probation eligibility is unwise. “ ‘ “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. 1698.) The comments of Lord Bramwell are again apposite: “ ‘ “I should like to have a good definition of what is such an absurdity that you are to disregard the plain words of an Act of Parliament. It is to be remembered that what seems absurd to one man does not seem absurd to another ... I think it is infinitely better, although an absurdity or an injustice or other objectionable result may be evolved as the consequence of your construction, to adhere to the words of an Act of Parliament and leave the legislature to set it right than to, alter those words according to one’s notion of an absurdity.” Lord Bramwell, in Hill v. East and West India Dock Co. 9 A.C. 448, 464-65 (House of Lords, 1884).’ (Aldisert, The Judicial Process (1976) p. 176.)” {Unzueta v. Ocean View School Dist., supra, 6 Cal.App.4th at p. 1698.) — 1508 — Phrased otherwise, the Legislature is capable of passing legislation to correct any drafting error. If the Legislature does delete section 311.4, subdivision (c) from the list of offenses in section 1203.065, subdivision (a) appellant would be entitled to habeas corpus relief. We express no opinion on whether the Legislature should so do. The judgment is affirmed. Gilbert, Acting P. J., concurred. Footnotes [1] All undesignated statutory references are to the Penal Code. [2] The same rale applies to requests by the People. For example, if the trial court granted probation to a commercial filmer convicted of violating section 311.4, subdivision (b) we would not reverse on a People’s appeal claiming that the Legislature intended to preclude probation therefor and through inadvertence, neglected to specify section 311.4, subdivision (b) in the list of probation ineligible offenses in section 1203.065, subdivision (a). The dissent would “add” section 311.4, subdivision (b) to the section 1203.065,, subdivision (a) list. (Dis. opn., post, at p. 1511.) We also observe that the probation eligibility disparity has been extant for 15 years without legislative change or appellate intervention. [3] One of the goals of law is to give some predictability to what consequences will flow from certain conduct. Here, an ordinary person reading these two statutes would be given “fair warning” that a prison sentence was mandatory if he or she engaged in the noncommercial filming of a minor’s sexual conduct. (See People v. Grant (1999) 20 Cal.4th 150, 158, 162 [83 Cal.Rptr.2d 295, 973 P.2d 72]; People v. Martinez (1999) 20 Cal.4th 225, 240-241 [83 Cal.Rptr.2d 533, 973 P.2d 512].) [4] Section 1203.065, subdivision (a) precludes probation for pimping (§ 266h), pandering (§ 266i), and transporting a child under age 16 for the commission of a lewd act (§ 266j.) The noncommercial filmer poses a risk to society at least as great as these offenses. Thus, it is not unreasonable for the Legislature to preclude probation for the noncommercial filmer.