People v. PecciPeople v. Pecci
Robert Michael Pecci was convicted of committing various sexual offenses including filming sexual conduct with a minor for a noncommercial purpose in violation of
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 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; compare 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
Probation Eligibility
The properly framed issue, the one actually litigated in the trial court, concerns the disparity in probation eligibility for the commercial versus the noncommercial filmer of sexual conduct. The trial court denied the motion to strike the applicability of
The punishment for violation of
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 (
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 intervene. (Id., at p. 1698, 8 Cal.Rptr.2d 614.) Phrased otherwise, the judiciary “should not interfere... unless a statute prescribes a penalty ‘out of proportion to the offense....‘” (In re Lynch, supra, 8 Cal.3d at p. 424, 105 Cal.Rptr. 217, 503 P.2d 921; 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 Cal. Rptr.2d 106.) Exclusion of probation eligibility for a non-commercial filmer of sexual conduct is not “out of all proportion.”
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, 8 Cal.Rptr.2d 614.)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
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
We concede the possibility of legislative oversight. If so, the Legislature should provide the remedy. (See, infra, at p. 48.) 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
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. (At pp. 65-70, 19 Cal.Rptr.2d 233, 851 P.2d 27.) 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
“‘“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, 8 Cal.Rptr.2d 614.)
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
Phrased otherwise, the Legislature is capable of passing legislation to correct any drafting error. If the Legislature does delete
The judgment is affirmed.
GILBERT, Acting P.J., concurs.
COFFEE, J., Dissenting.
I respectfully dissent.
The question thus arises: does
Absent a clearly expressed legislative intent to the contrary, “`where a statute adopts by specific reference the provisions of another statute ... such provisions are incorporated in the form in which they exist at the time of the reference and not as subsequently modified.... [Citations.]’ “(Palermo v. Stockton Theatres, Inc., supra, 32 Cal.2d at pp. 58-59, 195 P.2d 1 (Palermo); see also People v. McGee (1977) 19 Cal.3d 948, 958, fn. 3, 140 Cal.Rptr. 657, 568 P.2d 382; People v. Kirk (1990) 217 Cal.App.3d 1488, 1499, 267 Cal.Rptr. 126; People v. Domagalski (1989) 214 Cal.App.3d 1380, 1384-1385, 263 Cal.Rptr. 249; People v. Ramirez (1984) 201 Cal.Rptr. 303, 154 Cal.App.3d Supp. 1.)2
Palermo requires us to construe
In 1981,
Before the 1984 amendment to
If
In People v. King (1993) 5 Cal.4th 59, 19 Cal.Rptr.2d 233, 851 P.2d 27, our Supreme Court was faced with a statutory scheme which, as here, appeared on its face to favor more serious offenders over those convicted of lesser crimes. (Id. at pp. 67-70, 19 Cal.Rptr.2d 233, 851 P.2d 27.)
Similarly,
My colleagues suggest there is no anomaly in a statutory scheme that treats commercial pornographers more favorably than noncommercial pornographers, because the former may actually be less dangerous to their victims and society. Whatever the merits of such an argument in the abstract, I find nothing in the history of
The decision in People v. Kirk, supra, 217 Cal.App.3d 1488, 267 Cal.Rptr. 126, is illustrative. There the court applied Palermo to determine whether the full strength, consecutive sentencing provisions of
The application of the Palermo rule allowed the court in Kirk to give the statute a “`reasonable and common sense construction in accordance with its apparent purpose and the intent of the Legislature.‘” (People v. Kirk, 217 Cal.App.3d at pp. 1498-1499, 267 Cal.Rptr. 126.) And so it does here. The failure to amend
The majority opinion posits that if there was any legislative oversight, it was in failing to amend
Post-1981 amendments to
The decision in People v. Kirk, supra, 217 Cal.App.3d 1488, 1497-1499, 267 Cal. Rptr. 126, again provides guidance. There the court applied the Palermo rule even though the incorporating statute,
For these reasons, I would construe
Notes
We also observe that the probation eligibility disparity has been extant for 15 years without legislative change or appellate intervention.
A corollary rule is that when the statutory reference is to a general body of laws rather than a particular statute, “the referring statute takes the law or laws referred to not only in their contemporary form, but also as they may be changed from time to time.” (Palermo v. Stockton Theatres, Inc., supra, 32 Cal.2d at p. 59, 195 P.2d 1; see In re Jovan B. (1993) 6 Cal.4th 801, 816, 25 Cal.Rptr.2d 428, 863 P.2d 673.) Because section 1203.065 incorporates section 311.4, subdivision (c) as a specific statute;, rather than as part of a general body of law, this principle does not apply.