People v. Hobbs

RICHLI, J., Dissenting.

I must respectfully dissent.

I am at a loss to find any portion of the majority opinion that explains in what way the minors in this case were “engag[ing] in . . . posing or modeling.” In fact, as the evidence shows, they were not. Hence, there was insufficient evidence that defendant. “promote[d], employ[ed], use[d], persuade[d], induce[d], or coerce[d]” them to engage in posing or modeling, as Penal Code section 311.4, subdivision (c) would require.

The majority’s failure to address this point cannot be ascribed to defendant’s failure to raise it. As the majority recognizes (maj. opn., ante, at p. 5), defendant argues that Penal Code section 311.4, subdivision (c) “requires that the minors be engaged in posing or modeling at the direction of the accused.” (Capitalization omitted.) This is a double-barreled argument: (1) the minors must be engaged in posing or modeling, and (2) they must do so at the direction of the accused. Defendant notes that “[tjhere has been no California decision which has construed the meaning of ‘posing’ or ‘modeling.’ ” He then argues that the trial court’s interpretation of the statute “entirely ignores the requirement of posing and modeling.” The majority merely spikes the second barrel of his argument, while leaving the first barrel hanging fire.

“ ‘Our role in construing a statute is to ascertain the intent of the Legislature so as to effectuate the purpose of the law. [Citation.] Because the statutory language is generally the most reliable indicator of that intent, we look first at the words themselves, giving them their usual and ordinary meaning.’ [Citation.]” {People v. Wright (2006) 40 Cal.4th 81, 92 [51 Cal.Rptr.3d 80, 146 P.3d 531], quoting Alford v. Superior Court (2003) 29 Cal.4th 1033, 1040 [130 Cal.Rptr.2d 672, 63 P.3d 228].)

The only definition of “pose” that is relevant here is “[t]o assume a certain position, pose, or attitude, esp. in order to be drawn, painted, or photographed.” (Oxford English Diet. (2006 draft rev.) <http://dictionary.oed. com/cgi/entry/50184698> [as of June 12, 2007].) Similarly, the only relevant definition of “model” is “[t]o act as a model by posing for an artist or sculptor, or by wearing clothes for display.” (Oxford English Diet. (2002 draft rev.) <http://dictionary.oed.com/cgi/entry/00313039> [as of June 12, 2007].)

Posing and modeling both require that the subject intentionally assume a certain position. They also both require that the subject know—or at least contemplate the possibility—that he or she is being observed. An inanimate object cannot pose or model. Defense counsel made this point succinctly below: “[0]ne can say ‘A ship is a model for a drawing,’ but one does not say ‘A ship is modeling for a drawing.’ ” Similarly, a person going about his or her business, without knowingly posing or modeling, simply is not posing or modeling at all. Otherwise, we would all be posing and modeling all the time; these statutory words would be rendered meaningless. If this was what the Legislature really had in mind, it would have omitted the words “posing or modeling” entirely; it would have merely required that the minor engage in sexual conduct.

As the People point out, “pose” can also mean “[t]o place in a certain attitude or position, esp. to be painted or photographed; to cause to adopt a certain pose.” (Oxford English Diet. (2006 draft rev.) <http://dictionary. oed.com/cgi/entry/50184698> [as of June 12, 2007].) The majority therefore states that “[defendant posed the victims by herding them with the signs, cones and caution tape to a position most favorable to filming . . . .” (Maj. opn., ante, at p. 8, italics added.) This, however, is the transitive meaning of “pose”; the statute is plainly using the intransitive meaning.

As we all learned in high school, a transitive verb has a direct object. For example, in the sentence, “John wrote a check,” “wrote” is transitive. An intransitive verb has no direct object. For example, in the sentence, “Joan wrote beautifully,” “wrote” is intransitive. Some verbs are exclusively transitive and some are exclusively intransitive, but often—like “wrote”—they can be used either way.

Here, the statute requires that the defendant must promote, employ, use, persuade, induce, or coerce the minor to engage in posing. The defendant need not pose the minor (transitive); however, the minor must pose (intransitive). If the Legislature wanted the statute to be triggered when the defendant merely poses the child, it could easily have written it that way. “We presume the Legislature knew what it was saying and meant what it said. [Citation.]” (Ramos v. Superior Court (2007) 146 Cal.App.4th 719, 727 [53 Cal.Rptr.3d 189].) Accordingly, the transitive meaning of “pose”—to place another person or thing in a certain position—is irrelevant. The only relevant meaning of “pose” is the one I quoted earlier, which is intransitive—to assume a certain position, especially to be drawn, painted, or photographed. This meaning is supported by the rules of statutory construction, as well as the rules of grammar.

The majority reasons, in part, that Penal Code section 311.4, unlike the other statutes that make up chapter 7.5 of the Penal Code, “targets the person actually filming the pornographic material.” (Maj. opn., ante, at p. 6, italics omitted.) That is not entirely correct. While Penal Code sections 311.1 and 311.2 do not apply to defendant, they can apply to a person who either “prepares” or “produces” child pornography. (Pen. Code, §§311.1, subd. (a), 311.2, subds. (b)-(d).) By contrast, Penal Code section 311.4, subdivision (c) applies to anyone who “promotes, employs, uses, persuades, induces, or coerces a minor ... to engage in . . . either posing or modeling ... for purposes of preparing any . . . image . . . involving . . . sexual conduct by a minor . . . .” The person need not actually film the minor, nor have any other role in preparing or producing the child pornography. Thus, Penal Code section 311.4, subdivision (c) does not target the person who films the minor, as such; rather, it targets the person who causes the minor to participate.

The defendant’s causation must consist of either “promot[ing],” “employ-ting],” “us[ing],” “persuading],” “inducting],” or “coercting].” (Pen. Code, § 311.4, subd. (c).) I do not agree with defendant that such causation must rise to the level of directing the minor’s activity. I do agree, however, that the statute requires some interaction, albeit perhaps only indirectly, between the defendant and the minor; I simply cannot imagine how one could “use” (much less “promote”) someone to do something without interacting with them somehow. The minor’s participation, however, must consist of engaging in either “posing” or “modeling.” By using these terms, the Legislature evidently intended to require that the minor’s participation be at least minimally knowing.

In sum, I would find defendant’s use of signs, cones, and tape to be sufficient interaction—if it caused the minors to engage in either posing or modeling. The evidence, however, demonstrated conclusively that the minors did not pose or model.

Defendant did “use” the minors for his own sexual gratification. He is undoubtedly guilty of some crime or crimes under chapter 7.5 (see, e.g., Pen. Code, § 311.11, subd. (a)), as well as of “peeping” under Penal Code section 647, subdivision (k). However, he is not guilty under Penal Code section 311.4, subdivision (c). While his actions were repulsive and vile, it is not up to us to rewrite statutes to make them say what we think they ought to have said; that is the Legislature’s exclusive prerogative. I would reverse his convictions under that statute. Because his burglary convictions were based on the theory that he entered the locker room with the intent to violate Penal Code section 311.4, subdivision (c), I would also reverse those convictions, as based on insufficient evidence.

A petition for a rehearing was denied July 9, 2007, and appellant’s petition for review by the Supreme Court was denied September 19, 2007, S154705.