Here's a good statutory construction opinion. Let's see how you'd read the statute.
It's a misdemeanor to be a "peeping tom" under Section 647 of the Penal Code. But it's a felony under 311.4(c) for anyone who "knowingly promotes, employs, uses, persuades, induces or coerces a minor . . . to engage in . . . either posing or modeling . . . for purposes of preparing any . . . videotape . . . involving[] sexual conduct by the minor." What do you think it takes to be convicted under Section 311.4(c)? What counts?
It's pretty obvious that the statute is directed at people who convince minors to make kiddie porn, right? But what about the following fact pattern, which comes from our very own San Diego:
"Via the Internet, [defendant] learned that there was going to be a girls’ swim meet on May 17 and 18, 2003, at Valley View High School in Moreno Valley. Somehow, he obtained many of the keys to the school, and particularly to the gymnasium area. Sometime between 2:30 p.m. on May 16 and 6:00 a.m. on May 17, defendant snuck into the girls’ locker room. At one end, there was a coaches’ office that was raised slightly and equipped with large windows, so as to afford a view of most of the locker room. Defendant covered these windows with paper and tape. He then made a small hole in the paper and set up a video camera so he could film through the hole. He used cones and caution tape, which he found in the coaches’ office, as well as handwritten “Do Not Enter” signs, to block off rows of lockers that were outside his camera range. On May 17 and 18, defendant filmed at least 45 girls who were competing in the swim meet as they changed into and out of their bathing suits. The girls were between 8 and 18 years old. He would zoom in on their breasts, crotches, and buttocks, particularly when it appeared that they were just about to undress."
That's clearly peeping. And maybe some other stuff. But does it violate Section 311.4(c)? Did the defendant "knowingly promote[], employ[], use[], persuade[], induce[] or coerce[] a minor" to "pos[e] or model[]" for the videotape? What do you think? (And don't take the cheap way out by merely saying "I hate pedophiles so I'm going to interpret the statute in any way that results in a conviction." Yes, that definitely happens, and is perhaps understandable to some degree. But it still ain't right.)
Justice Ramirez writes the majority opinion. Justice Richli dissents. It's rare that you see an opinion discuss intelligently the differences between transitive and intransitive verbs and why this matters. So if only for that reason the opinions are worth reading.
Check 'em out. See what you think.
P.S. - It's not mentioned in the opinion/dissent. But both Justice Ramirez and Justice Richili were career prosecutor before being appointed to the judiciary, and both prosecuted sex crimes. Pretty interesting that they come out different ways on this one.
