## Facts

- American Art Enterprises produced magazines depicting sexual activity and employed photographers and a “photo editor.”
- Fred Fixler, the photo editor, directed photographers’ work and led meetings about the content and quality of photographs, including giving instructions about what to do if arrested.
- Harry Lee Utterback, Jr. worked as a photographer for the company.
- Photographers obtained “models” through independent modeling agencies and paid them to engage in sexual acts while being photographed.
- The charged conduct focused on “Patricia,” a 14-year-old who was hired approximately 8 to 15 times to perform sexual acts for payment funded by the company, in sessions involving Utterback and another participant.
- The prosecution alleged defendants procured and induced Patricia to engage in “prostitution” (lewd acts for consideration), though the acts occurred in a studio setting for commercial pornography rather than in a conventional customer-service setting.

## Issues

1. Whether paying and directing a 14-year-old to perform sexual acts for photography used in commercial pornography constitutes “prostitution” and “pandering” under California Penal Code § 266i.
2. Whether the absence of a traditional “customer” and the pornographic production context removes the conduct from § 266i’s prohibition on procuring or inducing another to engage in prostitution.

## Decision

- The Court of Appeal affirmed the convictions after a bench trial.
- The court held Patricia’s paid sexual performances constituted prostitution because they involved lewd acts and sexual intercourse for money or other consideration.
- The court concluded defendants, by supplying money and directing the performances, “procured, caused and induced” Patricia to engage in prostitution within the meaning of § 266i.
- The court rejected the argument that producing photographs for publication, rather than selling sexual services in a traditional vice setting, precluded application of the pandering statute.
- The affirmance covered both the conspiracy to violate § 266i and the substantive pandering counts (two for Fixler, one for Utterback).

## Legal Principles

- Under Penal Code § 266i, pandering includes procuring another for prostitution and causing, inducing, persuading, or encouraging another to become a prostitute.
- “Prostitution” is not limited to conventional sex-for-hire transactions with a typical “customer”; it includes lewd acts between persons performed for money or other consideration.
- A defendant’s liability for pandering turns on procurement and inducement (e.g., arranging participation, providing payment, and directing sexual conduct), even when the sexual acts are performed in a commercial pornography production setting.

## Conclusion

The court upheld pandering and conspiracy convictions where defendants financed and directed a minor’s paid sexual performances for commercial pornography, holding that lewd acts for consideration constitute prostitution and that procuring or inducing such conduct satisfies Penal Code § 266i regardless of the production context.


People v. Fixler, 56 Cal. App. 3d 321, 128 Cal. Rptr. 363 (Cal. Ct. App. 1976)