## Facts

- Harold Freeman, president of an adult-film production company, produced *Caught from Behind, Part II*, a film not adjudicated obscene.
- Freeman hired five actresses through a modeling agency and paid them to perform on-camera sexual acts, including intercourse, oral copulation, and sodomy.
- Filming occurred in a private residence and was not open to the public; the homeowner was compensated for the location and also acted in the film.
- The State charged Freeman with five counts of pandering under California Penal Code § 266i for “procure[ing]” persons “for the purpose of prostitution,” relying on the hiring and payment of the performers.
- Freeman was not charged with obscenity; no determination was made that the film was obscene.
- A jury convicted Freeman on all counts, and the Court of Appeal affirmed.

## Issues

1. Whether hiring and paying performers to engage in sexual acts as part of producing a nonobscene motion picture constitutes pandering by procuring persons “for the purpose of prostitution” under Penal Code § 266i.
2. Whether construing the pandering statute to cover such conduct would impermissibly burden protected expression under the First Amendment and state free-speech guarantees.

## Decision

- The California Supreme Court reversed Freeman’s pandering convictions.
- The court held Penal Code § 266i was not intended to, and does not, apply to hiring and paying actors to perform in a nonobscene motion picture depicting sexually explicit acts.
- The court concluded prostitution under Penal Code § 647(b) requires that consideration be paid for the purpose of sexual arousal or gratification; payment of acting fees for a film performance does not satisfy that requirement.
- Because the performers were not “prostitutes” under the statutory definition, Freeman could not have procured them “for the purpose of prostitution” within the meaning of the pandering statute.

## Legal Principles

- Pandering under Penal Code § 266i requires procurement of a person “for the purpose of prostitution,” which incorporates the statutory meaning of prostitution in Penal Code § 647(b).
- For conduct to constitute prostitution, the money or other consideration must be paid for the purpose of sexual arousal or gratification of the payer or the payee.
- Payments characterized as acting fees for performing sexual acts on camera in a nonobscene film, without evidence they were paid for sexual gratification, do not constitute prostitution and therefore cannot support a pandering conviction.
- Where a broad statutory reading would substantially burden protected expression, courts may adopt a narrower construction that avoids serious constitutional problems.

## Conclusion

The court held that California’s pandering statute does not reach the hiring and payment of performers to engage in sexual acts as part of producing a nonobscene film, because prostitution requires payment for sexual arousal or gratification rather than compensation for an expressive performance.


People v. Freeman, 46 Cal. 3d 419 (Cal. 1988)