Anderson

Opinion J.

—Defendant appeals from his conviction of violation of Penal Code section 653w. The conviction was based on evidence which established that he possessed for sale some 4,500 audiotapes, identified by an expert witness as “pirate recordings.” By this appeal, he challenges the constitutionality of the statute, contending that it violates the First Amendment to the United States Constitution, that it is unconstitutionally over-broad, and that it is preempted by federal copyright laws.

By way of demurrer, he had, prior to trial, challenged the constitutionality of Penal Code section 653w on essentially the same grounds raised on this appeal. He waived jury following the unfavorable ruling on his demurrer. This appeal is taken from the order granting him probation on condition he serve 180 days in the county jail.

The Statute

Penal Code section 653w was enacted as part of a comprehensive statutory scheme designed to prevent and punish the misappropriation of recorded music for commercial advantage or private financial gain. (Pen. Code, § 653h.) On the date of appellant’s arrest, Penal Code section 653w provided in pertinent part as follows: “(a) A person is guilty of…