Pecci
People v. Pecci
Opinion
Lead Opinion
Yegan, J.
Robert Michael Pecci was convicted of committing various sexual offenses including filming sexual conduct with a minor for a noncommercial purpose in violation of Penal Code section 311.4 subdivision (c). 1 Section 1203.065 subdivision (a) expressly prohibits a grant of probation if this enumerated offense has been committed. The trial court adhered to the letter of the law, ruled that appellant was not eligible for probation, and sentenced him to prison for the upper three-year term. It also imposed consecutive terms for other sexual offenses for an aggregate term of five years.
Appellant contends: “The sentence must be vacated and this matter remanded for reconsideration of appellant’s application for probation because the probation ineligibility provision as applied to appellant violated principles of substantive due process, equal protection of the law, and the prohibition against cruel and unusual punishment.” We affirm.
Appellant committed the offenses against his 16-year-old niece, J. J. told appellant that she was interested in modeling and appellant offered to pay her to pose nude. They went to a motel room where he videotaped and *1503 photographed her in…
Dissenting Opinion
Coffee, J.
I respectfully dissent.
Penal Code section 1203.065, subdivision (a) 1 provides that a court may not grant probation to a defendant convicted of violating “subdivision (c) of Section 311.4.” Section 311.4, subdivision (c) currently prohibits filming or videotaping sexual conduct by a minor for noncommercial purposes. In 1981, when section 1203.065 was first amended to include section 311.4 among its list of probation-ineligible offenses, subdivision (c) defined a different and more serious crime: the filming or videotaping of a minor under age 14 for commercial purposes.
The question thus arises: does section 1203.065, subdivision (a) refer to the current version of section 311.4, subdivision (c), or to that which was in effect in 1981?
I believe that under the rule of Palermo v. Stockton Theatres, Inc. (1948) 32 Cal.2d 53 [ 195 P.2d 1 ], section 1203.065, subdivision (a) incorporated the 1981 version of section 311.4, subdivision (c). Persons convicted of filming a minor for noncommercial purposes under the current version of section 311.4, subdivision (c), like the appellant in this case, are thus eligible for probation. Because the trial court denied appellant probation…