People v. Fixler

Opinion

COMPTON, J.

In a nonjury trial defendants Fixler and Utterback were convicted of conspiring to violate Penal Code section 266i (pandering). In addition, Fixler was convicted of two substantive counts of pandering and Utterback was convicted of one substantive count of pandering. They appeal from the judgment of conviction.

There is little dispute as to the facts underlying the judgment. Utterback was one of several photographers employed by American Art Enterprises, a concern that publishes various magazines devoted to the depiction of sexual activity. Fixler was a “photo editor” for American Art Enterprises. In that capacity he directed the work of the photographers and from time to time held meetings at which the quality and content of the pictures was discussed. At one meeting Fixler gave instructions to the photographers as to what they should do in the case of arrest.

The photographers obtained the services of their subjects from independent modeling agencies and paid various fees to these “models” for engaging in several types of sexual activity while being photographed. This activity ran the gamut from masturbation through homosexual oral copulation to heterosexual oral copulation and sexual intercourse.

The instant prosecution was based essentially on the use of one Patricia, a 14-year-old girl who was hired on some 8 to 15 occasions to perform for Utterback and one Robert Kanters,

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in return for money which was provided by American Art Enterprises.

Penal Code section 266i condemns among other things the procuring of another person for the purpose of prostitution or the causing, inducing, persuading or encouraging another to become a prostitute.

[325]

Prostitution is defined as “Common lewdness of a woman for gain” (Black’s Law Diet. (4th ed.)) “act or practice of engaging in sexual intercourse for money.” (Random House Diet, of the English Language (Unabridged ed.)) or “. . . any lewd act between persons for money or other consideration.” (Pen. Code, § 647, subd. (b).)