[DEPUBLISHED OPINION] Parrish v. Superior Court (People) (2002)

DAVID PARRISH, Petitioner, v. SUPERIOR COURT OF SACRAMENTO COUNTY, Respondent; THE PEOPLE, Real Party in Interest.

[Modification fn. * of opinion (97 Cal.App.4th 266) on denial of petition for rehearing.]

THE COURT. fn. † -

The opinion in the above captioned case, filed March 29, 2002, is modified in the following respects:

1. On page three, at the end of the last full paragraph [97 Cal. App. 4th 270, advance report, line 2], add the following paragraph:

During this time, defendant appeared nervous and was furtively taking the photographs. It was obvious to the observing officer that defendant was not even looking through the viewfinder, but was simply clicking the camera at the girls. Indeed, on several occasions, defendant pointed the camera in one direction while looking in another direction."

2. On page four, at the end of the fourth paragraph [97 Cal. App. 4th 270, advance report, 4th par.], following the word "side" add the following sentence: Two of the rubber rings were seized at the foot of the chair in which defendant was sitting after he had urinated in a nearby bathroom.

3. On page four, in the last full paragraph [97 Cal. App. 4th 270, advance report, 5th par., line 7], following the sentence, "The photos do not focus on any particular part of the girls' bodies," add the following sentences: Two of the photographs (which were full-body shots) captured a young girl touching her buttocks. Four of the photographs were of one specific girl.

4. On page 13, in the first sentence [97 Cal. App. 4th 275, advance report, 3d par., line 16], following the word "place?," add footnote 2. The text of footnote 2 is as follows:

In their Petition for Rehearing, the People assert that the correct test is whether a normal adult "person" would be unhesitatingly irritated or disturbed not whether "normal girls" would be unhesitatingly irritated or [97 Cal. App. 4th 1269d] disturbed. We think this is an odd position for the People to take, since a normal child would be more easily irritated or disturbed by certain lewd conduct than a normal adult. In any event, we do not agree with the People. The statute at issue--section 647.6--makes it unlawful to annoy or molest a child. This direction of the statute cannot be ignored. There is in fact lewd conduct that would offend a normal child that would not phase a normal adult. Thus, we think the proper focus of the statute is whether, viewed objectively, defendant's conduct would offend a normal child. However, if we are mistaken, and if the proper test is whether defendant's conduct would offend a normal adult, then the result in this case would still be the same.

5. On page 13, in the first paragraph [97 Cal. App. 4th 275, advance report, 3d par., line 16], following the sentence reading, "The answer is, 'No,'" add footnote 3. The text of footnote 3 is as follows:

The Attorney General conceded this point at oral argument. Thus, Justice Blease asked the Attorney General: "At this point, let me ask you this question, supposing a professional photographer takes the identical photographs for the purpose of, because he's interested in getting the crowd scenes, he's interested in all kinds of things, but has no sexual interest at all, but takes some pictures to publish them. Would that be a violation of this statute?"

The Attorney General responded "No it wouldn't . . . ."

6. On page 13, in the last paragraph [97 Cal. App. 4th 275, advance report, last par., line 1], change the word "mandate" to "prohibition" so that the sentence reads:

"Let a peremptory writ of prohibition issue commanding the Superior Court to vacate its denial of defendant's section 995 motion, to grant said motion, and to dismiss the information."

There is no change in the judgment. The petition for rehearing is denied.

FN *. This modification requires the movement of text affecting pages 271-276 of the bound volume report.

FN †. Before Blease, Acting P. J., Sims, J., and Morrison, J.