Tuesday, April 2, 2002
Unseen Photographer Not Guilty of ‘Annoying or Molesting’ Child—C.A.
By a MetNews Staff Writer
A man found photographing young girls at a swim park without their knowledge was not guilty of “annoying or molesting” a child, the Third District Court of Appeal has ruled.
The court late Friday threw out a Sacramento Superior Court information charging that David Parrish “did unlawfully annoy and molest a child under the age of eighteen years, to wit, JANE DOE... in violation of [Penal Code] Section 647.6.”
Because Parrish had been previously convicted of the offense, the crime was a wobbler, and a felony conviction could have resulted in a three-year prison sentence.
At Parrish’s preliminary hearing, prosecutors presented evidence that he had taken digital photographs of young girls at the Water World Amusement Park on the California State Fair grounds. A California State Fair Police sergeant testified that he observed Parrish snapping photos of teen and preteen girls for about 20 minutes.
Parrish was arrested as he left the park. A search of his car and his backpack produced various items of sexual paraphernalia as well as the camera; police printed out the images but many of the shots had the heads cut off and police were unable to identify any of the girls who were photographed.
The magistrate ruled that there was sufficient evidence to bind Parrish over for trial, and Judge Tani G. Cantil-Sakauye denied his Penal Code Sec. 995 motion. The Court of Appeal, however, stayed the prosecution pending Friday’s ruling on his writ petition.
Justice Richard Sims III, writing for the appellate panel, said there was insufficient evidence to charge Parrish with a crime. It is not possible to be annoyed or molested without one’s knowledge under circumstances such as those which led to Parrish’s arrest, he concluded.
The justice cited the history of the statute, going back to a 1929 law making it a crime to annoy or molest a school child. The law was amended in 1987 to extend its protection to all children under 18, not just those attending school.
“Thus, the ‘annoys or molests’ any child (or school child) language has been in the Penal Code for more than 70 years,” Sims wrote. “Yet we are aware of no case, and the People conceded at oral argument there is none, where a conviction for violation of former section 647a or section 647.6 has ever been upheld in a situation where the child never knew of the offensive conduct.”
Besides, Sims said, Parrish’s conduct could not objectively be viewed as annoying or disturbing.
“The girls had no reasonable expectation of privacy that they would not be photographed in a public place...The photographs themselves were full-body shots of the girls in their swim suits and did not focus on any particular part of their bodies.... The record is devoid of evidence that defendant intended to disseminate the photographs in any manner, for example by putting them on the internet.”
Sims distinguished cases in which the statute has been applied to photographers who focused on the crotch of a minor subject or who tried to persuade youngsters to strip. He also distinguished Ecker v. Raging Waters Group, Inc. (2001) 87 Cal.App.4th 1320, which held that a man who pursued several boys with a camera as they tried to get away from him was properly convicted of annoying or molesting.
“We have no doubt that the girls would have been ‘unhesitatingly’ irritated and disturbed had they known their photographs were being taken by a convicted sex offender with lewd intent,” Sims acknowledged. “However, that is simply not the applicable legal test.”
Protection of the constitutional right of privacy, the justice elaborated, requires use of an objective test, Sims said. “A contrary conclusion would mean that photojournalists could be sued for taking photographs of girls on the beach at spring break,” he added.
The case is Parrish v. Superior Court, 02 S.O.S. 1604.
Copyright 2002, Metropolitan News Company