Judge Refuses to Give Mandatory 3 Years to Maker of Porn Films : Calls Punishment Under Pandering Law ‘Cruel and Unusual’ in Case of Encino Man

A Van Nuys judge Monday refused to impose a mandatory three-year prison term on a producer of hard-core sex films who was convicted in May of pandering, and instead sentenced the Encino man to a 90-day jail term and fined him $10,000.

Calling the three-year minimum sentence required by law “cruel and unusual punishment,” Superior Court Judge James A. Albracht also postponed imposition of the jail term and fine, pending an appeal of the conviction by the film maker.

“This is a victory for me and other adult-film makers,” a jubilant Harold Freeman said as he left the courtroom.

Freeman, 49, was the first film maker convicted in California under a controversial 1982 law requiring a three-year prison term for hiring people to perform sex acts.

Judge Had Option

Freeman contended that performers in his 1983 film “Caught from Behind, II” were actresses. Prosecutors charged that the women were prostitutes because they were hired to perform sex acts.

Although the three-year sentence is mandated for a pandering conviction, Albracht had the option of reducing the term by declaring the law, in Freeman’s case, unconstitutionally cruel and unusual punishment. Prosecutors said Monday that they will ask a higher court to impose the full sentence.

After Monday’s ruling, Administrative Vice Officer James Como of the Los Angeles police, the detective who arrested Freeman, expressed dismay.

“Pandering is against the law, and, if Mr. Freeman continues to make adult films in which prostitution takes place, we will arrest him and prosecute him again,” Como said. “That goes for all adult-film makers, not just Mr. Freeman.”

Freeman said that rentals of adult videocassettes last year, which he claimed numbered 55 million, prove that “we are not pimps and panderers, but businessmen giving people what they want.” He described his Sepulveda business, Hollywood Video Productions, as “a family operation” and his movies as “straight pornography--I don’t do child molestation, defecation, bestiality.”

‘Anti-Pimp’ Law Arrest

Freeman, who estimates he has produced more than 100 full-length sex films, was arrested by vice officers in October, 1983, and charged with five counts of violating the state’s “anti-pimp” law. On May 23 he was convicted by a jury of all five counts.

The law, which states that anyone who procures a person to engage in sex is guilty of pimping and pandering, was designed to give law-enforcement officers stronger weapons to control prostitution. It was introduced in the Legislature by Senate President Pro Tem David A. Roberti (D-Los Angeles), whose Hollywood district has been plagued by prostitution. The law requires judges to imprison convicted pimps for from three to six years.

Freeman’s attorney, Stuart Goldfarb, said he thought prosecutors had been unsuccessful in shutting down Los Angeles’ $550-million sex film industry by applying existing censorship laws, so instead were trying use the Roberti law to curb the business.

As the sentence was read, Freeman’s wife and two adult daughters, all of whom work as bookkeepers for the film maker, dabbed tears from their eyes. They later smiled as Albracht described the defendant as not a “classic pimp or panderer. His acts didn’t involve torture, violence, threats, street crime or the repulsive specter of prostitution.”

The judge said the intent of the law under which Freeman was convicted was to prosecute “actual pimps--the guys in the long fur coats, the broad-brimmed, floppy hats, the purple cars, who maintain a stable of prostitutes.”

“I find his business to be deplorable, but that’s irrelevant,” Albracht added. “It wasn’t the intent of the Legislature to put people like Mr. Freeman in prison when this law was passed.”

Freeman said that, despite his conviction, he intends to continue making sexually explicit films, but will not make them within Los Angeles County, where he said police and prosecutors are “intent on putting us out of business.” He said he will make films either in San Francisco or Las Vegas, where he said authorities appear to be less strict.

‘Leaves Open the Door’

During the six-day trial, women who performed acts of sodomy for “Caught from Behind, II” testified that they were hired principally to engage in sex for the film. Their salaries averaged about $200 a day. The 90-minute film was shot over three days.

A sequel to the film, “Caught from Behind, III,” opened last month at adult movie theaters nationwide. Freeman said publicity from the trial has boosted box-office receipts.

“The last big movie to be prosecuted was ‘Deep Throat,’ and that movie’s made millions,” Freeman said after Monday’s proceedings.

Freeman’s attorney, Goldfarb, claimed that, if Freeman’s conviction is not overturned on appeal, many other general-release movies intended for adults could be banned. “This leaves open the door for vice officers to close down any movie in which sex is displayed,” Goldfarb said.

But Deputy Dist. Atty. Burton J. Schneirow said that an actual sex act, not a simulated sex act, must be performed in order for a producer to be charged with pandering.

In a Probation Department report released Monday, Freeman listed his net annual income from film making as $84,000, and estimated his total assets at $1 million.

The report listed letters to the court in support of Freeman from 72 people, including Freeman’s rabbi, the president of a local homeowners’ association, members of the PTA, neighbors and other film makers.

Deputy Probation Officer Dennis L. Abrams wrote that Freeman is “a model citizen.” The defendant was described as a “family man” who “treats his people decently and never cheats anybody.”