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 based on the belief that he was statutorily ineligible, I would remand for resentencing.
Section 1203.065 was originally enacted in 1979 and listed a number of sexual offenses for which a prison sentence was mandatory. (Stats. 1979, ch. 944, § 15, p. 3262.) In 1981, it was amended to include section 311.4, subdivision (c), as such an offense. (Stats. 1981, ch. 1043, § 5, p. 3996, urgency, eff. Sept. 30, 1981; ch. 1064, § 3.5, pp. 4094-4095 .) The version of section 311.4, subdivision (c) which was then in effect prohibited filming a minor under 14 for commercial purposes. (Stats. 1981, ch. 1043, § 4, pp. 3995-3996, urgency, eff. Sept. 30, 1981.) Section 311.4, subdivision (c) has been amended several times since 1981 and now prohibits filming a person under 18 age for noncommercial purposes.
*1509Absent a clearly expressed legislative intent to the contrary, “ ‘where a statute adopts by specific reference the provisions of another statute . . . such provisions are incorporated in the form in which they exist at the time of the reference and not as subsequently modified. . . . [Citations.]’ ” (Palermo v. Stockton Theatres, Inc., supra, 32 Cal.2d at pp. 58-59 (Palermo)’, see also People v. McGee (1977) 19 Cal.3d 948, 958, fn. 3 [140 Cal.Rptr. 657, 568 P.2d 382]; People v. Kirk (1990) 217 Cal.App.3d 1488, 1499 [267 Cal.Rptr. 126]; People v. Domagalski (1989) 214 Cal.App.3d 1380, 1384-1385 [263 Cal.Rptr. 249]; People v. Ramirez (1984) 154 Cal.App.3d Supp. 1 [201 Cal.Rptr. 303],)2
Palermo requires us to construe section 1203.065’s inclusion of section 311.4, subdivision (c) as a reference to the 1981 version of that statute, unless we can ascertain that the Legislature intended otherwise. (See People v. Domagalski, supra, 214 Cal.App.3d at pp. 1384-1385; In re Oluwa (1989) 207 Cal.App.3d 439, 445 [255 Cal.Rptr. 35].) Nothing in the history of either statute suggests the Legislature intended section 1203.065 to incorporate all subsequent changes to section 311.4.
Section 311.4 is “part of a statutory scheme ‘to combat the exploitive use of children in the production of pornography.’ ” (People v. Cantrell (1992) 7 Cal.App.4th 523, 540 [9 Cal.Rptr.2d 188], citing In re Duncan (1987) 189 Cal.App.3d 1348, 1360 [234 Cal.Rptr. 877].) It was enacted in 1961 and originally prohibited the use of minors in the sale and distribution of obscene matter. (People v. Cantrell, supra, 7 Cal.App.4th at p. 540.) The statute was amended in 1977 to add subdivision (b), which prohibited filming sexual conduct by a minor under age 16 for commercial purposes. (Stats. 1977, ch. 1148, § 3, p. 3688, urgency, eff. Sept. 29, 1977.) Subdivision (c) defined the term “sexual conduct.” (Cantrell, at p. 540.)
In 1981, section 311.4 was again amended. The definition of “sexual conduct” was moved from subdivision (c) to subdivision (d), and a newly created subdivision (c) made it a felony to film sexual conduct by a minor under the age of 14 for commercial purposes. Subdivision (b) remained unchanged, and provided lesser penalties for the same offense against minors under age 16. (Stats. 1981, ch. 1043, § 4, p. 3995, urgency, eff. Sept. 30, 1981.) It was this version of the statute which was in effect when section *15101203.065 incorporated section 311.4, subdivision (c) as a probation ineligible offense. Significantly, section 311.4 did not then penalize any noncommercial conduct.
Section 311.4 was substantially revised in 1984. Both subdivisions (b) and (c) were changed to apply to minors under age 17, the reference to “commercial purposes” was deleted from subdivision (c), and a sentence was added to subdivision (c) providing that, “It shall not be necessary to prove commercial purposes in order to establish a violation of this subdivision.” The sentencing ranges of subdivisions (b) and (c) were also changed so that the filming of a mihor for commercial purposes under subdivision (b) was punishable by three, six or eight years in prison, whereas a person convicted of filming a minor for noncommercial purposes under subdivision (c) was “guilty of a felony” (Stats. 1984, ch. 1489, § 2, pp. 5215-5216), and hence subject to imprisonment for sixteen months, two years or three years (§ 18). Further amendments to section 311.4 in 1994 and 1996 made subdivisions (b) and (c) applicable to victims under age 18, and amplified the definition of the forms of visual media which violate the statute. (Stats. 1994, ch. 55, § 3; Stats. 1996, ch. 1079, § 5; Stats. 1996, ch. 1080, § 5.)
Before the 1984 amendment to section 311.4, subdivisions (b) and (c) had both prohibited filming a minor for commercial purposes, but higher penalties were available under subdivision (c) based on the age of the child. Subdivision (c) thus defined the more serious of the two offenses. After 1984, both subdivisions extended to minors under 17 (and later, to minors under 18), but subdivision (c) applied to cases where the filming lacked a commercial purpose. Subdivision (c) thus became the less serious offense, and accordingly carried a less severe sentencing range than subdivision (b).
If section 1203.065 is construed to incorporate the present version of section 311.4, defendants convicted of filming minors for noncommercial purposes under subdivision (c) will be subject to mandatory prison sentences, while those convicted of committing the same actions, but with the additional element of a commercial purpose under subdivision (b), will be eligible for probation. It is improbable that the Legislature intended such an anomalous result.
In People v. King (1993) 5 Cal.4th 59 [19 Cal.Rptr.2d 233, 851 P.2d 27], our Supreme Court was faced with a statutory scheme which, as here, appeared on its face to favor more serious offenders over those convicted of lesser crimes. (Id. at pp. 67-70.) Welfare and Institutions Code section 1731.5 governs the circumstances under which minors who are tried as adults may be committed to the Youth Authority rather than prison. The *1511statute purportedly allowed a Youth Authority commitment when the defendant had been convicted of first degree premeditated murder, but not when the conviction was for the less serious crime of attempted premeditated murder. The court concluded that despite the statutory language, the “only rational interpretation of the legislative intent” (5 Cal.4th at p. 69) was to avoid a construction which made the lesser offense carry a potentially harsher penalty. Youthful offenders convicted of attempted premeditated murder were therefore eligible for a commitment to the Youth Authority. (Ibid.)
Similarly, section 1203.065 should not be construed to permit probation in cases where the section 311.4 violation is committed for commercial purposes, but to disallow it when the defendant lacks such a purpose. Though the Legislature could reasonably establish mandatory prison sentences for noncommercial pomographers, there is little justification for simultaneously allowing their commercial counterparts to apply for probation.
My colleagues suggest there is no anomaly in a statutory scheme that treats commercial pomographers more favorably than noncommercial pornographers, because the former may actually be less dangerous to their victims and society. Whatever the merits of such an argument in the abstract, I find nothing in the history of sections 311.4 and 1203.065 to suggest the Legislature actually considered and intended this result. To the contrary, the 1984 amendment to section 311.4 increased the sentencing range for certain commercial pomographers. Under the 1981 version of the statute, filming for commercial purposes was punishable by three, four or five years in prison when the victim was under age sixteen, and for three, six or eight years when the victim was under age fourteen 14. The 1984 amendment made all violations for commercial filming punish able by three, six or eight years, and extended the protection of the subdivision to victims under age seventeen. (See Stats. 1984, ch. 1489, § 2, pp. 5215-5216.) It is implausible that the Legislature intended to render commercial pomographers eligible for probation even as it increased the length of the prison terms for many of them.
The decision in People v. Kirk, supra, 217 Cal.App.3d 1488, is illustrative. There the court applied Palermo to determine whether the full strength, consecutive sentencing provisions of section 667.6, subdivision (c) should apply to a conviction of nonforcible penetration with a foreign object under section 289. (217 Cal.App.3d at pp. 1498-1499.) Section 667.6 lists several sexual offenses which are subject to its harsher sentencing provisions, among them section 289. Section 289 had prohibited only forcible penetration when section 667.6 was enacted, but it was later amended to proscribe acts which were not forcible or otherwise coercive. The defendant argued that the failure to amend section 667.6 to include only forcible violations of *1512section 289 was a legislative oversight. (217 Cal.App.3d at p. 1498.) The court concluded that section 667.6, subdivision (c) had incorporated the earlier version of section 289 and that consequently, only forcible violations of section 289 were subject to full strength, consecutive sentences.
The application of the Palermo rule allowed the court in Kirk to give the statute a “ ‘reasonable and common sense construction in accordance with its apparent purpose and the intent of the Legislature.’ ” (People v. Kirk, supra, 217 Cal.App.3d at p. 1499.) And so it does here. The failure to amend section 1203.065 to reflect the changes to section 311.4, by referring to subdivision (b) rather than subdivision (c), is best explained as a matter of legislative oversight, and is most reasonably resolved by applying the rule of Palermo.
The majority opinion posits that if there was any legislative oversight, it was in failing to amend section 1203.065 to refer to both subdivisions (b) and (c) of section 311.4. It is possible that if faced with the question, our Legislature would elect to make prison terms mandatory for all violations of section 311.4. But it has not yet done so.
Post-1981 amendments to section 1203.065 have not revealed an intent to incorporate more recent versions of section 311.4. Other than a 1994 amendment which added the phrase “of violating” before the reference to section 311.4, such amendments been unrelated to section 311.4. (See § 1203.065, amended by Stats. 1986, ch. 427, § 1, p. 1683 and Stats. 1986, ch. 1299, § 12, p. 4608; Stats. 1988, ch. 89, § 3, pp. 397-398; Stats. 1989, ch. 897, § 38; Stats. 1993, ch. 127, § 2.) I cannot infer from a single minor grammatical change that the Legislature meant to extend section 1203.065 to the current version of section 311.4.
The decision in People v. Kirk, supra, 217 Cal.App.3d 1488, 1497-1499, again provides guidance. There the court applied the Palermo rule even though the incorporating statute, section 667.6, had been subsequently amended in ways that did not affect the reference to section 289, the statute it incorporated. (See § 667.6, amended by Stats. 1985, ch. 401, § 1, pp. 1593-1594, urgency, eff. July 30, 1985; Stats. 1986, ch. 1431, § 1, pp. 5128-5129; Stats. 1987, ch. 1068, § 4, pp. 3610-3611; Stats. 1988, ch. 1185, § 1, pp. 3812-3814 ; Stats. 1989, ch. 1402, § 7, p. 6165.)
For these reasons, I would construe section 1203.065 to incorporate the version of section 311.4 which was extant in 1981, and hold that a prison term is not mandatory for a defendant who is convicted of filming a minor *1513for noncommercial purposes.3 I urge the Legislature to revisit section 1203.065 and clarify its intent with respect to convictions under section 311.4, subdivision (c).
Appellant’s petition for review by the Supreme Court was denied October 6, 1999. Mosk, J., Kennard, J., and Werdegar, J., were of the opinion that the petition should be granted.
A11 further statutory references are to the Penal Code unless otherwise indicated.
A corollary rule is that when the statutory reference is to a general body of laws rather than a particular statute, “ ‘the referring statute takes the law or laws referred to not only in their contemporary form, but also as they may be changed from time to time.’ ” (Palermo, supra, 32 Cal.2d at p. 59; see In re Jovan B. (1993) 6 Cal.4th 801, 816 [25 Cal.Rptr.2d 428, 863 P.2d 673].) Because section 1203.065 incorporates section 311.4, subdivision (c) as a specific statute, rather than as part of a general body of law, this principle does not apply.
The 1981 version of section 311.4, subdivision (c), applied to minors under age 14, rather than to persons under age 18, as under the current version of the statute. Because it is unnecessary to the resolution of this appeal, I express no view about the probation eligibility of a defendant convicted of filming a minor over 14 years of age for commercial purposes.