The full case caption appears at the
end of this opinion. Petitioner David Irving Hatch challenges his being held to answer on many charges of transmitting harmful matter over the Internet to a child in an attempt to seduce the child. Hatch argues, among other points, that a decision of the United States Supreme Court, Reno v. American Civil Liberties Union (1997) 521 U.S. 844 (Reno), requires we order the bulk of the charges dismissed on constitutional grounds. We do not agree. INTRODUCTION A decade ago, in response to concerns over the use of obscene or indecent matter in the seduction of children, the California Legislature enacted Penal Code
[FOOTNOTE 1] section 288.2, subdivision (a). This statute, which has been construed by no reported decision, made it a criminal offense to send, by any means, specified harmful matter to a minor “with the intent or for the purpose of seducing a minor.” In the years after 1990, use of the Internet
[FOOTNOTE 2] as a means of communication expanded rapidly, as it continues to do.
[FOOTNOTE 3] In 1996, the United States Congress, in legislation known as the Communications Decency Act (CDA), made it an offense to send or display indecent matter to minors over the Internet, but those enactments were declared unconstitutional by the Reno decision of the United States Supreme Court in 1997. Later on in 1997, with California concern now focused specifically on use of the Internet to seduce minors, and with the then-recent United States Supreme Court CDA decision in mind, the California Legislature enacted a more specific version of the 1990 statute, section 288.2, subdivision (b), now proscribing sending defined harmful matter over the Internet to a minor for purposes of seduction. This statute did not become effective until January 1, 1998. Because of the timing of the offenses committed in this case, Hatch was charged with numerous violations of the 1990 statute, alleged to have been committed prior to the effective date of the 1997 statute, and also with two violations of the latter statute, as well as other offenses. Hatch argues several evidentiary issues and also challenges the statutes both under principles of statutory construction and, relying heavily on the Supreme Court decision overturning the CDA, on various constitutional grounds. We thus must resolve Hatch’ s various evidentiary arguments, construe the language of both the 1990 and 1997 statutes and determine also whether the statutes withstand Hatch’ s Commerce Clause and First Amendment challenges to their provisions. We first set out the procedural and factual background, review the pertinent state and federal statutes we will discuss and then proceed to determine the various evidentiary, statutory construction and constitutional questions presented by Hatch. FACTUAL BACKGROUND The present charges arise from a type of “sting” operation conducted by a private entity. They involve not only Hatch’ s Internet communications with two imaginary victims, but also his meeting with an intended victim and the results of a search of Hatch’ s home and his computer. A. Beginning of the Affair In the summer of 1997, INN News (Fox Television) advertised for intelligent, fast-thinking women who appeared young, but who were over 18 years of age. Jennifer Hersey, a 20-year-old woman who appeared quite youthful, was hired. Her duties were to pose as a 13-year-old girl and to talk on the Internet with persons seeking sexual encounters with underage women. Hersey referred to such persons as “stalkers.” Hersey posed as two different girls, “Stacie” and “Lisa,” and posted on the Internet biographical information, stating that each of them was 13 years old. Hersey then waited to be contacted by men. Her first contact with Hatch occurred on September 6, 1997. Hersey, posing as Stacie, was in an Internet chat room in which persons talk with one another in a “virtual room.” Hatch, using the screen name “Jordan9787,” sent Stacie a private message asking if she liked older guys. On September 8, 1997, Hatch and Stacie exchanged Internet communications in which Stacie stated she was 13 years old. These initial contacts were followed by a series of Internet communications between Hatch and Stacie and between Hatch and Lisa. Hersey made copies of her Internet communications with Hatch, wrote the dates of the communications on the copies and delivered the copies to police. B. The Stacie Internet Counts, Counts 2-13 and 20 The factual bases for what were eventually alleged in an information as counts 2 through 13, attempted seduction of a minor by any means (� � 664, 288.2, subd. (a)) consist of Internet communications summarized as follows: Count 2: On September 9, 1997, Hatch and Stacie exchanged communications discussing in detail the sexual conduct in which they could engage when they met. Hatch expressed his concerns about being caught. Count 3: On September 10, 1997, Hatch sent Stacie messages asking her to meet him in person. He also sent her a picture of two females engaged in sexual conduct with a man and Hatch stated “heres a pic of something we can try.” This action was also the basis for count 20, possession of pictures of a minor engaging in sexual conduct. (� 311.1.) Count 4: On September 11, 1997, Hatch and Stacie exchanged messages in which Hatch suggested sexual conduct. He also sent Stacie a picture of a young girl masturbating and stated he could show her many more pictures when they met. Count 5: On September 12, 1997, Hatch suggested to Stacie sexual conduct in which they could engage when they met. He pressured Stacie to meet with him, although he expressed his fear Stacie might be a trap. He also sent Stacie pictures of a young girl with a man, a young girl having sexual relations with a man and a nude girl. He reiterated he could show her many more pictures when they met.
[FOOTNOTE 4] Count 6: On September 13, 1997, Hatch sent Stacie a photograph of a nude girl. Count 7: On September 19, 1997, Hatch suggested to Stacie several types of sexual conduct in which they could engage when they met. He asked her if he could take pictures while they had sex and promised not to show them to anyone because it would be imprudent to show pictures of a 13-year-old having sexual relations with him. Count 8: On September 22, 1997, Hatch sent Stacie a picture of a nude young girl and tried to arrange to meet her at a motel so they could have sexual relations. He expressed his fear he would lose his job if Stacie reported him and obtained Stacie’ s assurances she was not with the police.
[FOOTNOTE 5] Count 9: On October 23, 1997, Hatch expressed to Stacie his continued desire that she have sexual relations with him. He asked her to send a nude picture of herself to him, and she asked him to send her a nude picture of himself. Count 10: On September 27, 1997, Hatch sent Stacie a picture of himself nude and asked her to telephone him if she could meet with him or if she wanted to hear him ejaculate. In an angry conversation, he accused Stacie of manipulating him to obtain the pictures and told her to go away. Count 11: On October 28, 1997, Hatch accused Stacie of cowardice because she refused to meet him. Hatch asked her to send a picture of herself nude and offered to show her pictures of himself nude when they met. He told her he had met Lisa, another 13-year-old, and they planned to meet that Wednesday night. He represented that the first of either Stacie or Lisa to meet with him would become his only girlfriend. Count 12: On November 25, 1997, Hatch tried to convince Stacie to meet with him. She asked him for more pictures and he became upset and told her she could see all of his pictures. Count 13: On February 8, 1998, Hatch and Stacie had their last communication. Stacie asked him for more pictures, and they discussed meeting and engaging in sexual conduct. Hatch sent Stacie pictures of nude girls and of a girl and a man having intercourse. C. The Lisa Internet Counts, Counts 14-19 The factual bases for counts 14 through 19, attempted seduction of a minor by any means (� � 664, 288.2, subd. (a)) consist of Internet communications summarized as follows: Count 14: On September 15, 1997, Hatch and Lisa had a conversation in which Hatch suggested they could meet and engage in sexual conduct. Count 15: On September 18, 1997, Hatch told Lisa that if they met, she could see him nude. He asked permission to come to her house “right now” to display himself in the nude or to give her a picture of himself nude. Count 16: On September 21, 1997, Hatch suggested to Lisa they could meet and engage in sexual conduct. Hatch arranged to meet her at a restaurant that evening. They met that night at the appointed place. During the meeting, Hersey, posing as Lisa, asked Hatch if he was going to display himself, and he replied that because of the way she looked at him, she could make him do anything she wanted. After their meeting, they had another conversation in which they discussed having sexual relations. Count 17: On September 22, 1997, Hatch sent Lisa a picture of a nude young girl and asked Lisa if she resembled the girl in the picture. He also tried to arrange another meeting with her. Count 18: On September 23, 1997, Hatch told Lisa that thinking of her aroused him. Hatch suggested several ways for them to safely meet. Count 19: On February 1, 1998, Lisa suggested Hatch meet her at a hotel pool area and asked Hatch if he would expose himself. Hatch stated he could not expose himself in a public pool area. He also expressed reluctance to meet her because she would cause him to be aroused but the public nature of the pool would prevent him from obtaining satisfaction. They agreed to meet that afternoon at the hotel. D. The Hotel Meeting, Counts 1, 22 and 23 On February 1, 1998, Hersey, posing as Lisa, met Hatch at a hotel pool area. Hatch wanted a hug but Hersey only “halfway” hugged Hatch. After they sat down, Hatch showed her pictures of himself nude. They engaged in small talk during the next 20 minutes, and Hatch told her of his sexual plans. However, Hersey refused Hatch’ s invitation to accompany him in his truck. He threw a temper tantrum, stomped out of the pool area and walked to his truck. Hersey waited a few minutes and then followed him to his truck. Hatch tried to convince her to enter the truck but she refused. Hatch then unzipped his pants and began to masturbate. Hersey asked Hatch for permission to photograph him and he agreed. After he ejaculated onto his hand, he extended that hand toward Hersey. This encounter resulted in the charges of an attempted lewd act on a minor under the age of 14 years, count 1 (� � 664, 288, subd. (a)); lewd conduct, count 22 (� 647, subd. (a)) and indecent exposure, count 23 (� 314.1). E. The Search, Count 21 Police later executed a search warrant at Hatch’ s home. Detective Armstrong, a computer- and child-pornography expert, examined the floppy discs and computer seized at Hatch’ s home. Armstrong retrieved the images stored on the floppy discs. He opined that three of the images on the floppy discs depicted child pornography based on the physical characteristics of the persons shown engaging in sexual acts. Hatch’ s computer lacked the software necessary to view the photographs stored on the discs. However, the computer hard drive had ghost images of some of the photographs, which showed the images had at one time been present on the computer’ s hard drive before being loaded onto the floppy discs. Hatch was charged with possession of matter depicting minors in sexual conduct, count 21. (� 311.11, subd. (a).) PROCEDURAL BACKGROUND The above counts were set out in an information filed April 23, 1997, by the District Attorney of San Diego County.
[FOOTNOTE 6] The preliminary hearing was held on August 25, 1998. Evidence was received from Hersey, the person who posed as a minor under 14, and from police officers. The court also received videotape, transcripts and photographs in evidence. At the conclusion of the hearing, counsel for Hatch argued the insufficiency of the evidence, inapplicability of section 288, subdivision (a), to Internet communications and constitutional issues, but the magistrate rejected all of these arguments. On October 16, 1998, Hatch filed a motion to set aside the information under section 995, raising again his challenges to the sufficiency of the evidence, the statutory applicability of section 288.2, subdivision (a), to his conduct and the constitutionality of section 288.2, subdivision (b) and, insofar as it was applicable to Internet communications, section 288.2, subdivision (a). After hearing argument on the motion, the superior court judge issued an order on November 18, 1998, denying Hatch’ s motion to dismiss. On December 2, 1998, Hatch petitioned this court for a writ of mandate, reiterating his challenges to various areas of evidentiary sufficiency, arguing points of statutory interpretation and again setting out both Hatch’ s Commerce Clause and First Amendment challenges. On February 27, 1999, we issued an alternative writ and thereafter heard argument, following which we solicited further briefing on the statutory interpretation and constitutional issues from the parties and also from various amici curiae. DISCUSSION Hatch argues the above evidence is insufficient in many respects: section 288.2 is unconstitutional under the Commerce Clause and the First Amendment; and that section 288.2, subdivision (a), should be interpreted not to apply to the Internet. I Statutory Background Three legislative enactments, California’ s section 288.2, subdivisions (a), (b) and the CDA, require our attention at some length. We examine each in turn. A. Section 288.2, Subdivision (a)
[FOOTNOTE 7] Section 288.2, subdivision (a), provides: “Every person who, with knowledge that a person is a minor, or who fails to exercise reasonable care in ascertaining the true age of a minor, knowingly distributes, sends, causes to be sent, exhibits, or offers to distribute or exhibit by any means, including, but not limited to, live or recorded telephone messages, any harmful matter, as defined in Section 313, to a minor with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of that person or of a minor, and with the intent or for the purpose of seducing a minor, is guilty of a public offense and shall be punished by imprisonment in the state prison or in a county jail. “A person convicted of a second and any subsequent conviction for a violation of this section is guilty of a felony.”
[FOOTNOTE 8] Section 313, in turn, provides in part: “(a) ‘ Harmful matter’ means matter, taken as a whole, which to the average person, applying contemporary statewide standards, appeals to the prurient interest, and is matter which, taken as a whole, depicts or describes in a patently offensive way sexual conduct and which, taken as a whole, lacks serious literary, artistic, political, or scientific value for minors.” B. Communications Decency Act (CDA) In 1996 Congress enacted the Telecommunications Act of 1996 (Pub. L. 104-104, 110 Stat. 56), which the Reno court described as “an unusually important legislative enactment. . . . [I]ts primary purpose was to reduce regulation and encourage ‘ the rapid deployment of new telecommunications technologies.’ ” (Reno, supra, 521 U.S. at p. 857.) While six of the Telecommunications Act’ s seven titles were products of extensive legislative hearings and Senate and House committee reports, key provisions of Title V of the Act, known as the Communications Decency Act of 1996 (CDA), arose from a Senate amendment. The CDA in two sections made criminal both the “ indecent transmission”
[FOOTNOTE 9] and the “patently offensive display”
[FOOTNOTE 10] of material to minors on the Internet. C. Section 288.2, subdivision (b) By Statutes 1997, chapter 590, section 1, the California Legislature added a new subdivision to section 288.2, as follows: “(b) Every person who, with knowledge that a person is a minor, knowingly distributes, sends, causes to be sent, exhibits, or offers to distribute or exhibit by electronic mail, the Internet . . . or a commercial online service, any harmful matter, as defined in Section 313, to a minor with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of that person or of a minor, and with the intent, or for the purpose of seducing a minor, is guilty of a public offense . . . .” This statute became operative on January 1, 1998. As we earlier noted, the result in this case is that most of the counts alleged against Hatch arise under the 1990 legislation. Hatch makes many challenges to the sufficiency of the evidence and also argues that the above statutes should be so construed as to be inapplicable to his conduct or that they are constitutionally infirm under the Commerce Clause and the First Amendment. We proceed to these questions. II Sufficiency Of The Evidence Hatch attacks the sufficiency of the evidence introduced at the preliminary hearing to support the attempted seduction of a minor charges set forth in counts 2 through 19, as well as the evidence supporting several of the other charges. Our review of such assertions, arising in the context of review of the denial of a section 995 motion to dismiss, is a highly deferential one. A. Standard of Review We are not here reviewing the sufficiency of the evidence to support a jury finding of the truth of the charged offenses. Instead, we must determine only whether there is sufficient evidence in the preliminary hearing transcript to permit the district attorney to proceed to trial. (People v. Laiwa (1983) 34 Cal.3d 711, 718.) As the California Supreme Court has summarized the issue: “In a related context, we observed that a magistrate’ s authority in determining whether to dismiss criminal charges is ‘ limited to determining whether sufficient or probable cause exists to hold the defendant for trial.’ [Citation.] In Uhlemann [People v. Uhlemann (1973) 9 Cal.3d 662], we distinguished the probable cause test from the test used by a jury in determining guilt or innocence, namely, the ‘ beyond a reasonable doubt’ construction. We stated: ‘ ” Of course, the probable cause test is not identical with the test which controls a [trial] jury . . . . The jury must be convinced to a moral certainty and beyond a reasonable doubt of the existence of the crime charged in the information and of every essential element of that crime. But a magistrate conducting a preliminary examination must be convinced of only such a state of facts as would lead a man of ordinary caution or prudence to believe, and conscientiously entertain a strong suspicion of the guilt of the accused. [Citations.] In other words, ‘ Evidence that will justify a prosecution need not be sufficient to support a conviction. . . . An information will not be set aside or a prosecution thereon prohibited if there is some rational ground for assuming the possibility that an offense has been committed and the accused is guilty of it. [Citations.]‘ ” ‘ [Citations.]” (Cummiskey v. Superior Court (1992) 3 Cal.4th 1018, 1027.) With these principles in mind, we turn to Hatch’ s various challenges to the sufficiency of the evidence received below. B. Belief That Lisa And Stacie Were Under Age 14 Hatch contends counts 1 through 19 of the information must be dismissed because the prosecution cannot establish an essential element of the offenses charged in those counts. He argues that a necessary element of the charge in count 1 (� 288, subd. (a)), is proof the victim was under the age of 14 years and a necessary element of the charges in counts 2 through 19 (� 288.2, subds. (a), (b)), is proof the victims were under the age of 18 years. He then argues that if Stacie and Lisa were under the relevant ages, his subjective belief that they were more than 18 years of age would not be a defense to those offenses. (In re Donald R. (1993) 14 Cal.App.4th 1627, 1629-1630.) From this predicate he concludes that his belief Stacie and Lisa were under 14 years of age is likewise irrelevant and, regardless of that belief, because Hersey was over the age of 18 years, the prosecution cannot establish the age elements of the offenses charged in counts 1 through 19. However, Hatch is not charged with violating section 288, subdivision (a), or section 288.2, subdivision (a) or (b); instead, he is charged with attempting to violate those sections. A defendant is guilty of an attempt when he harbors a specific intent to commit the target crime and does a direct, although perhaps ineffectual, act toward its commission. (People v. Ross (1988) 205 Cal.App.3d 1548, 1554.) The act need not be an element of the substantive offense, but only an immediate step in the present execution of the criminal design. (Ibid.) The fact the prosecution cannot show that Hatch’ s intended victims were in fact under 14 years of age is irrelevant to his culpability for attempting the charged crimes. If Hatch had the specific intent to complete the target crimes, the impossibility of completing the crimes does not exonerate him from attempting those offenses. As the court in People v. Meyers (1963) 213 Cal.App.2d 518, 523, stated: “The courts of this state have not concerned themselves with the niceties of distinction between physical and legal impossibility, but have focused their attention on the question of the specific intent to commit the substantive offense. The hypothesis of the rule established in this state is that the defendant must have the specific intent to commit the substantive offense, and that under the circumstances, as he reasonably sees them, he does the acts necessary to consummate the substantive offense; but because of circumstances unknown to him, essential elements of the substantive crime are lacking. [Citations.] It is only when the results intended by the actor, if they happened as envisaged by him, would still not be a crime, then and only then, can he not be guilty of an attempt.” Thus, a defendant may be found guilty of attempted receipt of stolen property although the property is in fact not stolen (People v. Rojas (1961) 55 Cal.2d 252, 258), of attempted possession of a controlled substance although the substance is in fact talcum powder (People v. Siu (1954) 126 Cal.App.2d 41, 43-44) and of attempted rape if he intended to rape a live person although unbeknownst to him the victim was dead (People v. Thompson (1993) 12 Cal.App.4th 195, 202-203). In People v. Reed (1996) 53 Cal.App.4th 389, the court concluded the defendant was guilty of attempted molestation of a child under 14 (� 664/288, subd. (a)) although his intended victims did not in fact exist but were instead fictitious constructs of a detective posing as the mother of 12- and 9-year-old victims. The Reed court reasoned at pages 396 through 397 that liability for an attempted crime does not require a “‘ ” present ability” to complete the crime, nor is it necessary that the crime be factually possible.’ [Quoting People v. Grant (1951) 105 Cal.App.2d 347, 356].” It stated: “This rule of law is particularly important in determining culpability for intent crimes. Our courts have repeatedly ruled that persons who are charged with attempting to commit a crime cannot escape liability because the criminal act they attempted was not completed due to an impossibility which they did not foresee: ‘ factual impossibility is not a defense to a charge of attempt.’ [Quoting People v. Peppars (1983) 140 Cal.App.3d 677, 688.]“ In Reed, the defendant attempted to distinguish prior cases by arguing the intended victims were “imaginary.” The Reed court rejected the defendant’ s argument, stating at page 397 that defendant’ s argument rested on “a distinction without a difference. Applying the established ‘ perception’ standard set out above, if the circumstances had been as defendant believed them to be, he would have found . . . two girls under fourteen available for him to engage in lewd and lascivious conduct with them. Defendant’ s failure to foresee that there would be no children waiting does not excuse him from the attempt to molest. Defendant showed no honest and reasonable, or even unreasonable, belief that his actions would have a legal outcome. Thus, defendant’ s mistake of fact was not a defense to the crime of attempting to molest girls under 14 years of age.” A defendant is guilty of an attempt if the evidence shows he had the specific intent to commit the substantive offense and under the circumstances as he believed them to be took actions to consummate the substantive offense, even though circumstances unknown to him made completion of the substantive offense impossible. (People v. Thompson, supra, 12 Cal.App.4th at p. 203.) Therefore, a motion to dismiss the information should be denied if the evidence at the preliminary hearing would support a finding the defendant had the requisite specific intent and took actions to commit the substantive offense. (Lupo v. Superior Court (1973) 34 Cal.App.3d 657, 663.) The evidence and inferences permit a finding Hatch had the required specific intent to molest a child under the age of 14 years, count 1, and to distribute harmful matter intending to seduce a minor, counts 2 through 19: he was told Lisa and Stacie were under the age of 14 years and expressed fear of the consequences of being detected; and despite his belief of their young ages, he nonetheless tried to convince Lisa and Stacie to engage in sexual conduct with him. C. Attempt Liability Under Count 1 Hatch argues the evidence of his February 1, 1998, acts at the hotel pool and parking lot were insufficient to constitute an attempt to violate section 288, subdivision (a), as charged in count 1; he contends there was no evidence he attempted to touch Hersey in a manner which would violate that section. To be guilty of an attempt, a defendant harboring the required specific intent must commit a direct but ineffectual act toward commission of the target crime. (People v. Ross, supra, 205 Cal.App.3d at p. 1554.) The act need not be an element of the offense, but only constitute an immediate step in the execution of the criminal design. (Ibid.) No bright line distinguishes mere preparatory acts from commencement of the criminal design. The courts have recognized that the more clearly the intent to commit the offense is shown, the less proximate the acts need be to consummation of the crime. (People v. Berger (1955) 131 Cal.App.2d 127, 130; People v. Fiegelman (1939) 33 Cal.App.2d 100, 105.) “[T]he plainer the intent to commit the offense, the more likely that steps in the early stages of the commission of the crime will satisfy the overt act requirement.” (People v. Dillon (1983) 34 Cal.3d 441, 455.) There was clear evidence Hatch intended to commit a lewd or lascivious act on a child under 14 years old. His Internet communications with Lisa, whom he believed to be 13, described several forms of sexual conduct in which they could engage when they had the opportunity. He stated during their February 1 Internet communication setting up their meeting later that day that he did not want to meet with her just to talk; and, while sitting together at the pool, he showed her pictures of himself nude and discussed what sexual activities he was planning. While harboring the specific intent to molest 13-year-old Lisa, Hatch tried to convince her to accompany him into his truck, and when Lisa later followed him to his truck, he again tried to convince her to enter the truck. These acts went beyond mere preparation for sexual molestation and constituted immediate steps in the present execution of the criminal design. (People v. Ross, supra, 205 Cal.App.3d at p. 1548.) The court in People v. Reed, supra, 53 Cal.App.4th 389, held that analogous actions were adequate for attempt liability, concluding the defendant’ s entry into a hotel room where he thought the victims were waiting and where the planned molestation was to occur “was clearly a step beyond mere preparation for the crime . . . [and] was an unequivocal first act in carrying out the intended crime.” (Id. at p. 399.) Hatch argues that under People v. La Fontaine (1978) 79 Cal.App.3d 176 (overruled on other grounds in People v. Lopez (1998) 19 Cal.4th 282, 292), he cannot be convicted of attempted child molestation; he made no effort to touch Lisa while in his truck. He argues that under La Fontaine, merely soliciting Lisa to commit sexual acts is inadequate to support an attempt to violate section 288, subdivision (a). Even assuming La Fontaine’ s analysis remains good law, there is some evidence Hatch did try to touch Lisa: after Lisa refused to enter his truck, Hatch exposed himself, masturbated and extended his semen-covered hand toward her. We conclude the evidence of Hatch’ s February 1, 1998, acts at the hotel is sufficient to support the charge in count 1. D. Sufficient Evidence of Dates of Offenses Hatch argues there was insufficient evidence of the dates of occurrence of the offenses charged in counts 2 through 19. He also argues there was insufficient evidence of the date he possessed the obscene matter charged in count 21. The purpose of the information is to apprise the defendant of the charges he must be prepared to meet at trial. The prosecution need not prove the date alleged in the information with exactness if the information adequately alleges the offenses took place before the filing of the information and within the period of limitations. (People v. Lees (1967) 257 Cal.App.2d 363, 369.) 1. Counts 2 Through 19 Each of counts 2 through 19 alleges a date certain of the charged offense. Hatch does not suggest any of those dates trigger a statute of limitations bar to prosecution. Instead, he asserts that Hersey’ s testimony did not identify the date of each Internet conversation and therefore there is no evidence of the time each offense occurred. However, a printed copy of each Internet conversation was admitted as an exhibit at the preliminary hearing, and at the top of each document Hersey made a handwritten notation of the date of the conversation.
[FOOTNOTE 11] Moreover, Hersey testified that her first contact with Hatch was his September 6, 1997, e-mail to Stacie asking her if she liked “older guys.” This contact began her five-month period of e-mail contact with Hatch and demonstrates the charged offenses occurred within the period of limitations. Hatch also argues there is no evidence of the date he learned Lisa and Stacie were 13 years old, and therefore the conduct forming the basis of many of the section 288.2, subdivisions (a), (b), offenses may have occurred before he became aware of their ages, which would exonerate him from culpability for those counts. There is ample evidence from which the trier of fact could infer Hatch knew of their ages at the inception of their communications. First, Hersey posted biographical information for both Stacie and Lisa, which is available to Internet users, stating their ages to be 13 years. Second, as to Hatch’ s understanding of Stacie’ s age, their September 8, 1997, communication contained Stacie’ s statement that she was 13 years old. Finally, as to Hatch’ s understanding of Lisa’ s age, the evidence permits a trier of fact to infer Hatch knew Lisa’ s age during their first conversation on September 15 because of the nature of their conversation on that date: Hatch asked her whether she had developed pubic hair and whether her breasts had developed; Hatch knew Lisa would have to sneak out of the house to avoid parental detection. Moreover, during their next conversation three days later, Lisa explicitly stated she was 13. Because Hatch showed neither surprise nor an unwillingness to continue his pursuit after this revelation, but instead told her he was using her picture as a source of erotic stimulation, the evidence permits the inference he was aware of her age from the inception of his communications with Lisa.
[FOOTNOTE 12] 2. Count 20 Hatch also argues the prosecution did not establish the date Hatch allegedly possessed obscene matter forming the basis of count 20. (� 311.1.) However, count 20 did not allege possession of obscene matter, but rather the advertisement for sale and distribution of obscene matter depicting a person under the age of 18 years personally engaging in or personally simulating sexual conduct. Count 20 is based on Hatch’ s September 10, 1997, Internet message to Stacie. The date of this communication is established in the same manner as the dates of the communication set forth in counts 2 through 19. Hatch does not otherwise challenge the sufficiency of the evidence to support count 20. E. Evidence of Possession Of Obscene Matter, Count 21 Count 21 (� 311.11, subd. (a)) of the information alleged that on or about February 13, 1998, Hatch possessed child pornography. This count is based on the computer and floppy discs containing digitized photographs seized by police during the search of Hatch’ s home. An expert who viewed the pictures embedded on the floppy discs opined the pictures qualified as child pornography. Although the date of the search does not appear in the record, testimony shows the search occurred sometime after February 6, 1998, but prior to the filing of the September 3, 1998, information.
[FOOTNOTE 13] This evidence is adequate to show Hatch possessed the floppy discs before the filing of the information and within the period of limitations. (People v. Lees, supra, 257 Cal.App.2d at p. 369.) Hatch argues count 21 must be dismissed because there was no evidence of the date he viewed the digitized photographs contained on the floppy discs. However, count 21 charged Hatch with violating section 311.11, subdivision (a), which proscribes knowingly possessing any matter depicting a person under 18 years of age engaging in or simulating sexual conduct knowing that the matter depicts a person under 18 years of age. As long as Hatch knew the digitized photographs depicted persons under age 18 engaging in sexual conduct, the precise dates on which he may have last viewed the photographs is irrelevant. There was ample evidence to support the inference Hatch knew the digitized photographs depicted persons under age 18 engaging in sexual conduct. First, there was evidence Hatch was able, at some point in time, to view the photographs. The expert testified that although Hatch’ s computer did not have the software needed to view the photographs on the discs, the photographs could be viewed either elsewhere or by reinstalling the necessary software, and the photographs had at one time been viewable on Hatch’ s computer. Other evidence also supports the inference Hatch had the capability of viewing images that, like the images on the floppy disks, were digitized photographs.
[FOOTNOTE 14] Finally, a trier of fact could infer that Hatch, having manifested a clear interest in younger girls, would not have possessed these images and a computer capable of viewing them without having viewed them. Because the evidence permits the inference Hatch had the ability to and did view the proscribed photographs, we consider whether a person viewing these photographs would have known they depicted persons under the age of 18 years engaged in the sexual conduct. The evidence showed that at least one photograph on the floppy discs depicted a child engaged in sexual conduct with an adult male.
[FOOTNOTE 15] Other photographs depicting young participants were also found on the discs. The evidence permits the inference that a viewer of these photographs would have known the depicted participants were under the age of 18 years. For all of the above reasons, and under the standard of review set out earlier, we reject Hatch’ s various challenges to the sufficiency of the evidence received below. III Constitutional Issues The central question presented by the petition is the constitutionality of section 288.2 under both the First Amendment and the so-called “dormant” Commerce Clause, undue burden on interstate commerce. We set out our review standard for these assertions and then examine first the latter argument, that section 288.2 violates the Commerce Clause as unduly burdening interstate commerce, and finally proceed to a discussion of whether section 288.2, in both subdivisions, comports with the requirements of the First Amendment.
[FOOTNOTE 16] A. Standard of Review An “as applied” challenge to a statute seeks “relief from a specific application of a facially valid statute . . . to an individual . . . under allegedly impermissible present restraint . . . as a result of the manner . . . in which the statute . . . has been applied.” (Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1084.) Such a challenge “contemplates analysis of the facts of a particular case . . . to determine the circumstances in which the statute . . . has been applied and to consider whether . . . the application deprived the individual to whom it was applied of a protected right. [Citations.]” (Ibid.) Apart from an “as-applied” challenge, a litigant may also make a challenge to the face of the statute. However, the United States Supreme Court has held that “[a] facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid. The fact that the [Act] might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid, since we have refused to recognize an ‘ overbreadth’ doctrine outside the limited context of the First Amendment.” (U. S. v. Salerno (1987) 481 U.S. 739, 745 [107 S.Ct. 2095], italics added.) Thus, a pretrial Commerce Clause argument by a California resident whose victim also resided in California necessarily is a facial challenge to the statute, rather than an “as-applied” challenge to a particular case, instance or pattern of attempted enforcement of a statute. As our own Supreme Court has observed with respect to the same proposition: “A facial challenge to the constitutional validity of a statute or ordinance considers only the text of the measure itself, not its application to the particular circumstances of an individual. [Citation.] ‘ ” To support a determination of facial unconstitutionality, voiding the statute as a whole, petitioners cannot prevail by suggesting that in some future hypothetical situation constitutional problems may possibly arise as to the particular application of the statute . . . . Rather, petitioners must demonstrate that the act’ s provisions inevitably pose a present total and fatal conflict with applicable constitutional prohibitions.” ‘ [Citations.]” (Tobe v. City of Santa Ana, supra, 9 Cal.4th at p. 1084.) An exception to the limited scope of a facial challenge is the assertion that a statute is overbroad, restricting speech protected under the First Amendment, and “the defect in the statute is that the means chosen to accomplish the State’ s objectives are too imprecise, so that in all its applications the statute creates an unnecessary risk of chilling free speech.” (Secretary of State of Md. v. Joseph H. Munson Co. (1984) 467 U.S. 947, 967-968.) B. Section 288.2 and the Commerce Clause Hatch, as a California resident, who is alleged to have engaged in strictly intrastate communications, cannot assert that application of section 288.2 to him poses any unique or particular burden on interstate commerce. Because he is only being charged with intrastate activity, any intrusion on interstate commerce, if it occurs, would occur in all prosecutions under secton 288.2. Given these circumstances, his Commerce Clause challenge is a facial challenge to the statute. (See Tobe v. Santa Ana, supra, 9 Cal.4th at p. 1084.) The central case relied upon by Hatch for the Commerce Clause point
[FOOTNOTE 17] is American Libraries Association v. Pataki (S.D.N.Y. 1997) 969 F.Supp. 160 (Pataki), enjoining enforcement of a New York statute similar to section 288.2, but lacking an intent-to-seduce element.
[FOOTNOTE 18] In our view, Pataki rests on premises inapplicable to the present matter. For these reasons, we do not follow Pataki. The two principal bases for the holding in Pataki are that (1) the very nature of the Internet requires national, rather than state-by-state, regulation and (2) the statute appeared to operate extraterritorially and thus impose New York policies on other states. We examine each of these bases in turn, and also the relevance of the element of intent, the central distinction between the statute at issue in Pataki and those before us. 1. Need for National Regulation Pataki’ s first point, which is at the heart of Hatch’ s Commerce Clause arguments, is a sort of preemption argument: that simply logging on the Internet automatically places one beyond the reach of state criminal prosecution. “The Internet, like the rail and highway traffic in [interstate commerce] cases, requires a cohesive national scheme of regulation so that users are reasonably able to determine their obligations.” (Pataki, supra, 969 F.Supp. at p. 182.) New York’ s attempted regulation, reasoned Pataki, meant that “an Internet user cannot foreclose access to her work from certain states or send differing versions of her communications to different jurisdictions” (Pataki, supra, 969 F.Supp. at p. 183), and thus “[t]he need for uniformity in this unique sphere of commerce requires that New York’ s law be stricken as a violation of the Commerce Clause.” (Ibid.) We do not believe this general proposition can be employed, as suggested by Hatch, to insulate pedophiles from prosecution simply by reason of their usage of modern technology. Such a view of what our Constitution requires is, in our opinion, completely inappropriate. That is to say, the validity of the Pataki analysis vel non is not controlling here because the intent to seduce element in section 288.2 is a distinction of the utmost significance. While a ban on the simple communication of certain materials may interfere with an adult’ s legitimate rights, a ban on communication of specified matter to a minor for purposes of seduction can only affect the rights of the very narrow class of adults who intend to engage in sex with minors. We have found no case which gives such intentions or the communications employed in realizing them protection under the dormant Commerce Clause.
[FOOTNOTE 19] Rather, as another appellate court observed, in rejecting a Commerce Clause challenge to a New York penal statute
[FOOTNOTE 20] with provisions similar to section 288.2, “we cannot conceive of any legitimate commerce involving the sending of graphic images to minors while at the same time attempting to lure them into engaging in sexual activity.” (People v. Foley (1999) 692 N.Y.S.2d 248, 256, italics added.) We agree completely. 2. Extraterritorial Enforcement of California Law The Pataki court also found that “[t]ypically, states’ jurisdictional limits are related to geography; geography, however, is a virtually meaningless construct on the Internet.” (Pataki, supra, 969 F. Supp at p. 169.) Hypothesizing that an artist in California seeking to display work harmful to minors to an Oregon buyer “could not employ his virtual [Internet] studio to do so without risking prosecution under the New York law” (id. at p. 174), the Pataki court held that “New York has deliberately imposed its legislation on the Internet and, by doing so, projected its law into other states whose citizens use the Net.” (Id. at p. 177.)
[FOOTNOTE 21] Contrary to Pataki’ s conclusion the New York statute “projected its law into other states,” here there is no reason to suppose California would attempt to impose its policies on other states in light of the California penal statutes covering jurisdiction over public offenses (� � 27, 777, 778, 778a and 778b),
[FOOTNOTE 22] which generally bar punishment for wholly extraterritorial offenses. Thus there is no reason at all to assume California prosecutors will attempt to stifle interstate commerce by filing charges for acts committed in other jurisdictions. As our Supreme Court noted with reference to another penal statute: “The statute makes no reference to the place of performance of [the offense], and we must assume that the Legislature did not intend to regulate conduct taking place outside the borders of the state. [Citations.] . . . “. . . The statutes must be construed in the light of the general principle that, ordinarily, a state does not impose punishment for acts done outside its territory. [Citations.]” (People v. Buffum (1953) 40 Cal.2d 709, 715-716, italics added.) There is no reason to suppose enforcement of section 288.2 will differ from that which is historically and statutorily permissible, and Pataki’ s central assumption is thus without relevance to our consideration of the statutes. In short, given the requirement that those charged must intend to seduce and the additional requirement that they must commit at least an attempt here, no rational analysis supports the proposition section 288.2 imposes any burden on interstate commerce, as (1) such burdens as may exist are not upon any protected right of commerce at all and (2) enforcement of the statute is not likely to significantly, or at all, burden interstate commerce. Thus, we must reject Hatch’ s contention that on its face section 288.2 unduly burdens interstate commerce. C. Section 288.2 and the First Amendment Relying on the exception to the limited scope of facial challenges which arises under the First Amendment (Secretary of State of Md. v. Joseph H. Munson Co., supra, 467 U.S. at pp. 967-968), Hatch asserts that without regard to the status of his own speech, section 288.2 will unduly chill otherwise protected speech. In contrast to the previous challenge, however, in which Hatch cited us primarily to a decision of a federal district court, the authority primarily relied upon by Hatch is a recent case from the United States Supreme Court, whose constitutional adjudications, in marked contrast to those of federal district courts, are binding on us.
[FOOTNOTE 23] 1. Reno and the CDA The case relied upon by Hatch is of course Reno, supra, 521 U.S. 844, a challenge to the earlier-cited provisions of the CDA, making it a criminal offense to make an “indecent transmission” or a “patently offensive display” to a minor. In Reno, the court noted but did not decide the proposition that the Internet, by reason of its very character, may not constitutionally be subject at all to congressional regulation for indecency.
[FOOTNOTE 24] We examine each of these facets in turn. a. “Indecent Transmission” 47 United States Code section 223(a), set out earlier, provided in pertinent part for a prison term for one transmitting interstate or foreign telecommunications containing “any comment, request, suggestion, proposal, image, or other communication which is obscene or indecent, knowing that the recipient . . . is under 18 years of age.” The statute did not however define “indecent”
[FOOTNOTE 25] as therein used, nor require that the prohibited material be that “utterly without redeeming social importance for minors.” (Ginsberg v. State of New York (1968) 390 U.S. 629, 646 [88 S.Ct. 1274].) The requirements for defining that matter which may be prohibited were set out in Miller v. California (1973) 413 U.S. 15, 24 [93 Ss.Ct. 2007]: “(a) whether ‘ the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest [citation]; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious artistic, political or scientific value.” The CDA statute defined prohibited material by reference to only one of the three Miller prongs. The Reno court found the absence of the other Miller criteria in the CDA prohibition to be fatal, in particular because omitting the “societal value” requirement essentially foreclosed appellate limitation upon the reach of the statute, leaving all contested issues merely ones of local fact. (Reno, supra, 521 U.S. at pp. 873-874.) Because, among other reasons, no adequate definition of “harmful” was provided, leaving the statute fatally vague, the Reno court found that the “indecent transmission” provision was unconstitutional. (Reno, supra, 521 U.S. at p. 882.) b. “Patently Offensive Display” The second section of the CDA considered by the Reno court involved the “patently offensive display” of various matter to minors. 47 United States Code section 223(d) provided in pertinent part for a two-year prison term for one using an interactive computer service to (a) send to a person under 18 or (b) display in a manner available to persons under 18 “any comment, request, suggestion, proposal, image, or other communication that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs.” Here again, the Reno court was unable to sustain the statute, noting that the “patently offensive” language was qualified only by reference to “‘ sexual or excretory activities or organs,’ ” and “ ‘ measured by contemporary community standards.’ ” (Reno, supra, 521 U.S. at p. 871, fn 35.) Such vagueness resulted in a situation where “ [i]n order to deny minors access to potentially harmful speech, the CDA effectively suppresses a large amount of speech that adults have a constitutional right to receive and to address to each other.” (Reno, supra, 521 U.S. at p. 874.) In sum, the Reno court found that “the CDA lacks the precision that the First Amendment requires when a statue regulates the content of speech,” as the CDA did. (Reno, supra, 521 U.S. at p. 874.) Central to the holding was the court’ s finding that the CDA “would confer broad powers of censorship, in the form of a ‘ heckler’ s veto,’ upon any opponent of indecent speech who might simply log on and inform the would-be discoursers that his 17-year-old child . . . would be present.” (Reno, supra, 521 U.S. at p. 880, and see discussion at pp. 874-880.) B. Application to This Case Relying on the language of Reno, Hatch urges that section 228.2, like the CDA sections considered in Reno, is overbroad. Reno, however, concerned a blanket prohibition of dissemination of harmful matter to minors, which had the essential effect of limiting all relevant discourse to a child’ s level.
[FOOTNOTE 26] There is simply no comparable effect upon any otherwise-protected communications by reason of section 288.2, which prohibits sending (1) defined harmful matters (2) to minors and (3) for the purpose of seducing them.
[FOOTNOTE 27] Reno rested its overbreadth finding on two points: (1) banned matter was not defined so as to exclude protected communication; and (2) banned matter was defined to refer to a necessarily variable “community standard.” In this case, however, banned matter is properly defined, and there is, as as set forth in section 313, a single statewide “community standard” test, which precludes possible inconsistent results for varying local interpretations of the same acts. In this regard we note that similar statutory language in section 311 was upheld as sufficiently specific in Bloom v. Municipal Court (1976) 16 Cal.3d 71, 80-81. We also note that there is no question that the state may protect minors from material which is not obscene by adult standards. (Sable Communications of California, Inc. v. F.C.C. (1989) 492 U.S. 115, 126 [109 S.Ct. 2829].) The central point here is that a person charged with violation of section 288.2 is not a “discourser” (Reno, supra, 521 U.S. at p. 880) seeking merely to communicate indecency to other adults and innocently running afoul of an overbroad statute. Rather, the statute punishes those who seek not discourse, but intercourse and other sexual activity, and who have identified intended victims for pursuit and seduction. For this reason, not only is Reno inapplicable to this case, but the case of People v. Barrows (1998) 677 N.Y.S.2d 672, invalidating the earlier-referenced New York penal statute on overbreadth grounds for the second Reno rationale, variation in community standards, has no application to this case. Further, because the New York statute lacked the intent to seduce element of our statute, the “heckler’ s veto” point, chilling effect upon “chat room” type communications, noted in Reno and Barrows is irrelevant. Section 288.2 by its terms is inapplicable to communications other than those made to an identifiable minor person, whether fictitious or not, for the purpose of seduction, and thus is incapable of infringement by general, non-specific communications made without any intent to seduce an identifiable minor person. It is precisely this distinction in the basic type of the communication which is crucial. An overbroad statute chills classical “forum”
[FOOTNOTE 28] communications, such as those which occur in the “chat rooms” frequented by Hatch. Section 288.2, in contrast, only addresses those communications in which an adult seeks to seduce a child. In the case of “forum” communications, an overbroad statute necessarily chills protected adult communications by permitting the “heckler’ s veto” asserted by or on behalf of a minor. In the case of that species of dialogue in which a pedophile stalks an identified minor child by sending him or her direct Internet messages, no content-restricting rules permitting a “heckler’ s veto” are involved.
[FOOTNOTE 29] The distinction, as we have noted earlier, is critical. The statutes rejected in Reno and Pataki involved cases where the rights of adults to receive material could have been diminished by a statute prohibiting certain communication to children. No such danger exists under section 288.2.
[FOOTNOTE 30] The activity prohibited by the California statute is far more akin to conduct than communication. As the California Supreme Court has recently determined, in the context of review of an ordinance prohibiting the “aggressive solicitation” of money,
[FOOTNOTE 31] that “some recent decisions of the California and federal intermediate courts had concluded that, under the California Constitution, ordinances directed at solicitation should be viewed as [having to] satisfy the strict scrutiny test,” those decisions were erroneous. (Los Angeles Alliance for Survival v. City of Los Angeles (2000) 22 Cal.4th 352, 357.) Instead, characterizing the ordinance as “directed at activity” (Los Angeles Alliance for Survival v. City of Los Angeles, supra, at p. 357), and noting the longstanding California precedents treating statutes on solicitation as regulating the time, place and manner or conduct of the solicitor rather than the content of his or her speech, the court went on to hold that “a court should avoid a constitutional interpretation that so severely would constrain the legitimate exercise of government authority in an area in which such regulation had long been acknowledged as appropriate.” (Id. p. 378.) Thus, the court held that “regulations . . . that single out the public solicitation of funds for distinct treatment, should not be viewed as . . . constitutionally suspect.” (Id. at p. 378.)
[FOOTNOTE 32] The above reasoning, we believe, is fully applicable to the circumstances of this case. Section 288.2 is not directed at speech, but at the activity of attempting to seduce a minor. While one might argue that under Reno adults are free to address indecencies to an Internet audience while indifferent to the presence of children in that audience, it is only when the focus has shifted to the use of such communicated indecency in the attempted seduction of a child, a process we apprehend will be accomplished by direct, one-to-one communication that the present statute’ s prohibitions are violated. Thus, the only “chilling effect” of section 288.2 is on pedophiles who intend that their statements will be acted upon by children. Given the intention with which they are made, such statements are not entitled to the extraordinary protection of the First Amendment (Los Angeles Alliance for Survival v. City of Los Angeles, supra, 22 Cal.4th at p. 378; People v. Zimmerman, supra, 15 Cal.App.4th Supp. 7 at p. 11.)
[FOOTNOTE 33] In light of the foregoing, we are compelled to uphold the legislative enactment. “[S]ince it is manifest that the ordinance is capable of applications which do not offend the Constitution in the manner suggested by petitioners . . . , the ordinance must be upheld.” (Tobe v. City of Santa Ana, supra, 9 Cal.4th at p. 1102.) Hatch has not set out any credible scenario under which the application of section 288.2 to those persons who are liable to punishment under California law is constitutionally infirm. We thus deny Hatch’ s constitutional arguments, instead deferring to “the legitimate exercise of government authority in an area in which such regulation had long been acknowledged as appropriate.” (Los Angeles Alliance for Survival v. City of Los Angeles, supra, 22 Cal.4th at p. 378.) IV Statutory Construction We finally must determine whether, as a matter of statutory construction, the section 288.2, subdivision (a), prohibition on the attempted seduction of minors with harmful matter “by any means” includes Internet communications as Hatch maintains that it does not.
[FOOTNOTE 34] As will appear, the question answers itself. A. Standard of Review The fundamental consideration is that we must adhere to the plain meaning of the statutory language in question. Our Supreme Court has often reiterated “the rule that courts should give statutory words their plain or literal meaning unless that meaning is inconsistent with the legislative intent apparent in the statute. [Citation.]” (People v. Allen (1999) 21 Cal.4th 846, 859.) B. Application Hatch argues that the phrase “by any means” should not be read to include the Internet, but we are unable to perceive any ambiguity whatsoever in the statutory language: “any means” means “any means,” and thus necessarily does include usage of the Internet to affect the prohibited acts.
[FOOTNOTE 35] The subsequent passage of the more specific section 288.2, subdivision (b), which is explicitly applicable to Internet communications, does nothing to alter the fact of the necessarily plain meaning of the prior statute. “‘ It is fundamental that legislation should be construed so as to harmonize its various elements without doing violence to its language or spirit.’ [Citation.]” (People v. Garcia (1999) 21 Cal.4th 1, 6.) Absent any ambiguity, and in order to harmonize the two statutes, the prior statute must be read to also include Internet communications. Thus, both statutes apply to Hatch’ s conduct, and we reject his contrary arguments. DISPOSITION The petition for writ of mandate is denied. BENKE, J. I CONCUR: HALLER, J. [CONCURRANCE AND DISSENT BY MCDONALD, J. OMITTED] :::FOOTNOTES:::
FN1 All statutory references are to this code unless otherwise stated.
FN2 The Internet, its operation and the topics of sexually explicit material and age verification are well summarized in Reno, supra, 521 U.S. at pp. 849-867. We adopt that summary for purposes of the discussion herein.
FN3 “The record demonstrates that the growth of the Internet has been and continues to be phenomenal.” (Reno, supra, 521 U.S. at p. 885.) The Reno court estimated Internet use would expand fivefold between 1996 and 1999. (Id. at p. 850.)
FN4 At about this time, Hatch began his Internet communications with Lisa.
FN5 The following day, Stacie communicated with Hatch, stating she wanted to find someone her own age and was not interested in pursuing their relationship further. However, Stacie was subsequently contacted by Hatch, and the subsequent contacts formed the basis of the remaining counts involving Stacie.
FN6 The charging language in each of these counts mirrors the statutory language, alleging that Hatch either knew his victims were minors or acted “failing to exercise reasonable care to ascertain the true age of said minor.” Because the evidence here supports an inference, and as we shall hold, Hatch in fact knew that his intended victims were under 14, we treat the cited “negligence” language as surplusage. This alternative language was deleted in the process leading to section 288.2, subdivision (b).)
FN7 Enacted as Statutes 1989, chapter 1316, section 1, the statute was codified as Penal Code section 288.2.
FN8 Section 288.2, like the provisions of the CDA considered post, enumerates in subdivisions (c), (d) and (e) affirmative defenses to imposition of liability thereunder. While the Reno court addressed the issue of affirmative defenses (521 U.S. at pp. 881-882), our resolution of the constitutional questions presented does not depend upon a consideration of these matters, and we thus do not further refer to them.
FN9 47 United States Code section 223(a) provided in pertinent part for a two-year prison term for one who transmits interstate or foreign telecommunications containing “any comment, request, suggestion, proposal, image, or other communication which is obscene or indecent, knowing that the recipient . . . is under 18 years of age.”
FN10 47 United States Code section 223(d) provided in pertinent part for a two-year prison term for one using an interactive computer service to (a) send to a person under 18 or (b) display in a manner available to persons under 18 “any comment, request, suggestion, proposal, image, or other communication that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs.”
FN11 Hersey was asked how she could be certain of the dates of the various conversations. She testified that when she saved the file, the computer dated that file on the date it was created. As an example, she testified about the copy of her September 21, 1997, conversation with Hatch. She entered her handwritten notation of the September 21, 1997, date on that exhibit copy based on the computerized file date. Because all of the other pages contain handwritten notations in a similar handwriting, the trier of fact could infer the dates on all the pages within the exhibit were written by Hersey based on the same methodology.
FN12 It is clear from this record that Hatch was not only aware his intended victims were 13 years old, which is indeed why he sought them out in the first place, but that both of them were accessible to him as they resided in San Diego County. We return to this point in the discussion post.
FN13 At the August 25, 1998, preliminary hearing, Detective Jauregui testified he learned of Hersey’ s investigation during a February 6, 1998, meeting with Hersey’ s superiors. After receiving this information, police assumed the investigation and ultimately searched Hatch’ s home where the matter was found.
FN14 For example, Lisa electronically transmitted a digitized picture of herself to Hatch during their initial September 15, 1997, conversation and Hatch responded “wow lisa!!! you are beautiful!!!!” . He also told Lisa three days later that he masturbated while “looking at [her] pretty picture.” Hatch also sent Lisa a “JPG” formatted digitized picture of a nude girl, apparently under 18, and asked Lisa whether she had “pointy and pink nipples like [the girl depicted in the photograph],” which was a detail Hatch could not have known unless he had viewed the transmitted photograph at some point in time.
FN15 This child was so young, the court, in striking the expert’ s statement the child appeared to be five or six years old, stated “for someone obviously small, then I don’ t need an expert opinion; if someone is five or six years old, I don’ t think that’ s beyond the expertise of the average person.”
FN16 The People argue Hatch waived his constitutional challenges to the validity of the statute because he did not raise them at the preliminary hearing. A writ petition is an appropriate procedure to challenge the constitutionality of a statute. (Pryor v. Municipal Court (1979) 25 Cal.3d 238, 245; Dillon v. Municipal Court (1971) 4 Cal.3d 860, 866, fn. 6.) A claim that the statutes under which criminal charges are brought are unconstitutional is preserved for appeal without raising the issue below. (People v. Valladoli (1996) 13 Cal.4th 590, 606.)
FN17 Hatch and the various parties and amici curiae have also cited and discussed a number of out-of-state and federal district court cases. In view of the limited precedential value of these matters to the resolution of the questions before us, we do not unduly extend this opinion by discussion of those cases.
FN18 New York Penal Law section 235.21 as amended made it a felony for an individual “[k]nowing the character and content of the communication which, in whole or in part, depicts actual or simulated nudity, sexual conduct or sado-masochistic abuse, and which is harmful to minors, [to] intentionally use[] any computer communication system . . . to initiate or engage in such communication with a person who is a minor.” “Harmful to minors” was defined elsewhere in a manner similar to the definition in California Penal Code section 313, discussed ante.
FN19 Like Pataki, the statutes considered in Cyberspace Communications, Inc. v. Engler (E.D. Mich. 1999) 55 F.Supp.2d 737, and American Civil Liberties Union v. Johnson (1999) 194 F.3d 1149, were not limited to persons attempting to seduce minors. We think with respect to Hatch’ s Commerce Clause argument, it is also worth noting that Congress has specifically prohibited interstate travel for the purpose of engaging in sexual conduct with minors (78 U.S.C. � 2423(b)) and that in interpreting this prohibition one court has reiterated what we believe is self-evident: “One does not have a fundamental right to travel for illicit purposes.” (U.S. v. Brocdorff (DC Dist.) 992 F.Supp. 22, 25.)
FN20 New York Penal Law section 235.22 prohibits (1) sending defined harmful matter to minors (2) for the purpose of inducing the minor to engage in sexual activity. The statute invalidated by the Pataki court, Penal Law section 235.21(3), lacked the second element, attempting to induce sexual activity by the minor. (People v. Foley, supra, 692 N.Y.S.2d at p. 256.) As will appear, this distinction in the statutes is critical.
FN21 Parenthetically we note, it is clear that geography, insofar as it involved access to his intended victims, was a priority for Hatch as it would be for any other adult whose intent is to seduce a child. Here, Hatch knew his intended victims were not only Californians, but also fellow residents of San Diego County. Hatch and amicus curiae on his behalf, in support of the point that use of the Internet necessarily implicates interstate commerce, argue that one cannot know the physical location of another person on the Internet. While this may be correct as an abstract point, it is meaningless in circumstances such as those presented here, where, from whatever source, Hatch in his very earliest communications with Stacie and Lisa mentioned “UTC” [University Town Center] and various area streets, while often importuning his intended victims for personal meetings. As we point out in another context later, what Hatch did was not some form of interstate commerce so much as a localized stalking of accessible, local California victims. This simply is not and cannot be construed to be a constitutionally protected activity.
FN22 Under section 27, California perpetrators seeking to seduce California minors are of course liable to prosecution, but out-of-state perpetrators would only be liable to prosecution if they entered California in the course of the offense. Sections 777, 778, 778a and 778b are of similar import.
FN23 The First Amendment challenge, while more substantial than the Commerce Clause argument, still must demonstrate an unmistakable constitutional violation: “As we have pointed out above, to succeed in a facial challenge to the validity of a statute or ordinance the plaintiff must establish that ‘ ” the act’ s provisions inevitably pose a present total and fatal conflict with applicable constitutional provisions.” ‘ [Citation.] All presumptions favor the validity of a statute. The court may not declare it invalid unless it is clearly so. [Citation.]” (Tobe v. City of Santa Ana, supra, 9 Cal.4th at p. 1102.)
FN24 Hatch asserts the Internet must be regulated by Congress, rather than the states, because of its interstate character. Contrariwise, one of the three appellate judges hearing the challenge to the CDA constitutionality in Reno found that “Congress may not regulate indecency on the Internet at all.” (American Cikvil Liberties Union v. Reno (Ed Pa. 1996) 929 F.Supp 824, 877, quoted in Reno, supra, 521 U.S. at p. 863, fn. 30, where the Supreme Court noted but declined to consider the assertion.)
FN25 Hatch does not dispute the proposition that obscenity, if properly defined, may properly be prohibited. (See, e.g., Reno, supra, 521 U.S. at p. 883.)
FN26 “Knowledge that . . . one or more members of a 100-person chat group will be minor — and therefore that it would be a crime to send the group an indecent message — would surely burden communications among adults. [� ] . . . These limitations must inevitably curtail a significant amount of adult communication on the Internet. . . . [� ] . . . [The] open-ended prohibitions [of the CDA] embrace all nonprofit entities and individuals posting indecent messages. . . .” (Reno, supra, 521 U.S. at pp. 876-877, fns. omitted.)
FN27 As an example of the legislation’ s overbreadth, Reno noted that “[u]nder the CDA, a parent allowing her 17-year-old to use the family computer to obtain information on the Internet that she, in her parental judgment, deems appropriate could face a lengthy prison term.” (Reno, supra, 521 U.S. at p. 878.) No such absurdity is suggested as likely or even possible under section 288.2.
FN28 A “forum” was “the marketplace or public place of an ancient Roman city consisting of an open place or square . . . and forming the center of judicial and public business.” (Webster’ s 3d Internat. Dict. (1993) p. 896.) Secondary meanings include “a public meeting place for open discussion” or “a medium of open discussion.” (Ibid.)
FN29 The present case is a precise example of the point: Hatch met “Lisa” and “Stacey” in chat rooms, but committed no criminal act until he began to send “Lisa” and “Stacey” private messages.
FN30 Justice O’ Connor’ s concurring opinion in Reno made explicit reference to the concepts here discussed, noting that in her view the CDA provisions were “constitutional as applied to a conversation involving only an adult and one or more minors — e.g., when an adult speaker sends an e-mail knowing the addressee is a minor, or when an adult and a minor converse by themselves or with other minors in a chat room. In this context . . . [r]estricting what the adult may say to the minors in no way restricts the adult’ s ability to communicate with other adults. He is not prevented from speaking indecently to other adults in a chat room (because there are no other adults participating in the conversation) and he remains free to send indecent e-mails to other adults. The relevant universe contains only one adult, and the adult in that universe has the power to refrain from using indecent speech. . . .” (Conc. opn. of O’ Connor, J., in Reno, supra, 521 U.S. at pp. 892-893, italics added.)
FN31 The matter was reviewed on certification of the question from the Ninth Circuit pursuant to California Rules of Court, rule 29.5, and the decision was by a vote of 5-2, with Werdegar, J., concurring, and Mosk, J. and Kennard, J., dissenting. While the decision interprets the California rather than the federal Constitution, its reasoning is applicable herein.
FN32 See also People v. Zimmerman (1993) 15 Cal.App.4th Supp. 7, 11, discussing section 647, subdivision (c), prohibiting begging: “In Ulmer v. Municipal Court [1976] 55 Cal.App.3d 263, the California Court of Appeal upheld the statute’ s validity under the California and United States Constitutions. In determining begging and soliciting alms is not constitutionally protected activity, the court explained: ‘ Regulation of conduct bearing no necessary relationship to the freedom to speak, write, print or distribute information or opinion does not abridge the guarantees of the First Amendment. [Citations omitted.] Begging and soliciting for alms do not necessarily involve the communication of information or opinion; therefore, approaching individuals for that purpose is not protected by the First Amendment.’ [Citation.] The Legislature’ s intent in enacting the statute was to prohibit individuals from going about on the streets accosting others, i.e., walking up to and approaching others, for handouts. [Citation.] ‘ [T]he statute does not extend to one “who merely sits or stands by the wayside.” ‘ [Citation.] Thus, the statute proscribes certain conduct by an individual who begs or solicits alms, rather than the message he seeks to convey. The mere fact that the proscribed act may be accomplished by speech does not in and of itself bring the activity within the protection of the First Amendment.” (Fns. omitted.)
FN33 Hatch also argues that even if he is properly subject to section 288.2, he has “standing” to assert the rights of others not subject to such punishment. But, as we have observed, the class of persons subject to section 288.2 is limited to those seeking to seduce minors by transmission of specified prohibited materials, and it does not appear the section might improperly be applied to them.
FN34 Because this assertion assumes a proposition which we have earlier rejected, the unconstitutionality of section 288.2, subdivisions (a), (b), we need not unduly prolong discussion of this point.
FN35 The single record matter supporting Hatch’ s argument is in the legislative history, as one committee report stated the bill enacting sections 288.2, subdivision (b) “would expand the law.” (Sen. Com. on Judiciary, Analysis of Assem. Bill No. 181 (1997-1998 Reg. Sess.) as amended June 16, 1997.) Such a statement may not, however, overcome the plain meaning of the words which carry a contrary import, particularly as other committee reports stated the measure was “a clarification of existing law rather than an addition to it.” (Sen. Com. on Pub. Safety, Analysis of Asem. Bill No. 181 (1997-1998 Reg. Sess.) as amended April 8, 1997.)
Hatch v. Superior Court DAVID IRVING HATCH, Petitioner, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; THE PEOPLE, Real Party in Interest. No. D032423 In the Court of Appeal of the State of California Fourth Appellate District Division One (Super. Ct. No. SCD136817) Proceedings in mandate following an order of the Superior Court of San Diego County, Terry J. Knoepp, Judge. Petition denied. COUNSEL Robert E. Boyce and Laura G. Schaefer for Petitioner. No appearance for Respondent. John T. Philipsborn, Amicus Curiae on behalf of California Attorneys for Criminal Justice for Petitioner. Cynthia M. Sorman, Diane Nichols and Neil F. Auwarter, Amicus Curiae on behalf of Appellate Defenders, Inc., for Petitioner. Office of the District Attorney, Paul J. Pfingst, District Attorney, Patricia Atwill, Thomas F. Mcardle and James E. Atkins, Deputy District Attorneys, for Real Party in Interest. Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Carl H. Horst and Arlene Aquintey Sevidal, Deputy Attorneys General, Amicus Curiae for Real Party in Interest. Filed March 31, 2000
