Hatch v. Superior Court

Dist., Fourth One. Mar. D032423. Div. 2000.] [No. Petitioner, HATCH,

DAVID IRVING COUNTY, SAN DIEGO THE SUPERIOR COURT OF Respondent; PEOPLE, THE Real in Interest. Party

Counsel

Robert E. and Boyce Laura G. Schaefer for Petitioner.

No for appearance Respondent.

John T. for California for Criminal Justice as Amicus Philipsborn Attorneys Curiae on behalf of Petitioner. Sorman, M. Diane and Neil F. Auwarter for Appellate Nichols

Cynthia Defenders, Inc., as Amicus Curiae on behalf of Petitioner. Atwill, McArdle K. Thomas F. Pfingst,

Paul J. District Patricia Attorney, Atkins, Interest. E. for Real in Attorneys, Party and James District Deputy General, Druliner, Attorney P. Chief Assistant Bill David Lockyer, Attorney General, Schons, General, H. Horst Gary W. Assistant Carl Attorney General, Sevidal, for the of Cali Arlene State Aquintey Deputy Attorneys in fornia as Amicus Curiae on behalf of Real Interest. Party Opinion his

BENKE, being P. J. Hatch Irving challenges David Acting Petitioner over the held to answer on harmful matter many charges transmitting the child. Hatch among Internet to child in an seduce attempt argues, Court, Reno v. other that a decision United States points, Supreme American Civil Liberties Union 521 U.S. S.Ct. on (Reno), we the bulk of the dismissed

L.Ed.2d order requires charges 874] constitutional We do grounds. agree.

Introduction or indecent A decade in to concerns over the use obscene ago, response children, enacted Penal Legislature matter in seduction of the California statute, (a). which has been construed Code1 This means, decision, send, any no made it a offense to by criminal reported to a the intent or harmful matter minor “with for purpose specified (Ibid.) minor.” seducing

In the use of the as a means of communication after Internet2 years 1996, the Con- as it continues to do.3 In United States rapidly, expanded Act of 1996 known as Communications gress, legislation Decency made to send indecent matter to minors over (CDA), it an offense or display Internet, those enactments declared unconstitutional by but were Reno decision the United States Court 1997. Supreme statutory this code stated. 1All references are to unless otherwise Internet, topics sexually explicit material and verification operation 2The its Reno, pages at pages at S.Ct. are well summarized 521 U.S. 2334-2342], summary We of the discussion herein. adopt purposes 3 growth the Internet has been and continues “The demonstrates record (Reno, Reno court p. U.S. at S.Ct. phenomenal.” 885 [117 (Id. expand Internet use would fivefold between 1996 1999. estimated S.Ct. at Later on use on with California concern now focused specifically minors, of the Internet to seduce and with the then recent United States mind, enacted a Court CDA decision California Supreme Legislature statute, (b), more version of the now specific defined harmful matter over the Internet to a minor for sending proscribing of seduction. This statute did not become effective until January purposes 1998. case,

Because of the in this Hatch was offenses committed timing statute, with numerous violations of the to have been charged alleged statute, committed to the effective date of the and also prior with two statute, violations of the latter as well as other offenses. Hatch several argues issues and also both evidentiary challenges statutes under principles and, construction statutory relying heavily on the Court decision Supreme CDA, on various constitutional overturning grounds.

We thus must resolve Hatch’s various construe the evidentiary arguments, of both language 1997 statutes determine also whether the statutes withstand Hatch’s commerce clause and First Amendment chal- to their lenges We first set out the and factual provisions. procedural background, review the state and federal statutes we will discuss pertinent and then to determine the proceed various evidentiary, construction statutory and constitutional Hatch. questions presented by Background

Factual arise from a present charges conducted type “sting” operation by private entity. They involve Hatch’s Internet communications with victims, two but imaginary also his with an intended and the meeting victim results of a search of Hatch’s home and his computer.

A. Beginning of Affair

In the (Fox Television) summer of INN News advertised for intelligent, fast-thinking women who but who were appeared young, over 18 years Jennifer age. Hersey, woman who 20-year-old quite appeared hired. youthful, was Her duties were to as a and to talk 13-year-old pose girl on the Internet with sexual seeking encounters with persons underage women. referred Hersey to such that were persons “people basically children on the Internet.” stalking as two different Hersey girls, posed “Lisa,” information, “Stacie” and on the Internet posted biographical that each of them stating old. then waited to be years Hersey contacted men. 6, Hersey, on 1997. Hatch occurred September

Her first contact with Stacie, talk with one chat room in which persons was in an Internet posing “Jordan9787,” Hatch, name the screen using a room.” another in “virtual On September if she liked older guys. a message asking sent Stacie private in which 8, 1997, communications Internet exchanged Hatch and Stacie a followed by initial contacts were old. These years Stacie stated she was and between Hatch and Stacie communications between series of Internet communications with of her Internet made copies Hatch and Lisa. Hersey and delivered Hatch, on copies the dates of communications wrote police. copies Counts, 2-13 and 20 Internet Counts B. The Stacie an information as in alleged were eventually The factual bases for what 664, 13, (§§ means of a minor by any seduction 2 through attempted counts as follows: summarized (a)) of Internet communications subd. consist 9, 1997, communi- exchanged Hatch Stacie 2: On Count September could they engage conduct in which in detail the sexual cations discussing being caught. concerns about Hatch his met. they expressed when her messages asking Hatch sent Stacie Count 3: On September females engaged her a of two He also sent picture to meet him person. “heres a we something and Hatch stated pic conduct with a man sexual 20, count pictures also the basis for possession This action was can try.” (§ 311.1.) conduct. in sexual engaging of a minor 1997, 11, messages Hatch and Stacie exchanged

Count 4: On September He also sent Stacie picture sexual conduct. in which Hatch suggested her more many pictures he could show and stated masturbating young girl met. they when 1997, to Stacie sexual Hatch suggested

Count 5: On September Stacie to met. He when engage they pressured in which could they conduct be a He also him, fear Stacie might trap. he his although expressed meet with man, a sexual girl having with a young of a young girl sent Stacie pictures he her many He reiterated could show and a nude girl. relations with a man met.4 more when they pictures of a Hatch sent Stacie photograph

Count 6: On September nude girl. several types Hatch Stacie suggested

Count 7: On September He asked her met. they could when engage they of sexual conduct which time, with Lisa. began communications Hatch his Internet 4About this if he could take while had sex and not to show them pictures they promised to because it would be to of a anyone 13-year-old show imprudent pictures sexual relations with him. having 22, 1997,

Count 8: On Hatch sent of a nude Stacie September picture and tried girl to to meet her at a motel so could have young arrange they sexual relations. He his fear he if would lose his Stacie expressed job him and obtained Stacie’s she not with the assurances was reported police.5 23, 1997, Count On 9: October Hatch to Stacie his continued expressed desire that she have sexual relations with him. He asked her to send a nude him, of herself to and she asked him to send her a nude picture picture himself. 27, 1997,

Count 10: On Hatch sent Stacie a of himself September picture nude and asked her to him if she could meet with him or if she telephone conversation, wanted to hear him In an he ejaculate. angry accused Stacie of him to obtain the and manipulating told her to pictures go away. 28, 1997,

Count 11: On October Hatch accused Stacie of cowardice because she refused to meet him. Hatch asked her to send a of herself picture nude and offered to her show of himself nude when met. He pictures they Lisa, told her he had met another 13-year-old, they meet planned He Wednesday night. that the first of either Stacie or represented Lisa to meet with him would become his only girlfriend. 25, 1997,

Count 12: On November Hatch tried to convince meet Stacie to with him. She asked him for more and he became pictures and told her upset she could see all of his pictures.

Count 13: On Hatch and Stacie had their last commu- February nication. Stacie asked him for more discussed pictures, they meeting in sexual engaging conduct. Hatch sent Stacie of nude and of a girls pictures and a man intercourse. girl having Counts,

C. The Lisa Internet Counts 14-19 19, The factual bases for counts 14 seduction of a through attempted 664, 288.2, (§§ (a)) minor means subd. consist of Internet communi- by any cations summarized as follows: Hatch, following day, stating 5The Stacie communicated with she wanted to find someone However, pursuing

her own and was not interested in their further. Stacie relationship Hatch, subsequently contacted subsequent and the contacts formed the basis of the remaining involving counts Stacie. 1997, Hatch and had a conversation in Count 14: On Lisa September conduct. Hatch could meet and in sexual suggested engage they met, Hatch that if they 15: On told Lisa she September Count him nude. He to come to her house now” “right could see asked permission nude. in the her of himself picture himself nude or give display Hatch to Lisa could they Count 16: On September suggested Hatch meet her meet and sexual conduct. engage arranged met that evening. night During restaurant They appointed place. Lisa, to as asked Hatch if he was Hersey, going display the meeting, posing him, himself, she and he that because of the she looked at could way replied their had him do she wanted. After another anything meeting, they make having conversation in which discussed sexual relations. they 1997, 22, a Hatch sent a nude Count 17: On Lisa September picture He and asked Lisa if resembled in the also picture. she young girl girl another with her. tried arrange meeting 23, 1997, Hatch Lisa that her thinking

Count 18: On told September meet. him. Hatch several them to suggested ways safely aroused her at a On Lisa Hatch meet hotel February suggested Count 19: he area and asked Hatch if he would himself. Hatch stated could pool expose himself in a area. He reluctance to also pool expressed expose public she him to be but the nature meet her because would cause aroused public agreed would him from satisfaction. meet prevent obtaining They pool afternoon at the hotel. 1, 22 and Meeting, D. The Hotel Counts 1998, Lisa, at a hotel met Hatch February Hersey, pool

On posing Hatch. After area. Hatch wanted but hug Hersey only “halfway” hugged down, sat Hatch showed her of himself nude. They engaged they pictures minutes, next and Hatch his sexual talk told her of during plans. small However, refused him in his truck. Hatch’s invitation Hersey accompany tantrum, out of the area and walked his pool He threw a temper stomped and then him to his truck. truck. waited few minutes followed Hersey Hatch convince enter the truck refused. then Hatch tried to her to but she asked Hatch for permis- his to masturbate. began Hersey unzipped pants hand, him After he onto his he sion to and he agreed. ejaculated photograph the charges hand This encounter resulted in extended that toward Hersey. (§§ count 1 lewd act on a minor under the of 14 years, an attempted conduct, (a)) (a)); (§ subd. lewd count 22 subd. and indecent (§ 1). count 23 subd. exposure, Search,

E. The Count 21 Police later executed a search warrant at Hatch’s home. Detective Arm- examined the discs strong, computer- child-pornography expert, floppy seized at Hatch’s home. retrieved the stored computer Armstrong images on the discs. He that three on discs floppy opined images floppy child based on the characteristics of the depicted pornography physical shown in sexual acts. persons engaging

Hatch’s lacked the software to view the computer necessary photographs However, stored on the discs. hard drive had computer ghost images some of the which showed the had at one time photographs, images been on the hard drive before loaded onto the present computer’s being floppy discs. Hatch was of matter charged minors en- possession depicting conduct, in sexual gaged (§ (a).) count 21. subd. Background

Procedural 23, 1997, The above counts were set out in an information filed April the District Attorney San Diego County.6 hearing was preliminary held on August 1998. Evidence was received from Hersey, person who as a minor under and posed age from officers. The court also police received At videotape, evidence. the conclu- transcripts photographs sion of the counsel for Hatch of the hearing, argued insufficiency evidence and the (a), of section subdivision to Internet inapplicability communications, but the all of these magistrate rejected arguments. 16, 1998,

On October Hatch filed a motion to set aside the information under section his to the raising again challenges sufficiency evidence, 288.2, the statutory (a), of section subdivision to his applicability 288.2, conduct and now to the of section adding challenges constitutionality and, communications, subdivision insofar as it was to Internet applicable 288.2, (a). subdivision motion, After hearing on court issued an argument superior judge 18, 1998, order on November motion to Hatch’s dismiss. On denying charging language 6The statutory language, alleging in each of these counts mirrors the Hatch either his “failing knew victims were minors or acted to exercise reasonable care to inference, age supports ascertain the true of said minor.” Because the here and as evidence hold, we shall Hatch fact knew that his intended victims were under we treat the negligence language surplusage. language process cited This alternative deleted in the 288.2, (b). leading to section subdivision mandate, 2, 1998, for a December Hatch this court writ of petitioned his to various areas of reiterating evidentiary sufficiency, arguing challenges out com- both Hatch’s again setting points statutory interpretation clause and First Amendment challenges. merce writ heard

On we issued an alternative and thereafter February briefing statutory we solicited further on the argument, following from vari- and constitutional issues from the and also parties interpretation ous amici curiae.

Discussion argues Hatch the above evidence is insufficient many respects: the commerce and the First section 288.2 unconstitutional under clause Amendment; (a), and that section should be interpreted the Internet. apply

I Statutory Background enactments, (a), Three California’s section subdivisions legislative CDA, (b) and the attention at some We length. federal our require each in examine turn. 288.2, (a)7

A. Section Subdivision 288.2, who, (a), knowl- Section with provides: “Every person minor, care in that a a or fails to exercise reasonable who edge person minor, sends, distributes, causes to the true of a ascertaining knowingly sent, exhibits, means, including, or exhibit by any be or offers distribute matter, to, harmful messages, but not limited live or recorded any telephone 313, a minor intent of as defined in Section with the arousing, appealing to, a or of or the lust or or sexual desires gratifying person passions minor, minor, intent or for the of seducing guilty with the purpose in the state prison offense and shall be punished by imprisonment public in a county jail. 1, 5285, 1316, page the statute is 7Initially chapter enacted section as Statutes

codified as Penal Code section 288.2. “A convicted of a second and conviction for a person any subsequent violation of this section is of a guilty felony.”8 turn, matter, “(a)

Section ‘Harmful matter’ provides part: means whole, taken as a which to the average person, applying contemporary standards, interest, which, statewide to the and is matter appeals prurient whole, taken as a or describes in a offensive sexual depicts patently way which, whole, artistic, conduct and taken as a lacks serious literary, political, or scientific value for minors.”

B. Act Decency (CDA) Communications

In 1996 enacted the Congress (Pub.L. Telecommunications Act of 1996 104-104, 56), 110 Stat. which the Reno court described as “an unusually important legislative enactment. . . . to reduce primary purpose [I]ts regulation and ‘the encourage rapid deployment of new telecommunications (Reno, technologies.’” U.S. at S.Ct. at While six of the Telecommunications Act’s seven titles were products extensive legislative hearings Senate and House committee reports, key act, of title provisions V of the known as the Communications Act Decency (CDA), arose from a Senate amendment. The CDA in two sections made criminal both the “indecent transmission”9 and the offensive “patently of material display”10 id., to minors on the (47 Internet. 223(a); U.S.C. § 223(d).) § 288.2,

C. Section Subdivision Statutes By section chapter California added Legislature a new subdivision to who, “(b) as follows: Every person minor, knowledge distributes, sends, is a person knowingly causes to mail, sent, exhibits, or offers to distribute or exhibit electronic service, Internet. . or matter, . a commercial online defined harmful any 8Section provisions like the post, of the CDA considered enumerates in subdivisions (c), (d) (e) affirmative to imposition liability defenses thereunder. While the Reno court (Reno, addressed the issue of affirmative defenses pp. U.S. S.Ct. 2349-2350]), pp. our resolution questions constitutional presented depend does not matters, upon a consideration of these and we thus do not further refer to them. 223(a) 9Title 47 United States provides Code section in pertinent part two-year prison for a term for one foreign who transmits interstate or containing “any telecommunications com ment, request, suggestion, proposal, image, or other communication which is obscene or indecent, knowing recipient... that the years age.” is under of 18 223(d) 10Title 47 United provides States Code section pertinent part two-year in for a prison using (a) term for computer one person age interactive service to send to a under comment, display or persons in a manner available “any to under request, suggestion, that, context, describes, proposal, image, or other communication depicts or in standards, patently terms offensive contemporary community as measured sexual or excretory organs.” activities or to, minor or arousing, a with the intent of in Section to appealing minor, of that of a the lust or or sexual desires or person gratifying passions minor, intent, a the the a of seducing guilty and with or for purpose offense . . . .” public noted, 1,1998. the

This statute on As we earlier became operative January the under result in this is that most of counts Hatch arise alleged against case the 1990 legislation. the and also

Hatch to the evidence challenges sufficiency makes many the as to to statutes should be so construed be inapplicable above argues commerce his conduct or that are infirm under the they constitutionally Amendment. clause and the We to these questions. First proceed

II the Evidence Sufficiency of Hatch introduced at the sufficiency attacks the the evidence preliminary minor forth in to seduction of a set hearing .charges support attempted as the the other counts as well evidence several of through supporting assertions, in the review of Our of such context of charges. arising review dismiss, one. the denial of a motion is a deferential highly section 995 A. Standard Review

We are here evidence to reviewing sufficiency support Instead, must a the truth of offenses. we finding charged jury there sufficient evidence in the preliminary determine whether to trial. attorney proceed (People district hearing transcript permit 1278].) As 669 P.2d Laiwa 34 Cal.3d Cal.Rptr. related Court has the issue: “In a the California summarized Supreme context, magistrate’s we observed that a whether authority determining or dismiss criminal is ‘limited to whether sufficient charges determining trial.’ In Uhle cause exists to hold defendant for probable [Citation.] P.2d (1973) 9 mann v. Uhlemann Cal.3d [People Cal.Rptr. a 609]], test from the test used by jury we cause distinguished probable innocence, a doubt’ reasonable determining ‘beyond guilt namely, ‘ course, cause identical “Of test is not construction. We stated: probable must be convinced jury the test which controls .... jury [trial] doubt of the existence of the to a moral reasonable beyond certainty of that information and of essential element charged every crime in the must be But a examination crime. magistrate conducting preliminary

185 convinced of such a state of facts as a only would lead man of ordinary believe, caution or entertain a prudence conscientiously strong suspi words, cion of the of the accused. In other guilt ‘Evidence [Citations.] will a justify need not be sufficient to . . prosecution conviction. . support An information not be set will aside or a thereon if prosecution prohibited there is some rational for that an offense has ground assuming possibility ” ’ been committed and the accused is of it. guilty [Citations.]’ [Citations.]” 1018, (Cummiskey Court Superior Cal.4th Cal.Rptr.2d 1059].) 839 P.2d mind, With these we turn to principles Hatch’s various to the challenges of the sufficiency evidence received below.

B. That Lisa and Stacie Were Under 14Age Belief

Hatch contends counts 1 through 19 information must be dismissed because the prosecution cannot establish an essential element of the offenses in those charged counts. He argues that necessary element of in count charge (§ (a)), subd. is the victim was under the proof age of 14 and a years element of necessary charges counts through 19 (§ (a), (b)), subds. the victims proof were under the of 18 age years. He then argues if Stacie and Lisa were under the relevant his ages, subjective belief that were more than they years age would not be a (In defense to those offenses. re Donald R. 14 Cal.App.4th 442].) Cal.Rptr.2d From this he concludes that predicate his belief Stacie and Lisa were under and, years age likewise irrelevant belief, of that regardless because Hersey over of 18 age years, prosecution cannot establish the elements of age the offenses charged counts 1 through 19.

However, Hatch is not with charged violating (a), subdivision instead, or section (a) (b); he is charged attempt- ing violate those sections. A defendant is of an he guilty when attempt harbors a direct, intent to commit specific crime and target does ineffectual, although act toward perhaps its commission. (People v. Ross (1988) 205 Cal.App.3d The act need not Cal.Rptr. offense, an element of the immediate substantive but in the step execution of the criminal present (Ibid.) design.

The fact the cannot show that Hatch’s intended prosecution victims were in fact under 14 years is irrelevant to his culpability attempting crimes. If Hatch had the charged intent to specific complete target crimes, impossibility the crimes does not exonerate completing him

186 (1963) those the court in 213 Meyers from offenses. As v. People attempting 518, 753], of this 523 stated: “The courts state Cal.App.2d Cal.Rptr. [28 the distinction have not concerned themselves with niceties of between but have attention on the and focused their physical legal impossibility, the to commit the offense. The of intent substantive question specific of the rule established in this state is that the defendant must have hypothesis offense, intent to and that under the commit substantive specific them, circumstances, he as he sees does the acts to reasonably necessary offense; consummate the but because of circumstances unknown substantive him, to elements the substantive crime are It essential of [Citations.] lacking. actor, if the results intended by envisaged when only they happened him, crime, then, he not be still not be a then can guilty would of an attempt.”

Thus, of a defendant be found stolen guilty attempted receipt (1961) not Rojas is in fact stolen v. although (People property property 465, 921, 252]), 55 358 P.2d A.L.R.2d Cal.2d 258 85 Cal.Rptr. [10 the substance is in a controlled substance although attempted possession (1954) 126 43-44 fact talcum Siu (People v. powder Cal.App.2d [271 he a live 575]) P.2d if intended to rape person attempted rape to v. unbeknownst him the victim was dead (People Thompson although (1993) 333]). 12 Cal.App.4th Cal.Rptr.2d 658], the In v. Reed 53 People Cal.App.4th Cal.Rptr.2d 389 [61 molestation of a child court concluded defendant was guilty attempted (§§ (a)) his intended victims did not although under subd. of a detective as the posing fact exist but were instead fictitious constructs reasoned, court at 53 nine-year-old mother of 12- victims. Reed 397, crime pages through liability attempted Cal.App.4th “1 crime, to nor not is it “present ability” does require complete the crime Grant v. necessary factually (People possible.’ 660]).” It “This rule of P.2d stated: law Cal.App.2d Our for intent crimes. particularly determining culpability important courts have ruled that who are charged attempting repeatedly persons commit cannot criminal act at a crime because the liability they escape to an did not they due completed impossibility tempted ‘factual is not a defense to a charge attempt.’ foresee: impossibility 879].)” (1983) 140 Peppars Cal.App.3d Cal.Rptr. (People (Reed at Reed, defendant cases distinguish by arguing

In attempted prior The Reed court defendant’s rejected intended victims were “imaginary.” rested on “a dis- that defendant’s argument, stating argument page the established standard tinction difference. ‘perception’ without Applying above, set out if the circumstances had been as defendant believed them to be, he would have found . . . two under fourteen available for him girls in lewd and lascivious conduct engage with them. Defendant’s failure children him foresee that there be no not excuse would does from waiting reasonable, to molest. Defendant no and showed honest or even attempt unreasonable, Thus, belief that his actions would have a outcome. legal defendant’s mistake fact not a defense to the crime of attempting (Reed, 397.) molest under 14 girls years age.” 53 at Cal.App.4th p. A defendant is of an if the evidence he had the guilty shows attempt intent to commit the substantive offense and under the specific circum stances as he believed them to be took actions to consummate the substan offense, tive even though circumstances unknown to him made completion of the substantive offense v. 12 impossible. (People Thompson, supra, Therefore, 203.) a motion to Cal.App.4th dismiss information should be denied if the evidence at the would preliminary hearing support finding defendant had the intent and took actions requisite specific to commit the (1973) substantive offense. (Lupo v. Court 34 Superior 657, 185].) 663 Cal.App.3d Cal.Rptr. [110

The evidence and inferences Hatch had the re permit finding 1, child intent to molest a quired specific under of 14 count age years, minor, and to distribute harmful matter to seduce a counts 2 intending he through 19: was told Lisa and Stacie were under of 14 years detected; fear of the expressed consequences being his belief despite of their young he nonetheless tried ages, to convince Lisa and Stacie to in sexual conduct him. engage with

C. Attempt Liability Under Count 1 Hatch argues evidence of his acts at the hotel February pool lot parking were insufficient to constitute an to violate section attempt 288, 1; (a), in count he contends no charged there was evidence he to touch in a manner attempted Hersey which would violate section.

To be of an guilty defendant attempt, harboring required intent must commit a specific direct but ineffectual act toward commission Ross, of the target crime. v. (People supra, 205 Cal.App.3d offense, act need not be an of the immediate element but constitute an in the execution of the (Ibid.) criminal No line distin step design. bright mere acts from guishes commencement of the criminal preparatory design. The courts have that the recognized more the intent to commit the clearly shown, offense is the less the acts need be to consummation proximate 136]; crime. (1955) P.2d (People Berger Cal.App.2d v. 156].) P.2d People Fiegelman Cal.App.2d “[T]he offense, in the the intent to commit the more likely plainer steps act satisfy of the commission of the crime will the overt early stages v. Dillon Cal.3d (People Cal.Rptr. requirement.” 668 P.2d clear evidence Hatch intended to commit a lewd There was old. Internet communications lascivious act on a child under 14 His years Lisa, of sexual he believed to be described several forms whom had the He opportunity. conduct could when they engage they their stated their 1 Internet communication February setting up during talk; and, he to her just later that did not want meet with to meeting day at the of himself nude while he showed her sitting together pool, pictures the harboring discussed what sexual activities he was While planning. Lisa, to her to intent to molest Hatch tried convince specific 13-year-old truck, truck, Lisa him his him into his and when later followed accompany he convince enter the These acts again beyond tried to her to truck. went in mere for sexual molestation constituted immediate steps preparation Ross, the 205 design. the execution of criminal v. (People present Reed, 53 1548.) The v. People court Cal.App.3d Cal.App.4th 389, conclud held that actions were analogous adequate attempt liability, thought a hotel room he the victims entry defendant’s into where ing occur clearly molestation was to “was waiting planned were where crime . was an mere for the . . beyond unequivocal step preparation [and] (Id. act in out the first intended crime.” carrying (1978) Hatch under La Fontaine 176 argues that v. 79 People Cal.App.3d (overruled on other Cal.Rptr. grounds People Lopez 729] 713]), Cal.4th 965 P.2d he cannot Cal.Rptr.2d molestation; he effort Lisa convicted child made no to touch of attempted Fontaine, Lisa in his He under La argues merely soliciting while truck. to violate section to commit sexual acts is support attempt inadequate (a). La remains assuming analysis good Even Fontaine's law, there is did to touch Lisa: after Lisa refused try some evidence Hatch himself, truck, his masturbated and extended his semen- enter Hatch exposed her. We the evidence of Hatch’s February covered hand toward conclude acts hotel is count 1. charge at the sufficient support D. Dates Evidence Sufficient of Offenses evidence of the dates occurrence

Hatch there was insufficient argues He also there was through argues the offenses in counts 19. charged insufficient evidence he the obscene possessed matter as in counts charged 20 and 21. is to purpose information defendant of apprise he must be

charges to meet at trial. The need not prepared prosecution prove the date in the alleged information with exactness if the information ad alleges offenses took equately before the of the information place filing and 363, within of limitations. period v. Lees (People Cal.App.2d Cal.Rptr.

1. Counts 2 Through 19

Each of counts through 19 a date certain of alleges the charged offense. Hatch does not suggest of those dates any a statute of trigger Instead, limitations bar to prosecution. he asserts that did Hersey’s testimony the date of identify each Internet conversation and therefore there is no evidence of the time each offense occurred.

However, a of each printed Internet conversation copy was admitted as an exhibit at the and at preliminary hearing, of each document top Hersey made a handwritten Moreover, notation of the date of the conversation.11 Hersey testified that her first contact with Hatch was his September e-mail to Stacie her if she asking liked “older This contact her guys.” began five-month of e-mail period contact with Hatch and demonstrates the charged offenses occurred within the of limitations. period

Hatch also there argues is no evidence of the date he learned Lisa and old, Stacie were 13 years and therefore the conduct the basis of forming of the section many (a), (b), subdivisions offenses have occurred before he became aware of their ages, which would exonerate him from culpability for those counts. There is evidence from the ample trier of fact could infer Hatch knew of their ages the of their commu- inception First, nications. Lisa, Hersey posted information for both biographical Stacie and users, which is available to Internet their to be 13 stating ages years. Second, as to Hatch’s understanding Stacie’s their age, September 1997, communication contained Stacie’s statement that she was 13 old. years as to

Finally, Hatch’s of Lisa’s the understanding age, evidence permits trier of fact to infer Hatch knew Lisa’s their first age during conversation on 11Hersey was asked she could how be certain of the dates of the various conversations. She file, testified that when she computer saved the the dated that file on the date it was created. 21, 1997, example, As an she copy testified about the September of her conversation with Hatch. She entered her handwritten notation September date on that exhibit copy computerized based on the pages file date. Because all of the other contain handwritten handwriting, notations in a similar the trier of fact could pages infer dates on all the within by Hersey the exhibit were methodology. written based on the same their on that date: Hatch 15 because of nature of conversation

September had asked her she had hair and whether her breasts whether developed pubic knew have to sneak out of house avoid Hatch Lisa would developed; later, Moreover, their three days detection. next conversation during parental nor she Because Hatch showed neither Lisa stated was 13. explicitly surprise revelation, but told to continue his after this instead unwillingness pursuit stimulation, he the evidence her was her as a source erotic using picture of his he of her from the age the inference was aware inception permits Lisa.12 communications with

2. Count 20 did not the date alleg Hatch also establish Hatch argues prosecution (§ 311.1.) of count obscene matter basis 20. edly possessed forming However, matter, did not but rather count 20 of obscene allege possession for sale distribution of obscene matter advertisement depicting under the of 18 years personally engaging personally person conduct. 20 is based on Hatch’s simulating sexual Count September date estab Internet to Stacie. The of this communication is message manner dates of forth in lished the same as the the communication set Hatch challenge sufficiency counts does not otherwise through 19. the evidence to count 20. support Matter,

E. Evidence Possession Obscene Count or about (§ (a)) alleged Count 21 subd. of the information that on 13, 1998, Hatch child This count is based February possessed pornography. on the discs seized containing digitized floppy photographs computer home. An who the search of Hatch’s viewed police during expert child on the discs opined qualified embedded pictures floppy pictures pornography. record, the testimony the date of the search does

Although appear 6, 1998, to the after but shows search occurred sometime February prior 3, 1998, of the This evidence is filing adequate September information.13 filing show discs before the information Hatch possessed floppy intended were 13 12It is from this record that Hatch was not aware his victims clear old, why sought place, out in but that both of them years is indeed he them the first which they Diego return to in the County. point as in San We this were accessible to him resided discussion, post. 25, 1998, hearing, Jauregui he learned of August preliminary 13At the Detective testified during meeting Hersey’s superiors. After Hersey’s investigation February a information, investigation ultimately Hatch’s receiving police searched this assumed home where the matter was found. Lees, and within the of limitations. period (People Cal.App.2d at

Hatch count 21 must be dismissed because there no argues was evidence of the date he viewed the digitized contained on the photographs floppy However, discs. count 21 Hatch with charged violating (a), matter proscribes knowingly possessing any depicting under 18 person years age in or sexual conduct engaging simulating that the matter knowing under 18 depicts person years As age. long Hatch knew the digitized under photographs depicted persons age engag- conduct, in sexual ing dates on which he have last precise viewed is irrelevant. photographs There was evidence to the inference Hatch ample knew the support digitized under photographs depicted persons in sexual age engaging First, able, conduct. time, there was evidence Hatch at some point view testified that photographs. Hatch’s expert although computer did not have the discs, software needed to view the on the photographs could be photographs either viewed elsewhere or by reinstalling neces- software, sary and the had at one time photographs been viewable on Hatch’s Other computer. evidence also the inference Hatch had the supports that, disks, like capability viewing images on the images were floppy digitized Hatch, a trier of photographs.14 Finally, fact could infer that having manifested a clear interest in younger girls, would not have these possessed and a images them computer capable without viewing having viewed them.

Because the evidence the inference Hatch had the permits to and ability did view the proscribed we consider whether a photographs, person viewing these would have known photographs they under the depicted persons age 18 years engaged in the sexual conduct. The evidence showed that least one on the discs photograph floppy child in sexual depicted engaged conduct with an adult male.15 Other photographs depicting young partici- were also found on the discs. pants The evidence the inference that permits example, electronically 14For Lisa digitized transmitted a picture during of herself to Hatch September their initial responded you conversation and Hatch “wow lisa!!! are days beautiful!!!!”. He also told three “looking Lisa later that he masturbated while [her] pretty picture.” digitized Hatch also sent Lisa a picture girl, “JPG” formatted of a nude apparently under and asked Lisa whether “pointy pink nipples she had like [the girl depicted in the photograph],” which was a detail Hatch could not have known unless he had photograph viewed transmitted point some in time. court, young, striking 15This child was so expert’s statement appeared the child old, small, years to be obviously five or six stated “for expert someone then I don’t need an old, opinion; years if someone is beyond five or six I don’t think that’s the expertise of the average person.”

a have the depicted viewer of these would known photographs participants were under the of 18 years. reasons, out

For all and under the standard of review set of the above earlier, the evi- we Hatch’s various to the reject challenges sufficiency dence received below.

III Constitutional Issues is the petition constitutionality central question presented dormant section under both the First Amendment and so-called 288.2 clause, We our commerce undue burden on interstate commerce. set out standard for these and then examine first the latter argu- review assertions ment, that the commerce clause as burdening section 288.2 violates unduly commerce, to a interstate discussion whether finally proceed subdivisions, the First in both with the requirements comports Amendment.16

A. Review Standard of

An to a statute “relief from a “as seeks applied” challenge specific . under of a valid statute ... to an individual . . facially application . . a result of the manner . . . restraint. allegedly present impermissible (Tobe . . Ana City in which the statute . has been v. Santa applied.” 1145].) P.2d a (1995) 9 Cal.4th Such Cal.Rptr.2d ... of the facts of a case challenge “contemplates analysis particular determine the statute . . . has been the circumstances in which applied it the individual to whom to consider whether ... deprived application (Ibid.) applied protected right. [Citations.]” an also make challenge, litigant may from Apart as-applied However, United States to the face of statute. challenge Supreme People argue challenges validity Hatch constitutional to the of the statute 16The waived his did, however, raise hearing. properly he raise them at the Hatch preliminary because did not Thus, ruling these and received an adverse thereon. these matters on his section 995 motion constitutionality are before us. of the statute or ordinance under which properly issues “[T]he Witkin, [(9th (7 Summary proper subject appeal is a of Cal. Law a defendant convicted Law, 1988)] proceeding criminal or ed. defendant in a civil § Constitutional [‘a appeal the trial brought may challenge constitutionality its court under a statute (People .’]).” decision . . . Cal.4th from adverse Gonzalez Cal.Rptr.2d P.2d is, course, Court has held that to a facial Act of challenge legislative “[a] most difficult to mount challenge since must successfully, challenger establish that no set circumstances exists under which the Act would valid. The fact that the under some might operate unconstitutionally [Act] invalid, insufficient conceivable set of circumstances is to render it wholly since we have not an ‘overbreadth’ doctrine recognized outside the limited (United context of the First Amendment.” States v. Salerno 481 U.S. Thus, 697], added.) S.Ct. L.Ed.2d italics commerce victim clause a California resident pretrial argument by whose statute, also resided in California is a facial to the necessarily challenge case, rather than an as to a instance applied challenge or particular pattern enforcement of a statute. attempted

As our own Court has observed with to the same Supreme respect “A facial to the proposition: challenge constitutional of a statute or validity itself, ordinance considers the text of the measure its application ‘ circumstances of an individual. particular “To support [Citation.] whole, determination of facial unconstitutionality, statute as a voiding cannot that in future petitioners prevail by suggesting some hypothetical situation constitutional arise as to the problems possibly particular Rather, application statute .... must demonstrate that the petitioners act’s provisions inevitably total and fatal conflict pose present ’ (Tobe constitutional applicable Santa prohibitions.” City [Citations.]” Ana, 1084.) Cal.4th at supra, 9

An to the limited of a exception facial is the scope challenge assertion overbroad, a statute is under the restricting speech First Amend- protected ment, and “the defect in the statute is that the means chosen to accomplish the State’s objectives are too so that in all its imprecise, applications statute creates an risk of free unnecessary chilling speech.” (Secretary of State Md. v. J. H. Munson Co. 467 U.S. S.Ct. 2839, 2852-2853, 81 L.Ed.2d B. Section 288.2 and the Commerce Clause

Hatch, as a California resident who is alleged have engaged communications, intrastate cannot assert that strictly application 288.2 to him burden on interstate poses any unique particular commerce. Because he is only with intrastate being charged intrusion on activity, any commerce, occurs, interstate if it occur would in all under prosecutions circumstances, commerce section 288.2. Given these his clause challenge Ana, challenge (See City a facial to the statute. Tobe v. Santa Cal.4th Hatch for commerce clause case relied by point17 central upon 1997) (S.D.N.Y. is American Libraries Ass'n v. Pataki 969 F.Supp. a New statute similar to section (Pataki), enforcement of York enjoining view, on our Pataki rests but an intent-to-seduce element.18In lacking reasons, matter. these do not to the For we premises inapplicable present Pataki. follow Pataki are that holding very

The two bases for the principal national, rather state-by-state, regulation, than nature the Internet requires and to thus extraterritorially impose and the statute appeared operate turn, these other examine each of bases in New York on states. We policies intent, the central distinction and also the relevance the element at before us. between the statute issue in Pataki those 1. Need National Regulation clause at the heart of Hatch’s commerce

Pataki’s first which is point, on argument: is a sort of arguments, simply logging preemption of state pros Internet one reach criminal automatically places beyond Internet, traffic in com ecution. like the rail highway “The [interstate cases, users national scheme of so that regulation cohesive requires merce] (Pataki, their supra, are able determine obligations.” reasonably at F.Supp. p. Pataki, Inter reasoned meant that “an

New York’s attempted regulation, certain or send net user foreclose access to her work from states cannot (Pataki, jurisdictions” of her communications different differing versions in this 183), and thus need for uniformity F.Supp. “[t]he law be as a of commerce York’s stricken New unique sphere requires However, not (Ibid.) does of the Commerce Clause.” 288.2 violation “access,” . . or versions of . communication require “differing criminalize 183); it instead (Pataki, different F.Supp. jurisdictions” [in] curiae have cited and a number of parties 17Hatch and amici also discussed and the various these precedential In limited value of out-of-state federal district court cases. view the us, questions unduly opinion before we extend this matters to the resolution of the do discussion of those cases. felony amended made it a for an Law section 18New York Penal which, or in “[k]nowing content of the communication in whole the character and individual abuse, nudity, conduct sado-masochistic and which depicts actual or simulated sexual or part, minors, intentionally any system communication ... computer is harmful [to] use[] to minors” person is a minor.” “Harmful engage in such communication with who initiate California Penal Code section in a manner similar to definition in was defined elsewhere 313, discussed ante. proscribes defined matter to a minor for communicating of seduc- purposes tion. Because the predicate Pataki’s assumption underlying holding with- us, out any relevance to the case before we decline to it.19 follow While it be true that Internet communications routinely along pass lines, interstate we do not believe this general can be proposition employed, Hatch, as suggested to insulate by from pedophiles prosecution simply by reason their of modem usage Such a technology.20 view what our is, Constitution in our requires opinion, completely inappropriate.

That is to say, of the Pataki validity vel non is not analysis controlling here because the intent to seduce element in section 288.2 is a distinction of the utmost significance. While a ban on the communication of certain simple materials may interfere with an adult’s legitimate a ban on rights, commu- nication of matter to a specified minor seduction purposes can only for affect the rights of the narrow class of very adults who intend to in engage sex with minors. We have found no case which gives such intentions or the communications employed them realizing under the dormant protection commerce clause.21 19Pataki and the dissent stress that use necessarily of the Internet implicates interstate commerce because one physical cannot know the location of person another on the Internet. While this be correct as an point, abstract it is geography, clear that insofar as it involved victims, Hatch, access to his intended priority was a as any it would be for adult other Here, whose intent is to seduce a child. Hatch knew his intended victims were not Californians, but also Diego fellow residents County. of San very Hatch in his earliest communications with Stacie and (University Center) Lisa mentioned “UTC” Town streets, various area while importuning often personal his intended victims for meetings. As later, point we out in another context what Hatch did some form of interstate accessible, commerce so much as a stalking localized simply local California victims. This is not and cannot be construed to be a constitutionally protected activity. Hatch, Defenders, 20Wenote here that Appellate amicus curiae suggest and the dissent appropriate resolution of the burden on parents commerce issue is for of minors to install systems on their computers preclude access minors to indecent materials. The Reno however, rejected court proposition, this impossible ineffective knowledge “[w]ithout every guardian that screening (Reno, in America is indecent supra, [for 521 U.S. materials].” p. view, at S.Ct. at Agreeing finding with this and also the statute before commerce, us to have little or impact no on interstate do not we further address this matter. Pataki, Communications, 21Like Cyberspace, statutes considered in Engler Inc. v. (E.D.Mich. 1999) F.Supp.2d (10th American Civil Liberties Union v. Johnson Cir. 1999) 194 F.3d persons were not limited to attempting to seduce minors. We think with

respect to Hatch’s argument, commerce clause noting Congress it is also worth has specifically prohibited interstate purpose engaging travel for the in sexual conduct with (18 2423(b)) minors U.S.C. interpreting § and that in prohibition this one court has reiterated “[Ojne what we believe is self-evident: right does not have a fundamental to travel for illicit (U.S. purposes.” (D.D.C. 1997) 25.) v. F.Supp. Brockdorff

Rather, observed, a commerce as another court in rejecting appellate statute22 similar clause to New York challenge penal provisions involving conceive of commerce any legitimate “we cannot time attempting to minors while the same sending images graphic Foley, them sexual activity.” (People lure into engaging 248, 256], added.) agree A.D.2d N.Y.S.2d italics We completely. 2. Extraterritorial Law California Enforcement of limits court also found that states’ jurisdictional Pataki “[t]ypically, however, virtually meaningless related to is a geography, are geography; (Pataki, construct on the Internet.” F.Supp. Hypoth harmful to minors esizing seeking an artist California work display to do so to an “could not his virtual studio Oregon buyer employ [Internet] (id. 174), the York at without under New law” risking prosecution p. its on court held that York has deliberately legislation Pataki “New imposed so, and, law other the Internet its into states whose by doing projected (Id. use citizens the Net.” at p.

The that enforcement of state criminal statutes extraterritorial assumption our Court recently is normative is incorrect. As has observed Supreme acts, to state statutes over criminal defining jurisdiction “[generally, respect 777, this to a is liable to laws of by section pursuant ‘person punishment State, therein,’ for a offense committed him where by except public addition, to is in court. In exclusively offense federal cognizable pursuant ‘under (a)(1), section subdivision be the laws persons may punished ‘commit, state’ in crime within this state.’ any this if in whole or they part, 778a, to same (a), Pursuant section subdivision in the person punishable committed if the manner as if the crime had been within this state entirely act’ this state ‘in or execution’ of does within execution ‘any part person or to a crime in within culminating intent commit its commission anywhere, (1999) Cal.4th without the state.” v. Morante (People 1071], omitted.)23 P.2d fns. Cal.Rptr.2d (1) to prohibits sending defined matter 22New York Penal Law section 235.22 harmful (2) engage activity. statute purpose inducing in sexual The

minors for minor court, the second the Pataki Penal Law section lacked invalidated element, (1999) Foley activity by (People the minor. v. attempting induce sexual 248, 256].) appear, As this distinction in the statutes A.D.2d N.Y.S.2d will critical. case, involving charge of had that “statutes must conspiracy, 23An earlier observed that, impose state light general ordinarily, does not principle construed (1953) territory. Cal.2d (People done its v. punishment for acts outside [Citations.]” Buffum Morante, People supra, pages court in 20 Cal.4th P.2d v. 422-429, general but did not principle conspiracy out an to the cases exception carved York statute its law to Pataki’s conclusion the New “projected Contrary (Pataki, 177), here there is no into other states” 969 F. Supp its on other reason to California would impose policies suppose attempt covering jurisdiction states in of the relevant California statutes light penal bar (§§ 778a),24 offenses which generally punishment over public is no reason at all to assume extraterritorial offenses. Thus there wholly commerce by filing California will to stifle interstate prosecutors attempt “de mini- for acts committed in other where charges jurisdictions, Morante, 436), acts 20 Cal.4th at such as those (People mis” Pataki, this state. Because there is no are committed within hypothesized differ from that which is reason to enforcement of 288.2 will suppose Pataki’s second fundamental as- historically statutorily permissible, of the statutes. is thus without relevance to our consideration sumption short, In must to seduce those intend given requirement charged and the additional commit at least an must requirement they attempt here, no rational section 288.2 analysis any supports proposition imposes commerce, burden on interstate such burdens as exist are not all, any of commerce at enforcement of the protected right upon all, statute is not or at burden interstate commerce. likely significantly, Thus, we must Hatch’s contention that on its face section 288.2 reject burdens interstate commerce. unduly

C. Section 288.2 and the First Amendment on the to the limited of facial that Relying challenges exception scope arises under the First Amendment State Md. v. J. H. Munson (Secretary of Co., 2852-2853]), 467 U.S. at S.Ct. at supra, pages pages Hatch asserts that without to the status of his own section regard speech, 288.2 will chill In contrast to the unduly otherwise protected speech. previ- however, to a decision ous in which Hatch cited us challenge, primarily court, of a federal relied Hatch is by district authority primarily upon Court, recent case from the United States whose constitutional Supreme modify involving such as those application principle otherwise to cases offenses 311, 503, (See (1955) P.2d charged People herein. also v. Burt 45 Cal.2d 313-314 [288 948].) A.L.R.2d 27, (a)(1), jurisdiction partially our courts over crimes subdivision affords 24“[S]ection state, 778a, (a), jurisdiction this affords our courts committed within the defendant formed the intent and committed over crimes committed outside state if Morante, ‘any (People that intent.” partial act’ within this state in whole or execution of 20 Cal.4th at courts, district are to those federal in marked contrast adjudications, on binding us.25

1. the CD A Reno and Reno, course 521 U.S. The case relied Hatch is of by upon A, cited CD it a criminal making to the earlier challenge provisions or a offensive offense make an indecent transmission display patently Reno, In did not that minor. the court noted but decide proposition Internet, character, of its be very constitutionally subject reason examine of these at all to for We each regulation indecency.26 congressional facets in turn.

a. Indecent Transmission earlier, 223(a), out Title 47 United States Code section set provides or foreign for a term for one interstate part transmitting pertinent prison comment, suggestion, telecommunications containing “any request, pro indecent, or know or other communication which is obscene image, posal, did not that the ... under 18 The statute years age.” ing recipient used, define that however “indecent”27 as therein nor require prohibited minors.” redeeming material without social “utterly importance U.S. S.Ct. (Ginsberg v. New York L.Ed.2d that matter which bemay for defining prohibited requirements set

were out in Miller v. 413 U.S. S.Ct. California “(a) ‘the contem 37 L.Ed.2d whether average applying person, 419]: whole, work, taken as a standards’ would find community porary [citations]; (b) the work interest whether depicts appeals prurient describes, sexual defined by in a offensive conduct way, specifically patently than the clause challenge, 25The First Amendment while more substantial commerce an unmistakable constitutional argument, violation: “As we have still must demonstrate above, challenge validity a to the a the pointed out to succeed in facial statute or ordinance 1 fatal provisions inevitably pose present must that “the a total and plaintiff establish act’s ’ the presumptions All favor applicable provisions.” conflict with constitutional [Citation.] clearly validity it it is statute. The court not declare invalid unless so. [Citation.]” Ana, (Tobe City supra, Santa p. at v. 9 Cal.4th states, by than the because regulated Congress, 26Hatch Internet must be rather asserts the Contrariwise, judges hearing the chal appellate of its interstate character. one of three regulate indecency in Reno lenge constitutionality “Congress may found that CDA (American (E.D.Pa. 1996) Liberties Union Reno F.Supp. on Civil Internet at all.” Reno, 2340], supra, p. at quoted p. at fn. S.Ct. where in 521 U.S. 30 [117 assertion.) declined Supreme Court noted but to consider defined, may properly dispute obscenity, properly 27Hatch if proposition does not Reno, supra, 2350].) (See, p. e.g., p. 521 U.S. at S.Ct. prohibited. [117 law; work, (c) whole, state applicable whether the taken as lacks artistic, serious literary, or scientific value.” political, The CDA statute defined material reference to prohibited one of by the three Miller The Reno court found prongs. the absence of the other Miller fatal, criteria in the CDA to be prohibition because particular omitting societal value requirement foreclosed essentially limitation appellate upon statute, the reach of the all leaving contested issues ones merely of local fact. (Reno, 521 U.S. at supra, pp. 2345-2346].) S.Ct. at pp. [117

Because breadth of this content-based restriction of “[t]he speech” (Reno, excessive supra, 2348]), S.Ct. at p. the Reno court p. [117 found the indecent transmission “threatened provision to torch a large segment Internet and thus community” the provision was unconstitu- (Reno, tional. supra, 521 U.S. at 2349-2350.) S.Ct. at p. pp. .

b. Patently Display Offensive The second section of the CDA considered the Reno court involved the patently offensive of various display matter to minors. Title 47 United States Code section 223(d) provides for a pertinent term for part two-year prison one using an interactive (a) service to send to a computer under person age 18 or in a display manner available to under persons “any comment, request, suggestion, that, or other proposal, image, communication context, describes, depicts in terms patently offensive as measured by standards, contemporary community sexual or excretory activities or or- gans.”28

Here again, the statute, Reno court was unable to sustain the noting “patently offensive” language was reference qualified only by “ ” “ ‘sexual or excretory activities or organs,’ and ‘measured by contempo ” rary community (Reno, standards.’ 521 U.S. at supra, fn. 35 p.

S.Ct. at 2344].) p. Such resulted vagueness in a situation where order to “[i]n minors deny access to potentially harmful the CDA speech, effectively amount suppresses large that adults have a speech constitutional right receive and to address to (Reno, each other.” 521 U.S. at S.Ct at p. sum,

In the Reno court found that “the CDA lacks the that the precision First Amendment when a statute requires the content of regulates as speech,” 28While Justice O'Connor and the parsed Chief Justice 47 United States Code section 223(d)(1)(A) (B) setting (Reno, out separate offenses 521 U.S. at 886 [117 (conc. O'Connor, S.Ct. at p. opn. J.)), & dis. majority of analysis 2352] did not follow this (Id. p. 2338].) of the statute. at p. fn. 25 S.Ct. at [117

200 2346].) (Reno, at at the CDA did. 521 U.S. S.Ct. supra, p. p. [117 “would confer Central to the court’s that CDA finding holding veto,’ any broad of in the form of a ‘heckler’s upon censorship, powers and inform the log of indecent on might who opponent speech simply that his child . . . would be present.” would-be discoursers 17-year-old discussion, 2349]; see (Reno, 521 U.S. at S.Ct. at supra, p. p. [117 id., 2346-2349].) at at 874-880 S.Ct. pp. pp. [117

2. to This Case Application Reno, Hatch that section urges on

Relying language Reno, however, Reno, like considered in is overbroad. the CDA sections matter to concerned a blanket of dissemination harmful prohibition minors, to a had the essential effect of all relevant discourse limiting which child’s level.29

There is no effect otherwise comparable any protected simply upon (1) reason of by prohibits sending communications section which (2) (3) to minors and the purpose seducing defined harmful matters them30 (1) on matter was

Reno rested its overbreadth two banned finding points: communication; (2) banned not defined so as exclude matter protected a variable standard. In this was defined refer to necessarily community case, however, is, defined, is as set forth in banned matter there properly test, section a statewide standard single community precludes results for local same varying interpretations inconsistent possible acts.31 29“Knowledge 100-person group . of a chat will be minor that . . one or more members message—would group a an indecent

—and therefore that it would be crime to send the among inevitably surely These limitations must (cid:127) communications (cid:127) (cid:127) adults. [H] burden adult . . . . . . significant curtail amount of communication on Internet. fi[] [The] posting all entities and individuals open-ended prohibitions nonprofit embrace [of CDA] (Reno, 2347], at messages. p. . . U.S. at S.Ct. fns. pp. indecent .” 876-877 [117 omitted.) overbreadth, CDA, Reno noted that legislation’s 30As example “[u]nder allowing family to obtain information on parent 17-year-old computer her use the she, lengthy judgment, prison appropriate Internet deems could face parental her (Reno, 2348].) absurdity suggested No such term.” 521 U.S. S.Ct. likely 288.2’s element. possible as or even in view section intent-to-seduce upheld statutory language in 311 was regard 31In we note that similar this Municipal Court Cal.Rptr. Bloom v. sufficiently 16 Cal.3d specific may protect there question no that the state minors 545 P.2d We also note 229]. Cal., (Sable Communications Inc. from which is not obscene adult standards. material 2829, 2836-2837, FCC U.S. S.Ct. L.Ed.2d of section

The central here is that a with violation charged point person (Reno, S.Ct. at p. 288.2 is not a “discourser” U.S. inno-, to other adults and 2349]) to communicate seeking merely indecency Rather, afoul of an statute. the statute overbroad cently running punishes discourse, sexual and activity, those who seek not but intercourse other seduction. who have identified intended victims for pursuit reason, case, For this is Reno to this but the case of only inapplicable 672], invalidating v. Barrows 177 Misc.2d 712 N.Y.S.2d People the earlier referenced York statute on overbreadth for the grounds New penal rationale, standards, second Reno in has no community variation application to this case.

Further, because the New York statute the intent-to-seduce element lacked statute, of our the heckler’s veto effect chat room chilling point, upon communications, noted in Reno and is irrelevant. Section by Barrows 288.2 its terms is to communications other than those made to an inapplicable not, identifiable minor fictitious or the purpose whether person, for of seduction, and thus is incapable infringement by general, nonspecific communications made without intent to seduce an identifiable minor any person.

It is this distinction in the basic the communication precisely type which is crucial. An overbroad statute forum32 communica- chills classical tions, such as those that occur in the chat rooms Hatch. by frequented contrast, Section addresses those communications in which an adult seeks to seduce a child. communications,

In the case of forum an necessarily overbroad statute chills adult communications the heckler’s veto protected by permitting minor. asserted or on behalf of a In the case dialogue species stalks an identified minor child him or her pedophile by sending direct Internet no rules a heckler’s messages, content-restricting permitting distinction, earlier, are veto involved.33The as we have noted is critical. The statutes and Pataki rights Reno involved cases where rejected city consisting of marketplace public place 32A “forum” was “the or of an ancient Roman open place square forming judicial public . . and the center of business.” . (Webster's 896.) Secondary meanings “a public 3d New Internat. Dict. include (Ibid.) meeting place open open or “a medium discussion.” discussion” in chat present precise example point: 33The case is a Hatch met “Lisa” and “Stacie” rooms, began private committed act until he to send “Lisa” and “Stacie” but no criminal messages. been a statute by adults to receive material could have diminished prohibit- exists certain children. No such under section danger communication to ing 288.2.34 far akin to the California statute is more activity prohibited by the Court has recently

conduct than communication. As California Supreme determined, of of an the “aggres- in the context review ordinance prohibiting “some decisions the Cali- sive solicitation” of recent of money,35 although that, under fornia and intermediate courts have concluded federal appellate Constitution, be the ordinances directed at solicitation should California test,” those as the strict decisions were viewed [having satisfy scrutiny to] (Los Angeles Alliance Los (2000) 22 Angeles City Survival erroneous. v. for of P.2d Cal.4th Cal.Rptr.2d

Instead, (Los Angeles the as activity” ordinance “directed at characterizing Alliance v. Los 357), and City Angeles, Survival 22 Cal.4th p. of the statutes on solicita- California noting long-standing precedents treating time, tion as the and manner or conduct the solicitor regulating place on to “a rather than the content of his or her the court hold that went speech, a so court should avoid constitutional would interpretation severely an constrain area in which authority the exercise legitimate government (Id. has regulation acknowledged such been as long appropriate.” Thus, the the court held that . . . that out solici- single public “regulations treatment, consti- tation of funds for distinct should not be viewed . . . (Ibid.)36 tutionally suspect.” concurring dissenting opinion (joined by the Chief 34Justice O'Connor's and in Reno discussed, Justice) noting to the explicit concepts made reference the here in her view involving provisions only to a an adult and applied CDA were “constitutional as conversation knowing minors-—e.g., speaker or more when adult sends an e-mail the addressee is one minor, by other a chat an adult and minor converse themselves or with minors in when [a] way [restricting may say the adult to the in no room. In this context . . . what minors ability prevented with adults. He is from restricts adult’s communicate other (because room there are adults speaking indecently to other adults in a chat no other conversation) e-mails adults. participating he remains free send indecent to other adult, only power and the universe The relevant universe contains one adult in that has the Reno, using speech pp. from . U.S. at S.Ct.

refrain indecent . . .” O'Connor, (conc. J.), added.) italics opn. & dis. 2355] question pursuant the Ninth 35Thematter was reviewed on certification of from Circuit two, Court, to California rule and the decision was a vote five to Rules dissenting. Werdegar concurring, Mosk and While the decision Justice Justices Kennard Constitution, reasoning applicable herein. interprets California rather than the federal its 486], People Cal.App.4th Supp. Cal.Rptr.2d Zimmerman 11 [19 36See also (c), discussing begging: Municipal “In Ulmer v. Court prohibiting 445], [(1976)] Appeal upheld Court of Cal.App.3d Cal.Rptr. California determining begging and United States In validity statute’s under California Constitutions. explained: ‘Regulation soliciting constitutionally activity, the court protected alms is not believe, The above to the circumstances fully we reasoning, applicable activity of this case. Section 288.2 is not directed at but at the speech, that under Reno adults to seduce a minor. While one attempting might argue are free to to an Internet audience indifferent address indecencies while audience, of children in that it is when the focus has presence shifted to the use of such communicated in the seduc indecency attempted direct, child, tion of we will apprehend accomplished by process one-to-one communication that statute’s are vio present prohibitions Thus, lated. the effect of section 288.2 is on who only chilling pedophiles intend that their statements will be acted children. Given the by upon made, intention with are such are not entitled to the which statements they (Los Alliance of the First Angeles extraordinary Amendment protection for Survival v. Los 378; City Angeles, 22 Cal.4th at supra, People v. p. of Zimmerman, 11.)37 15 at Cal.App.4th p. Supp. we note that the California

Finally, Court has not stressed Supreme area, the of the state’s interest in the but also noted that strength 288.2 “criminal sexual misconduct.”38 Because it is prohibits primarily write, bearing necessary of conduct no relationship speak, print to the freedom to or distribute opinion information abridge guarantees or does not the the First of Amendment. [Citations Begging soliciting necessarily and for alms do omitted.] involve the communication of therefore, opinion; information or approaching purpose protected by individuals for that is not the First Legislature’s enacting Amendment.’ The intent in the statute was to [Citation.] others, i.e., prohibit going accosting individuals from about on walking up the streets to and others, approaching for handouts. statute does not extend to one “who [Citation.] ‘[T]he ’ Thus, merely by wayside.” sits or proscribes stands the statute certain conduct [Citation.] alms, by begs message individual who solicits convey. rather than the he seeks to may mere fact that the proscribed accomplished by speech act be does not in and itself bring (Fns. omitted.) activity protection within the of the First Amendment.” argues properly subject standing 37Hatch also that even if he is to section he has to But, observed, rights subject assert the punishment. others not to such as we have the class subject of persons seeking by to section 288.2 is limited to those to seduce minors transmis materials, specified prohibited might sion of appear improperly and it does not the section applied to them. assault, beyond protection Legisla 38“Above afforded to all victims of sexual uniquely susceptible ‘outrage’ exploitation. ture has determined that children are to Hence, special subject They expand laws on the of sex children been enacted. have misconduct, they generally operate kinds of acts be deemed criminal which sexual force, fear, (See, regard e.g., without or consent. 261.5 intercourse with §§ [sexual 18], [enticing nonspouse prostitution], 266j [procuring under 266 female under into child 18 act], [incest], [abducting person prostitution], under 16 for lewd for 288.2 under 18 [distributing purpose], abuse of child materials to minor sexual 288.5 [continuous harmful for molester].)” by (People Cal.Rptr.2d resident v. Scott Cal.4th 341-342 [36 1040], added; Angie Superior 885 P.2d italics see also our decision in M. v. Court 197], Cal.App.4th Cal.Rptr.2d referring [“protecting to 288.2 minors from § exploitation”].) sexual does that is statute regulation, conduct rather than speech subjected the First Amendment.39 not infringe upon are legislative

In we light foregoing, compelled uphold “[Sjince enactment. it is manifest that the ordinance capable applica- manner tions do not offend the Constitution suggested Ana, , (Tobe City must Santa . . . the ordinance be upheld.” petitioners 1102.) 9 Cal.4th Hatch not set out credible scenario under which application has any California to those who are liable under persons punishment section 288.2 constitutional argu- infirm.40 We thus Hatch’s constitutionally deny law ments, authority exercise of legitimate government instead to “the deferring acknowledged has been long appro- in an area in which such regulation (Los City Angeles, supra, Alliance Survival v. Los Angeles priate.” Cal.4th IV Statutory Construction whether, statutory a matter of We must determine finally 288.2, construction, (a), on the section prohibition attempted subdivision Internet any minors with harmful matter means” includes “by seduction of does As will communications as Hatch maintains that it not41 appear, itself. answers question

A. Standard Review we adhere to the plain consideration is that must

The fundamental has often Our Court meaning statutory of the language question. Supreme must sure that expression choose to conduct as a means make employ who 39“[T]hose Theatre, (1991) (Barnes v. 501 they generally conduct select is not forbidden.” Glen Inc. Scalia, 560, (conc. J.) opn. L.Ed.2d 504] U.S. S.Ct. 115 [111 engage 40Citing states it means in unlawful a definition of “seduce” that “to induce intercourse,” rather conduct argues “pure speech” Hatch his acts involved than sexual objectives agree. do not focusing portion on the “induce” definition. We “[W]hen context,” (People injunction provision of the are read of the are considered and words 277, 596]; 1090, (1997) see Cal.Rptr.2d 1118 929 P.2d ex rel. Gallo v. Acuna 14 Cal.4th [60 149, 359], (1998) Cal.Rptr.2d and People Cal.App.4th 155-156 also v. Hamilton 530]), (1996) Cal.Rptr.2d it is People Cal.App.4th 496-497 [56 Antoine of course important. of the which is This is portion “unlawful sexual intercourse” definition conduct, speech. rejected, the uncon proposition which we have earlier 41Because this assertion assumes (b), unduly (a) prolong discus stitutionality we need not of section subdivisions point. of this sion reiterated “the rule that courts should give words their or statutory plain literal unless that meaning is inconsistent with the intent meaning legislative in the statute. v. Allen apparent (People 21 Cal.4th [Citation.]” 486].) P.2d Cal.Rptr.2d B. Application

Hatch that the means” argues should not read to phrase “by any Internet, include the but we are unable to whatsoever perceive any ambiguity means,” in the statutory means” means language; “any “any thus neces does include of the sarily usage Internet to affect the acts.42The prohibited of the more subsequent passage (b), specific communications, which is to Internet explicitly does applicable nothing alter the fact of the necessarily plain meaning statute. prior

“ ‘It is fundamental that legislation should be construed so as to harmonize its various elements without violence to its doing language spirit.’ v. Garcia (People 21 Cal.4th [Citation.]” Cal.Rptr.2d P.2d Absent and in order to harmo any ambiguity, statutes, nize the two statute must be read to also include prior Internet communications.

Thus, conduct, both statutes to Hatch’s apply we his reject contrary arguments.

Disposition The for writ of mandate petition is denied.

Haller, J., concurred. Although I McDONALD, J., and Concurring concur the Dissenting. result of the the trial court majority opinion that denied Hatch’s correctly motion to set aside counts 1 and 20 I do not concur that through Penal 288.2, Code section (b)1 subdivision constitutional under the commerce is believe, clause and the First Amendment. I as have other courts that have single 42The supporting argument legislative record matter history, Hatch’s is in the as one 288.2, report (b) committee enacting stated the bill sections expand subdivision “would the (Sen. (1997-1998 Sess.) Judiciary, Analysis law.” Com. on Reg. of Assem. Bill No. 181 16, 1997.) not, however, amended June Such a plain meaning statement overcome the of words, carry contrary the import, particularly reports as other the committee stated (Sen. measure “a existing clarification of rather an it.” law than addition to Com. on Pub. Safety, Analysis (1997-1998 Sess.) 1997.) Reg. of Assem. Bill No. Apr. as amended statutory 1All references are to the Penal specified. Code unless otherwise statutes, challenges that facial substantively considered indistinguishable Amendment, ana- clause the First when under commerce properly 288.2, unconsti- (b) the conclusion that section subdivision is compel lyzed, 288.2, (a) tutional. I do not concur that section subdivision prohibits also I believe that under tradi- distribution of harmful matter over Internet. 288.2, does (a) statutory tional construction section subdivision principles communications. The construction statutory not Internet apply principle relied on to reach a conclusion—“the by majority question contrary ante, IV.) is to me. one heretofore unknown (maj. answers itself’ opn., pt. 288.2, is (b) Because section subdivision unconstitutional section the trial to dismiss (a) subdivision I would direct court inapplicable, counts 2 19. through of the goal brevity admirable majority, expressing pursuit it will court announces numerous disregard opinions

appellate opinions, of those from other because of “limited value” jurisdictions precedential ante, fn. goal brevity (Maj. Although opinions. opn., laudable, I those other courts’ similarly analy- cannot discount value of Those have in the same commerce ses. courts view my correctly applied that clause and Amendment should our constitutional guide First principles crucial or here. states section 288.2 has the analysis recognize I majority not critical characteristic of intent to seduce element distinguishing However, contained in statutes considered other courts. majority some difference the statutory does how crucial critical explain the facial clause First Amendment defects vitiates commerce language other in the of cases from Accordingly, although my statute. discussion do this I not share the jurisdictions lengthens majority opinion’s opinion, Frost, roads cases are Robert two Paraphrasing view those irrelevant. less and that has made and the took the one traveled diverged majority by, all the difference.

Because constitutional and brevity majority’s statutory of the . of the I am to conduct a de novo analysis interpretation analysis, compelled and the under the commerce clause validity and to in detail my scope First Amendment explain interpretation 288.2, to have (a). I do not understand majority section subdivision to “A facial conducted a facial Hatch’s facial analysis challenge. response a to of statute . . . considers challenge validity the constitutional itself, circumstances text of measure not its to application particular (Tobe Ana Cal.4th of an individual.” v. Santa City commerce P.2d The Hatch’s majority rejects Cal.Rptr.2d statute, conduct in as Hatch’s clause facial because challenge applied minors, unduly does not California harmful matter California sending burden interstate commerce. protected An is not a facial as-applied analysis analysis. Hatch’s First Amendment facial majority rejects challenge statute, because the as to Hatch’s conduct in California applied sending intent, harmful matter to California minors with does not requisite on infringe protected Again, is not a facial speech. analysis as-applied analysis. below, 288.2, For the reasons I discuss I section (b)’s believe subdivision

“ ‘ “provisions a inevitably pose total and fatal conflict present with [two] ’ ” Ana, applicable (Tobe constitutional prohibitions” City Santa supra, 9 1084): Cal.4th at the dormant commerce clause and the First aspect Amendment. I would sustain Accordingly, Hatch’s facial to the challenges' 288.2, Further, constitutionality (b). section subdivision I would hold that construction, a 288.2, as matter of section statutory (a) subdivision does not distribution prohibit of harmful matter to minors over the Internet.

I The Constitutional Issues

Hatch argues section (b) is invalid under facially article I, section 8 of the United States (the clause), Constitution commerce and (a) subdivisions are invalid under facially the First and Fifth Amendments to the United States Constitution.

Section 288.2 that: provides part

“(a) who, Every minor, with person that a is a knowledge or who person fails to exercise minor, reasonable care in the true ascertaining of a distributes, sends, knowingly sent, exhibits, causes to be or offers dis- tribute or matter, exhibit by any means . . . harmful any as defined in Section to a to, minor with the intent of or arousing, appealing gratifying lust or or minor, sexual passions desires of that a person minor, with the intent or for the purpose seducing is of a guilty offense . . . public . . . . [f] [f] who,

“(b) minor, Every that a person knowledge person know- distributes, sends, sent, exhibits, ingly causes or offers to distribute or mail, service, exhibit electronic the Internet. . . or a commercial online matter, harmful any defined Section to a minor with the intent of to, or arousing, the lust or appealing gratifying or sexual desires of passions minor, intent, or of a person with the or for the purpose seducing minor, of a guilty offense . . . .” public 208 matter, “(a) matter’ means that: ‘Harmful

Section 313 provides part whole, to the average contemporary taken a person, applying which, interest, standards, and is matter statewide prurient appeals whole, sexual taken as or describes in a offensive patently way a depicts which, whole, artistic, as a lacks serious literary, political, conduct and taken for minors.” or scientific value 288.2, (b) the Commerce Clause

A. Section Subdivision (b) clause. I first under the commerce evaluate subdivision and then examine other I of the begin applicable principles overview state of those sister statutes. analogous courts’ principles application 1. General Principles it is an of grant power

The commerce clause has two affirmative aspects: commerce, and it restricts the to the federal interstate government regulate Merchant Shipping interstate commerce. regulate (Pacific states power 503, 582, P.2d (1995) v. 12 Cal.4th 907 Cal.Rptr.2d Assn. Voss [48 430].) to as the dormant commonly The state restriction referred aspect Tax Cal. (see PLC v. Franchise Barclays Commerce Clause Bank Bd. of 298, 2268, 2276, 310, 244]). L.Ed.2d (1994) 512 U.S. fn. 9 S.Ct. 129 [114 are on interstate commerce discriminatory State laws that restrictions impose se invalid.2 State laws that national virtually regulate activity requiring per inconsistent burdens on interstate scheme regulatory impose multiple (See, be Dynamics Corp. commerce also invalid.3 CTS v. may e.g., Corp. 1649-1650, 69, 1637, S.Ct. 95 L.Ed.2d (1987) America U.S. 88-89 [107 761, 67]; (1945) 325 U.S. S.Ct. Southern Co. v. Arizona Pacific 1915]; (1959) Bibb v. Lines U.S. Navajo Freight 89 L.Ed. 962, 520, 967-968, 1003].) laws regulate S.Ct. L.Ed.2d State 529 [79 invalid; be state not may export activities outside the state’s borders may other and therefore enact laws may its domestic into states policies borders. v. MITE (Edgar Corp. activities outside its regulating occurring clause the term means differential treatment 2In the commerce context “discrimination” the in-state interests and burdens in-state out-of-state economic interests that benefits Quality (Oregon Systems, Department Environmental Waste Inc. v. out-of-state interests. 93, 1345, 1349-1350, 13].) Ore. 128 L.Ed.2d discrimina 511 U.S. S.Ct. forms; first, facially against may discriminate interstate may any tion take of three statute commerce; second, discriminatory purpose; foreign may facially be neutral but have a it (SDDS, third, Inc. State facially discriminatory effect. it neutral but have of S.D. discriminatory (8th 1995) is not a 47 F.3d Section Cir. statute. legislative regardless intent aspect applied of the commerce clause 3This (Healy v. The Beer Institute fn. U.S. S.Ct. state statute. 105 L.Ed.2d 209 2629, 2640-2641, 624, 269]; 73 L.Ed.2d (1982) 457 U.S. 641-643 S.Ct. [102 499-500, 497, (1935) 521 S.Ct. Baldwin v. G. A. F. 294 U.S. Seelig [55 under A.L.R. a state that is invalid Finally, 79 L.Ed. 101 law in Pike be invalid under the test articulated balancing tests foregoing Church, 174], 137 S.Ct. 25 L.Ed.2d v. Bruce Inc. 397 U.S. 1988) (S.D. Ohio Dept. F.Supp. v. Federated Stores (Campeau Corp. if first statute under Pike test statute evaluates [court incon- tests that statutes and statutes passes prohibit discriminatory imposing Pike, on burdens].) sistent Under the court balances the burden placed interstate commerce the state law the local benefit derived from against (Pike, 847]) at and the state state law at S.Ct. law invalid if the burden on interstate commerce is excessive clearly compared (Ibid.) to the local benefit. putative

2. The Pataki Decision (S.D.N.Y. 1997)

In American Libraries Ass'n v. Pataki F.Supp. 288.2, (Pataki), the court evaluated New York statute similar to section that criminalized harmful matter knowingly communicating to minors over the Internet.4 The Pataki court evaluated nature of Internet, the Internet is a decentralized and borderless noting global, com munications medium in which communicate in a participants variety (such e-mail), one-to-one as mes ways, including messaging one-to-many (such as “listserv” and “mail distributed data saging message exploders”), (such bases as “Usenet and remote information retrieval newsgroups”) (such sites). (969 Web 164-165 & The Internet F.Supp. pp. to communicate permits participants anonymously by using pseudonyms without either the or location of the disclosing geographic participants. (Ibid.)

Pataki first that because the New York law a mode of regulated concluded commerce, to communications used as a conduit for interstate it was subject Commerce Clause It the state’s that because the scrutiny. rejected argument commerce, the commerce clause law was directed conduct was not It reasoned that the dormant commerce clause has been inapplicable. 235.21, 4New York Penal subdivision 3 made it a crime for an individual: Law which, “Knowing part, depicts the character and content of the communication whole or abuse, nudity, actual or simulated conduct or sado-masochistic and which is harmful sexual minors, intentionally any system allowing input, computer communication [to] use[] transfer, computer output, computer computer programs examination or data or from one another, engage initiate who is a minor.” The New person in such communication with (compare York statute defined matter similar to the California definition harmful terms Code, 313) affirmative provided N.Y. Pen. Law subd. 6 with Pen. various § § counterparts (Compare that have under California law. N.Y. Pen. Law 235.15 with § defenses Code, (c)-(e).) Pen. subds. § motive activities undertaken without a regulated profit laws applied (see Edwards v. U.S. fn. S.Ct. California into Califor indigents 86 L.Ed. of prohibiting transportation 119] [law commerce or dormant clause and it is “immaterial whether nia invalid under of character”]) in and that the concept not the is commercial transportation (See Camps broad the courts. meaning by commerce given Newfound/ Owatonna, Inc. v. Town Harrison (1997) 564 520 U.S. S.Ct. of Moreover, the has become an 137 L.Ed.2d because Internet important commercial it are to com conduit for regulations affecting subject activity, (Pataki, 169-173.) 969 clause at supra, merce scrutiny.5 F.Supp. pp.

Pataki the under clause then New York statute commerce evaluated First, it the statute to concluded se invalid. purported principles per Second, borders. the nature occurring conduct outside New York’s regulate the Internet uniform and Internet users would regulation of requires its burdens each state to threatened inconsistent were by multiple impose that, under the The Pataki court also concluded regulations. Internet separate test, the Pike commerce outweighed statute’s burdens on interstate z/the local benefits statute.6 putative of state that have the effect regulations

The commerce clause’s ban on v. MITE into states (Edgar state’s domestic other exporting policies 2629, 2640-2641]; Healy Corp., supra, U.S. 642-643 S.Ct. Institute, 2491, 2499]) con Beer The S.Ct. supra, U.S. the Pataki court that the New York statute was se invalid. per vinced rests Edgar/Healy Pataki court that: analysis reasoned “The extraterritoriality it subordinates on the that Commerce Clause has two premise aspects: only intrastate rejected 5The Pataki also the state’s claim that the law affected court legislative history It showed it was language activities. reasoned that statute and its conduct, any designed apply to and intended to to not limited intrastate and instead was communication, interstate, capacity over New York had the whether intrastate or (Pataki, 167.) The supra, pp. at jurisdiction. F.Supp. exercise criminal fully intrastate majority applies here that section asserts However, legislative history that nothing there in the or its communications. statute jurisdiction. supports application capacity from the full to exercise criminal limitation discussion, (See 214-215.) post, pp. at although from harmful principal protecting 6The basis for this conclusion was minors interest, state the local from the statute de minimis compelling matter was benefits were States; (1) originating effect outside the United because law had no on communications subject readily not persons the law had little effect on outside of New York who were York; (3) persons engaged in existing permitted prosecution other laws prosecution New molestation; only single testimony established that pornography child or child under other prosecutable been under would have been person prosecuted had the law who burdens, in the existing significant minimal the court both Against laws. this benefit found chilling and in the impinging sovereignty jurisdictions, of sister form form of on 177-181.) (Pataki, pp. at protected speech. F.Supp. commerce each state’s interstate to the federal over authority power (a limitation), vertical and it embodies a regulation principal comity mandates that one state its in a manner that not expand regulatory powers (a encroaches of its horizontal sovereignty fellow states limita- upon tion).” (969 175-176.) F.Supp. pp.

Pataki concluded nature of the it that the Internet “makes impossible restrict effects of the to conduct within occurring New York” [law] (Pataki, 177); an Internet user not intend his F.Supp. to be messages accessible New York but cannot New Yorkers prevent from his directed to accessing messages prevent messages recipients “Thus, other states from through New York conduct that passing computers. be in the in which the can legal state user acts the user subject in New York thus user’s prosecution subordinate the home state’s of freedom over a more policy—perhaps favoring expression protective stance—to New local concerns.” held (Ibid.) York’s Pataki that New York’s of the Internet had the effect regulation New York’s laws into projecting other states and was invalid se under the per Edgar/Healy extraterritoriality of the analysis (Ibid.) commerce clause. further

Pataki concluded that the nature of the Internet requires national uniform regulation because Internet users would be threatened by multiple inconsistent state burdens if each Internet implemented its own regulations. Pataki cited several cases in which laws to regulate only intrast- purporting ate matters of local were struck concern down under the commerce clause “ which, because affected a ‘of the they form national commerce because of the need of national uniformity, demand that their if regulation, be any, Arizona, a by prescribed single authority.’ [(Quoting Southern Co. v. Pacific 325 1519].)]” (Pataki, U.S. at S.Ct. supra, 767 at p. supra, p. Internet, at 181-182.) F.Supp. Pataki reasoned that the like the rail pp. in regulations at issue Southern Co. and

highway Bibb v. Navajo Pacific Lines, Freight U.S. would be burdened if users supra, severely were laws, in a “lost welter of inconsistent different by states with imposed different and concluded Internet a cohesive priorities,” national “requires of regulation scheme so that users are able to determine their reasonably (Pataki, obligations.” 182.) at The inconsis- potential multiple tent burdens was increased fact that the New York law banned harmful matter v. (1973) the Miller 413 U.S. 15 S.Ct. using California standard, (Miller) L.Ed.2d which incorporates patently 419] offensive to in the test. standards Pataki noted that prevailing community there because is no standard in the United prevailing single community States, “even were all 50 states enact laws that were verbatim copies Act, New York Internet users would still be to discordant subject it was not deemed harmful in the state from which matter

responsibilities”; (Pataki, it harmful in states in which was received. sent could deemed 182-183.) Because an Internet user cannot know geographic pp. he or or foreclose access to the recipient message, location of message standard, (2) forgo or stringent she would have with most comply state, risk in the user’s prosecution matter communicating protected unknown this Based on based on the fortuity recipient. geographic of the Internet Pataki concluded: “Further analysis requires development of their Internet use with some degree users be able results predict can frustrate regulation assurance. and uncoordinated state Haphazard The need for this uniformity unique growth cyberspace. sphere a violation of the commerce that New York’s law be stricken as requires (Id. Commerce Clause.”

The Com Cyberspace, Pataki commerce clause was followed analysis munications, (E.D.Mich. 1999) Inc. 737 (Engler) v. Engler F.Supp.2d 1999) (10th F.3d and American Civil Liberties Union Johnson Cir. clause a (Johnson). held unconstitutional under the commerce Engler communications to minors Michigan statute that criminalized Internet (Mich. Laws matter harmful to minors 722.671 sexually explicit Comp. § 25.254]). Ann. court noted the extraterritorial Engler Stat. [Mich. § clause. effect of the statute and found it a se violation the commerce per at also the The court found statute unconstitutional (Engler, supra, the (Ibid.) test. held unconstitutional under under the Pike Johnson balancing clause New Mexico statute that criminalized dissemination commerce a 30-37-3.2, (N.M. to a minor. Stat. Ann. harmful matter § computer A.) court that the statute attempt

subd. The Johnson noted “represents borders, Mexico’s and is interstate conduct outside New regulate occurring at (Johnson, the se violation of Commerce Clause.” accordingly per omitted.) The court found the statute unconstitu fn. Johnson also uniform test. the test and the need for balancing regulation tional under Pike 1161-1162; at v. Barrows 177 Misc.2d 712 (Id. see also People pp. (Barrows II); (1999) 257 People Foley but see N.Y.S.2d 685] (Foley).) A.D.2d 243 N.Y.S.2d 256]

3. Analysis 288.2, (b) is the act of

The actus reus of a section subdivision violation harmful matter over the Internet to a known minor regardless distributing the in California at the time of transmission. whether the sender is physically Moreover, the sender must have intents and although specific purposes minor, he he need not know the minor intends know the recipient in states the statute conduct other regulates seduce is in California. Because commerce, constitutionality the use of a conduit of interstate its burdens (Pataki, the commerce must be evaluated under clause. 969 F.Supp. 169-174.) the Internet is a conduit does not majority opinion dispute pp. 288.2, (b) must survive of interstate commerce or that section subdivision however, asserts the statute does Commerce Clause scrutiny; majority not seek to outside California. Neither text nor regulate activity face, On its of the statute legislative history supports majority’s position. violation occurs once the harmful matter is transmitted and statutory transmitters or contains no limitation to California-domiciled recipients. Moreover, the shows that one of evils legislative history prompting in (b) enactment of section subdivision was that sexual predators other states were the Internet to lure children to cross state lines to using (See in sexual liaisons. Sen. Com. on Pub. engage Safety, Analysis (1997-1998 Sess.) Assem. Bill No. 181 as amended Reg. Apr. par. Thus, of Mar. <http://www.leginfo.ca.gov> majori- [as claim that the statute intrastate conduct is not ty’s regulates only persuasive. commerce Section suffers from the same clause First, infirmities New York statute considered in Pataki. the statute has the effect of California’s domestic into other practical exporting policies states, which is under v. MITE 457 U.S. Edgar Corp., supra, impermissible Institute, and Healy v. The Beer U.S. 324. Conduct supra, 491 lawful Internet, a sister state because of the nature of the a sender to may, subject criminal in California even if the sender did not intend his liability message California; to be read he can neither Californians from accessing prevent his nor directed to in other states from messages prevent messages recipients California through For states 19- passing computers. example, many male have sexual relations with a female year-old 16-year-old without law, and there to be no to his use of violating any would appear impediment e-mail to send salacious matter to seduce even he knew her intending though However, to be 16 old.7 if unbeknownst to the sender a female to years (2) whom he sent the a a matter was California casual domiciliary 19-year-old 16-year-old hypothetical apparently 7The e-mail would violate no Alabama Moreover, (See 13A-6-110.) survey law. Ala. Code a recent the laws in comprehensive of § varying diversity throughout country regarding age states the of laws the the of demonstrates Children, Adults, (See In Phipps, consent. Sex and the Criminal Law: Search Reason of 1.) Legis.J. liability agel4 Hall There no criminal for conduct children Seton sexual (Id. at age p. or older in Hawaii or for sexual conduct with children 15 or older in Colorado. 243.) Many distinguish and contact” “penetration” fn. states between offenses “sexual offenses, years penetration only For the 12 states set 18 old as the offenses. so-called offenses, only age activity. the contact seven threshold for consensual For so-called sexual states, activity. remaining the years states set 18 old as the threshold for consensual In (four years an adult and child who is 17 old permitted consensual sexual contact is between (nine states) states), (22 states), (four states) years years years or 14 old or 16 old or 15 old (four states). (Id. 60-62.) appears it that if Hatch years pp. example, or even 13 old at For the offend used a retrieval method to visitor to California who remote open conduct, the lawful transmission at a California sender’s cybercafe, ing state, the of his him to criminal subjects under domestic home policies observation, modified to fit in California. I with Patak's agree prosecution 288.2, context, (b), “conduct the California that under section subdivision acts the user to in the state in which the user can legal subject the home state’s thus subordinate user’s prosecution [California] freedom of over a more favoring protective policy—perhaps expression at (Pataki, supra, F.Supp. stance—to local concerns.” [California’s] (b) makes subdivision it This extraterritoriality aspect com Edgar/Healy extraterritoriality se invalid under the analysis per merce clause. that section invalid

The concludes majority in this case all under the because Edgar/Healy extraterritoriality analysis Califor- was between California domiciliaries occurred within conduct nia; to Hatch does not project therefore the statute application states. does not cite California’s laws into other Although majority II this court a Commerce Clause rejected Barrows on Barrows II point, in sexual luring engage activity to conviction a minor challenge by over Internet the defendant’s harmful matter because disseminating II Although was within the State of New York. Barrows perempto- conduct that the became extraterritoriality stated rily preemption problems II, (Barrows conduct New York 677 N.Y.S.2d mooted within pp. First, this 685-686), I am statement should be followed. not persuaded Amendment on First grounds because the same conviction was overturned 686), II of the commerce clause was dicta. Barrows discussion {id. Second, Barrows no effort to evaluate difference between a II made to a statute. challenge challenge facial and an as-applied N.Y.S.2d in which the Foley, here relies on majority commerce clause to convictions for minor challenge luring court rejected matter over the in sexual harmful activity by disseminating to engage occurred in the State Internet of whether conduct New regardless a commerce clause the same New York Foley challenge York. considered However, that was II. challenged Foley Penal Law section 235.22 Barrows balancing Pike dor- considered the discrimination and aspects Because not consider the Foley extraterritoriality mant commerce clause. did involving penetration, he would have engaged in consensual contact with “Lisa” not sexual (Tenn. (N.H. 632-A:3) Tennessee Hampshire crime in Stat. Ann. or § committed no New Rev. 39-13-504), and Lisa forms of contact between Hatch would Ann. and some sexual § Code 18.2-63.) (Va. Virginia. Ann. & be criminal in Code 18.2-67.3 §§ not inconsistent burden of the dormant Commerce Clause I multiple aspects do find (See not its or result analysis persuasive. Engler, supra, F.Supp.2d Johnson, 751; 1160-1162.) F.3d at pp. supra, 194 pp.

In view the makes the my majority same Commerce Clause error analysis as does Barrows II. II did not Barrows between a facial and an distinguish to the statute. as-applied challenge Barrows II was unaware of the apparently distinction and it. The here ignored the distinction and majority recognizes it. ignores considers Inexplicably, majority Hatch’s facial to challenge subdivision to the facts of by referring Hatch’s case. However, a facial to the challenge constitutional of a validity statute consid- statute, ers the text of the only its to the circum- application particular Ana, stances of a (Tobe defendant. particular v. Santa City Cal.4th supra, 9 Thus, in Morgan 328 U.S. Virginia S.Ct. L.Ed. 574], 165 A.L.R. a local on a bus was passenger convicted of state statutes violating to penal relating segregation of passen- gers carriers public to color. according the statute Although was suscep- tible to an that it interpretation to applied only intrastate passengers, court nevertheless concluded the statute was invalid under the commerce clause because on its face it was to both susceptible intrastate application (Id. and interstate passengers. pp. 1056-1058].) S.Ct. at pp. Thus, a statute violate the may facially Commerce Clause even though particular of the statute application might not. The majority has made simply an as-applied analysis of the commerce clause and thereby missed the point Pataki, set forth in extraterritoriality Engler Johnson.

Furthermore, under section (b), users of the Internet are threatened by inconsistent multiple burdens as each state implements sepa- statutes; rate Internet the nature of the Internet a national uniform requires regulation.8 Absent uniform national regulation, users will be “lost in potential Alabama, 8The multiple already emerged. inconsistent laws has In it is a crime only use Internet to seduce years when the user is recipient or older and the is under (See Florida, age 13A-6-110.) 16. Ala. Code In § the crime is committed if child (Fla. resides or is perpetrator 847.0135.) believed to reside in Florida. Stat. Ann. In § states, furnishing two indecent matter person over the Internet to a who the sender knew or 16-12-100.1; (Ga. should have known was a minor violates the statute Code Ann. Stat. § N.M. 30-37-3.2, A), although Ann. subd. these statutes appear vulnerable under Reno v. American § Civil Liberties Union (Reno). 521 U.S. 844 S.Ct. L.Ed.2d In 874] Indiana, it is a crime use the Internet to solicit age sexual conduct with a child under the (Ind. 35-42-4-6.) 14. Virginia, Code Ann. In § the law bans use of the promote, Internet produce “sexually or market explicit involving visual material” children under 18 or to entice perform subject (Va. such children to sexually explicit or be visual material. 18.2-374.3.) Code Ann. § laws, with different inconsistent different states imposed by welter of 182) be at and users will unable to (Pataki, supra, F.Supp. priorities” 288.2, determine their For section subdivi- obligations. example, reasonably the the communications reference to sion defines of outlawed type Miller, 413 U.S. 15 and “contem- supra, standards articulated in incorporates determine whether the matter statewide standards” appeals porary However, 313). (§ and there is no interests is offensive prurient patently States, the United which therefore standard in single community prevailing matter not deemed Internet users to “discordant subjects responsibilities”: it could be deemed harmful under harmful in the state from which was sent 182-183.) Because' an Internet (Pataki, California standards. at supra, pp. of sender cannot know the location the or recipient prevent geographic (1) have the access to the the sender would with message, comply standards, matter in forgo communicating California’s or protected California, risk based on the user’s state but in or prosecution The that his be California. fortuity might recipient potential geographic is differences obligations age-of-consent for inconsistent exacerbated by states conclude that a of among the states. Different person capable an than that in California should be consent at age younger designated harmful entitled that would deemed under California’s to view matter Johnson, 1162.) F.3d (See at concept minority. supra, first, two grounds: seeks to Pataki on statute distinguish majority second, the does not an requirement, Pataki contain intent-to-seduce limited statute is to Internet transmissions sent received California the first distinction as California. describes Although majority repeatedly crucial, it effect it it does not is crucial or the has on why explain 288.2, burden effect of section sub- extraterritorial inconsistent multiple distinction, (b). division The second an narrow unsupported places (b), is a reflection of on subdivision interpretation scope an rather a facial inconsistent than analysis as-applied (See on Safety, Analysis the statute. Sen. Com. Pub. legislative history 2.) narrow the Assem. Bill No. supra, par. Attempts scope Johnson, (See have 194 F.3d similar statutes been rejected.

1161; Pataki, & F.Supp. pp. from harmful matter is of minors

Although protection important interest, the nature the conclusion that Cali- state Internet compels (b) to criminalize in section statutory fornia’s attempt under the of Internet transmissions unconstitutional category certain commerce clause because of its extraterritorial effect and the need for uniform national regulation.9 288.2, (b)

B. Section Subdivision and the First Amendment 288.2, Hatch asserts section (a) (b), subdivisions and to the extent they communications, to Internet facially are apply invalid for vagueness overbreadth under the Amendment First to the United States Constitution. 288.2,

1. General Principles Applicable (b) Section Subdivision 288.2, Section (b) subdivision is a content-based proscription against who, it speech; criminal on a imposes with the liability person requisite intent and sends an Internet purpose, communication the content of which is harmful (Cf. to minors. Berry (1995) v. Santa City Barbara 40 Cal.App.4th 1075, 1084 Cal.Rptr.2d harmful matter under regulates [47 661] [statute ais content-based To determine regulation].) § 313 whether a regulation content-based, the ... “principle is whether the has inquiry government a regulation of because adopted with the speech disagreement it message conveys. The government’s is the consider purpose controlling [Citation.] ation. A regulation that serves unrelated to the content purposes of expres neutral, sion is deemed even if it has an incidental effect on some speakers but messages (Ward not others. (1989) v. Rock Against Racism [Citation.]” 2746, 2754, 491 U.S. S.Ct. 661].) 105 L.Ed.2d The [109 People 288.2, section argue (b) subdivision is not directed at the content of the but, minors, because it speech seeks to prevent seduction of is instead directed 288.2, effects of the secondary speech, section subjects (b) Theatres, subdivision to a (See lesser level of Renton v. scrutiny. Playtime (1986) 925, 928-930, Inc. 475 U.S. 29].) S.Ct. 89 L.Ed.2d However, a law that proscribes certain reactions from the speech prevent listener is a law the direct targeting rather than its impact speech (Boos effects secondary (1988) v. Barry 485 U.S. S.Ct. 319-321 [108 1157, 1162-1164, 333]) 99 L.Ed.2d and is a content-based regulation subject to the (See level of highest (9th 1996) scrutiny. v. Cir. Lungren Crawford 380, 384-385; F.3d Inc. Sebago, City Alameda 211 Cal.App.3d 288.2, (b) Section Cal.Rptr. subdivision is designed the listener from prevent seduced becoming by is therefore speech, content-based proscription. majority characterizes activity prohibited 288.2, (a) (b) subdivisions as conduct rather than speech, result, conclusion no cited As a it is not supported by authority. difficult for unnecessary (b) 9It is under the Pike burden-benefit to evaluate section subdivision test. is not subject to conclude that section majority facial under the First Amendment. challenge (R. Paul invalid A. V. v. St.

A content-based regulation presumptively 305]; L.Ed.2d City 505 U.S. S.Ct. Communications, 32, (1994) 40 v. Inc. 31 Cal.App.4th Fresno Press [36 must is to strict the 456]), scrutiny review: subject people Cal.Rptr.2d to interest serve a state necessary compelling demonstrate is regulation City that interest. Inc. v. (Sebago, and is tailored achieve narrowly of Alameda, 1382.) at 211 supra, Cal.App.3d the Internet communica is a consideration: analysis by key My guided 288.2, (b) Amend made under subdivision First enjoy tions criminal section Barbara, City ment if transmitted to adults.10 v. San (Berry protection of 1083-1085.) 40 at Because supra, pp. majority applies Cal.App.4th facial it does not address rather than a analysis, as-applied analysis Amendment raised Hatch. As court by explained fundamental First issue Cal., 115, U.S. 126 (1989) Inc. v. FCC 492 in Sable Communications [109 of indecent but 106 L.Ed.2d “Sexual is S.Ct. expression 93]: The Government not obscene is the First Amendment .... by protected in order to . . . the content of constitutionally speech may regulate protected means to if it chooses the least restrictive interest promote compelling there interest. We have that is a recognized compelling further articulated minors. physical psychological well-being interest protecting minors from the influence of literature This interest extends to shielding serve adult standards. The Government may is obscene by [Citations.] interest, ‘it must do but to withstand constitutional scrutiny, this legitimate those interests without drawn to serve by regulations designed so narrowly 288.2, (b) prohibited “harmful matter” as matter defined 10Section subdivision defines necessarily deemed minors under 313 is not obscene- by section 313. Matter harmful to Barbara, (Berry City Cal.App.4th pp. by viewed adults. v. Santa when 288.2, (b) 1081-1083.) facially argue subdivision People that if we conclude section by the banned content is defined reference overbroad under the First Amendment because standard, by construing uphold constitutionality to minors” we can its section 313’s “harmful enjoys obscene no apply only the transmitter sends obscene matter because matter it to when much of the overbreadth protection. Although First this construction eliminates Amendment cognizant possible and I we construe a statute make it constitutional problem, am when 2558, 440, (Public (1989) Department S.Ct. v. Justice 491 U.S. Citizen 2572-2573, 377]), wholly guise of interpretation not under the 105 L.Ed.2d court (City Carmel-by-the-Sea Young constitutionality. its preserve rewrite a law to 225, 1313].) Matter minors indecent to Cal.Rptr. 466 P.2d A.L.R.3d Cal.3d in section persons in section and matter obscene to all defined but not adults is defined (b) argument requires the excise from section adopt People’s 311. To legislative place, 313 and of section 311 in its which is the reference to section insertion ' judicial rather than function. unnecessarily with First Amendment interfering freedoms. [Citations.]’ [Ci- It is not to show that the enough Government’s tation.] ends are compelling; the means must be tailored to achieve carefully those ends.”

Under Sable the California has the Legislature constitutional power enact minors, laws designed to harmful matter from keep even though same matter judged adult standards Amendment is entitled to First (Kash protection. Inc. v. Enterprises, City Los Angeles 19 Cal.3d 1302]; Alameda, 562 P.2d Cal.Rptr. Sebago, Inc. v. City of However, Cal.App.3d a valid law must be narrowly drawn to serve that interest without unnecessarily with First interfering Amendment freedoms.

2. Section Subdivision Is Invalid Overbreadth for of strict Application scrutiny review involves a two does the part analysis: restriction on interest; speech serve state and it compelling narrowly drawn to achieve that only interest. States have interest in compelling the welfare of protecting minors and in minors from preventing gaining access to matter deemed (Sable Cal., harmful as to them. Communications of FCC, 115, Inc. v. 2829, supra, 492 U.S. 126 2836-2837]; S.Ct. [109 FCC v. (1978) 726, Foundation 3026, 438 U.S. 749-750 S.Ct. 3040- [98 Pacifica 3041, 57 1073].) L.Ed.2d I assume for of purposes that section analysis (b)’s of goal minors from protecting to harmful exposure matter is a state compelling interest.

A law is narrowly drawn if it only contains the “least restrictive means to further the Cal., articulated (Sable FCC, interest.” Communications v. Inc. of supra, 492 U.S. at 126 S.Ct. at p. 2836].) The [109 must regulation “targetf] no more than the exact source of the ‘evil’ eliminate[] it seeks to remedy. 474, (Frisby (1988) v. 487 U.S. [Citation.]” 485 Schultz [108 2495, 2503, S.Ct. 420].) 101 L.Ed.2d A statute will be invalid for over- breadth when on its face it criminalizes a substantial amount of as protected, well as unprotected, (1996) 489, v. Antoine speech (People 48 Cal.App.4th 530]) 495 Cal.Rptr.2d therefore chills First [56 Amendment protected speech. (Bailey 1319, v. National City (1991) City 226 1331 Cal.App.3d 427]; (1982) 747, New York Cal.Rptr. [277 v. Ferber 458 U.S. 768-769 [102 3348, 3360-3361, S.Ct. 1113]; 73 L.Ed.2d Broadrick v. Oklahoma 601, 413 U.S. 615 S.Ct. 37 L.Ed.2d [93 830] [“[O]verbreadth well, real, in relation to the . . must not be but substantial judged . statute’s plainly legitimate sweep.”].)11 Reno, convinced 521 U.S. reasoning supra, Engler,

I am Johnson, II, Barrows N.Y.S.2d supra, supra, F.Supp.2d is overbroad because F.3d 1149 section 288.2 subdivision supra, constitutionally speech by it chills Internet users from engaging protected Reno the federal Com them with criminal sanctions. evaluated threatening (CDA), which criminalized knowingly munications Act of 1996 Decency years “patently under “indecent” communicating persons (Reno, S.Ct. Reno offensive” 859-861 speech. at p. at pp. [117 has an interest in chil recognized although government protecting matter, does an unnecessarily dren from harmful “that interest not justify adults”; Reno reaffirmed that broad addressed speech suppression “ of the of the interest’ government’s protecting ‘[r]egardless strength children, be level discourse mailbox cannot reaching simply ‘[t]he Bolger for a sandbox.’ [(Quoting limited to that which would be suitable U.S. 74-75 S.Ct. Products Youngs Drug Corp. 2884-2885, 469].)]” (Reno, S.Ct. at 77 L.Ed.2d at p. Internet, substantial 2346].) Reno concluded that because of the nature of could criminal protected speech subjected prosecution amounts were over-breadth. under the CDA and CDA therefore invalid portions (I 2347-2348].) Reno expressed S.Ct. pp. pp. d. First, the reasons for the CDA was overbroad. two principal concluding “indecent” or offensive” without CDA banned matter that was “patently to the additional elements under Miller that matter “appeal incorporating artistic, or scien interest” and serious literary, political the prurient “lack[] value”; communications of tific the CDA therefore banned facially large Second, or matter with serious educational other value. amounts protected it “community the banned content based on whether offended by defining standards,” a a incurs criminal under CDA for transmis liability sender his deemed neither indecent home community sion protected speech if in which it was received “thought nor offensive the community patently (Ibid.) otherwise.” because, here unlike that Reno is not controlling concludes majority 288.2, CDA, of “harmful matter" is (b)’s subdivision definition though speech punishable be standing challenge has to raise this even his would 11Hatch Although rights generally said to offending the First Amendment. constitutional are

without in the associated with exception a well-established found overbreadth doctrine personal, 1438, 1440.) 1983) (Wurtz (9th Risley v. Cir. 719 F.2d Under jurisprudence. Amendment First doctrine, rights expression challenge own of free litigants may a statute not because their this violated, cause not before the statute others are but because existence overbroad Oklahoma, (Broadrick supra, constitutionally expression. v. protected to refrain from court 1440.) 2915-2916]; Risley, supra, p. F.2d at pp. at S.Ct. at 413 U.S. Wurtz intent the sender have the consistent the Miller test and requires specific to, or sexual desires” of “arous[e], or the lust or appealf] gratify[] passions the minor. Even with seducing the sender or minor for purpose refinements, the statute is substantively indistinguish- these textual limiting under the First Amend- York statute held unconstitutional able from New ment in II. Barrows II, that criminalized

In Barrows the court examined a New York statute matter “harmful to minors” sent to communicating “importunen, invite[] or for the defendant’s a minor” to in sexual conduct with engage induce[] II, (Barrows 679-680.) Like section benefit. 677 N.Y.S.2d pp. (b), the New York statute defined the prohibited “harmful to minors” content of the transmission Miller standards using Code, 313) N.Y. Pen. Law subd. 6 with Pen. (compare § § the matter the intent induce the minor to be sent with required engage sexual conduct. II

Barrows concluded that under Reno the New York statute was invalid II, (Barrows vagueness overbreadth. 677 N.Y.S.2d at Barrows II reasoned that of the Miller standards into although incorporation concerns, the New York statute eliminated one of overbreadth Reno's second basis of Reno's overbreadth remained the bor- analysis applicable: derless nature of the Internet a clear and definition of prohibited predictable (Id. what content would be offensive to standards.” “patently prevailing international, 682-683.) Barrows II reasoned: “The pp. geographically-bor- reach, intent, nature of derless the Internet’s regardless speaker’s factor in the that the CDA is major finding facially [Reno court’s] which, unconstitutional. This to New York statute finding applies equally not as as the CDA in the definition of ‘harmful though vague what is light children[,’] does suffer from the same and overbreadth in imprecision a clear and definition of transmissions failing what provide predictable will be deemed offensive to standards’ of universal ‘patently prevailing audience. Were it to confine the use of the Internet within the State possible York, enforceable, of New the statute but that is neither would perhaps nor, Internet, . . . in the it desirable so of of the to possible light potential faced Internet restrict such communication. inevitable dilemma the by The in nature or user who wishes to transmit ideas which are sexual simulated contain such will offend the even is whether nudity expressions standards of the of transmission as to within vast what any community range (677 683.) is ‘suitable’ for children. . .” at . N.Y.S.2d p. II that the that argument

Barrows also noted Reno rejected government’s the of of the insulates the innocent knowledge requirement recipient’s that most Internet commu recognized

adult from criminal Reno prosecution. the heckler’s are to of possible nications concern anyone expressed open “ on message ‘might log veto which an of opponent protected simply [minor], of the of a thereby and inform the would-be discourses’ presence Reno, among further communication adult chilling any participants [quoting II, (Barrows at supra, at S.Ct. p. p. U.S. 2349]].” veto, 683-684.) at of the heckler’s together N.Y.S.2d The potential pp. “ CDA, the to of the of could ‘cause chilling penal speakers the effect aspect words, ideas, communicate than even unlawful arguably remain silent rather Reno, 2344-2345])].” S.Ct. at pp. and images’ supra, at p. [(quoting II, II 684.) the Barrows (Barrows at These considerations convinced that, laudable, the the statute the court of were statute although goals to threatening invalid for because it chilled protected speech by overbreadth (Id. to at p. attach criminal in liability engaged protected persons speech. this 686.) limiting The here seeks to avoid of Barrows II by majority aspect Lisa. Hatch’s with Stacie and analysis its one-on-one-communications the the results from analysis majority narrow of its Again, as-applied-to- Hatch the of Hatch’s First Amendment facial review and substance ignores (b). challenge section of of New York

I am aware that the Division the Court Appellate Supreme in reached a conclusion different from the conclusion of Foley Supreme of II and that II not reflect Court New York Barrows Barrows current of the New York Penal Law section constitutionality status However, 235.22, the cases. I have Penal Law section in both challenged at not for its in New York referred Barrows II continued length authority York Penal but for constitutionality on New Law New is the of the Foley higher its cogency analysis. Although opinion court, of the York I find its The court’s analysis Foley analysis unpersuasive. even desul- conclusionary difficult Amendment issues First presented of two the New York law Foley consisting describes tory. opinion matter the minor luring dissemination of harmful to minors prongs: 253, 254.) It N.Y.S.2d engage activity. (Foley, supra, sexual pp. then concludes without two-pronged explanation “[b]ecause statute, chilled” communication between adults would not be nature are statute would though acknowledges even it there applications (Id. I am unable to discern make it overbroad. Because the First rationale of the I find it Foley analysis opinion, unhelpful Amendment issues. (Mich. examined Laws Michigan

In the court statute Engler, Comp. 25.254]) that criminal use of com- 722.671 Stat. Ann. made the § [Mich. § to matter to minors. or the Internet disseminate sexually explicit puters 740.) statute (Engler, at held the unconstitu supra, Engler F.Supp.2d p. tional under the Amendment the state did establish either First because that it was to further the interest in minors or necessary state’s protecting to a state interest. (Engler tailored achieve narrowly compelling pp. 751-752.) Johnson, (N.M.

In the court examined a New Mexico statute Stat. Ann. 30-37-3.2, A) disseminate subd. that made criminal the use of to computers § 1152.) (Johnson, harmful matter to a minor. F.3d at Johnson supra, held the statute the unconstitutional under First Amendment because “the written, Reno], statute like the CDA unconstitutionally burdens other [in (Johnson, wise adult communication protected on Internet.” 288.2, I am (b) convinced section facially subdivision is overbroad be- Internet, cause in the borderless world of the in sender engaged speech in his (b) domicile is under section protected subjected subdivision to First, criminal in California. in prosecution numerous states 18-year-old man can seek sexual liaisons with females he 16 and knows to be 17 years old; there is no bar presumably “indecent” matter with against exchanging liaison, these “adults” to induce that consenting which matter even be 13A-6-110; (See, sent with the intent seduce. Ala. Code Ind. Code e.g., § 35-42-4-6; 30-37-3.2.) Ann. N.M. Stat. Ann. this Although § speech § states, in those faces criminal in protected speaker liability California if he (1) California, transmits the in offending receiver re- message California, motely retrieves the in message if offending message routed in electronically through California. Because an Internet computer construct, e-mail correspondent’s address is a rather than logical geographic isit for the ordinarily sender to know the location of impossible his physical the in terrorem correspondent; effect of California statute will chill the sender into for fear that self-censorship otherwise in his speech protected state enter might California and criminal trigger liability.12

A second factor—the standards—also leads variability among community chill me conclude that section threatens protected Internet, Because the nature of the could speech.13 sender transmit matter his (because domicile not deemed harmful under the protected 12The provides leverage opponent protected California statute also for an speech other on, jurisdictions by logging informing a heckler’s would-be speakers exercise veto presence in the of a forum Californian under could chill further engage (Reno, communication among participants speech. entitled to in the 521 U.S. at p. 880 S.Ct. at p. recognized 13The presented commentators have the Miller problems applying com Burke, munity (See, Cybersmut e.g., standard test transmitted the Internet. to matter over in the re- domicile), knowing standards his without

community prevailing and be to more was that matter in California downloading subject cipient for minors.14 standards for matter deemed community inappropriate stringent sender, the of knows the though Because of nature the Internet a even he is a minor has the intent purpose required recipient requisite 288.2, (b), know the locale of the geographic section subdivision cannot matter in the sender’s domicile and hence whether acceptable recipient The sender must therefore as harmful matter that might recipient. qualify in his or her state might' self-censor for fear that otherwise speech protected criminal liability.15 enter California and trigger 288.2, (b) from substan-

I conclude that section subdivision suffers Even tial facial overbreadth by criminalizing protected speech. potentially interest,16 a the the of the statute serve substantial state assuming goals that state interest cannot be make no effort to demonstrate the People (Winter 1996) Obscenity Harv. & the A Call a Standard J.L. First Amendment: New for Alexander, (Sum- (Burke); Obscenity and the Miller Standard Tech. Jurisdiction 1998) 677-680.) mer Seton Hall Const. L.J. case, (6th 1996) danger Cir. of reported 14Inat least one v. Thomas F.3d U.S. activity conflicting community creating liability cyberspace for became standards criminal Thomas, posted Web site not reality. couple In a while in California matter on their California Tech, However, 116-117.) (Burke, supra, pp. at deemed obscene in California. Harv. J.L. & prosecuting couple in that was downloaded Tennessee and formed basis for matter more Tennessee because the matter deemed obscene under Tennessee’s under law was 710-711.) (Thomas, Although the concluded stringent pp. at Thomas court standards. application posed danger chilling speech protected under the of Tennessee’s standards no Amendment, challenge rejection turned on the fact First the court’s First Amendment person they a to be a Tennessee citizen to access to their the defendants allowed knew fact, Thomas, First Amendment matter in Tennessee. Because of this reasoned “[defendants’ operator board implicated issue ... is not .... This not a situation where bulletin knowledge jurisdictions had control where materials were distributed for no or over in downloading printing. place . . . had in methods to limit user access Defendants greater than . . . jurisdictions finding obscenity where the risk of a was that in California. liability less subject jurisdictions If did with tolerant Defendants not wish themselves they in those determining obscenity, persons] could have refiised standards [access (Id. districts, 711.) p. application at Unlike precluding liability.” thus risk of Thomas, (b) criminal predicate does not Tennessee statute in subdivision domiciliary to knowledge whom liability recipient on the defendant’s that the a California applied. community will be California’s standards America, Angels Broadway example, play the Pataki court noted 15For Tony prize, and Pulitzer homosexuality and two Awards concerned AIDS received (Pataki, supra, p. F.Supp. in New York but condemned North Carolina. acceptable 182.) community variability could chill echoed similar concerns that standards Reno (Reno, supra, S.Ct. at protected speech. 521 U.S. 878 [117 very examples concrete Internet points legislative history that the cited few 16Hatch out (See Sen. stalking, single involving perpetrator. Com. example child California Sess.) (1997-1998 Reg. Apr. amended Safety, No. Analysis on Pub. of Assem. Bill newspaper Internet communications reporting A articles par. casual review may many perpetrators shows there potentially violative of section (like advanced less means receiver-based controls or filters by restrictive (S.D.N.Y. 1996) discussed Shea on American v. Reno Reporter Behalf of 916, 931-934, American Union 930 Civil Liberties v. Johnson F.Supp. Reno, 1029, 1033, 1998) (D.N.M. 4 521 U.S. at F.Supp.2d pp. 2336-2337]) 854-855 S.Ct. at less onerous burdens on pp. impose [117 Consortium, (See Denver Area Ed. speech. Telecommunications protected 727, 2374, 2390-2394, (1996) Inc. v. FCC 518 U.S. S.Ct. 135 [116 L.Ed.2d regulation as overbroad when [invalidating recipient-based 888] 750-751.) controls 55 737 at Engler, supra, F.Supp.2d pp. available] 288.2, my (b) In section invalid opinion, subdivision under the First Amendment.

II 288.2, Statutory (a) Interpretation Section Subdivision 288.2, The Commerce First infirmities Clause and Amendment of section (b) subdivision arise because that subdivision to Internet explicitly applies However, 288.2, communications. (a) section subdivision does not expressly to Internet and the apply communications facial constitutional infirmities of (b) subdivision are not wording (a). subdivision exposed express The issue is whether Hatch may nevertheless be as charged under prosecuted 288.2, 1, 1998, section for his (a) subdivision acts of pre-January distributing harmful matter over the Internet.17 288.2, concludes text of majority plain section meaning (a),

subdivision distribution of harmful matter proscribes “by any means,” of Hatch permits for his Internet prosecution communications be cause Internet is a By (a), “means.” on subdivision focusing majority states “the opinion question answers itself.” Although statutory on the text interpretation focuses of a statute to construe initially its meaning 590, (People (1996) 695, Valladoli 13 Cal.4th 597 918 Cal.Rptr.2d [54 999]; (1998) 294, P.2d People v. Benson 18 Cal.4th 30 Cal.Rptr.2d 557]), P.2d it must consider internal of the entire context statute and whole, consider it as a its various construing give to each parts meaning few appear overwhelmingly but victims. The be either investigative “victims” adult case, as in reporters, police Except sting may very this officers. there be operations, few rights crimes. When a statute imposes produces substantial burdens on First Amendment “ benefits, recognized regulate minimal the courts all have ‘the State if it turns regulation that even the out least restrictive means of is still unreasonable when its limitations ” speech against on freedom of are from gained balanced benefits those limitations.’ Communications, (Carlin (2d 1988) 555.) Cir. Inc. v. F.C.C. 837 F.2d 288.2, (b) 17Section January subdivision became effective on and section (a) potentially applicable subdivision was the criminal statute to Hatch's Internet (Stats. 1997, conduct. ch. § (Laureano Cal.App.3d Cal.Rptr. v. Christensen

part. and certain 872].) of a meaning statutory phrase may plain Although isolation, of a blind adherence to the text if the is considered phrase if its literal is inconsistent interpretation statutory improper phrase statute, intent legislative of the same defeats other provisions apparent (Leslie canons. Salt and is otherwise in conflict with accepted interpretive etc. Com. Cal.App.3d Co. v. San Francisco Conservation Bay spe Because Cal.Rptr. 288.2, (a) and section subdivision includes Internet communications cifically not, of unclear the internal context the statute whether section does it is from 288.2, the (a) includes Internet communications. Because subdivision also 288.2, uncertain, (a) I consider textual of section subdivision is meaning construction, aids intent and statutory including legislative accepted other of statutory canons of interpretation. 288.2, (a) the means” of section subdivision

I conclude that “any language First, the not harmful matter.18 when does include Internet distribution of amendment, it an changes existing by makes material to statute Legislature of the intended to the change meaning is the ordinarily Legislature presumed (1994) 25 (Dubins University existing Regents law v. California of of 77, 336]). There be a clear demonstra 85 must Cal.App.4th Cal.Rptr.2d [30 tion, the of the amendment legislative from either nature or express declaration, law clarify existing to conclude the intended Legislature only to 86, (Verreos (1976) San Francisco 63 99 City County v. Cal.App.3d of 649]). to 288.2 subdi adding The amendment section 1997 Cal.Rptr. [133 (b) is a crime was not accompa to that Internet distribution vision specify declarative of existing nied statement that it clarified was by merely any (a) does include Internet communi 18Although I conclude section subdivision not cations, involving concluding it cover those counts there are additional reasons for would not (counts 19). Legislature subdivi 13 and The enacted Hatch’s 1998 Internet communications (b) liability is used to specific to for criminal when Internet provide sion standards subject specific relating particular A to a will harmful matter to minors. statute distribute the latter, alone, sufficiently though standing govern general more even over a statute (Gomes statute v. comprehensive encompass subject specific to the more relates. which Moreover, 977, 93].) (1995) County Cal.App.4th Cal.Rptr.2d Mendocino should, possible, adopt a together and the courts where a statute should be read provisions of parts given meaning part surplusage. all and no is made useless or construction in which are 343].) (1995) Finally, when (People Cal.App.4th Cal.Rptr.2d v. 1144 [47 Hamilton excluded it from a related Legislature carefully a term in one statute but employed has statute, (Grubb & from it was excluded. imply we the term into the statute should 281].) People’s Cal.Rptr.2d The Cal.App.4th Co. Bello 240 [23 Ellis (a) is subject prosecution under subdivision argument that Hatch’s conduct by Legislature that the enactment principles: ignores each of it its inconsistent with these (b) (b) subject; it makes subdivision specific treatment of provided subdivision more excluded specifically included in subdivision but requires and it that a term superfluous; (a). (a) judicially implied into subdivision from subdivision law, and I therefore the addition of presume Internet distribution change existing section 288.2 it scope to cover a expanding uncovered previously communications medium.19 Second, a statute should be constructed to its preserve constitutionality.20 (Erznoznik v. City Jacksonville 422 U.S. S.Ct. 125].) 45 L.Ed.2d The construction majority’s (a)

subdivision to include Internet distribution raises constitutional infir Moreover, (b). mities of subdivision the majority’s construction of subdivi (a) sion an additional First presents Amendment overbreadth concern. Under (a), a sender can be held liable for criminally distributing matter harmful to a minor without knowing was a minor if he recipient “fails to exercise reasonable care in the true of the ascertaining age” recipi Reno court concluded that because the Internet precludes ent. any effective method for a transmitter of his verify even a recipients, requirement actual knowledge would not eliminate recipient’s age the chill on (521 protected U.S. at speech. S.Ct. at pp. If a statute actual requiring of the knowledge recipient’s age

nevertheless overbroad by “inevitably a curtailing] significant amount of adult communication on the (ibid.), Internet” the threat of criminal liability legislative history 19The accompanying the light 1997 enactment sheds no on whether Legislature 288.2, (b) intended section change clarify subdivision to rather existing than Although law. legislative one report states the bill was a existing “clarification of law (Sen. rather than an addition to it” Safety, Analysis Com. on Pub. of Assem. Bill No. 181 (1997-1998 Sess.) 18, Reg. 1997, 2), Apr. as amended par. legislative another report states “the specifically Internet is not [by existing covered expand This bill would law]. law to prohibit also (Sen. use of the Internet ... to seduce a Judiciary, minor.” Com. on Analysis (1997-1998 16, Sess.) 1997, 1, Assem. Bill No. Reg. 181 as amended June 27, <http://www.leginfo.ca.gov> 2000].) of Mar. [as 20Whena court a challenge evaluates facial readily to a statute and the statute susceptible narrowing infirmities, to a construction that avoids constitutional we should adopt that interpretation. (Virginia 383, (1988) v. American Booksellers Assn 484 U.S. 397 S.Ct. 288.2, 98 L.Ed.2d Section readily subdivision is not susceptible to a narrowing construction express because its application triggers to the Internet both commerce However, 288.2, (a)’s clause First Amendment issues. section subdivision criminalization distribution of harmful any matter is susceptible interpretation means to an that it not apply does to Internet communications and is limited to other forms of distribution. When involved, non-Internet forms of distribution are infecting the constitutional infirmities subdi (a) appear vision evaporate. to For example, person personal a who delivery uses to distribute harmful matter to a engages wholly minor within California activity subject intrastate prohibitions to commerce regulation, clause on state and the defendant engaged is not speech protected in the locus of his person action. A who distributes harmful matter from outside California but uses requiring methods him to the recipient (e.g., know is in California mails, through machines) use of the telephones or fax knowingly subjects appli himself to cation of determining California’s age minority standards for and whether the matter is Thomas, (U.S. 701, harmful 711), under California standards v. thereby 74 F.3d mooting the commerce multiple clause concerns for inconsistent burdens or extraterritorial states, projection of California law into other mooting engaged as well as the claim he was (Ibid.) protected speech. 228 (a) even have standards of subdivision imposes

under the “should known” face criminal the sender could chill on because greater protected speech he exercised reason- on ad hoc decisions whether liability regarding based determine the of his able care to correspondent.

Third, creates uncer- statutory subdivisions when juxtaposition statute, criminal settled caution to the reach of tainty principles as Piper v. (People be resolved in favor of the defendant uncertainty rule 899]); under the P.2d Cal.Rptr. Cal.3d doubt entitled to the benefit reasonable every the defendant is lenity him. Bryant to the statute is to (People as whether applicable 601].) The juxtaposition Cal.Rptr.2d Cal.App.4th (a) (b), with the legislative history section subdivisions coupled subdivisions, lead and the standards of between those culpability disparate (a) Internet me to construe inapplicable communications.21

III

Conclusion its mandate court vacate I would issue writ of directing superior motion set aside the informa- November order Hatch’s denying tion, Hatch’s to set and to enter new and different order motion granting Hatch’s aside of the information motion through denying counts 1 and set aside counts 23. through 26, 2000, and the was

A for a was denied rehearing opinion petition April McDonald, J., modified to read as above. was printed opinion for review by should be Petitioner’s granted. petition Supreme petition July Court denied 2000. (a) (b) requisite define the argues that section subdivisions 21Hatch also because minor, seducing the and the term “seduce” purpose

mens rea the offenses as the intent or intent, give proscribed 288.2 is sufficiently specific definite notice of (People ex rel. process of the Fifth Amendment. vagueness invalid under the due clause 596]; Pryor P.2d Cal.Rptr.2d v. 14 Cal.4th Gallo Acuna Cal.Rptr. P.2d It is Cal.3d Municipal Court I have that subdivision unnecessary for me to examine this contention because concluded (a) Internet conduct. inapplicable to Hatch’s is invalid for other reasons and subdivision However, argument. majority to evaluate this appear it would incumbent on

Case Details

Case Name: Hatch v. Superior Court

Court Name: California Court of Appeal

Date Published: Apr 26, 2000

Citation: 94 Cal. Rptr. 2d 453

Docket Number: D032423

Court Abbreviation: Cal. Ct. App.