Hatch v. Superior Court (People) (2000)

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

(Superior Court of San Diego County, No. SCD136817, Terry J. Knoepp, Judge.)

(Opinion by Benke, Acting P. J., with Haller, J., concurring. Concurring and dissenting opinion by McDonald, J. (see p. 205.)

COUNSEL

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

No appearance for Respondent.

John T. Philipsborn for California Attorneys for Criminal Justice as Amicus Curiae on behalf of Petitioner.

Cynthia M. Sorman, Diane Nichols and Neil F. Auwarter for Appellate Defenders, Inc., as Amicus Curiae on behalf of Petitioner.

Paul J. Pfingst, District Attorney, Patricia K. Atwill, Thomas F. McArdle and James E. Atkins, Deputy District Attorneys, for Real Party in Interest.

Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Carl H. Horst and Arlene Aquintey Sevidal, Deputy Attorneys General, for the State of California as Amicus Curiae on behalf of Real Party in Interest. [80 Cal. App. 4th 176]

OPINION

BENKE, Acting P. J.-

Petitioner David Irving Hatch challenges his being held to answer on many charges of transmitting harmful matter over the Internet to a child in an attempt to seduce the child. Hatch argues, among other points, that a decision of the United States Supreme Court, Reno v. American Civil Liberties Union (1997) 521 U.S. 844 [117 S. Ct. 2329, 138 L. Ed. 2d 874] (Reno), requires we order the bulk of the charges dismissed on constitutional grounds. We do not agree.

Introduction

A decade ago, in response to concerns over the use of obscene or indecent matter in the seduction of children, the California Legislature enacted Penal Code fn. 1 section 288.2, subdivision (a). This statute, which has been construed by no reported decision, made it a criminal offense to send, by any means, specified harmful matter to a minor "with the intent or for the purpose of seducing a minor." (Ibid.)

In the years after 1990, use of the Internet fn. 2 as a means of communication expanded rapidly, as it continues to do. fn. 3 In 1996, the United States Congress, in legislation known as the Communications Decency Act of 1996 (CDA), made it an offense to send or display indecent matter to minors over the Internet, but those enactments were declared unconstitutional by the Reno decision of the United States Supreme Court in 1997. [80 Cal. App. 4th 177]

Later on in 1997, with California concern now focused specifically on use of the Internet to seduce minors, and with the then recent United States Supreme Court CDA decision in mind, the California Legislature enacted a more specific version of the 1990 statute, section 288.2, subdivision (b), now proscribing sending defined harmful matter over the Internet to a minor for purposes of seduction. This statute did not become effective until January 1, 1998.

Because of the timing of the offenses committed in this case, Hatch was charged with numerous violations of the 1990 statute, alleged to have been committed prior to the effective date of the 1997 statute, and also with two violations of the latter statute, as well as other offenses. Hatch argues several evidentiary issues and also challenges the statutes both under principles of statutory construction and, relying heavily on the Supreme Court decision overturning the CDA, on various constitutional grounds.

We thus must resolve Hatch's various evidentiary arguments, construe the language of both the 1990 and 1997 statutes and determine also whether the statutes withstand Hatch's commerce clause and First Amendment challenges to their provisions. We first set out the procedural and factual background, review the pertinent state and federal statutes we will discuss and then proceed to determine the various evidentiary, statutory construction and constitutional questions presented by Hatch.

Factual Background

The present charges arise from a type of "sting" operation conducted by a private entity. They involve not only Hatch's Internet communications with two imaginary victims, but also his meeting with an intended victim and the results of a search of Hatch's home and his computer.

A. Beginning of the Affair

In the summer of 1997, INN News (Fox Television) advertised for intelligent, fast-thinking women who appeared young, but who were over 18 years of age. Jennifer Hersey, a 20-year-old woman who appeared quite youthful, was hired. Her duties were to pose as a 13-year-old girl and to talk on the Internet with persons seeking sexual encounters with underage women. Hersey referred to such persons as "people that were basically stalking children on the Internet." Hersey posed as two different girls, "Stacie" and "Lisa," and posted on the Internet biographical information, stating that each of them was 13 years old. Hersey then waited to be contacted by men. [80 Cal. App. 4th 178]

Her first contact with Hatch occurred on September 6, 1997. Hersey, posing as Stacie, was in an Internet chat room in which persons talk with one another in a "virtual room." Hatch, using the screen name "Jordan9787," sent Stacie a private message asking if she liked older guys. On September 8, 1997, Hatch and Stacie exchanged Internet communications in which Stacie stated she was 13 years old. These initial contacts were followed by a series of Internet communications between Hatch and Stacie and between Hatch and Lisa. Hersey made copies of her Internet communications with Hatch, wrote the dates of the communications on the copies and delivered the copies to police.

B. The Stacie Internet Counts, Counts 2-13 and 20

The factual bases for what were eventually alleged in an information as counts 2 through 13, attempted seduction of a minor by any means (§§ 664, 288.2, subd. (a)) consist of Internet communications summarized as follows:

Count 2: On September 9, 1997, Hatch and Stacie exchanged communications discussing in detail the sexual conduct in which they could engage when they met. Hatch expressed his concerns about being caught.

Count 3: On September 10, 1997, Hatch sent Stacie messages asking her to meet him in person. He also sent her a picture of two females engaged in sexual conduct with a man and Hatch stated "heres a pic of something we can try." This action was also the basis for count 20, possession of pictures of a minor engaging in sexual conduct. (§ 311.1.)

Count 4: On September 11, 1997, Hatch and Stacie exchanged messages in which Hatch suggested sexual conduct. He also sent Stacie a picture of a young girl masturbating and stated he could show her many more pictures when they met.

Count 5: On September 12, 1997, Hatch suggested to Stacie sexual conduct in which they could engage when they met. He pressured Stacie to meet with him, although he expressed his fear Stacie might be a trap. He also sent Stacie pictures of a young girl with a man, a young girl having sexual relations with a man and a nude girl. He reiterated he could show her many more pictures when they met. fn. 4

Count 6: On September 13, 1997, Hatch sent Stacie a photograph of a nude girl.

Count 7: On September 19, 1997, Hatch suggested to Stacie several types of sexual conduct in which they could engage when they met. He asked her [80 Cal. App. 4th 179] if he could take pictures while they had sex and promised not to show them to anyone because it would be imprudent to show pictures of a 13-year-old having sexual relations with him.

Count 8: On September 22, 1997, Hatch sent Stacie a picture of a nude young girl and tried to arrange to meet her at a motel so they could have sexual relations. He expressed his fear he would lose his job if Stacie reported him and obtained Stacie's assurances she was not with the police. fn. 5

Count 9: On October 23, 1997, Hatch expressed to Stacie his continued desire that she have sexual relations with him. He asked her to send a nude picture of herself to him, and she asked him to send her a nude picture of himself.

Count 10: On September 27, 1997, Hatch sent Stacie a picture of himself nude and asked her to telephone him if she could meet with him or if she wanted to hear him ejaculate. In an angry conversation, he accused Stacie of manipulating him to obtain the pictures and told her to go away.

Count 11: On October 28, 1997, Hatch accused Stacie of cowardice because she refused to meet him. Hatch asked her to send a picture of herself nude and offered to show her pictures of himself nude when they met. He told her he had met Lisa, another 13-year-old, and they planned to meet that Wednesday night. He represented that the first of either Stacie or Lisa to meet with him would become his only girlfriend.

Count 12: On November 25, 1997, Hatch tried to convince Stacie to meet with him. She asked him for more pictures and he became upset and told her she could see all of his pictures.

Count 13: On February 8, 1998, Hatch and Stacie had their last communication. Stacie asked him for more pictures, and they discussed meeting and engaging in sexual conduct. Hatch sent Stacie pictures of nude girls and of a girl and a man having intercourse.

C. The Lisa Internet Counts, Counts 14-19

The factual bases for counts 14 through 19, attempted seduction of a minor by any means (§§ 664, 288.2, subd. (a)) consist of Internet communications summarized as follows: [80 Cal. App. 4th 180]

Count 14: On September 15, 1997, Hatch and Lisa had a conversation in which Hatch suggested they could meet and engage in sexual conduct.

Count 15: On September 18, 1997, Hatch told Lisa that if they met, she could see him nude. He asked permission to come to her house "right now" to display himself in the nude or to give her a picture of himself nude.

Count 16: On September 21, 1997, Hatch suggested to Lisa they could meet and engage in sexual conduct. Hatch arranged to meet her at a restaurant that evening. They met that night at the appointed place. During the meeting, Hersey, posing as Lisa, asked Hatch if he was going to display himself, and he replied that because of the way she looked at him, she could make him do anything she wanted. After their meeting, they had another conversation in which they discussed having sexual relations.

Count 17: On September 22, 1997, Hatch sent Lisa a picture of a nude young girl and asked Lisa if she resembled the girl in the picture. He also tried to arrange another meeting with her.

Count 18: On September 23, 1997, Hatch told Lisa that thinking of her aroused him. Hatch suggested several ways for them to safely meet.

Count 19: On February 1, 1998, Lisa suggested Hatch meet her at a hotel pool area and asked Hatch if he would expose himself. Hatch stated he could not expose himself in a public pool area. He also expressed reluctance to meet her because she would cause him to be aroused but the public nature of the pool would prevent him from obtaining satisfaction. They agreed to meet that afternoon at the hotel.

D. The Hotel Meeting, Counts 1, 22 and 23

On February 1, 1998, Hersey, posing as Lisa, met Hatch at a hotel pool area. Hatch wanted a hug but Hersey only "halfway" hugged Hatch. After they sat down, Hatch showed her pictures of himself nude. They engaged in small talk during the next 20 minutes, and Hatch told her of his sexual plans. However, Hersey refused Hatch's invitation to accompany him in his truck. He threw a temper tantrum, stomped out of the pool area and walked to his truck. Hersey waited a few minutes and then followed him to his truck. Hatch tried to convince her to enter the truck but she refused. Hatch then unzipped his pants and began to masturbate. Hersey asked Hatch for permission to photograph him and he agreed. After he ejaculated onto his hand, he extended that hand toward Hersey. This encounter resulted in the charges of an attempted lewd act on a minor under the age of 14 years, count 1 (§§ 664, [80 Cal. App. 4th 181] 288, subd. (a)); lewd conduct, count 22 (§ 647, subd. (a)) and indecent exposure, count 23 (§ 314, subd. 1).

E. The Search, Count 21

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

Hatch's computer lacked the software necessary to view the photographs stored on the discs. However, the computer hard drive had ghost images of some of the photographs, which showed the images had at one time been present on the computer's hard drive before being loaded onto the floppy discs. Hatch was charged with possession of matter depicting minors engaged in sexual conduct, count 21. (§ 311.11, subd. (a).)

Procedural Background

The above counts were set out in an information filed April 23, 1997, by the District Attorney of San Diego County. fn. 6 The preliminary hearing was held on August 25, 1998. Evidence was received from Hersey, the person who posed as a minor under age 14, and from police officers. The court also received videotape, transcripts and photographs in evidence. At the conclusion of the hearing, counsel for Hatch argued the insufficiency of the evidence and the inapplicability of section 288, subdivision (a), to Internet communications, but the magistrate rejected all of these arguments.

On October 16, 1998, Hatch filed a motion to set aside the information under section 995, raising again his challenges to the sufficiency of the evidence, the statutory applicability of section 288.2, subdivision (a), to his conduct and now adding challenges to the constitutionality of section 288.2, subdivision (b) and, insofar as it was applicable to Internet communications, section 288.2, subdivision (a).

After hearing argument on the motion, the superior court judge issued an order on November 18, 1998, denying Hatch's motion to dismiss. On [80 Cal. App. 4th 182] December 2, 1998, Hatch petitioned this court for a writ of mandate, reiterating his challenges to various areas of evidentiary sufficiency, arguing points of statutory interpretation and again setting out both Hatch's commerce clause and First Amendment challenges.

On February 27, 1999, we issued an alternative writ and thereafter heard argument, following which we solicited further briefing on the statutory interpretation and constitutional issues from the parties and also from various amici curiae.

Discussion

Hatch argues the above evidence is insufficient in many respects: that section 288.2 is unconstitutional under the commerce clause and the First Amendment; and that section 288.2, subdivision (a), should be interpreted not to apply to the Internet.

I. Statutory Background

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

A. Section 288.2, Subdivision (a) fn. 7

Section 288.2, subdivision (a), provides: "Every person who, with knowledge that a person is a minor, or who fails to exercise reasonable care in ascertaining the true age of a minor, knowingly distributes, sends, causes to be sent, exhibits, or offers to distribute or exhibit by any means, including, but not limited to, live or recorded telephone messages, any harmful matter, as defined in Section 313, to a minor with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of that person or of a minor, and with the intent or for the purpose of seducing a minor, is guilty of a public offense and shall be punished by imprisonment in the state prison or in a county jail. [80 Cal. App. 4th 183]

"A person convicted of a second and any subsequent conviction for a violation of this section is guilty of a felony." fn. 8

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

B. Communications Decency Act (CDA)

In 1996 Congress enacted the Telecommunications Act of 1996 (Pub.L. 104-104, 110 Stat. 56), which the Reno court described as "an unusually important legislative enactment.... [I]ts primary purpose was to reduce regulation and encourage 'the rapid deployment of new telecommunications technologies.' " (Reno, supra, 521 U.S. at p. 857 [117 S.Ct. at p. 2338].) While six of the Telecommunications Act's seven titles were products of extensive legislative hearings and Senate and House committee reports, key provisions of title V of the act, known as the Communications Decency Act of 1996 (CDA), arose from a Senate amendment. The CDA in two sections made criminal both the "indecent transmission" fn. 9 and the "patently offensive display" fn. 10 of material to minors on the Internet. (47 U.S.C. § 223(a); id., § 223(d).)

C. Section 288.2, Subdivision (b)

By Statutes 1997, chapter 590, section 1, the California Legislature added a new subdivision to section 288.2, as follows: "(b) Every person who, with knowledge that a person is a minor, knowingly distributes, sends, causes to be sent, exhibits, or offers to distribute or exhibit by electronic mail, the Internet ... or a commercial online service, any harmful matter, as defined [80 Cal. App. 4th 184] in Section 313, to a minor with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of that person or of a minor, and with the intent, or for the purpose of seducing a minor, is guilty of a public offense ...."

This statute became operative on January 1, 1998. As we earlier noted, the result in this case is that most of the counts alleged against Hatch arise under the 1990 legislation.

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

II. Sufficiency of the Evidence

Hatch attacks the sufficiency of the evidence introduced at the preliminary hearing to support the attempted seduction of a minor charges set forth in counts 2 through 19, as well as the evidence supporting several of the other charges. Our review of such assertions, arising in the context of review of the denial of a section 995 motion to dismiss, is a highly deferential one.

A. Standard of Review

[1] We are not here reviewing the sufficiency of the evidence to support a jury finding of the truth of the charged offenses. Instead, we must determine only whether there is sufficient evidence in the preliminary hearing transcript to permit the district attorney to proceed to trial. (People v. Laiwa (1983) 34 Cal. 3d 711, 718 [195 Cal. Rptr. 503, 669 P.2d 1278].) As the California Supreme Court has summarized the issue: "In a related context, we observed that a magistrate's authority in determining whether to dismiss criminal charges is 'limited to determining whether sufficient or probable cause exists to hold the defendant for trial.' [Citation.] In Uhlemann [People v. Uhlemann (1973) 9 Cal. 3d 662 [108 Cal. Rptr. 657, 511 P.2d 609]], we distinguished the probable cause test from the test used by a jury in determining guilt or innocence, namely, the 'beyond a reasonable doubt' construction. We stated: ' "Of course, the probable cause test is not identical with the test which controls a [trial] jury .... The jury must be convinced to a moral certainty and beyond a reasonable doubt of the existence of the crime charged in the information and of every essential element of that crime. But a magistrate conducting a preliminary examination must be [80 Cal. App. 4th 185] convinced of only such a state of facts as would lead a man of ordinary caution or prudence to believe, and conscientiously entertain a strong suspicion of the guilt of the accused. [Citations.] In other words, 'Evidence that will justify a prosecution need not be sufficient to support a conviction.... An information will not be set aside or a prosecution thereon prohibited if there is some rational ground for assuming the possibility that an offense has been committed and the accused is guilty of it. [Citations.]' " ' [Citations.]" (Cummiskey v. Superior Court (1992) 3 Cal. 4th 1018, 1027 [13 Cal. Rptr. 2d 551, 839 P.2d 1059].)

With these principles in mind, we turn to Hatch's various challenges to the sufficiency of the evidence received below.

B. Belief That Lisa and Stacie Were Under Age 14

[2a] Hatch contends counts 1 through 19 of the information must be dismissed because the prosecution cannot establish an essential element of the offenses charged in those counts. He argues that a necessary element of the charge in count 1 (§ 288, subd. (a)), is proof the victim was under the age of 14 years and a necessary element of the charges in counts 2 through 19 (§ 288.2, subds. (a), (b)), is proof the victims were under the age of 18 years. He then argues that if Stacie and Lisa were under the relevant ages, his subjective belief that they were more than 18 years of age would not be a defense to those offenses. (In re Donald R. (1993) 14 Cal. App. 4th 1627, 1629-1630 [18 Cal. Rptr. 2d 442].) From this predicate he concludes that his belief Stacie and Lisa were under 14 years of age is likewise irrelevant and, regardless of that belief, because Hersey was over the age of 18 years, the prosecution cannot establish the age elements of the offenses charged in counts 1 through 19.

However, Hatch is not charged with violating section 288, subdivision (a), or section 288.2, subdivision (a) or (b); instead, he is charged with attempting to violate those sections. A defendant is guilty of an attempt when he harbors a specific intent to commit the target crime and does a direct, although perhaps ineffectual, act toward its commission. (People v. Ross (1988) 205 Cal. App. 3d 1548, 1554 [253 Cal. Rptr. 178].) The act need not be an element of the substantive offense, but only an immediate step in the present execution of the criminal design. (Ibid.)

The fact the prosecution cannot show that Hatch's intended victims were in fact under 14 years of age is irrelevant to his culpability for attempting the charged crimes. If Hatch had the specific intent to complete the target crimes, the impossibility of completing the crimes does not exonerate him [80 Cal. App. 4th 186] from attempting those offenses. As the court in People v. Meyers (1963) 213 Cal. App. 2d 518, 523 [28 Cal. Rptr. 753], stated: "The courts of this state have not concerned themselves with the niceties of distinction between physical and legal impossibility, but have focused their attention on the question of the specific intent to commit the substantive offense. The hypothesis of the rule established in this state is that the defendant must have the specific intent to commit the substantive offense, and that under the circumstances, as he reasonably sees them, he does the acts necessary to consummate the substantive offense; but because of circumstances unknown to him, essential elements of the substantive crime are lacking. [Citations.] It is only when the results intended by the actor, if they happened as envisaged by him, would still not be a crime, then and only then, can he not be guilty of an attempt."

Thus, a defendant may be found guilty of attempted receipt of stolen property although the property is in fact not stolen (People v. Rojas (1961) 55 Cal. 2d 252, 258 [10 Cal. Rptr. 465, 358 P.2d 921, 85 A.L.R.2d 252]), of attempted possession of a controlled substance although the substance is in fact talcum powder (People v. Siu (1954) 126 Cal. App. 2d 41, 43-44 [271 P.2d 575]) and of attempted rape if he intended to rape a live person although unbeknownst to him the victim was dead (People v. Thompson (1993) 12 Cal. App. 4th 195, 202-203 [15 Cal.Rptr.2d 333]).

In People v. Reed (1996) 53 Cal. App. 4th 389 [61 Cal. Rptr. 2d 658], the court concluded the defendant was guilty of attempted molestation of a child under age 14 (§§ 664, 288, subd. (a)) although his intended victims did not in fact exist but were instead fictitious constructs of a detective posing as the mother of 12and nine-year-old victims. The Reed court reasoned, at 53 Cal.App.4th pages 396 through 397, that liability for an attempted crime does not require a " ' "present ability" to complete the crime, nor is it necessary that the crime be factually possible.' (People v. Grant (1951) 105 Cal. App. 2d 347, 356 [233 P.2d 660])." It stated: "This rule of law is particularly important in determining culpability for intent crimes. Our courts have repeatedly ruled that persons who are charged with attempting to commit a crime cannot escape liability because the criminal act they attempted was not completed due to an impossibility which they did not foresee: 'factual impossibility is not a defense to a charge of attempt.' (People v. Peppars (1983) 140 Cal. App. 3d 677, 688 [189 Cal. Rptr. 879].)" (Reed at p. 396.)

In Reed, the defendant attempted to distinguish prior cases by arguing the intended victims were "imaginary." The Reed court rejected the defendant's argument, stating at page 397 that defendant's argument rested on "a distinction without a difference. Applying the established 'perception' standard [80 Cal. App. 4th 187] set out above, if the circumstances had been as defendant believed them to be, he would have found ... two girls under fourteen available for him to engage in lewd and lascivious conduct with them. Defendant's failure to foresee that there would be no children waiting does not excuse him from the attempt to molest. Defendant showed no honest and reasonable, or even unreasonable, belief that his actions would have a legal outcome. Thus, defendant's mistake of fact was not a defense to the crime of attempting to molest girls under 14 years of age." (Reed, supra, 53 Cal.App.4th at p. 397.)

[3] A defendant is guilty of an attempt if the evidence shows he had the specific intent to commit the substantive offense and under the circumstances as he believed them to be took actions to consummate the substantive offense, even though circumstances unknown to him made completion of the substantive offense impossible. (People v. Thompson, supra, 12 Cal.App.4th at p. 203.) Therefore, a motion to dismiss the information should be denied if the evidence at the preliminary hearing would support a finding the defendant had the requisite specific intent and took actions to commit the substantive offense. (Lupo v. Superior Court (1973) 34 Cal. App. 3d 657, 663 [110 Cal. Rptr. 185].)

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

C. Attempt Liability Under Count 1

Hatch argues the evidence of his February 1, 1998, acts at the hotel pool and parking lot were insufficient to constitute an attempt to violate section 288, subdivision (a), as charged in count 1; he contends there was no evidence he attempted to touch Hersey in a manner which would violate that section.

[4] To be guilty of an attempt, a defendant harboring the required specific intent must commit a direct but ineffectual act toward commission of the target crime. (People v. Ross, supra, 205 Cal.App.3d at p. 1554.) The act need not be an element of the offense, but only constitute an immediate step in the execution of the criminal design. (Ibid.) No bright line distinguishes mere preparatory acts from commencement of the criminal design. The courts have recognized that the more clearly the intent to commit the [80 Cal. App. 4th 188] offense is shown, the less proximate the acts need be to consummation of the crime. (People v. Berger (1955) 131 Cal. App. 2d 127, 130 [280 P.2d 136]; People v. Fiegelman (1939) 33 Cal. App. 2d 100, 105 [91 P.2d 156].) "[T]he plainer the intent to commit the offense, the more likely that steps in the early stages of the commission of the crime will satisfy the overt act requirement." (People v. Dillon (1983) 34 Cal. 3d 441, 455 [194 Cal. Rptr. 390, 668 P.2d 697].)

[2c] There was clear evidence Hatch intended to commit a lewd or lascivious act on a child under 14 years old. His Internet communications with Lisa, whom he believed to be 13, described several forms of sexual conduct in which they could engage when they had the opportunity. He stated during their February 1 Internet communication setting up their meeting later that day that he did not want to meet with her just to talk; and, while sitting together at the pool, he showed her pictures of himself nude and discussed what sexual activities he was planning. While harboring the specific intent to molest 13-year-old Lisa, Hatch tried to convince her to accompany him into his truck, and when Lisa later followed him to his truck, he again tried to convince her to enter the truck. These acts went beyond mere preparation for sexual molestation and constituted immediate steps in the present execution of the criminal design. (People v. Ross, supra, 205 Cal.App.3d at p. 1548.) The court in People v. Reed, supra, 53 Cal. App. 4th 389, held that analogous actions were adequate for attempt liability, concluding the defendant's entry into a hotel room where he thought the victims were waiting and where the planned molestation was to occur "was clearly a step beyond mere preparation for the crime ... [and] was an unequivocal first act in carrying out the intended crime." (Id. at p. 399.)

Hatch argues that under People v. La Fontaine (1978) 79 Cal. App. 3d 176 [144 Cal. Rptr. 729] (overruled on other grounds in People v. Lopez (1998) 19 Cal. 4th 282, 292 [79 Cal. Rptr. 2d 195, 965 P.2d 713]), he cannot be convicted of attempted child molestation; he made no effort to touch Lisa while in his truck. He argues that under La Fontaine, merely soliciting Lisa to commit sexual acts is inadequate to support an attempt to violate section 288, subdivision (a). Even assuming La Fontaine's analysis remains good law, there is some evidence Hatch did try to touch Lisa: after Lisa refused to enter his truck, Hatch exposed himself, masturbated and extended his semen-covered hand toward her. We conclude the evidence of Hatch's February 1, 1998, acts at the hotel is sufficient to support the charge in count 1.

D. Sufficient Evidence of Dates of Offenses

Hatch argues there was insufficient evidence of the dates of occurrence of the offenses charged in counts 2 through 19. He also argues there was [80 Cal. App. 4th 189] insufficient evidence he possessed the obscene matter as charged in counts 20 and 21.

[5] The purpose of the information is to apprise the defendant of the charges he must be prepared to meet at trial. The prosecution need not prove the date alleged in the information with exactness if the information adequately alleges the offenses took place before the filing of the information and within the period of limitations. (People v. Lees (1967) 257 Cal. App. 2d 363, 369 [64 Cal. Rptr. 888].)

1. Counts 2 Through 19

[2d] Each of counts 2 through 19 alleges a date certain of the charged offense. Hatch does not suggest any of those dates trigger a statute of limitations bar to prosecution. Instead, he asserts that Hersey's testimony did not identify the date of each Internet conversation and therefore there is no evidence of the time each offense occurred.

However, a printed copy of each Internet conversation was admitted as an exhibit at the preliminary hearing, and at the top of each document Hersey made a handwritten notation of the date of the conversation. fn. 11 Moreover, Hersey testified that her first contact with Hatch was his September 6, 1997, e-mail to Stacie asking her if she liked "older guys." This contact began her five-month period of e-mail contact with Hatch and demonstrates the charged offenses occurred within the period of limitations.

Hatch also argues there is no evidence of the date he learned Lisa and Stacie were 13 years old, and therefore the conduct forming the basis of many of the section 288.2, subdivisions (a), (b), offenses may have occurred before he became aware of their ages, which would exonerate him from culpability for those counts. There is ample evidence from which the trier of fact could infer Hatch knew of their ages at the inception of their communications. First, Hersey posted biographical information for both Stacie and Lisa, which is available to Internet users, stating their ages to be 13 years. Second, as to Hatch's understanding of Stacie's age, their September 8, 1997, communication contained Stacie's statement that she was 13 years old.

Finally, as to Hatch's understanding of Lisa's age, the evidence permits a trier of fact to infer Hatch knew Lisa's age during their first conversation on [80 Cal. App. 4th 190] September 15 because of the nature of their conversation on that date: Hatch asked her whether she had developed pubic hair and whether her breasts had developed; Hatch knew Lisa would have to sneak out of the house to avoid parental detection. Moreover, during their next conversation three days later, Lisa explicitly stated she was 13. Because Hatch showed neither surprise nor an unwillingness to continue his pursuit after this revelation, but instead told her he was using her picture as a source of erotic stimulation, the evidence permits the inference he was aware of her age from the inception of his communications with Lisa. fn. 12

2. Count 20

Hatch also argues the prosecution did not establish the date Hatch allegedly possessed obscene matter forming the basis of count 20. (§ 311.1.) However, count 20 did not allege possession of obscene matter, but rather the advertisement for sale and distribution of obscene matter depicting a person under the age of 18 years personally engaging in or personally simulating sexual conduct. Count 20 is based on Hatch's September 10, 1997, Internet message to Stacie. The date of this communication is established in the same manner as the dates of the communication set forth in counts 2 through 19. Hatch does not otherwise challenge the sufficiency of the evidence to support count 20.

E. Evidence of Possession of Obscene Matter, Count 21

Count 21 (§ 311.11, subd. (a)) of the information alleged that on or about February 13, 1998, Hatch possessed child pornography. This count is based on the computer and floppy discs containing digitized photographs seized by police during the search of Hatch's home. An expert who viewed the pictures embedded on the floppy discs opined the pictures qualified as child pornography.

Although the date of the search does not appear in the record, testimony shows the search occurred sometime after February 6, 1998, but prior to the filing of the September 3, 1998, information. fn. 13 This evidence is adequate to show Hatch possessed the floppy discs before the filing of the information [80 Cal. App. 4th 191] and within the period of limitations. (People v. Lees, supra, "257 Cal.App.2d at p. 369.)

Hatch argues count 21 must be dismissed because there was no evidence of the date he viewed the digitized photographs contained on the floppy discs. However, count 21 charged Hatch with violating section 311.11, subdivision (a), which proscribes knowingly possessing any matter depicting a person under 18 years of age engaging in or simulating sexual conduct knowing that the matter depicts a person under 18 years of age. As long as Hatch knew the digitized photographs depicted persons under age 18 engaging in sexual conduct, the precise dates on which he may have last viewed the photographs is irrelevant.

There was ample evidence to support the inference Hatch knew the digitized photographs depicted persons under age 18 engaging in sexual conduct. First, there was evidence Hatch was able, at some point in time, to view the photographs. The expert testified that although Hatch's computer did not have the software needed to view the photographs on the discs, the photographs could be viewed either elsewhere or by reinstalling the necessary software, and the photographs had at one time been viewable on Hatch's computer. Other evidence also supports the inference Hatch had the capability of viewing images that, like the images on the floppy disks, were digitized photographs. fn. 14 Finally, a trier of fact could infer that Hatch, having manifested a clear interest in younger girls, would not have possessed these images and a computer capable of viewing them without having viewed them.

Because the evidence permits the inference Hatch had the ability to and did view the proscribed photographs, we consider whether a person viewing these photographs would have known they depicted persons under the age of 18 years engaged in the sexual conduct. The evidence showed that at least one photograph on the floppy discs depicted a child engaged in sexual conduct with an adult male. fn. 15 Other photographs depicting young participants were also found on the discs. The evidence permits the inference that [80 Cal. App. 4th 192] a viewer of these photographs would have known the depicted participants were under the age of 18 years.

For all of the above reasons, and under the standard of review set out earlier, we reject Hatch's various challenges to the sufficiency of the evidence received below.

III. Constitutional Issues

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

A. Standard of Review

[6] An "as applied" challenge to a statute seeks "relief from a specific application of a facially valid statute ... to an individual ... under allegedly impermissible present restraint ... as a result of the manner ... in which the statute ... has been applied." (Tobe v. City of Santa Ana (1995) 9 Cal. 4th 1069, 1084 [40 Cal. Rptr. 2d 402, 892 P.2d 1145].) Such a challenge "contemplates analysis of the facts of a particular case ... to determine the circumstances in which the statute ... has been applied and to consider whether ... the application deprived the individual to whom it was applied of a protected right. [Citations.]" (Ibid.)

[7] Apart from an as-applied challenge, a litigant may also make a challenge to the face of the statute. However, the United States Supreme [80 Cal. App. 4th 193] Court has held that "[a] facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid. The fact that the [Act] might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid, since we have not recognized an 'overbreadth' doctrine outside the limited context of the First Amendment." (United States v. Salerno (1987) 481 U.S. 739, 745 [107 S. Ct. 2095, 2100, 95 L. Ed. 2d 697], italics added.) Thus, a pretrial commerce clause argument by a California resident whose victim also resided in California necessarily is a facial challenge to the statute, rather than an as applied challenge to a particular case, instance or pattern of attempted enforcement of a statute.

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

An exception to the limited scope of a facial challenge is the assertion that a statute is overbroad, restricting speech protected under the First Amendment, and "the defect in the statute is that the means chosen to accomplish the State's objectives are too imprecise, so that in all its applications the statute creates an unnecessary risk of chilling free speech." (Secretary of State of Md. v. J. H. Munson Co. (1984) 467 U.S. 947, 967-968 [104 S. Ct. 2839, 2852-2853, 81 L. Ed. 2d 786].)

B. Section 288.2 and the Commerce Clause

[9] Hatch, as a California resident who is alleged to have engaged in strictly intrastate communications, cannot assert that application of section 288.2 to him poses any unique or particular burden on interstate commerce. Because he is only being charged with intrastate activity, any intrusion on interstate commerce, if it occurs, would occur in all prosecutions under section 288.2. Given these circumstances, his commerce clause challenge is a facial challenge to the statute. (See Tobe v. City of Santa Ana, supra, 9 Cal.4th at p. 1084.) [80 Cal. App. 4th 194]

The central case relied upon by Hatch for the commerce clause point fn. 17 is American Libraries Ass'n v. Pataki (S.D.N.Y. 1997) 969 F. Supp. 160 (Pataki), enjoining enforcement of a New York statute similar to section 288.2, but lacking an intent-to-seduce element. fn. 18 In our view, Pataki rests on premises inapplicable to the present matter. For these reasons, we do not follow Pataki.

The two principal bases for the holding in Pataki are that (1) the very nature of the Internet requires national, rather than state-by-state, regulation, and (2) the statute appeared to operate extraterritorially and thus impose New York policies on other states. We examine each of these bases in turn, and also the relevance of the element of intent, the central distinction between the statute at issue in Pataki and those before us.

1. Need for National Regulation

Pataki's first point, which is at the heart of Hatch's commerce clause arguments, is a sort of preemption argument: that simply logging on the Internet automatically places one beyond the reach of state criminal prosecution. "The Internet, like the rail and highway traffic in [interstate commerce] cases, requires a cohesive national scheme of regulation so that users are reasonably able to determine their obligations." (Pataki, supra, 969 F.Supp. at p. 182.)

New York's attempted regulation, reasoned Pataki, meant that "an Internet user cannot foreclose access to her work from certain states or send differing versions of her communications to different jurisdictions" (Pataki, supra, 969 F.Supp. at p. 183), and thus "[t]he need for uniformity in this unique sphere of commerce requires that New York's law be stricken as a violation of the Commerce Clause." (Ibid.) However, section 288.2 does not criminalize "access," or require "differing versions of ... communication [in] different jurisdictions" (Pataki, supra, 969 F.Supp. at p. 183); it instead [80 Cal. App. 4th 195] proscribes communicating defined matter to a minor for purposes of seduction. Because the predicate assumption underlying Pataki's holding is without any relevance to the case before us, we decline to follow it. fn. 19

While it may be true that Internet communications routinely pass along interstate lines, we do not believe this general proposition can be employed, as suggested by Hatch, to insulate pedophiles from prosecution simply by reason of their usage of modern technology. fn. 20 Such a view of what our Constitution requires is, in our opinion, completely inappropriate.

That is to say, the validity of the Pataki analysis vel non is not controlling here because the intent to seduce element in section 288.2 is a distinction of the utmost significance. While a ban on the simple communication of certain materials may interfere with an adult's legitimate rights, a ban on communication of specified matter to a minor for purposes of seduction can only affect the rights of the very narrow class of adults who intend to engage in sex with minors. We have found no case which gives such intentions or the communications employed in realizing them protection under the dormant commerce clause. fn. 21 [80 Cal. App. 4th 196]

Rather, as another appellate court observed, in rejecting a commerce clause challenge to a New York penal statute fn. 22 with provisions similar to section 288.2, "we cannot conceive of any legitimate commerce involving the sending of graphic images to minors while at the same time attempting to lure them into engaging in sexual activity." (People v. Foley, supra, 257 A.D.2d 243 [692 N.Y.S.2d 248, 256], italics added.) We agree completely.

2. Extraterritorial Enforcement of California Law

The Pataki court also found that "[t]ypically, states' jurisdictional limits are related to geography; geography, however, is a virtually meaningless construct on the Internet." (Pataki, supra, 969 F.Supp. at p. 169.) Hypothesizing that an artist in California seeking to display work harmful to minors to an Oregon buyer "could not employ his virtual [Internet] studio to do so without risking prosecution under the New York law" (id. at p. 174), the Pataki court held that "New York has deliberately imposed its legislation on the Internet and, by doing so, projected its law into other states whose citizens use the Net." (Id. at p. 177.)

The assumption that extraterritorial enforcement of state criminal statutes is normative is incorrect. As our Supreme Court has recently observed with respect to state statutes defining jurisdiction over criminal acts, "[g]enerally, pursuant to section 777, a 'person is liable to punishment by the laws of this State, for a public offense committed by him therein,' except where the offense is cognizable exclusively in federal court. In addition, pursuant to section 27, subdivision (a)(1), persons may be punished 'under the laws of this state' if they 'commit, in whole or in part, any crime within this state.' Pursuant to section 778a, subdivision (a), a person is punishable in the same manner as if the crime had been committed entirely within this state if the person does 'any act' within this state 'in execution or part execution' of an intent to commit a crime anywhere, culminating in its commission within or without the state." (People v. Morante (1999) 20 Cal. 4th 403, 418 [84 Cal. Rptr. 2d 665, 975 P.2d 1071], fns. omitted.) fn. 23 [80 Cal. App. 4th 197]

Contrary to Pataki's conclusion the New York statute "projected its law into other states" (Pataki, supra, 969 F. Supp at p. 177), here there is no reason to suppose California would attempt to impose its policies on other states in light of the relevant California penal statutes covering jurisdiction over public offenses (§§ 27, 777, 778a), fn. 24 which generally bar punishment for wholly extraterritorial offenses. Thus there is no reason at all to assume California prosecutors will attempt to stifle interstate commerce by filing charges for acts committed in other jurisdictions, or where only "de minimis" acts (People v. Morante, supra, 20 Cal.4th at p. 436), such as those hypothesized in Pataki, are committed within this state. Because there is no reason to suppose enforcement of section 288.2 will differ from that which is historically and statutorily permissible, Pataki's second fundamental assumption is thus without relevance to our consideration of the statutes.

In short, given the requirement that those charged must intend to seduce and the additional requirement that they must commit at least an attempt here, no rational analysis supports the proposition section 288.2 imposes any burden on interstate commerce, as (1) such burdens as may exist are not upon any protected right of commerce at all, and (2) enforcement of the statute is not likely to significantly, or at all, burden interstate commerce.

Thus, we must reject Hatch's contention that on its face section 288.2 unduly burdens interstate commerce.

C. Section 288.2 and the First Amendment

Relying on the exception to the limited scope of facial challenges that arises under the First Amendment (Secretary of State of Md. v. J. H. Munson Co., supra, 467 U.S. at pages 967-968 [104 S.Ct. at pages 2852-2853]), Hatch asserts that without regard to the status of his own speech, section 288.2 will unduly chill otherwise protected speech. In contrast to the previous challenge, however, in which Hatch cited us primarily to a decision of a federal district court, the authority primarily relied upon by Hatch is a recent case from the United States Supreme Court, whose constitutional [80 Cal. App. 4th 198] adjudications, in marked contrast to those of federal district courts, are binding on us. fn. 25

1. Reno and the CDA

The case relied upon by Hatch is of course Reno, supra, 521 U.S. 844, a challenge to the earlier cited provisions of the CDA, making it a criminal offense to make an indecent transmission or a patently offensive display to a minor. In Reno, the court noted but did not decide the proposition that the Internet, by reason of its very character, may not constitutionally be subject at all to congressional regulation for indecency. fn. 26 We examine each of these facets in turn.

a. Indecent Transmission

Title 47 United States Code section 223(a), set out earlier, provides in pertinent part for a prison term for one transmitting interstate or foreign telecommunications containing "any comment, request, suggestion, proposal, image, or other communication which is obscene or indecent, knowing that the recipient ... is under 18 years of age." The statute did not however define "indecent" fn. 27 as therein used, nor require that the prohibited material be that "utterly without redeeming social importance for minors." (Ginsberg v. New York (1968) 390 U.S. 629, 646 [88 S. Ct. 1274, 1284, 20 L. Ed. 2d 195].)

[10] The requirements for defining that matter which may be prohibited were set out in Miller v. California (1973) 413 U.S. 15, 24 [93 S. Ct. 2607, 2615, 37 L.Ed.2d 419]: "(a) whether 'the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest [citations]; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by [80 Cal. App. 4th 199] the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value."

The CDA statute defined prohibited material by reference to only one of the three Miller prongs. The Reno court found the absence of the other Miller criteria in the CDA prohibition to be fatal, in particular because omitting the societal value requirement essentially foreclosed appellate limitation upon the reach of the statute, leaving all contested issues merely ones of local fact. (Reno, supra, 521 U.S. at pp. 873-874 [117 S.Ct. at pp. 2345-2346].)

Because "[t]he breadth of this content-based restriction of speech" was excessive (Reno, supra, at p. 879 [117 S.Ct. at p. 2348]), the Reno court found the indecent transmission provision "threatened to torch a large segment of the Internet community" and thus the provision was unconstitutional. (Reno, supra, 521 U.S. at p. 882 [117 S.Ct. at pp. 2349-2350.)

b. Patently Offensive Display

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

Here again, the Reno court was unable to sustain the statute, noting that the "patently offensive" language was qualified only by reference to " 'sexual or excretory activities or organs,' " and " 'measured by contemporary community standards.' " (Reno, supra, 521 U.S. at p. 871, fn. 35 [117 S.Ct. at p. 2344].) Such vagueness resulted in a situation where "[i]n order to deny minors access to potentially harmful speech, the CDA effectively suppresses a large amount of speech that adults have a constitutional right to receive and to address to each other." (Reno, supra, 521 U.S. at p. 874 [117 S.Ct at p. 2346].)

In sum, the Reno court found that "the CDA lacks the precision that the First Amendment requires when a statute regulates the content of speech," as [80 Cal. App. 4th 200] the CDA did. (Reno, supra, 521 U.S. at p. 874 [117 S.Ct. at p. 2346].) Central to the holding was the court's finding that the CDA "would confer broad powers of censorship, in the form of a 'heckler's veto,' upon any opponent of indecent speech who might simply log on and inform the would-be discoursers that his 17-year-old child ... would be present." (Reno, supra, 521 U.S. at p. 880 [117 S.Ct. at p. 2349]; and see discussion, id., at pp. 874-880 [117 S.Ct. at pp. 2346-2349].)

2. Application to This Case

[11] Relying on the language of Reno, Hatch urges that section 288.2, like the CDA sections considered in Reno, is overbroad. Reno, however, concerned a blanket prohibition of dissemination of harmful matter to minors, which had the essential effect of limiting all relevant discourse to a child's level. fn. 29

There is simply no comparable effect upon any otherwise protected communications by reason of section 288.2, which prohibits sending (1) defined harmful matters (2) to minors and (3) for the purpose of seducing them. fn. 30

Reno rested its overbreadth finding on two points: (1) banned matter was not defined so as to exclude protected communication; and (2) banned matter was defined to refer to a necessarily variable community standard. In this case, however, banned matter is properly defined, and there is, as set forth in section 313, a single statewide community standard test, which precludes possible inconsistent results for varying local interpretations of the same acts. fn. 31 [80 Cal. App. 4th 201]

The central point here is that a person charged with violation of section 288.2 is not a "discourser" (Reno, supra, 521 U.S. at p. 880 [117 S.Ct. at p. 2349]) seeking merely to communicate indecency to other adults and innocently running afoul of an overbroad statute. Rather, the statute punishes those who seek not discourse, but intercourse and other sexual activity, and who have identified intended victims for pursuit and seduction.

For this reason, not only is Reno inapplicable to this case, but the case of People v. Barrows (1998) 177 Misc.2d 712 [677 N.Y.S.2d 672], invalidating the earlier referenced New York penal statute on overbreadth grounds for the second Reno rationale, variation in community standards, has no application to this case.

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

It is precisely this distinction in the basic type of the communication which is crucial. An overbroad statute chills classical forum fn. 32 communications, such as those that occur in the chat rooms frequented by Hatch. Section 288.2, in contrast, only addresses those communications in which an adult seeks to seduce a child.

In the case of forum communications, an overbroad statute necessarily chills protected adult communications by permitting the heckler's veto asserted by or on behalf of a minor. In the case of that species of dialogue in which a pedophile stalks an identified minor child by sending him or her direct Internet messages, no content-restricting rules permitting a heckler's veto are involved. fn. 33 The distinction, as we have noted earlier, is critical. The statutes rejected in Reno and Pataki involved cases where the rights of [80 Cal. App. 4th 202] adults to receive material could have been diminished by a statute prohibiting certain communication to children. No such danger exists under section 288.2. fn. 34

The activity prohibited by the California statute is far more akin to conduct than communication. As the California Supreme Court has recently determined, in the context of review of an ordinance prohibiting the "aggressive solicitation" of money, fn. 35 although "some recent decisions of the California and federal intermediate appellate courts have concluded that, under the California Constitution, ordinances directed at solicitation should be viewed as [having to] satisfy the strict scrutiny test," those decisions were erroneous. (Los Angeles Alliance for Survival v. City of Los Angeles (2000) 22 Cal. 4th 352, 357 [93 Cal. Rptr. 2d 1, 993 P.2d 331].)

Instead, characterizing the ordinance as "directed at activity" (Los Angeles Alliance for Survival v. City of Los Angeles, supra, 22 Cal.4th at p. 357), and noting the long-standing California precedents treating statutes on solicitation as regulating the time, place and manner or conduct of the solicitor rather than the content of his or her speech, the court went on to hold that "a court should avoid a constitutional interpretation that so severely would constrain the legitimate exercise of government authority in an area in which such regulation long has been acknowledged as appropriate." (Id. p. 378.) Thus, the court held that "regulations ... that single out the public solicitation of funds for distinct treatment, should not be viewed as ... constitutionally suspect." (Ibid.) fn. 36 [80 Cal. App. 4th 203]

The above reasoning, we believe, is fully applicable to the circumstances of this case. Section 288.2 is not directed at speech, but at the activity of attempting to seduce a minor. While one might argue that under Reno adults are free to address indecencies to an Internet audience while indifferent to the presence of children in that audience, it is only when the focus has shifted to the use of such communicated indecency in the attempted seduction of a child, a process we apprehend will be accomplished by direct, one-to-one communication that the present statute's prohibitions are violated. Thus, the only chilling effect of section 288.2 is on pedophiles who intend that their statements will be acted upon by children. Given the intention with which they are made, such statements are not entitled to the extraordinary protection of the First Amendment (Los Angeles Alliance for Survival v. City of Los Angeles, supra, 22 Cal.4th at p. 378; People v. Zimmerman, supra, 15 Cal.App.4th at p. Supp. 11.) fn. 37

Finally, we note that the California Supreme Court has not only stressed the strength of the state's interest in the area, but also noted that section 288.2 prohibits "criminal sexual misconduct." fn. 38 Because it is primarily [80 Cal. App. 4th 204] conduct rather than speech that is subjected to regulation, the statute does not infringe upon the First Amendment. fn. 39

In light of the foregoing, we are compelled to uphold the legislative enactment. "[S]ince it is manifest that the ordinance is capable of applications which do not offend the Constitution in the manner suggested by petitioners ..., the ordinance must be upheld." (Tobe v. City of Santa Ana, supra, 9 Cal.4th at p. 1102.)

Hatch has not set out any credible scenario under which the application of section 288.2 to those persons who are liable to punishment under California law is constitutionally infirm. fn. 40 We thus deny Hatch's constitutional arguments, instead deferring to "the legitimate exercise of government authority in an area in which such regulation long has been acknowledged as appropriate." (Los Angeles Alliance for Survival v. City of Los Angeles, supra, 22 Cal.4th at p. 378.)

IV. Statutory Construction

[12a] We finally must determine whether, as a matter of statutory construction, the section 288.2, subdivision (a), prohibition on the attempted seduction of minors with harmful matter "by any means" includes Internet communications as Hatch maintains that it does not. fn. 41 As will appear, the question answers itself.

A. Standard of Review

[13] The fundamental consideration is that we must adhere to the plain meaning of the statutory language in question. Our Supreme Court has often [80 Cal. App. 4th 205] reiterated "the rule that courts should give statutory words their plain or literal meaning unless that meaning is inconsistent with the legislative intent apparent in the statute. [Citation.]" (People v. Allen (1999) 21 Cal. 4th 846, 859 [89 Cal. Rptr. 2d 279, 984 P.2d 486].)

B. Application

[12b] Hatch argues that the phrase "by any means" should not be read to include the Internet, but we are unable to perceive any ambiguity whatsoever in the statutory language: "any means" means "any means," and thus necessarily does include usage of the Internet to affect the prohibited acts. fn. 42 The subsequent passage of the more specific section 288.2, subdivision (b), which is explicitly applicable to Internet communications, does nothing to alter the fact of the necessarily plain meaning of the prior statute.

[14] " 'It is fundamental that legislation should be construed so as to harmonize its various elements without doing violence to its language or spirit.' [Citation.]" (People v. Garcia (1999) 21 Cal. 4th 1, 6 [87 Cal. Rptr. 2d 114, 980 P.2d 829].) [12c] Absent any ambiguity, and in order to harmonize the two statutes, the prior statute must be read to also include Internet communications.

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

Disposition

The petition for writ of mandate is denied.

Haller, J., concurred.

CONCURRING AND DISSENTING:

McDONALD, J.-

Concurring and Dissenting.Although I concur with the result of the majority opinion that the trial court correctly denied Hatch's motion to set aside counts 1 and 20 through 23, I do not concur that Penal Code section 288.2, subdivision (b) fn. 1 is constitutional under the commerce clause and the First Amendment. I believe, as have other courts that have [80 Cal. App. 4th 206] considered substantively indistinguishable statutes, that facial challenges under the commerce clause and the First Amendment, when properly analyzed, compel the conclusion that section 288.2, subdivision (b) is unconstitutional. I also do not concur that section 288.2, subdivision (a) prohibits distribution of harmful matter over the Internet. I believe that under traditional principles of statutory construction section 288.2, subdivision (a) does not apply to Internet communications. The statutory construction principle relied on by the majority to reach a contrary conclusion"the question answers itself" (maj. opn., ante, pt. IV.) is one heretofore unknown to me. Because section 288.2, subdivision (b) is unconstitutional and section 288.2, subdivision (a) is inapplicable, I would direct the trial court to dismiss counts 2 through 19.

The majority, expressing pursuit of the admirable goal of brevity in appellate court opinions, announces it will disregard numerous opinions from other jurisdictions because of the "limited precedential value" of those opinions. (Maj. opn., ante, at p. 194, fn. 17.) Although the goal of brevity is laudable, I cannot similarly discount the value of those other courts' analyses. Those courts have in my view correctly applied the same commerce clause and First Amendment principles that should guide our constitutional analysis here. I recognize the majority states section 288.2 has the crucial or critical distinguishing characteristic of an intent to seduce element not contained in some statutes considered by other courts. However, the majority does not explain how that crucial or critical difference in the statutory language vitiates the facial commerce clause and First Amendment defects in the statute. Accordingly, although my discussion of cases from other jurisdictions lengthens this opinion, I do not share the majority opinion's view that those cases are irrelevant. Paraphrasing Robert Frost, two roads diverged and the majority took the one less traveled by, and that has made all the difference.

Because of the brevity of the majority's constitutional and statutory interpretation analysis, I am compelled to conduct a de novo analysis of the validity of section 288.2, subdivision (b) under the commerce clause and the First Amendment and to explain in detail my interpretation of the scope of section 288.2, subdivision (a). I do not understand the majority to have conducted a facial analysis in response to Hatch's facial challenge. "A facial challenge to the constitutional validity of a statute ... considers only the text of the measure itself, not its application to the particular circumstances of an individual." (Tobe v. City of Santa Ana (1995) 9 Cal. 4th 1069, 1084 [40 Cal. Rptr. 2d 402, 892 P.2d 1145].) The majority rejects Hatch's commerce clause facial challenge because the statute, as applied to Hatch's conduct in California sending harmful matter to California minors, does not unduly [80 Cal. App. 4th 207] burden protected interstate commerce. An as-applied analysis is not a facial analysis. The majority rejects Hatch's First Amendment facial challenge because the statute, as applied to Hatch's conduct in California sending harmful matter to California minors with the requisite intent, does not infringe on protected speech. Again, an as-applied analysis is not a facial analysis.

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

I. The Constitutional Issues

Hatch argues section 288.2, subdivision (b) is facially invalid under article I, section 8 of the United States Constitution (the commerce clause), and section 288.2, subdivisions (a) and (b) are facially invalid under the First and Fifth Amendments to the United States Constitution.

Section 288.2 provides in part that:

"(a) Every person who, with knowledge that a person is a minor, or who fails to exercise reasonable care in ascertaining the true age of a minor, knowingly distributes, sends, causes to be sent, exhibits, or offers to distribute or exhibit by any means ... any harmful matter, as defined in Section 313, to a minor with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of that person or of a minor, and with the intent or for the purpose of seducing a minor, is guilty of a public offense .... [¶] ... [¶]

"(b) Every person who, with knowledge that a person is a minor, knowingly distributes, sends, causes to be sent, exhibits, or offers to distribute or exhibit by electronic mail, the Internet ... or a commercial online service, any harmful matter, as defined in Section 313, to a minor with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of that person or of a minor, and with the intent, or for the purpose of seducing a minor, is guilty of a public offense ...." [80 Cal. App. 4th 208]

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

A. Section 288.2, Subdivision (b) and the Commerce Clause

I first evaluate section 288.2, subdivision (b) under the commerce clause. I begin with an overview of the applicable principles and then examine other courts' application of those principles to analogous sister state statutes.

1. General Principles

The commerce clause has two aspects: it is an affirmative grant of power to the federal government to regulate interstate commerce, and it restricts the power of states to regulate interstate commerce. (Pacific Merchant Shipping Assn. v. Voss (1995) 12 Cal. 4th 503, 514-515 [48 Cal. Rptr. 2d 582, 907 P.2d 430].) The state restriction aspect is commonly referred to as the dormant Commerce Clause (see Barclays Bank PLC v. Franchise Tax Bd. of Cal. (1994) 512 U.S. 298, 310, fn. 9 [114 S. Ct. 2268, 2276, 129 L.Ed.2d 244]). State laws that impose discriminatory restrictions on interstate commerce are virtually per se invalid. fn. 2 State laws that regulate activity requiring a national regulatory scheme and impose multiple inconsistent burdens on interstate commerce may also be invalid. fn. 3 (See, e.g., CTS Corp. v. Dynamics Corp. of America (1987) 481 U.S. 69, 88-89 [107 S. Ct. 1637, 1649-1650, 95 L. Ed. 2d 67]; Southern Pacific Co. v. Arizona (1945) 325 U.S. 761, 767 [65 S. Ct. 1515, 1519, 89 L. Ed. 1915]; Bibb v. Navajo Freight Lines (1959) 359 U.S. 520, 529 [79 S. Ct. 962, 967-968, 3 L. Ed. 2d 1003].) State laws that regulate activities outside the state's borders may be invalid; a state may not export its domestic policies into other states and therefore may not enact laws regulating activities occurring outside its borders. (Edgar v. MITE Corp. [80 Cal. App. 4th 209] (1982) 457 U.S. 624, 641-643 [102 S. Ct. 2629, 2640-2641, 73 L. Ed. 2d 269]; Baldwin v. G. A. F. Seelig (1935) 294 U.S. 511, 521 [55 S. Ct. 497, 499-500, 79 L. Ed. 1032, 101 A.L.R. 55].) Finally, a state law that is not invalid under the foregoing tests may be invalid under the balancing test articulated in Pike v. Bruce Church, Inc. (1970) 397 U.S. 137 [90 S. Ct. 844, 25 L. Ed. 2d 174]. (Campeau Corp. v. Federated Dept. Stores (S.D. Ohio 1988) 679 F. Supp. 735, 738-739 [court evaluates statute under Pike test only if statute first passes tests that prohibit discriminatory statutes and statutes imposing inconsistent burdens].) Under Pike, the court balances the burden placed on interstate commerce by the state law against the local benefit derived from the state law (Pike, supra, at p. 142 [90 S.Ct. at p. 847]) and the state law is invalid if the burden on interstate commerce is clearly excessive compared to the putative local benefit. (Ibid.)

2. The Pataki Decision

In American Libraries Ass'n v. Pataki (S.D.N.Y. 1997) 969 F. Supp. 160 (Pataki), the court evaluated a New York statute similar to section 288.2, subdivision (b) that criminalized knowingly communicating harmful matter to minors over the Internet. fn. 4 The Pataki court evaluated the nature of the Internet, noting the Internet is a global, decentralized and borderless communications medium in which participants communicate in a variety of ways, including one-to-one messaging (such as e-mail), one-to-many messaging (such as "listserv" and "mail exploders"), distributed message databases (such as "Usenet newsgroups") and remote information retrieval (such as Web sites). (969 F.Supp. at pp. 164-165 & 167.) The Internet permits participants to communicate anonymously by using pseudonyms without disclosing either the age or geographic location of the participants. (Ibid.)

Pataki first concluded that because the New York law regulated a mode of communications used as a conduit for interstate commerce, it was subject to Commerce Clause scrutiny. It rejected the state's argument that because the law was directed at conduct that was not commerce, the commerce clause was inapplicable. It reasoned that the dormant commerce clause has been [80 Cal. App. 4th 210] applied to laws that regulated activities undertaken without a profit motive (see Edwards v. California (1941) 314 U.S. 160, 172, fn. 1 [62 S. Ct. 164, 166, 86 L. Ed. 119] [law prohibiting transportation of indigents into California invalid under dormant commerce clause and it is "immaterial whether or not the transportation is commercial in character"]) and that the concept of commerce is given broad meaning by the courts. (See Camps Newfound/Owatonna, Inc. v. Town of Harrison (1997) 520 U.S. 564 [117 S. Ct. 1590, 137 L. Ed. 2d 852].) Moreover, because the Internet has become an important conduit for commercial activity, regulations affecting it are subject to commerce clause scrutiny. fn. 5 (Pataki, supra, 969 F.Supp. at pp. 169-173.)

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

The commerce clause's ban on state regulations that have the effect of exporting the state's domestic policies into other states (Edgar v. MITE Corp., supra, 457 U.S. 624, 642-643 [102 S. Ct. 2629, 2640-2641]; Healy v. The Beer Institute, supra, 491 U.S. 324, 336 [109 S. Ct. 2491, 2499]) convinced the Pataki court that the New York statute was per se invalid. The Pataki court reasoned that: "The Edgar/Healy extraterritoriality analysis rests on the premise that the Commerce Clause has two aspects: it subordinates [80 Cal. App. 4th 211] each state's authority over interstate commerce to the federal power of regulation (a vertical limitation), and it embodies a principal of comity that mandates that one state not expand its regulatory powers in a manner that encroaches upon the sovereignty of its fellow states (a horizontal limitation)." (969 F.Supp. at pp. 175-176.)

Pataki concluded that the nature of the Internet "makes it impossible to restrict the effects of the [law] to conduct occurring within New York" (Pataki, supra, 969 F.Supp. at p. 177); an Internet user may not intend his messages to be accessible in New York but cannot prevent New Yorkers from accessing his messages or prevent messages directed to recipients in other states from passing through New York computers. "Thus, conduct that may be legal in the state in which the user acts can subject the user to prosecution in New York and thus subordinate the user's home state's policyperhaps favoring freedom of expression over a more protective stanceto New York's local concerns." (Ibid.) Pataki held that New York's regulation of the Internet had the effect of projecting New York's laws into other states and was per se invalid under the Edgar/Healy extraterritoriality analysis of the commerce clause. (Ibid.)

Pataki further concluded that the nature of the Internet requires a national uniform regulation because Internet users would be threatened by multiple inconsistent burdens if each state implemented its own Internet regulations. Pataki cited several cases in which laws purporting to regulate only intrastate matters of local concern were struck down under the commerce clause because they affected a form " 'of the national commerce which, because of the need of national uniformity, demand that their regulation, if any, be prescribed by a single authority.' [(Quoting Southern Pacific Co. v. Arizona, supra, 325 U.S. at p. 767 [65 S.Ct. at p. 1519].)]" (Pataki, supra, 969 F.Supp. at pp. 181-182.) Pataki reasoned that the Internet, like the rail and highway regulations at issue in Southern Pacific Co. and Bibb v. Navajo Freight Lines, supra, 359 U.S. 520, would be severely burdened if users were "lost in a welter of inconsistent laws, imposed by different states with different priorities," and concluded the Internet "requires a cohesive national scheme of regulation so that users are reasonably able to determine their obligations." (Pataki, supra, at p. 182.) The potential for multiple inconsistent burdens was increased by the fact that the New York law banned harmful matter using the Miller v. California (1973) 413 U.S. 15 [93 S. Ct. 2607, 37 L. Ed. 2d 419] (Miller) standard, which incorporates a patently offensive to prevailing standards in the community test. Pataki noted that because there is no single prevailing community standard in the United States, "even were all 50 states to enact laws that were verbatim copies of the New York Act, Internet users would still be subject to discordant [80 Cal. App. 4th 212] responsibilities"; matter not deemed harmful in the state from which it was sent could be deemed harmful in states in which it was received. (Pataki, supra, at pp. 182-183.) Because an Internet user cannot know the geographic location of the message recipient or foreclose access to the message, he or she would have to (1) comply with the most stringent standard, or (2) forgo communicating matter protected in the user's state, or (3) risk prosecution based on the geographic fortuity of the unknown recipient. Based on this analysis Pataki concluded: "Further development of the Internet requires that users be able to predict the results of their Internet use with some degree of assurance. Haphazard and uncoordinated state regulation can only frustrate the growth of cyberspace. The need for uniformity in this unique sphere of commerce requires that New York's law be stricken as a violation of the Commerce Clause." (Id. at p. 183.)

The Pataki commerce clause analysis was followed in Cyberspace, Communications, Inc. v. Engler (E.D.Mich. 1999) 55 F. Supp. 2d 737 (Engler) and in American Civil Liberties Union v. Johnson (10th Cir. 1999) 194 F.3d 1149 (Johnson). Engler held unconstitutional under the commerce clause a Michigan statute that criminalized Internet communications to minors of sexually explicit matter harmful to minors (Mich. Comp. Laws § 722.671 [Mich. Stat. Ann. § 25.254]). The Engler court noted the extraterritorial effect of the statute and found it a per se violation of the commerce clause. (Engler, supra, at p. 751.) The court also found the statute unconstitutional under the Pike balancing test. (Ibid.) Johnson held unconstitutional under the commerce clause a New Mexico statute that criminalized dissemination by computer of harmful matter to a minor. (N.M. Stat. Ann. § 30-37-3.2, subd. A.) The Johnson court noted that the statute "represents an attempt to regulate interstate conduct occurring outside New Mexico's borders, and is accordingly a per se violation of the Commerce Clause." (Johnson, supra, at p. 1161, fn. omitted.) The Johnson court also found the statute unconstitutional under the Pike balancing test and the need for uniform regulation test. (Id. at pp. 1161-1162; see also People v. Barrows (1998) 177 Misc.2d 712 [677 N.Y.S.2d 672, 685] (Barrows II); but see People v. Foley (1999) 257 A.D.2d 243 [692 N.Y.S.2d 248, 256] (Foley).)

3. Analysis

The actus reus of a section 288.2, subdivision (b) violation is the act of distributing harmful matter over the Internet to a known minor regardless of whether the sender is physically in California at the time of the transmission. Moreover, although the sender must have specific intents and purposes and know the recipient is a minor, he need not know the minor he intends to seduce is in California. Because the statute regulates conduct in other states and burdens the use of a conduit of interstate commerce, its constitutionality [80 Cal. App. 4th 213] must be evaluated under the commerce clause. (Pataki, supra, 969 F.Supp. at pp. 169-174.) The majority opinion does not dispute the Internet is a conduit of interstate commerce or that section 288.2, subdivision (b) must survive Commerce Clause scrutiny; however, the majority asserts the statute does not seek to regulate activity outside California. Neither the text nor the legislative history of the statute supports the majority's position. On its face, the statutory violation occurs once the harmful matter is transmitted and contains no limitation to California-domiciled transmitters or recipients. Moreover, the legislative history shows that one of the evils prompting the enactment of section 288.2, subdivision (b) was that sexual predators in other states were using the Internet to lure children to cross state lines to engage in sexual liaisons. (See Sen. Com. on Pub. Safety, Analysis of Assem. Bill No. 181 (1997-1998 Reg. Sess.) as amended Apr. 8, 1997, par. 2, at