Hsu

Patrick Chungliang Hsu appeals his conviction by plea of nolo contendere of two counts of attempting to distribute or exhibit lewd matter to a minor by the Internet (Pen. Code, §§ 288.2, subd. (b), 664). He contends his conviction must be reversed because section 288.2, subdivision (b) violates the commerce clause (U.S. Const., art. I, § 8, cl. 3) and the First Amendment of the United States Constitution. We conclude that section 288.2, subdivision (b) passes constitutional muster, and therefore affirm Hsu’s conviction.

Background

As a result of an undercover investigation on the Internet, Detective Steven McEwan of the San Jose Police Department child exploitation unit arrested an individual (not Hsu) carrying two pictures of a naked 14-year-old boy. McEwan located the boy in Walnut Creek, and the boy allowed McEwan to use his Internet service provider and assume his screen name. On consecutive days Hsu initiated two “instant messages” with the boy. McEwan, pretending to be the boy, responded. During the ensuing electronic conversations, Hsu sent two photographs of himself, one lying on his bed wearing underwear, and one seated, shirtless and wearing unzipped jeans. He…