Hatch

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 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 2 as a means of communication expanded rapidly, as it continues to do. 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…

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) 1 is constitutional under the commerce clause and the First Amendment. I believe, as have other courts that have *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,…

Office of the District Attorney, Paul J. Pfingst, District Attorney, Patricia Atwill, Thomas F. Mcardle and James E. Atkins, Deputy District Attorneys, for Real Party in Interest.

Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Carl H. Horst and Arlene Aquintey Sevidal, Deputy Attorneys General, Amicus Curiae for Real Party in Interest.

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.

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 [1] section 288.2, subdivision (a). This statute, which has been construed by no reported decision, made it a criminal offense to send,…