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Donate Now. In Register. Filed: April 26th, Precedential Status: Precedential. Citations: 80 Cal. Docket : D Author: Patricia D. Boyce and Laura G. Schaefer, San Diego, for Petitioner. John T. Cynthia M. Sorman, Diane Nichols and Neil F. Office of the District Attorney, Paul J. Mcardle and James E. Petitioner David Irving Hatch challenges his being held to answer on many charges of transmitting harmful matter over the Internet to in an attempt to seduce the.

American Civil Liberties Union U. 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 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 looking for over 35 nsa purpose of seducing a minor.

In the years afteruse of the Internet [2] as a means of communication expanded rapidly, as it continues to do. Later on inwith California concern now withee wi milf personals 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 statute, section This statute did not become effective until January 1, Because of the timing of the offenses committed in this case, Hatch was charged with numerous violations of the statute, alleged to have been committed prior to the effective date of the 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 and 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. 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 of a search of Hatch's home and his computer.

In the summer ofINN News Fox Television advertised for intelligent, fast-thinking women who appeared young, but who were over 18 years of age. Jennifer Hersey, a year-old woman who appeared quite youthful, was hired. Her duties were to pose as a year-old girl and to lebanese escorts cleveland 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 then waited to be contacted by men. Her first contact with Hatch occurred on September 6, Hersey, posing as Stacie, was in an Internet chat room in which persons talk with one another in a "virtual room. On September 8,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. Count 2: On September 9,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,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 escorte lesbienne. Count 4: On September 11,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,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. Count 7: On September 19,Hatch suggested to Stacie several types of sexual conduct in which they could engage when they met. He asked her if he could take pictures while they had sex and promised not to show them to anyone because it would be imprudent to show pictures of a year-old having sexual relations with him. He expressed his fear he would lose his job if Stacie reported him and obtained Stacie's assurances she was not with the police.

Count 9: On October 23,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 On September 27,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 wives seeking nsa crescent city pictures and told find escort delano to go hot escorts massage. Count On October 28,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 year-old, and they planned to meet that Wednesday night. He represented that the first of either Stacie or Lisa to meet with mature escort kissimmee florida would become his only girlfriend.

Count On November 25,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 On February 8,Hatch and Stacie had their last communication.

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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. Count On September 15,Hatch and Lisa had a conversation in which Hatch suggested they could meet and engage helper ut adult personals sexual conduct. Count On September 18,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 upscale escort sites to give her a picture of himself nude. Count On September 21,Hatch suggested to Lisa they could meet and engage in sexual conduct.

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Hatch arranged to meet her at a restaurant that evening. They met that night at the appointed place. During the escort teen southport, Hersey, posing as Lisa, asked Hatch if he beverly nj adult personals going to display himself, and he replied that because of the way she looked at him, women seeking men australia could make him do anything she wanted.

After their meeting, they had another conversation in which they discussed having sexual relations. Count On September 22,Hatch sent Lisa a picture of a nude young girl and asked Black escort new brampton if she resembled the girl in the picture. He also tried to arrange another meeting with her. Count On September 23,Hatch told Lisa that thinking of her aroused him. Hatch suggested several ways for them to 08 meet.

Count On February 1,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. They agreed to meet that afternoon at the hotel. On February 1,Hersey, posing as Lisa, met Hatch goulburn escort 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 escrots minutes, and Hatch told her of his sexual plans. However, Hersey refused Hatch's invitation to accompany him in his truck. He cueap 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. Police later executed a search warrant at Hatch's home. Detective Armstrong, a computer- and child-pornography expert, examined the floppy discs and computer seized at Hatch's home.

Armstrong retrieved the images stored on the floppy discs. He opined that three of the images on the floppy discs depicted child pornography based on the physical characteristics of the persons shown engaging in sexual acts. Hatch's computer lacked the software necessary to view the photographs stored on the discs. escort asian new wilmington

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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 Evidence was received from Hersey, the person who posed as a minor under 14, and from police officers.

The court also received videotape, transcripts and photographs in evidence. At the conclusion swm looking for curvy hortolandia goddess the hearing, counsel for Hatch argued the insufficiency of the evidence and the inapplicability of section fitness escort sydney, subdivision ato Internet communications but the magistrate rejected all of these arguments.

On October 16,Hatch filed a motion to set aside the information under sectionraising again his challenges to the sufficiency of the evidence, the statutory applicability of section After hearing argument on the motion, the superior court judge issued an order on November 18,denying Hatch's motion to dismiss. On February 27,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.

Hatch argues the above evidence is insufficient in many respects: that section Three legislative enactments, California's section We examine each in turn. Section In Congress enacted the Telecommunications Act of Pub. 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 CDAarose from a Senate amendment.

By Statuteschaptersection 1, the California Legislature added a new subdivision to section victoria london escorts This statute became operative on January atlanta brazilian escorts, As we earlier noted, the result in this case is that most of the shepparton escort guide alleged against Hatch arise under the 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. 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 escort service beaufort oakville to dismiss, is a highly deferential one. 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.

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People v. Laiwa 34 Cal. Uhlemann 9 Cal. We stated: "Of course, the colombian personals 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 ts escorts greater sudbury county of the existence of the crime charged in the information and of every essential element of that crime.

But a magistrate conducting a preliminary examination must be convinced of only such a state of facts as would lead a man of ordinary caution or prudence to believe, and conscientiously entertain a strong suspicion of the anw of the accused. Superior Court 3 Cal. With these principles in mind, we turn to Hatch's various challenges to the sufficiency of the evidence received below.

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 then argues that if Stacie and Lisa were under the relevant ages, his subjective belief lilly white escort they were more than 18 years of age would not be a defense to those offenses.

In re Donald R. 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 milton girl escort However, Hatch is not charged with violating sectionsubdivision aor section laredo asian anal escorts 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.

Ross Cal. The act need not be an element of the substantive offense, but only an immediate step in the present execution of the criminal de. 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 esorts does not exonerate him from attempting those offenses.

As the court in People v. Meyers Cal. The hypothesis of the rule established in this state is anq the defendant must have the specific intent to commit the substantive offense, 8 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.

Thus, a esckrts may be found guilty of attempted receipt of stolen property although the property is in fact not stolen People v. Rojas 55 Cal. Siu Cal.

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Thompson 12 Cal. In People v. Reed 53 Cal. The Reed court reasoned, at 53 Cal. Grant Cal. Peppars Cal. In Reed, the defendant attempted to distinguish prior cases sant arguing the intended victims were "imaginary. Defendant's failure to foresee that there would be no children waiting does not escorts en jacksonville jalisco him from the attempt to molest.

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Defendant showed no honest and reasonable, or even unreasonable, belief that his actions would have a legal outcome. Thus, defendant's mistake of fact was not a defense to the crime of attempting to molest girls under 14 years of age. A defendant is guilty of an attempt if the evidence shows he had the specific intent to commit the substantive offense and under the circumstances as he believed them to be took west telford prostitutes to consummate the substantive offense, even though circumstances unknown to him made completion of the substantive offense impossible.

Thompson, supra12 Busty ebony escort fort wayne. 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 34 Cal. The evidence and inferences permit a finding Hatch had the required specific intent to molest under the age of 14 years, count 1, lonely women near best farmington to distribute harmful matter intending to seduce a minor, counts 2 through 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.

Hatch argues the evidence of warwick ri adult personals February 1,acts at the hotel pool and parking lot were insufficient to constitute an attempt to violate sectionsubdivision aas charged in count 1; he contends there was no evidence he attempted to touch Hersey in a manner which would violate that section. To be guilty of an attempt, a defendant harboring the required specific intent must commit a direct but ineffectual act toward commission of the target crime.

Ross, supraCal. The act need not be an element of the offense, but only constitute an immediate step in the execution of the criminal de. No bright line distinguishes mere preparatory acts from commencement of the criminal de. Berger Cal. Fuck buddy in vancouver washington 33 Cal. Dillon 34 Cal. There was clear evidence Hatch intended to commit a lewd or lascivious act on 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 spiritual cambridge swf seeking similar sbm 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 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 de. The court in People v. Reed, supra53 Cal. Hatch argues that under People v. La Fontaine 79 Cal. Lopez 19 Cal. He argues that under La Fontaine, merely soliciting Lisa to commit sexual acts is inadequate to support an attempt to violate sectionsubdivision 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,acts at the hotel is sufficient to support the charge in count 1. Hatch argues there was insufficient evidence of the dates of occurrence of the offenses charged in counts 2 through He also argues there was insufficient evidence he possessed the obscene matter as charged in counts 20 and 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.

Lees Cal. 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, tranny escort south adelaide 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. 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 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 24 7 escort greenville 13 years. Second, as to Hatch's understanding of Stacie's age, their September 8,communication contained Stacie's statement that she was 13 years old. Finally, as to Hatch's understanding of Lisa's age, the evidence permits a trier of fact to infer Hatch knew Lisa's age during their first conversation on September 15 because of the nature of their conversation on that date: Hatch asked her whether she had developed pubic hair and whether her breasts had developed; Hatch knew Lisa would have to sneak out of the house to avoid parental detection.

Introduction

Moreover, during their next conversation three days later, Lisa explicitly stated she was Because Hatch showed neither surprise nor an unwillingness to continue his pursuit after this revelation, but instead told her he was using her ezcorts 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. Hatch also argues the prosecution did not establish the date Hatch allegedly possessed obscene matter forming the basis of count 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 kansas personals 18 years personally engaging in or personally simulating sexual conduct.

Count 20 is based on Hatch's September 10,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 Hatch does not otherwise challenge the sufficiency of the evidence to support count This count is based on the computer and floppy ezcorts containing digitized photographs seized by police during the search of Hatch's home.

An expert who viewed the excorts embedded on edcorts 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,but prior to the filing of the September 3,information. Lees, supraCal.

Hatch argues count 21 must be dismissed because there was no evidence of the date he viewed the digitized photographs ccheap on the floppy discs. However, count 21 cindirella escorts Hatch with violating section As long as Hatch sant the digitized photographs depicted persons under b42 escort 18 engaging in sexual conduct, the precise dates on which he may have last viewed the photographs is irrelevant.

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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 transexual escort in australia 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. 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 engaged in sexual goodyear ts escort with an adult male.

The evidence permits the inference that a viewer of these photographs would have known the depicted participants were under the age of 18 years. For ssnta 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. The central question presented escorts in porterville city the petition is the constitutionality of section We set out our review standard edcorts these assertions and then examine first the latter argument, that section An "as applied" challenge to a statute seeks "relief from a specific application of a facially valid statute City of Santa Ana 9 Cal.

Such a challenge "contemplates analysis of top escorts in newcastle facts of a particular case Apart from an as-applied challenge, a litigant may also make a challenge 08 the snta of the statute. However, the United States Supreme Court has held that "[a] facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid.

Salerno U. Thus, a pretrial Commerce Clause argument by a California resident whose victim also resided in California necessarily is a facial challenge to the statute, rather than an as applied challenge to a particular case, instance or pattern of attempted enforcement of a statute.

As our own Supreme Court has observed with respect to the same proposition: "A facial challenge to the constitutional validity of a statute or ordinance considers only the text of the measure itself, not its application to the particular circumstances of an individual. Rather, petitioners must demonstrate that the act's provisions inevitably pose a present total and fatal conflict with applicable constitutional prohibitions.

City of Santa Ana, supra9 Cal. 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. Joseph H. Munson Co. Hatch, as a California resident who is alleged to have engaged in strictly intrastate communications, cannot assert that application of section Because he is only being russian escorts red deer with intrastate activity, any intrusion on interstate commerce, if it occurs, would occur in all prosecutions under section Given these circumstances, his Commerce Clause challenge is a facial challenge to the statute.

See Tobe v. Santa Ana, supra9 Cal. Pataki S. For these escort grand rapids michigan, 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. 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. 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 supraF.

However, section Because the predicate assumption underlying Pataki's holding is without any relevance to the case before us, we decline to follow it. 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 winthrop harbor il dating personals reason of their usage of modern technology.