Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Clara County Super. Ct. No. CC471981
RUSHING, P.J.
Statement of the Case
After a court trial, defendant Richard Lefief was found guilty of attempted lewd and lascivious conduct with a minor under 14 years old and two counts of attempted distribution of harmful matter to a minor over the Internet. (Pen. Code, §§ 288, subd. (a), 288.2, subd. (b), 664.)
All further unspecified statutory references are to the Penal Code.
On appeal from the judgment, defendant claims the court improperly induced him to waive his right to a jury trial. He claims there is insufficient evidence to support his conviction for attempted lewd conduct. And he claims his convictions for attempted distribution under section 288.2 must be reversed because the statute violates the Commerce Clause and the First Amendment.
Defendant has also filed a petition for a writ of habeas corpus (H031736) in which he claims that his attorney rendered ineffective assistance by failing to make a motion to suppress statements he made during police interrogation. We dispose of the petition by separate order.
Facts
San Jose Police Sergeant Thomas Sims, who worked in the child exploitation detail of the sexual assault unit, testified that he created a false profile of a girl in an Internet chat room for adults. The girl’s name was Tammy, her screen name was “Beechcrzy,” and she described herself as a single, full-time student who played junior varsity field hockey. Defendant discovered Beechcrzy in the chat room, and between September 7 and November 5, 2004, he communicated with her via the Internet, e-mails, and the telephone.
In their first chat on September 7, defendant immediately asked Tammy’s age and learned she was 13 years old. He asked whether she had ever had sex, and if not, whether she was curious, and if so what she was curious about. When she said she had had a boyfriend, defendant asked if she had ever seen his “dick all hard.” When she asked what defendant looked like, he said “nice tall” and “a long dick.” She said she was curious but nervous, and defendant asked “to see or touch?” He said they could be friends but asked whether her parents monitored her online activity. When she said no, he said he could send her a picture. He asked if she was curious to see a “big dick.” She said she was curious. Again he asked whether to see or to touch. She said she would like both. He asked if she wanted to show him her body, and he asked for a picture. She asked whether he would like it, and he said, “[Y]es[,] young and beautiful.” He asked if it bothered her that he was older and told her he would not try to do anything to her but just be her friend because she was “to [sic] young to fuck.”
The next day, September 8, defendant asked Tammy what she was curious about, and she asked him to send a picture. He responded, “O your [sic] curious about my dick.” He then e-mailed her a close-up photograph of his erect penis. He told her to delete it after she saw it. She asked for more pictures and said she had neither seen nor touched one. He said it might be less dangerous “to show you in real.” He also asked whether she had “hair yet on your pussy.” He asked whether she would show it to him if he showed her his penis.
The next day, September 9, defendant opined that Tammy seemed to have a lot of time alone in the morning. He said that he had woken up “horny.” She inquired what he did when that happened, and he said he just played with it. She said she had never met anyone like him, and he told her not to tell anyone. He asked where she lived and said he wanted a picture. He asked if she liked being friends and said he would never hurt her in any way. He warned that she needed to be careful because other men were not like he is. He asked again what she was curious about, and she said to see and touch. She said she liked the picture he had sent. He explained a penis gets hard because it is “meant to go deep into pussy.” She asked what he would do so it would not hurt the first time, but he said again that she was too young. He asked whether she had ever shown hers or had anyone lick it and whether she had ever played with or digitally penetrated herself. He also asked if she knew where her “clit” was. He said that if they met, he could show her where it feels best.
Defendant asked what she was doing the next day during the afternoon and suggested they go to a park to talk and walk. Tammy asked if he was going to teach her things about sex, and he said they could talk and see. Tammy sent defendant photograph of herself in a cheerleader outfit. Defendant sent another photograph of him and his erect penis.
They chatted again later that day. Defendant said she was pretty and wished he were younger and she were older because he would make her his girlfriend. He explained that it was not socially acceptable for them to be together and said he would go to jail for having sex. However, he said that in another society, he would jump at the opportunity. They could, however, be friends and talk, and he could teach her. Defendant expressed concern that her mother might be monitoring her online activity, but Tammy said her mother could not even turn the computer on. He asked whether she and her boyfriend kissed with tongues in their mouths and what she was curious about learning. She asked if he wanted to call her and said she would and give him her number if he promised to call only when she told him to. She did not want to get caught.
Defendant then called the number and spoke briefly to a female police officer who was impersonating Tammy.
Thereafter, they continued their chat. Defendant said she sounded older, and he liked her voice. She said she liked his too. She said she liked the picture of his “long dick” and asked if he was going to show it to her on a hike. He said she had a nice body and loved her long legs. She asked if he was going to bring her a purse as a present. When she asked defendant what he wanted to do and what he was going to teach her, he said he was scared. He said they could be friends and hike and talk and see how they felt together. He told her to relax and not “push it.” He wanted to be a good influence and said that bonding takes some time. However, he could satisfy some of her curiosity to learn because he liked to teach. He wanted to be a good role model and help her develop into a good person. When she said she had other things in mind after seeing his picture, he said they should meet and she might be surprised. He warned her not to solicit older strangers, saying he was a good guy but others were not, and he made her promise no to chat with other older men. They then planned to meet for a walk the next day. Before ending the chat, defendant asked if she had ever been kissed “good.” She asked what that that meant and whether he intended to do that.
On September 10, Tammy said she was not sure she wanted to hike later that day. She said she wanted to learn things defendant had said he would teach her, and she wanted to know if he was “for real . . . .” Defendant said she was “hot” but wanted to make sure she too was “for real . . . .” He thought she was, but he was afraid because she was so young. He wanted to get to know her more because “relationships don’t happen overnight.” They needed to be comfortable with each other and then “who knows.” He promised to answer her questions and honor her feelings because he wanted her to be happy and comfortable with him. She said she felt safe, and he said he would feel safe in time. They planned to meet later that day.
Defendant did not show up for the rendezvous. Later that day, he e-mailed Tammy and said he had tried to call to explain that he had gotten to busy. He sent a second e-mail on September 12, saying he had called several times. He e-mailed her again on September 13, observing that she had not seen his e-mails. He said he wanted to “make it up to [her]
In a chat on September 14, Tammy said she did not answer the phone because he had promised to call only when she told him it was safe to do so. She was in a bad mood because he had not shown up. She also said she had been grounded for arguing with her mother. Defendant apologized and asked how he could make it up to her. He said he had a nice leather backpack purse for her. If she did not like it, she could tell him what it would take to be forgiven. He renewed the idea of a hike together, and she asked if he was going to teach her things. He said he could bring his camera and take pictures of her. He said he cared for her and felt protective of her in a fatherly sort of way. He again warned her not to chat with older men, saying she had gotten lucky with him. He said he wanted to be someone she could trust.
Defendant e-mailed Tammy on September 18 and again on September 20, saying he missed her and hoped to see her soon.
On September 22, they chatted again. Defendant said he missed her a lot and had two purses for her to choose from. When he asked about going for a hike, she said she could skip school, but he said not to. He warned her to be good “or I will have to spank you,” “take down your shorts and put you over my knee and smake [sic] your bare bottom.” She said that sounded interesting. They then talked about going to a lake and swimming naked if they could find a private place. She asked if he would be “hard” as in the photographs. He said if he saw her naked it might make him “hard.” She said she was curious to see him “big and hard.” He asked if she would be shy, but she did not think so. He thought the idea of swimming naked excited her because she was curious to see “how big my dick is hard.” She asked how big it was, and he said nine inches. When she said it would hurt, he said “I am not going to fuck you” but just satisfy her curiosity. He said he was curious about her body. They then agreed to meet, go for a hike, and swim. He offered to pick her up at home on September 24.
The next day, defendant e-mailed a couple of times, asking for Tammy’s address and a time to call her. He said he would call her whenever she said. However, on September 24, Tammy said she could not make it because she was going away with her father. She said they would talk the next week.
On September 27, defendant e-mailed and asked about her weekend and when she would be back online again. On September 29, he e-mailed again, noting that she had not been online much. On October 4, he e-mailed to see whether he could give her the purse at the end of the week. On October 12, Tammy e-mailed defendant. She apologized for not talking to him for a while and said she missed doing so, especially talking about the “fun stuff.”
In a chat on October 13, defendant said he missed her and wanted to give her the purse and do whatever she wanted. She said she was sorry that she had deleted his pictures. He said she could see for real if they met. She asked if she could touch, and he said they would talk. She reminded him about saying she was “to [sic] young to fuck” and asked “w[h]at if [you] put it in just a little?” He asked her about showing themselves to each other. When she said he could come to her house, he asked if she had nosey neighbors. He asked for her address. She asked if he had any more pictures of himself, and when he said he would have to have someone else take them, she volunteered.
The next day Tammy e-mailed defendant and told him that she had the address for him, but they could not meet because her mother was picking her up.
In a chat on October 20, Tammy said she was disappointed, and defendant said he missed talking to her and asked about seeing her in the next couple of days. She asked if he would bring his camera, and he said he would. She gave him her address, and he downloaded a map. She asked if he thought about her, and he said he did and was curious to meet. They talked about whether she played with herself and the types of things he did to please other women. He told her to e-mail him about when she was free. He mentioned the purse again and asked when he could call her. He said he liked her as a friend and did not want to use or abuse her because he cared about her. She said that people who care for each other like to please each other. He agreed but cautioned her to take it slow because she was so young. When she said she did not want to miss an opportunity, he told her not to worry because there would be plenty of time.
On October 22, Tammy e-mailed defendant and canceled the meeting. She said he could “hang out” at her apartment the next week because he mother had things to do. He told her to let him know when. He e-mailed her again on October 27 and asked about her weekend. He said he might be in her area and still had the purse for her. She e-mailed back that they could meet. He said when to call or visit. On November 1, he e-mailed and said he would be available Wednesday or Friday. On November 2, she said her mother might be gone all day Friday. He e-mailed back, saying Friday was fine. On November 3, he e-mailed again, saying he liked talking to her and had never had a young friend like her. He thought she seemed older than she really was.
In a chat on November 3, Tammy confirmed that she would be free on Friday. He said it would be nice to meet her and give her a hug and a kiss. He asked if she played cards or liked games or had ever had a good massage and suggested they play poker, where the loser had to give the winner a massage. She asked if he was going to bring his camera and said he could take pictures of her if he never showed them to anyone. He asked her to bring her cheerleader outfit and some short skirts.
On November 4, Tammy e-mailed defendant and confirmed that she would be free and alone at home the next day around 1:30 p.m. She said he could call her at that time.
Sergeant Sims testified that on November 5, defendant called Tammy and spoke to a different officer impersonating Tammy. At the time, defendant was driving to the address Tammy had given him. According to Sergeant Sims, defendant arrived, parked, and got out of his van carrying a black backpack purse. At that point, police arrested him. His van was searched, and inside police found a digital camera; a pornographic DVD entitled “Clean Clits”; a list of online chat room screen names, including Beechcrzy; and directions to the apartment complex.
With defendant’s consent, police later searched his home and analyzed his computers. They found no child pornography. They also communicated with the people on the list found in defendant’s van. None were minors.
Sergeant Sims explained conduct called “grooming,” which refers to a way that predatory adult men develop online relationships with children. He explained that they begin slowly, gaining trust, and then exploit it. For example, an adult may engage in minor conversation and then slowly gain trust by eliciting personal information, talking about personal feelings, and asking about family. He said that grooming can take place on the Internet and may continue even after the adult has met the child. Based primarily on defendant’s initial chats and the pictures he sent, Sergeant Sims believed that defendant was trying to initiate a sexual encounter with Beechcrzy. Although Beechcrzy did not elicit from defendant exactly what he wanted to do with her, Sergeant Sims opined that the “two images that he sent [Tammy] of his erect penis, that tells the story, not these piecemeal bits and pieces that he’s typing about wanting to be [Tammy’s] friend.”
The Defense
Defendant, who was 52 years old, testified that he had been chatting online with adult men and women for 12 years, and it had led to friendships and sexual relationships, including his current girlfriend. He had also engaged in “cyber sex role playing,” in which he had played out his sexual fantasies in terms he knew were not true.
Defendant said that when he saw Beechcrzy’s profile online, he thought it was “weird,” “too personified,” and “plain,” not sketchy like most, but “totally filled out.” He was curious and struck up a conversation. He immediately asked how old she was, and when she said 13 years old, he did not believe her. Even after she talked about her parents and school schedule and sent a picture of herself in a cheerleader outfit, he was curious that someone would go to such lengths to play act. He thought there was little likelihood that Tammy was a minor. Nevertheless, he sent her pictures of his penis.
As he continued to communicate with her, he became more convinced that Tammy was an adult because she seemed to be trying too hard to create a false persona. When they spoke on the phone, he knew he was talking to an adult trying to sound young like a young girl. When he spoke to her a second time, her voice was different and sounded even older. He also sensed that she was trying to get him to commit to sexual acts. Within a few days, he suspected that Tammy was really an undercover police officer.
Defendant admitted that despite his suspicions, he continued to engage in sexually explicit discussions and talked to Tammy about massages, spanking, and masturbation. He explained that he was only following Tammy’s prompts and playing the role of an adult wanting to have sex with a minor. However, he was non-committal and did not say anything that could be perceived as a crime. He further explained that despite being suspicious of a police sting, he played along because “intertwined in there were other things that were said. There were some truths here and there about just being a friend, just being a fatherly figure, just being it was all fantasy.” He said he “wanted to see the whole psychology involved from point A to point Z.” He was curious and was trying to “bond, communicate, point out the flaws in this persona. I also thought of what it would be like to be on the other end doing that, offering insight, experience, showing how to be a little more colorful, rather than linear, with just going for, you know, the kill, trying to get me to commit.”
Defendant said that he had “exposed myself in such a way to begin with that I wanted to get into a position to clarify that I’m not the person that was being presented. I wanted to share areas that I thought were weak in the communication” in order to have “an affiliation, to maybe be on the other side” and work with and help the police deal with online predators. Defendant admitted making sexual explicit comments and plans to go hiking and nude swimming, but again he said he was just role playing and had no intention of doing any of those activities because he thought Tammy was a police officer.
Defendant admitted that on the day he had arranged to meet Tammy, he offered to bring her a sandwich but explained that he did so only as a courtesy. He also explained that he brought the purse because he thought it would be interesting and funny and might be “kind of like an ice breaker” when he finally met Tammy, whom he fully expected to be an adult and perhaps a police officer, not a minor. Thus, he was not surprised when he saw the police.
Defendant acknowledged that during his interview with the police, he said he was “shocked and freaked out and surprised.” However, he explained that he did not think the police would act like the “Gestapo” with guns drawn. He thought that he had presented himself online in a way the police would know he was just role playing with them. He admitted that he never directly indicated that he knew Tammy was an officer.
Defendant also acknowledged that during the interview, and contrary to his testimony, he spoke as if he believed that Tammy was a young girl. For example, he told the officer that he wanted to be a role model and a father figure; he wanted to warn her about the dangers of online chatting; and he wanted to explain that sex is not just sex but has an emotional component. He also said he expected to be meeting either a naïve, young girl or the police. However, he explained that during the interview, he was shaken up, confused, and trapped and started to think that perhaps he had been mistaken all along, and Tammy really was a young girl.
On cross-examination, defendant acknowledged that he had told the police something to the effect that he had met a woman on the Internet and had sex with her and later found out that she was 17 years old. However, he testified that he thought the woman was 21, and she only teased him about her age without ever revealing it.
Two long time friends of defendant testified that they have never known him to have an improper interest in children or minors. One, who had been defendant’s roommate for a long time, said that defendant did not have any child pornography. Both had met many of defendant’s girlfriends, and all were adults.
Validity of the Jury Waiver
Defendant contends that his jury waiver was coerced and involuntary.
A criminal defendant has a fundamental right to a jury trial under the state and federal constitutions, but he or she can waive that right. (People v. Collins (2001) 26 Cal.4th 297, 304 (Collins); U.S. Const., Sixth Amend.; Cal. Const., art. I, § 16.) A waiver must be knowing and intelligent, in the sense that the defendant is fully aware of the nature of the right and the consequences; and it must be voluntary, in the sense that it was the product of a free and deliberate choice and not intimidation, coercion, or deception. (Collins, supra, 26 Cal.4th at p. 305.)
“ ‘A court may not offer any inducement in return for a plea of guilty or nolo contendere. It may not treat a defendant more leniently because he foregoes his right to trial or more harshly because he exercises that right.’ ” (In re Lewallen (1979) 23 Cal.3d 274, 278-279, quoting People v. Superior Court (Felmann) (1976) 59 Cal.App.3d 270, 276.)
For example, in Collins, supra, 26 Cal.4th 297, the trial court fully advised the defendant of his jury trial rights and confirmed that he “was not ‘gaining any promises of leniency or anything else relative to the waiver.’ ” (Id. at p. 302.) However, the court then said, “I indicated to counsel when somebody mentioned that this issue is going to be discussed with you that there might well be a benefit in it. Just by having waived jury, that has some effect on the court. Do you understand that? By not taking up two weeks’ time to try the case, but rather giving—just having it in front of a judge alone . . . . Do you understand that?” (Ibid., original italics.) The defendant understood, but the court indicated that it was not specifying any particular benefit at that time. (Ibid.) The trial court then concluded the defendant’s jury waiver was voluntary, knowing, and intelligent. (Id. at p. 303.)
According to the California Supreme Court, the trial court’s statement that “ ‘some benefit’ ” would inure to the defendant at a later date as a result of his jury waiver was an improper, coercive inducement which rendered the waiver involuntary. (Collins, supra, 26 Cal.4th at pp. 304, 312.) The court found that the “form of the trial court’s negotiation with defendant presented a ‘substantial danger of unintentional coercion.’ [Citation.]” (Id. at p. 309.) “[T]he objective of the trial court’s comments was to obtain defendant’s waiver of a fundamental constitutional right that, by itself (when defendant elects to go to trial), is not subject to negotiation by the court. In effect, the trial court offered to reward defendant for refraining from the exercise of a constitutional right. [Citations.] The circumstances that the trial court did not specify the nature of the benefit by making a promise of a particular mitigation in sentence, or other reward, does not negate the coercive effect of the court’s assurances. . . . The inducement offered by the trial court to defendant, to persuade him to waive his fundamental right to a jury trial, violated defendant’s right to due process of law.” (Id. at p. 309, fn. omitted, italics added.)
Relying on Collins, supra, 26 Cal.4th 297, defendant claims that trial court improperly promised him a lenient sentence (jail time and probation) in exchange for his jury waiver. We disagree.
The record reflects only that on January 9, 2006, the parties appeared, and the court expressed its “understanding” that both parties intended to waive a jury. The prosecutor and defense counsel agreed. The court then said to defendant, “Now, my understanding is your waiver of the jury trial was based on certain discussions that you may have had with counsel as a result of discussions that were had by the court and with the court.” (Italics added.) The court stated, “Now, I’ve indicated to counsel and he’s advised me that he’s communicated that fact to you as well, that by proceeding in the manner in which we are, by way of a court trial, in all likelihood you would be, the probability of you being found guilty is high.” Defendant said he understood. The court then said, “And the consequence of the court finding you guilty could be—you could be required to pay a fine up to $10,000; be required to pay into a general restitution fund up to $10,000 with a minimum of $200. [¶] I indicated to counsel that if there’s any time imposed it would be a local commitment as opposed to a state prison commitment.” Defendant said, “Well, the term ‘probation’ was the key point.” The court responded, “That’s what I meant by local disposition. [¶] You would be placed on probation, but you have to be apprised, you could be placed in county jail anywhere from zero days up to a year.” Defendant again said he understood, and after further discussion, he waived his right to a jury trial.
This exchange does not reflect that the court directly or indirectly bargained with defendant or otherwise offered leniency in exchange for a waiver; nor do the court’s comments suggest that the court previously bargained or made such an offer. Rather, the court simply said that during a previous discussion, it had indicated to counsel what the disposition would be if defendant were to be found guilty and if the court decided that some incarceration were appropriate. The record does not disclose whether defendant was present during the discussion, the purpose of that discussion, or the context in which the court indicated a possible disposition. There is also no evidence that the court asked counsel to relay its thoughts to defendant as an inducement to waive a jury trial.
Moreover, the rule prohibiting courts from bargaining directly with a defendant does not forbid the court from assessing the appropriate sentence for a particular case and then informing the defendant of that assessment, whether before or after entry of a plea. (See People v. Superior Court (Ramos) (1991) 235 Cal.App.3d 1261, 1268-1270.) As noted, it forbids trial courts from (1) punishing defendants simply because they have exercised their rights or (2) rewarding them as a bribe to get them to waive those rights, especially if that reward is of a vague and unspecified sort. (Collins, supra, 26 Cal.4th at p. 309.)
We further note that at the hearing, when the court referred to the previously indicated disposition, it was explaining the consequences that would flow if defendant waived a jury: the court would most likely find him guilty; and, if so, it would impose some jail time and place him on probation. Thus, in context, the court’s reference to the disposition does not suggest that it was then trying to induce a jury waiver. Nor do we find that the court’s comments as a whole posed a substantial danger of coercing a jury waiver. Indeed, the record establishes that the parties came to the hearing having already decided to waive a jury.
Defendant infers a prior promise of leniency to induce a jury waiver from a few individual words and phrases that the court used. In particular, the court understood that the jury waiver was “based” on what defendant had learned from defense counsel “as a result” of counsel’s discussion with “with the court,” during which the court “indicated” that if time were to be imposed, it would be jail time. However, because we do not know the nature and purpose of the discussion with counsel and what was said, we consider it speculation to infer from a post hoc summary that the court had offered defendant a lenient disposition in exchange for his jury waiver or that counsel reasonably could have thought so and relayed the offer to defendant.
Because the record here is so sparse, we find defendant’s reliance on Collins to be misplaced. Unlike the trial court in Collins, where the court expressly advised the defendant on the record that he would get some unspecified benefit if he waived a jury, the record does not establish that trial court here directly or indirectly promised defendant probation if defendant waived a jury trial. (Cf. People v. Dixon (2007) 153 Cal.App.4th 985, 991 [court improperly stated that it would consider jury waiver as a mitigating factor at sentencing].)
In sum, therefore, we reject defendant’s claim that his waiver was involuntary.
Sufficiency of the Evidence of Attempted Lewd Conduct
Defendant contends that there was insufficient evidence to support his conviction for attempted lewd conduct and in particular, insufficient evidence that he took any act to commit the offense. We disagree
To prove the crime of lewd conduct in violation of section 288, subdivision (a), the prosecution had to prove that (1) a person touched the body of a child; (2) the child was under the age of 14 years; (3) the touching was done with the specific intent to arouse, appeal to, or gratify the lust, passions, or sexual desires of that person or the child.” (§ 288, subd. (a); CALJIC No. 10.41.)
To prove an attempt to commit that crime, the prosecution also had to prove that (1) defendant had the specific intent to commit that crime and (2) a direct but ineffectual act toward its commission. (§ 21a.)
Concerning proof of a direct but ineffectual act, evidence of mere preparation such as planning or mere intention to commit a crime is not enough. (People v. Kipp (1998) 18 Cal.4th 349, 376.) “The preparation consists of devising or arranging the means or measures necessary for the commission of the offense, while the attempt is the direct movement toward its commission after the preparations are made. In other words, to constitute an attempt the acts of the defendant must go so far that they would result in the accomplishment of the crime unless frustrated by extraneous circumstances. [Citations.]” (People v. Werner (1940) 16 Cal.2d 216, 221-222; accord, People v. Memro (1985) 38 Cal.3d 658, 698 (Memro).)
On the other hand, acts that indicate a certain, unambiguous intent to commit a specific crime, and, in themselves, are an immediate step in the present execution of the criminal design are sufficient. (People v. Kipp, supra, 18 Cal.4th at p. 376.) Indeed, “ ‘[w]henever the design of a person to commit a crime is clearly shown, slight acts done in furtherance of that design will constituted an attempt, and the courts should not destroy the practical and common-sense administration of the law with subtleties as to what constitutes preparation and what constitutes an act done toward the commission of a crime.’ [Citations.]” (Memro, supra, 38 Cal.3d at p. 698.)
In determining whether there was sufficient evidence that defendant performed an act toward committing the crime, we simply determine whether there is substantial evidence—i.e., evidence which is reasonable, credible, and of solid value—such that the court could have made the necessary finding beyond a reasonable doubt. In making that determination, we do not reweigh the evidence, resolve conflicts in the evidence, or reevaluate the credibility of witnesses. Rather, we review the whole record in the light most favorable to the judgment, we draw all reasonable inferences from the evidence that support it, and we presume the existence of every fact the court could reasonably deduce from the evidence. (Jackson v. Virginia (1979) 443 U.S. 307, 319-320; People v. Johnson (1980) 26 Cal.3d 557, 578; People v. Vy (2004) 122 Cal.App.4th 1209, 1224.)
Here, in reaching its verdict, the court necessarily rejected defendant’s claim that he thought Tammy was either a role-playing adult or undercover police officer, not a minor; and that he went to Tammy’s purported address expecting to meet one or the other and not a young girl. Rather, the court’s verdict implies a finding that defendant thought Tammy was a 13-year-old girl when he communicated to her on the Internet, in e-mails, and over the phone. With this in mind, we note that in their first chat, he immediately asked her age and then turned the conversation toward sexual matters. He asked if she had engaged in sex or oral sex. He sent her two photographs of his erect penis, which he described as long and hard. He asked if she wanted to see it and explained that it was intended to go “deep into pussy.” He asked if she had ever had her vagina licked, masturbated, or digitally penetrated herself.
Three days after their initial chat, defendant started trying to arrange a meeting. He asked when her parents were around and if her neighbors were nosey. He said that if they met, he could show her how best to sexually stimulate herself, she could see his penis, and they could show each other their bodies. He said he would bring a camera and photograph her. He warned that if she were not good, he would have to spank her “bare bottom.” He suggested that they play poker, and the loser would have to give the other a massage. By November 5, defendant had arranged to meet Tammy at her home.
This evidence constitutes substantial, if not strong, evidence of defendant’s sexual interest in Tammy—a female minor—and his desire and intent to commit some sort of lewd and lascivious act, in violation of section 288, subdivision (a). In this regard, we note that an intent either to touch her, however, innocuous and inoffensive it might appear, or to have her touch herself at his direction, with an intent to arouse her or him, would be sufficient to establish such an offense. (See People v. Lopez (1998) 19 Cal.4th 282, 289 [any touching with requisite intent violates the statute]; People v. Austin (1980) 111 Cal.App.3d 110, 114-115 [minor’s act toward self at defendant’s direction sufficient]; People v. Roberts (1972) 26 Cal.App.3d 385, 388 [touching by perpetrator not necessary].)
Next, we note that on the day they had planned to meet, defendant drove to Tammy’s apartment and brought with him the purse he had promised to give her. He also brought a digital cameral and a pornographic video. He got out of his car, brought the purse, and was then arrested.
We disagree with defendant’s view that his driving to meet Tammy was simply preparation to commit a crime.
In People v. Herman (2002) 97 Cal.App.4th 1369, the defendant called a pay phone where school girls routinely congregated and offered them money to perform oral sex. Later, he drove up, identified himself, showed them money, and invited them to go with him. (Id. at p. 1374.) In rejecting a claim that his acts amounted to only preparation, the court explained, “If defendant had merely telephoned victims and proposed lewd conduct at some indefinite time and place, it would have been possible to construe his conduct as that of an ‘obscene phone caller’ who derives all the gratification he seeks from the call itself and who therefore contemplates no physical encounter with the victim. But when a caller follows up lewd telephonic propositions by acting deliberately to meet his victims in person, whereupon he offers incentives to participate in the suggested acts and proposes that they immediately accompany him to a place where such acts may presumably take place, a rational person could easily conclude beyond a reasonable doubt that ‘a crime [was] about to be committed absent an intervening force.’ [Citation.] The intervening force in this instance was the girls’ refusal to accompany defendant. But that merely rendered defendant’s conduct ineffectual. The evidence supports a finding that an attempt was underway, and that but for the girls’ refusals, violations of section 288 would have immediately ensued.” (Id. at pp. 1390-1391.)
In People v. Reed (1996) 53 Cal.App.4th 389, the defendant placed an ad seeking sex from women of “any race, age, or size” and included a photograph of his erect penis. (Id. at p. 393.) Thinking the defendant might ensnare minor females, a police officer, posing as a mother, answered the ad, saying she wanted sex instruction for her two daughters. Defendant offered to start slowly with sex toys and work his way to intercourse, noting that this was how he had taught his nieces. (Id. at p. 394.) The defendant then went to the motel, where he was told the girls were waiting. He retrieved some sex toys and lubrication from his car and was arrested as he was being led into the room. (Id. at p. 395.) In rejecting a claim that his conduct was merely preparation, the court explained that the defendant’s “act of walking with the undercover deputy into the room he expected to contain the girls was clearly a step beyond mere preparation for the crime, though it was not an element of the crime. That this was an unequivocal first act in carrying out the intended crime is especially evident given that his plan for the seduction was known in detail to the officers at the time they arrested him. Had ‘real’ children been rescued from the room while defendant was talking with their ‘real’ mother, so that the room of assignation was empty when the two entered, our analysis would be the same.” (Id. at p. 399.)
Here, there was strong evidence that defendant intended to commit a lewd and lascivious act, including his efforts to befriend Tammy, gain trust, and groom her; the inappropriate sexual content of his communications; the sexually explicit photographs he sent; and his persistent effort to meet her. Given this evidence, we conclude that driving to meet Tammy and bringing the purse and digital camera constituted conduct in furtherance of his intent. Moreover, a reasonable trier of fact could find that but for the fact that Tammy was not the 13-year-old girl that defendant expected to meet, he would have completed the crime.
Defendant’s reliance on Memro, supra, 38 Cal.3d 658, is misplaced. There, the defendant, who liked to take photographs of young naked boys for his own sexual gratification, had set up his room with special lights and pornographic materials, all of which indicated his intent to commit lewd conduct if and when a willing participant came along. The defendant invited a boy to have a soda and then took him to his room. When the boy asked to leave, defendant strangled him to death. (Id. at pp. 690-691.) The Supreme Court found the evidence sufficient to establish attempted lewd conduct. The court opined that merely following the boy to his apartment “probably fell within the ‘zone of preparation.’ However, appellant went beyond preparation. He ushered the boy into the bedroom to watch the strobe lights and stayed close by. These were steps which furthered his aim of readying [the boy] for a nude photography session which was, in all likelihood, intended to culminate in lewd conduct. These acts, therefore, constituted the ‘actual commencement of his plan’ and were sufficient to support an attempt.” (Id. at p. 699.)
Although the prosecution introduced no evidence that defendant, like the defendant in Memro, had a prior history of sexual interest in children, the evidence of defendant’s prurient interest in and intent toward Tammy was nevertheless strong, and his conduct in driving to see Tammy with a gift and a camera comprised acts in furtherance of his intent as clearly as the acts found sufficient in Memro.
Constitutionality of Section 288.2, subdivision (b)
Section 288.2, subdivision (b), provides, in relevant part, “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 . . . 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.”
Defendant contends his two convictions for attempting to send harmful matter over the Internet must be reversed because section 288.2, subdivision (b) (hereafter section 288.2(b)) on its face violates the Commerce Clause (U.S. Const., art. I, § 8, cl. 3) and the First Amendment right of free speech.
The Attorney General argues that defendant forfeited his claims by failing to object below. (Freytag v. C.I.R. (1991) 501 U.S. 868, 899-900 [commerce claims forfeited]; People v. Gardineer (2000) 79 Cal.App.4th 148, 151 [constitutional claims forfeited].) However, because both claims involve pure questions of law without regard to the facts of the case, we consider it appropriate to address the merits and not apply the rule of forfeiture. (See In re Sheena K. (2007) 40 Cal.4th 875, 887, fn. 7 [declining to find forfeiture of claim that statute is facially overbroad]; In re Justin S. (2001) 93 Cal.App.4th 811 [no forfeiture of constitutional claims based on pure questions of law].)
“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.)
In addressing a facial challenge to the constitutional validity of a statute or ordinance, we consider “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 (1995) 9 Cal.4th 1069, 1084, italics in Tobe; Hatch v. Superior Court (2000) 80 Cal.App.4th 170, 193 (Hatch).)
However, an exception to the limited scope of a facial challenge is applicable when a petitioner claims 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. Joseph H. Munson Co. (1984) 467 U.S. 947, 967-968; Hatch, supra, 80 Cal.App.4th at p. 193.)
Commerce Clause
Article 1 of the United States Constitution grants Congress the power to regulate commerce among the several states. (U.S. Const., art. I, § 8, cl. 3.) When a state imposes a regulation that unduly burdens interstate commerce and impedes free trade, it may violate the Commerce Clause. (People v. Hsu (2000) 82 Cal.App.4th 976, 983 (Hsu).)
Relying on American Libraries Ass’n v. Pataki (S.D.N.Y. 1997) 969 F.Supp. 160 (Pataki), defendant claims that section 282.2(b) violates the Commerce Clause because (1) it regulates lawful conduct beyond California’s borders; (2) its burden on interstate commerce outweighs its protective benefit; and (3) it subjects the Internet to inconsistent state regulations. We disagree.
At issue in Pataki was a New York statute that was similar to section 288.2(b) in that it proscribed using a computer to disseminate obscene material to a minor. (Pataki, supra, 969 F.Supp. at p. 163.) The Pataki court found that the statute applied to interstate communication because the statute did not limit its application to communications that took place entirely within the state. (Id. at pp. 169-172.) The court opined that the New York law had the effect of exporting New York policy to other states because the nature of the Internet makes it impossible to restrict the effects of the law to conduct occurring within New York. (Id. at p. 177.) The court further found the burden on interstate commerce exceeded any local benefit of the law. (Id. at pp. 177-181.) Finally, the court concluded the nature of the Internet “requires a cohesive national scheme of regulation so that users are reasonably able to determine their obligations” regarding the kind of material that may be disseminated through the medium. (Id. at p. 182.) In short, the court concluded that the New York law violated the Commerce Clause. (Id. at p. 183.)
Defendant’s claim and reliance on Pataki were rejected in Hsu, supra, 82 Cal.App.4th 976 and Hatch, supra, 80 Cal.App.4th 170. Both Hsu and Hatch noted that section 288.2(b) materially differs from the statute at issue in Pataki because section 288.2(b) requires the offender to communicate harmful matter to a known minor with the intent to seduce the minor, and this requirement greatly narrows the scope of the law and its effect on interstate commerce. (Hatch, supra, 80 Cal.App.4th at pp. 194-196; Hsu, supra, 82 Cal.App.4th at pp. 984-985.) The Hatch court explained that “[w]hile 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.” (Hatch, supra, 80 Cal.App.4th at p. 195, italics in Hatch.) On the contrary, as another New York court observed, “[W]e 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 (N.Y.A.D. 1999) 257 A.D.2d 243.)
Hsu was a unanimous decision; in Hatch, the result was unanimous, but Justice McDonald dissented from the majority’s conclusion that section 288.2 was constitutional. (Hatch, supra, 80 Cal.App.4th at pp. 205-228 [dis. opn. of McDonald, J.].)
In addition, the Hatch majority found that Pataki’s concern regarding cohesive regulations was inapplicable to section 288.2(b) because of the law’s narrow scope. In Pataki, the court reasoned that “an Internet user cannot foreclose access to her work from certain states or send differing versions of her communications to different jurisdictions”; thus, the court concluded the need for uniformity of regulation required a finding that the law ran afoul of the commerce clause. (Pataki, supra, 969 F.Supp. at p. 183.) However, as the majority in Hatch explained, section 288.2(b) does not “criminalize ‘access,’ or require ‘differing versions of . . . communication [in] different jurisdictions’ (Pataki, supra, 969 F.Supp. at p. 183); it instead proscribes communicating defined matter to a minor for purposes of seduction.” (Hatch, supra, 80 Cal.App.4th at pp. 194-195.) Consequently, the underlying assumption in Pataki is irrelevant to section 288.2(b), and the majority declined to follow it. (Hatch, supra, 80 Cal.App.4th at p. 195.)
Furthermore, section 288.2 does not regulate behavior occurring wholly outside California. As Hatch explained, section 288.2(b), in the context of the Penal Code as a whole, only penalizes acts that occur within the state. (Hatch, supra, 80 Cal.App.4th at pp. 196-197.) California law generally bars punishment for wholly extraterritorial offenses, and there is no reason “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 [citation], such as those hypothesized in Pataki, are committed within this state.” (Id. at p. 197; see People v. Hsu, supra, 82 Cal.App.4th at p. 985 [“section 288.2, subdivision (b) cannot be enforced beyond what is jurisdictionally allowed”]; see Ferguson v. Friend finders, Inc. (2002) 94 Cal.App.4th 1255, 1264-1269 [rejecting Pataki, agreeing with Hatch and Hsu, and concluding that statute that regulates the sending of unsolicited e-mail advertisements did not violate the Commerce Clause].)
Defendant fails to convince us that Hatch and Hsu were wrongly decided. Moreover, we agree with those cases, find that the Pataki analysis does not apply to section 288.2(b), and conclude that the statute does not place an undue burden on interstate commerce and violate the Commerce Clause.
First Amendment
Defendant claims that section 288.2(b) is unconstitutionally overbroad because it is a content-based statute that burdens a substantial amount of protected speech, specifically, “legitimate sexual speech directed at individuals under eighteen who reside in states with lower ages of consent and who are legally entitled to receive such communications.” (Italics omitted.) As with defendant’s commerce claim, his First Amendment claim was also rejected in Hatch and Hsu.
In Hatch, supra, 80 Cal.App.4th 170, the majority likened the statute to those that properly restrict aggressive soliciting. The majority explained that section 288.2(b) “punishes those who seek not discourse, but intercourse and other sexual activity, and who have identified intended victims for pursuit and seduction.” (Hatch, supra, 80 Cal.App.4th at p. 201, italics in original.) Thus, because section 288.2(b) applies to the dissemination of specifically defined “harmful matter” (§ 288.2(b)) only where the sender knows the recipient is a minor and sends the material with the specific intent to seduce the minor, the court found that it primarily regulates conduct rather than speech and thus does not violate the First Amendment. (Hatch, supra, 80 Cal.App.4th at pp. 203-204.)
The majority further reasoned that the knowledge and intent requirements so narrowed the statute’s applicable scope that it would not have a chilling effect on non-specific communications in general Internet forums. “While one might argue that . . . 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 [citations].” (Hatch v. Superior Court, supra, 80 Cal.App.4th at p. 203, fn. omitted.)
Defendant argues that Hatch wrongly concluded that the statute regulated conduct and not speech.
“As a general rule, laws that by their terms distinguish favored speech from disfavored speech on the basis of the ideas or views expressed are content based.” (Turner Broadcasting System, Inc. v. FCC (1994) 512 U.S. 622, 643.) A content-based regulation is presumably invalid. (R.A.V. v. St. Paul (1992) 505 U.S. 377, 382.) It may be upheld under the strict scrutiny test only upon a showing that it is necessary to serve a compelling state interest and has been narrowly tailored to serve that end. (Frisby v. Schultz (1988) 487 U.S. 474, 481.)
In Hsu, supra, 82 Cal.App.4th 976, the court disagreed with the Hatch majority. (Id. at p. 988, fn. 8.) The court explained that “[t]he overriding aim of the regulation is to prevent a particular kind of message, i.e., harmful matter, from reaching minors in order to provoke in them a particular reaction, i.e., arousal of sexual desire.” (Id. at p. 887.) Since that purpose cannot be served without referring to the speech the statute seeks to restrict and the content of the speech was a threshold element of the offense, the court found section 288.2(b) constituted a content-based regulation on speech. (Id. at pp. 987-988.)
Nevertheless, the court agreed with the Hatch majority’s conclusion that section 288.2(b) was not impermissibly overbroad and found that the statute passed the strict scrutiny test. As to the first requirement, the appellant in Hsu conceded that section 288.2(b) serves the compelling interest of protecting children from harmful material. (Hsu, supra, 82 Cal.App.4th at p. 988.) Moreover, the court noted that the statute was one of many specifically designed to “ ‘protect[] minors from sexual exploitation and predation.’ ” (Id. at pp. 988-989; see Sable Communications of California, Inc. v. Federal Communications Commission (1989) 492 U.S. 115, 126 [state has compelling interest in protecting minors from material not obscene by adult standards] Ginsberg v. New York (1968) 390 U.S. 629, 639-640 [same].)
Concerning whether section 288.2(b) is narrowly tailored to serve that compelling interest, the court found that it employed the least restrictive means to achieve its purpose. The court noted that section 288.2 proscribed only the transmission of harmful matter to a known minor with the intent to sexually arouse and seduce the minor. Thus, “[t]he only chilling effect of the statute is on the conduct of those who would use otherwise protected speech to seduce minors. There is no violation of section 288.2, subdivision (b) when an adult disseminates the matter to another adult or to a minor without the intent of seducing the minor recipient.” (Hsu, supra, 82 Cal.App.4th at p. 989.) The court further noted that “the statute’s built-in affirmative defenses further limit its reach so that it targets only those who prey on minors to seduce them. It provides that parents or guardians who transmit the statutorily-defined ‘harmful material’ to aid legitimate sex education, or other adults who transmit the material to aid scientific or educational purposes, shall have a defense against prosecution, and it relieves the Internet providers who transmit the material from prosecution entirely. (§ 288.2, subds. (c), (d), (e).)” (Hsu, supra, 82 Cal.App.4th at p. 989.)
Last, the court pointed out that the scope of the statute was further narrowed by the statutory definition of “harmful matter,” under which harmful matter is gauged by only contemporary California standards. (Hsu, supra, 82 Cal.App.4th at p. 196; § 313, subd. (a), italics added; compare with American Civil Liberties Union v. Reno (3d Cir.2000) 217 F.3d 162 [finding it likely the Child Online Protection Act of 1998 would be deemed overbroad because the definition of harmful material was too broad].)
Notwithstanding defendant’s argument that the statute could reach a person, who, while on vacation in California, e-mailed harmful matter to a person under 18 years of age in another state, we agree with the analysis in Hsu that section 288.2(b) is sufficiently tailored to serve a compelling state interest to pass constitutional muster.
Disposition
The judgment is affirmed.
WE CONCUR: PREMO, J., ELIA, J.
Section 313, subdivision (a) provides, “ ‘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.”