Hatch v. Superior Court

Decision Date31 March 2000
Docket NumberNo. D032423.,D032423.
Citation94 Cal.Rptr.2d 453,80 Cal.App.4th 170
CourtCalifornia Court of Appeals Court of Appeals
PartiesDavid Irving HATCH, Petitioner, v. The SUPERIOR COURT of San Diego County, Respondent; The People, 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, 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 Internet, but those enactments were declared unconstitutional by the Reno decision of the United States Supreme Court in 1997.

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.


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.

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.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 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.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 U-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:

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...

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