People v. Hsu

• Decision Date: 03 August 2000
• Docket Number: No. A088201.,A088201.
• Citation: 99 Cal.Rptr.2d 184,82 Cal.App.4th 976
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Patrick Chungliang HSU, Defendant and Appellant.

99 Cal.Rptr.2d 184

82 Cal.App.4th 976

The PEOPLE, Plaintiff and Respondent, v. Patrick Chungliang HSU, Defendant and Appellant.

No. A088201.

Court of Appeal, First District, Division 5.

August 3, 2000.

Review Denied Nov. 29, 2000.^*

Edward W. Swanson, San Francisco, Alexis Haller, Swanson & McNamara LLP, for plaintiff and respondent.

Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Ronald A. Bass, Senior Assistant Attorney General, René A. Chacón, Supervising Deputy Attorney General, Gerald A. Engler, Deputy Attorney General, for defendant and appellant.

JONES, P.J.

Patrick Chungliang Hsu appeals his conviction by plea of nolo contendere of two counts of attempting to distribute or exhibit lewd matter to a minor by the Internet (Pen.Code,¹ §§ 288.2, subd. (b), 664). He contends his conviction must be reversed because section 288.2, subdivision (b) violates the commerce clause (U.S. Const., art. I, § 8, cl.3) and the First Amendment of the United States Constitution. We conclude that section 288.2, subdivision (b) passes constitutional muster, and therefore affirm Hsu's conviction.

BACKGROUND

As a result of an undercover investigation on the Internet, Detective Steven McEwan of the San Jose Police Department child exploitation unit arrested an individual (not Hsu) carrying two pictures of a naked 14-year-old boy. McEwan located the boy in Walnut Creek, and the boy allowed McEwan to use his Internet service provider and assume his screen name. On consecutive days Hsu initiated two "instant messages" with the boy.² McEwan, pretending to be the boy, responded. During the ensuing electronic conversations, Hsu sent two photographs of himself, one lying on his bed wearing underwear, and one seated, shirtless and wearing unzipped jeans. He also sent a photograph of an unidentified male in his late teens lying on a bed wearing shorts that had been pulled back to display an erect penis. Hsu offered to engage in specific sexual acts, and invited the boy to meet him at his house. Hsu resides and works in Walnut Creek. The parties do not dispute he initiated the messages from his residence.

Following Hsu's plea, imposition of sentence was suspended, and he was placed on three years' probation. The trial court issued a certification of probable cause for appeal from the conviction. (§ 1237.5, subd. (a).)

DISCUSSION

STANDARD OF REVIEW

Hsu challenges section 288.2, subdivision (b)³ as facially unconstitutional under the commerce clause and the First Amendment. "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. [Citation.] `"To support a determination of facial unconstitutionality, voiding the statute as a whole, [Hsu] cannot prevail by suggesting that in some future hypothetical situation constitutional problems may possibly arise as to the particular application of the statute.... Rather, [Hsu] 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, 40 Cal.Rptr.2d 402, 892 P.2d 1145 (Tobe), italics omitted.) In short, a facial challenge must be rejected unless no set of circumstances exists in which the statute can be constitutionally applied.

The exception to this rule is a facial challenge based on First Amendment free speech grounds. Courts "have applied to statutes restricting speech a so-called `overbreadth' doctrine, rendering such a statute invalid in all its applications (i.e., facially invalid) if it is invalid in any of them." (Ada, Governor of Guam v. Guam Society of Obstetricians & Gynecologists et al. (1992) 506 U.S. 1011, 1012, 113 S.Ct. 633, 121 L.Ed.2d 564 (dis. opn. of Scalia, J. to order denying certiorari); see also Gooding v. Wilson (1971) 405 U.S. 518, 520-521, 92 S.Ct. 1103, 31 L.Ed.2d 408: exception applies to claim of vagueness; People v. Rodriguez (1998) 66 Cal.App.4th 157, 167, 77 Cal.Rptr.2d 676.) "[T]he 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. J.H. Munson Co. (1984) 467 U.S. 947, 967-968, 104 S.Ct. 2839, 81 L.Ed.2d 786.)

All presumptions and intendments favor the validity of statutes, and they will be upheld unless their unconstitutionality clearly and unmistakenly appears. (Calfarm Ins. Co. v. Deukmejian (1989) 48 Cal.3d 805, 814, 258 Cal.Rptr. 161, 771 P.2d 1247.)

The Commerce Clause Challenge

The United States Constitution grants to Congress the power to regulate commerce with foreign nations and among the several states. (U.S. Const., art. I, § 8, cl.3.) Even if Congress has not specifically regulated an incident of interstate commerce, state laws that unduly burden interstate commerce and thereby impede free private trade in the national marketplace generally violate the so-called dormant commerce clause. (General Motors Corp. v. Tracy (1997) 519 U.S. 278, 287, 117 S.Ct. 811, 136 L.Ed.2d 761.)

The Internet is undeniably an incident of interstate commerce,⁴ but the fact that communication thereby can affect interstate commerce does not automatically cause a state statute in which Internet use is an element to burden interstate commerce. Absent conflicting federal legislation, states retain their authority under their general police powers to regulate matters of legitimate local concern, even if interstate commerce may be affected. (Lewis v. BT Investment Managers, Inc. (1980) 447 U.S. 27, 36, 100 S.Ct. 2009, 64 L.Ed.2d 702.) The test for determining if a state statute violates the commerce clause is set forth in Pike v. Bruce Church, Inc. (1970) 397 U.S. 137, 90 S.Ct. 844, 25 L.Ed.2d 174 (Pike). "Where the statute regulates evenhandedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits. [Citation.] If a legitimate local purpose is found, then the question becomes one of degree. And the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities." (Id. at p. 142, 90 S.Ct. 844.)

Under the Pike test, section 288.2, subdivision (b) does not violate the commerce clause. Statutes affecting public safety carry a strong presumption of validity (Bibb v. Navajo Freight Lines (1959) 359 U.S. 520, 524, 79 S.Ct. 962, 3 L.Ed.2d 1003), and the definition and enforcement of criminal laws lie primarily with states. (United States v. Lopez (1995) 514 U.S. 549, 561, fn. 3, 115 S.Ct. 1624, 131 L.Ed.2d 626.) States have a compelling interest in protecting minors from harm generally and certainly from being seduced to engage in sexual activities. (See Sable Communications of Cal, Inc. v. FCC (1989) 492 U.S. 115, 126, 109 S.Ct. 2829, 106 L.Ed.2d 93 (Sable); Globe Newspaper Co. v. Superior Court (1982) 457 U.S. 596, 607, 102 S.Ct. 2613, 73 L.Ed.2d 248.) Conversely, it is difficult to conceive of any legitimate commerce that would be burdened by penalizing the transmission of harmful sexual material to known minors in order to seduce them. To the extent section 288.2, subdivision (b) may affect interstate commerce, its effect is incidental at best and far outweighed by the state's abiding interest in preventing harm to minors.

Relying primarily on American Libraries Ass'n. v. Pataki (S.D.N.Y.1997) 969 F.Supp. 160 (Pataki), Hsu argues that section 288.2, subdivision (b) is unconstitutional because it subjects Internet users to inconsistent regulations. At issue in Pataki was a New York statute similar to section 288.2, subdivision (b) but without the multiple knowledge and intent elements of the latter.⁵ In what is essentially a preemption analysis, Pataki concluded the New York statute violated the commerce clause because, inter alia, the nature of the Internet, like that of rail and highway traffic, 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 permissibly disseminated thereby. (969 F.Supp. at p. 182.) Absent national regulations, according to Pataki Internet users will be subject to inconsistent local statutes regulating the content of their communications, i.e., the various states may not have a uniform definition of "`harmful to minors.'" (Ibid.)

The knowledge and intent elements missing from the New York statute but present in section 288.2, subdivision (b) significantly distinguish the two statutes. The New York statute broadly banned the communication of harmful material to minors via the Internet. The scope of section 288.2, subdivision (b) is much narrower. Only when the material is disseminated to a known minor with the intent to arouse the prurient interest of the sender and/or minor and with the intent to seduce the minor does the dissemination become a criminal act. The proscription against Internet use for these specifically defined and limited purposes does not burden interstate commerce by subjecting Internet users to inconsistent regulations. As Pataki itself observed, and People v. Foley (1999) 257 A.D.2d 243, 692 N.Y.S.2d 248, 256 subsequently held, New York could realistically prosecute violations of New York Penal Law section 235.22(2), which, like section 288.2, subdivision (b), prohibits adults from luring minors into sexual contact via Internet communication of harmful material, without violating the commerce clause. (Pataki, supra, 969 F.Supp. at p. 179.)

Again relying primarily on Pataki, Hsu argues section 288.2,...