Cal. Penal Code §311 - Child Pornography Laws in California
In California, it is illegal to engage in any activity related to child pornography under Cal. Penal Code (PC) §311. This includes sending, transporting, duplicating, printing, advertising, or possessing child pornography [PC §311.1]. It is also a crime to hire or persuade minors to participate in making pornographic images. Some examples of this include sharing videos of naked teenage girls with an internet pornography group, hiring a 16-year-old boy to perform gay porn for pictures and video, or advertising child pornography films and images for sale.
If a defendant is accused of child pornography, he/she may raise legal defenses such as the following: (1) that the defendant did not possess any child pornographic material; (2) that the defendant did not knowingly engage in any illegal activity; (3) that the defendant was connected with a matter that had a legitimate purpose; (4) that the defendant was arrested following an unlawful search and seizure or (5) that the defendant was merely subjected to entrapment operations.
In California, penalties for child pornography offenses are classified as wobblers. A wobbler offense means that it can be charged as either a misdemeanor or a felony, at the discretion of the District Attorney. If charged as a misdemeanor, the offender may face up to one year in county jail, while most felony child pornography cases are punishable by a three-year prison sentence.
Child Pornography Laws in California Explained
The child pornography laws in California are outlined in various Penal Code sections, including §311.1, §311.2, §311.3, §311.4, §311.10, and §311.11. Under PC §311.1 and §311.2, it is considered a crime to knowingly engage in activities such as sending, transporting, producing, possessing, or duplicating child pornography with the intention of distributing it. PC §311.3 criminalizes knowingly developing, duplicating, printing, or exchanging any child pornography [PC §311.3].
Similarly, under PC §311.4, it is a crime to knowingly hire, employ, use, persuade, or coerce a minor to participate in the production of child pornography. [PC §311.4]. PC §311.10 makes it a crime to advertise obscene child porn for sale or distribution, while PC §311.11 criminalizes knowingly possessing or controlling any child pornography that was produced using a person under 18 years old. [PC §311.10; See also PC §311.12] The interpretation of terms like "child pornography," "knowingly," and "obscene" often arises in connection with these laws.
In California, the definition of “child pornography” for the purposes of the law includes any material that depicts sexual activity by a person under 18 years old. This material can take many forms (e.g., films, photographs, videos, or computer-generated images). Sexual activity includes acts like sexual intercourse, oral copulation, anal intercourse, and masturbation.
To be found guilty under California's child pornography laws, a person must have acted knowingly, i.e., he is aware of the nature of the material he was in possession of. This means that they knew they were possessing, transporting, advertising, or being involved in any other activity related to child pornography and the material showed a person under 18 years old engaging in sexual activity [PC §311.4]. As per Judicial Council of California Jury Instructions (CALCRIM) 1141 on Distributing Obscene Matter Showing Sexual Conduct by a Minor, “matter” or “material” pertains to film, videotapes, or photographs, among others.
Some of California's child pornography laws only apply if the material in question is considered "obscene." For something to be deemed obscene, it must show or describe sexual conduct in an offensive way, lack serious literary, artistic, political, or scientific value according to a reasonable person, and appeal to a prurient interest. A prurient interest is an interest in nudity, sex, or excretion that is shameful or morbid [CALCRIM 1141; See also Bloom v. Municipal Court, (California Supreme Court, 1976) 16 Cal.3d 71; and Pope v. Illinois (1987) 481 U.S. 497].
Challenging PC §311 charges
Legal defenses can be used to contest a child pornography charge, and there are five common defenses available. These include: (1) no child pornography was involved; (2) the defendant did not act knowingly; (3) the material was used for legitimate purposes such as medical, scientific, or educational activities; (4) evidence was obtained through an unlawful search and seizure; or (5) an entrapment occurred.
If the accused can demonstrate that the material possessed or acted upon does not fit the legal definition of child pornography under California law, it can be considered a valid defense. Additionally, if a prosecutor cannot prove that the defendant acted knowingly, it can also be used as a defense. The material used for legitimate purposes (e.g., medical, scientific, or educational activities) is also not considered child pornography [CALCRIM 1141]. Evidence obtained through an illegal search and seizure is inadmissible in court, which can lead to charges being reduced or dismissed. Finally, entrapment can be a defense if a law enforcement officer overbearingly coerced the defendant into committing the crime.
Penalties and Immigration Consequences Penal Code 311 conviction
In California, child pornography offenses are considered wobblers. A “wobbler” means that the prosecutor can charge the offense as either a misdemeanor or a felony, at the District Attorney’s Discretion. Misdemeanor child pornography is punishable by up to one year in county jail and/or a maximum fine between $1,000 and $2,500, while most felony child pornography cases are punishable by up to three years in California state prison. It is important to note that a conviction for violating PC §311 requires the defendant to register as a sex offender, even without a prior conviction.
Furthermore, a conviction under PC §311 may have adverse immigration consequences. Certain criminal convictions may lead to deportation or being marked as "inadmissible" under United States immigration law. Crimes of moral turpitude fall under the category of "deportable" or "inadmissible" offenses, and a child pornography conviction may be considered as such, resulting in negative immigration consequences for the defendant [See Immigration and Nationality Act 237 subsection (a) (2) (A)].
Expungement of PC §311 Conviction
A person who has been convicted of this crime may be eligible for expungement if they successfully complete probation or a relevant jail term. [PC §1203.4] However, if a probation term is violated, the expungement will be left at the discretion of the judge. According to PC §1203.4, an expungement relieves the individual of almost all penalties and disabilities related to the conviction. Expungement, however, DOES NOT relieve the defendant from his duty to register as a sex offender.
Penal Code §311 conviction and individual's gun rights
A conviction under PC §311 may negatively impact the defendant's right to possess a firearm. California law states that convicted felons are prohibited from owning or possessing a firearm in the state. Therefore, if the alleged child pornography violation is charged and convicted as a felony, the defendant may lose their right to own and possess a gun.
Offenses Related to PC §311
There are three sex crimes related to child pornography violations and the sexual abuse of children: lewd acts with a child (PC 288), statutory rape (PC 261.5), and revenge porn (PC 647j4).
1. What is “lewd acts with a child – PC 288”?
PC §288 makes it a crime for a person to commit a lewd act with a minor child. A "lewd act" refers to either touching a child for sexual purposes or causing a child to touch themselves or someone else for a sexual purpose. It is important to note that this crime involves the actual touching of a minor.
2. What is “statutory rape – PC 261.5”?
PC §261.5 states that it is a crime for a person to engage in sexual intercourse with a person under the age of eighteen. Unlike most child pornography crimes, this offense involves sexual intercourse with a minor.
3. What is “revenge porn – PC 647j4”?
PC §647j4 defines “revenge porn” as the act of distributing private sexual images of someone with the intent to cause that person emotional distress. It ia important to note that revenge porn can be committed with images of a minor or an adult.
These issues can be complex and generate unfavorable outcomes if an attorney not sufficiently focused in this area of the law, or otherwise ill-equipped to represent a defendant is hired. Our firm has decades of experience successfully representing people with legal matters same or similar in this case. We may be reached for a legal consultation with one of our attorneys to avoid difficulties and problems that may arise hiring a lawyer last-minute.