While there is no specific law in California criminalizing the act of viewing child pornography, it is illegal to produce, possess, transport, distribute, and sell materials that display or involve the sexual conduct of children less than 18 years old. California’s obscenity laws also make it illegal to exploit children through pornographic materials. This Los Angeles Criminal Lawyer article will inform you about California PC 311.11 and related legislation regarding child pornography. 

Defining Child Pornography Laws In California

According to PC 311.11, child pornography is defined as any representations and materials of minors less than 18 years of age that are personally simulating or engaging in sexual conduct. Any person has violated PC 311.11 if they knowingly control or possess images, data, representations or materials that include, but are not limited to a videotape, photocopy, slide, photograph, negative, film, filmstrip, video laser-disc, computer-generated images, computer-generated equipment, CD-ROM, data storage media, computer floppy disc, computer software, or computer hardware. 

Defining Sexual Conduct

PC 311.11 refers to the definition of sexual conduct in PC Section 311.4. Any of the subsequent actions, whether simulated or actual are sexual conduct: any lascivious or lewd sexual act (see Section 288), excretory functions carried out in a lascivious or lewd manner, penetration of the rectum or vagina with any object or item in a lascivious or lewd manner, sexual masochism, sexual sadism, bestiality, masturbation, anal oral copulation, anal intercourse, oral copulation, sexual intercourse, or the presentation of the public or rectal area or the genitals for the objective of the viewer’s sexual stimulation. 

Even the appearance of a sexual act (i.e., if it is simulated) is considered sexual conduct. Under California law, the definition of child pornography is broad in order to cover a diverse set of mediums and behaviors. While this definition is inclusive of different conducts, the individual situation will decide the specific charges you may face regarding child pornography. 

Section 288 clarifies that the aforementioned actions will not result in a criminal charge for situations involving minors who are legally emancipated and minors who conduct themselves lawfully between spouses when one or both are below 18 years old. The Section goes on to state that when a victim is under the age of 14 when the offense occurs, their age must be proven so that an enhanced penalty be served (as described in Section 647.6). 

California's Laws Prohibiting Child Pornography

There are multiple laws in California that are used to ban child pornography. Each law and regulation relates to a specific action. These behaviors regarding child pornography include possession, distribution, and creation. California law also makes it illegal to force, persuade, or to hire children to engage or perform in any projects related to child pornography. The following sections will describe the different charges and potential sentences for each Penal Code in California related to child pornography.

Possessing Child Pornography Is Illegal In California

Under California’s PC 311.11, it is illegal to control or possess child pornography consciously. You can only be convicted on the possession of child pornography if you have done both of the following: 

  • Understand the nature of the content under your control; as well as,
  • Understand that said content portrays persons below 18 years old.

In certain cases, child pornography could portray teenagers who might logically pass for adults. Meaning that if you are in possession of child pornography; however, incorrectly believe that the persons portrayed in the subject matter are adults, then the court should not convict you of this possession charge.

The crime of child pornography possession can be complicated because it can be charged as either a felony or a misdemeanor. Further, the amount of your prior convictions will determine the fate of this charge as a more serious felony or a lesser one of a misdemeanor. 

The Sentence For a First Time Possession Conviction

For those first time offenders of possession, a conviction will result in a felony with a one-year sentence in LA County (or your local county) jail in addition to or replaced by a $2,500 fine. However, for those who have previously been convicted of PC 311.11 or another crime that results in registration as a sex offender, the sentence will be carried out in state prison for up to six years.

Additional Consequences For Those With One or More Prior Convictions of Possession

A singular or multiple conviction record of child pornography will result in multiple years in state prison if you are convicted again. This subsequent conviction will end you up serving in a California state penitentiary for two, four, or six years. Unlike a first time offense, you will also be required to submit to the sex offender registration process. 

The Laws Against Distribution of Child Pornography

Beyond what PC 311.1 describes, PC 311.2 makes it illegal to exchange, exhibit, or distribute child pornography consciously. The following actions could result in a child pornography distribution charge under PC 311.11 and 311.2:

  • Printing, developing, or duplicating child pornography
  • Preparing, producing, or publishing child pornography
  • Being in possession of child pornography
  • Bringing, sending, or being the cause of child pornography to infiltrate the State of California.

The seriousness of the charge for exchanging, exhibiting or distributing child pornography depends on who the intended audience is, whether the content was meant to be distributed commercially, as well as if the content is obscene. However, it is not necessary to prove the obscene essence of the material or the intent for the matter to be commercially distributed for the charge of distribution to be brought. 

The court can classify most of these convictions as either misdemeanors or felonies, and the maximum penalty for a misdemeanor of this charge is one-year in county jail as well as a $1,000 fine. Therefore, it is crucial for your criminal lawyer to argue their best for your charge to be classified as a misdemeanor by the court.  

Defining an Obscene Matter

Defined in the Supreme Court case, Miller v. California (1973), an obscene matter is determined by a three-part test. Subject to the contemporary standards of the community, the test asks if an average person would consider the matter to be of the following sort: generally appeals to prurient interests (meaning containing or encouraging excessively sexual matters), it portrays clearly offensive sexual conduct, and does not have value in a scientific, political, artistic, or literary manner. 

If the child pornography that you possess, distribute, or transport is considered obscene, you will face a felony. The charge for this felony carries a sentence of two, four, or six years in state prison as well as a $10,000 fine. 

Defining Sexual Exploitation of a Child

PC 311.3 defines sexual exploitation of a child as knowingly printing, developing, duplicating, or exchanging material of sexual conduct of a person less than 18 years old. This material can be of any of the mediums as previously described in PC 311.11 and any sexual conduct as defined in PC 311.14. PC 311.3 adds that actions such as urination or defecation in order to sexually stimulate the viewer also counts as sexual conduct of sexually exploiting a child. 

Subdivision (e) of PC 311.3 clarifies that any employee or commercial film developer who acts within the purview of their employment and follows the orders of their employer, they are not guilty of sexual exploitation as long as they don’t have a financial stake in their employer (the commercial developer of the sexually exploitative project). 

Anyone who violates and is convicted of PC 311.3 or the sexual exploitation of a child will be sentenced to a maximum one-year sentence in county jail in addition to or replaced by a fine not exceeding $2,000. 

The Crime for Employing Minors In Child Pornography

Anyone who consciously or should sensibly know that they have employed, used, or hired a person under 18 years old to participate in sexual acts for pornography is guilty of PC 311.4. For those convicted of this crime for the first time, they could see either a felony or a misdemeanor.

Defining the Crime of Coercive Behavior

The same legislation, PC 311.4, specifies the illegality of trying to coerce, induce, persuade, use, employ, promote a person of less than 18 years (or the legal guardian of a minor) to engage in creating pornographic materials. This coercive behavior is characterized as a felony and can result in heavy fines and years-long state prison sentences. 

Defining the Law Regarding Advertising or Distributing Child Pornography

The intent to make child pornography available for commercial use is a felony according to PC 311.10. Anyone who advertises to sell or distribute obscene matter of a minor simulating or engaging in sexual conduct could be charged with a felony that carries a maximum punishment of multiple years in state prison or a $50,000 fine. The distribution of child pornography to either minors or adults is charged as a felony. 

Situations When It Is Necessary To Register As a Sex Offender

California’s PC 290 describes which crimes lead to registration as a sex offender. Of the many sex-related convictions that could require this registration, subdivision (c) states that every person that has been convicted of PC 311.1, 311.2 (subdivision b, c, or d), 311.3, 311.4, 311.10, or 311.11 since July 1, 1944, in a court in California, any Federal court, or military court must register as a sex offender. 

This registration process occurs with the chief of police in the city where the offender lives, with the county sheriff if residing in an unincorporated city or area without a police department, as well as with the police chief of a school campus if the offender lives on or near the campus of a community college, California State University, or the University of California. If the offender moves into one of these areas, they must register according to the above regulations in no more than five business days. 

According to subdivision (d) of PC 290, there are three different tiers or levels of being an offender that determines the duration that the registration will last: ten years, twenty years, and life. These periods of time begin after one’s conviction and subsequent release from either probation, commitment, placement, or incarceration. The following are the requirements of each tier.

Tier one: The offender must register for at least ten years. Those who are subject to tier one are those who have committed a misdemeanor of a crime listed in PC 290 subdivision (c) or a felony from the same list that was not violent or serious. 

Tier two: The offender must register for at least twenty years. Those who are subject to tier two are those who have been convicted of a crime listed in PC 290 subdivision (c) if it is their second or consecutive conviction of the same offense as long as it was for a distinct charge and was convicted separately.

Tier three: The offender must register for life. This life registration requirement is for those who have committed and been convicted of multiple crimes listed in PC 290 subdivision (c), and at least one of these felonies was deemed violent. One will also be registered for life if the court deems the offender to be a predator of the sexually violent type and sentences them to serve in a state-run mental hospital. An above average result of risk on the (SARATSO) evaluation could also lead you to a life registration. Other combinations of crimes and convictions as described in PC 290 also result in a life registration. 

Reviewing the Laws and Punishments for Child Pornography In California

As previously discussed, the specific details of the case from possession to production and the type of sexual conduct involved will determine the potential charge or sentence. In addition, a previous conviction of a related crime could elevate a subsequent one from a misdemeanor to a felony. Below, a general guideline of these charges will lay out the maximum sentence you may face:

  • PC 311.1, sending or distributing sexual conduct of a child: Misdemeanor (one-year county jail sentence in addition to or instead of a $1,000 fine), felony (three years in state prison and up to a $10,000 fine) 
  • PC 311.2, sending or distributing obscene content of a child: Misdemeanor (one-year county jail sentence in addition to or instead of a $2,000 fine), felony (two, three, or six years in state prison in addition to or instead of a $100,000 fine) 
  • PC 311.3, sexual exploitation of a child: one-year county jail sentence in addition to or instead of a $2,000 fine
  • PC 311.4, conscious employment or use of a minor in an obscene matter: Misdemeanor (one-year county jail sentence in addition to or instead of a $2,000 fine), felony (three, six, or eight years in state prison in addition to or instead of a $50,000 fine) 
  • PC 311.10, advertising the sale or distribution of an obscene matter while conscious that it portrays someone less than 18 years old: Felony (one-year in county jail, two, three, or four years in state prison, or a $50,000 fine) 
  • PC 311.11, possession or control of sexual conduct of a person less than 18 years old: Felony (one-year county jail sentence in addition to or instead of a $2,500 fine for first-time offenders, or two, four or six years in state prison for multiple-conviction offenders)

Specific Defenses That My Criminal Lawyer Could Use To Defend Me

A prosecutor must prove your guilt beyond a legitimate doubt; therefore, a good defense of your actions would be to justify, excuse, as well as explain the alleged crime. There are many factors that could make holes in the prosecution’s case, including the following:

  • If you were arrested unlawfully
  • If the police carried out an illegal search and seized property illegally
  • If false accusations were made against you
  • If you reasonably lacked knowledge of the pre-eighteen age of the alleged victim(s)
  • If you lacked intent to distribute, advertise, or carry out the alleged crimes

If the state (police, court, etc.) violates any of your rights, such as illegally obtaining evidence, improperly interrogating you, or unlawfully arresting you, then your criminal lawyer can have the evidence tossed out of court. If the prosecution can’t use this evidence, the chances are that the case they have against you is weak, making the likelihood of a conviction even smaller. Make sure that you know your rights as a resident or citizen of California.

Find a Los Angeles Criminal Defense Lawyer Near Me

The Los Angeles Criminal Lawyer is here to defend you in your child pornography case and can be reached at 310-592-1314. Don’t hesitate - please call us today!