Under California law, “child pornography Penal Code 311 PC” refers to any visual or digital material that shows someone under 18 years old participating in a sexual activity. This includes but is not limited to images, videos, data, and computer files.
Whether something is considered child pornography is based on the age of the person depicted at the time of production, not their current age.
In extraordinary circumstances, exemptions are granted for minors who have been legally emancipated, as well as for the consensual sexual acts of those married couples under 18, like a 19-year-old and their 17-year-old partner capturing themselves engaging in intercourse.
The definition of illegal child pornography in California is extensive, making a number of different forms of pornography subject to prosecution.
Example 1: A woman operates an online store that sells adult movies and magazines. She knowingly includes DVDs containing child pornography in some of the packages she ships to customers. In this scenario, the store owner could face charges for knowingly distributing and trafficking child pornography, regardless of the fact that she did not create the content herself.
Example 2: A college student secretly records a sexual encounter with his underage girlfriend and saves the video on his computer. Possession of pornographic material that portrays minors is illegal, making the college student in this scenario liable for breaking the law.
Example 3: A young man convinces several of his underage friends to participate in the creation of amateur pornographic videos, and receives payment for arranging the shoots. Even though the young man did not actively participate in the production of the videos, he could still be breaking the law.
In California, anyone charged with a misdemeanor or felony should consult an attorney as soon as possible. Because we believe everyone should have access to quality legal advice, the Law Offices of Tabibnia Law Firm offers a free initial consultation to anyone facing an infraction, felony or misdemeanor charge in the Los Angeles area.
California Child Pornography Laws
All of California’s laws regarding child pornography can be found in Penal Code 311. This code encompasses various provisions that outline the various prohibited acts of child pornography in the state. The laws regarding child pornography in California are outlined in Penal Code sections 311.1, 311.2, 311.3, 311.4, 311.10, and 311.11.
- Penal Code 311.1 and 311.2 state that it is illegal to knowingly distribute, produce, possess, transport or duplicate any form of child pornography with the intention of sharing it.
- Under Penal Code 311.3, it is illegal to knowingly create, reproduce, print or trade in any form of child pornography.
- Penal Code 311.4 states that it is illegal to knowingly engage a minor through employment, use, persuasion, coercion, or any other means in the production of child pornography.
- Penal Code 311.10 makes it a criminal offense to knowingly advertise the sale or distribution of obscene child pornography.
- Under Penal Code 311.11, it is illegal to knowingly possess or have control over child pornography that was created using a person under the age of 18.
Child pornography
The term “child pornography” as used in child protection laws is defined broadly to include:
- any matter or material,
- depicting sexual conduct/sexual activity,
- by a person under 18 years of age.
Matter or material” includes such items as:
- films
- photographs, negatives, or slides
- videotapes
- computer-generated equipment
Sexual conduct” includes such acts as:
- sexual intercourse
- oral copulation
- anal intercourse
- masturbation
Knowingly
A person is only guilty under California’s child pornography laws if he acts knowingly. This means that the defendant:
- had knowledge of the nature of the material he transported, possessed or advertised.
- knew that the material portrayed a minor engaging in sexual conduct.
Obscene
In California, child pornography laws state that an offense can only be committed if the material in question is deemed “obscene”. Something is “obscene” if:
- It portrays sexual conduct in a way that is highly offensive.
- a reasonable person would conclude that it lacks serious literary, artistic, political, or scientific value.
- an adult would conclude that the material is intended to appeal primarily to sexual interest.
A “prurient interest” refers to a shameful or morbid fascination with:
- nudity,
- sex, or
- excretion.
For example: Elena creates a beautiful art film which centers around the captivating romance between two young adults. Starring two real teenage actors, the film mainly explores their mental and emotional growth – though it does contain some scenes with simulated sex between the two. Despite this, the movie is not offensive, nor does it have any morbid material, and it retains its artistic value.
Are There Legal Defenses?
A defendant can utilize a legal defense to challenge a child pornography charge. Five common defenses are that there was:
- no child pornography,
- no knowingly act,
- legitimate purpose,
- unlawful search and seizure, and
- entrapment
No child pornography
It’s important to note that the term “child pornography” has a specific definition in California law. This gives an accused individual the opportunity to argue that the material they possessed or were involved with does not meet the definition of child pornography under the law.
No knowingly act
Under California law, a person can only be found guilty of violating the state’s child pornography statutes if he or she acted knowingly. In order to convict a defendant of knowingly committing a crime, prosecutors must prove certain facts.
Therefore, a person charged with possession of child pornography can use the defense that he was unaware that what he possessed was considered illegal. Downloading an image without knowing that it contained pornography is just one example of this kind of mistake.
Matter with a legitimate purpose
Under the law, material that serves certain legitimate purposes is excluded from the definition of “child pornography.” This means that a defendant cannot be found guilty of a crime if they were engaging in activities that have a legitimate purpose.
- medical,
- scientific, or
- educational activities
Example: A college student organization creates an awareness campaign about the dangers of drug abuse. The members of the organization star in the campaign and it includes some scenes depicting simulated drug use. In this case, the campaign is not considered “child pornography” because it serves a legitimate educational purpose.
Unlawful search and seizure
The Fourth Amendment of the U.S. Constitution guarantees that individuals have the right to be protected from unreasonable searches and seizures by the police. If the police collect evidence through an unlawful or unreasonable search and seizure, the evidence can be barred from being used in a criminal trial. This could result in a reduction or even dismissal of charges against the individual. For instance, if the police searched an individual’s computer without proper authority, such as:
- without a search warrant, or
- with a defective warrant.
Entrapment
Many cases related to PC 311 often result in arrests of suspects who were approached by an undercover police officer who sold them pornographic material through the internet or via mail.
However, if the police officer lured a suspect to commit the crime, any charges against the suspect must be dismissed. This form of “luring” is referred to as entrapment and occurs when law enforcement officers engage in excessive or improper behavior, such as:
- pressure,
- harassment,
- fraud,
- flattery, or
- threats.
Entrapment can be used as a valid legal defense if the accused can prove that they only committed the crime due to the entrapment.
What are the penalties for 311 PC?
In California, the consequences for being convicted of child pornography vary based on the specific circumstances of the case. Many related offenses are considered “wobblers,” meaning they can be charged as either a felony or a misdemeanor.
If convicted of a misdemeanor child pornography charge in California, the maximum punishment is a one-year county jail sentence and a fine up to $2,000.
The punishment for a felony conviction of child pornography in California can range from 16 months to 8 years in state prison, and may also include a fine of up to $100,000.
Additionally, it’s important to note that a conviction for child pornography in California will require the defendant to register as a sex offender, regardless of whether they have a prior criminal record. It’s crucial to understand the consequences of California’s sex offender registration.
What are the immigration consequences?
If someone is convicted of violating Penal Code 311, it could result in adverse effects on their immigration status. Under US immigration law, specific types of criminal convictions have the potential to cause various consequences in terms of immigration. This can lead to:
- a non-citizen being deported, and
- a non-citizen being marked “inadmissible
“Crimes of moral turpitude” fall under a group of offenses that could render a person either “deportable” or “inadmissible” under US immigration law.
A conviction for child pornography may have unfavorable immigration outcomes for a defendant, particularly if it is classified as a “crime of moral turpitude” based on the specifics of the case.
Is it possible for an individual to have a conviction expunged?
If a person meets certain criteria, they may be entitled to have their criminal record expunged. If he:
- successfully completes probation, or
- completes a jail term (whichever is relevant).
Whether a person can still have their offense expunged after violating a probation term is at the discretion of the judge.
Penal Code 1203.4 allows for an expungement, which can relieve a person from almost all the penalties and limitations that resulted from their conviction. This means that the individual may be able to move forward without some of the consequences of their past conviction affecting their life, such as difficulty finding employment or housing.
Does A Conviction Affect Gun Rights?
Being convicted of a crime under Penal Code 311 (311 PC) could potentially result in the loss of gun rights for the defendant. In California, felons are prohibited from obtaining or owning firearms. Therefore, a conviction under this statute could mean that the defendant may be unable to legally possess or acquire guns in the state of California.
This means that:
- if a prosecutor decides to charge an alleged child pornography violation as a felony, and
- the accused is convicted of the crime,
the defendant will lose his rights to own and possess a gun.
Related Offenses
There are three distinct sex crimes that relate to the illegal possession or distribution of child pornography and the sexual abuse of children. These crimes are considered particularly serious offenses, and anyone who is accused of committing them could face severe legal consequences. These offenses are:
- lewd acts with a child – PC 288
- statutory rape – PC 261.5, and
- revenge porn – PC 647j4
Lewd acts with a child – PC 288
Engaging in sexual conduct with a minor that is considered lewd and inappropriate is a criminal offense under Penal Code 288 PC. A “lewd act” is either:
- touching a child for sexual purposes, or
- causing a child to touch himself or someone else for a sexual purpose.
It is important to note that a violation of Penal Code 288 involves physically touching a minor in a lewd or inappropriate manner.
Statutory rape – PC 261.5
According to Penal Code 261.5 PC, it is unlawful for an individual to engage in sexual intercourse with a person who is under the age of eighteen. This crime, unlike many child pornography offenses, entails engaging in sexual intercourse with a minor.
Revenge porn – PC 647j4
Penal Code 647j4 PC says that revenge porn is the crime of:
- distributing private sexual images of someone, and
- doing so with the intent to cause that person emotional distress.
Note that revenge porn can be committed with images of a minor or an adult.
How Los Angeles Criminal Defense lawyer can help
If you’ve been accused of a sex offense in Los Angeles, Van Nuys, Beverly Hills, Orange county, Ventura County, Riverside, San Fernando, Burbank, Santa Monica or Orange County, it’s crucial to hire a criminal defense attorney who has extensive experience dealing with sex crime cases. The Tabibnia Law Firm offers legal services to individuals who have been detained or arrested for sex crimes in the Southern California area. Cyrus Tabibnia, the lead attorney, has a thorough understanding of the seriousness of these charges and how to defend his clients while avoiding jail time. He has a wealth of knowledge about the law and the legal system, and he has developed strong relationships with law enforcement and officials throughout the region.
If you’d like to learn more about various ways for handling a sex crime case, schedule a free consultation with a sex crimes Defense lawyer in Los Angeles. Contact the Tabibnia Law Firm today.
