Child Pornography (Penal Code 311)

What is California Penal Code 311 Child Pornography?

California’s prohibition concerning child pornography are spelled out chiefly in five different subsections under Penal Code 311.   The following is a brief description of the various subsections of California Penal Code 311 Child Pornography:

Penal Code 311.1 & 311.2: These subsections relate to the crimes of sending, transporting, producing, possessing or duplicating child pornography when there is a motive to distribute.

Penal Code 311.3: This subsection relates to the crime of creating, reproducing, or trading child pornography.

Penal Code 311.4: This subsection relates to the crime of hiring, employing, using, persuading, or coercing somebody under the age of 18 to partake in the making of child pornography.

Penal Code 311.10: This subsection relates to the crime of marketing “obscene” child pornography for the purpose of selling or dispersing it.

Penal Code 311.11: This subsection relates to the crime of retaining or supervising child pornography.

Keep in mind the above descriptions are simply generalized definitions of the various subsections of California Penal Code 311 Child Pornography.  Each subsection contains various nuances.  A Sex Crimes Attorney can go over these various nuances and explain how exactly they apply to a specific case.

What is the legal description of California Penal Code 311 Child Pornography?

Before you can be convicted of a California sex crime through a trial hearing, where the ultimate verdict is decided by a judge or a jury, the prosecutor must prove their case against you.  More specifically, they must prove all of the elements of the sex crime you are charged with.  An “element” is simply a fact related to the crime.  Each of elements must be proven by the prosecutor up to a minimum standard of certainty.  For a California sex crime, the prosecutor must prove each element “beyond a reasonable doubt.”  Keep in mind, a prosecutor only has to prove all of the elements beyond a reasonable doubt if a case proceeds to trial.  You can still be convicted before a case goes to trial.  If this is the case, the prosecutor does not need to prove all of the elements.  For example, this might happen if you formally confess to a crime or if you choose to accept a plea offer.

The elements for California Penal Code 311 Child Pornography are as follows:

  • The Defendant Knowingly Performs the Actions Set forth in Element #2.
  • [Behavior described in the subsection of Penal Code 311 charged] Of
  • Any Substance or Property
  • That Portrays Real or Replicated Sexual Behavior
  • Involving Someone who is a Minor
  • [Some Jurisdictions Only – the Substance or Property is Obscene]

Now, we will review each of the elements in more detail.  These elements form the basis of the negotiations and investigations that occur before trial.  If one of these elements is not backed up by evidence, it might be possible for a Sex Crime Attorney to negotiate a plea offer or argue dismissal of charges.  It is important to understand the major issues involved in the elements because they frame how a criminal prosecution will proceed.

Knowingly

The prosecutor has to prove that you had the requisite “mens rea” before you can be convicted of California Penal Code 311 Child Pornography through a trial hearing.  In other words, they have to show that you had the intent outlined in the language of the law.  For California Penal Code 311 Child Pornography, the requisite intent is Knowledge.  This means the prosecutor has to show that you knew or reasonably should have known about what was going on in the relevant material and that there was somebody partaking in or mimicking sexual behavior who was a minor.

Intent is often problematic to prove.  This is because it is truly impossible to get inside the head of another person.  A prosecutor is often forced to rely on circumstantial evidence to prove intent.  Nevertheless, even though intent is hard to demonstrate, defendants should be aware that juries or judges might not give them the benefit of the doubt when they evaluate the evidence.  Defendants should keep this in mind in deciding whether to proceed to trial or to accept a plea offer.

Minor

Under California Penal Code 311 Child Pornography, a minor refers to a person who is younger than eighteen years old.  A defendant is not subject to liability under California Penal Code 311 Child Pornography if the person looks like a minor, but they are actually older than the age of eighteen.  Keep in mind that if the person involved in the sexual behavior is not a minor, a defendant may still face a misdemeanor charge under Penal Code 647.6 (Irritating or Harassing a Minor).  Furthermore, the material is not subject to criminal liability under California Penal Code 311 Child Pornography if the minor in the material is not a real person. 

Additionally, under California Penal Code 311 Child Pornography, a defendant is not criminally liable if the minor is lawfully emancipated or the minor is lawfully married where the sexual behavior was conducted with the spouse of the minor.

Substance or Property

Under California Penal Code 311 Child Pornography, “substance” or “property” are defined expansively.  This means that California Penal Code 311 Child Pornography encompasses a wide variety of types of pictorial or auditory material.  This includes, but is not limited to films, videotapes, photos (including negatives/slides), reproductions, prints, computer-stored records, canvases, portraits, sketches, illustrations, artwork, graphics, figurines, sculptures, and even real-time or chronicled phone messages.

Sexual Behavior

Under California Penal Code 311 Child Pornography, sexual behavior refers to the following, but is not limited to, types of behavior: intercourse, copulation, anal sex, masturbating, animal sex, sadistic sex acts, masochistic sex acts, lustful anal or genital penetration with the use of any item, displaying genitals or the anus for sexual arousal, peeing or pooping done in a lustful manner, or physically contacting a minor with the intent of sexual gratification or arousal

Under California Penal Code 311 Child Pornography, the sexual behavior listed above  can be real or fabricated, presented solo or with other people, heterosexual or homosexual, and/or involve animals.  An action is considered to be “fabricated” when it produces the manifestation of sexual behavior.

Obscene

Certain subsections under California Penal Code 311 Child Pornography are only triggered if the materials at issue are obscene.  The Supreme Court of the United States has long struggled with the issue of what exactly constitutes obscenity.  For the purposes of California Penal Code 311 Child Pornography, obscenity refers to something that 1) Depicts sexual behavior in a clearly distasteful manner; 2) Such that a rational person would establish that the material does not contain any scholarly literary, creative, political, or scientific significance; 3) AND a normal adult, operating on modern morals and values, would determine that the material appeals to lustful motivations.

Material with a Legitimate Purpose

If the material at issue has a legitimate purpose, then it is not subject to criminal liability under California Penal Code 311 Child Pornography.  The law recognizes two general types of “legitimate purpose” exceptions.  First, if the material is used in investigating or prosecuting crimes by the police, then the material is not subject to liability under California Penal Code 311 Child Pornography.  Secondly, if the material is used to advance legitimate endeavors in medicine, science, or education, then it is also not subject to liability under California Penal Code 311 Child Pornography.

What are the potential punishments under California Penal Code 311 Child Pornography?

The punishments under California Penal Code 311 Child Pornography vary upon certain factors, including, but not limited to, the following: the quantity and kinds of materials at issue, whether there was an intention to circulate the materials for economic gain, whether there was an intention to involve a person who was a minor, whether the charged person actively partook in the production of the suspect material, and/or whether the charged person had a prior record of sex crimes in the past.

Many crimes under California Penal Code 311 Child Pornography are considered automatic felonies.  However, in regards to first time offenders particularly, some crimes under California Penal Code 311 Child Pornography are considered wobblers.  A wobbler is a crime where the prosecutor has the discretion to charge the defendant with either a misdemeanor or a felony.  This decision is made based upon the specific facts of the crime at issue and the defendant’s criminal record.

  • California Penal Code 311.1 (Possession of Obscene Child Pornography with the Purpose of Dispersing the Materials): A misdemeanor can be penalized with a maximum of one year in county jail and/or a maximum one thousand dollar sanction.  A felony can be penalized with anywhere between sixteen months to three years in a California state prison and/or a maximum sanction of ten thousand dollars.

  • California Penal Code 311.2(b) (Purpose is Disperse Materials for Economic Gain): A conviction under this subsection will result in a felony, anywhere between two to six years in a California state prison, and/or a maximum sanction of one hundred thousand dollars.

  • California Penal Code 311.2(c) (Intent to Disperse to a person to a non-minor): For first-time offenses of this subsection results in a wobbler. However, further offenses are automatic felonies.  A misdemeanor could result in a maximum of one year in county jail and/or sanction of one thousand dollars.  A felony will result in anywhere between sixteen months and three years in California state prison and/or a maximum sanction of ten thousand dollars.

  • California Penal Code 311.2(d)(Intent to Disperse to somebody who is a minor): A conviction under this subsection is an automatic felony.  It could result in anywhere between sixteen months and three years in a California state prison and/or a maximum sanction of ten thousand dollars.

  • California Penal Code 311.3 (Sexually Manipulating a Minor): A first time offender will be charged with a misdemeanor. Potential punishments include a maximum of one year in a county jail and/or a maximum sanction of one thousand dollars.  A felony can result in anywhere between sixteen months to three years in a California state prison and a maximum sanction of ten thousand dollars.

  • California Penal Code 311.4 (Employing or Conscripting a Minor for Child Pornography): A first-time offender will face a wobbler. Those with past convictions under this subsection face an automatic felony.  The misdemeanor will result in a maximum of one year in a county jail and/or a maximum sanction of one thousand dollars.  A felony will result in anywhere between sixteen months and three years in a California state prison and/or a maximum sanction of fifty thousand dollars.  If the minor is younger than fourteen years old, then the punishments increase to a maximum of six years in a California state prison.

  • California Penal Code 311.10 (Marketing Child Pornography): A conviction under this subsection is a wobbler. A misdemeanor carries a potential punishment of a maximum of one year in a county jail and/or a maximum sanction of one thousand dollars.  A felony under this subsection results in anywhere between two to four years in a California state prison and a maximum sanction of fifty thousand dollars.

  • California Penal Code 311.11 (Possession of Child Pornography): A conviction under this subsection is generally a felony but could be a wobbler. A misdemeanor could result in a maximum of one year in a county jail and/or a maximum sanction of two thousand and five hundred dollars.  A felony could result in anywhere between sixteen months to three years in a California state prison and a maximum sanction of ten thousand dollars.  The punishments could increase if the defendant earned previous sex crime convictions in the past or if the crime at issue involved a high quantity of materials.

California Sex Offender Registry Requirement under California Penal Code 311 Child Pornography

A conviction under California Penal Code 311 Child Pornography will carry with it a requirement to register as a sex offender.  As dictated by Megan’s Law, those convicted under California Penal Code 311 Child Pornography will be mandated to register for the duration of their entire life.  However, those convicted under California Penal Code 311 Child Pornography starting in year 2021, will be subjected to a different scheme.  Those convicted for sex crimes after the beginning of January 1, 2021 will be subject to a three-tier system.  Specifically, those convicted under California Penal Code 311 Child Pornography will be placed in either the 1st Tier or the 3rd Tier.  Those convicted with misdemeanors under Subsection 311.1 or 311.11 will be placed on the 1st Tier.  The 1st Tier mandates a 10 year minimum registration period.  All other convictions under California Penal Code 311 Child Pornography will mandate registering for an entire lifetime.  If the mandate to register is not fulfilled, this may result in a separate crime itself under Penal Code 290.  This is a distinct conviction separate from the baseline conviction that lead to the registry requirement.  Hence, a conviction under Penal Code 290 carries its own prison time and sanctions.

What are available legal defenses to California Penal Code 311 Child Pornography charges?

There are a variety of legal defenses available to fight charges of California Penal Code 311 Child Pornography.  These defenses are utilized by experienced Sex Crimes Attorneys to get charges removed or reduced.  A diligent and meticulous Sex Crimes Attorney can review the specific circumstances of a case to determine what legal defenses might be available.  They can utilize these defenses as part of a larger legal defense strategy designed to maximize the best possible outcome.

The following are some of the more common legal defenses to charges of California Penal Code 311 Child Pornography. 

Entrapment

This defense is available if a defendant’s Sex Crimes Attorney can prove two separate facts.  First, the Sex Crimes Attorney needs to prove that law enforcement acted in a coercive manner.  Second, the Sex Crimes Attorney needs to prove that their client acted in an illegal manner because of the police’s overbearing methods.  Typically, the defense of entrapment is available when a defendant is arrested as a result of a police sting operation.  The most common California Penal Code 311 Child Pornography sting operation is through online chat rooms.

Untrue Allegations

It is not uncommon for defendants to face untrue allegations of California Penal Code 311 Child Pornography.  There have been cases where vengeful business associates or family members planted the illegal material on the defendant’s phone.  This is especially true with ex-spouses who are trying to get a leg up on upcoming custody or divorce hearings.  In these type of cases, your Sex Crimes Attorney can get charges dismissed by providing evidence that other people had entry to the relevant CPU or phone.

No Requisite Intent

Remember, one of the elements of California Penal Code 311 Child Pornography is that the defendant must have acted knowingly.  This means that the prosecutor has to prove that the defendant knew they had the questionable material and that they knew that it contained a minor in a sexual act.  With the way the Internet is set up today, it is not uncommon for someone to click on a bad link or accidentally download a virus or hidden data file.  A Sex Crimes Attorney can utilize a forensic computer specialist to help uncover the truth behind the questionable material.

Contact a Sex Crimes Attorney For a Free Consultation

Feel free to contact Negin Yamini for a free consultation.  Our Sex Crime Attorney can review the specifics of your case.  They will discuss with you what are likely to be the most important issues throughout your criminal prosecution.  They will also explain to you the potential punishments and describe any legal defenses that might be available.

Call 424-835-9799 for a free consultation today.

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