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Title: California Penal Code 311 and Penal Code 311.11 - Child Pornography Laws

Sex crime laws in California include sections covering child pornography. Any type of criminal allegations like this should be taken seriously. A conviction for this offense can carry life-changing consequences. It can be extremely difficult to face these offenses without the help of an experienced criminal defense attorney.

How does California define Child Pornography?

Child pornography is defined as any material that depicts sexual conduct by a minor. Under this law, any person under the age of eighteen, 18, is considered a child or minor.

Materials include, but are not limited to, photos, film, video, photocopies, digital copies, discs, tapes, and any computer hardware, software, or equipment.

Sexual conduct under this law means that actual or simulated obscene, lewd, lascivious, or sexual acts were committed. Such acts include sexual or anal intercourse, oral copulation, lewd or lascivious acts such as penetration of genital or anus by an object, displaying the genital or anal area for the purposes of sexual gratification, bestiality, urination or defecation in a lewd, lascivious, or sexual manner, and sexual sadism or masochism.

An Outline of California’s Child Pornography Laws

California outlines the definition of and consequences for violating child pornography laws under Penal Code section 311. Each section of these laws makes it a crime to possess, send, copy, print, transport, advertise, exchange, or store any child pornography. It also outlines that it is a crime to intimidate, force, coerce, employ, use, persuade, or hire minors to participate in the making of child pornography.

There are specific sections that may apply to different situations, depending on the crime. With that said, it can seem impossible to navigate these laws without the help of a knowledgeable criminal defense attorney.

The sections that cover the extent of California’s child pornography laws are as follows:

  • Penal Code section 311.1;

Knowingly copying, duplicating, possessing, producing, sending, or transporting any kind of child pornography, with the intention of distributing them is a crime.

  • Penal Code section 311.2(b)

Knowingly copying, duplicating, possessing, producing, sending, or transporting any kind of child pornography, with the intention of distributing them on a commercial scale is a crime.

  • Penal Code sections 311.2(c) and 311.2(d);

Knowingly copying, duplicating, possessing, producing, sending, or transporting any kind of child pornography, with the intention of distributing to anyone over the age of 18 is a crime. PC 311.2(d) is if the intent was to distribute to any person under the age of 18.

  • Penal Code section 311.3;

The sexual exploitation of a minor/child through knowingly exchanging, developing, duplicating, or printing any child pornography is illegal.

  • Penal Code section 311.4;

It is illegal to knowingly employ, use, coerce, persuade, or hire a minor to participate in a pornography film/production.

  • Penal Code section 311.10;

This section specifies that it is a crime to knowingly advertise child pornography for sale and/or distribution.

  • Penal Code section 311.11;

Knowingly possessing or controlling any child pornography that was produced by an individual under the age of 18 is a crime.

Closely Related Offenses

Penal Code section 288, lewd acts with a child Law;

Touching a child under the age of 14 to sexually gratify or arouse oneself or the child is a crime.

Penal Code section 261.5, statutory rape;

It is illegal to engage in sexual intercourse with a minor, a person under the age of 18, regardless of whether the act was consensual.

Penal Code section 647(j)(4), revenge porn;

Sharing or distributing sexual images of another person with the intention of causing them emotional and mental stress is a crime.

Similar Offenses

Penal Code section 236.1, human trafficking;

Under this law, it is illegal to deprive a child (someone under 18 years old) of their freedom with the intention of breaking California’s child pornography laws. It is also illegal to persuade or attempt to persuade children into performing sexual acts or participating in commercial sexual acts with the intention of breaking child pornography laws.

Penal Code section 207, kidnapping;

It is a crime to take another person and move them a certain distance without their consent, either by using force or fear.

The Prosecution

For the prosecution to get a conviction for child pornography, PC 311 or PC 311.11, they must first prove beyond a reasonable doubt that the facts of the crime took place. These facts are also referred to as:

Elements of the Crime

  • The evidence or material in question falls under the definition of child pornography, and
  • The defendant knew the kind of material that was in their possession or being copied, exchanged, transported, or distributed,
  • The defendant knew that a child or minor, someone under the age of 18, was apart of or participating in sexual conduct, and
  • They had the intent to distribute said material.

California takes any allegations of child pornography seriously, as does the prosecution. The focus is usually on whether the defendant had any knowledge about the material and the age of the person(s) within them. If they can prove beyond a reasonable doubt that the defendant had known all along, even if they did not intend to distribute said materials, it was still illegal to knowingly possess them.

How the prosecution may choose to charge it depends on the facts of the case and whether or not there was any intent. They could choose to pursue misdemeanor or felony penalties, depending on these facts as well as the defendant's criminal history. 

Who Can Be Charged?

To illustrate who can face charges for violating California’s PC 311 or PC 311.11 take a look at the following cases.

Example 1:

Fred was a coach for a youth basketball team. He would often take photos of the young boys while they were getting ready in the locker rooms. He persuaded a couple of the children into touching each other in inappropriate ways. One boy told his parents and Fred was reported. He would be charged with PC 311.4, persuading and coercing minors into participating in child pornography.

Example 2:

Fred took the pictures of underage boys doing sexual acts and uploaded them to his computer. At this point, even if he did not intend on duplicating, sending, or exchanging these photos, he would be guilty of PC 311.11, for being in possession of child pornography.

Example 3:

Now, say Fred decides to print these photos out, keeping them for his collection. He brings them to his friend, Lisa, who develops film in her basement. Knowing what the material was, she still chose to print them out.

Not only is Fred now guilty of printing out hard copies of child pornography, but Lisa would also be found guilty of duplicating the photos. Just because she was not the one that snapped the photos, does not mean she has the right to print out the unlawful, explicit content. She would face charges for the sexual exploitation of a child by developing child pornography.

Legal Defense

California’s child pornography laws have a long list of sections that show just how complicated it can be to figure out. Unfortunately, it is not unheard of for mistakes to be made, leading to innocent people getting dragged into or punished for a crime they did not commit. 

A criminal defense attorney who understands just how complex these laws are would be able to help. They can help figure out what the best defense route is to gain a favorable outcome. Below are examples of some of the most common legal defenses used to fight accusations for PC 311 and PC 311.11.

False Accusations and Wrongful Arrests

Law enforcement takes heinous and particularly obscene crimes seriously, especially in cases involving children. Unfortunately, that fact coupled with a false accusation could result in a speedy and unlawful arrest.

Sometimes strong feelings of revenge or a simple misunderstanding could be the root cause of a false accusation. For instance, nudity for the purposes of art or education does not fall under the definitions of lewd or lascivious acts and would not be considered forms of child pornography.

Example:

Sarah was completing a project for her college photography class which involved nudity in nature. She invited her college volleyball team to take part in it, stating it would only be seen by her eyes, theirs, and her professor.

One of the athletes was just seventeen years old and did not reveal this fact to the team. When her parents found out, they falsely accused Sarah of child pornography, stating she peer pressured their underage daughter into participating. She was promptly arrested before a thorough investigation could be completed.

In this case, not only did Sarah have no knowledge of her teammates' age, but she also did not take sexually explicit photos. The photos were for educational purposes and had artistic value. They would not qualify as child pornography under any section of PC 311.

Was the alleged victim legally emancipated?

California child pornography laws do not apply to those minors who are legally emancipated. Because it is considered a legal way for kids to become adults (in some respects), it would be approached differently in cases where “kiddie” porn is suspected.

To get legally emancipated in the first place, children most often have to prove that they can support themselves. However, if crimes were committed and they were still under 18 years old, they would face juvenile detention as opposed to county jail or prison.

Is the alleged victim legally married to the defendant?

Situations, where the parties involved are married (whether one is or both are under 18 years old), do not constitute child pornography. For example, a 17-year-old married an 18-year-old and decided to take pornographic pictures of themselves for their spouse. This type of case would not be considered a violation of PC 311 because it does not apply to lawful and private conduct between spouses.

Lack of Knowledge and/or Intent

Without knowledge of the material in question or the lack of intent involving said material, one could be guilty of the offense of child pornography under PC 311.

Example:

Harold bought an old laptop computer from a yard sale. He brought it to work, using it during his lunch hour. While showing his co-workers his new buy, he came across an unnamed file in this documents folder. Double-clicking on it led to obscene photos of children being displayed on his computer screen. He quickly folded the laptop, took the battery out, and tossed it in the nearest garbage bin, stating “don’t ever buy a new computer at a yard sale.” One of his colleagues grew concerned and reported him to the authorities.

Harold would not be guilty of violating PC 311, because he did not have prior knowledge of the content of the computer. Nor did he intend on showing any part of it to other people. This would be evident in his reaction, throwing all the equipment away.

A thorough investigation would lead authorities to the doorstep of the people that sold Harold the laptop in the first place. If it was discovered that they knew those photos were on the computer and they still chose to sell it, they could be held accountable for child pornography under PC 311.

Penalties for Penal Code secions 311 through 311.11

The consequences depend on which particular part of California’s child pornography laws were committed. Some of these offenses can result in a wobbler, meaning it may be charged as either a misdemeanor or a felony. If convicted of any offense outlined under PC 311, you face the following:

PC 311.1:

Misdemeanor;

Up to one thousand dollars ($1,000) in fines, and

One year in county jail.

Felony;

Up to ten thousand dollars ($10,000) in fines, and

16 months, 2 or 3 years in state prison.

PC 311.2(b):

Felony;

Fines of up to one hundred thousand dollars ($100,000), and

2, 3, or 6 years in state prison.

PC 311.2(c):

Misdemeanor;

Up to two thousand dollars in fines, and

Up to one year in county jail.

Felony;

Fine of up to ten thousand dollars, and

16 months, 2 or 3 years in state prison.

PC 311.2(d):

Felony;

Fines of up to ten thousand dollars, and

16 months, 2 or 3 years in state prison.

PC 311.3:

Misdemeanor;

Up to two thousand dollars in fines, and

Up to 1 year in the county jail.

Felony;

Fines of up to ten thousand dollars, and

16 months, 2 or 3 years in state prison.

PC 311.4:

Misdemeanor;

Fines of up to two thousand dollars, and

Felony;

Fines of up to ten thousand dollars, and

16 months, 2 or 3 years in county jail.

PC 311.10:

Misdemeanor;

Fines of up to one thousand dollars, and

Up to one year in county jail.

Felony;

Up to fifty thousand dollars in fines, and

2, 3, or 4 years in state prison.

PC 311.11:

Misdemeanor;

Up to two thousand five hundred dollars in fines, and

Up to 1 year in county jail.

Felony;

Up to ten thousand dollars in fines, and

16 months, 2 or 3 years in state prison.

Sentencing Enhancements:

Regardless of which penal code section was violated, you are required by law to register as a sex offender. This registration is a life-long consequence and failure to do so can result in further misdemeanor or felony penalties.

Depending on the details of the case and the defendant’s criminal background history, one could face automatic felony charges and/or enhancements. Subsequent convictions under PC 311 will most often result in harsher sentencing and steeper fines. Moreover, depending on the scale of the crime and how much material was involved, it's possible for the case to go to federal court.

It’s also important to remember, further financial consequences could be a possibility if the alleged victim(s) decide to pursue punitive damages.

Penalties for Closely Related Offenses

PC 288, lewd acts with a child Law;

Felony;

Formal probation, and

Up to one year in the county jail, or

16 months, 2, 3, 6, or 8 years in state prison.

PC 261.5, statutory rape;

Misdemeanor;

Summary probation,

Up to one year in county jail, and/or

Fines of up to one thousand dollars.

Felony;

Formal or informal probation, and

Up to one year in county jail, or

16 months, 2, 3, or 4 years in county jail.

PC 647(j)(4), revenge porn;

Misdemeanor;

Up to one thousand dollars in fines, and

Up to six months in county jail.

PC 236.1, human trafficking;

Felony;

Fines of up to five hundred thousand dollars ($500,000), and

5, 8, 12, 14, or 20 years in state prison, or

15 years to life in state prison, and

Lifetime registration as a sex offender.

PC 207, kidnapping;

Felony;

3, 5, or 8 years in state prison, and

Fines of up to ten thousand dollars.

We Can Help

If you or someone you know is facing charges for child pornography, time is critical. Finding an effective criminal defense attorney could make a huge difference in the outcome.

Located in San Diego, Los Angeles, Orange County, or the state of Illinois and need legal assistance? Do not hesitate to contact the Law Offices of Anna R. Yum. As a former prosecutor and award-winning lawyer, Attorney Yum understands how complicated it can be trying to navigate the full scope of California’s Penal Code sections 311 through 311.11, child pornography laws.

For more information or to schedule a free consultation simply go online or call us at 619-233-4433.

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