Guide To California Child Pornography Laws

If you are accused of committing a criminal offense involving child pornography, there are many different crimes you could be charged with.

If you are accused of committing a criminal offense involving child pornography, there are many different crimes you could be charged with. How you are charged will determine what must be proved in court and the potential punishment you face. That is why it is important to understand child pornography laws if you are facing charges.

Legal Definition of Child Pornography in California

Each state is entitled to define what qualifies as obscene material for their respective state law. California defines child pornography as any matter or material showing sexual conduct [broadly defined] by a person under the age of 18. This definition covers most hardcopy and electronic medium depicting actual or simulated sexual acts (i.e. softcore porn).

Under 18 Years of Age Exceptions

Under child pornography laws, it is not enough that the material shows persons who look or even pretend to be under age 18; the persons depicted must actually be 17 years of age or younger.

In addition, if the persons depicted are legally emancipated or married, the content is not child pornography even if one participant is 17 or younger.

The following is a list of possible crimes in California involving child pornography:

  • Distributing or Possessing Obscene Matter Showing Sexual Conduct by a Minor (PC 311.1(a) and 311.2(b))
  • Sexual Exploitation of a Child (PC 311.3)
  • Employment or Use of Minor to Perform Prohibited Acts (PC 311.4)
  • Advertising or Promoting Sale or Distribution of Child Pornography (PC 311.10)
  • Possession or Control of Child Pornographic Material (PC 311.11)

Each separate crime involves different elements and punishment. In order to better understand child pornography laws, we must explain the elements of each crime.

Elements of Distributing or Producing Child Porn (PC 311.1 and PC 311.2)

In order to convict you under California Penal Code Sections 311.1 or 311.2, the prosecution must prove each of the following elements:

  1. You sent or brought pornographic material to California, you possessed pornographic material, or you prepared, developed, copied, published, produced or printed child pornographic material; AND
  2. You had the intent to distribute, show, or exchange that material.

Elements of Sexual Exploitation of a Child (PC 311.3)

You can be found guilty of PC 311.3 if each of the following elements is proved beyond a reasonable doubt:

  1. You knew the material depicted a person under the age of 18 engaging in an act of sexual conduct, AND
  2. Knowingly, you developed, duplicated, printed, or exchanged the material.

Elements of Hiring or Recruiting Minor for Child Pornography (PC 311.4)

You can be found guilty of California Penal Code 311.4 if each of the following elements is proved beyond a reasonable doubt:

  1. (1) You hired, recruited, used, or coerced a child to participate in a pornographic work or you attempted to do so; AND
  2. You knew that person was under the age of 18.

Elements of Advertising Child Pornography (PC 311.10)

You could be found guilty of PC 311.10 if each of the following elements is proved beyond a reasonable doubt:

  1. You advertised or promoted the sale of child pornography; AND
  2. You knew that that the person shown was under 18 years of age.

Possessing Child Pornographic Material (PC 311.11)

In order to convict you under PC 311.11, each of the following elements must be proved:

  1. You possessed or controlled child pornographic material, AND
  2. You knew that the person shown in that material was under 18 years of age.
California Penalties for Child Pornography Crimes
Many child pornography crimes are wobblers, meaning that the crime can be charged as a misdemeanor or a felony. Thus, the penalties differ depending on whether you are convicted of a misdemeanor or felony. Below are the punishments for each crime involving child pornography:
  • PC 311.1 Misdemeanor: 1-year county jail and $1000 fine.
  • PC 311.1 Felony: 16 month in jail or 2-3 years in prison and $10,000 fine.
  • PC 311.2 Misdemeanor: 1-year county jail and $2000 fine.
  • PC 311.2 Felony: 2-6 years in prison and up to $100,000 fine.
  • PC 311.3 Misdemeanor: 1-year county jail and $2000 fine.
  • PC 311.3 Felony: 16 month in jail or 2-3 years in prison and $10,000 fine.
  • PC 311.4 Misdemeanor: 1-year county jail and $2000 fine.
  • PC 311.4 Felony: 16 months to 3 years in jail or 2-8 years in prison and $10,000 fine (for first offense) or $50,000 fine for subsequent offenses.
  • PC 311.10 Misdemeanor: 1-year county jail and $1000 fine.
  • PC 311.10 Felony: 2-4 years in prison and fine up to $50,000.
  • PC 311.11 Misdemeanor: 1-year county jail and $2500 fine.
  • PC 311.11 Felony: 16 month in jail or 2-6 years in prison and $10,000 fine.

Defenses to Child Pornography Crimes (PC 311.8)

If you are convicted of a child pornography crime, you will have to register as a sex offender for the rest of your life. That is why it is important to speak to a lawyer as soon as possible to tackle your case head on. Our skilled criminal defense attorneys at Wallin & Klarich know the legal defenses to child pornography laws. Some defenses we have used to successfully defend our clients include:

  • Entrapment – Child pornography charges often result from police sting operations, which is when undercover police officers construct a plan to catch people in the act of a crime. Sting operations are legal, but when law enforcement influences or induces you to commit a crime, that is entrapment, which is not legal.
  • You did not have mental state required for the crime.
  • Illegal search or seizure – Law enforcement performed an illegal search or seizure to collect evidence against you.
  • You were falsely accused.
Federal Child Pornography Crimes
You could be prosecuted federally for child pornography crimes if the pornographic material crossed state lines. This means that if the internet is used to commit an offense, you could be charged with a federal crime.
The federal government defines child pornography as any “visual depiction” of an actual minor or a computer-generated image that “is indistinguishable from that of a minor” who is “engaging in sexually explicit conduct.”  That definition changes depending on the crime, but one major difference in this definition is that it applies to computer-animated imagery or morphed ‘anime’ if its based on an actual person.  Thus, the federal government takes a harsher stance on these types of crime.
The following is a list of possible federal crimes involving child pornography:
  • Sexual Exploitation or Production of child pornography (18 U.S.C. § 2251)
  • Selling and Buying of Children (18 U.S.C. § 2251A)
  • Possession, Distribution and Receipt of Child Pornography (18 U.S.C. § 2252 and 2252A)
  • Production of Sexually Explicit Depictions of a Minor for Importation into the United States (18 U.S.C. § 2260)
Penalties for Federal Child Pornography Crimes
  • 18 U.S.C. § 2251: 15 years to 30 years
  • 18 U.S.C. § 2251A: 5 years to 20 years
  • 18 U.S.C. § 2252: 5 years to 20 years
  • 18 U.S.C. § 2260: 15 years to 30 years
Where Can I Find an Experienced California Criminal Defense Attorney?
False accusations of child pornography crime can ruin your career and reputation in the community. If you or a loved one has been charged with child pornography or another related sex crime, you need to contact an experienced criminal defense attorney immediately.
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