Child Pornography Attorneys

Understanding California Sex Offense Laws

Like most sex offenses in California, child pornography charges can be terrifying to face because they can result in lifetime sex offender registration in addition to the lengthy prison term a conviction can bring. The law prohibits anyone from knowingly sending, producing, possessing, transporting, or duplicating any child pornography when any of those actions are done with the intent to distribute it.

At Second Chances Law Group, we have represented many cases involving a variety of different charges involving child pornography offenses. You can rely on our child pornography attorneys to provide you with the representation you need on your side.

What Are Child Pornography Offenses?

California Penal Code Sections 311 and its’ subsections cover the crime of child pornography. In the state of California, it is illegal to send, transport, duplicate, print, exchange, advertise, possess child pornography. It is also a crime to hire or persuade minors to participate in making child pornography. The law not only intends to protect children but also teenagers below the age of 18, even those who gave their consent to perform in front of a camera.

What are the different crimes in relation child pornography?

Child pornography is defined by law as any matter or material depicting sexual conduct by a person under the age of 18.[1] In all of these statutes, the defendant must have acted knowingly to be found guilty of any of the crimes related to child pornography. For purposes of the laws relating to child pornography, “knowingly” is defined as knowing the nature of the material that a person was in possession of, transported, distributed, etc.[2] There are different acts that are punishable in relation to child pornography.

Under Penal Code Sections 311.1 and 311.2, it is a crime for any person who knowingly sends, transports, produces, possesses, or duplicates any child pornography with intent to distribute. While Penal Code Section 311.3 makes it a crime to develop duplicate print or exchange any child pornography.

To be guilty of the above, the prosecution must prove that:

• The defendant sent or brought child pornography into California (or caused child pornography to be sent or brought into California)

OR alternatively

• The defendant possessed, or prepared, or published, or produced, or developed, or duplicated, or printed child pornography

OR alternatively

• The defendant offered to distribute the child pornography to someone else

OR alternatively

• The defendant distributed, or showed, or exchanged child pornography with someone else
• When the defendant acted, he/she knew the character of the matter
• When the defendant acted, he/she knew that the matter showed a person under the age of 18 years who was personally participating in the child pornography
• When the defendant acted, he/she intended to sell or distribute/distribute, show, or exchange/distribute the matter to someone else for money or other commercial benefit.[3]

Matter means any book, magazine, newspaper, or other printed or written material, or any picture, drawing, photograph, motion picture, or other pictorial representation, or any statue or other figure, or any recording, transcription, or mechanical, chemical, or electrical reproduction, or any other article, equipment, machine, or material. “Matter” also means live or recorded telephone messages if transmitted, disseminated, or distributed as part of a commercial transaction.[4]

To distribute means to transfer possession, whether or not the transfer is made for money or anything else of value.[5]

A person does not have to actually hold or touch something to possess it. It is enough if the person has control over it or the right to control it, either personally or through another person or other people.

The law does not cover legally emancipated persons under the age of 18.

Under California Penal Code §311.4, it is illegal to use a minor to perform prohibited acts by hiring, employing, using, persuading, or coercing a minor to participate in the production of child pornography.

To be guilty of this crime, the prosecution must prove that:

• The defendant promoted, or employed, or used, or persuaded, or induced, or coerced a minor who was under 18 or 14 years old at the time to pose or model or assist others to pose or model, alone or with others. The defendant knew that he/she was promoting, or employing, or using or persuading, or inducing, or coercing a minor of that age to pose or model or assist others to pose or model
• The defendant was the parent or guardian in control of a minor who was under 18 or 14 years old at the time and the defendant permitted that minor to pose or model or assist others to pose or model, alone or with others; At the time the defendant gave permission to the minor, he/she knew that the minor would pose or model or assist others to pose or model, alone or with others
• The purpose of the posing or modeling was to prepare matter containing or incorporating sexual conduct
• The minor participated in the sexual conduct alone, or with other persons, or with animals
• The defendant was aware of the character of the matter or live conduct
• The defendant knew, or reasonably should have known, based on facts of which (he/she) was aware, that the minor was under 18 or 14 years of age
• When the defendant acted, he/she intended that the matter would be used for commercial purposes.[6]

Use for commercial purposes includes intending to trade the matter depicting sexual conduct for a commercial purpose at some point in the future. A commercial purpose does not have to include financial gain.

Under California Penal Code §311.10, it is illegal to knowingly advertise child pornography for sale or distribution.[7]

Under California Penal Code §311.11, it is illegal to knowingly possess or control any child pornography. To be guilty of this crime, the prosecution needs to prove that:

• The defendant possessed or controlled matter that contained an image/s of a minor personally engaging in or simulating sexual conduct
• The defendant knew that he/she possessed or controlled the matter
• The defendant knew that the matter contained an image/s of a minor personally engaging in or simulating sexual conduct[8]

An act is simulated when it gives the appearance of being sexual conduct.

In this case, the crime is enhanced if you are found to be in possession of multiple images or video clips.

As mentioned earlier, a person does not have to actually hold or touch something to be guilty of possession. It is enough if the person has control over it or the right to control it, either personally or through another person or other people.

Meaning of Obscene

In the above-mentioned laws, a person is only guilty of the crimes relating to child pornography if the nature of the material is “obscene”.

“Obscene” is define as follows:

1. It shows or describes sexual conduct in an obviously offensive way.
2. A reasonable person would conclude that it lacks serious literary, artistic, political, or scientific value.
3. An average adult person applying contemporary statewide standards would conclude that it appeals to a prurient interest.

A prurient interest is a shameful or morbid interest in nudity, sex, or excretion.

Penalties

Crimes in relation to child pornography are considered wobblers, meaning they can be charged as either a misdemeanor or a felony.

Misdemeanor child pornography crimes are punished by incarceration in county jail not exceeding one year.

Felony child pornography crimes are punished by incarceration in California state prison for a period not exceeding three years.

Possible Defenses

Below are some possible defenses against child pornography charges. However, defenses against these types of charges are not limited to what is listed below. Defenses will depend on the circumstances of each case:

• The matter is not obscene
• The matter is not child pornography
• The defendant did not act knowingly
• The matter was for a legitimate scientific purpose
• The matter was for a legitimate educational purpose
• The person found in possession of child pornography is a member of law enforcement involved in the prosecution of such crimes.
• The person found in possession of child pornography is an agent of law enforcement or prosecuting agency, meaning they do something at the request, suggestion, or direction of a law enforcement or prosecuting agency

They must be able to prove without a doubt at least one of the following alternatives:

• You sent or brought obscene matter into California.
• You possessed, prepared, published, produced, developed, duplicated, or printed obscene matter.
• You offered to distribute obscene matter to someone else.
• You distributed, showed, or exchanged obscene matter to or with someone else.

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Sustaining a sex offense conviction can be the most devastating thing in your life. The humiliation, embarrassment, and degradation that accompany a sexual battery or other sex offense case and/or conviction can be overwhelming. A sex offense conviction of this nature can involve lengthy prison time, fines, restitution to the victim, and lifetime sex offender registration. That’s why it is of ultimate importance that you retain an experienced, aggressive child pornography defense attorney to help you avoid such a conviction and the accompanying life-altering repercussions.