PC §311.11 | Possession of Obscene Materials Depicting a Child in Sexual Act or Child Pornography
In the State of California, it is unlawful to possess or control any child pornography that involves a minor under the age of 18, as stated under Cal. Penal Code (PC) §311.11. This offense may result in a misdemeanor or felony charge and carries a penalty of up to three years of incarceration in jail or prison. It is important to note that this statute, PC §311, serves as the main law that criminalizes the possession and distribution of child pornography in California.
Our criminal defense attorneys inform our clients that they are entitled to defend against allegations under this statute with legal defenses. Three common defenses include: (1) Claiming that the defendant was unaware that the person depicted in the material was under 18 years old; (2) Contending that the materials in their possession did not qualify as illegal child pornography; and (3) Arguing that the search and seizure of their property was conducted unlawfully.
A violation of PC §311.11 is a wobbler offense, which means that it can be charged as either a misdemeanor or a felony at the prosecutor's discretion. A misdemeanor conviction may result in a one-year jail term, while a felony conviction may carry a maximum sentence of three years in state prison.
It is important to note that the possession and distribution of child pornography is also considered a federal crime under federal law 18 U.S.C. § 2252 (Certain activities relating to material involving the sexual exploitation of a child). This means that individuals may face prosecution in both state and federal courts for the same offense involving child pornography.
Under PC §311.11, when does possessing child pornography become a crime?
For a successful conviction under this statute, a prosecutor must establish two things:
- The individual knowingly possessed or controlled material that qualifies as "child pornography;"
- They were aware that the material depicted a person under 18 years of age engaged in sexual conduct [PC §311.11].
"Child pornography" is defined as any matter or material depicting sexual conduct by a person under the age of 18 [PC §311.4]. "Sexual conduct" can refer to various acts, such as sexual intercourse, oral copulation, anal intercourse, sadomasochistic abuse, sexual activity with objects, and bestiality [PC §311.4. See also People v. Spurlock (2003) 114 Cal.App.4th 1122].
PC §311.11, however, does not apply to photos in which an adult's head has been replaced with a child's head using computer software [People v. Gerber (2011) 196 Cal.App.4th 36].
Challenging PC §311.11 - Possession of Child Pornography
Defendants are entitled to contest child pornography charges with a legal defense. Three common defenses include:
• Claiming that they were unaware of the individual's minority status;
• Contending that the materials in their possession did not qualify as child pornography; and
• Arguing that the search and seizure of their property was conducted unlawfully.
1. Being Unaware of Minority status
As mentioned, the defendant is only guilty under this statute if they were aware that the subject of the pornographic material was under 18 years old. Therefore, a defendant can always use the defense that, by virtue of circumstances, they did not possess this particular knowledge.
2. Material does not contain child pornography contemplates under Penal Code §311
It should be noted that these laws apply exclusively to the possession of "child pornography," which has a specific legal definition. Therefore, it is always a defense for the defendant to show that they did not possess child pornography.
3. Materials used as evidence were obtained from illegal search and seizure
In California, law enforcement officials can only conduct a search or seizure with a valid search warrant [See People v. Nguyen (2017) 12 Cal.App.5th 574]. If no valid warrant is present, they must provide a legal justification for not having one. As a defense, the defendant may argue that they were subject to a search or seizure, and the police had no warrant, or that they lacked a legal justification for not having one.
Penalties for possession of child pornography conviction
Child pornography laws allow for the offense to be charged as either a misdemeanor or a felony, depending on the prosecutor's discretion; making it a wobbler offense. If convicted of a misdemeanor, the defendant may face up to one year of custody in county jail, and/or a maximum fine of $2,500. [California Penal Code 311.11 PC.] If convicted of a felony, the defendant may be sentenced to up to three years in state prison and/or a fine of up to $2,500. It is important to note that a child pornography conviction in California requires the defendant to register as a sex offender. [California Penal Code 311.11 PC.]
Expungement of PC 311 conviction
A person who has been convicted of this crime may be eligible for expungement if they successfully complete probation or a relevant jail term [PC §1203.4] However, if a probation term is violated, the expungement will be left at the discretion of the judge. According to PC §1203.4, an expungement relieves the individual of almost all penalties and disabilities related to the conviction. Expungement, however, DOES NOT relieve the defendant from his duty to register as a sex offender.
PC §311 conviction and individual's gun rights
A conviction under PC §311 may negatively impact the defendant's right to possess a firearm. California law states that convicted felons are prohibited from owning or possessing a firearm in the state. Therefore, if the alleged child pornography violation is charged and convicted as a felony, the defendant may lose their right to own and possess a gun.
Offenses Related to PC §311
There are three sex crimes related to child pornography violations and the sexual abuse of children: (1) lewd acts with a child (PC §288), (2) statutory rape (PC §261.5), and (3) revenge porn (PC §647j4).
1. What is “lewd acts with a child – PC §288?”
PC §288 makes it a crime for a person to commit a lewd act with a minor child. A "lewd act" refers to either touching a child for sexual purposes or causing a child to touch themselves or someone else for a sexual purpose. It is important to note that this crime involves the actual touching of a minor.
2. What is “statutory rape – PC 261.5”?
PC §261.5 states that it is a crime for a person to engage in sexual intercourse with a person under the age of eighteen. Unlike most child pornography crimes, this offense involves sexual intercourse with a minor.
3. What is “revenge porn – PC 647j4”?
PC §647j4 defines revenge porn as the act of distributing private sexual images of someone with the intent to cause that person emotional distress. It is important to note that revenge porn can be committed with images of a minor or an adult.
The intricacies of the issues involved in the foregoing subject matter may lead to unfavorable results if an attorney not sufficiently focused in this area of the law, or otherwise ill-equipped to represent you is hired. Our firm has decades of experience in successfully defending clients in cases that are identical to or similar in this case. We may be reached for a legal consultation with one of our attorneys as soon as possible to prevent the challenges and issues that may occur from choosing a lawyer at the last minute.