California's child pornography laws are stringent and carry severe penalties, a fact that underscores the seriousness of these offenses. It's essential to note that not all violations are prosecuted as felonies; however, the potential consequences are significant.
Some child pornography crimes are classified as "wobblers," meaning they can be prosecuted as either a misdemeanor or a felony. These offenses fall under Penal Code sections 311.1 and 311.11. Most child pornography involving minors is charged as either wobblers or felonies. Generally, misdemeanor child pornography offenses carry a penalty of up to one year in county jail.
Penal Code 311 PC is the main California law that criminalizes child pornography. In simple terms, it makes it illegal to send, duplicate, print, advertise, or possess child porn, as well as to hire or persuade minors to create pornographic images.
Penal Code 311.1 PC criminalizes knowingly sending, transporting, producing, possessing, or duplicating child pornography with the intent to distribute, including photos, films, negatives, slides, or videotapes. Additionally, Penal Code 311.11 PC makes it a crime to knowingly possess or control any child pornography created with a minor under 18.
Key Takeaways
- You are only guilty under child porn laws if you act knowingly, meaning you knew the nature of the material you were transporting or possessing and knew the material showed someone under 18 participating in sexual conduct.
- A misdemeanor conviction for child pornography can lead to up to one year in jail, significant fines, and mandatory sex offender registration for at least ten years.
- In California, 'wobbler' offenses are crimes that can be classified as either a felony or a misdemeanor, depending on case factors.
- Case factors include the severity of the crime, the minor's age, the quantity of material involved, and the criminal record.
- The district attorney, as the prosecutor, has the authority to choose the severity of charges based on the evidence and circumstances.
- Having a strong legal defense is crucial, especially since misdemeanors usually carry lighter penalties than felonies.
- Your defense attorney can work to negotiate with the prosecutor to reduce the charges or penalties potentially.
Definition of Child Pornography
Under California law, child pornography is defined as any material that visually depicts a person under 18 engaging in sexual conduct. This encompasses a diverse range of media, including photos, videos, digital content, and computer-generated images.
Under this law, acts regarded as sexual conduct (either real or simulated) are outlined in Penal Code 311.4 PC. These include:
- Sexual intercourse
- Anal intercourse
- Masturbation
- Oral copulation
- Anal oral copulation
- Anal penetration
- Bestiality
- Sexual penetration involving objects
- Sexual sadism
- Sexual masochism
- Exposing the genitals, pubic, or rectal area for sexual arousal
- Any lewd or lascivious sexual act as defined in Penal Code 288 PC
- Excretory functions performed in a lewd or lascivious manner
Which Child Porn Cases Can Be Prosecuted as Misdemeanors?
As noted, the two specific California ordinances that can be charged as misdemeanor child pornography crimes are Penal Code 311.1 and Penal Code 311.11 PC
- PC 311.1 addresses the circulation or display of child pornography. This law prohibits anyone from intentionally transporting, producing, possessing, or reproducing, with the purpose of distribution, any material that portrays a minor involved in sexual activities.PC 311(a) says, "Every person who knowingly sends or brings into this state for sale or distribution, or possesses, prepares, publishes, produces, develops, duplicates, or prints any information, image, including any film, photograph, with the intent to distribute obscene matter, knowing it depicts a person under 18 engaging or simulating sexual conduct shall be…."
- PC 311.11 bans the possession or control of child pornography. According to this law, it is illegal for anyone to intentionally possess or manage any material that visually shows a minor involved in sexual activity.
What Are the Exceptions?
These laws do not apply in two specific cases. These are:
- Materials depicting sex involving minors who are legally emancipated or married (PC 311.1). In such cases, these minors are legally allowed to consent and have not been subjected to legal exploitation.
- Materials featuring a minor's head digitally superimposed onto an adult's body (PC 311.11). In this instance, no minor has been sexually exploited during the creation of the material.
What Are the Child Porn Penalties?
Let's examine why it's advantageous to be charged with a misdemeanor rather than a felony for child pornography by comparing possible penalties. If convicted of misdemeanor child pornography, the consequences include:
- Up to one year in county jail; and
- Fines can reach up to $2500.
If you are convicted of a felony related to child pornography, the associated penalties include the following:
- Up to three years in state prison; and
- Fines can reach up to $10,000.
If convicted of child pornography, whether as a misdemeanor or a felony, you are required to register as a sex offender. However, the duration of the registration requirement varies greatly between the two offenses.
- Misdemeanor child porn is classified as a Tier 1 offense, requiring you to register as a sex offender for a minimum of ten years.
- Felony child pornography is classified as a Tier 3 offense, which requires lifelong registration as a sex offender.
What are the Strategies for Legal Defense?
If you face charges under PC 311.1 or PC 311.11 (or both), a skilled California criminal defense attorney can employ various legal defenses to challenge the accusations, as outlined below.
Maybe we can claim you didn't realize you had or shared child pornography. Prosecutors need to prove you knew and intended to do so for a conviction. Your lawyer might argue that you were unaware of possessing such materials or genuinely didn't know that the individuals depicted were under 18.
We might argue that the materials do not qualify as child pornography. The attorney could contend that these materials do not show minors involved in sexual conduct as outlined in PC 311.4. For instance, the individuals might be of legal age, emancipated, or the images could be so unclear that their minor status is indistinguishable.
We might argue that an unlawful search and seizure occurred. If the evidence against you was obtained through an illegal search, it could be excluded, potentially resulting in the case being dismissed.
There's a possibility of negotiating the charges in child pornography cases. Given the significant difference in penalties between misdemeanors and felonies, it's a common legal strategy to negotiate for wobbler offenses to be charged as misdemeanors, providing a ray of hope in an otherwise challenging situation.
This approach is more likely to succeed if you are a first-time offender, as repeat offenders are usually charged with felonies, or if the evidence against you is weak.
We may be able to negotiate a prefiling agreement to prevent criminal charges, known as a "DA reject." Contact our law firm for a confidential review of your case. We handle both state and federal child pornography cases. The Hedding Law Firm is based in Los Angeles, CA.
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