|California Child Pornography Law & Defense
Penal Code 311 PC
California “Child Pornography” Laws: Penal Code 311 PC
California law prohibiting child pornography can be found at Penal Code 311 through 313.4. California Child Pornography laws prohibit individuals from possessing or distributing materials depicting a minor engaging in or simulating sexual conduct.
There are several chargeable child pornography offenses in California. Most charges for violations of child pornography laws can be filed as either misdemeanors or felonies.
Under PC 311, depicting sexual conduct includes all sexual intercourse between people of the same or opposite sex. This conduct consists of penetration of the vagina or rectum with any object, masturbation, sadomasochistic abuse, exhibitionism, defecation or urination.
Child pornography laws in California include, but are not limited to: possession of child pornography (PC 311.11), and developing/producing child pornography (PC 311.3).
What must be proven to convict for Possession of Child Pornography (PC 311.11)?
To prove that a defendant is guilty of possession of child pornography (PC 311.11), the prosecutor must first show that the defendant possessed materials involving the sexual activity of a minor. The prosecutor must also show that the defendant possessed this material knowing that it depicted persons under the age of 18 engaging in, or simulating sexual activity.
There is no requirement that the material be possession of child pornography be “obscene” as is required for developing and producing child pornography (PC 311.3) discussed below.
Punishment for Possession of Child Pornography
The punishment for possession of child pornography can vary, depending on whether the charge is filed as a felony or a misdemeanor. Punishment can range from probation to incarceration in jail or prison,registering as a sex offender, a fine not exceeding $2,500, or some combination of probation, incarceration, and/or fine.
What must be proven to convict for Developing and Producing Child Porn (PC 311.3)
To prove that a defendant is guilty of sexual exploitation of a minor (PC 311.1(a)), the prosecutor must first show any one of the following:
- Defendant brought the obscene material into California
- Defendant possessed, prepared, published, produced or developed the obscene material
- Defendant offered to distribute obscene material to someone else, OR
- Defendant distributed, showed, or exchanged the obscene material with someone else
For Penal Code 311.3, the prosecution must also prove that when defendant acted, he/she knew the character of the matter. Next, the prosecution must show when defendant acted, he/she knew that the matter showed a person under the age of 18 who was personally participating in or simulating sexual conduct.
Lastly, the prosecution must show when defendant acted, he/she intended to sell, distribute, show, or exchange the material with someone else for money or commercial benefit.
Under Penal Code 311.3 PC, material is considered “obscene” if it shows or describes sexual conduct in an obviously offensive way. Furthermore, a reasonable person would find this material lacking in any serious artistic, literary, or scientific value. In order to be obscene, material must also be considered by an average adult to appeal to a “prurient” interest, meaning it is arousing in a sexual way.
Punishment for child pornography Penal Code 311
A person who violates Penal Code 311.3 can be fined up to $2,000, or imprisoned in the county jail for up to a year. A defendant with a prior conviction of Sexual Exploitation of a Minor will likely serve time in state prison and may have to register as a sex offender.
Closely Associated Crimes to California Child Pornography (PC 311)
Closely associated crimes to child pornography (PC 311) include: distribution of harmful matter to a minor(PC 313.1(a)), contracting to pay a minor for an unlawful sex act (PC 310.5), and attempting to contract with a minor to commit a lewd act (PC 288.2). 311.1(a), 311.11(b) & 313.1(a)
Defenses to Child Pornography (Penal Code 311)
Material Serves a Legitimate Purpose
If the defendant can show that the materials with which he/she was engaging were not for the purpose of child pornography under PC 311, and instead contained scientific or educational value, defendant can be found not guilty of distributing child pornography.
Entrapment is a defense to child pornography charges (PC 311). The defendant must establish that he/she was persuaded by a police officer to engage in child porn, otherwise he/she would never have engaged in the activity. Though some deception is permitted, an officer cannot use pure fraud to lure a person into committing a crime he/she was not otherwise willing to commit.
Mistake of Age
Under PC 311.11 possession of child pornography, the defendant must have known the individuals in the material are under the age of 18. If the material is marketed as adult porn, but the individuals engaging in sexual activity are actually minors, the defendant may have a defense that he/she did not knowingly possess child pornography. This would counter the intent requirement that a defendant “knowingly possess” child pornography.
To learn more about the crime of child pornography (PC 311) in California, including defenses to child pornography, contact a California sex crimes criminal defense attorney today.
Criminal Defense attorney Christopher Dorado represents defendants charged with child pornography (PC 311) in the county of San Bernardino, including the cities of Redlands, Victorville, Fontana, Rancho Cucamonga, Rialto, Colton, Ontario, Yucaipa, and more. There is no charge for initial consultations and our office offers 24/7 emergency service. 909.913.3138