CA Penal Code 311: Child Pornography

California Penal Code Section 311 et seq. sets out California’s prohibition on the possession and distribution of child pornography.  Child pornography is one of the most serious charges a defendant can face.  Even the mere allegation that someone possessed or distributed child pornography can cause severe damage to a suspect’s reputation, professional life, living situation, and familial relationships.  A conviction can lead to serious jail time, heavy fines, and lifetime registration as a sex offender. 

If you have been accused of possession or distribution of child pornography, you should retain a qualified criminal defense attorney immediately.  You need someone on your side to guide you through the process, ensure that your rights and your privacy are protected, and prevent a mere allegation from derailing your life. 

Defining Child Pornography

California’s Penal Code broadly defines child pornography as material that depicts minors under the age of 18 engaged in or simulating sexual conduct.  Child pornography does not include drawings, figurines, statues, or films that have been rated by the Motion Picture Association of America.  Further, the law does not cover live or recorded telephone messages that are transmitted, disseminated or distributed as part of a commercial transaction.

Elements of a Child Pornography Crime

California Penal Code Section 311 makes it a crime to knowingly distribute, possess, produce, publicize, duplicate, sale or print child pornography in any form.  Because of the way the statute is written, different “steps” in the process are all chargeable as different crimes.  Distributing, viewing, producing, downloading, and possessing child pornography are all separately defined, and each qualifies as a crime in its own right. 

At base, however, a prosecutor must demonstrate the following in any case involving child pornography:

The defendant knowingly possessed obscene matter;

The defendant knew the character of the matter;

The defendant knew that the matter depicted a person under the age of 18 who was personally participating in or simulating sexual conduct.

The mental state or “mens rea” of these crimes is very important.  A defendant must have known that they possessed the material, and they must have known that the material depicted a minor under age 18 committing lewd acts.  Often, for example, a defendant may be browsing a general pornographic or other website that, in some parts, includes child pornographic images.  Those images can be indexed on a person’s computer without their knowledge simply by being transmitted from the website while browsing.  If the defendant did not intentionally access or download those images, they are not guilty of a crime.

Moreover, the defendant must have known the person in the image was under 18 years old.  If a defendant reasonably believed that the images included only adults, they may have a defense. 

Penalties for Possession or Distribution of Child Pornography

Possession of child pornography, or possession with intent to distribute, is known as a “wobbler” crime in California.  That means that it can be charged as either a misdemeanor or a felony, depending on the circumstances. 

Possession with intent to distribute to a person under the age of 18, however, is always a felony, as is possession with intent to distribute for commercial purposes.  In the latter case, the prosecution would need to demonstrate the additional element of “intent to distribute for commercial purposes.”

Penalties for child pornography possession and distribution vary from up to a year in county jail, to two, four, or six years in prison for multiple offenses.  Additionally, each picture, video, or other material can be charged as a separate offense, meaning that the penalties can easily start adding up to a severe prison sentence. 

Federal penalties for child pornography are even more severe.  A conviction for possession or distribution of child pornography also includes mandatory registration as a sex offender.

The Law Offices of John D. Lueck is a trusted Rancho Cucamonga criminal defense law firm with more than 42 years of service to clients in San Bernardino and Los Angeles counties.  These cases are highly sensitive and require experienced representation to ensure your rights are protected.  If you or someone you know has been arrested for a crime, contact Rancho Cucamonga criminal defense lawyer John D. Lueck for a free consultation.


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