The State of California makes it illegal for a person to possess, send, produce, advertise, and transport or distribute child pornography. The penalties when a person is convicted of the offense are stiff and can significantly be detrimental to a person’s professional and personal life. A guilty conviction can result in an accused person facing jail time of eight years and a possible fine of $100,000. When one is charged with any aspect of child pornography, they should not take it lightly but instead must seek a criminal lawyer immediately. The team of attorneys at The Los Angeles Criminal Defense Attorney is experienced to defend you or your loved one against the charges of child pornography.
Understanding Child Pornography Law – PEN 311
Child pornography, as found under PEN 311, has been subdivided into many sub-sections. Here, we will discuss the various sub-sections and what the law says about each particular offense.
PEN 311.1(a) – Possession of Child Pornography
Possession happens when a person facilitates bringing of a picture, an audio or visual recording of a minor aged below eighteen carrying out various sexual acts to the state. The state prohibits the sharing, selling, or exhibition of child pornography. When a person does these, knowing a minor is featured in the materials, they are guilty of violating PEN 311.1(a).
Violations of this law can lead to a misdemeanor or a felony charge, depending on various facts. If one is convicted of misdemeanor offenses, they are likely to serve a county jail time of not more than a year. Additionally, the defendant will be expected to pay a fine, not over $1,000.
A felony conviction for this offense will see the offender serve not more than three years in state prison. The defendant will also be charged a cash fine, not exceeding $10,000. The judge can also decide to sentence the defendant to either the fine or prison time.
Prohibitions under PEN 311.1 (a)
Under this penal code, for one to be found guilty of the offense, they must:
- Send, facilitate the sending or produce sexual images or recordings of a minor below eighteen years and
- Exhibit, exchange or share the materials, distribute or sell it to others
- With the knowledge that the material represents features an underage person performing sexual acts
For a defendant to be convicted of the offense, the prosecutor is burdened to prove:
- The defendant bought, sent the illegal material or facilitated for its sending or its bringing into California
- The defendant had, produced, published, prepared, duplicated, printed or developed the unlawful material
- The defendant agreed to distribute the said material to others
- The defendant showed or distributed the illegal content to another person
- The obscene material was within California
- The defendant was aware of the material and its nature
- The defendant knew that a child was a participant in the illegal material
It is essential to understand that having nude elements under his law is not considered obscene. However, for materials to be defined as obscene, they must exhibit sexual activities. If a person has obscene materials for their private use will not be guilty of PEN 311.1 (a) violations.
In addition to this law, PEN 311.2 (b) talks about having child pornography for commercial purposes. For a person to be found guilty of this offense, the prosecutor must show evidence, as is found in PEN 311.1 (a). The prosecutor, in addition to the above elements, he or she must prove that the defendant used the materials for profit or financial gain.
For instance, if a person runs a bookstore in California, he or she may agree with an out of state distributor to bring books that show children engaging in sexual acts with adults. The books are meant to be sold in the store, and the store owner has customers for them. An undercover cop may get a tip of the goings-on in the shop and pose as a buyer. If the store owner sells to the covert cop child pornography materials, he or she will be arrested for distributing and using obscene materials for profit.
PEN 311.2 (c) discusses the law of having child pornography material that the defendant intends to sell to persons over the age of eighteen. The prosecutor in proving these allegations, he or she must fulfill the same elements as found under PEN 311.1 (a). However, the evidence must be produced that the defendant was selling the materials to adults.
Distribution of child pornography can also be targeted to minors. This is found under PEN 311.2(d), where a person will be charged with distributing obscene materials to underage persons. For a conviction, there must be proving of the various elements of child pornography discussed earlier. Also, the prosecutor must show the court how the defendant sold or gave the materials to minors.
PEN 311.3(a) discusses the sexual exploitation of children. If you are charged with this offense, the prosecutor will be required to prove three elements of the crime. These are:
- You were responsible for printing, duplicating or exchanging the materials
- You were aware of the nature of the materials and
- You were informed that the content involved an underage person performing sexual acts
It is important to note that this law does not apply to a person employed as a film developer. The employee is acting according to the scope of the job he or she is engaged in doing.
The law prohibits a person from hiring a minor to carry out sexual acts as found under PEN 311.4(a). If one is charged with this offense, a conviction will require a prosecutor to prove:
- The person knew or had reason to know that a minor was involved
- With this knowledge, you employed or hired the minor
- You went ahead and facilitated for the minor to perform sexual acts
It is important to understand that even when you are not the one that directly created pornography, hiring a person to do it on your behalf is also a violation.
PEN 311.4(b) prohibits a person from using a child to produce pornographic materials for commercial gain. In convicting a person on these charges, a prosecutor is expected to show the following:
- The defendant had knowledge that an underage was involved
- That the defendant employed, coerced, used, persuaded the underage or their parent
- To be included in or convince others to participate in modeling or posing
- In sexual activities that involved the underage alone, with animals or other persons
- For commercial gains
A person can also be charged with PEN 311.4 (c). This statute prohibits a person from engaging an underage in the production of pornography for non-economic gains. This means, even when you produce child pornography for your use or share with friends, it is illegal irrespective of whether you are making money out of it or not. For a conviction, the prosecutor must prove the same elements as those of PEN 311.4(b), with the difference being that you never intended to gain financially.
PEN 311.10 (a) is another violation under the general law of child pornography, as found under
PEN 311 makes it illegal for a person to advertise or promote the sale of child pornography or its distribution. When charged with these allegations, a prosecutor must determine the following elements to get a conviction. These include:
- Provide evidence that the defendant advertised to distribute and sell the materials
- The materials advertised was illegal and obscene
- You knew the content involved an underage person
- And the person was engaged in stimulating sexual activities
For instance, a person that owns a small publishing company or website that has a good following may accept to advertise a pornographic company. They may not want to do it, but because of financial challenges, they decide to run the ad for the upcoming moving that seems innocent. Even though the owner of the website or the newspaper doesn’t like pornography or doesn’t watch the film, he or she will be charged with violations of PEN 311.10 (a).
Another offense a person can be charged with under child pornography is that of possessing and controlling child pornography materials. This is found under PEN 311.11 (a). For a conviction of this offense, the prosecutor should demonstrate:
- The defendant knowingly owned and controlled the obscene materials
- The materials were in the form of film or images of an individual below eighteens of age
- That the defendant was aware, the person featured was underage
- And the content showed the minor engaging in sexual acts with other persons or animals
Under this statute, you can receive materials that involve underage pornography through email but not even open it. The fact that you save them on your computer shows that you possess and control them. This is a violation under PEN 311.11 (a).
Penalties of Child Pornography PEN 311 Violations
The penalties for various offenses under the statute are different. Some crimes are prosecuted as felonies while others as misdemeanors. The circumstances of the case and the criminal history of the defendant play a significant role in determining how the case will be prosecuted and the penalties thereof. Below, we discuss the penalties a conviction would result in each violation.
1. PEN 311.1 (a) Penalties
Violations of this law are prosecuted as a misdemeanor or a felony. If one is convicted on misdemeanor charges, they are likely to face county jail imprisonment for not more than a year, with a fine of $1,000. A felony conviction for possessing child pornography, on the other hand, can lead to steeper penalties. The defendant may face state imprisonment for not more than three years with a cash fine of $10,000. Sometimes the judge can sentence you to either the state imprisonment or cash fine instead of both.
2. PEN 311.2 (b), PEN311.2 (c), PEN 311.2 (d) Penalties
A violation of PEN 311.2 (b) is one of the most serious offenses under child pornography. This offense is typically prosecuted as a felony. A conviction on these violations can see a defendant face state imprisonment of up to 6 years or be charged a fine not exceeding $100,000.
Sometimes, a judge can decide to punish the defendant with both prison time and a fine.
When a person is charged with PEN 311.2 (c), the offense can be prosecuted as either a felony or a misdemeanor. A misdemeanor conviction will see the defendant face not more than a year of county jail imprisonment. Additionally or instead, the defendant can be subjected to a cash fine of not more than $2,000. A felony conviction for this offense can result in state imprisonment for not more than three years with a fine not exceeding $10,000, or either of them. If the defendant is a repeat offender of this violation, any subsequent charge will be prosecuted as a felony.
Violations of PEN 311.2 (d) are prosecuted as felony offenses. If one is convicted of the crime, they face similar penalties as those of PEN 311.2 (c) felony convictions.
3. PEN 311.3 (a) Penalties
Charges on PEN 311.3 (a) are typically prosecuted as misdemeanors if a first offense. A conviction will have the defendant face county imprisonment for not more than a year, with a fine not exceeding $2,000. If a person is charged with subsequent violations of the statute, the charges against them will be prosecuted as felony offenses. A conviction will, therefore, see the defendant get state imprisonment penalty not exceeding three years in addition to a cash fine not exceeding $10,000. The defendant can also be sentenced to either the jail sentence or imprisonment.
4. PEN 311.4 (a), PEN 311.4 (b) and PEN 311.4 (c) Penalties
Violations of PEN 311.4 (a) are prosecuted as a misdemeanor or felony offenses. A conviction carries a penalty of not more than a year county imprisonment with a fine not exceeding $1,000. If a defendant is convicted on felony charges, they face likely state imprisonment of not more than three years with a penalty not exceeding $10,000. A judge can also decide to sentence a person to either jail time or fine instead of both. If the defendant repeats the offense, the subsequent charges will be prosecuted as felony offenses.
When a person is facing PEN 311.4(b) and (c), they will be prosecuted on felony charges. When convicted on PEN 311.4(b), the defendant faces not more than eight years of state imprisonment with a fine not exceeding $10,000. A conviction on felony charges on PEN 311.4(c) will carry a state imprisonment penalty of three years or less. This is in addition to or instead of a cash fine of $10,000 or less.
5. PEN 311.10 (a) Penalties
Violations of PEN 311.10(a) are treated as wobbler charges. A misdemeanor conviction will lead to county imprisonment for not more than a year with a fine not exceeding $1,000. If a defendant is convicted on felony charges, the penalty for the offense is state imprisonment of not more than four years with a fine not exceeding $50,000.
6. PEN 311.11 (a) Penalties
Violations for this offense are prosecuted as a misdemeanor for first-time offenders and a felony for subsequent offenses. A misdemeanor conviction carries a county jail sentence of between one year and three years with a fine of $2,500. A felony conviction, on the other hand, carries stiffer penalties. If a defendant is convicted of a felony, the penalties expected are state imprisonment of not more than six years. Additionally, the defendant can be ordered to a fine not exceeding $10,000. A judge can also sentence the defendant to either imprisonment or a fine instead of both.
Registration as a Sex Offender
Every person with a conviction on child pornography is required to be registered as a sex offender. The sex offender act found under PEN 290 requires every individual under the various code sections on pornography as discussed to register as a sex offender. Currently, a person with a child pornography conviction must be a registered sex offender for life.
However, this requirement will be changed by the Senate Bill in 2021. Sex offender registration will be sectioned into three tiers. The first tier will require an offender to be registered for ten years at the minimum. The second tier involves registration for twenty years, while the third tier is for life registration. This means defendants convicted on misdemeanor charges will require a ten-year registration with the others being twenty or life.
According to Megan’s law, an offender must be registered in a database and should inform the community where they live of their status.
If an offender fails to be registered, it is an offense under PEN 290.018 whose conviction can lead to county imprisonment for a year with a fine of $1,000.
Possible Legal Defenses for Child Pornography
According to the description of the various offenses under child pornography and the penalties they each carry, this offense is a serious crime with equally significant consequences. A person facing charges on any offense in child pornography must get a criminal lawyer to defend them. A skilled lawyer can come up with various strategies that will help the defendant with the allegations. Some of the defense strategies a lawyer can use include:
Unlawful Entrapment
When a known sex offender moves to a particular area, the police may try to entrap him to convict him of the offense once again. An undercover officer may work in various ways either through the internet, phone calls, or emails to entrap the offender. The offender may keep resisting, but he gets tempted one day and gets in touch through the number provided to order for child pornography materials. Instead of him getting the order he requested, he is arrested for child pornography violations.
It is unlawful for police officers to badger a person or coerce them to commit an offense — this defense, when well-argued in court, can lead to the acquittal of the defendant.
The Defendant Did Not Have Intentions of Violating the Law
In proving a case on child pornography, the prosecutor must prove all the elements of the offense to be true. A defendant may admit to having obscene materials. However, he or she does not know it is against the law to bring such materials into the country. Although being ignorant of the law is not sufficient defense, the defendant can argue that they never intended to breach the law.
If the prosecution cannot prove the defendant knew that bringing these materials is an offense, the judge may rule in favor of the defendant. This is not always a successful defense, but when argued sufficiently, it can lead to acquittal or charges on lesser offenses.
The Defendant was Subjected to Unlawful Search and Seizure
The law requires an officer to seek a court order to search the property belonging to a suspect or for their permission to search. For instance, a police officer may pull over a motorist for a traffic violation. After issuing the motorist with the required ticket, he may request to search the trunk of the motorist’s car. The motorist has a right to deny the search. If the officer goes ahead to search when the motorist has denied them consent, this is an illegal search. During the process of searching, the motorist may find obscene child pornography material and take them. He then proceeds to charge the motorist with the offense of child pornography under PEN 312.1(a).
The law does not allow evidence obtained illegally to be submitted during a trial. A lawyer will argue that the officer illegally searched the defendant’s car. If the evidence is thrown out, the prosecutor will be unable to prove the case. This can lead to dismissal of the charges against the defendant.
False Accusations
A defendant can be falsely accused of child pornography by someone that wants revenge from them or one that is jealous. For instance, when a couple breaks up, the aggrieved party may falsely accuse the other of child pornography. For example, a man can accuse his ex-girlfriend of using her daughter for pornography materials that she sells online. The ex-girlfriend may be charged with child pornography offenses, but the prosecution may not be able to prove the case.
In such a case, the ex-boyfriend may have supplied the prosecutors with fabricated evidence to get the ex-girlfriend convicted of the offense. The defendant’s lawyer can argue the case and poke holes into the prosecutor’s case by showing the evidence is fabricated. This can, therefore, lead to the defendant being acquitted of the charges against them.
The Participant in the Material is not a Minor
The prosecutor must prove the obscene materials involved a minor. If the lawyer successfully argues the participant was not a minor, the case of child pornography against the defendant can be dismissed.
Find a Los Angeles Criminal Defense Attorney Near Me
Child pornography is a serious sex offense in California. A conviction leads to stigma, as well as severe personal and professional consequences. The legal penalties for the crime are equally severe. When one is faced with these charges, it is crucial to get a criminal lawyer to help in their defense. At The Los Angeles Criminal Defense Attorney, we are experienced in sex crime matters and will sufficiently represent you against the allegations. Call us at 310-564-2605, and let us discuss your defense.
