Posted on January 14, 2018

California “Child Pornography” Law – Penal Code 311.11 PC

Possession of child pornography is charged under California Penal Code 311.11 pc making it a crime to knowingly possess images, film, photographs, software, discs, or other storage applications depicting minors engaging in sexual conduct.[1] This charge is a wobbler permitting the District Attorney discretion to file either felony or misdemeanor charges.  A conviction consequently carries mandatory sex offender registration for life.

To prove a violation of PC 311.11, it is sufficient if a defendant actively searches for child pornography, opens web sites with such images, and repeatedly views and manipulates images found on their hard drive.

The term sexual conduct has been legally defined to mean masturbation, bestiality, exhibition of the rectal area or genitals, sexual intercourse, anal intercourse, and oral copulation or other forms of lewd and lascivious acts.[2]  Other forms of California Child Pornography Laws include production, dissemination, transporting, and exploitation for commercial purposes.  Furthermore, in cases where there’s a sophisticated operation or a large scale of images or videos, you could expect to be indicted in federal court.

Ordinarily, law enforcement monitors websites frequented by prior offenders.  If a person downloads an image or video, police track their current location via their IP address.  Sometimes within a few minutes, police arrive at the suspects location and are the process of obtaining a search warrant to seizure and download the contents of your computer.

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Legal Defenses to PC 311.11 in California

  • Possession: Possession or control of child pornography does not cover a person who innocently receives unsolicited material, discovers it contains child pornography, and immediately destroys the material or reports it to law enforcement.[3]
  • Sufficiency of Age: Prior cases have held that expert testimony as to the physical development can establish that a person engaging in or simulating sexual conduct is under age 18.[4] However, there are instances where the government cannot prove beyond a reasonable doubt that the purported depicted minor in the film or video is under the age of 18.
  • Knowledge: This statute requires someone to know they were in possession of illegal material.  It is not uncommon for Trojan horse viruses or computer hackers to use someone else’s IP address or even computer to conduct child pornography transaction or download material to avoid detection to their own computer.
  • Legitimate Purpose: An exception to having possession or control of child pornography is if it was for medical, scientific, or educational purposes.  Moreover, those addicted to or view child pornography are presumed to have mental issues that may be correctable.  To better study and understand the motives and reasons of viewing child pornography, experts and those undergoing studying should be able to view this material to prevent recidivism and rehabilitation.
  • Image Manipulation: Charges of possession of child pornography requires that the pictures be of an actual child engaging in or simulating sexual activities.  Therefore, placing a child’s (or minor) head on nude bodies of adults engaging in sexual conduct does not violate this statute.[5]
  • Artistic Creation: PC 311.11 does not apply to drawings, figurines, statutes, or to any film rated by the Motion Picture Association of America, or to live or recorded telephone messages transmitted, disseminated, or distributed as part of a commercial transaction.

Punishment & Sentencing

PC 311.11 is punishable by imprisonment in the state prison for 16 months, 2, or 3 years, or in the county jail for up to one (1) year.  A person who violates this code section and who has previously been convicted of the same violation, an offense requiring registration under the Sex Offender Registration Act, or an attempt to commit any of these offenses, must be punished by 2, 4, or 6 years in state prison.  Additionally, any conviction for this offense mandates sex offender registration for life.[6]

Common California Child Pornography Examples

  • Police raid Dan’s house with a search warrant and seize his computer. A forensic analysis of Dan’s computer revealed a substantial amount of child pornography. Dan was arrested and charged with possession of child pornography. Dan hired an orange county sex crimes attorney who in turn appointed a computer forensics expert. The expert’s analysis revealed that a computer hacker hacked into Dan’s computer and was running a child pornography website utilizing Dan’s information and files. In this case, Dan would not be guilty because he did not knowingly possess the child pornography.
  • Police knock on Dan’s door and start asking him questions about a child pornography investigation against him. Dan let the police officers into his house for questioning. Once questioning was finished, Police seized Dan’s computer for further investigation. A police computer analyst discovered child pornography on Dan’s computer. In this case, Dan’s defense attorney would argue that police officers unlawfully searched Dan’s computer in violations of his Fourth Amendment right because they searched and seized his computer without his consent and without a search warrant. As a result, the material will be suppressed and the prosecutor will be unable to proceed and the case will be dismissed.

Contact Us to Schedule a Free Consultation

If you’ve been arrested or are under investigation for possession of child pornography under penal code 311.11 pc, there’s no question that you need an experienced Orange County Criminal Defense Attorney to represent your rights.  Contact the Law Offices of John D. Rogers to schedule a free confidential consultation concerning all your options and defenses.  Early intervention for any sex crime offense could mean the difference between serving time in state prison or having the case rejected altogether.

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Legal References:

[1] Penal Code 311.11(a) – defined (“Every person who knowingly possesses or controls any matter, representation of information, data, or image, including, but not limited to, any film, filmstrip, photograph, negative, slide, photocopy, videotape, video laser disc, computer hardware, computer software, computer floppy disc, data storage media, CD-ROM, or computer-generated equipment or any other computer-generated image that contains or incorporates in any manner, any film or filmstrip, the production of which involves the use of a person under 18 years of age, knowing that the matter depicts a person under 18 years of age personally engaging in or simulating sexual conduct, as defined in subdivision (d) of Section 311.4, is guilty of a felony and shall be punished by imprisonment in the state prison, or a county jail for up to one year, or by a fine not exceeding two thousand five hundred dollars ($2,500), or by both the fine and imprisonment.”)

[2] Penal Code 311.4(d)(1) – (“As used in subdivisions (b) and (c), “sexual conduct” means any of the following, whether actual or simulated: sexual intercourse, oral copulation, anal intercourse, anal oral copulation, masturbation, bestiality, sexual sadism, sexual masochism, penetration of the vagina or rectum by any object in a lewd or lascivious manner, exhibition of the genitals or pubic or rectal area for the purpose of sexual stimulation of the viewer, any lewd or lascivious sexual act as defined in Section 288, or excretory functions performed in a lewd or lascivious manner, whether or not any of the above conduct is performed alone or between members of the same or opposite sex or between humans and animals. An act is simulated when it gives the appearance of being sexual conduct.”)

[3] In re Grant (2014) 58 Cal.4th 469.

[4] See People v. Kurey (2001) 88 Cal.App.4th 840, 845.

[5] See People v. Gerber (2011) 196 Cal.App.4th 368.

[6] See Penal Code 290 et seq.

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