The California Penal Code Section 311 is the primary law that makes child pornography a crime in California. According to this statute, it is an offense to send a duplicate, transport, print, possess, or advertise child pornography. It is also a crime to persuade or hire a minor to take part in pornographic imagery. The crime of child pornography attracts severe penalties under California law. The best thing you can do when the prosecutor accuses you of child pornography is to hire an experienced attorney to represent you. If you face child pornography charges in Santa Ana, CA, Darwish Law can help you fight these charges.
California Child Pornography Laws
The California child pornography laws are outlined in Penal Code Sections 311.1, 311.2, 311.3, 311.4, 311.10, and 311.11. According to California PC 311.1 and 311.2, you may face criminal charges for intentionally sending, producing, transporting, duplicating, or possessing child pornography intending to distribute it. California PC 311.3 prohibits developing, printing, duplicating, or exchanging child pornography intentionally. The California PC 311.4 bans hiring, using, employing, coercing, or persuading a person below 18 years of age to participate in the production of child pornography. It is a crime to intentionally advertise child pornography for distribution or sale. Possessing or controlling child pornography that involves a person below 18 years is a crime, according to PC 311.11. Many people have an issue understanding the specific meaning of certain terms under PC 311:
Child Pornography
According to the law, child pornography constitutes any material or matter that depicts sexual conduct by an individual below 18 years. Material or matter could include films, videotapes, negatives, photographs, slides, or computer-regenerated equipment. It may depict a child engaging in sexual conduct like oral copulation, sexual intercourse, masturbation, or anal intercourse.
Intentionally or Knowingly
You will only be guilty under the California child pornography law if you act intentionally or knowingly. This means that when you committed the crime, you were aware that the material you possessed, advertised, or transported was pornographic. It also means that you knew that the pornographic material portrayed a person below 18 years old engaging in pornographic activities.
Obscene Material
You can only face charges under the California pornographic law if the materials involved are obscene. What is obscene material? Something qualifies as obscene if it describes or offensively portrays sexual conduct. Material is obscene if a reasonable person would conclude that the material lacks serious artistic, literally, scientific or political value. As long as a reasonable person would conclude that the material appeals to a prurient interest, then the material is obscene. A prurient interest refers to a morbid or shameful interest in sex, nudity, or excretion.
The Punishment for PC 311 Violation
The crime of child pornography under California law is a wobbler and therefore could be charged as either a felony or a misdemeanor. If the prosecutor charges child pornography as a misdemeanor, the penalties include a jail time that does not exceed one year in county jail. The court might also require you to pay a fine ranging between $1,000 and $2,500. If charged as a felony, the crime of child pornography is punishable by imprisonment of up to three years in a State prison in California. Upon a conviction for child pornography under California law, you will have to register as a sex offender.
Immigration Consequences
A child pornography conviction has negative immigration consequences. According to the U.S Immigration Law, certain convictions could lead to deportation if you are a non-citizen. A non-citizen might also be marked as inadmissible into the U.S.
If you are marked inadmissible, you can't secure U.S citizenship through naturalization or other procedures. Any crime of moral turpitude could have negative immigration consequences. Child pornography is a crime of moral turpitude. Whether or not the crime of child pornography is labeled a crime of moral turpitude will depend on the specific facts of a case. You will suffer negative immigration consequences if the prosecutor labels your violation of PC 311 as a crime of moral turpitude.
A Child Pornography Conviction and Your Gun Rights
A child pornography conviction could hurt your gun rights. The conviction will affect your gun rights if the prosecutor charges the crime as a felony. According to California law, people convicted of a felony cannot possess or acquire a gun in California. You may lose the right to possess and own a gun if the prosecutor charges the crime of child pornography as a felony and the court convicts you of that crime.
Expungement of the Criminal Conviction
After a conviction of child pornography, you are entitled to an expungement of the criminal conviction under certain circumstances:
- You complete probation successfully.
- You complete the assigned jail time (whichever applies)
You could still get the offense expunged even if you do not comply with all the terms of probation. However, whether or not you qualify for an expungement after violating the probation terms will depend on the judge's discretion. The California law PC 1203.4 outlines the expungement process. An expungement will release you from all the disabilities and penalties resulting from the criminal conviction.
Fighting Child Pornography Charges
When the prosecutor charges you with child pornography, you should not give up or accept all the prosecutor’s charges against you. You can utilize several legal defenses to fight the charges and prove that you are innocent:
The Material Involved is Not Child Pornography
According to California law, child pornography refers to material that depicts a person below 18 years engaging in sexual conduct. Therefore, if the pornographic material you possessed doesn't show minors engaging in sexual conduct, you can point out that you did not possess or distribute child pornography. You could also use this defense if the people portrayed in the material you possessed are above 18 years. If the material you possessed displayed minors engaging in film or artistic activities that are not obscene, you did not possess child pornography.
You Did Not Act Intentionally or Knowingly
While committing the crime of child pornography, you must have acted knowingly or intentionally for you to face charges. The prosecutor must prove beyond a reasonable doubt that you were aware of the nature of your actions. If you did not act with any particular knowledge while committing the crime, you could use this defense. For example, the police might find you in possession of a video that you downloaded from the internet without knowing that it contained child pornography. You can defend yourself by stating that you did not know that it had child pornographic materials on it when you downloaded the video.
The Materials You Possessed Had a Valid Legitimate Purpose
If the material you possessed had a valid legitimate purpose, the police can't accuse you of child pornography. You might have possessed child pornography while engaging in a scientific, medical, or educational activity. For example, you may have a video depicting some youths engaging in simulated sexual conduct to sensitize other youths on premarital or underage sex dangers. This video does not qualify as child pornography because it has a legitimate purpose.
The Police Subjected You to Unlawful Search or Seizure
Under California law, you still have constitutional rights even when you are a suspect in a crime. According to the fourth amendment to the U.S constitution, you should not be subjected to unlawful search or seizure. The law prohibits the police from using illegal or unreasonable search or seizure to seek evidence. If you and your attorney convince the jury that the police subjected you to unlawful search and seizure, the court may order that the illegally acquired evidence be excluded from your case.
If this evidence is excluded from your case, the prosecutor will have weak proof against you. This could lead to a reduction or even dismissal of your criminal charges. You can use this defense if the police search your computer or mobile device without a search warrant. This defense will also apply if the police use an invalid search warrant to search your device or home.
A Victim of Police Entrapment
Most arrests under PC 311 involve undercover police who pose as customers seeking to access or buy child pornography. The police might also sell you child pornography via mail or online. You can put up a defense by stating that the police lured you or tricked you into committing the crime. This tricking or luring is known as police entrapment.
The law prohibits the officers from pressurizing, harassing, and using fraud, flattery, or threats to make someone commit a crime. To use this defense successfully, you must prove that you only committed the crime because of the entrapment. It should be evident that if the police had not tricked or lured you into committing the offense, you wouldn’t have violated PC 311.
How an Attorney Can Help
Especially when charged with a felony, the crime of child pornography could have far-reaching effects on your life. You should contact an experienced criminal defense attorney immediately after your arrest. An attorney will help you in the following ways:
- Investigating your case and examining the evidence
- Identifying lapses or weaknesses in the prosecutor’s evidence
- Guiding you through the legal process
- Representing you in court during the trial
- Helping you apply for scaling or expungement of your criminal record
An attorney will consider all the facts of your case to ensure that you don’t face charges for a crime that you did not commit. Its common for the police and the prosecutor to be overzealous in prosecuting child pornography. Your attorney will evaluate the prosecutor's evidence against you and identify weaknesses that he or she can use to your advantage.
If you have never faced criminal charges before, you might not know what to expect, including the legal proceedings involved. Your attorney will take you through the legal process and help you comply with all the requirements. When your child pornography case proceeds to trial, you will need someone to represent you in court and face the prosecutor and the judge on your behalf.
If You Can't Afford an Attorney
What happens if you can't afford an attorney to represent you in your child pornography case? If you don’t have the resources to hire a private attorney, the court will hire an attorney on your behalf. However, it is advisable to work with a private attorney instead of a public defender. A private attorney will give your child pornography case the time and attention it deserves.
A public defender could be handling several cases at once, meaning that he or she will have limited time to focus on your case. A public defender might not have the necessary resources to conduct an in-depth investigation of your case. As long as you can manage hiring an attorney, you will have a better chance of winning your child pornography case while working with a private attorney.
Related Offenses
Three crimes are closely related to the crime of child pornography and are often charged alongside the crime. The related offenses include:
- Statutory rape under PC 261.5
- Lewd acts with a minor under PC 288 and Revenge Porn under PC 647(j)(4)
Statutory Rape
You may face statutory rape charges under PC 261.5 if you engage in illegal sex with a minor below 18 years old to whom you are not married. It does not matter whether the sex was consensual or not. You could still face statutory rape charges even if the minor initiates the sex. Statutory rape is a wobbler which means it can attract felony or misdemeanor charges. California doesn’t have the Romeo and Juliet rule like some other states in the U.S. Therefore, the legal age of sexual consent in California is 18 years. A person below 18 years cannot consent to sex. Violations under PC 261.5 are common in California, given that the vast majority of teenagers are sexually active. Therefore, many people find themselves facing statutory rape charges when they least expect.
Whether the prosecutor charges the crime of statutory rape as a felony or misdemeanor will depend on several factors. The prosecutor will consider the age difference between the victim and the defendant. You are likely to face severe charges if the minor is below 16 years and you are above 21 years. When charged with a felony, the crime of child pornography could attract up to 4 years imprisonment in State prison. When charged with statutory rape, you can employ the following legal defenses:
- No actual sexual intercourse happened between you and the minor
- You believed that the child was above 18 years
Lewd Acts with a Minor
Child molestation, known as lewd and lascivious acts with a minor, is a crime under California PC 288. According to this law, it is a crime to touch a child under 14 years of age for sexual purposes. You could also face charges under PC 288 if you make a child touch themselves for sexual purposes. This law applies when a child is under 16 years old. However, in most lewd acts with a minor, the child or the victim is under 14 years old. Under this statute, it is also a crime to use threat or force to commit a lewd act against a dependent person. You can face charges for lewd acts with a minor even if:
- You touched the child above their clothes
- You did not touch the child’s sexual organ
- The child is the one who did the touching
The crime of lewd acts with a minor is a felony. The applicable charges will depend on:
- The child’s age
- Whether you used force, coercion, violence, or threats to accomplish the lewd acts
- The age of the child and the defendant
- Whether there is a pattern of lewd acts
Revenge Porn
Former California Governor Jerry Brown signed the Revenge Porn Bill SB 255 into law on October 1, 2013. It is a misdemeanor crime to post sexually explicit videos or photos online without the person's consent. It should be evident that your actions caused the victim to suffer emotional distress.
The prosecutor will have to prove several elements before accusing you of revenge porn:
- You had an image depicting the intimate parts of an identifiable individual — the picture might have indicated the person engaging in oral copulation, sodomy, sexual intercourse, or sexual penetration.
- You distributed the image intentionally.
- The understanding between you and the person in the image was that the photos would remain private.
- You knew that you would cause the other person emotional distress by distributing the images.
- The victim suffered emotional distress because of your actions.
You can fight revenge porn charges by pointing out that:
- You did not distribute the content intentionally
- You had the victim’s consent to share the photos or videos online
- You had no intent to cause the victim emotional distress
What are the typical penalties of the crime of revenge porn? The offense is punishable by a jail time of up to six months in a county jail in California. The court may also impose a hefty fine of up to $1,000. Instead of jail time, the judge may recommend misdemeanor probation.
Find a Santa Ana Criminal Defense Attorney
If you or your loved one face child pornography charges in Santa Ana, CA, you should contact Darwish Law. Our reliable criminal defense attorneys will investigate your case and help you build a convincing defense. Contact us at 714-887-4810 and speak to one of our experienced attorneys.