I. California Penal Code 311: Possession/Distribution of Child Pornography

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Legal Definition: 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. (PC 311.11(a))

Every person, who knowingly is in possession of twelve (12) videos, or six hundred (600) images, of child pornography, described in PC 311.11(a) above, or child abuse involving sexual sadism or sexual masochism, is guilty of possession of child pornography as an enhancement under PC 311.11(c).

The difference between the two charges above is the amount of photos/videos that you possess.

To prove that you are guilty of PC 311.11, the prosecutor must prove that:

1. You possessed an image or video, in any media format, depicting sexual conduct, simulated or actual, of a minor under eighteen (18); AND
2. You knew that you possessed the images or video and knew that the image or video depicted the minor, engaging in, or simulating sexual conduct.

Sexual conduct means any of the following, whether actual or simulated: sexual intercourse, oral copulation, anal sex, masturbation, bestiality, sexual sadism, sexual masochism, penetration of the vagina or rectum by any object in a lewd or lascivious manner, an exhibition of the genitals or pubic or rectal area for the purpose of sexual stimulation of the viewer, any lewd or lascivious sexual act, 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. (PC 311.4(d)(a)).

To prove that you are guilty of PC 311.2, the prosecutor must prove that:

1a. You sent/brought obscene matter into California or caused obscene matter to be sent/brought into California;

OR

1b. You (possessed/prepared/ published/produced/developed/duplicated/printed obscene matter; 

OR

1c. You distributed or offered to distribute obscene matter;

2. When the defendant acted, you knew the character of the matter;

3. When you acted, you knew that the matter showed a person under the age of 18 years who was personally participating in or

simulating sexual conduct;

AND

4. When you acted, you intended to sell or distribute/distribute, show, or exchange/distribute the matter to someone else for money or other commercial benefit.

II. What does this mean?

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The matter is obscene if, when considered as a whole:

1. It shows or describes sexual conduct in an obviously offensive way;
2. A reasonable person would conclude that it lacks serious literary, artistic, political, or scientific value; AND
3. An average adult person, applying contemporary statewide standards, would conclude it appeals to a prurient interest.

The material is not obscene unless a reasonable person would conclude that, taken as a whole, it lacks serious literary, artistic, political, or scientific value.

A prurient interest is a shameful or morbid interest in nudity, sex, or excretion. Matter means any representation of information, data, or image. Applying contemporary statewide standards means using present-day standards and determining the effect of the matter on all those whom it is likely to reach within the state, in other words, its impact on the average person in the statewide community. An average adult person is a hypothetical person who represents the entire community, including both men and women; religious and nonreligious people; and adults of varying ages, educational and economic levels, races, ethnicity, and points of view.

III. Penalties

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1. PC 311.11(a) – This is a wobbler offense, where you can be charged with it as a felony or as a misdemeanor. If you are convicted of this charge as a misdemeanor, you could be sentenced to upwards of one year in the County Jail. If you are convicted of this charge as a Felony, you could be sentenced to upwards of 16 months, two or three years in State Prison. You would be required to serve 50% of that sentence. You would also be required, if convicted of this charge as either a misdemeanor or as a felony, to register as a Sex Offender for 10 years as a Tier I Sex Offender. This is not a Strike offense under the Three Strikes Law. However, if you are convicted of this charge as a misdemeanor, or it is reduced to a misdemeanor conviction at some point later, then you would be excluded from having your information posted on the Megan’s Law website

2. PC 311.11(c) – This is an enhancement of the above section and only changes your maximum punishment, where your exposure in State Prison goes to 16 months, two or five years. 

3. PC 311.2 – This is a straight felony, because of the added element of selling the matter for a commercial profit, and you could end up in State Prison for upwards of two, four or six years. You would be required to serve 50% of that sentence. You would also be required, if convicted of this charge as either a misdemeanor or as a felony, to register as a Sex Offender for 10 years as a Tier I Sex Offender. This is not a Strike offense under the Three Strikes Law. The fines in this section can be upwards of $100,000.

If you only send the matter, but it is not for the purpose of making a commercial gain, then the crime is PC 311.1, which is a wobbler offense. you are convicted of this charge as a misdemeanor, you could be sentenced to upwards of one year in County Jail. If you are convicted of this charge as a Felony, you could be sentenced to upwards of 16 months, two or three years in State Prison. You would be required to serve 50% of that sentence. You would also be required, if convicted of this charge as either a misdemeanor or as a felony, to register as a Sex Offender for 10 years as a Tier I Sex Offender.

IV. Common Defenses

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1. Statute of Limitations
2. Insufficient Evidence
3. Entrapment
4. Violation of your Rights
5. False Accusations
6. Coerced Confessions

Entrapment occurs when a police officer behaves in such an overbearing way, that as a result, you engage in behavior s/he otherwise would not have. Here, imagine being in a chat room online, and a person from that chat room starts messaging you about their collection of Child Pornography. You could have never wanted an interest in it, but this person is persistent. They then indicate they want to send you some photos, you are hesitant, and say no, but after some prodding, you relent. In that case, you did not engage or begin the conversation, and you certainly were not out patrolling for obscene imagery of children. In a case like that, having the matter forcibly sent to you in that way is not a violation under this section.

V. Call Today

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