Child Pornography Law & Defense
PC 311 Crimes
California laws prohibiting a person from possessing child pornography can be found at penal code sections 311.11(a), 311.11(b), and 311.11(c).
PC 311.11 Law
PC 311.11(a): Every person who knowingly possesses or controls any matter, data, or image, including, but not limited to, any film or photo, negative, slide, photocopy, videotape, computer hardware or software, or computer generated image, that contains the depiction of a person under 18 years of age, engaging in, or simulating sexual conduct, is guilty of the crime of possessing obscene matter depicting a minor engaging in sexual conduct (PC 311.11(a) [Abbr.]).
Sexual Conduct Defined: Per PC 311.11(a), 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, 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) Abbr.))
Possession Defined: Possession can be actual or constructive. Actual possession means that a person knowingly has something on his or her person and with his or her consent. Constructive possession means that a person has access and ability to control something, regardless if that something is in the person's physical presence . A person can have actual control of something for a very short period of time; this is known as fleeting possession. Fleeting possession without requesting possession is not sufficient to equal actual possession for purposes of the crime of possession of child pornography.
For example: If a person is handed a picture depicting a minor in a sex, and the person who accepts the picture does not know what is depicted in the picture and immediately returns the picture to the person who handed it to him or her, then the defendant would have only fleeting possession of the child pornography and should not be guilty of possessing the child pornography.
PC 311.11(c): 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 with enhanced penalties (PC 311.11(c) [Abbr.]).
To prove that the defendant is guilty of the crime of possession of child pornography, the prosecutor must prove that:
The defendant possessed an image or video, in any media format, that depicts sexual conduct, simulated or actual, of a minor under eighteen (18), and
The defendant knew that he or she possessed the images or video and knew that the image or video depicted the minor, engaging in, or simulating sexual conduct.
Punishment for PC 311.11
PC 311.11(a) Sentence: Possession of obscene matter depicting a minor engaging in sexual conduct is charged as a felony or as a misdemeanor (a wobbler). If found guilty of felony PC 311.11(a), the defendant may face up to three (3) years in prison. If found guilty of misdemeanor PC 311.11(a), the defendant may face up to one (1) year in jail.
PC 311.11(c) Sentence: Possession of more than six hundred (600) images or twelve (12) videos of child pornography, or possession of child pornography with a child engaging in sexual sadism or sexual masochism, is charged as a felony or as a misdemeanor (a wobbler). If found guilty of felony PC 311.11(c), the defendant may face up to five (5) years in prison. If found guilty of misdemeanor PC 311.11(c), the defendant may face up to one (1) year in jail.
Good Conduct Credit: If the defendant is sentenced to jail or prison, he or she may earn up to fifty percent (50%) credit off his or her jail or prison sentence for good behavior while in custody. This applies to both felony and misdemeanor PC 311.11(a) and 311.11(c). sentences.
Probation Sentence: Probation is period of supervision instead of jail or Prison. Probation sentences come with probation terms that must be followed in order to avoid further punishment, including actual jail or prison. Probation for felony PC 311.11(a) and 311.11(c) is called formal probation, which means the defendant is monitored by a probation officer. Probation for misdemeanor PC 311.11(a) and 311.11(c) is called informal probation.
Probation sentences are available in both PC 311.11(a), and 311.11(c) cases, but every case is decided on a case by case basis. Whether or not a probation sentence is available in a particular case depends largely on the facts of the case and the defendant's criminal history.
Suspended Prison Sentence: The crimes of possession of obscene matter depicting a child engaged in sexual conduct ((PC 311.11(a)) and 311.11(c)) do not qualify for suspended prison sentences (also called joint suspension), or split prison sentences. This means that if the defendant is found guilty of PC 311.11(a) or 311.11(c), the defendant must serve either a probation sentence (see above) or an actual prison sentence, and no part of his or her prison sentence may be served out of prison on work release or house arrest (PC 1170(h)).
Three Strikes Law: Neither PC 311.11(a), nor PC 311.11(c) is considered a strike crime per California's Three Strike's Law.
Sex Offender Registration: If found guilty of possession of obscene matter depicting a minor engaging in sexual conduct (PC 311.11(a) or 311.11(c)), the defendant will be ordered to register as sex offender with law enforcement.
Immigration Issues: A criminal convictions for the crime of possession of obscene matter depicting a minor engaging in sexual conduct (PC 311.11(a) or 311.11(c)) can lead to severe immigration consequences for non U.S. citizens, including deportation or denial of reentry into the United States. PC 311.11(a) and 311.11(c) are crime involving moral turpitude.
Collateral Penalties: In addition to the punishments listed above, if found guilty of possession of child pornography (PC 311.11(a) or 311.11(c), the defendant may face any of the following: fines and court fees, restitution to victims, criminal protective orders, restraining orders, loss of a professional license, loss of civil rights (including the right to own firearms for felony convictions of PC 311 crimes), loss of family law rights, and more.
Defenses to PC 311
Every PC 311 case is different; therefore, every defense to a possession of child pornography case is different; however, PC 311 charges tend to follow common defenses, including: mistake of fact (as to age of the minor depicted), insufficient evidence to prove possession (actual or constructive), statute of limitations, coerced confession, illegal search and seizure, insanity, and more.
Note: PC 311 crimes do not apply to drawings, figurines, statues, or films rated by the Motion Picture Association of America (PC 311.11(e) [Abbr.]).
Age of Consent in Different State: It is NOT a defense to a criminal charge of possession of child pornography to demonstrate that the person depicted in the material is old enough to consent in the state where the obscene material was produced. The age of consent in all instances of child pornography crimes charged in California criminal court is 18.
If you charged with any possession of child pornography crime, including possession of obscene matte depicting a minor engaging in sexual conduct (PC 311.11(a) or 311.11(c)), contact our sex crimes criminal defense attorneys for a free consultation. Our team is experienced and successful in defending against sex crimes charges, including possession of child pornography charges. Call today!
Quick Legal Reference
Crime: Possession of Obscene Matter Depicting a Child
Code: PC 311.11(a) (CalCrim No. 1141)
Wobbler: Yes. PC 311.11(a) is a wobbler. This means that PC 311.11(a) may be charged as a felony or as a misdemeanor.
Incarceration: Felony PC 311.11(a) prison sentence range: 16 months, 2 or 3 years (if probation not granted). Misdemeanor jail sentence up to 1 year.
Probation: Probation may be available in PC 311.11(a) cases (assuming other crimes or enhancements that bar a probation sentence are not present). Whether or not a probation sentence is offered by the District Attorney, or granted by the court, depends on several factors, including the defendant's criminal history and the facts of the case.
PC 1170(h)): No. PC 311.11(a) is not subject to PC 1170(h) sentencing. This means that any incarceration ordered after a conviction, that is not part of a probation sentence, must be served in state prison (as opposed to county jail), and the prison sentence may not be split or suspended.
Strike: PC 311.11(a) is not a strike offense listed in California's Three Strikes law.
Credits: 50% good conduct credits available.
CIMT: PC 311.11(a) is a crime involving moral turpitude
Firearms: Felony PC 311.11(a) convictions prohibit the defendant from owning or possessing a firearm.
Bail: $25,000 (Felony); $5,000 (Misdmeanor) (San Bernardino )
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