Aug 22, 2019
| By Kerry Armstrong
| Read Time: 4 minutes
California pornography laws criminalize the possession, production, sale, advertisement, copying, and transportation of child pornography in the state. If you are picked up, you are facing very serious penalties as well as the possible destruction of your reputation. Child pornography used to be sent through the mail but now the click of a mouse is all it takes for many people to access illegal images. As child porn has become easier to access, California prosecutors have become more aggressive in bringing charges. If you or someone you care about has been accused of a crime related to child pornography, please contact our law office. We have provided caring, compassionate representation for those charged of various sex crimes for over 20 years. What is Child Pornography? California porn laws define child pornography as any image, video, data, or computer file that depicts someone under the age of 18 engaged in a sexual act. The act is not limited to intercourse. It can be any act—real or simulated—such as oral sex, masturbation, or exhibiting the genitals for the purpose of sexual gratification. What is key is identifying the ages of the people involved. The law states under 18. It doesn’t matter if the actor looks 15; if they are at least 18 based on their birth certificate at the time the image or video was produced, then they are of age and the depiction is not child pornography. However, if the person is 17, it is child pornography, even when the actors look 25. California’s laws do not cover imagery if no actual people are involved or depicted. So anime or cartoons involving underage people are not classified as child pornography under various court decisions. California’s Child Porn Laws You can find California’s statutes at Section 311 of the California Penal Code. The following cover most situations involving child pornography: Knowingly possessing or controlling any child pornography (311.11 PC) Knowingly advertising child porn for distribution or sale (311.10 PC) Knowingly hiring, employing, persuading, coercing, or using a minor to participate in the production of child pornography (311.4 PC) Knowingly developing, printing, copying, or exchanging child pornography (311.3 PC) Knowingly sending, producing, possessing, duplicating, or transporting any child pornography with an intent to distribute (311.1 PC and 311.2 PC) As you can see, the law requires that a defendant “knowingly” engage in the above conduct. This is a limitation that means someone will not be prosecuted for child pornography if they did not know that what they were possessing or downloading involved depiction of a minor. However, the state can show this mental state without relying on an admission that a defendant knew what he was doing. For example, a search engine history for “underage girls” or “child sex” is strong evidence that a defendant knew what he was searching for. Punishment for Child Pornography Most child porn cases, at least in state court are called “wobblers,” which means the prosecutor can charge them as either misdemeanors or felonies. Felonies are more serious and will result in stronger sanctions. If convicted of misdemeanor child pornography, a defendant faces up to a year in jail or a $2,000 fine, or both. However, if convicted of a felony, then a defendant can face between 16 months and 8 years in prison and a fine up to $100,000. How does the prosecutor decide whether to prosecute as a misdemeanor or a felony? The following matters: The defendant tried to sell it or trade it commercially The defendant tried to show it to someone under 18 The material qualifies as obscene. Generally, this means that it lacks artistic, scientific, political, or literary merit. Sex Offender Registration Registering as a sex offender is one of the worst penalties those convicted of child pornography face. The public can search the offender registry, so it will be difficult to keep your conviction private. Furthermore, your address might be shown. Court law mandates lifetime sex registration. However, a new law goes into effect on February 1, 2021 Then, many offenders who are convicted will need to register as a Tier Three offender for at least 10 years. Others will be Tier One offenders who must register for the remainder of their lives. Defending Our Clients from These Charges It is critical to recognize that an arrest or indictment is not a conviction. Many of our clients have defenses they can raise to a charge. One defense is that the defendant did not knowingly possess child pornography. Most child porn charges involve someone who downloaded images or video to his or her computer. We might be able to claim that our client didn’t knowingly obtain the images; instead, we can blame: Clicking on a wrong link Typing the wrong search Wrongly believing that the people depicted were all adults It is harder for someone producing or distributing porn to claim this type of defense. For example, if you run a production company, you should have processes in place for confirming the age of your employees. For example, you should insist on seeing a certified birth certificate and not simply relying on a driver’s license, which can be more easily faked. Another defense is to challenge the police investigation procedures. Police need a search warrant supported by probable cause before they can seize your computers or raid your home. Police sometimes rely on a mere hunch, which is not sufficient under the Constitution. If this defense is successful, we can get certain evidence suppressed. Schedule a Consultation with Our Office The criminal defense attorneys at The Law Offices of Kerry L. Armstrong, APLC, have represented some of the toughest sex crimes cases in California. We will do everything we can to obtain a favorable resolution to your case. Contact us today to schedule a free, entirely confidential consultation.
Aug 22, 2019
| By Kerry Armstrong
| Read Time: 4 minutes
California continues to crack down on prostitution, with high-profile arrests making the newspaper regularly. If you’ve been picked up, we understand you might be feeling embarrassed and concerned about your future. In some situations, a person wasn’t even soliciting prostitution when they got caught up in a police sting. At the Law Offices of Kerry L. Armstrong, we offer compassionate legal representation to those arrested for prostitution or solicitation. We credit our strong grasp of the law for our excellent results, and we have managed to get many charges dismissed or dropped. Contact us today. One of our San Diego criminal defense attorneys will be pleased to meet with you. California’s Prostitution and Solicitation Laws You can find California’s law at California Penal Code 647 (b). This law criminalizes the offer or acceptance of money or other valuable consideration for sexual or lewd conduct. One important facet of this law is that the sex act (or lewd conduct) does not have to actually take place for Penal Code 647 b to apply. California’s law criminalizes three things: Engaging in prostitution Soliciting prostitution Agreeing to engage in an act of prostitution Engaging in Prostitution A person can be arrested for engaging in prostitution for intentionally engaging in sexual intercourse or a lewd act in exchange for compensation, including money. In short, this means the defendant willingly engaged in the sexual act or did it on purpose. It does not mean that he or she knew that the law was being broken at that moment. Remember that lewd act embraces more than sexual intercourse. It can also include touching genitals, buttocks, or female breasts with the intent to become sexually aroused or gratified. So accepting money to let someone rub your breasts actually counts as engaging in prostitution under Penal Code 647(b). Soliciting Prostitution A person can be arrested and convicted of solicitation if he asks another person to engage in an act of prostitution and intended to engage in the act. Intent matters here. The defendant must have actually intended to go through with the offer, even if he or she did not, in fact, follow through. The prosecutor can prove intent by showing that the defendant offered money or other consideration or took some other step that manifested intent. Solicitation can also occur even where the person being propositioned is not a prostitute or is a police officer undercover. The person propositioned does not have to have any intent to follow through, even if they accept the offer. Agreeing to Engage in Prostitution Simply agreeing to have sex for money also is illegal, even if no one goes through with the transaction. In other words, a transaction does not have to be completed for the police to nab someone for agreeing to engage in prostitution. A defendant is guilty if: They agreed to engage in prostitution with someone else They intended to actually engage in the act They further the commission of the prostitution by taking some other act beyond the agreement The last element is often in dispute. Simply saying “yes” is not enough. Some other act is required. For example: Withdrawing money from an ATM machine Telling the other person to undress Taking your clothes off Driving to a location to meet the person for sex or other lewd behavior Penalties Solicitation and prostitution are misdemeanors, not felonies. The exact punishment a defendant faces depends on several factors, such as where the violation occurred and whether this is the defendant’s first offense: First offense: up to 6 months and jail and up to a $1,000 fine Second offense: mandatory 45 days in jail Third offense: mandatory 90 days in jail A defendant can face additional penalties if arrested while using a car and within 1,000 feet of a residence. In addition to the penalties above, defendants can have their driver’s license suspended for 30 days. Those convicted of prostitution or solicitation can be required to register as sex offenders, though many are not. Speak about this possibility with your attorney. Defenses to Solicitation and Prostitution Charges With decades of experience, our firm understands the many defenses we can raise to a prostitution or solicitation charge. For example, if you are under 18, you cannot be found guilty of prostitution. Instead, a California law defines anyone under 18 as a “commercially sexually exploited child.” In other cases, you might raise the following defenses: Insufficient evidence Entrapment Lack of Intent Let’s take a closer look at these. Insufficient Evidence The state must prove each case beyond a reasonable doubt. Often, however, there is doubt about whether you broke the law because the prosecutor does not have sufficient evidence about what people said and did. For example, a defendant might be accused of propositioning a police officer, but there was no recorded statement even though the officer should have been wired. In this situation, we can’t be sure that the defendant propositioned sex for money or other compensation. Entrapment This is a hard defense to prove. To raise entrapment, a defendant needs to show that the police officer’s conduct would have induced a normal, law-abiding citizen to commit a crime. In other words, a defendant must show more than that the police created the opportunity to commit a crime. Some examples of entrapment include: Repeatedly soliciting someone, even after they say “no.” Badgering a person or intimidating them into agreeing to sex Offering an extraordinarily large sum of money Promising that the conduct is not illegal and won’t be uncovered by the police Everything depends on the circumstances, but a good attorney can use the facts to his or her advantage to argue entrapment. Lack of Intent The intent is an element of the offense, and the prosecutor cannot maintain a charge if not intent is shown. For example, someone might have solicited a prostitute on a dare but have had no intention of going through with it. Contact a Criminal Defense Lawyer Today Being picked up for prostitution or solicitation...
Aug 5, 2019
| By Kerry Armstrong
| Read Time: 2 minutes
In California, it is illegal to have sexual intercourse with an individual under 18 years of age who is not your spouse. This crime, which is called statutory rape, is discussed in further detail below. Misdemeanor and Felony Statutory Rape In California, statutory rape can be charged as either a misdemeanor or a felony. When determining whether to pursue misdemeanor or felony charges, one factor that prosecutors examine is the age difference between the suspect and the alleged victim. If the suspect and alleged victim are within three years of age, then the crime will typically be charged as a misdemeanor. However, if there is more than a three-year age difference between the suspect and the alleged victim, then the crime may be charged as a felony. Penalties for Statutory Rape in California Misdemeanor statutory rape is punishable by a maximum of 364 days in jail and a fine of up to $1,000. For incidents involving minors 16 years of age and older and suspects under the age of 21, the resulting felony statutory rape charge can result in up to three years in jail. And for incidents involving minors under 16 years of age and suspects over the age of 21, the potential penalties include up to four years in prison and $10,000 in fines. What if it’s Consensual? Ordinarily, people think of rape as a non-consensual act of force. Statutory rape, however, isn’t always done against the will of the victim. Rather, statutory rape can occur even when both individuals consent to the act. The deciding factor in statutory rape cases is that one or both of the participants are under the age of 18. Therefore, it is a criminal act in California at any time two unmarried persons under the age of 18 have sexual intercourse. Sex Offender Registration In addition, anyone convicted of either misdemeanor or felony statutory rape may be required to register as a sex offender for life. When making this determination, the judge must consider whether the offender committed the crime due to sexual compulsion or gratification. If the judge determines that registration as a sex offender is necessary, then the offender could potentially face the following negative consequences: Difficulty finding long-term employment Difficult maintaining long-term employment The stigma of being a registered sex offender Difficulty sustaining relationships Isolation from friends and family Examples of California Statutory Rape A victim is under 18 years old when the crime was committed A 30-year-old teacher develops a relationship “sexually” with a 16-year-oldstudent A minor, under the age of 18 can also be charged with statutory rape butwould eventually be tried in the juvenile court system of California Speak to an Attorney at The Law Office of Kerry Armstrong, APLC Due to the potential consequences involved, it is important that anyone charged with statutory rape in San Diego seek the guidance of an experienced criminal defense attorney. At the Law Offices of Kerry L. Armstrong, our experienced sex crime defense attorneys provide all of our clients with expert legal guidance in order to achieve the most favorable results possible. The talent and experience of our attorneys ensure that our clients’ cases are handled expertly and with the utmost care. If you or a loved one is facing criminal charges of any kind in San Diego, please contact us immediately for a free consultation.
