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.
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.
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.
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.