California Penal Code 311.1 PC makes it as a crime to send, transport knowingly, produce, possess, or duplicate any obscene material portraying a person under 18 involved in or simulating sexual activity, with the intent to distribute, display, or share it.
This charge is often considered a "wobbler," allowing it to be prosecuted as either a misdemeanor or a felony, based on the details of the case and the defendant's criminal record.
Possession of child pornography is among the most heavily prosecuted crimes in California. It is illegal to knowingly possess or control any material showing a minor involved in sexual activity. This law covers a wide range of media, including images, videos, and digital files.
Child pornography refers to any material that depicts sexual conduct involving a person under 18. This includes acts such as sexual intercourse, oral or anal sex, sexual activity with objects, sadomasochistic abuse, and bestiality.
Possession may be actual, constructive, or joint. Actual possession involves knowingly holding or carrying child pornography. Constructive possession means knowingly keeping the materials in a place you control, like your home or car.
Joint possession occurs when you knowingly share possession with someone else, such as a friend or roommate.
Key Takeaways
- Violating PC 311.11 carries serious penalties. A conviction may result in significant fines, jail time, mandatory sex offender registration, and lasting effects that can significantly affect your personal and professional life.
- This offense may be classified as a misdemeanor or a felony, with up to one year in county jail or up to three years in state prison.
- If you possess videos of child pornography on a laptop, knowing they feature 15-year-old girls, or if you keep images of young teenagers engaged in sexual acts, you could be charged with PC 311.11 for child porn possession.
- What makes this law especially intimidating is that you could still face conviction even if you think you haven't fulfilled the requirements for "possession." California law interprets possession quite broadly.
What Does PC 311 Cover?
California Penal Code 311.11 says -
"(a) 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, as defined in subdivision (d) of Section 311.4, is guilty of a felony and shall be punished by imprisonment in the state prison, or a county jail for up to one year, or by a fine not exceeding two thousand five hundred dollars ($2,500), or by both the fine and imprisonment."
California Penal Code 311.4(d) says-
"Sexual conduct" means any of the following, whether actual or simulated: sexual intercourse, oral copulation, anal intercourse, anal oral copulation, 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 sexual stimulation of the viewer, any lewd or lascivious sexual act as defined in Section 288, 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."
Viewing Child Porn Content Still Constitutes Possession
Many people think that possessing child pornography requires downloading or saving files onto a device. However, under California law, simply accessing and viewing this content online—without downloading—is frequently sufficient to face charges.
The legal definition of possession encompasses situations where a person knowingly views or has control over prohibited material. If prosecutors can prove you intentionally accessed or searched for this content, you can be charged even if the files are not stored on your device.
Conversely, simply downloading content without viewing it still counts as possession. California prosecutors need to prove two key elements under PC 311.11 to convict someone of possessing child pornography, including:
- You intentionally had possession or control of child pornography, and
- You did so while knowing that it involved a person under 18 engaging in sexual activity.
Other Factors That Might be Unfamiliar to You
By the time you face criminal charges, prosecutors may already have built a strong case against you. Prosecutors are generally reluctant to lose child pornography cases, which is why investigations into such possession tend to be thorough and painstaking.
Law enforcement agencies frequently employ sophisticated surveillance methods, cyber forensic equipment, and undercover operations to gather evidence. They might observe online activities for months or even years before detaining suspects.
Special attention is given to devices such as computers, smartphones, and external drives, which can serve as evidence.
Some individuals accused of these charges think they can claim a valid defense if the minor was their romantic partner or if the material was obtained through a consensual relationship. However, California law does not accept this as a valid defense.
The state enforces a strict zero-tolerance policy towards child pornography because minors are legally unable to consent to sexual activities. For instance, if two teenagers in a relationship record a sex tape, the content still constitutes child pornography, and one or both could face charges for possession.
Broader Consequences Beyond Incarceration
If you are convicted under PC 311.11, you must register as a sex offender for a minimum of 10 years, possibly for life if convicted of a felony. A conviction of this kind also carries other consequences, such as, but not limited to, the following:
- Holding a professional license in California significantly increases the risk of suspension or revocation, which can impede your ability to practice your profession.
- Your conviction can also adversely affect your custody rights. If you have minor children, a sexual offense conviction might lead to limited or supervised visitation. In extreme cases, it could even result in the loss of your parental rights entirely.
- Possession of child pornography can lead to restitution payments to victims, court fees beyond criminal fines, restraining orders, loss of civil rights during custody, and revocation of gun rights if convicted of a felony involving child porn.
- Moreover, having a conviction for a sexual offense can impact your immigration status. Depending on how serious the offense is and your current immigration situation, you might be subjected to deportation or prevented from reentering the United States.
What are Crimes That Are Related?
- Lewd acts with a child - Penal Code 288 PC criminalizes lewd and lascivious acts with a minor, which includes touching a child for sexual purposes or causing a child to touch themselves or others for sexual reasons purpose.
- Statutory rape - Penal Code 261.5 PC, Statutory rape involves having sex with a minor under 18. Violating this law can result in prosecution as either a misdemeanor or a felony, depending on the circumstances.
- Revenge porn - Penal Code 647j4 PC prohibits specific acts of revenge porn, which can involve both minors and adults.
Sexually Violent Predator Law
Depending on your specific offense, you might face extra restrictions under California's sexually violent predator (SVP) laws, even after serving your sentence.
These laws permit the indefinite civil commitment of individuals considered a ongoing threat to public safety because of a diagnosed mental disorder that could lead to reoffending sexually.
The aim is to safeguard the public by detaining such individuals in secure treatment facilities beyond the expiry of their criminal sentences. For more information, contact our California criminal defense lawyers at Cron, Israels & Stark in Los Angeles, CA.
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