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Child Pornography Defense Strategies in California – Penal Code 311

Posted by Philip Israels | Jul 02, 2019

At Cron, Israels & Stark, our criminal lawyers have handled cases in where our clients were charged with child pornography in violation of California Penal Code Section 311. These felony sex crime charges included possession and distribution of child porn.

In many of these cases, by the time our client was formally charged, law enforcement has already conducted a long and thorough criminal investigation of their electronic files and a computer analysis, making it difficult for our client to deny the allegation they weren't in possession of unlawful images that depicted minors engaging in sexual behavior.

Any allegations of a violation of California state or federal child pornography laws are serious. You will need early intervention into your case by experienced criminal defense lawyers who know how to guide you through the legal process. Skilled legal representation is absolutely critical. There are effective defense strategies that can be utilized on your behalf, such as showing mitigating factors that might help you avoid jail or even conviction.

A conviction for child pornography under PC 311 could result in up to 6 years in a California state prison and mandatory requirement to register as a sex offender for life.  For more information about state and federal child pornography laws, contact our law firm. Our Los Angeles criminal defense lawyers review child porn laws and strategies below to avoid jail or a conviction.

Legal Definition of California Child Pornography – Penal Code 311

Child pornography laws in California are defined under various statutes of Penal Code 311 PC. It criminalizes the act of knowingly distributing, possessing, producing, duplicating, or selling any form of child pornography, which images or videos that depicts someone under 18 engaging in sexual conduct.

There are a various forms of a child pornography offense, including viewing or downloading child porn material. However, they all require the prosecutor to prove all the elements of the crime, including the following:

  • Defendant knowingly possessed images that depicted minors engaging in sexual conduct
  • Defendant knew the images depicted a minor engaging in sexual conduct

These elements of the crime are important because they mean in order to be convicted of Penal Code 311, it has to be proven, beyond reasonable doubt, that you knowingly possessed and controlled material showing a minor engaged in sexual acts.

Legal Definition of Federal Child Pornography – 18 U.S.C. § 2252

Under federal law, 18 U.S. Code Section 2252 makes it a federal offense to willfully possess, create, distribute, or transport child pornography. The Child Pornography Prevention Act describes child pornography as a visual depiction of a minor engaging in sexually explicit conduct. It prohibits the possession, receipt and distribution of sexual images of minors.

In basic terms, it's unlawful to possess, distribute, or access child pornography with intent to view. A conviction could result in up to 15 years in a federal prison as well as being included in sex offender registries.

The investigation of federal child porn cases includes undercover operations of federal agents who pretend to have interest in obtaining child pornography images or videos. Under federal law, a related offense is Sexual Exploitation of Children defined under 18 U.S.C. 2251, which makes it a federal crime to attempt to persuade a minor to produce child pornography.

Defense Strategies to Avoid Jail Time in California Child Pornography Charges

It's important to note that a primary factor used to decide jail time in child porn cases is the volume and nature of the sexual images or videos that were seized in the investigation. For example, if you were found in possession of a relatively small number of images that depicted teenagers engaging in sexual conduct, the prosecution would not typically consider these type of images as serious as a high volume of images depicting much younger minors in sexual acts.

Your behavior in the child pornography allegations are also important. For example, if the prosecutor can show you made an attempt to actually meet or communicate with the minors over the internet, they will normally seek prison time.

Any attempt by a criminal defense lawyer to convince a prosecutor to avoid a jail term in a child pornography case includes providing them with mitigating information. In most cases, a prosecutor's primary concern is the risk that your child porn conduct will happen again, or even become worse.

Therefore, to address this issue, it would be valid defense strategy to have you participate in a treatment program from mental health professionals who specialize in child pornography matters.

This could also help you deal with the underlying mental health issues that lead you to come into possession of child porn images or videos. This form of therapy could be a substantial mitigating factor to avoid jail as it shows a commitment to rehabilitation and the prevention of recidivism later.

Validity of Search Warrant Argument in California Child Pornography Cases

Another defense strategy against child pornography charges is a legal challenge against the initial charges. For example, most cases where child pornography is prosecuted involves seizing evidence by executing a search warrant. During the search, law enforcement will normally seize your electronic devices that will be forensically analyzed.

In some cases, depending on the circumstances, our criminal lawyers might be able to challenge the validity of the search warrant. For example, the probable cause used to obtain the warrant will typically include alleged post of child pornography made by the your computer's IP address transmitted over the internet.

It might be possible to cast doubt that you were personally involved in unlawful online activity from that specific computer. We could argue it's too speculative to justify a search of your home and computer. We could file a motion to suppress under California Penal Code Section 1538.5, to prevent the use of the seized computer in court.

Another important factor in any jail time sentence in child pornography cases includes whether your case is charged in California state court or as a federal offense. We also defend clients against any type of California internet sex crime charges.

For example, a child porn charge in a Los Angeles criminal court has a much better chance of avoiding a jail sentence, especially in cases where there were a small number of images involved and you have no prior convictions. Federal courts typically pursue harsher sentencing that includes time in a federal prison.

It should be noted every case is unique and the outcome will depend on a wide variety of factors. This includes your criminal history, willingness to seek therapy , and where the child pornography charges were filed.

Our lawyers will closely evaluate your case in order to determine the most effective defense strategy to obtain the best possible outcome. If you or a member of the family has been accused of violating California state or federal child pornography laws, contact our law firm for a free case evaluation.

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About the Author

Philip Israels

Phil Israels was raised in California's Central Valley where he still has family. After graduating from the University of California at Berkeley where he was a member for Zeta Beta Tau fraternity and studied Economics, he continued his education...

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