Penal Code 311 PC – California Child Pornography Laws

Penal Code 311 PC is the primary statute that makes child pornography illegal in the state of California. State law makes it a crime to send, transport, duplicate, print, advertise or possess child pornography, or to hire or persuade minors to participate in making pornographic images.

Examples

• sharing videos of naked teenage girls with an internet pornography group.
• hiring a 16-year-old boy to perform gay porn for pictures and videos.
• an internet business advertising that it has child pornography films and images of child pornography for sale.

Misdemeanor child pornography is typically punishable by up to one year in county jail. Most felony child pornography cases are punishable by a three-year prison sentence.

Our California criminal defense attorneys will highlight the following in this article:

• 1. Laws
• 2. Defenses
• 3. Penalties
• 4. Immigration consequences
• 5. Expungements
• 6. Gun rights
• 7. Are there related offenses?

1. Laws

California’s child pornography laws are set forth in Penal Code Sections 311.1, 311.2, 311.3, 311.4, 311.10, and 311.11.

Penal Code 311.1 PC and 311.2 PC make it a crime knowingly to:

• send,
• transport,
• produce,
• possess, or
• duplicate

any child pornography, with the intent to distribute such material.¹

Penal Code 311.3 PC makes it a crime knowingly to:

• develop,
• duplicate,
• print, or
• exchange

any child pornography.²

Penal Code 311.4 PC makes it a crime knowingly to:

• hire,
• employ,
• use,
• persuade, or
• coerce

a minor to participate in the production of child pornography.³

Penal Code 311.10 PC makes it a crime knowingly to advertise obscene child porn for sale or distribution of child pornography.⁴

Penal Code 311.11 PC makes it a crime knowingly to possess or control any child pornography that was produced using a person under 18.⁵

Questions often arise under these statutes on the meaning of:

• child pornography,
• knowingly, and
• obscene.

Child Pornography

For purposes of these laws, “child pornography” is defined as:

1. any matter or material,
2. depicting sexual conduct/sexual activity,
3. by a person under 18 years of age.⁶

“Matter or material” includes such items as:

• films,
• photographs, negatives, or slides,
• videotapes, or
• computer-generated equipment.⁷

“Sexual conduct” includes such acts as:

• sexual intercourse,
• oral copulation,
• anal intercourse, and
• masturbation.⁸

Knowingly

A person is only guilty under California’s child pornography laws if he acts knowingly. This means that the defendant:

1. knew the nature of the material he was transporting, possessing, advertising, etc., and
2. knew that the material showed a person under 18 participating in sexual conduct.⁹

Obscene

Some California child pornography laws say that an offense is only committed if the pornographic material in question was “obscene.”

Something is “obscene” if:

1. it shows or describes sexual conduct in an offensive way,
2. a reasonable person would conclude that it lacks serious literary, artistic, political, or scientific value, and
3. an average adult person would conclude that it appeals to a prurient interest.¹⁰

A “prurient interest” is a shameful or morbid interest in:

• nudity,
• sex, or
• excretion.¹¹

Example: Elena produces an art film that focuses on the romance between two teenagers. It features actual teenage actors and most of it concentrates on their psychological and emotional development. The film does have a few scenes involving simulated sex between the two actors. Here, the film is not obscene since it is not offensive, does not contain morbid material, and it has an artistic value.

2. Defenses

Here at Shouse Law Group, we have represented literally thousands of people charged with sex offenses including child pornography. In our experience, the following five defenses have proven very effective with judges, prosecutors, and juries.

1. The material in question does not meet the legal definition of child pornography.
2. The defendant did not act knowingly. (An example is downloading an image without realizing it contained pornography.)
3. The materials in question serve a “legitimate purpose”¹² because the defendant was engaging in a medical, scientific, or educational activity.¹³
4. The police found the materials through an unlawful search and seizure.
5. The defendant was entrapped.

3. Penalties

Most forms of child pornography in California are charged as either:

• wobblers, or
• felonies.

A wobbler means that a prosecutor can charge the offense as either a misdemeanor or a felony.

Misdemeanor child pornography is typically punishable by:

• up to one year in county jail, and/or
• a maximum fine between $1,000 and $2,500.

Most felony child pornography cases are punishable by up to three years in the California state prison.

Also note that a California child pornography conviction will result in the defendant having to register as a sex offender.

4. Immigration consequences

Child pornography convictions under PC 311 are crimes of moral turpitude. Therefore, defendants face deportation after serving their sentence.¹⁴

5. Expungements

California courts can expunge a defendant’s PC 311 conviction provided that they:

1. successfully complete probation or
2. complete a jail term (whichever is relevant).

If a party violates a probation term, they could still get the offense expunged. This, though, would be in the judge’s discretion.¹⁵

6. Gun rights

Felony child pornography convictions under PC 311 will strip defendants of their right to own or possess a firearm for life.

7. Related offenses

• lewd acts with a child – PC 288
• statutory rape – PC 261.5
• revenge porn – PC 647j4

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