California Child Pornography Laws
Penal Code sections 311.1, 311.2, 311.3, 311.4, 311.10 & 311.11 PC

California child pornography (“kiddie porn”) laws make it a crime to engage in assorted activities related to child pornography—and provide for harsh punishments for this crime.

An experienced criminal defense attorney is needed to navigate the complicated laws that apply to the crime of child pornography in California. Here's a brief summary of the statutes that define this California sex crime:

  1. Penal Code 311.1 and 311.2 make it a crime to knowingly send, transport, produce, possess or duplicate any child pornography, with intent to distribute it;1
  2. Penal Code 311.3 (“sexual exploitation of a child”) makes it a crime to knowingly develop, duplicate, print or exchange any child pornography;2
  3. Penal Code 311.4 makes it a crime to knowingly hire, employ, use, persuade, or coerce a minor to participate in the production of child porn;3
  4. Penal Code 311.10 makes it a crime to knowingly advertise obscene child porn for sale or distribution;4 and
  5. Penal Code 311.11 makes it a crime to knowingly possess or control any child pornography that was produced using a person under 18.5

Examples

Here are some examples of behavior that could violate California's child porn laws:

  • A California man visits Russia and takes digital videos of young teenage girls dancing nude at a strip club there; he then brings those videos back home to California and shares them with other members of an internet pornography group.
  • A woman runs a photo store with a “no questions asked” policy; she makes high-quality prints of digital photographs containing sexual images of young children that her clients bring her.
  • A male teenager earns extra money by helping to recruit his female classmates to star in amateur pornography videos made by a neighbor of his.
Video_camera_childporn

Penalties

The penalties for child pornography in California vary depending on the specific child pornography statute you are alleged to have violated.

Most California child porn offenses are either California wobblers (crimes that can be charged as misdemeanors OR felonies) or California felonies.6

When California child pornography is charged as a misdemeanor, the maximum penalties are usually one (1) year in county jail and a fine of up to two thousand dollars ($2,500).7

But for felony child pornography in California, the defendant will typically face a California state prison sentence of anywhere from sixteen (16) months8 to eight (8) years.9

Fines for felony child pornography can go as high as one hundred thousand dollars ($100,000).10

Perhaps worst of all, any child pornography conviction in California subjects you to California's lifelong sex offender registration requirement.11

Legal defenses

If you are charged with child pornography in California, it goes without saying that you will want to fight those charges—hard.

Some common legal defenses that you and your criminal defense lawyer can use to fight child porn charges include:

  • You were entrapped under California entrapment law;
  • You didn't act knowingly or with the required intent;
  • You were falsely accused;
  • Evidence against you was obtained through an illegal search and seizure; and
  • You have a psychological addiction.

In order to help you better understand California child pornography laws, our California criminal defense attorneys will address the following:

1. Summary of California Child Pornography Laws

1.1. PC 311.1 & 311.2 production & distribution of child pornography
1.2. PC 311.3 sexual exploitation of a minor
1.3. PC 311.4 hiring or recruiting a minor for child pornography
1.4. PC 311.10 advertising child pornography
1.5. PC 311.11 possessing child pornography

2. Legal Definition of Child Pornography in California

2.1. Definition of child pornography
2.2. Knowledge
2.3. Definition of “obscene”
2.4. No legitimate purpose

3. Penalties for PC 311 Child Porn

3.1. Sex offender registration

4. Legal Defenses to Child Pornography Charges

5. Child Pornography and Related Offenses

5.1. Penal Code 288 lewd acts with a child
5.2. Penal Code 261.5 statutory rape
5.3. Penal Code 272 contributing to the delinquency of a minor
5.4. Penal Code 236.1 human trafficking

If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.

You may also find helpful information in our related articles on California Sex Crimes Defense; Legal Definition of California Wobblers; Legal Definition of California Felonies; California's Sex Offender Registration Requirement; Common Legal Defenses to California Crimes; California Entrapment Laws; California Search & Seizure Laws; An Explanation of California Burglary Law Penal Code 459 PC; Penal Code 288 PC (California's “Lewd Acts With a Child” Law); Legal Definition of California Misdemeanors; Failure to Register as a Sex Offender in California; California Jury Trials; California Prostitution/Solicitation Laws Penal Code 647(b) PC; California Motions to Suppress Evidence; California Probation Laws; Statutory Rape in California Penal Code 261.5; Penal Code 272 PC California's Contributing to the Delinquency of a Minor Law; and California's Human Trafficking Laws Penal Code 236.1 PC.

1. Summary of California Child Pornography Laws

California's child pornography laws are set out beginning in section 311.1 of the California Penal Code. The important laws that define the crime of child porn are:

1.1. PC 311.1 & 311.2 production & distribution of child pornography

Penal Code 311.1 & 311.2 PC make it a crime to do any of the following with child pornography, with the intent to distribute, exhibit, or exchange it:

  • Send or cause it to be sent into the state,
  • Bring or cause it to be brought into the state,
  • Possess it,
  • Prepare, publish, or produce it, or
  • Develop, duplicate, or print it.12
Mail_childporn
Merely mailing child pornography is a criminal offense in California.

Different sections of these child pornography statutes provide different penalties depending on:

  • Whether the offending material was “obscene,”
  • Whether you intended to distribute it for commercial consideration, and
  • Whether or not you intended to distribute or exhibit it to a person under the age of 18.13

Example: Tom takes pictures of a 9-year-old girl performing sexual acts. He then tells people he meets on the internet about these pictures and offers to “trade” them for other items of child pornography.

Tom is guilty of California child pornography for producing these images with the intent to exchange them.

What's more, he is subject to higher penalties for trying to exchange them for commercial consideration. Even though he isn't trying to actually sell them for money, bartering them for other pornographic images counts as commercial consideration.14

1.2. PC 311.3 sexual exploitation of a minor

Penal Code 311.3 PC “sexual exploitation of a minor” is a variety of California child pornography. This crime consists of knowingly

  • developing,
  • duplicating,
  • printing, or
  • exchanging

any material that qualifies as child pornography.15

Unlike PC 311.1 and 311.2 child pornography, sexual exploitation of a minor does not require that you intend to distribute, exchange, or exhibit the pornography.

Darkroom_childporn

Example: Anna runs a photo shop. In an effort to prop up her business, she spreads the word that her shop is willing to develop and print controversial photographs without going to the authorities.

This leads to Anna's shop getting a reputation among communities of people interested in child pornography. People who take sexually explicit photos of children and teenagers bring their film to Anna's shop to be developed and printed. Anna knows what is going on in these images—but she develops and prints the film anyway.

Anna is not a child pornographer herself. But because of her role in producing child pornography images, she may be charged with PC 311.3 sexual exploitation of a minor.

1.3. PC 311.4 hiring or recruiting a minor for child pornography

Under PC 311.4, it is a separate crime to hire, use, recruit, or coerce a minor to pose or model in a work of child pornography.16

Note that you do not need to actually produce the child pornography yourself to be guilty under this law.17

This form of child pornography is only a crime if you either

  • Knew the minor was under 18, or
  • Were in possession of facts on the basis of which you reasonably should have known that s/he was under 18.18

Example Ron learns that there will be a girls' swim meet at a local high school, involving girls between the ages of 8 and 18.

He sneaks into an office adjacent to the girls' locker room at the school and drills a hole in the wall. Then he takes pictures, through the hole, of the girls as they change into and out of their bathing suits.

Ron is guilty of 311.4 PC child pornography (as well as of California burglary) for coercing these girls to appear in child pornography—even though they didn't know it was happening, and even though he wasn't actually directing them to pose for the photos.19

1.4. PC 311.10 advertising child pornography

Advertising child pornography is also a crime under Penal Code 311.10.20

Specifically, it is a crime to advertise for sale or distribution any obscene material, if you know that it depicts a person under 18 personally engaging in or simulating sexual conduct.21

1.5. PC 311.11 possessing child pornography

Finally, Penal Code 311.11 PC makes it a crime simply to knowingly possess or control child pornography—as long as the production of the pornographic material involved the use of a person under 18.22

Example: Aaron has on his computer a large number of Japanese manga comics, in e-book form. Several of these comics contain explicit drawings of children engaged in sexual acts.

Aaron is not guilty of Penal Code 311.11 child pornography for having these comics, though—because no actual children were involved in their production.

2. Legal Definition of Child Pornography in California

The legal definition of child pornography in California depends, of course, on which of the laws we just discussed applies. (In many cases, defendants face charges under two or more of those laws.)

However, there are certain “elements of the crime” that apply in all or many of the different kinds of child pornography cases. These are facts that the prosecutor must prove in order for you to be guilty of child pornography in California.

Courtroom_gavel
2.1. Definition of child pornography

In order for you to face penalties for child pornography, it must be clear that the material in question actually qualifies as “child pornography.”

Child pornography is defined as:

  1. Any matter or material,
  2. Depicting sexual conduct,
  3. By a person under 18 years of age.23

“Matter” or “material”

For purposes of child pornography laws, matter means any representation of information, data, or image.24

In practice, child pornography can take the form of

  • Film or filmstrips,
  • Photographs, negatives, or slides,
  • Photocopies,
  • Videotapes or video laser discs,
  • Computer hardware or software,
  • Computer floppy disks, CD-ROMs or other data storage devices,
  • Computer-generated equipment, or
  • Computer-generated images that contain any film or filmstrips.25

Depicting sexual conduct

Sexual conduct, for purposes of child pornography laws, means either actual OR simulated

  • sexual intercourse,
  • oral copulation,
  • anal intercourse,
  • masturbation,
  • bestiality,
  • sexual sadism or masochism,
  • lewd and lascivious penetration of the vagina or anus by any object,
  • exhibition of the genitals or rectal area for the purpose of sexual stimulation,
  • any of the “lewd acts” described in Penal Code 288 PC (California's “lewd acts with a child” law), or
  • urination or defecation performed in a lewd or lascivious manner.26
Adults_only_childporn

By a person under the age of 18

Child pornography laws apply only to minors under the age of 18.27

Example: Charlie works as a distributor of amateur pornography. He sells a lot of streaming videos on the Internet that are described as depicting “barely legal” females engaged in sexual acts. All of the women in these videos are between the ages of 18 and 21.

Even though these videos might appeal to viewers who like to see pornography involving younger women, they do not count as child pornography—because they do not depict minors under 18.

And they apply to all minors, of both genders, with two major exceptions.

First, these laws do not apply to minors who are “legally emancipated.”28

Second, these laws do not apply to lawful conduct between spouses.29 So if a 17-year-old is married to a 19-year-old, a video of the two of them having sex will not count as “child pornography.”

2.2. Knowledge

In order to be guilty of any child pornography offense, you must have both

  1. known the nature of the material you were transporting, possessing, advertising, etc., and
  2. known that the material showed a person under 18 personally participating in or simulating sexual conduct.30

According to Los Angeles criminal defense attorney Ninaz Saffari31:

“'Knowledge' is one of the toughest elements to prove in any criminal case—and child porn cases are no exception. Especially these days, a lot of child pornography cases involve computer files, software, internet downloads, and so on. It is very possible to have child porn in your computer history without you being aware that you had it, or that the people depicted in it were minors. If this is the case, you shouldn't be found guilty of this crime.”

2.3. Definition of “obscene”

For some forms of California child pornography, the legal definition of the offense, or the punishment prescribed for it, depend on whether or not the pornographic material was “obscene.”32

Img-obscene-minors

Something is “obscene” if, considered as a whole:

  1. It shows or describes sexual conduct in an obviously offensive way;
  2. A reasonable person would conclude that it lacks serious literary, artistic, political, or scientific value; and
  3. An average adult person, applying the contemporary standards of California, would conclude that it appears to a prurient interest.33

Example: Elena works for a film marketing company. She designs an advertising campaign for a French art film that is being distributed in America.

The movie is about the romance between two teenagers and features actual teenage actors. Most of the movie concentrates on their psychological and emotional development, but there are a few scenes involving very explicit simulated sex.

Penal Code 311.10 PC—the law against advertising child pornography—only applies to “obscene” material. Because this movie has artistic value, it does not qualify as obscene, and Elena is not violating California's child pornography laws.

2.4. No legitimate purpose

California's child pornography laws are not violated by material that has certain legitimate purposes. Specifically, these laws make an exception for:

  1. The activities of law enforcement in the investigation and prosecution of crimes, and
  2. Legitimate medical, scientific, or educational activities.34

Example: A high school youth group wants to make an educational video for their peers about the dangers of underage sex. The group's members act in the video themselves, and there are some scenes of simulated sexual activity.

But this does not meet the legal definition of child pornography, because it is a legitimate educational activity.

3. Penalties for PC 311 Child Porn

The penalties for California child pornography vary depending on the specific section of the California Penal Code you are accused of violating.

Generally speaking, though, most forms of child pornography in California are either

  1. wobblers, or
  2. felonies.35

Child porn offenses that are wobblers may be charged as either California felonies or California misdemeanors. The prosecutor will decide which, based on:

  1. The facts of the case, and
  2. The defendant's criminal history.

The following chart lists the potential penalties for the various California child pornography laws.

Statute

Elements

Penalty Type

Maximum Penalties

PC 311.1

Knowingly sending, transporting, producing, possessing or duplicating any obscene child porn, with intent to distribute

Wobbler

Misdemeanor: 1 year in county jail; $1,000 fine

Felony: 16 months, 2 or 3 years in state prison; $10,000 fine

PC 311.2(b)

Knowingly sending, transporting, producing, possessing or duplicating any obscene child porn, with intent to distribute for commercial consideration

Felony

2, 3 or 6 years in state prison; $100,000 fine

PC 311.2(c)

Knowingly sending, transporting, producing, possessing or duplicating any child porn with intent to distribute to anyone over 18

Wobbler (first offense); felony (subsequent offenses)

Misdemeanor: 1 year in county jail; $2,000 fine

Felony: 16 months, 2 or 3 years in state prison; $10,000 fine

PC 311.2(d)

Knowingly sending transporting, producing, possessing or duplicating any child porn with intent to distribute to anyone under 18

Felony

16 months, 2 or 3 years in state prison; $10,000 fine

PC 311.3(a)

Knowingly developing, duplicating, printing or exchanging any child porn [no requirement of intent to distribute]

Misdemeanor (first offense); felony (second and subsequent offenses)

Misdemeanor: 1 year in county jail; $2,000 fine

Felony: 16 months, 2 or 3 years in state prison; $10,000 fine

PC 311.4(a)

Knowingly hiring or employing minor to perform sexual act for production of child porn

Wobbler (first offense); felony (second and subsequent offenses)

Misdemeanor: 1 year in county jail; $2,000 fine

Felony: 16 months, 2 or 3 years in jail; $10,000 fine (first offense) or $50,000 fine (second and subsequent offenses)

PC 311.4(b)

Knowingly promoting, employing, using, persuading, inducing or coercing a minor or their parent to engage in or assist in preparation of child porn material for commercial purposes

Felony

3, 6 or 8 years in state prison; $10,000 fine

PC 311.4(c)

Knowingly promoting, employing, using, persuading, inducing or coercing a minor or their parent to engage in or assist in preparation of child porn material (not for commercial purposes)

Felony

16 months, 2 or 3 years in prison; $10,000 fine

PC 311.10

Knowingly advertising for sale or distribution any obscene child porn

Wobbler

Misdemeanor: 1 year in county jail, $1,000 fine

Felony: 2, 3 or 4 years in state prison; $50,000 fine

PC 311.11

Knowingly possessing or controlling any child porn produced with the use of a person under 18

Wobbler (for first offense); felony (if you have a prior conviction for child porn or any offense requiring sex offender registration)

Misdemeanor: 1 year in county jail; $2,500 fine

Felony: 16 months, 2 or 3 years in state prison (for first offense); 2, 4 or 6 years (for second or subsequent offense); 16 months, 2 or 5 years (if the defendant possesses more than 600 images, 10 of which are of prepubescent or under-12 minors, OR if the material shows sadomasochistic activity); $10,000 fine


3.1. Sex offender registration

A California child pornography conviction will also subject you to California's sex offender registration requirement—regardless of which Penal Code section you violated.36

Img-failure-to-register

Required sex offender registration for a child porn conviction can be as terrible a punishment as any jail term. The registration requirement is a duty that lasts for an entire lifetime. Failure to register as a sex offender can lead to separate misdemeanor or felony charges.37

4. Legal Defenses to Child Pornography Charges

The social stigma associated with child porn, coupled with the harsh penalties imposed by California child pornography laws, make these devastating charges to face.

But you and your lawyer can fight to get the charges reduced or dismissed—or to get you acquitted in a California jury trial. Here are some potentially helpful California legal defenses:

You were entrapped under California entrapment law

Entrapment occurs when a police officer behaves in an overbearing way, and as a result a defendant engages in behavior s/he otherwise would not have. If this happens to you, you can argue that you are not guilty of the charged crime.38

Entrapment can occur when law enforcement officers talk you into doing something through

  • Pressure,
  • Harassment,
  • Fraud,
  • Flattery, or
  • Threats.39

These days, many child porn defendants are caught through internet sting operations conducted by undercover officers. If an officer convinced you in a chat room or through a “spam pop-up” to buy child porn—something you had never done before—you may be able to argue the entrapment defense.

Entrapment as a legal defense is also often useful against other sex crimes charges, such as California prostitution/solicitation and statutory rape.

Entrapment_childporn

You didn't act knowingly or with the required intent

All California child porn offenses require that you act with knowledge—that is, you must know that the material you are transporting, possessing, advertising, etc., is child porn.40

A lot of of child pornography features teenagers who may be indistinguishable from people who are of age. You may have been dealing with child pornography thinking that it was normal pornography featuring adults.

Or perhaps the internet created a situation where you encountered child pornography without meaning to. You may have accidentally viewed or downloaded child pornography by

  • mistyping a search term,
  • clicking on the wrong link, or
  • downloading an email attachment without understanding what it was.

You were falsely accused

Everybody knows how seriously American law enforcement takes child pornography. So, for someone who wanted to cause you serious harm (such as an angry ex-spouse or former business partner), this would be a great offense to falsely accuse you of.

That person may even have “planted” child pornography in your home, office, car, etc.—or downloaded it onto your computer without your knowledge.

Img-habeas-justice

Evidence against you was obtained through an illegal search and seizure

Child pornography charges are often based on evidence found in a person's home or on their computer. Sometimes police find such evidence through illegal searches and seizures.

For example, maybe a search was made without a valid California warrant—or was outside the scope of the warrant.

In that case, your attorney may be able to defeat the prosecution's case through a motion to suppress evidence.

You have a psychological addiction

Maybe you are guilty of the charged child pornography crime.

But if it can be shown that you have a psychological addiction to the material—and are remorseful about your conduct—the judge may grant you a more lenient sentence (possibly even probation instead of jail time) that emphasizes counseling and rehabilitation instead of punishment.

5. Child Pornography and Related Offenses

There are several other California crimes that may be charged along with—or instead of—child pornography. These include:

5.1. Penal Code 288 lewd acts with a child

California's lewd acts with a minor law, Penal Code 288 PC, makes it a crime to touch a child under 14 (or under 15 if you are more than 10 years older than the child) for the purpose of sexually arousing yourself or the child.41

If you are engaged in making child pornography featuring a child younger than 14 or 15—and you touch the child for sexual purposes—you could be charged with a child porn offense AND lewd acts with a minor.

Similarly, if you are sexually involved with a minor child and show him/her child pornography—you could find yourself facing charges for both crimes.

Lewd acts with a minor is a serious felony. It carries a potential prison sentence of three (3), six (6) or eight (8) years.42

5.2. Penal Code 261.5 statutory rape

Under Penal Code 261.5 PC, a “statutory rape” takes place when any person engages in sexual intercourse with a person under the age of 18—even if the intercourse is consensual.43

Statutory rape is a misdemeanor if there is a 3-year or less age difference between the defendant and the “victim”—and becomes a wobbler if the age difference is greater than 3 years.44

If you have sexual intercourse with a minor, and you are involved in the production of photographs or videos of that act—you could be charged with both statutory rape and child pornography.

Img-statutory-rape-juvenile

Or, in that same situation, you and your attorney may be able to persuade the prosecutor to charge you with only statutory rape, which carries lower penalties and much less stigma—and does NOT require lifetime sex offender registration. This is especially likely if the “victim” was a willing participant.

5.3. Penal Code 272 contributing to the delinquency of a minor

Penal Code 272 PC is California's “contributing to the delinquency of a minor” law. This law makes it a crime to either commit an act or fail to perform a duty, with the result that a minor becomes

  1. A dependent of the juvenile court,
  2. A delinquent, or
  3. A habitual truant.45

So, if you are involved in making pornography involving a teenager—and in the process you supply him/her with alcohol or illegal drugs—you could be charged with both California child pornography and this offense.

5.4. Penal Code 236.1 human trafficking

California's human trafficking laws provide for heavy penalties for people who

  1. Deprive a minor of their liberty with the intent to violate California's child pornography laws, or
  2. Persuade or try to persuade a minor to engage in a commercial sex act, with the intent to violate California's child pornography laws.46

Human trafficking charges can add an extra eight (8) to twenty (20) years to your sentence for child pornography! And if you are alleged to have used force, fear, violence or threat of injury to persuade a minor to engage in a commercial sex act, you could face a sentence of 15 years to life.47

Call us for help…

Img-call-m

For questions about child pornography charges in California, or to discuss your case confidentially with one of our California criminal defense attorneys, do not hesitate to contact us at Shouse Law Group.

We have local criminal law offices in and around Los Angeles, San Diego, Orange County, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.

For more information on Nevada child pornography laws, please see our page on Nevada child pornography laws.

Additional Resources:

Sexual Recovery Institute – Provides assessment and treatment for sexual addiction, including to child pornography

Legal References:


1 Penal Code 311.1 PC – [Child pornography] Sent or brought into state for sale or distribution; possessing, preparing, publishing, producing, developing, duplicating, or printing within state; matter depicting sexual conduct by minor; penalty; application; telephone services. (“(a) Every person who knowingly sends or causes to be sent, or brings or causes to be brought, into this state for sale or distribution, or in this state possesses, prepares, publishes, produces, develops, duplicates, or prints any 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, with intent to distribute or to exhibit to, or to exchange with, others, or who offers to distribute, distributes, or exhibits to, or exchanges with, others, any obscene matter, knowing that the matter depicts a person under the age of 18 years personally engaging in or personally simulating sexual conduct, as defined in Section 311.4, shall be punished either by imprisonment in the county jail for up to one year, by a fine not to exceed one thousand dollars ($1,000), or by both the fine and imprisonment, or by imprisonment in the state prison, by a fine not to exceed ten thousand dollars ($10,000), or by the fine and imprisonment.”)

Penal Code 311.2 PC – Sending or bringing into state for sale or distribution [child pornography]; printing, exhibiting, distributing, exchanging or possessing within state; matter depicting sexual conduct by minor; transaction with minor; exemptions. (“ . . . (b) Every person who knowingly sends or causes to be sent, or brings or causes to be brought, into this state for sale or distribution, or in this state possesses, prepares, publishes, produces, develops, duplicates, or prints any 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, with intent to distribute or to exhibit to, or to exchange with, others for commercial consideration, or who offers to distribute, distributes, or exhibits to, or exchanges with, others for commercial consideration, any obscene matter, knowing that the matter depicts a person under the age of 18 years personally engaging in or personally simulating sexual conduct, as defined in Section 311.4, is guilty of a felony and shall be punished by imprisonment in the state prison for two, three, or six years, or by a fine not exceeding one hundred thousand dollars ($100,000), in the absence of a finding that the defendant would be incapable of paying that fine, or by both that fine and imprisonment. (c) Every person who knowingly sends or causes to be sent, or brings or causes to be brought, into this state for sale or distribution, or in this state possesses, prepares, publishes, produces, develops, duplicates, or prints any 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, with intent to distribute or exhibit to, or to exchange with, a person 18 years of age or older, or who offers to distribute, distributes, or exhibits to, or exchanges with, a person 18 years of age or older any matter, knowing that the matter depicts a person under the age of 18 years personally engaging in or personally simulating sexual conduct, as defined in Section 311.4, shall be punished by imprisonment in the county jail for up to one year, or by a fine not exceeding two thousand dollars ($2,000), or by both that fine and imprisonment, or by imprisonment in the state prison. It is not necessary to prove commercial consideration or that the matter is obscene in order to establish a violation of this subdivision. If a person has been previously convicted of a violation of this subdivision, he or she is guilty of a felony. (d) Every person who knowingly sends or causes to be sent, or brings or causes to be brought, into this state for sale or distribution, or in this state possesses, prepares, publishes, produces, develops, duplicates, or prints any 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, with intent to distribute or exhibit to, or to exchange with, a person under 18 years of age, or who offers to distribute, distributes, or exhibits to, or exchanges with, a person under 18 years of age any matter, knowing that the matter depicts a person under the age of 18 years personally engaging in or personally simulating sexual conduct, as defined in Section 311.4, is guilty of a felony. It is not necessary to prove commercial consideration or that the matter is obscene in order to establish a violation of this subdivision.”)

2 Penal Code 311.3 PC – Sexual exploitation of child [variation on child pornography]. (“(a) A person is guilty of sexual exploitation of a child if he or she knowingly develops, duplicates, prints, or exchanges any 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 that depicts a person under the age of 18 years engaged in an act of sexual conduct. (b) As used in this section, “sexual conduct” means any of the following: (1) Sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex or between humans and animals. (2) Penetration of the vagina or rectum by any object. (3) Masturbation for the purpose of sexual stimulation of the viewer. (4) Sadomasochistic abuse for the purpose of sexual stimulation of the viewer. (5) Exhibition of the genitals or the pubic or rectal area of any person for the purpose of sexual stimulation of the viewer. (6) Defecation or urination for the purpose of sexual stimulation of the viewer. (c) Subdivision (a) does not apply to the activities of law enforcement and prosecution agencies in the investigation and prosecution of criminal offenses or to legitimate medical, scientific, or educational activities, or to lawful conduct between spouses. (d) Every person who violates subdivision (a) shall be punished by a fine of not more than two thousand dollars ($2,000) or by imprisonment in a county jail for not more than one year, or by both that fine and imprisonment. If the person has been previously convicted of a violation of subdivision (a) or any section of this chapter, he or she shall be punished by imprisonment in the state prison.”)

3 Penal Code 311.4 PC – Employment or use of minor to perform prohibited acts [of child pornography]; previous conviction; exception. (“(a) Every person who, with knowledge that a person is a minor, or who, while in possession of any facts on the basis of which he or she should reasonably know that the person is a minor, hires, employs, or uses the minor to do or assist in doing any of the acts described in Section 311.2, shall be punished by imprisonment in the county jail for up to one year, or by a fine not exceeding two thousand dollars ($2,000), or by both that fine and imprisonment, or by imprisonment in the state prison. If the person has previously been convicted of any violation of this section, the court may, in addition to the punishment authorized in Section 311.9, impose a fine not exceeding fifty thousand dollars ($50,000). (b) Every person who, with knowledge that a person is a minor under the age of 18 years, or who, while in possession of any facts on the basis of which he or she should reasonably know that the person is a minor under the age of 18 years, knowingly promotes, employs, uses, persuades, induces, or coerces a minor under the age of 18 years, or any parent or guardian of a minor under the age of 18 years under his or her control who knowingly permits the minor, to engage in or assist others to engage in either posing or modeling alone or with others for purposes of preparing any 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, filmstrip, or a live performance involving, sexual conduct by a minor under the age of 18 years alone or with other persons or animals, for commercial purposes, is guilty of a felony and shall be punished by imprisonment in the state prison for three, six, or eight years. (c) Every person who, with knowledge that a person is a minor under the age of 18 years, or who, while in possession of any facts on the basis of which he or she should reasonably know that the person is a minor under the age of 18 years, knowingly promotes, employs, uses, persuades, induces, or coerces a minor under the age of 18 years, or any parent or guardian of a minor under the age of 18 years under his or her control who knowingly permits the minor, to engage in or assist others to engage in either posing or modeling alone or with others for purposes of preparing any 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, filmstrip, or a live performance involving, sexual conduct by a minor under the age of 18 years alone or with other persons or animals, is guilty of a felony. It is not necessary to prove commercial purposes in order to establish a violation of this subdivision.”)

4 Penal Code 311.10 PC – Advertising for sale or distribution obscene matter depicting a person under the age of 18 years engaging in or simulating sexual conduct [i.e., child pornography]; felony; punishment. (“(a) Any person who advertises for sale or distribution any obscene matter knowing that it depicts a person under the age of 18 years personally engaging in or personally simulating sexual conduct, as defined in Section 311.4, is guilty of a felony and is punishable by imprisonment in the state prison for two, three, or four years, or in a county jail not exceeding one year, or by a fine not exceeding fifty thousand dollars ($50,000), or by both such fine and imprisonment.”)

5 Penal Code 311.11 PC – Possession or control of matter depicting minor engaging in or simulating sexual conduct [child pornography]; punishment; previous conviction. (“(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. (b) Every person who commits a violation of subdivision (a), and who has been previously convicted of a violation of this section, an offense requiring registration under the Sex Offender Registration Act, or an attempt to commit any of the above-mentioned offenses, is guilty of a felony and shall be punished by imprisonment in the state prison for two, four, or six years. (c) Each person who commits a violation of subdivision (a) shall be punished by imprisonment in the state prison for 16 months, or two or five years, or shall be punished by imprisonment in 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, if one of the following factors exists: (1) The matter contains more than 600 images that violate subdivision (a), and the matter contains 10 or more images involving a prepubescent minor or a minor who has not attained 12 years of age. (2) The matter portrays sexual sadism or sexual masochism involving a person under 18 years of age. For purposes of this section, “sexual sadism” means the intentional infliction of pain for purposes of sexual gratification or stimulation. For purposes of this section, “sexual masochism” means intentionally experiencing pain for purposes of sexual gratification or stimulation. (d) It is not necessary to prove that the matter is obscene in order to establish a violation of this section. (e) This section does not apply to drawings, figurines, statues, or any film rated by the Motion Picture Association of America, nor does it apply to live or recorded telephone messages when transmitted, disseminated, or distributed as part of a commercial transaction. (f) For purposes of determining the number of images under paragraph (1) of subdivision (c), the following shall apply: (1) Each photograph, picture, computer, or computer-generated image, or any similar visual depiction shall be considered to be one image. (2) Each video, video-clip, movie, or similar visual depiction shall be considered to have 50 images.”)

6 See, e.g., Penal Code 311.1 PC – [Child pornography] Sent or brought into state for sale or distribution; possessing, preparing, publishing, producing, developing, duplicating, or printing within state; matter depicting sexual conduct by minor; penalty; application; telephone services, endnote 1, above [wobbler]; Penal Code 311.2 PC – Sending or bringing into state for sale or distribution [child pornography]; printing, exhibiting, distributing, exchanging or possessing within state; matter depicting sexual conduct by minor; transaction with minor; exemptions, endnote 1, above [wobbler or felony].

7 See, e.g., Penal Code 311.4 PC – Employment or use of minor to perform prohibited acts [of child pornography]; previous conviction; exception, endnote 3 above, subsection (a).

8 See, e.g., Penal Code 311.1 PC – [Child pornography] Sent or brought into state for sale or distribution; possessing, preparing, publishing, producing, developing, duplicating, or printing within state; matter depicting sexual conduct by minor; penalty; application; telephone services, endnote 1, above.

See also Penal Code 18 PC. (“(a) Except in cases where a different punishment is prescribed by any law of this state, every offense declared to be a felony [including felony child pornography] is punishable by imprisonment for 16 months, or two or three years in the state prison unless the offense is punishable pursuant to subdivision (h) of Section 1170.”)

9 Penal Code 311.4 PC – Employment or use of minor to perform prohibited acts [of child pornography]; previous conviction; exception, endnote 3 above, subsection (b).

10 Penal Code 311.2 PC – Sending or bringing into state for sale or distribution [child pornography]; printing, exhibiting, distributing, exchanging or possessing within state; matter depicting sexual conduct by minor; transaction with minor; exemptions, endnote 1, above, subsection (b).

11 Penal Code 290 PC – Sex Offender Registration Act. (“(a) Sections 290 to 290.024, inclusive, shall be known and may be cited as the Sex Offender Registration Act. All references to “the Act” in those sections are to the Sex Offender Registration Act. (b) Every person described in subdivision (c), for the rest of his or her life while residing in California, or while attending school or working in California, as described in Sections 290.002 and 290.01, shall be required to register with the chief of police of the city in which he or she is residing, or the sheriff of the county if he or she is residing in an unincorporated area or city that has no police department, and, additionally, with the chief of police of a campus of the University of California, the California State University, or community college if he or she is residing upon the campus or in any of its facilities, within five working days of coming into, or changing his or her residence within, any city, county, or city and county, or campus in which he or she temporarily resides, and shall be required to register thereafter in accordance with the Act. (c) The following persons shall be required to register: Any person who, since July 1, 1944, has been or is hereafter convicted in any court in this state or in any federal or military court of a violation of . . . Section 266j, 267, 269, 285, 286, 288,288a, 288.3, 288.4, 288.5, 288.7, 289, or 311.1 [child pornography statute], subdivision (b), (c), or (d) of Section 311.2 [child pornography statute], Section 311.3, 311.4, 311.10, 311.11[child pornography statutes], or 647.6, . . . ; any statutory predecessor that includes all elements of one of the above-mentioned offenses; or any person who since that date has been or is hereafter convicted of the attempt or conspiracy to commit any of the above-mentioned offenses.”)

12 Penal Code 311.1 PC – [Child pornography] Sent or brought into state for sale or distribution; possessing, preparing, publishing, producing, developing, duplicating, or printing within state; matter depicting sexual conduct by minor; penalty; application; telephone services, endnote 1, above; Penal Code 311.2 PC – Sending or bringing into state for sale or distribution [child pornography]; printing, exhibiting, distributing, exchanging or possessing within state; matter depicting sexual conduct by minor; transaction with minor; exemptions, endnote 1, above.

13 See same.

14 Based on the facts of People v. Cochran (2002) 28 Cal.4th 396.

15 Penal Code 311.3 PC – Sexual exploitation of child [variation on child pornography], endnote 2, above.

16 Penal Code 311.4 PC – Employment or use of minor to perform prohibited acts [of child pornography]; previous conviction; exception, endnote 3, above.

17 See same.

18 See same.

19 Based on the facts of People v. Hobbs (2007) 152 Cal.App.4th 1.

20 Penal Code 311.10 PC – Advertising for sale or distribution obscene matter depicting a person under the age of 18 years engaging in or simulating sexual conduct [i.e., child pornography]; felony; punishment, endnote 4, above.

21 See same.

22 Penal Code 311.11 PC – Possession or control of matter depicting minor engaging in or simulating sexual conduct [child pornography]; punishment; previous conviction, endnote 5, above.

23 Penal Code 311.4 PC – Employment or use of minor to perform prohibited acts [of child pornography]; previous conviction; exception, endnote 3, above.

24 Judicial Council of California (“CALCRIM”) 1141 – Distributing Obscene Matter Showing Sexual Conduct by a Minor [i.e., child pornography] (Pen. Code, §§ 311.1(a), 311.2(b)). (“Matter means any representation of information, data, or image, including any (film/filmstrip/photograph/negative/slide/photocopy/videotape/video laser disc/computer hardware or software/computer floppy disk/data storage medium/CD-ROM/computer-generated equipment/ [or] computer-generated image that contains any film or filmstrip).”)

25 See same.

26 Penal Code 311.4 PC – Employment or use of minor to perform prohibited acts [of child pornography]; previous conviction; exception. (“(d)(1) As used in subdivisions (b) and (c), “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 the purpose of 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.”)

27 E.g., Penal Code 311.4 PC – Employment or use of minor to perform prohibited acts [of child pornography]; previous conviction; exception, endnote 3, above.

28 See, e.g,, Penal Code 311.4 PC – Employment or use of minor to perform prohibited acts [of child pornography]; previous conviction; exception. (“(e) This section does not apply to a legally emancipated minor or to lawful conduct between spouses if one or both are under the age of 18.”)

29 See same.

30 CALCRIM 1141 – Distributing Obscene Matter Showing Sexual Conduct by a Minor [i.e., child pornography] (Pen. Code, §§ 311.1(a), 311.2(b)). (“To prove that the defendant is guilty of this crime, the People must prove that: <Alternative 1A—sent or brought> [1 The defendant (sent/ [or] brought) obscene matter into California [or caused obscene matter to be (sent/ [or] brought) into California];] <Alternative 1B—possessed> [1 The defendant (possessed[,]/ [or] prepared[,]/ [or] published[,]/ [or] produced[,]/ [or] developed[,]/ [or] duplicated[,]/ [or] printed) obscene matter;] <Alternative 1C—offered to distribute> [1 The defendant offered to distribute obscene matter to someone else;] <Alternative 1D—distributed> [1 The defendant (distributed/ [or] showed/ [or] exchanged) obscene matter (to/with) someone else;] 2 When the defendant acted, (he/she) knew the character of the matter; [AND] 3 When the defendant acted, (he/she) knew that the matter showed a person under the age of 18 years who was personally participating in or simulating sexual conduct(;/.)”)

See also CALCRIM 1144 – Using a Minor to Perform Prohibited Acts (Pen. Code, § 311.4(b), (c)) [child pornography]. (“To prove that the defendant is guilty of this crime, the People must prove that: . . . 4 The defendant was aware of the character of the matter or live conduct; [AND] 5 The defendant knew, or reasonably should have known, based on facts of which (he/she) was aware, that the minor was under (18/14) years of age; [AND 6 When the defendant acted, (he/she) intended that the matter would be used for commercial purposes.]”)

31 Los Angeles criminal defense attorney Ninaz Saffari is a veteran of the public defender's offices of San Francisco County and Los Angeles. She has conducted dozens of jury trials and juvenile adjudication hearings, defending the tough cases like sex crimes, child pornography cases, and human trafficking cases. Thanks to a cosmopolitan background, Ms. Saffari is fluent in Farsi (Persian) and German.

32 See Penal Code 311.1 PC – [Child pornography] Sent or brought into state for sale or distribution; possessing, preparing, publishing, producing, developing, duplicating, or printing within state; matter depicting sexual conduct by minor; penalty; application; telephone services, endnote 1, above; Penal Code 311.2 PC – Sending or bringing into state for sale or distribution [child pornography]; printing, exhibiting, distributing, exchanging or possessing within state; matter depicting sexual conduct by minor; transaction with minor; exemptions, endnote 1, above; Penal Code 311.10 PC – Advertising for sale or distribution obscene matter depicting a person under the age of 18 years engaging in or simulating sexual conduct [i.e., child pornography]; felony; punishment, endnote 4, above.

33 CALCRIM 1141 – Distributing Obscene Matter Showing Sexual Conduct by a Minor [i.e., child pornography] (Pen. Code, §§ 311.1(a), 311.2(b)). (“You must decide whether the matter at issue in this case meets the definition of obscene matter. Matter is obscene if, when considered as a whole: 1 It shows or describes sexual conduct in an obviously offensive way; 2 A reasonable person would conclude that it lacks serious literary, artistic, political, or scientific value; AND 3 An average adult person, applying contemporary statewide standards, would conclude it appeals to a prurient interest.”)

34 See, e.g., Penal Code 311.1 PC – [Child pornography] Sent or brought into state for sale or distribution; possessing, preparing, publishing, producing, developing, duplicating, or printing within state; matter depicting sexual conduct by minor; penalty; application; telephone services. (“(b) This section does not apply to the activities of law enforcement and prosecuting agencies in the investigation and prosecution of criminal offenses or to legitimate medical, scientific, or educational activities, or to lawful conduct between spouses.”)

35 See endnote 6, above.

36 Penal Code 290 PC – Sex Offender Registration Act, endnote 11, above [applies to child pornography convictions].

37 Penal Code 290.018 PC – Penalties for [failure to register as a sex offender, including after a child pornography conviction]. ("(a) Any person who is required to register under the Act based on a misdemeanor conviction or juvenile adjudication who willfully violates any requirement of the act is guilty of a misdemeanor punishable by imprisonment in a county jail not exceeding one year. (b) Except as provided in subdivisions (f), (h), and (j), any person who is required to register under the act based on a felony conviction or juvenile adjudication who willfully violates any requirement of the act or who has a prior conviction or juvenile adjudication for the offense of failing to register under the act and who subsequently and willfully violates any requirement of the act is guilty of a felony and shall be punished by imprisonment in the state prison for 16 months, or two or three years. (c) If probation is granted or if the imposition or execution of sentence is suspended, it shall be a condition of the probation or suspension that the person serve at least 90 days in a county jail. The penalty described in subdivision (b) or this subdivision shall apply whether or not the person has been released on parole or has been discharged from parole.")

38 See People v. West (1956) 139 Cal.App.2d Supp. 923, 924. ("Entrapment is the conception and planning of an offense [such as a child pornography offense] by an officer and his procurement of its commission by one who would not have perpetrated it except for the trickery, persuasion, or fraud of the officer. Persuasion or allurement must be used to entrap.")

39 See same.

40 See, e.g., endnote 30, above.

41 Penal Code 288 PC -- Lewd or lascivious acts [may be charged in connection with child pornography]; penalties; psychological harm to victim. ("(a) Any person who willfully and lewdly commits any lewd or lascivious act, including any of the acts constituting other crimes provided for in Part 1, upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony and shall be punished by imprisonment in the state prison for three, six, or eight years.")

42 See same.

43 Penal Code 261.5 PC -- Unlawful sexual intercourse with person under 18; age of perpetrator; civil penalties [may be charged along with or instead of child pornography]. ("(a) Unlawful sexual intercourse is an act of sexual intercourse accomplished with a person who is not the spouse of the perpetrator, if the person is a minor. For the purposes of this section, a "minor" is a person under the age of 18 years and an "adult" is a person who is at least 18 years of age. {b) Any person who engages in an act of unlawful sexual intercourse with a minor who is not more than three years older or three years younger than the perpetrator, is guilty of a misdemeanor. (c) Any person who engages in an act of unlawful sexual intercourse with a minor who is more than three years younger than the perpetrator is guilty of either a misdemeanor or a felony, and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment pursuant to subdivision (h) of Section 1170. (d) Any person 21 years of age or older who engages in an act of unlawful sexual intercourse with a minor who is under 16 years of age is guilty of either a misdemeanor or a felony, and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or four years.")

44 See same.

45 Penal Code 272 PC -- Contributing to the delinquency of a minor [may be charged along with or instead of child pornography]. ("(a)(1) Every person who commits any act or omits the performance of any duty, which act or omission causes or tends to cause or encourage any person under the age of 18 years to come within the provisions of Section 300, 601, or 602 of the Welfare and Institutions Code or which act or omission contributes thereto, or any person who, by any act or omission, or by threats, commands, or persuasion, induces or endeavors to induce any person under the age of 18 years or any ward or dependent child of the juvenile court to fail or refuse to conform to a lawful order of the juvenile court, or to do or to perform any act or to follow any course of conduct or to so live as would cause or manifestly tend to cause that person to become or to remain a person within the provisions of Section 300, 601, or 602 of the Welfare and Institutions Code, is guilty of a misdemeanor and upon conviction thereof shall be punished by a fine not exceeding two thousand five hundred dollars ($2,500), or by imprisonment in the county jail for not more than one year, or by both fine and imprisonment in a county jail, or may be released on probation for a period not exceeding five years.”)

46 Penal Code 236.1 PC – Human trafficking; punishment; provisions regarding minors; definitions; consideration of total circumstances [may be charged along with child pornography]. (“(a) Any person who deprives or violates the personal liberty of another with the intent to obtain forced labor or services, is guilty of human trafficking and shall be punished by imprisonment in the state prison for 5, 8, or 12 years and a fine of not more than five hundred thousand dollars ($500,000). (b) Any person who deprives or violates the personal liberty of another with the intent to effect or maintain a violation of Section . . . 311.1, 311.2, 311.3, 311.4, 311.5, 311.6, or 518 is guilty of human trafficking and shall be punished by imprisonment in the state prison for 8, 14, or 20 years and a fine of not more than five hundred thousand dollars ($500,000). (c) Any person who causes, induces, or persuades, or attempts to cause, induce, or persuade, a person who is a minor at the time of commission of the offense to engage in a commercial sex act, with the intent to effect or maintain a violation of Section . . . 311.1, 311.2, 311.3, 311.4, 311.5, 311.6, or 518 is guilty of human trafficking. A violation of this subdivision is punishable by imprisonment in the state prison as follows: (1) Five, 8, or 12 years and a fine of not more than five hundred thousand dollars ($500,000). (2) Fifteen years to life and a fine of not more than five hundred thousand dollars ($500,000) when the offense involves force, fear, fraud, deceit, coercion, violence, duress, menace, or threat of unlawful injury to the victim or to another person. (d) In determining whether a minor was caused, induced, or persuaded to engage in a commercial sex act, the totality of the circumstances, including the age of the victim, his or her relationship to the trafficker or agents of the trafficker, and any handicap or disability of the victim, shall be considered. (e) Consent by a victim of human trafficking who is a minor at the time of the commission of the offense is not a defense to a criminal prosecution under this section. (f) Mistake of fact as to the age of a victim of human trafficking who is a minor at the time of the commission of the offense is not a defense to a criminal prosecution under this section.”)

47 See same.

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