California Penal Code § 311.4 PC makes it a felony to use or coerce a minor under 18 years old to appear in child pornography. If the defendant intended to profit from the pornography, penalties include three, six, or eight years in prison. If the defendant had no “commercial purpose,” the maximum penalty is three years in prison.
The full text of the statute reads as follows:
311.4. (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.
(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.
(2) As used in subdivisions (b) and (c), “matter” means any film, filmstrip, photograph, negative, slide, photocopy, videotape, video laser disc, computer hardware, computer software, computer floppy disc, or any other computer-related equipment or computer-generated image that contains or incorporates in any manner, any film, filmstrip, photograph, negative, slide, photocopy, videotape, or video laser disc.(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.
(f) In every prosecution under this section involving a minor under the age of 14 years at the time of the offense, the age of the victim shall be pled and proven for the purpose of the enhanced penalty provided in Section 647.6. Failure to plead and prove that the victim was under the age of 14 years at the time of the offense is not a bar to prosecution under this section if it is proven that the victim was under the age of 18 years at the time of the offense.
Legal Analysis
Under PC 311.4, using, coercing, or otherwise persuading a child under 18 to model, pose, or participate in pornography is a felony in California. If the defendant intended to sell the pornography, the court can impose a California State Prison sentence of three, six, or eight years. If the defendant did not have any commercial intentions, then the court can impose the typical felony sentence of 16 months, two years, or three years.
Note that simply employing a minor to help exhibit, distribute, or sell obscene material can be prosecuted as a misdemeanor or a felony (a “wobbler offense”). Misdemeanor penalties include
- up to one year of incarceration and/or
- up to $2,000 in fines.
Meanwhile, felony penalties include 16 months, two years, or three years in state prison. Repeat offenders face an additional fine of up to $50,000.1
In addition to incarceration, violating PC 311.4 carries sex offender registration.2
A potential defense to PC 311.4 charges is that the photographs, film, or other material in question involved no sexual conduct by a child under 18. Perhaps the participants in the pornography appeared young but were legal adults. Unless the prosecution can prove beyond a reasonable doubt that the person in question was younger than 18, then criminal charges should not stand.3
Comparison of related offenses
| Child pornography crime | California penalties |
| PC 311.11 – Possession | Misdemeanor: Up to 1 year in jail and/or $2,500 or Felony: 16 months, 2 years, or 3 years in prison and/or $2,500 |
| PC 311.2 – Production/distribution/exhibition of obscene matter | Misdemeanor: Up to 1 year in jail and/or $2,000 or Felony: 16 months, 2 years, or 3 years in prison and/or $10,000 OR 2, 3, or 6 years and/or $100,000. |
| PC 311.4 – Employing children to sell/distribute pornography | Misdemeanor: Up to 1 year in jail and/or $2,000 or Felony: 16 months, 2 years, or 3 years in prison and/or $10,000 |
Legal References
- California Penal Code 311.4 PC – Employment of minor in sale or distribution of obscene matter or production of pornography
- Shoemaker v. Harris (Cal. App. 2d Dist., 2013), 214 Cal. App. 4th 1210, 155 Cal. Rptr. 3d 76.
- People v. Jacobo (Cal. App. 4th Dist., 2019), 249 Cal. Rptr. 3d 236, 37 Cal. App. 5th 32.