California Penal Code 311.11 PC makes it a crime to possess or control any child pornography that was produced using a minor under the age of 18. The offense can be charged as a misdemeanor or a felony and is punishable by up to 3 years in jail or prison.
Note that Penal Code 311 PC is the primary statute that makes child pornography illegal in the State of California.
The full text of the law reads as follows:
311.11. (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.
Examples
- having child porn videos on a laptop knowing that they contain 15-year-old girls.
- keeping pictures of young teens engaged in sexual acts in a bedroom closet.
- saving videotapes of young boys engaging in masturbation.
Legal Defenses
Our criminal defense lawyers advise clients that they have the right to challenge allegations under this statute with a legal defense. Three common defenses include the defendant showing that he/she:
- did not know that a person was under 18,
- did not have unlawful child pornography, and
- was subject to an unlawful search and seizure.
Penalties
A violation of California Penal Code Section 311.11 is a wobbler offense, which means that a prosecutor can charge it as either a misdemeanor or a felony.
While a misdemeanor conviction is punishable by one year in county jail, a felony conviction can lead to up to three years in state prison.
Our California criminal defense attorneys will address the following in this article:
- 1. When is possessing child pornography a crime under PC 311.11?
- 2. Can a defendant raise a legal defense?
- 3. What are the penalties?
- 4. Can a convict get an expungement?
- 5. Are there related offenses?
California law makes possession of child pornography a crime.
1. When is possessing child pornography a crime under PC 311.11?
A prosecutor must prove two things to successfully convict a person under this statute. These are:
- he/she knowingly possessed or controlled “child pornography,” and
- he/she did so while also knowing that it depicted a person under the age of 18 engaging in sexual conduct.[1]
“Child pornography” is defined as:
- any matter or material,
- depicting “sexual conduct,”
- by a person under 18 years of age.[2]
“Sexual conduct” includes such acts as:
- sexual intercourse,
- oral copulation,
- anal intercourse,
- sadomasochistic abuse,
- sexual activity with objects, and
- bestiality.[3]
Note that this statute does not apply to images where a person uses computer software to replace an adult’s head with a child’s head.[4]
2. Can a defendant raise a legal defense?
Defendants have the right to challenge child pornography charges with a legal defense. Three common defenses include an accused showing that he/she:
- had no knowledge of a person’s minority status,
- did not have images of child pornography, and
- was subject to an unlawful search and seizure.
2.1 No knowledge
Recall that an accused is only guilty of this statute if he/she knew that a person in the subject pornographic material was under the age of 18. Therefore, it is always a defense for the accused to say that he/she did not have this knowledge.
2.2 No child pornography
Also recall this these laws only apply to the possession of “child pornography,” which has a precise legal definition. This means it is always a defense for a defendant to show that he/she did not have child porn.
2.3 Unlawful search and seizure
Law enforcement officials in the State of California can only conduct a search or seizure with a valid search warrant.[5] If no valid warrant, then they must have a legal excuse for not having one. A defense, then, is for a defendant to show that he was subject to a search/seizure and:
- the police had no warrant, or
- they did not have a legal justification for not having one.
Violating PC 311.11 can be a misdemeanor or a felony under state law.
3. What are the penalties?
A violation of these child pornography laws is a wobbler. This means a prosecutor can charge it as either a misdemeanor or a felony.
A misdemeanor conviction is punishable by:
- custody in county jail for up to one year, and/or
- a maximum fine of two-thousand five hundred dollars.[6]
A felony conviction is punishable by:
- a state prison sentence for up to three years, and/or
- a fine of up to $2,500.[7]
Also note that a California child pornography conviction will result in the defendant having to complete sex offender registration.
4. Can a convict get an expungement?
A person convicted of a misdemeanor offense under this statute may get it expunged provided that he/she successfully completes:
- his/her jail term, or
- probation (whichever was imposed).
A convict may not be able to get a felony expunged since California law says that expungements are not available for crimes that result in prison terms.
5. Are there related offenses?
There are three sex crimes related to child pornography cases. These are:
- lewd acts with a child – PC 288,
- statutory rape – PC 261.5, and
- revenge porn – PC 647j4.
5.1 Lewd acts with a child – PC 288
Penal Code 288 PC is the California statute that defines the crime of “lewd and lascivious acts with a minor child.”
A “lewd act” is defined as either:
- touching a child for sexual purposes, or
- causing a child to touch him/herself or someone else for a sexual purpose.
Unlike PC 311.11 violations, convictions under this law are always charged as felonies.
5.2 Statutory rape – PC 261.5
Per Penal Code 261.5 PC, the crime of statutory rape occurs when any person engages in unlawful sex with a minor under 18 (to whom the defendant is not married).
As with PC 311.11, violations of this law are wobbler offenses.
5.3 Revenge porn – PC 647j4
Penal Code 647j4 PC is the California law that makes it a criminal offense to engage in certain acts of “revenge porn.”
Unlike obscene matter subject to PC 311.11, illegal porn under this law can involve both minors and adults.
For additional guidance or to discuss your case with a criminal defense attorney, we invite you to contact our law firm at the Shouse Law Group. We take municipal, state, and federal cases.
Our attorneys provide legal advice, and they represent clients throughout California, including those in Orange County, Los Angeles, San Bernardino, and San Diego.
Legal References:
- California Penal Code 311.11 PC.
- California Penal Code 311.4 PC.
- California Penal Code 311.4 PC. See also People v. Spurlock (2003) 114 Cal.App.4th 1122.
- People v. Gerber (2011) 196 Cal.App.4th 36.
- See, e.g., People v. Nguyen (2017) 12 Cal.App.5th 574. Contrast with Klugman v. Superior Court (2019) 39 Cal.App.5th 1080.
- California Penal Code 311.11 PC.
- See same. Note that possession and distribution of child pornography is also a federal crime under federal law 18 U.S.C. § 2252 (Certain activities relating to material involving the sexual exploitation of a child). People can be prosecuted in both state court and federal court for the same child pornography offense.