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

Penal Code 311 and subsequent sections are California's laws on child pornography (“kiddie porn”). The law is spelled out in five main statutes. In brief, they are:

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

These laws have subtle differences. We discuss each charge in detail in Section 2, below.

Penalties for child porn in California

Most child porn crimes are either:

The chart below sets forth the maximum possible penalties under each California child pornography law.

Note that a child porn conviction also requires registration as a California sex offender.

Statute (Type of offense)

Maximum penalty

PC 311.1 (Wobbler)

Sending, transporting, producing, possessing or duplicating obscene child porn with intent to distribute it.

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

Felony: 3 years in prison; $10,000 fine

PC 311.2(b) (Felony)

Sending, transporting, producing, possessing or duplicating obscene child porn, with intent to distribute it for commercial consideration.

6 years in prison; $100,000 fine

PC 311.2(c) (1st offense – Wobbler)

Sending, transporting, producing, possessing or duplicating child porn with intent to distribute it to anyone over 18.

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

Felony: 3 years in prison; $10,000 fine

PC 311.2(c) (Subsequent offense -- Felony).

3 years in prison; $10,000 fine

PC 311.2(d) (Felony)

Possessing child porn with intent to distribute to anyone under 18.

3 years in prison; $10,000 fine

PC 311.3(a) (1st offense – Misdemeanor)

Developing, duplicating, printing or exchanging child porn [no requirement of intent to distribute]

1 year in jail; $2,000 fine

PC 311.3(a) (Subsequent offense – Felony)

3 years in prison; $10,000 fine

PC 311.4(a) (1st offense – Wobbler)

Hiring or employing minor to perform sexual act for production of child porn.

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

Felony: 3 years in prison; $10,000 fine

PC 311.4(a) (Subsequent offense – Felony)

3 years in prison; $50,000 fine

PC 311.4(b) (Felony)

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

8 years in prison; $10,000 fine

PC 311.4(c) (Felony)

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].

3 years in prison; $10,000 fine

PC 311.4 (Enhanced felony)

Violation of PC 311.4 involving minor under age 14.

Up to 6 years in prison; no change in fine.

PC 311.10 (Wobbler)

Advertising obscene child porn for sale or distribution.

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

Felony: 4 years in prison; $50,000 fine

PC 311.11 (1st offense -- Felony)

Possessing or controlling child porn produced with the use of a person under 18.

1 year in jail and $1,000 fine; or

3 years in prison; and $2,500 fine

Increases to 5 years in prison and $10,000 fine if:

·         >600 images (including10 or more of prepubescent or under-12 minors), OR

·         images involve sadomasochism

PC 311.11  (Subsequent offense – Felony)

6 years in prison; $10,000 fine

Legal defenses

Common legal defenses to child porn charges include taking the position that:

  • The defendant's rights were violated under California's entrapment law;
  • The defendant didn't act knowingly or with the required intent;
  • The defendant was falsely accused;
  • Evidence against the defendant was obtained through an illegal search and seizure;
  • The person in the pornography was not a minor, or
  • The defendant has a psychological addiction (sentencing defense).

To help you better understand child pornography laws, our California criminal defense attorneys discuss the following, below:

Man holding professional video camera with children blurred in background ]

1. The definition of “child pornography” in California

Each section of Penal Code 311 statute defines “child pornography” slightly differently. In general, however, it consists of:

  1. Any matter or material,
  2. Depicting actual or simulated sexual conduct,
  3. By a person under 18 years of age.6

A further requirement is that the defendant commits the prohibited behavior “knowingly.”

Additionally, some laws only punish material if it is “obscene.”

Let's take a closer look at what each of these requirements and terms mean.

1.1. “Matter” or “material”

For purposes of California child pornography laws, “matter” and “material” are broadly defined. They refer to any visual or audio representation of information.24

Examples:

  • Movies or videos,
  • Film, photographs, negatives, or slides,
  • Digital images,
  • Photocopies,
  • Computer hardware or software,
  • Computer data storage devices,
  • Computer-generated equipment,
  • Computer-generated images that contain any film or filmstrips,
  • Paintings, drawings or statues, and
  • (If transmitted, disseminated, or distributed as part of a commercial transaction) any live or recorded telephone messages.7

1.2. Sexual conduct

“Sexual conduct” under Penal Code 311 means any of the acts listed below. It applies regardless of whether the conduct is:

  • Actual or simulated,
  • Performed alone,
  • Performed between members of the same or opposite sex, or
  • Performed between humans and animals.8

An act is “simulated” when it gives the appearance of being sexual conduct.9

The acts (actual or simulated) that comprise “sexual conduct” are:

  • Sexual intercourse,
  • Oral copulation,
  • Anal intercourse,
  • Masturbation,
  • Bestiality,
  • Sexual sadism or masochism (the intentional infliction of pain for purposes of sexual gratification or stimulation),10
  • 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,
  • Urination or defecation performed in a lewd or lascivious manner, or
  • Lewd acts on a child (Penal Code 288), namely:
    • Someone touching a child for sexual purposes, or
    • A child touching him/herself or someone else for a sexual purpose.11

1.3. Person under 18

California's child pornography laws apply when the person depicted is actually under 18. It is not against the law if:

  • The person appears underage but is, in fact, 18 or older, or
  • It is not an actual person in the image.

However, even if the person is actually an adult, the defendant could still be charged with a misdemeanor under Penal Code 647.6, annoying or molesting a child.12

Also, most subsections of PC 311 make it permissible to show sexual conduct by a person under 18 if:

  • The person is a “legally emancipated” minor, or
  • The minor is lawfully married and the sexual conduct is with the minor's spouse.13
Example: 19-year-old Ken is lawfully married to 17-year-old Jenny. The couple shoots a sex tape.
Ken later gets angry at Jenny and posts the video on the internet. Ken might be guilty of “revenge porn,” California Penal Code 647(j)(4).
But because he and Jenny are married, he is not guilty of child pornography -- even though Jenny is a minor and Ken distributed the video.

1.4. “Knowledge” as an element of the crime

In order to be guilty under California's child pornography statutes, the defendant must have known both:

  1. The nature of the material, and
  2. That the person participating in or simulating sexual conduct was under 18.14

As Los Angeles criminal defense attorney Neil Shouse15 explains:

“Knowledge is one of the toughest elements to prove in any criminal case. People often are not aware that there is porn on their computer. Or they download porn without being aware that it depicts a minor.”

1.5. What is “obscene” material?

Some California pornography laws are violated only when the material in question is “obscene.”17“Obscenity” is difficult to define. As United States Supreme Court justice Potter Stewart famously wrote: “I know it when I see it.”16

But under California law something is “obscene” if, taken 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.18
Example: A film distributor imports a French film starring two actual teenagers. Most of the movie concentrates on their psychological and emotional development.
There are, however, a few scenes involving explicit simulated sex. But because the movie has artistic value, it is not considered obscene.

1.6. Exception – material that has a “legitimate purpose”

California's child pornography laws are not violated by material that has certain legitimate purposes. The law makes an exception for:

  1. The investigation and prosecution of crimes by law enforcement, and
  2. Legitimate medical, scientific, or educational activities.19

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.

This is a legitimate educational activity that does not meet the legal definition of child pornography.

Japanese manga-style schoolgirls in plaid skirts and black stockings
Animated images of children engaging in sex do not constitute child porn in California

2. California child pornography laws and penalties

California's child pornography laws are set out in Penal Code 311 and subsequent sections. The penalties for a “kiddie porn” conviction depend on several factors, including:

  • The number and types of images involved,
  • Whether the defendant intended to distribute it for commercial profit,
  • Whether or not the intended recipient was under or over age 18,
  • Whether or not the defendant participated in making the pornography,
  • Whether the offending material was “obscene,” and
  • Whether the defendant has previously been convicted on child porn or other sex crimes charges.

The difference between a felony and a “wobbler”

Several California “kiddie porn” offenses are always felonies.20 Felonies can be punished by a hefty fine and/or a California prison sentence.

But many child porn crimes -- especially first offenses -- are “wobblers.”

A “wobbler” is a crime can be charged as either a felony or a misdemeanor. Which the prosecutor will charge depends on:

  1. The facts of the case, and
  2. The defendant's criminal history.21

2.1.  PC 311.1 & 311.2 – production / distribution of child porn

Penal Code 311.1 and 311.2 are two of California's most important child pornography statutes. They prohibit possessing, importing, preparing, or duplicating the porn if:

  1. The defendant intends to distribute, exhibit or trade it, and
  2. The defendant knows that it depicts someone under 18 personally engaging in or simulating sexual conduct.

California Penal Code 311 crimes are punished more severely if:

  • The images are obscene,22
  • The intended recipient is under 18,23 and/or
  • The material is distributed or exchanged for commercial consideration – such as money or even other pornographic images.24

Let's take a closer look at the specific behaviors prohibited under these two important laws.

2.1.1. Penal Code 311.1 – possession of obscene child porn with intent to distribute

PC 311.1 makes it a “wobbler” knowingly to:

  1. Import, possess, prepare, copy or duplicate,
  2. Any obscene child porn,
  3. With the intent to distribute, show or exchange it.

As a misdemeanor, PC 311.1 can be punished by:

  • Up to one (1) year in county jail, and/or
  • A fine of up to $1,000.25

Felony punishment for PC 311.1 can include:

  • 16 months, 2 years, or 3 years in state prison; and/or
  • A fine of up to $10,000.26

2.1.2. Penal Code 311.2(b) – intent to distribute for commercial consideration

PC 311.2(b) makes it a felony knowingly to:

  1. Import, possess, prepare, copy or duplicate,
  2. Any obscene child porn,
  3. With the intent to distribute, show or exchange it,
  4. For commercial consideration.27

“Commercial consideration” does not necessarily mean money. It can mean almost any benefit – including a trade of other pornographic material.28

Consequences of violating Penal Code 311.2(b) can include:

  • 2, 3 or 6 years in state prison; and/or
  • A fine of up to $100,000.29
Example: Tom takes pictures of a 9-year-old girl performing sexual acts. He goes onto the internet and offers to “trade” them for other items of pornography featuring minors.
Tom is guilty of producing pornographic images of children with the intent to distribute them. And even though he isn't selling them, he is subject to higher penalties. The pornographic images he is asking for count as commercial consideration.30

2.1.3. Penal Code 311.2(c) – intent to distribute to someone 18 or older

PC 311.2(c) makes it a crime knowingly to:

  1. Send, transport, produce, possess or duplicate,
  2. Any child porn (even if not obscene),
  3. With the intent to distribute, show, or exchange it,
  4. To someone 18 or older.

Unlike PC 311.1, this section does not require that the material be obscene.

PC 311.2(c) penalties

A first violation of PC 311.2(c) is a wobbler. Second and subsequent offenses are always a felony.

As a misdemeanor, 311.2(c) can be punished by:

  • Up to one (1) year in county jail, and/or
  • A fine of up to $1,000.31

Felony punishment for PC 311.2(c) can include:

  • 16 months, 2 years, or 3 years in state prison; and/or
  • A fine of up to $10,000.32

2.1.4. Penal Code 311.2(d) -- intent to distribute to someone under 18

PC 311.2(d) makes it a crime to knowingly:

  1. Send, transport, produce, possess or duplicate,
  2. Any child porn,
  3. With the intent to distribute, show, or exchange it,
  4. To someone under 18.

Penal Code 311.2(d) is always a felony. It can be punished by:

  • 16 months, or 2 years, or 3 years in state prison; and/or
  • A fine of up to $10,000.33
package wrapped in brown paper and stamped “express”
Merely mailing child pornography is a criminal offense in California.

2.2. PC 311.3 – “sexual exploitation of a minor”

Penal Code 311.3 is California's law against “sexual exploitation of a minor.” It makes it a crime knowingly to:

  1. Develop, duplicate, print, or exchange,
  2. Any child pornography. 34

Unlike PC 311.1 and 311.2, “sexual exploitation of a minor” does not require intent to distribute, exchange, or exhibit the material.35

A first offense for PC 311.3, “sexual exploitation of a minor,” is a misdemeanor. Penalties can include:

  • Up to one (1) year in county jail; and/or
  • A fine of up to $1,000.36

A second or subsequent violation of PC 311.3 is a felony. It can be punished by:

  • 16 months, 2 years, or 3 years in state prison; and/or
  • A fine of up to $10,000.37
Example: Anna runs a photo shop on a “no questions asked” basis. She knows some of the images she is printing contain sexually explicit photos of children.
Anna is not a child pornographer herself. But because of her role in producing the material, she may be charged with PC 311.3 sexual exploitation of a minor.
Darkroom with chemicals in tray and photographs clipped to overhead line to dry
Developing pornographic images of minors is a form of PC 311.3 child pornography.

2.3. PC 311.4 -- Hiring or recruiting a minor for child pornography

Penal Code 311.4 makes it a crime knowingly to:

  1. Hire, use, recruit, or coerce a minor (or the minor's parent),
  2. To appear (or let the minor appear) in a work of child pornography.38

To be guilty under California PC 311.4 the defendant must either:

  • Have known the minor was under 18, or
  • Have been in possession of facts based on which he or she reasonably should have known that the minor was under 18.39

Note that someone does not need to actually produce the material him- or herself to be guilty under PC 311.4.40

Penalties under PC 311.4

A first offense under PC 311.4 is a “wobbler.” A second or subsequent offense is always a felony.

As a misdemeanor, PC 311.4 in can be punished by:

  • Up to one (1) year in county jail; and/or
  • A fine of up to $1,000.41

Felony penalties for Penal Code 311.4 can include:

  • 16 months, 2 years or 3 years in state prison; and/or
  • A fine of up to $10,000 (first offense) or up to $50,000 (2nd or subsequent offense).42

Enhanced penalties if the child is under 14

Defendants face increased penalties under Penal Code 311.4 when the minor is under age 14.43

In such a case penalties under PC 311.4 can include:

  • 2, 4 or 6 years in California state prison.44
Example: During a girls' swim meet at a junior high school, Ron surreptitiously takes photos of the girls as they change into and out of their bathing suits.
Ron doesn't know exactly how old the girls are. But because it is a junior high school competition he is in possession of facts under which he should reasonably know they are under 18.
And if some of the girls are under 14, he faces enhanced penalties under PC 311.4 -- even though the girls did not know he was taking their pictures.45

2.4. PC 311.10 -- Advertising child pornography

Penal Code 311.10 makes it a crime knowingly to:

  1. Advertise the sale or distribution,
  2. Of obscene child porn.46

PC 311.10 is a California “wobbler” offense. As a misdemeanor, it can be punished by:

  • Up to one (1) year in county jail; and/or
  • A fine of up to $1,000.47

A felony conviction under PC 311.10 carries potential penalties of:

  • 2, 3 or 4 years in state prison; and/or
  • A fine of up to $50,000.48

2.5. PC 311.11 -- Possessing child pornography

Penal Code 311.11 punishes the simple possession or control of child pornography.49

PC 311.11 is designated a felony (though a first offense can be punished as if it was a “wobbler”).50

Potential penalties for first-time possession of child porn can include:

  • Up to 1 year in county jail; and or
  • A fine of up to $2,500;

OR

  • 16 months, 2 years, or 3 years in state prison; and/or
  • A fine of up to $10,000.51

Increased penalties under PC 311.11

Penalties for possession of porn featuring minors can increase dramatically under certain circumstances.

Defendant has a prior sex crime conviction

Potential prison time increases to 2, 4 or 6 years under PC 311.11 if:

  • It is the defendant's second or subsequent conviction for child porn possession, or
  • The defendant has a conviction for another crime requiring registration as a California sex offender.52

Large quantity of images and/or sadomasochistic images

A prison sentence under PC 311.11 can increase to 16 months, 2 years, or 5 years if:

  • The defendant possessed more than 600 images, at least 10 of which involved a prepubescent minor or one not yet 12 years of age;53 or
  • The material portrays sexual sadism or sexual masochism.54

“Sexual sadism” means the intentional infliction of pain for purposes of sexual gratification or stimulation.55

“Sexual masochism” means intentionally experiencing pain for purposes of sexual gratification or stimulation.56

Person must actually be a real minor under age 18

As with all California child pornography laws, the prosecution bears the burden of establishing the age of the minor.57

If the person in the image is 18 or older -- or if it is not a real person -- the defendant is not guilty under PC 311.11.

Example: Aaron has a large collection of erotic Japanese manga comics on his computer. Some of them contain explicit drawings of children engaged in sexual acts.

But because no actual children were involved in making the comics, Aaron has not violated any laws.

3. Sex offender registration for a California child pornography conviction

A California child pornography conviction requires registration on the “Megan's Law” sex offender registry.58

Until the end of 2020, all child pornography convictions require lifetime registration as a sex offender.59

Commencing on January 1, 2021, however, sex offenders will be placed into three “tiers”60 as follows:

California Sex Offender Tier

Minimum Registration Period

Tier 1

10 years

Tier 2

20 years

Tier 3

Life

Child porn offenders will fall into either Tier 1 or Tier 3, depending on the offense.

Tier 1 child porn offenses, requiring 10 year sex offender registration, include misdemeanor convictions under:

  • Penal Code 311.1 (obscene material; intent to distribute), or
  • Penal Code 311.11 (simple possession).61

All other child porn offenses will still require lifetime registration as a California sex offender.62

Failure to register as a sex offender is itself a crime under California Penal Code 290.63

It can lead to separate misdemeanor or felony charges and an additional jail or prison sentence and/or fine.64

4. Legal defenses to California child pornography charges

Many legal defenses can get child pornography charges reduced or dismissed before trial. Others can help secure a “not guilty” verdict in a California jury trial or result in a more lenient sentence.

The following are some of the most common legal defenses defendants assert to fight California child pornography charges:

4.1. Police entrapment

Entrapment occurs when:

  1. A police officer behaves in a coercive or overbearing way, and
  2. As a result, a defendant engages in behavior s/he otherwise would not have.65

Improper forms of coercion can include (but are not limited to):

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

Entrapment through “sting” operations

Many defendants in kiddie porn cases are caught through internet sting operations. During such operations, undercover officers contact people in chat rooms or through spam “pop-up” ads.

They then try to induce people to buy child porn. This sadly includes people who would not otherwise have purchased it.

Entrapment as a legal defense can also be used to fight other sex crimes charges.

Common crimes in which the police use entrapment include prostitution/solicitation and California statutory rape charges.

4.2. The defendant did not act knowingly

All California child porn laws require that the defendant act with knowledge. That is, defendants must know that:

  • They have the material, and
  • There is actually someone under the age of 18 in it.66

Some people unknowingly buy pornography featuring teenagers who appear to be adults.

Others accidentally view or download pornography over the internet without meaning to. They may do this by:

  • Mistyping a search term,
  • Clicking on the wrong link, or
  • Downloading an email attachment without understanding what it was.

Remember -- the prosecutor has the burden of proving knowledge “beyond a reasonable doubt.”

If he or she cannot do this, the defendant should be found “not guilty.”

4.3. False accusations

False accusations are common in California child porn cases. Angry ex-spouses, former business partners, and others can use false accusations to harass people.

Such “frenemies” may even plant the material on someone's phone or computer without that person's knowledge.

As a result, sometimes it is enough to show that others had access to the same computer or device.

4.4. Illegal search and seizure

Sometimes police find such evidence of child porn through an illegal search and seizure. This can include:

But in order for such a search to be legal the police need either:

  1. A valid search warrant,
  2. The owner's consent (or the consent of someone else who has authority over the device), or
  3. A legitimate belief that it is an emergency situation -- such as preventing physical harm to someone or tracking a fleeing suspect.67

If none of these situations apply, a California sex crimes lawyer can file a motion to suppress evidence.

If the judge grants the motion, the illegally seized evidence will be excluded. Often the prosecutor's case will fall apart as a result.

4.5. The person in the porn was not a minor

If the person in the porn was not a minor, possession of it is not a crime. In fact, much of what purports to be child porn actually features people who are 18 or older.

Remember, the burden on the prosecutor to prove that the person was under 18.

If the identity of the subject is unknown -- or the person was actually 18 at the time of the alleged offense -- the defendant should be found not guilty.

4.6. Psychological addiction to child porn

Psychologic addiction is not a legal defense to California pornography charges. But it can often be used to obtain a more lenient sentence.

Sadly, since 2014, California law has required mental health professionals to report clients who view child pornography on the internet.68

This has lead to some people being charged because they sought help for their addiction.

Addicts who want to seek help may, therefore, wish to speak to a California sex crimes lawyer before seeking help.

More lenient sentence

A judge may impose a more lenient sentence for child porn charges if the defendant can show that:

  1. The defendant had a psychological addiction, and
  2. The defendant is remorseful for his or her conduct.

A more lenient sentence might consist of a misdemeanor rather a felony charge for a “wobbler” offense.

Or the judge may grant probation instead of jail time. If the judge grants probation, the emphasis will be on counseling and rehabilitation rather than incarceration.

5. Related offenses to PC 311 child porn charges

Several other California crimes are often charged along with—or instead of—child pornography. These include:

5.1. Penal Code 288 -- lewd acts with a child

Penal Code 288 PC, California's “lewd acts with a minor” law makes it a crime to:

  • Touch a child for sexual purposes, or 
  • Cause a child to touch him/herself or someone else for a sexual purpose.69

Penal Code 288 applies when:

  • The child is under 14,70 or
  • The child is under 15 and the defendant is more than 10 years older.71

Double punishment

Someone who makes pornography using a minor AND touches touch the child for sexual purposes could be charged with both:

  • A California child porn offense, AND
  • Lewd acts with a minor under 14 or 15.

Similarly, someone who shows child porn to a minor while touching him or her could be charged with both crimes.

Lewd acts with a minor is a serious felony. It carries a potential prison sentence of anywhere from three to 10 years in prison depending on:

  • The age of the child, and
  • Whether force or threats were used.72

5.2. Penal Code 261.5 -- statutory rape

Penal Code 261.5 “statutory rape” consists of sexual intercourse with a person under 18. A defendant can be charged with this California sex crime even if the sex was consensual.73

Statutory rape is a misdemeanor if there is a 3-year or less age difference between the defendant and the “victim.”74 If the age difference is greater than 3 years, statutory rape becomes a “wobbler.”75

Depending on the ages of the victim and the perpetrator, statutory rape can be punished by as much as:

  • Up to 4 years in prison, and/or
  • A fine of up to $25,000.76

Punishment for both statutory rape AND child porn

Someone who photographs or videotapes himself having sex with a minor could be charged with both child pornography and statutory rape.

But in that situation a California sex crimes attorney may be able to persuade the prosecutor to charge only statutory rape.

Statutory rape carries potentially lower penalties and much less stigma than child pornography.

More importantly, it does not require sex offender registration.

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 act (or to fail to act) in such a way that a minor becomes

  1. A dependent of the juvenile court,
  2. A delinquent, or
  3. A habitual truant.77

This crime is often charged against someone who supplies a teen with alcohol or illegal drugs during the production of pornography.

Penal Code 272 is a misdemeanor. It can be punished by:

  • Up to one (1) year in jail; and/or
  • A fine of up to $2,500.78

5.4. Penal Code 236.1 -- human trafficking

California's human trafficking laws can be charged when someone:

  1. Deprives a minor of his or her liberty with the intent to violate child porn laws,79 or
  2. Persuades or tries to persuade a minor to engage in a commercial sex act.80

California human trafficking is a serious felony. It can be punished by:

  • 8 to 20 years in prison, and
  • A fine of up to $500,000.81

And if force, fear, violence or threat of injury is used, the potential prison sentence increases to 15 years to life.82

5.5. Penal Code 647(j)(4) – “revenge porn”

Penal Code 647(j)(4) "revenge porn" consists of:

  1. Distributing private sexual images,
  2. With the intent to cause emotional distress.83

Revenge porn is a misdemeanor, punishable by:

  • Up to one (1) year in jail; and/or
  • A fine of up to $1,000.84

The typical revenge porn scenario involves a romantic relationship that goes sour. If the ex is a minor, however, California child pornography charges could result.

PC 647(j)(4) can be a desirable plea bargain to California child porn charges.

Revenge porn carries far less of a stigma. More importantly, it does not require California sex offender registration.

Charged with child porn in California? Call us for help…

male receptionist wearing headset

If you are facing child pornography charges, we invite you to contact us for a free consultation.

Call us at 855-LAWFIRM to speak confidentially with one of our experienced California sex crimes attorneys about your case.

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

We also have experienced sex crimes lawyers in Las Vegas and Reno if you have been charged under Nevada's child pornography laws.

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Legal References

  1. Penal Code  311.1(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 (b)-(d): “(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(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.”
  3. Penal Code 311.4 (a)-(c): “(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(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(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.”
  6. Slightly different definitions apply to each of the statutes comprising California's “child pornography” laws. Please refer to the individual statute in question for a more precise definition.
  7. Penal Code 311(b).
  8. See, e.g., Penal Code 311.4(d) (1).
  9. Same.
  10. See Penal Code 311.11(c)(2).
  11. Same. See also Penal Code 311.3(b) and Penal Code 288 [lewd acts with a child].
  12. Penal Code 647.6(a)(2): “Every person who, motivated by an unnatural or abnormal sexual interest in children, engages in conduct with an adult whom he or she believes to be a child under 18 years of age, which conduct, if directed toward a child under 18 years of age, would be a violation of this section, shall be punished by a fine not exceeding five thousand dollars ($5,000), by imprisonment in a county jail for up to one year, or by both that fine and imprisonment.”
  13. See, e.g., Penal Code 311.1 (c), 311.2(f), 311.3(c), 311.4(c), : “This section does not apply to matter which depicts a child under the age of 18, which child is legally emancipated, including lawful conduct between spouses when one or both are under the age of 18.”
  14. See Penal Code 311(e): “ ‘Knowingly' means being aware of the character of the matter or live conduct.” See also specific statute sections.
  15. John Murray is defends clients on sex crimes charges throughout Orange County, the Pomona Valley, and Western San Bernardino County. He has been named one of the "100 Best" criminal defense attorneys by the National Trial Lawyers Association
  16. Penal Code 311.1, 311.2 and 311.10.
  17. Concurring opinion in Jacobellis v. Ohio (1964) 378 U.S. 184  (“I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description [of ‘hardcore pornography'], and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.”).
  18. Penal Code 311(a): “ ‘Obscene matter' means matter, taken as a whole, that to the average person, applying contemporary statewide standards, appeals to the prurient interest, that, taken as a whole, depicts or describes sexual conduct in a patently offensive way, and that, taken as a whole, lacks serious literary, artistic, political, or scientific value.”
  19. See, e.g., Penal Code 311.1(b): “(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…”
  20. California child porn laws that are always punished as a felony are:
    • PC 311.2(b) - obscene child porn for commercial consideration;
    • PC 311.2(d) – intent to exhibit/distribute child porn to someone under 18; and
    • PC 314(b) & (d) – using a child in pornography.
  21. Uniform Crime Charging Standards are published by the California District Attorneys Association (CDAA). See also M. Berwick, R. Lindenberg and J. Van Roo, Wobblers & Criminal Justice in California: a Study into Prosecutorial Discretion, March 20, 2010, page vii.
  22. Penal Code 311.1(a) PC.
  23. Penal Code 311.2(d).
  24. Penal Code 311.2(b).
  25. Penal Code 311.1(a), endnote 1.
  26. Same.
  27. Penal Code 311.2(b), endnote 1.
  28. People v. Cochran (2002) 28 Cal.4th 396.
  29. Penal Code 311.2(b), endnote 1.
  30. Based on the facts of People v. Cochran, endnote 26.
  31. Penal Code 311.2(c), endnote 1.
  32. Same.
  33. Same.
  34. Penal Code 311.3(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.
  35. Same.
  36. Penal Code 311.3(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.”
  37. Same. See also Penal Code 1170(h) PC.
  38. Penal Code 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).”
  39. Same.
  40. Same.
  41. Same.
  42. Same.
  43. Penal Code 311.4(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.”
  44. Penal Code 647.6(c)(2): “Every person who violates this section after a previous felony conviction under Section 261, 264.1, 269, 285, 286, 288a, 288.5, or 289, any of which involved a minor under 16 years of age, or a previous felony conviction under this section, a conviction under Section 288, or a felony conviction under Section 311.4 involving a minor under 14 years of age shall be punished by imprisonment in the state prison for two, four, or six years.”
  45. Based on the facts of People v. Hobbs (2007) 152 Cal.App.4th 1.
  46. Penal Code 311.10(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.”
  47. Same.
  48. Same.
  49. Penal Code 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.”
  50. Same.
  51. Same.
  52. Penal Code 311.11(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.”
  53. Penal Code 311.11 (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.”

  54. Same.
  55. Same.
  56. Same.
  57. Same.
  58. Penal Code 290(c): “The following persons shall register: Any person who …has been or is hereafter convicted in any court in this state or in any federal or military court of a violation of… [Section] 311.1, subdivision (b), (c), or (d) of Section 311.2, Section 311.3, 311.4, 311.10, [or] 311.11… [or] 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.”
  59. Penal Code 290 PC.
  60. California Senat Bill 384.
  61. Revised Penal Code 290(d)(1).
  62. Revised Penal Code 290d)(3)(C)(R).
  63. Penal Code 290.018.
  64. Penal Code 290.018.
  65. See People v. West (1956) 139 Cal.App.2d Supp. 923 ("Entrapment is the conception and planning of an 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.")
  66. See specific code sections. See also Penal Code 311(e): “ ‘Knowingly' means being aware of the character of the matter or live conduct.”
  67. See, e.g., Riley v. California (2014) 134 S.Ct. 2473.
  68. Penal Code 11165.1.

    AB 1775 modified California's Child Abuse and Neglect Reporting Act. That act now

  69. See Penal Code 288(a).
  70. Penal Code 288(a).
  71. Penal Code 288(c).
  72. See Penal Code 288(a)-(c).
  73. Penal Code 261.5(a).
  74. Penal Code 261.5(b).
  75. Penal Code 261.5(c).
  76. Penal Code 261.5(b)-(e).
  77. Penal Code 272(a)(1).
  78. Same.
  79. Penal Code 236.1(b).
  80. Penal Code 236.1(c).
  81. Penal Code 236.1(b) and (c).
  82. Penal Code 236.1(c)(2).
  83. Penal Code 647(j)(4).
  84. Penal Code 647.

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