Under Penal Code 311 PC, California's child pornography law, it a crime either to send, transport, duplicate, print, advertise or possess child pornography; or to hire or persuade minors to participate in making pornographic imagery.
- sharing videos of naked teenage girls with an internet pornography group.
- hiring a 16-year-old boy to perform gay porn for pictures and video.
- an internet business advertising that it has child pornography films for sale.
A defendant can raise a legal defense to fight child pornography allegations. A few common defenses are that the accused:
- did not have child pornography,
- did not act knowingly,
- was connected with matter that had a legitimate purpose,
- was arrested following an unlawful search and seizure, and/or,
- was entrapped.
Most forms of child pornography in California are charged as either:
A wobbler means that a prosecutor can charge the offense as either a:
- misdemeanor, or
Misdemeanor child pornography is typically punishable by up to one year in county jail. Most felony child pornography cases are punishable by three years in the California state prison.
Our California criminal defense attorneys will highlight the following in this article:
- 1. What are California's child pornography laws?
- 2. Are there legal defenses?
- 2.1. No child pornography
- 2.2. No knowingly act
- 2.3. Matter with a legitimate purpose
- 2.4. Unlawful search and seizure
- 2.5. Entrapment
- 3. What are the penalties for 311 PC?
- 4. Are there immigration consequences?
- 5. Can a person get a conviction expunged?
- 6. Does a conviction affect gun rights?
- 7. Are there related offenses?
1. What are California's child pornography laws?
California's child pornography laws are set forth in Penal Code Sections 311.1, 311.2, 311.3, 311.4, 311.10, and 311.11.
Penal Code 311.1 and 311.2 PC make it a crime knowingly to:
- possess, or
any child pornography, with the intent to distribute it.1
Penal Code 311.3 PC makes it a crime knowingly to:
- print, or
any child pornography.2
Penal Code 311.4 PC makes it a crime knowingly to:
- persuade, or
a minor to participate in the production of child porn.3
Penal Code 311.10 PC makes it a crime knowingly to advertise obscene child porn for sale or distribution.4
Penal Code 311.11 PC makes it a crime knowingly to possess or control any child pornography that was produced using a person under 18.5
Questions often arise under these statutes on the meaning of:
- child pornography,
- knowingly, and
1.1. Child Pornography
For purposes of these laws, “child pornography” is defined as:
- any matter or material,
- depicting sexual conduct,
- by a person under the age of 18.6
“Matter or material” includes such items as:
- photographs, negatives, or slides,
- videotapes, or
- computer-generated equipment.7
“Sexual conduct” includes such acts as:
- sexual intercourse,
- oral copulation,
- anal intercourse, and
A person is only guilty under California's child pornography laws if he acts knowingly. This means that the defendant:
- knew the nature of the material he was transporting, possessing, advertising, etc., and
- knew that the material showed a person under 18 participating in sexual conduct.9
Some California child pornography laws say that an offense is only committed if the pornographic material in question was “obscene.”
Something is “obscene” if:
- it shows or describes sexual conduct in an offensive way,
- a reasonable person would conclude that it lacks serious literary, artistic, political, or scientific value, and
- an average adult person would conclude that it appeals to a prurient interest.10
A “prurient interest” is a shameful or morbid interest in:
- sex, or
Example: Elena produces an art film that focuses on the romance between two teenagers. It features actual teenage actors and most of it concentrates on their psychological and emotional development. The film does have a few scenes involving simulated sex between the two actors. Here, the film is not obscene since it is not offensive, does not contain morbid material, and it has an artistic value.
2. Are there legal defenses?
Yes. A defendant can use a legal defense to try to contest a child pornography charge.
Five common defenses are that there was:
- no child pornography,
- no knowingly act,
- legitimate purpose,
- unlawful search and seizure, and
2.1. No child pornography
Recall that “child pornography” has a specific legal definition under California law. This means that it is a legal defense for an accused to show that the material he possessed or acted with was not child porn.
2.2. No knowingly act
Also recall that a person is only guilty under California's child pornography statutes if he acted knowingly. Further, “knowingly” requires that a prosecutor prove certain elements.
Therefore, an accused can use the defense that he did not act with any particular knowledge. An example would be downloading an image without realizing that it contained pornography.
2.3. Legitimate purpose
“Child pornography” does not include material that has certain legitimate purposes.12 This means a defendant is not guilty of a crime if he was engaging in legitimate:
- scientiﬁc, or
- educational activities.13
Example: A high school youth group makes an educational video about the dangers of underage sex. The group's members act in the video and it includes some scenes of simulated sexual conduct. Here, the video is not “child pornography” because it has a legitimate educational purpose.
2.4. Unlawful search and seizure
The Fourth Amendment to the U.S. Constitution declares that we have the right to be free from unreasonable “searches and seizures.” If police obtain evidence from an unreasonable, or unlawful search and seizure, then that evidence can get excluded from a criminal case. This means that any charges in the case could get reduced or even dismissed. This could happen, for example, if the police searched a person's computer either:
- without a search warrant, or
- with a defective warrant.
In many PC 311 cases, suspects are often arrested after an undercover officer sells someone porn online or by mail. Any later charges, though, must get dropped if the officer lured a suspect into committing the crime.
This “luring” is known as entrapment. It applies to overbearing official conduct on the part of police officers, like:
- flattery, or
Entrapment is an acceptable legal defense provided that the accused shows he only committed the crime because of the entrapment.
3. What are the penalties for 311 PC?
Most forms of child pornography in California are charged as either:
- wobblers, or
A wobbler means that a prosecutor can charge the offense as either a misdemeanor or a felony.
Misdemeanor child pornography is typically punishable by:
- up to one year in county jail, and/or
- a maximum fine between $1,000 and $2,500.
Most felony child pornography cases are punishable by up to three years in the California state prison.
Also note that a California child pornography conviction will result in the defendant having to register as a sex offender.
4. Are there immigration consequences?
A conviction Penal Code 311 may have negative immigration consequences.
United States immigration law says that certain kinds of criminal convictions can lead to:
- a non-citizen being deported, and
- a non-citizen being marked "inadmissible.”
A category of “deportable” or “inadmissible” crimes includes “crimes of moral turpitude.”14
Depending on the specific facts of a case, a child pornography conviction may get labeled as a crime of moral turpitude. If so, a defendant will suffer negative immigration results.
5. Can a person get a conviction expunged?
A person convicted of this crime is entitled to an expungement provided that he:
- successfully completes probation, or
- completes a jail term (whichever is relevant).
If a party violates a probation term, he could still get the offense expunged. This, though, would be in the judge's discretion.
Under Penal Code 1203.4, an expungement releases an individual from virtually "all penalties and disabilities" arising out of the conviction.15
6. Does a conviction affect gun rights?
A conviction for 311 PC may have a negative effect on the defendant's gun rights.
California law says that convicted felons cannot acquire or possess a gun in the State.
This means that:
- if a prosecutor decides to charge an alleged child pornography violation as a felony, and
- the accused is convicted of the crime,
the defendant will lose his rights to own and possess a gun.
7. Are there related offenses?
There are three crimes related to child pornography violations. These are:
- lewd acts with a child – PC 288
- statutory rape – PC 261.5, and
- revenge porn – PC 647j4.
7.1. Lewd acts with a child – PC 288
Penal Code 288 PC makes it a crime for a person to commit a lewd act with a minor child.
A “lewd act” is either:
- touching a child for sexual purposes, or
- causing a child to touch himself or someone else for a sexual purpose.
Note that a PC 288 crime involves the actual touching of a minor.
7.2. Statutory rape – PC 261.5
Per Penal Code 261.5 PC, it is a crime for a person to engage in sexual intercourse with a person under the age of eighteen.
Unlike most child pornography crimes, this offense involves sexual intercourse with a minor.
7.3. Revenge porn – PC 647j4
Penal Code 647j4 PC says that revenge porn is the crime of:
- distributing private sexual images of someone, and
- doing so with the intent to cause that person emotional distress.
Note that revenge porn can be committed with images of a minor or an adult.
For additional help...
For additional guidance or to discuss your case with a criminal defense attorney, we invite you to contact us at Shouse Law Group.
For similar accusations in Nevada, please see our article on: “Child Pornography Laws in Nevada.”
For similar accusations in Colorado, please see our article on: “Child Pornography Laws in Colorado.”
California Penal Code 311.1 PC.
California Penal Code 311.3 PC.
California Penal Code 311.4 PC.
California Penal Code 311.10 PC.
California Penal Code 311.11 PC.
California Penal Code 311.4 PC.
Judicial Council of California Jury Instructions (CALCRIM) 1141 – Distributing Obscene Matter Showing Sexual Conduct by a Minor.
California Penal Code 311.4 PC. See also People v. Spurlock (2003) 114 Cal.App.4th 1122.
CALCRIM 1141. See also People v. Kuhns (1976) 61Cal.App.3d 735.
CALCRIM 1141. See also Bloom v. Municipal Court, supra.
See INA 237 (a) (2) (A).
California Penal Code 1203.4 PC.