Penal Code 311.2 PC – Distribution or Production of Obscene Matter
California Penal Code 311.2 PC makes it a crime to knowingly transport, duplicate, exhibit, or possess child pornography or other forms of obscene material (pictures or videos) with the intent to distribute or show it to different people.
If convicted, the felony punishments will vary based on the details, but if you were guilty of possession of child porn with intent to sell, you will face up to six years in state prison and a severe fine of up to $100,000.
Notably, the material could be considered “obscene” if it shows or offensively describes sexual conduct, and a reasonable person would conclude it lacks serious artistic value and appeals to a morbid interest in sex, nudity, or excretion.
PC 311.2 says, “(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, or prints, with intent to distribute or to exhibit to others, or who offers to distribute, distributes, or exhibits to others, any obscene matter is for a first offense, guilty of a misdemeanor.
Suppose the person has previously been convicted of any violation of this section. In that case, 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 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.”
Subsection (c) covers minors under 18. It makes it a felony punishable by imprisonment in the county jail for up to one year, by a fine not exceeding two thousand dollars ($2,000), or by both that fine and imprisonment.
Notably, it is unnecessary to prove commercial consideration or that the matter is obscene to establish a violation of this subdivision if a person has been previously convicted of violating it.
Penal Code 311.2 PC - Definitions
There are some essential definitions you need to understand regarding California Penal Code 311.2 PC and the distribution of obscene matter showing sexual conduct by a minor, such as the following:
- “Matter” means any representation of information or image, including films, pictures, slides, videos, or computer-generated images.
- The matter is not obscene unless a reasonable person would conclude that, taken as a whole, it lacks serious literary, artistic, political, or scientific value.
- The matter is not obscene by law if all persons under the age of 18 depicted in the matter are legally emancipated or if it only shows lawful conduct between spouses.
- The depiction of nudity, by itself, does not make matter obscene.
- For a matter containing nudity to be obscene, it must depict sexual activity, and it must meet the requirements for obscenity.
- Sexual conduct means actual or simulated sexual intercourse, oral copulation, anal intercourse, anal oral copulation, or other sexual conduct defined under Penal Code 311.4(d)(1).
- An act is simulated when it gives the appearance of being sexual conduct.
- To distribute means to transfer possession, whether or not the transfer is made for money or something valuable.
- Commercial benefit means receipt of, or intent to receive, financial value or compensation.
- A person accused of committing this crime can be an individual, partnership, firm, association, corporation, limited liability company, or other legal entity.
- A person who possesses obscene matter for their personal use is not guilty of this crime.
What are the PC 311.2 Penalties?
As noted, PC 311.2 makes it a crime in California to knowingly possess, duplicate, exhibit, or transport obscene matter or child pornography with the intent to distribute it. If convicted, the penalties include the following:
- If the obscene matter does not involve minors under 18, but there was intent to distribute it, it's a misdemeanor that carries up to six months in jail and a fine of up to $1,000. There are additional penalties for multiple pieces of obscene matter, and subsequent violations could result in a fine of up to 50,000.
- If the obscene matter involves children under the age of 18, and there was an intent to sell it, called “commercial consideration,” it's a felony that could result in a sentence of two, three, or six years in state prison, a fine of up to $100,00, and mandatory sex offender registration defined under Penal Code 290 PC.
- Suppose any matter involves minors engaging or simulating sexual conduct, and there was intent to give it to a minor under 18. In that case, it's a felony that carries up to three years in prison, a $10,000 fine, and a requirement to register as a sex offender.
- Suppose any matter involves minors engaging or simulating sexual conduct, and there was intent to give it to an adult over the age of 18. In that case, a wobbler can be filed as a misdemeanor or felony. A misdemeanor carries up to one year in county jail and a fine of up to $2,000. A felony carries up to three years in state prison and a fine of up to $10,000. Sex offender registration might be required.
What are Related Crimes?
-
Penal Code 311.11 PC - Possession of child pornography. This statute makes it a crime to possess child pornography produced by a minor under 18, a “wobbler” that can be filed as either a misdemeanor or felony.
-
Penal Code 311.10 PC - Advertising obscene matter involving minors. It's a felony to advertise for sale or distribution any obscene matter, knowing that it depicts a minor engaged in sexual conduct.
-
Penal Code 311.4 - Employing or using minors to pose in film. It's a felony to employ, use, or persuade a minor to engage in or assist others in imposing or modeling for the purpose of preparing a commercial or noncommercial film or other medium involving sexual conduct by a minor.
- Penal Code 311.4(b) - Producing child pornography and posting it on the Internet. It's a crime to induce others to trade porn without making a monetary profit satisfies the “commercial purposes” requirement.
What is the PC 311.2 Defenses?
The primary defense strategy to these charges is that you did not act knowingly. In other words, if you were genuinely unaware that they possessed obscene materials
The district attorney must prove that you knew the obscene nature of the matter but do not need to prove you knew whether the matter met the definition of obscene.
Contact our California sex crime defense lawyers for a free case evaluation. The Hedding Law Firm has offices in Los Angeles, CA.
Related Content: