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Possession of Child Porn

Penal Code 311.11 PC – Possession of Child Pornography in California

California Penal Code 311.11 PC is the statute making 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.

Child pornography is defined as any matter or material depicting sexual conduct by someone under the age of 18. Sexual conduct includes sexual intercourse, oral copulation, anal intercourse, masturbation, sexual activity with objects, and bestiality.

California Penal Code 311.11 – Possession of Child Pornography
Penal Code 311.11 PC makes it a wobbler crime to have possession of child pornography.

It also includes the exhibition of the genitals or pubic or rectal area for the purpose of sexual stimulation, any lewd or lascivious sexual act, or excretory functions performed in a lewd manner, whether performed alone or between people of the same or opposite sex. An “act” is simulated when it gives the appearance of sexual conduct.

“Possession” can be actual possession, which means holding or carrying child pornography materials knowingly, or constructive possession, which means keeping the child porn materials in a location you have control over, such as your home or car. Joint possession is knowingly sharing possession with someone, such as a friend.

PC 311,11 says, “(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 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.

For example, suppose you have saved child porn pictures or videos of 13-year-old girls on your laptop. In that case, you could be charged with violating PC 311.11. While most child pornography laws in California are felonies with harsh penalties, not all are filed as a felony.

What is the Definition of Child Pornography?

As noted, California law defines child pornography as any material visually depicting someone under 18 engaging in sexual conduct. The “material” includes photos, films, digital media, computer-generated images, etc. In the context of this law, “sexual conduct” can be actual or simulated and include the following acts: 

  • Sexual intercourse,
  • Oral copulation,
  • Anal intercourse,
  • Anal oral copulation
  • Anal penetration,
  • Sexual penetration with objects,
  • Sexual sadism or masochism,
  • Masturbation.
  • Bestiality,
  • Exhibition of the genitals or rectal area for sexual stimulation,
  • Any lewd acts defined in Penal Code 288 PC,
  • Excretory functions performed in a lewd or lascivious manner.

What is a “Wobbler” Offense? 

In California, a "wobbler" is a crime that the district attorney can file as either a felony or a misdemeanor, depending on the circumstance, such as the following:

  • The minor's age,
  • The amount of child porn material possessed,
  • The severity of the crime and
  • The defendant's criminal record.

Which Child Porn Crimes Can Be Filed as Misdemeanors?

There are a couple of California laws that allow misdemeanor child pornography charges, as discussed below.

Misdemeanor Child Pornography - Penal Code 311.1 and 311.11

Penal Code PC 311.1 PC covers the crime of dealing with circulating or showcasing child pornography. This law makes it a crime for anyone to knowingly transport, create, possess, or replicate, with intent to distribute, any material that represents a minor participating in sexual conduct. 

PC 311(a) says, “Every person who knowingly sends or brings into this state for sale or distribution, or possesses, prepares, publishes, produces, develops, duplicates, or prints any information, image, including any film, photograph, with the intent to distribute obscene matter, knowing it depicts a person under 18 engaging or simulating sexual conduct shall be….

Penal Code 311.11 PC prohibits the possession or control of child pornography. Simply put, it is illegal for someone to knowingly possess or control any material that visually depicts a minor engaging in sexual conduct. 

What are the Penalties?

As noted, violations of PC 311.11 are a wobbler that a prosecutor can file as a misdemeanor or felony, but both will require sex offender registration defined under Penal Code 290 PC. If you're convicted of misdemeanor child porn, the penalties are:  

  • Up to 1 year in county jail,
  • Up to a $2,500 fine,
  • There is a possibility of informal summary probation rather than jail time, but you must report and check in with the court periodically.

If you're convicted of felony child porn, the penalties are: 

  • 16 months, two or three years in state prison,
  • Up to a $2,500 fine,
  • Formal probation with terms and conditions and report directly to a probation officer,
  • Loss of the right to own or possess a firearm.
  • Possible restitution payments,
  • Possible restraining orders,
  • Professional license suspended or revoked.

Possession of child pornography is always prosecuted as a felony if you have a prior conviction for any offense requiring sex offender registration. 

Notably, if you are sentenced to incarceration for child porn possession, you will not be allowed to serve a “split sentence,” meaning serving a portion of your sentence on work release or house arrest. However, you might be able to reduce your sentence through “good conduct” credits.

Enhanced Sentence

Notably, the felony sentence will increase to three to five years in state prison if any of the following applies:

  • The child porn consists of more than 600 images or 12 videos, and
  • The child porn contains at least ten images of a prepubescent minor or any minor under 12 years old or
  • The child porn portrays sadism or sexual masochism with a minor.

What Are the Sex Offender Registry Requirements?

Suppose you are convicted of a misdemeanor or felony child pornography offense. In that case, you must register as a sex offender (Penal Code 290), but the length of registration will vary as follows: 

  • Misdemeanor child porn is a Tier 1 offense, meaning you'll have to register as a sex offender for at least ten years after your release from custody.
  • Felony child pornography is a Tier 3 offense, meaning you'll have to register as a sex offender for life.

What are Related Crimes?

Several California laws are related to Penal Code 311.11 PC possession of child pornography, including the following:

  • Penal Code 311 PC - child porn law. This is the primary statute in California making child porn illegal. This law makes it a crime to send, transport, duplicate, print, advertise, possess child pornography, or hire or persuade a minor to make any pornographic image.
  • Penal Code 311.1 PC - distribution of child porn. This law makes it a misdemeanor crime to send, transport knowingly, produce, possess, or duplicate any child porn intending to distribute such material, such as photos, film, negatives, slides, or videotapes.
  • Penal Code 311.4 PC - employing minors to sell or distribute child porn. This law makes it a crime to use or coerce a minor under the age of 18 to appear in child pornography.
  • Penal Code 288 PC - lewd acts with a minor. This law makes it a felony offense crime to commit lewd and lascivious acts with a minor child, defined as touching a child for sexual purposes or causing them to touch themselves or another person for sexual purposes.

What are the PC 311.11 Defenses? 

Suppose you were charged with violations of PC 311.11 possession of child pornography. In that case, our California sex crime attorneys could use different strategies to counter the criminal charges, such as the following: 

  • Lack of intent,
  • Mistake of fact,
  • Never possessed child porn,
  • Illegal search and seizure,
  • Police entrapment,
  • Coerced confession,
  • False accusation,
  • Statute of limitations, meaning prosecutors must file misdemeanor charges for child porn possession within one year of the alleged possession or three years for felonies. 

Maybe we can argue that you were unaware you possessed child pornography. Recall that the district attorney must prove knowledge and intent to obtain a conviction. Maybe there is insufficient evidence to prove you knew they were minors. Perhaps you genuinely believed the images were of adults.

Possession of Child Pornography

Maybe we can argue that the materials do not meet the standard of child porn. Perhaps the materials do not depict minors engaging in sexual conduct as defined under the law.

Perhaps the people were of legal age or were emancipated, or the images are of such poor quality that they can't be identified as minors. 

Maybe we can argue that there was an unlawful search and seizure or that you are the victim of entrapment who was coerced to commit a crime by police during a sting operation. Perhaps the police coerced your confession, and the evidence can be suppressed. 

Maybe we can negotiate with the district attorney to reduce the charges (felony to a misdemeanor) or persuade them not to file formal charges (DA reject), which has a better chance of success if you are a first-time offender. 

You are only guilty under child porn laws if you act knowingly, meaning that you knew the nature of the material you were transporting or possessing and knew the material showed someone under 18 participating in sexual conduct. Sometimes, it's challenging for a prosecutor to prove these crucial factors.

Contact us for more information or a free case review. The Hedding Law Firm is based in Los Angeles, CA.

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