Child pornography is a grave offense that entails the production, dissemination, ownership, or access to visual media that portray minors in sexual acts. Penal Code 311 prohibits involvement with child pornography, irrespective of whether the child consented. A single instance of possessing or accessing child pornography can lead to severe legal consequences. Additionally, federal statute 18 USC 22521 prohibits the sexual exploitation of children. Child pornography is an element of the sexual exploitation of minors.

It is agreeable that child pornography results in significant harm to the child. Therefore, in the interest of safeguarding against future child pornography actors. As grave as child pornography is, an allegation must follow legal principles. The state must prove your guilt for you to be convicted of child pornography. The California Criminal Lawyer Group will offer legal assistance so you can best understand the charge and the implication of a conviction should you face child pornography charges in Anaheim.

Child Pornography Under Law

Let us first start by looking at child pornography under the law. 

As mentioned before, you can be charged with child pornography under the following circumstances:

  • State law, Penal Code 311, or
  • Federal Law, statute 18 USC 2252.

  1. State Law

PC 311 defines child pornography as any matter that depicts a person under 18 years of age personally engaging in or simulating sexual conduct. Under the statute, actions like sending, producing, possessing, or transporting content that depicts a minor engaged in sexual conduct are crimes. Sexual conduct includes the following:

  • Sexual intercourse or sodomy.
  • Oral copulation.
  • Masturbation.
  • Genital touching.
  • Lewd or lascivious conduct.

It is worth pointing out that PC 311 is not the only statute that addresses child pornography. The other laws related to PC 311 are:

  • Penal Code 311.10 (Advertising obscene child porn) — Prohibits anyone from knowingly promoting or offering for sale or distribution any obscene matter that depicts a minor engaged in sexual conduct.
  • Penal Code 311.11 and Penal Code 311.2 (Possession or control of child pornography) — Forbid anyone from knowingly having or managing any child pornography created using a person under 18.
  • Penal Code 311.3 (Sexual exploitation of a child) — Forbids someone to intentionally create, copy, print, or trade any child pornography
  • Penal Code 311.4 (Involvement of child pornography) — Prohibits the involvement of child pornography in any form. It forbids anyone from intentionally possessing, controlling, creating, or distributing any obscene matter that shows a minor in sexual acts.

Elements Prosecutors Must Prove

The state should prove the following elements beyond a reasonable doubt; only then can the jury or judge return a guilty verdict.

  • You knowingly and intentionally produced, distributed, or possessed visual depictions of minors engaged in sexually explicit conduct.
  • The visual depictions were, in fact, of minors.
  • The visual depictions showed one or more of the following types of sexual conduct:
  1. sexual intercourse.
  2. sexual contact.
  3. masturbation, or
  4. sadomasochistic abuse.
  • The visual depictions were produced or transmitted using a means or facility of interstate or foreign commerce or were transported in interstate or foreign commerce and
  • You knew or had reason to know that the visual depictions contained sexually explicit content involving minors.

Additionally, prosecutors must establish that you had the requisite intent, which could include knowledge of the ages of the individuals depicted or an intention to distribute the material. Material or materials includes photos, videos, films, or computer-generated equipment.

Let us look at the following elements in detail:

Knowingly

You act knowingly when you:

  • Were aware of the content and character of the material you were handling, promoting, and
  • Were aware that the material depicted a minor engaged in sexual conduct.

Obscene

Penal Code 311(j)(1) defines what constitutes obscenity under California law. This definition is used to determine the legality of particular images or videos that involve child pornography. According to the statute, a material is obscene if it meets all of the following conditions:

  • It appeals to the prurient interest of the average person based on contemporary community standards.
  • It shows or describes sexual conduct in a patently offensive manner.
  • The average individual would reasonably conclude that the content appeals to a morbid or prurient interest.

Note: Prurient interest refers to a shameful interest that relates to excretion, sex, or nudity

  1. Federal Law

You will face federal prosecution under 18 USC 2252 if you manufacture, possess, or distribute child pornography. It is worth noting that merely viewing child pornographic content is not a violation of this statute. However, storing the content on your hard drive would result in prosecution. Prosecutors would have to prove that you knew the content was stored on your hard drive if you did not store it yourself.

Note: Officers rely on the content on hard drives to prove their case. Internet browsers store temporary files and data in a cache folder on the user's computer. These files include pictures or videos that are considered child pornography.

If the user is unaware of these files or does not intentionally view or download them, they could be at risk of being charged with possessing child pornography.

Elements prosecutors Must Prove

Prosecutors should prove the following elements accurate for you to be found guilty of violating child pornography under federal law.

  • You transported, shipped, received, distributed, or reproduced child pornography (as per Section 2252(a)(1) of the law).
  • You knowingly possessed child pornography (as per Section 2252(a)(4)(B) of the law).
  • You knowingly accessed with intent to view child pornography using a computer (as per Section 2252(a)(5)(B) of the law).
  • You deliberately used the postal service to market, display, share, or request any actual or purported material that suggests or aims to make others think that the material depicts or includes a minor in sexual acts (as stated in Section 2252(a)(3)(B) of the law).

Note: Federal law will apply when the alleged offense involves crossing state lines, using the internet or other means of interstate commerce, or other factors that give the case federal jurisdiction.

For example, federal law applies, and federal authorities could pursue the case if the alleged crime involved creating, sharing, or having child pornography that was sent across state borders or through the internet.

Additionally, if the alleged offense involved a large-scale distribution network or other factors impacting multiple states, it could be prosecuted under federal law.

Defenses You Can Raise in a Child Pornography Case

Creating, sharing, or having child pornography is a grave offense that can result in serious legal repercussions. However, you can use some legal arguments to contest the charges or reduce the potential penalties. Some common legal defenses in a child pornography case include the following:

Absence of knowledge or intent: This defense may be used if the defendant was unaware that the material showed a minor or did not mean to possess or distribute child pornography.

  1. Lack of Intent or Knowledge

The lack of knowledge or intent defense could be applicable in a child pornography case if you were unaware that the material showed a minor or did not mean to have or share child pornography.

For example, suppose you got an unwanted email with child pornography and erased it immediately after seeing the content. In that case, you could claim you did not knowingly have or share the material.

However, it is worth noting that this defense will not work if the prosecution shows you knew about or intended to have or share child pornography. For example, if you purposely looked for or downloaded child pornography, this defense will not work.

Also, you should know that even if you did not know or want to have or share suggestive videos or pictures of minors, you would face prosecution if you did not do anything to stop having or sharing them.

For example, if you did not check the content of your computer or internet activity. Alternatively, if you fail to report the unwanted email with child pornography to law enforcement, you will face legal repercussions.

Defense attorneys will employ various methods and approaches depending on the details of the case. Your attorney could use the following to prove you lacked knowledge or intent:

  • Dispute the proof — Your lawyer can question the quality of the evidence offered by the prosecution, like the genuineness or correctness of the images or the techniques used to obtain them. They can also dispute the evidence trail to argue that you did not deliberately have or share the pictures.
  • Show a lack of involvement or awareness — Your attorney can argue that you did not have involvement or awareness of the computer or device where the images were found or that you did not know about the pictures being stored on it.
  • Establish a lack of purpose — Your attorney can assert that you had no intention to have or share the images, like if they were downloaded by mistake or if you were unaware of what they were.
  • Provide evidence of positive character — Your attorney could provide proof of your positive qualities, for example, your personal and professional background, to show that you would not knowingly engage in these activities.

  1. You are a Victim of Entrapment

You can claim entrapment if you prove that law enforcement officers pressured you into committing a crime you would not have otherwise committed. You have to prove that you lack a tendency to commit the crime and that police officers initiated the idea.

Your attorney needs to establish several issues when asserting this defense. He/she must demonstrate the following:

  • Law enforcement officers used tactics to induce or encourage a law-abiding person to commit a crime.
  • You were not predisposed to commit the crime before the inducement or encouragement.
  • You only committed the crime because of the inducement or encouragement of law enforcement.

In a child pornography case, an example of entrapment could be if law enforcement officers posed as minors online and enticed you to engage in sexual conversations or to send explicit material. You can successfully assert the entrapment defense if you can prove that you had no intention to commit the crime and only did it because of persuasion by law enforcement.

Note: You bear the burden of proving entrapment. It can be challenging to prove. Thus, you should consult an experienced criminal defense attorney. He/she will help you understand your legal rights and options, including the possibility of using the entrapment defense.

  1. The Evidence Was Obtained Through an Illegal Search and Seizure

The Fourth Amendment protects you from an illegal search or seizure. This means police officers need a warrant or a reasonable cause. If they lack either, prosecutors cannot use any materials obtained in the search. If the evidence is suppressed, the state will have difficulty proceeding with the case.

However, there are exceptions to the warrant requirement. They include:

  • Exigent circumstances — This exception allows officers to conduct a search or seizure without a warrant when an emergency or urgent situation requires immediate action. For example, when there is a risk of imminent danger or destruction of evidence.
  • Consent — A warrant is not required if you consent to a search. However, consent must be given voluntarily and cannot be obtained through coercion or deception.
  • Search incident to arrest — Law enforcement officers can conduct a warrantless search of lawfully detained individuals. The search is limited to the area within the arrestee's immediate control. This includes the pockets of clothing or the passenger compartment of a car.
  • Plain view doctrine — If officers are lawfully present in a location and observe incriminating evidence in plain view, they can seize the evidence without a warrant.
  • Automobile exception — Law enforcement officers can search a warrantless vehicle if they have probable cause to believe the car contains evidence of a crime.

These exceptions allow officers to search or seize without obtaining a warrant or obtaining a warrant after the fact.

Attorneys will challenge any evidence obtained in violation of your Fourth Amendment rights. He/she will use any of the following approaches:

  • Motion to suppress evidence — Your attorney can file a motion to suppress evidence or a Penal Code 1538.5 motion. The motion requests the court to exclude the evidence from the trial because officers obtained the evidence in violation of your Fourth Amendment rights.
  • Pretrial hearing — The court will determine whether officers obtained the evidence legally during the pretrial hearing. Your attorney and the prosecution will present arguments and evidence during the hearing.
  • Cross-examination — During the trial, your attorney can cross-examine the law enforcement officers who conducted the search or seizure. Your attorney will demonstrate that the officers lacked probable cause to execute the search or seizure. Alternatively, he/she will argue the officers failed to follow proper procedures.

If the court is satisfied the claims have merit, the judge could grant your attorney’s request and suppress the evidence. This will severely affect the prosecution’s case.

  1. You Had the Content for Legitimate Reasons

You can claim a legitimate reason to have sexual content involving minors. Some of the legitimate reasons courts consider include the possession of child pornography for:

Medical Context

Medical professionals could have or see child pornography as part of their professional duties.

For example, a forensic psychiatrist or psychologist could need to see child pornography to assess and treat people charged with having or sharing these materials. In this case, the medical professional must keep the material safe and private. He/she would only have to see it within the limits of his/her professional responsibilities. However, activities in this context are subject to legal review.

The medical professional must show an apparent reason for his/her actions to defend against legal charges.

Educational Activities

For example, if you are a teacher or researcher, you could contend that you acquired the material to examine the mental impacts of child sexual abuse. Alternatively, you could assert that you intended to use the material to educate students about the risks of child pornography and sexual exploitation.

Penalties for Child Pornography

  1. Penalties Under State Law

Child pornography under Penal Code 311 (the primary child pornography law) is a wobbler offense. Prosecutors can seek a conviction on misdemeanor or felony charges.

If convicted of a misdemeanor violation:

  • A maximum of one year in jail and/or
  • A fine of between $1,000 and $2,500.

If convicted of a felony violation:

  • 16 months, two years, or three years in prison and/or
  • A maximum fine of $100,000.

Additionally, the court will impose a sex offender registration requirement.

  1. Penalties Under Federal Law

If you face federal charges, a conviction will result in the following penalties:

  • First-time offenders convicted of producing child pornography face fines and statutory minimum imprisonment of 15 to 30 years maximum in prison.
  • First-time offenders convicted of transporting child pornography for foreign commerce or interstate face fines and statutory minimum imprisonment of 5 to 20 years maximum.
  • Penalties become harsher for subsequent offenders.

Immigration Consequences

Child pornography is generally considered a crime involving moral turpitude (CIMT). CIMT refers to conduct contrary to community standards of honesty, justice, and good morals. Crimes involving moral turpitude are generally viewed as more serious offenses. They can have significant immigration consequences for non-U.S. citizens convicted of these crimes.

Under the Immigration and Nationality Act (INA), a conviction for a CIMT can lead to deportation or removal from the United States.

Expungement of a Child Pornography Charge

Unfortunately, expungement is not an option for most child pornography convictions. Penal Code 1203.4 makes expungement available for misdemeanors and felonies punishable by imprisonment in county jail. However, most child pornography offenses are felonies punishable by imprisonment in state prison. This makes convictions under PC 311 ineligible for expungement.

Under California law, child pornography offenses fall under Tier 3 offenses. These convictions cannot be expunged. However, offenders could be eligible for a Certificate of Rehabilitation. This certificate helps demonstrate the offender’s rehabilitation and potentially helps with certain aspects of their reentry into society.

Even if a person's conviction for child pornography is expunged or they receive a Certificate of Rehabilitation, the conviction could be accessible to certain entities like law enforcement agencies or employers who work with vulnerable populations.

Therefore, if you have a child pornography conviction that resulted in state prison time, you cannot get it expunged under Penal Code 1203.4. If you have a child pornography conviction that resulted in probation instead of prison time, expungement is possible. However, you must meet specific requirements, namely:

  • Completing your probation and
  • Not having any new pending criminal charges.

However, even if your child pornography conviction is expunged, it will not erase your criminal record. It can negatively affect your future opportunities.

Child Pornography Convictions and Impact on Gun Rights

A child pornography conviction can affect your gun rights. According to Penal Code 29800, also known as the “felon with a firearm” law, anyone convicted of a felony offense is prohibited from owning, possessing, or controlling any firearm. This law applies to felony child pornography offenses under California Penal Code 311. Therefore, you will lose your gun rights with a felony child pornography conviction.

Additionally, even if your child pornography conviction did not result in a felony sentence but rather a misdemeanor sentence or probation, you could still lose your gun rights temporarily under Penal Code 29805. This law suspends the gun rights of individuals convicted of certain misdemeanor offenses for ten years.

Contact a Criminal Defense Attorney Near Me

Child pornography charges can have devastating consequences for anyone who faces them. It is crucial to enlist the help of a qualified criminal defense attorney with extensive experience in handling these cases. A seasoned attorney can offer vital legal advice and assistance throughout every stage of the legal process. They can thoroughly investigate the matter, negotiate with prosecutors for a favorable plea deal, and fight for the best possible outcome for their client in court.

At California Criminal Lawyer Group, we have a history of successfully defending Anaheim clients in child pornography cases. We provide competent and compassionate representation throughout the legal process. Contact our team at 714-766-0965 for a free case assessment.