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February 20, 2014

What Does “Child Pornography” Mean under California’s Laws?

Ignorance of the law is generally not a defense to a criminal charge, but many people find themselves charged with crimes because they misunderstood the law. If you are not familiar with California’s child pornography laws, you might be confused about what exactly is considered illegal in the State of California.

Any matter or material that depicts sexual conduct by a person who is under the age of 18 is considered child pornography under California law. “Matter” or “material” essentially refers to any medium in which images may be recorded, including photographs, films, video, or computer-generated software or images. Sexual conduct means any sex-related act, including, but not limited to, sexual intercourse, oral copulation, or masturbation.

Under California Penal Code section 311.1, any person who knowingly possesses, sends, prepares, produces, publishes, or imports material considered child pornography can be charged with a crime.

Possession of Child Pornography Charges in California (PC 311)

PC 311 prohibits the knowing distribution of child porn in any form.
Under California PC 311, a child could be charged with child pornography.

California Penal Code Section 311 prohibits the knowing distribution, possession, production, publication, duplication, sale or printing of child pornography in any form.

In order for the prosecution to convict you of possession of child pornography, you must knowingly possess or control any matter that shows a person under the age of 18 engaging in sexual conduct or simulating sexual conduct.

Charges of child pornography in California such as PC 311 depend on the specific details of your case. It is important to have an experienced Wallin & Klarich attorney review your case and defend the charges against you if you are being charged with a child pornography crime.

What is the Punishment for Possession of Child Pornography in California? (PC 311.11)

Under California Penal Code Section 311.11, possession of child pornography can be a felony. If you are convicted of Penal Coect section 311.11 as a felony you face face up to three years in state prison, a fine of up to $2,500 and lifetime registration as a sex offender. If you are convicted of possession of child pornography after being convicted of a crime requiring registration as a sex offender, the state prison sentence can increase to up to six years.

Teen Sexting in California

California has yet to enact laws specifically regulating teen sexting. However, teens may still be prosecuted under California’s general child pornography and exploitation laws.

What Is “Sexting?”

Sexting is the act of sending sexually explicit images through electronic means, such as by text message, instant messaging applications, or email. Many persons who share these images can be potentially at risk for a potential child pornography charge if the images they send or receive depict a minor engaged in sexual conduct.

Is Sexting Between Minors Illegal?

Some states have made laws that apply to minors sending each other sexually explicit photos of themselves, usually through text messages or email. However, California law currently makes no exception, which means that any person, regardless of whether they are an adult or a minor, who knowingly produces, possesses, distributes, or receives child pornography, can be charged with violating California Penal Code Section 311.1. 

Two minors who text sexually explicit image to each other could both potentially face a felony charge if:

  1. They knowingly committed the act; AND
  2. When they acted, they knew that the matter showed a person under the age of 18 who was participating in or simulating sexual conduct.

What Happens When a Minor is Caught Sexting?

Teen sexting is in fact a crime
Teen sexting is becoming increasingly more popular in the US.

Juveniles charged with non-violent crimes are usually allowed to have their cases heard in the juvenile court system rather than prosecuted as adults. The juvenile court system is designed to educate and rehabilitate minors, not to punish them.

Although they do not have to face the severe penalties of an adult conviction for possession of child pornography, juveniles can still face the following:

  • Incarceration in juvenile hall;
  • Seizure of cell phones by schools and by law enforcement;
  • Suspension or expulsion from school;
  • Loss of academic and athletic opportunities;
  • Withdrawal of college acceptance offers; and
  • Court imposed community service and counseling.

If your child has been accused, he or she could face fines and/or probation or counseling. Depending on the circumstances, your child may also be facing a felony child pornography possession charge (Penal Code section 311.11(a)) that can include detention in county juvenile hall, transfer to an Orange County jail facility upon reaching the age of 18.

Is There a Statute of Limitations for Child Pornography Cases?

California Penal Code section 801.1(b) imposes a 10-year statute of limitations on any felony crime that is described in Penal Code section 290, which is the law that controls registration of sex offenders. Therefore, for a felony charge, the case must be commenced within 10 years of the commission of the crime.

For a misdemeanor violation, however, the case must be commenced within one year of the commission of the crime, pursuant to Penal Code section 802(a). 

Child Pornography Is Also a Federal Crime

Section 2256 of Title 18, United States Code is similar to the laws in California that define child pornography. The federal law defines child pornography as “any visual depiction of sexually explicit conduct involving a minor (someone under 18 years of age).”  This includes photographs, videos, digital or computer-generated images that look like an actual minor, and images created, adapted, or modified to appear to depict an identifiable, actual minor. Undeveloped film, undeveloped videotape, and electronically stored data that can be converted into a visual image of child pornography are also deemed illegal visual depictions under federal law. 

What triggers a federal prosecution? The key moment is when the prohibited images are transported across a state or national border. The Commerce Clause of the U.S. Constitution gives Congress the power to regulate interstate and foreign commerce.  The Supreme Court has held this to mean that Congress can control the paths of commerce (such as roads, shipping lanes, and railways), as well as what travels on those paths. 

Sentencing under federal law is different than under California law. Whereas the state law generally provides a maximum, the federal law provides a range between a minimum and maximum sentence. For a first offense of possession of child pornography under United States Code Section 2252, you could be facing between 0 and 10 years in federal prison. For distribution of child pornography under United States Code Section 2252A, you could be facing between 5 and 20 years for your first offense.

Contact the Criminal Defense Attorneys at Wallin & Klarich For More Information

If you or your child is facing criminal charges related

We will be there when you call.
The attorneys at Wallin & Klarich will be there when you call.

to child pornography, it is critical that you speak to an experienced criminal defense attorney as soon as possible. With over 38 years of experience, the attorneys at Wallin & Klarich have the skills and knowledge to successfully defend you. We are committed to providing you with the personal attention you deserve and expect to help you overcome this difficult situation.

With offices in Orange County, Riverside, San Bernardino, Los Angeles, San Diego, West Covina, Torrance, and Victorville, there is an experienced Wallin & Klarich criminal defense attorney available to help you no matter where you are located.

Contact our offices today at (877) 4-NO-JAIL or (877) 386-7269 for a free phone consultation. We will be there when you call.

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Author:Stephen D. Klarich

Stephen D. Klarich is one of the most highly respected sex crime attorneys in Southern California. His vast experience, zealous advocacy for his clients and extensive knowledge of many areas of the law make Mr. Klarich a premiere Southern California attorney. Mr. Klarich founded Wallin & Klarich in 1981. As the senior partner of Wallin & Klarich, Mr. Klarich has been successfully representing clients for more than 38 years. Clients come to him for help in matters involving sex offenses, murder, violent crimes, misdemeanors, felonies and other sex crimes. View all posts by Stephen D. Klarich.

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