Child pornography is illegal in California. You cannot possess, produce, send, transport or advertise child pornography in the state.

There are stiff penalties for violations of the law. Depending on the facts of the case, a child pornography conviction can lead to a prison sentence of up to 8 years and a $100,000 fine. A conviction can also carry a lifetime registration on California’s sex offender list.

If you or someone you know has been charged with child pornography-related crime, it is important to speak with an experienced criminal defense attorney as quickly as possible. The consequences from a child pornography conviction can be life altering.

Examples of Illegal Pornography

california child pornography lawsCalifornia’s child pornography laws are broad, so it is possible for pornography to be considered illegal child pornography in a number of situations. Consider these three examples:

Example 1: A man runs a photo store with a “no questions asked” policy. He knowingly makes prints of images of child pornography and mails them to customers.

In this case, the shop owner could be guilty of knowingly developing and trafficking child pornography, even though he didn’t produce the images.

Example 2: A high school student films a “hookup” encounter with another underage student and he keeps it on his phone.

Simple possession of pornography that depicts someone under 18 is illegal, and this student could be breaking the law.

Example 3: A teenager earns money from a neighbor by recruiting classmates to appear in amateur pornography videos. The teenager isn’t involved in any of the production of the videos.

It is illegal to recruit a minor to participate in the production of pornography. So even though the teenager wasn’t involved in the video production, he could still be breaking the law.

How do California’s child pornography laws work?

Definition of Child Pornography in California

California law defines “child pornography” as any images, videos, data, computer files, etc., that depict anyone under the age of 18 engaged in a sexual act.

The sexual act can be real or simulated — covering everything from intercourse to oral copulation, masturbation or “exhibition of the genital area for the purposes of sexual gratification.”  

California considers the actual age of the person when the pornography was produced when defining whether or not the person was under 18. For example, videos produced on a “barely legal” pornography website, featuring actors between 18-21, is not child pornography, because the actors were of age when produced.

There are two major exceptions to this rule. Minors that are legally emancipated aren’t considered, and consensual acts between married individuals would not qualify as child pornogaphy (e.g., a 19-year-old and his 17-year-old spouse film themselves having sex).

California Child Pornography Laws

You can find all of the California’s child pornography laws in Penal Code 311. This code contains several statutes that define all of the ways that the state has made child pornography illegal.

It is illegal to:

  • Knowingly send, transport, produce, possess or duplicate any child pornography, with intent to distribute it (311.1 PC and 311.2 PC).
  • Knowingly develop, duplicate, print or exchange any child pornography. This is prosecuted as “Sexual exploitation of a child.” (311.3 PC)
  • Knowingly hire, employ, use, persuade, or coerce a minor to participate in the production of pornography (311.4 PC).
  • Knowingly advertise obscene child porn for sale or distribution (311.10 PC).
  • Knowingly possess or control any child pornography that was produced using a person under 18 (311.11 PC).

Now that we know what California’s child pornography laws are, what is the typical punishment for a conviction?

Penalties for Child Pornography in California

penalties for child pornographyThe penalties for child pornography in California will always depend on the facts of the case. Most crimes are charged as “wobblers,” meaning that they can be tried as felonies or misdemeanors.

The maximum penalty for a misdemeanor child pornography conviction in California is one year in county jail and a fine of up to $2,000.

If tried as a felony, the state prison sentence for a child pornography conviction will range between 16 months and 8 years. Fines can go as high as $100,000.

Many child pornography convictions also carry mandatory registration as a sex offender, potentially for the rest of your life.

What can make the difference between a misdemeanor and felony child pornography charge?

Felony vs. Misdemeanor Child Pornography

When considering a child pornography case, prosecutors will often favor felony charges for a “wobbler” crime if:

  1. The material is “obscene.” This is defined under California law as something that shows sexual conduct in an offensive way; lacks literary, artistic, social, political or scientific value; and that an average adult person in California would agree that it appeals to a prurient interest. And/or,
  2. The defendant attempted to trade it commercially, and/or
  3. The defendant attempted to show it someone under 18.

In other words, an individual who is arrested for possession of child pornograpy and might be involved in a child porn “ring” could find themselves charged with felony child pornography possession and distribution.

If you or someone you know has been charged with a child-pornography related crime, the specific charges will depend on the specific facts of your case. This is why it is critically important that you contact a criminal defense attorney as soon as possible to begin building your defense.

Even with a minor conviction, violations of possession of child pornography carry mandatory registration as a “Tier one” sex offender for a minimum of 10 years.

Most other charges in 311 PC carry mandatory registration as a “Tier three” sex offender, which will run for the rest of your life.

California Sex Offender Registry

California maintains a registry of convicted sex offenders in the state. This registry is open to the public, so it is possible for friends, contacts, potential employers and landlords to find you on this list.

Appearing on California’s sex offender registry can greatly affect your ability to find work and housing.

To make matters more complicated, California’s Jessica’s Law prevents registered sex offenders from living within 2,000 feet of schools, parks and places where children gather. The state has relaxed this law in recent years, but the mandatory minimum distance can still be enforced by parole officers.

Does Anime Count as Child Pornography in California?

Say someone has an anime video, depicting sexual acts being peformed on a minor. This is not child pornography in California.

California’s 311.4 PC says that an individual under 18 cannot appear in sexual content, but through court action over recent years, this has been clarified to emphasize that this only applies when an actual person is shown in the material. It does not apply to sketches, drawing, cartoons and animations.

Defenses Against Child Pornography Charges

los angeles sex crimes lawyerIf you have been charged with a child pornography-related crime, it is important to begin building your defense. As you’ve seen so far, the laws governing child pornography in California are broad and complex.

It’s important to work together with an experienced and aggressive criminal defense attorney to safeguard your rights and protect your future.

In order to secure a conviction against you, the prosecutor will have to prove that you knowingly broke the law. It’s possible that you:

  • Mistyped a search term.
  • Thought you were looking at pornography of people who were of-age but actually had minors involved.
  • Downloaded a file with malware that downloaded child pornography to your computer.
  • Clicked the wrong link.

In any of these cases, your exposure to the child pornography likely was legal, because you didn’t intentionally seek it out.

In other cases, it’s possible to successfully defend or reduce child pornography charges based on the search and seizure tactics used by the authorities. When conducting a child pornography investigation, officials will typically seize computers, laptops and cell phones of someone under suspicion.

However, they often need:

  1. A search warrant;
  2. Your consent; or
  3. Emergency justification for working without a warrant or your consent.

If investigators worked outside the law, it is sometimes possible to suppress evidence that they collected.

What to Do If Charged

In more than 30 years in California courtrooms, I have defended many child pornography cases to favorable judgements for the defendants.  

Call my office anytime, 24/7 to speak to an expert and find out what your options are – 310-456-3317.