Child Pornography

There are only a few California offenses that can elicit a harsher response than child pornography crimes. The State heightens penalties for those who have obscene videos or images of minors in their possession. You can get hold of pornographic materials by opening a text message, email, or downloading a file. You risk facing criminal allegations even when you weren't aware that the materials that you had were that of a child.

The penalties for the distribution or creation of pornography are harsher than for simple possession. If you have been accused, or charged with a child pornography offense, you need the counsel of a qualified criminal defense attorney who has the skills and expertise to defend you. Our lawyers at the Los Angeles Criminal Attorney are here to support you and will put up a strong fight to defend you.

Definition of Child Pornography Under California Laws

According to California PEN 311, child pornography involves any visual or audio material that depicts artificial or real simulations of children (those under 18 years of age) participating in sexual acts.

The material in this case could include films, pictures, negatives, slides, video recordings, and computer-generated content. The sexual acts could be actual or simulated, and they can include anything from oral sex to masturbation to the display of the genitalia for sexual pleasure.

California child pornography laws make it illegal to possess, distribute, or sell child pornography materials. Violations of these statutes can be classified as felony crimes at both the state as well as federal levels based on the facts of the case. Persons may be subject to federal and state child pornography laws when:

1. The person knowingly engages in possessing, selling, or distributing child pornography
2. The defendant receives child pornographic material
3. The individual promotes the distribution or sale of child pornographic material
4. The defendant is discovered sending child pornography over state borders, perhaps by using e-mail

When determining if or not the subject was below the age of 18 in California, the state takes into account the subject's actual age at the time the pornography was made. For instance, recordings showing actors between the ages of 18 and 21 and created on a "hardly legal" pornographic website aren't child pornography since the performers were of legal age at the time.

This rule has two main exceptions. Married couples who perform consensual activities are not deemed child pornography, nor are lawfully emancipated children.

California Child Pornography Laws

Penal Codes 311.1, 311.2, 311.3, 311.4, 311.10, and 311.11 outlines California's laws on child pornography.

California PEN 311.1 & 311.2 PC

These codes enact regulations making it unlawful to sell, distribute, transport, exchange, or duplicate child pornographic content. The charges that are imposed under these penal codes are more severe if the material is thought to be obscene, if it’s given out or sold to someone who is below 18, or if it is being utilized for any commercial purposes.

California PEN 311.3 makes it unlawful to deliberately create, duplicate, exchange, or print any child pornographic material.

California PEN 311.4 criminalizes hiring, soliciting, or persuading a minor to participate in child pornographic acts. Defendants can be penalized under this law even though they aren't the makers of the film. To be prosecuted under this law, one must only solicit or recruit children for child pornography.

California PEN 311.10 criminalizes willfully advertising the distribution or sale of child pornographic material. The federal authorities could impose further sanctions on people who use the internet to promote the distribution or sale of child pornographic material.

California PEN 311.11 criminalizes simple possession of child pornographic material. Penalties for first-time offenses include fines that could amount to $2,500 or one year in prison. Repeat crimes are punishable by up to a three-year state prison sentence and/or a $10,000 fine.

Federal Child Pornography Laws and Penalties

The utilization of computers along with the internet to reach clients across state and federal borders has led to an increase in the federal administration's involvement in child pornography matters. Possession, distribution, sale, and advertising of materials that depict sexual conduct with a minor are all prohibited by the United States 1996 Child Pornography Prevention Act. People who are prosecuted on the federal scale are subject to harsher penalties, such as lengthy jail sentences as well as fines that could amount to $100,000.

According to the federal government, child pornography is any "visual representation" of a child who is "engaged in sexually explicit behavior," whether it is a real child or a depiction generated by a computer that "is indiscernible from the one of a child."

This definition differs significantly from other definitions since it involves computer-animated images or transformed "anime" that's modeled from a real person. Since these crimes are more serious, the federal government assumes a more severe approach.

Anyone convicted as a sex offender for possessing, distributing, selling, or any other activities associated with the creation of child pornographic material will be compelled to submit certain details. This includes facial images, their full legal names, their home address, school address (when the sexual offender is a student), their employer's name and physical address, as well as their car details.

Federal laws require every sex offender to register themselves with the National Sex Offender Public Website of the United States Department of Justice to allow the general public to have access to their records.

If a sex offender is found guilty of recurrent sex offenses in a child pornography prosecution, they are frequently forced to register for life. You could be charged federally for these criminal acts if the pornographic content crossed state borders. This implies that you can face federal charges if you used the internet to commit the crime.

Possible federal offenses related to child pornography include the following:

• Child Pornographic Production or Sexual Exploitation under Title 18 of the United States Code 2251. A violation of this law carries a 15 to a 30-year prison sentence
• Buying and selling of Children under Title 18 of the United States Code 2251a. Defendants found guilty of this law are subject to a five to 30-year sentence
• Title 18 U.S.C. sections 2252 as well as 2252a prohibit possessing, distributing, and receiving child pornography. Violating this law will subject the offender to five to twenty years in prison
• Making Sexually Explicit Images of Minors for Import into the U.S under Title 18 of the U.S.C. 2260. A conviction under this code carries a fifteen to a 30-year prison sentence

California Child Pornography Penalties

California child pornography statutes safeguard youngsters from being exploited in pornographic content, and the laws impose severe penalties on anybody found guilty of creating, owning, moving, selling, or sharing pornographic material featuring juveniles below 18 years.

According to California law, based on the particulars of the matter, an arrest for child pornography can lead to felony or misdemeanor charges. If you're convicted of this criminal act, you could spend up to 8 years in state prison and pay fines that could amount to $100,000 for a felony charge.

Sadly, the effects of a child pornography charge can last long after you've completed your term and could negatively impact practically every part of your life, including your work, family life, as well as reputation in your community. Don't hesitate to obtain qualified legal counsel if you've been detained in California for child pornography.

Misdemeanor and Felony Child Pornography

Child pornography crimes are among the most frequently accused of California sex crimes, and the prosecutors are fiercely driven to punish guilty perpetrators to the maximum extent permitted by the law.

Nevertheless, the majority of child pornography cases in California are wobblers, which means that, based on the particulars of the matter, the prosecutor could choose to prosecute the offender with either a felony or a misdemeanor.

The prosecution will take into account several variables, such as the form and seriousness of the crime, as well as the accused's previous history while determining whether to pursue a child pornography issue as a felony or misdemeanor.

There are several factors that, when present, could lead to felony charges. They include the following:

• The pornographic content is "obscene." According to California laws, "obscene" pornographic material is defined as having no significant artistic, political, literary, scientific, or political value and depicting sexual acts in a blatantly offensive manner (California PEN 311(a))
• The accused sought to expose pornographic content to a child below 18 years
• The accused made an effort to market the pornographic content commercially
• The offender has previously been found guilty of child pornography crimes

Jail/Prison Time and Fines

The maximum punishment for California child pornography convictions, if charged as a misdemeanor, is a year in jail as well as fines of up to $ 2,500. However, the potential punishments become much worse if the offense is charged as a felony. In California, a conviction for felony child pornography carries a prison term that can last anywhere between 16 months and 8 years, as well as fines that can be as much as $100,000. These criminal consequences could mount up fast if you're accused of multiple counts of possessing or distributing child pornography.

Sex Offender Registration

If you're found guilty of any child pornography crime, California law mandates that you register as a sex offender. This implies that if you're charged with a crime involving child pornography, you must register with the state as a sex offender and notify the local police officers of your status and whereabouts for several years, if not permanently.

Even the most minor sentence for having child pornographic content necessitates an obligatory registration as a sex offender under the “tier one” category for a period not less than ten years. Several other offenses of California PC 311 require a life-long registration as a sex offender under “tier three.” The state's sex offender registry is available to the public and anybody who searches the registry would see your case and conviction. This includes any prospective landlord or employer who runs a background check to assess your behavior.

However, a new rule that took effect in 2021 would enable tier one and two offenders who meet the obligatory minimum registration standards to appeal to the court to have their sex offender registration conditions terminated. This would also enable a defendant compelled to register as a tier three sex offender simply based on his/her threat level to request the court to have his or her registration requirements terminated after twenty years.

Consequences of Your Immigration Status

If you're found guilty of child pornography, you would face further negative consequences. This is in addition to spending time, hefty cash fines, and the need to enlist as a California sex offender. As per the  United States immigration statute, some sorts of convictions, particularly offenses of moral depravity, can result in a non-US citizen being repatriated or being designated as "inadmissible." If you're found guilty of California child porn, you would suffer the following detrimental immigration effects.

Firearm Restrictions

According to state statutes, a convicted defendant is not allowed to possess or own a firearm. Therefore, if you're charged with a child pornography crime and found guilty, you would lose your right to hold or own a firearm.

Defending Against Child Pornography Charges

An accused person can raise legal arguments to challenge child pornography allegations. Some of the common defenses you could use include the following:

• The Defendant Did Not Act Knowingly

A defendant is only guilty of California child pornography if he or she did it knowingly. Furthermore, "knowingly" necessitates that the prosecution establishes certain factors.

Therefore, a defendant charged with possessing child pornography could use the legal argument that he or she didn't act with an intention in mind. For instance, if you downloaded a picture without knowing it contained pornographic content involving minors, then you would not be guilty of the crime.

• The Material Did Not Contain Child Pornographic Content

The term "child pornography" has a defined legal meaning under California statutes. This implies that it's a valid defense for a defendant to establish that the content he/she owned or interacted with did not contain pornographic materials involving minors.

• Legitimate Objective

"Child pornography" excludes content with certain authorized objectives. This means that an accused cannot be convicted of an offense if he or she was participating in legitimate activities involving health, scientific research, or education.

• Entrapment

In several PC 311 cases, offenders are arrested when an undercover law enforcement officer sells another person porn by mail or online. However, any subsequent charges must be dropped if the police enticed the defendant to commit the offense. This act of “luring” is referred to as entrapment. It refers to the overbearing official action taken by the law enforcement authorities, such as intimidation, coercion, deception, flattery, or threats. Entrapment is an appropriate legal argument if the accused can prove that he or she only engaged in the offense due to the entrapment.

• Illegal Search and Seizure By Law Enforcers

According to the Fourth Amendment of the United States Constitution, individuals have the right to be protected from unwarranted "searches and seizures." If law enforcement officers gather evidence by an unjustified or unlawful search and seizure, that evidence could be dismissed from a court case. This implies that any criminal charges brought in the case would either be reduced or dropped. This could occur, for example, if law enforcement officers accessed an individual's computer with an invalid warrant or without a warrant.

Can Your Record Be Expunged?

Having child porn charges on your record can make life incredibly difficult. An expungement allows an accused to retract a no contest or guilty plea, plead guilty, and have the charges dismissed. On the other hand, if the accused was charged after pleading guilty, an expungement enables the judge to overturn the conviction.

If approved, an expungement frees an offender from the adverse implications of a conviction, effectively clearing the accused's record. Another benefit of getting a conviction expunged is that it doesn't need to be shared with your prospective employers. While others could be qualified for expungement if they finish their probation or term of incarceration, a majority of sex offense convictions that involve a minor, including California PEN 311 violations cannot be wiped.

Even if you're not eligible to receive an expungement as per California statutes, there could be other recourses for relief open to you after a child porn conviction. For example, you might be entitled to submit a Certificate of Rehabilitation petition as per PEN 4852. While this certificate does not erase the conviction from your record, it shows that you've reformed since your sentence.

Receiving a Certificate of Rehabilitation enables you to receive a California Governor's pardon. Although you have a rehabilitation certificate, child porn charges would still appear when someone carries out a background check on you. However, it would inform future employers, state licensing institutions, and any other person who conducts a background check that you're now an upstanding citizen.

Is Anime Considered as Child Pornography?

Possession of animated child porn is not an offense as long as no minors were involved in its creation.

California laws on child pornography are intended to protect children from exploitation. The provisions make it illegal to possess or produce anything that:

• Depicts sexual behavior that is either real or simulated
• By an individual who is under the age of 18

Animated children cannot be classified as humans under the age of 18 because they are not real people. Possession of animated child pornographic material is not illegal in California so long as no minors were involved. This also applies to anything that doesn't depict a real child, including cartoons, manga, comics, paintings, drawings, statues, and other art forms.

What If the Animated Pornographic Character Is Based on an Actual Child?

According to California law, it could be illegal to create animated pornographic characters using a real child's image. For example, if the depiction is of an actual minor and the minor posed for or was engaged in the structure's development, the producer of the animated pornographic content would have committed an offense. Under California law, a real child who becomes the focus of animated pornographic content could be able to press charges against the developer for breaching his or her privacy.

Offenses Related to Child Pornography

There are 3 sex crimes associated with California child pornography and child sexual abuse. These are:

• Lewd Acts With a Minor

It is a crime under California PC 288 to engage in an indecent act with a child or minors in general. A "lewd act" is defined as either physically touching a minor or inciting them to make physical contact with another person inappropriately for sexual pleasure. California PC 288 offense requires the actual touching or contact with a minor.

• Statutory Rape

It is a crime under California PC 261.5 to engage in sexual relations with someone under the age of 18. This violation, unlike most child pornography cases, involves sexual contact with a juvenile.

• Revenge Porn

According to California PC 647j4, revenge porn is defined as the crime of sharing private sexual photos of another person to cause emotional distress to that individual. Revenge porn could be perpetrated using photographs of either an adult or a minor.

Find a Child Pornography Defense Attorney Near Me

Overall, charges related to child pornography could have a destructive impact on your as well as your loved ones' lives. You will only have a single opportunity to put your best foot forward in your defense against allegations of child pornography. For this, you'll also need a team of devoted Los Angeles criminal defense attorneys on your side who will defend your rights and do everything to protect your freedom.

Do not hesitate to contact the Los Angeles Criminal Attorney for a free initial consultation. When you contact, be prepared to give the details of your case as well as any other information you believe may help secure the best possible outcome for your case. Call us today at 424-333-0943.