Child Pornography

Child pornography is a profoundly concerning crime involving the exploitation and abuse of minors. California’s pursuit of individuals involved in child pornography is driven by a strong commitment to protect children, prevent further victimization, and hold offenders accountable. The creation, distribution, and possession of child pornography contribute to the perpetuation of networks that exploit vulnerable individuals, necessitating an aggressive approach to enforcement.

Thus, accusations of child pornography are difficult. They carry a significant societal stigma, and law enforcement and prosecution are known to be relentless in their pursuit of a conviction. The state recognizes the gravity of these offenses and aims to deter potential offenders through stringent penalties.

Considering the potential consequences if convicted, it is crucial to have the assistance of an experienced attorney who can provide a strong defense and protect your rights throughout the legal process. At Michele Ferroni Pasadena Criminal Attorney Law Firm, we will ensure that your case is handled appropriately, help you navigate the complexities of the legal system, and work towards the best possible outcome for your situation.

Child Pornography Under California Law

Child pornography, as defined by Penal Code 311, includes any depiction of individuals under 18 engaged in a sexual act, shown in images, videos, data, computer files, or other forms of media. Child pornography laws address various offenses. Penal Code 311 outlines illicit activities related to materials depicting minors engaged in sexual conduct. Here is a look at the key provisions:

• Section 311.1 tackles the production of child pornography, encompassing acts of knowingly producing, directing, or participating in creating materials depicting minors in sexual conduct.
• Section 311.11 addresses the offense of possessing child pornography, targeting those who knowingly possess or control materials featuring minors engaged in sexual conduct. This pertains to physical and electronic possession, covering acts like storing or downloading child pornography.
• Sections 311.2 and 311.3 relate to the distribution and exhibition of child pornography. Both provisions make it illegal for individuals to knowingly distribute, exhibit, offer, or display materials showcasing children involved in sexual behavior. This prohibition extends to electronic and online sharing and other means of dissemination.
• Knowingly viewing or deliberately possessing child pornography constitutes an offense under Section 311.2. This provision addresses situations where possession could be temporary or fleeting. This ensures accountability regardless of the duration.
• Preventing the exploitation of minors in the production of pornographic material is addressed under Section 311.4. This law criminalizes knowingly hiring, employing, using, influencing, or coercing a minor to create child pornography. This provision holds individuals responsible for their involvement in such activities.

Additional sections 311.10 and 311.11 also focus on child pornography. Section 311.10 targets the advertisement of obscene child pornography for sale or distribution, aimed explicitly at those knowingly promoting or facilitating the dissemination of this material through various forms of advertising, including print media and electronic platforms.

Section 311.11 renders the knowing possession or control of child pornography an offense, irrespective of its physical or electronic format.

California law provides clear definitions for "a minor," "sexual conduct," and "material," underscoring the precise scope and application of these provisions.

1. Minors

In California, a "minor" is an individual who has not attained the age of 18. Therefore, anyone who has not yet celebrated their 18th birthday is considered a minor under the law.

2. Sexual Conduct

Sexual conduct is a broad term that involves a range of acts involving intimate or sexual contact. These acts include:

• Sexual intercourse — Involves the penetration of the genital or anal opening by a penis or any foreign object manipulated by another person, regardless of the extent of penetration.
• Oral copulation — Contact between the mouth or tongue of one person and the genitals or anus of another person.
• Anal intercourse — The anus of one person is penetrated by a penis or any foreign object manipulated by another person, regardless of the extent of penetration.
• Masturbation — The self-stimulation of an individual’s genitals for sexual pleasure.

3. Material

Material under child pornography laws describes various forms of media. This includes films, photographs, negatives or slides, videotapes, and computer-generated equipment.

• Films refer to motion pictures or videos captured on film or digital.
• Photographs include both printed and digital images obtained through photography.
• Negatives or slides are physical or digital photographic materials that can be used to create images.
• Videotapes cover recordings on magnetic tapes, digital video formats, or any other medium, enabling storage and playback of video content.
• Computer-generated equipment involves digital files, data, or any other media produced, stored, or transmitted using computer technology capable of depicting child pornography.

4. Obscene Content

Per California child pornography laws, an offense is only deemed to have occurred if the pornographic material involved is determined to be "obscene." The term "obscene" is defined by three criteria:

• Offensive portrayal or description of sexual conduct — The material must depict or describe sexual behavior in an offensive or inappropriate manner.
• Lack of serious value — A reasonable individual would conclude that the material lacks significant literary, political, artistic, or scientific value. This implies that it does not possess substantial merits in these areas.
• Appeal to prurient interest — The material should be intended to stimulate a prurient interest as determined by an average adult. "Prurient interest" refers to an unhealthy fascination or desire for sexual content, including nudity, sex, or excretion.

5. You Acted Knowingly

In a child pornography case, "acting knowingly" means that you had conscious awareness and comprehension of two critical elements:

• Awareness of the nature of the material — You must have known and understood that the material involved explicit sexual content and was unlawful. This includes recognizing that the material constitutes child pornography, which is illegal and morally reprehensible.
• Awareness of the involvement of individuals under the age of 18 in sexual conduct — You must have been aware that the material depicted individuals who were under the age of 18 engaged in sexual conduct. This knowledge demonstrates that you understood the age of the individuals depicted and the illegal nature of their participation in sexually explicit activities.

Fighting Child Pornography Charges

It is agreeable that allegations of child pornography will be consequential. The legal ramifications of a conviction are equally grave. The law requires prosecutors to prove their case beyond a reasonable doubt. Criminal defense attorneys use any of the following defenses to cast reasonable doubt on the case.

1. You Did Not Possess Child Pornography

The legal definition of child pornography addresses specific parameters, presenting an opportunity for the accused to mount a defense by showing that the material under scrutiny fails to satisfy the criteria necessary for classification as child pornography according to state law.

Criminal defense attorneys use the following strategies to challenge the prosecution's claim that the material qualifies as child pornography:

• Verification of age — Your attorney can assert that the Individuals depicted in the material were not minors. This can involve presenting evidence like expert testimony or any other document verifying or demonstrating that the individuals were of legal age when the material was produced.
• Absence of explicit sexual content — Criminal defense attorneys can argue that the material does not contain explicit sexual conduct involving minors. They can contend that the content is artistic, educational, or does not meet the legal definition of child pornography.
• Demonstration of a legal or non-exploitative context — The assertion aims to show that the material was created, possessed, or distributed within a legal or non-exploitative context. They can present evidence indicating that the material was produced with the consent and participation of individuals of legal age who willingly engaged in the production.

Each case is unique, and the defense strategy will depend on the specific circumstances and evidence involved.

Additionally, on the issue of age, defense attorneys could also raise inconsistencies or doubts regarding the age determination conducted by the prosecution. They can question the accuracy or reliability of the methods used to determine the age of the individuals depicted in the material. The approach asserts that the methods employed were flawed, subjective, or lacked scientific validity, casting doubt on the accuracy of the age determination. By highlighting these inconsistencies, the defense aims to weaken the prosecution's case and raise reasonable doubt regarding whether the individuals in the material were indeed minors.

2. Lack of Knowledge

Your attorney can also assert that you did not act knowingly. This defense challenges the element of knowledge or awareness on your part regarding the nature of the material and the involvement of individuals under 18 in sexual conduct. Here are some ways your attorney can present this defense:

• Unawareness of the explicit nature of the material — Your attorney could contend that you were unaware of the explicit sexual content or the unlawful nature of the material at hand. They will argue that you lacked knowledge and understanding that the material contained explicit sexual content and constituted child pornography.
• Ignorance of the presence of minors — This approach asserts that you were oblivious to the fact that the material depicts minors engaging in sexual conduct. Your attorney could argue that you did not know the ages of the individuals shown or the illegal nature of their involvement in sexually explicit activities.
• Insufficiency of evidence demonstrating knowledge — The strategy questions the adequacy of the prosecution's evidence in establishing that you possessed the requisite knowledge or awareness of the nature of the material and the involvement of minors. Your attorney could argue that the evidence presented falls short of proving beyond a reasonable doubt that you were aware of the explicit content or the ages of the individuals depicted.

3. You are an Entrapment Victim

The entrapment defense presents a viable legal strategy applicable to specific criminal cases, including those concerning child pornography. This defense asserts that you were induced or encouraged by law enforcement to commit the crime in question despite your potential non-involvement in this conduct.

This defense is successful if you satisfy specific requirements and standards. These include:

• Demonstrating government inducement — You must prove that law enforcement officers actively encouraged, persuaded, or induced them to commit the crime. This evidence should show the officers' tactics, including pressure, harassment, fraud, flattery, or threats.
• Establishing lack of predisposition — You must demonstrate that you were not predisposed or inclined to commit the crime before law enforcement involvement. You must show that you were unwilling or ready to engage in the illegal conduct independently and that your participation was solely due to the government's inducement.

The entrapment defense is assessed objectively. This means it is evaluated based on how an ordinary person would have responded to the government's inducement.

Additionally, the burden of proof rests with you. You must provide evidence to establish the elements of the entrapment defense by a preponderance of the evidence. This standard requires defendants to demonstrate that it is more likely than not that they were indeed entrapped.

If you successfully assert the entrapment defense, the courts could dismiss or acquit you of the crime.

4. Fourth Amendment Rights’ Violations

Despite the gravity of the charges, law enforcement officers should not violate an alleged suspect’s constitutional rights. If violated, the defendant can challenge the child pornographic charges based on the constitutional violations.

Challenging the legality of a search and seizure means contesting the admissibility of evidence obtained in violation of your Fourth Amendment rights. The Fourth Amendment safeguards individuals from unreasonable searches and seizures conducted by law enforcement. While using this defense, your attorney can assert the following:

• Absence of a valid search warrant — Your attorney can argue that the search or seizure occurred without a valid warrant. They could contend that law enforcement conducted the search without adequate probable cause or failed to obtain a warrant when required.
• Violation of a reasonable expectation of privacy — Your attorney could assert that the search or seizure infringed upon your reasonable expectation of privacy. He/she will argue that you had a legitimate expectation of privacy in the location or item searched, and law enforcement violated that expectation without lawful justification.
• Coercion or involuntariness of consent — This approach requires you to show that officers coerced you to search or seize evidence. However, you must demonstrate that law enforcement exerted undue pressure, made false assurances, or employed deceptive tactics to secure consent.
• Improper execution of a search warrant — If a search warrant was obtained, attorneys could challenge how the search was carried out. They can allege that law enforcement exceeded the warrant's scope, engaged in a general exploratory search, or violated specific limitations outlined in the warrant.

Successfully demonstrating a violation of your Fourth Amendment rights can lead to the exclusion of evidence obtained through an unlawful search or seizure. This exclusion can weaken the prosecution's case and potentially result in the dismissal or reduction of charges.

Penalties Upon Conviction for Child Pornography

Sentences for child pornography depend on the actual violation. You can face misdemeanor or felony penalties.

1. Possession of Child Pornography

For possession of child pornography, a violation of PC 311.11, you will face misdemeanor or felony penalties upon conviction.

A conviction on misdemeanor charges results in:

• Up to one year in jail and
• A maximum fine of $2,500.

A felony conviction is punishable by:

• A prison sentence for up to 3 years and
• A maximum fine of $10,000.

2. Distribution of Child Pornography

Like possession of child pornography, distribution of child pornography is a wobbler offense.

If you are convicted on misdemeanor charges, you could face:

• Up to one year in jail and
• A maximum of $2,000 in fines.

For a felony conviction, the penalties increase to:

• A maximum of 6 years in prison and
• A fine of up to $100,000.

Prosecutors can also charge you with the intent to distribute child pornography to a minor, a violation of (PC 311.2). A conviction on these charges could result in:

• Up to one year in jail and
• Up to $1,000 in fines.

A felony conviction for intent to distribute could result in:

• A maximum of 3 years in prison and
• Up to $10,000 in fines.

3. Producing, Sending, or Distributing Child Pornography

If you are convicted of producing, sending, or distributing child pornography for commercial gain, the violation is a felony punishable by:

• Up to 6 years in prison, and
• A fine not exceeding $100,000.

Sex Offender Registration

Additionally, a conviction for child pornography requires registration on the Sex Offender Registry, per Megan’s law.

Child pornography convictions require you to register for the rest of your life at your local police department. Registration should happen within five days of your birthday every year. Failure to which you can face criminal charges.

Failure to register is a violation of PC 290. Convictions could result in imprisonment.

Child Pornography and Immigration Consequences

Child pornography is a crime of moral turpitude. It can have significant immigration consequences. Committing a crime of moral turpitude is viewed as conduct that goes against the accepted standards of morality and decency in society.

In immigration law, these convictions can impact a non-citizen's immigration status in several ways. It can render a non-citizen inadmissible to the country. This will affect their ability to enter the country or access certain immigration benefits.

Additionally, it will result in deportation or removal proceedings, potentially leading to the non-citizen's forced removal from the country. Furthermore, eligibility for various immigration benefits, like naturalization, adjustment of status, or obtaining a visa, could be affected by a conviction for a crime of moral turpitude.

Impact of Convictions on Gun Rights

Penal Code 29800 makes it a crime for felons to handle guns. This means felons cannot own, purchase, receive, or possess firearms. Additionally, offenders with felony convictions cannot possess ammunition or attempt to acquire guns or ammunition.

The restrictions outlined under PC 29800 affect individuals convicted of felonies, certain misdemeanors, or specific weapons-related offenses. The law is not limited to a particular type of firearm. Therefore, a conviction on felony charges bars you from handling handguns and long guns.

Offenses Related to Child Pornography

1. Lewd Acts With a Minor

Penal Code Section 288 addresses the offense of lewd acts with a child. You violate this provision when you engage in lewd or lascivious conduct with a child under the age of 14, intending to arouse or satisfy sexual desires.

The prosecution must prove the following elements:

• Act of lewdness or lascivious conduct — You must have engaged in an act deemed lewd or lascivious. It involves various forms of behavior, including physical contact or sexually suggestive actions.
• Age of the victim — The victim of the lewd acts must be under 14. If the victim is 14 or older, different legal provisions apply to address the situation.
• Intent to arouse or gratify sexual desires — You must have possessed the specific intent to stimulate or fulfill your or another person's sexual desires through your actions.

PC 288 violations are felonies. Convictions result in felony penalties that include:

• A prison sentence of up to 8 years if the child was below 14 years and no force was used.
• A prison sentence of up to 10 years, if the child was below 14 years and forced, was used.
• Possible life imprisonment if the child sustained physical harm.
• Up to 3 years in prison if the minor was 14 or 15 and you are at least ten years older than the victim.

Contact an Experienced Criminal Defense Attorney Near Me

Being accused of child pornography has a significant impact on your life. You have to deal with the social backlash, the loss of job opportunities, and being turned down for most of the activities in your community.

The difficulty also extends to your case. Child pornography charges pose significant consequences if convicted. Besides the potential legal implications, you must deal with social ridicule and diminished opportunities in everyday life. You thus need the assistance of an experienced criminal defense attorney.

The Michele Ferroni Pasadena Criminal Attorney Law Firm will work to protect your rights throughout the process. Contact our offices at 626-628-0564 for more information.