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California Penal Code § (Section) 311 - Child Pornography

California Penal Code § (Section) 311.1(a) – Possession Of Child Pornography

California Penal Code §311.1(a)Possession Of Child Pornography – In California, Possession Of Child Pornography occurs when anyone causes an image or recording of a person under eighteen performing sexual acts to be brought into the state or made here. Child pornography cannot be shared, sold, or exhibited in California. Anyone who does knowing that a minor under eighteen is featured in sexual material violates the Penal Code.

CPC §311.1(a) is a “wobbler,”[1] offense, meaning that prosecutors can charge it either as a Felony or a Misdemeanor, depending upon the facts. If you're convicted of the Misdemeanor form of §311.1(a),  you could serve up to one year in a county jail and pay a fine of up to $1,000. If you're convicted of the Felony form, you could serve three years in state prison and pay a fine of up to $10,000. Courts can also punish using a combination of jail time and fines.

There are several subparts of §311. Here we'll focus on CPC §§311.1(a), 311.2(b), (c) and (d), 311.3(a), 311.4(a), (b) and (c), 311.10(a), and 311.11(a). 

What Does California Penal Code §311.1(a) (Possession Of Child Pornography) Prohibit?

 In sum, to be guilty of Possession Of Child Pornography under CPC §311.1(a), you must:

  • Send, cause to be sent, or make a sexual image or video recording of a person under eighteen; AND,
  • Share, exhibit, or exchange the material with, or sell or distribute it to, another person; AND,
  • Know that the material presents someone under the age of eighteen in a sexual situation.

Defining “Possession Of Child Pornography” Under California Penal Code §311.1(a)

To convict you under CPC §311.1(a), the prosecutor must prove the following beyond a reasonable doubt:                  

  • Sent, brought…/obscene[2] matter: [3]You[4] sent, brought, or caused obscene matter to be sent     or brought into the state; OR,
  • Possessed, prepared…/obscene matter: You possessed, prepared, published, produced, developed, duplicated, or printed obscene matter; AND,
  • Offered to distribute[5] obscene matter: You offered to distribute obscene matter to someone; OR,
  • Distributed, showed, exchanged obscene matter: You distributed or showed or exchanged obscene matter to (or with) someone else[6]; AND,
  • In California: The illegal material was in California; AND,
  • Knew About The Material: You knew the obscene (sexual) nature of material involved; [7] AND,
  • Knew A Minor Was Involved: You knew the material showed a person under the age of eighteen years personally participating in, or simulating,[8] sexual conduct.[9]

Note: Nudity doesn't make matter obscene. To be obscene, material must show sexual activity and meet the requirements for obscenity. A person who possesses obscene matter for his or her own personal use is not guilty of violating CPC §311.1(a). Material isn't considered obscene if the persons under eighteen in the material are legally emancipated or if the material only shows lawful conduct between spouses.[10]

Example: An adult California photographer, Defendant Darren, arranges for a photo shoot to be attended by an adolescent, fourteen-year-old Victim Veronica. Darren has Veronica pose in ways that she doesn't like, such as sitting on the ground with her legs open, and having Veronica do cartwheels while filming her crotch instead of her face. Veronica tells her parents after the session but they don't act on her complaint until they see a picture in which Veronica is lifting her dress to show her underwear to the camera.[11] The parents report Darren for violating CPC §311.1(a). Should Darren be convicted?

Conclusion: Darren, an adult, knowingly took photographs in California. He also knew that his model, Veronica, was an adolescent when he arranged the photo shoot. Since Darren's focus was on Veronica's body (specifically, the lower half), and since he posed her in ways that suggested adult sexuality, it would be likely said that his photographs violate contemporary statewide standards of decency;[12] filming adolescents' crotches for sexual appeal isn't considered acceptable in this state. Finally, since Darren would know the nature of his own photographs, he should be convicted of violating §311.1(a).  

Additionally, to convict you under CPC §311.2(b), Possession Of Child Pornography For Commercial Consideration, the prosecutor must prove the following beyond a reasonable doubt:                                                    

  • Sent, brought…/obscene matter: You sent, brought, caused obscene matter to be sent or brought into the state; OR,
  • Possessed, prepared…/obscene matter: You possessed, prepared, published, produced, developed, duplicated, or printed obscene matter; AND,
  • Offered to distribute obscene matter: You offered to distribute obscene matter to someone; OR,
  • Distributed, showed, exchanged obscene matter: You distributed or showed or exchanged obscene matter (to/with) someone else; AND,
  • For Commercial Consideration: You used the image in a way that would benefit you, even if the benefit wasn't financial;[13] AND,
  • In California: The illegal material was in California; AND,
  • Knew About The Material: When you acted, you knew the kind of material involved; AND,
  • Knew A Minor Was Involved: You knew the material showed a person under the age of eighteen years personally participating in, or simulating, sexual conduct.

Example: Defendant Dale, who owns an adult book store in Los Angeles, enters into a contract with an out-of-state seller to purchase a cartoon that depicts young children having sex with adults. He's going to sell the cartoon in his store. The video is delivered by an undercover police officer who received a tip about Dale's business. Dale accepts the order and signs for it, at which point he's arrested for importing child pornography for commercial purposes, a violation of §311.2(b). Should Dale be convicted?

Conclusion: Dale knowingly arranged for an out-of-state seller to send a film depicting young children having sex with adults into California. He knew what kind of material he was importing. He also did this for commercial purposes (that is, to sell the video in his adult bookstore). However, Dale never even offered to distribute the film to anyone else – and he imported a cartoon, not a video showing actual children engaged in sex acts. (This is not illegal under the law, since the statute forbids video depictions of minors “personally participating.”) Dale, therefore, should be acquitted of violating §311.2(b).    

To convict you under CPC §311.2(c), Possession Of Child Pornography With Intent To Distribute It To Someone Over Eighteen, the prosecutor must prove the following beyond a reasonable doubt: 

  • Sent, brought…/matter: You sent, brought, caused matter to be sent or brought into the state; OR,
  • Possessed, prepared…/matter: You possessed, prepared, published, produced, developed, duplicated, or printed matter; AND,
  • Offered to distribute matter: You offered to distribute matter to someone; OR,
  • Distributed, showed, exchanged matter: You distributed or showed or exchanged matter (to/with) someone else; AND,
  • Someone Eighteen Years Or Older: You agreed to the above with someone eighteen years of age or older;  AND,
  • In California: The illegal matter was in California; AND,
  • Knew About The Material: When you acted, you knew the kind of matter involved; AND,
  • Knew A Minor Was Involved: You knew the matter showed a person under the age of eighteen years personally participating in, or simulating, sexual conduct.

Note: Section 311.2(c) does not require that the prosecution prove you possessed “obscene” material.[14]    

Example:  Defendant Dominic runs an online forum dedicated to pornographic images. He begins a friendship with a man he meets in the forum. They agree to exchange images. Just before trading, Dominic, concerned that his friend might be a minor, asks the man to provide proof that he's eighteen. The friend provides a copy of his birth certificate to prove his age. Dominic sends him a picture. Later, Dominic finds that his site was being monitored. California law enforcement has decided that Dominic possessed material he traded with another adult in violation of §311.2(c). Should Dominic be convicted?

Conclusion: The act of trading the image occurred in the state. Dominic ensured that he was trading with an adult over the age of eighteen - someone covered by §311.2(c). It should also be obvious that Dominic knew the sexual nature of the image, considering the site he runs. Nonetheless, although Dominic entered into an agreement to exchange material with an online user, the facts don't indicate that Dominic knew a minor to be involved in the image he traded (or that a minor was involved at all). Dominic, therefore, shouldn't be convicted under CPC §311.2(c).         

To convict you under CPC §311.2(d), Possession Of Child Pornography With Intent To Distribute It To Someone Under Eighteen, the prosecutor must prove the following beyond a reasonable doubt: 

  • Sent, brought…/matter: You sent, brought, caused matter to be sent or brought into the state; OR,
  • Possessed, prepared…/matter: You possessed, prepared, published, produced, developed, duplicated, or printed matter; AND,
  • Offered to distribute matter: You offered to distribute matter to someone; OR,
  • Distributed, showed, exchanged matter: You distributed or showed or exchanged matter (to/with) someone else; AND,
  • Someone Eighteen Years Or Younger: You agreed to the above with someone eighteen years of age or younger; AND,
  • In California: The illegal matter was in California; AND,
  • Knew About The Material: When you acted, you knew the kind of material involved; AND,
  • Knew A Minor Was Involved: You knew the material showed a person under the age of eighteen years personally participating in, or simulating, sexual conduct.

Note: “It is not necessary to prove [...] that the matter is obscene in order to establish a violation of [this] subdivision.”[15]

Example: A thirty-year-old California man who lives beside a high school, Defendant Dontrelle, gets to know some of the fifteen- and sixteen-year-old students at lunch. He invites them to his house to see “hardcore porn” films he says they'll like. One afternoon the students cut class and go to his house to see the promised films. The students are chagrined to find that Dontrelle actually has no films and just tricked them because he wants someone to play video games with. They leave and report him to school authorities. Dontrelle is subsequently arrested for violating §311.2(d). Should Dontrelle be convicted?

Conclusion: Dontrelle, a California adult, made his offer to persons under the age of eighteen. However, Dontrelle actually possessed no adult material and made no arrangements for it to be brought into the state. Thus there couldn't have been material used featuring a minor and Dontrelle couldn't know the nature of any such material. Dontrelle, therefore, shouldn't be convicted of violating CPC §311.2(d).             

To convict you under CPC §311.3(a), Sexual Exploitation Of A Child, the prosecutor must prove the following beyond a reasonable doubt:

  • Developed, duplicated…/representation: You developed, duplicated, printed or exchanged data or an image representation; AND,
  • Knew The Kind Of Material: When you acted, you knew the kind of material involved; AND,
  • Knew A Minor Was Involved: You knew the material showed a person under the age of eighteen personally participating in sexual conduct.[16]

Note:  Section 311.3(a) doesn't apply to “an employee of a commercial film developer who is acting within the scope of his or her employment and in accordance with the instructions of his or her employer, provided that the employee has no financial interest in the commercial developer[,] […] [or] matter that is unsolicited and is received without knowledge or consent through a facility, system, or network over which the [employee] has no control.”[17]

Example:  Defendant Dion takes his nine-year-old daughter, Victim Vannie, to California on vacation. He loses a great deal of money at the Commerce Casino and can't pay it, so Dion decides to sell pictures of his daughter engaged in masturbation to a gambler who promises to pay Dion's debts if Dion will use his daughter in child pornography. Dion takes the pictures and gives them to the gambler, who pays Dion's debts. The gambler is later arrested and confesses to his arrangement with Dion. Dion is taken into custody before he leaves California and is charged with violating §311.3(a). Should Dion be convicted?

Conclusion: Dion exchanged images containing representations defined under the CPC as “sexual conduct” with the other gambler. (See CPC §311.3(b)(3).) The content of the images was clearly known to Dion, as the other gambler paid for pornographic images of young Vannie. Both the gambler and Dion would've known that Vannie was a minor, therefore. Finally, although Dion and Vannie are from out-of-state, since Dion committed the act in the state of California, he can be punished under the laws of this state. He should be convicted of under §311.3(a).

To convict you under CPC §311.4(a), Hiring Or Employing A Minor To Perform Sex Acts, the prosecutor must prove the following beyond a reasonable doubt:

  • Knew A Minor Was Involved: You knew, or reasonably should've known, that the person involved was a minor; AND,
  • Hired, Employed, Or Used The Minor: You hired, employed, or used the minor; AND,
  • To Commit Prohibited Acts: You got the minor to do, or assist in doing, any of the acts described in CPC §311.2.

Note: You can violate CPC §311.4(a) simply by getting another person to create child pornography.[18]

Example: An amateur pornographer, Defendant Deena, has her fifteen-year-old neighbor, Victim Vanya, deliver a package containing an adult film to the mailbox of an LA customer. Vanya doesn't know what's in the package. The customer – seeing young Vanya arrive and leave – becomes concerned and calls the police. Deena is later arrested for using Vanya in violation of §311.4(a). Should Deena be convicted?

Conclusion: Although Deena used a minor to deliver pornographic material to a customer, the facts do not state that the persons in the film were underage performers. This is essential because the acts in §311.2 are illegal only if there are people under eighteen in the material. Vanya, while she is a minor, only delivers the material. Deena didn't show her the film, trade it, or sell it to her. Therefore, Deena didn't commit any of the acts prohibited by the law. Deena shouldn't be convicted under CPC §311.4(a).        

To convict you under CPC §311.4(b), Using A Minor To Engage In/Produce Child Pornography For Commercial Purposes, the prosecutor must prove the following beyond a reasonable doubt:

  • Knew A Minor Was Involved: You knew or reasonably should've known that a person under eighteen was involved;[19] AND,
  • Promote, employ, use, persuade, induce, or coerce: You promoted, employed, used, persuaded, induced, or coerced the minor or a parent or guardian of the minor; AND,
  • Engage In Or Assist/Posing: You got another to engage in or assist others engaging in posing or modeling alone, or with others; AND,
  • To Prepare A Representation: You intended on preparing a representation of information, data, or an image; AND,
  • Involving Sexual Conduct: The representation involved a minor, alone or with other persons or animals, engaged in sexual conduct; AND,
  • For Commercial Purposes: You created the representation for commercial purposes.[20]

Example:  Victim Victor, eight years old, has an uncle, Defendant Derek, who asks Victor's parents to allow him to babysit Victor. He gives them gifts and presents money to Victor every time he sees the boy. Victor's parents eventually consent, allowing Derek to babysit Victor one night, which is when Derek decides to persuade Victor to pose nude for pictures by giving Victor candy. Victor's parents find out and report Derek, who's arrested for violating §311.4(b). Should Derek be convicted of the crime?  

Conclusion: Derek, who knew he was dealing with his minor nephew, persuaded Victor's parents to leave Victor with Derek and gave money and candy to Victor to convince him to trust Derek and take pictures with him. He also got Victor to pose for him, apparently intending on creating an image (representation) that's punishable because it involved nudity, a form of “sexual conduct” as defined under CPC §311.4(b).[21] The only element missing is a commercial purpose. Since the pictures weren't taken for sale, trade, or creation of a right or benefit for Derek, he shouldn't be convicted under CPC §311.4(b), although the other elements are present.[22]   

To convict you under CPC §311.4(c), Using A Minor To Engage In Or Produce Child Pornography For Non-Commercial Purposes, the prosecutor must prove the following beyond a reasonable doubt:

  • Knew A Minor Was Involved: You knew or reasonably should've known that a person involved was under eighteen; AND,
  • Promote, employ, use, persuade, induce, or coerce: You promoted, employed, used, persuaded, induced, or coerced the minor or a parent or guardian of the minor; AND,
  • Engage In Or Assist/Posing: You got another to engage in or assist others engaging in posing or modeling alone, or with others; AND,
  • To Prepare A Representation: You intended on preparing a representation of information, data, or an image; AND,
  • Involving Sexual Conduct: The representation involved a minor under eighteen alone or with other persons or animals.

Example: Defendant Denise participates in a child pornography ring. She has gotten several children to appear in films. Her sister's son, seven-year-old Victim Vern, comes to stay with Denise for a few weeks after she convinces her sister to leave her son with Denise while the sister goes on vacation. Denise intends on entertaining the boy in the meantime. However, a last-minute demand from a buyer causes Denise to coerce Vern into making a film in which he simulates sex with an animal. Vern's mother finds out and reports Denise, who's arrested for violating §311.4(c). Should Denise be convicted of the crime?    

Conclusion: Denise coerced Vern to pose nude and simulate sex with an animal, which is sexual conduct involving a seven-year-old minor. The purpose was preparation of images (representation of the sexual conduct). All of this was done, of course, knowingly. Since there's no need to prove even a commercial purpose under CPC §311.4(c), Denise should be convicted of the charge.[23]     

To convict you under CPC §311.10(a), Advertising Child Pornography For Sale Or Distribution, the prosecutor must prove the following beyond a reasonable doubt:

  • For Sale Or Distribution: You advertised material for sale or distribution; AND,
  • Obscene Material: The material you advertised was obscene; AND,
  • Knew A Minor Was Depicted: You knew that the material depicted a minor person under the age of eighteen years; AND,
  • Sexual Conduct: The minor was engaging in or personally simulating sexual conduct (as defined in CPC §311.4).

Example: Defendant Diego operates a small newspaper that he circulates to independent filmmakers. He's been having financial troubles and decides that he must take advertising dollars from pornographic film companies, something he hasn't wanted to do up to that point. A company pays him and places an advertisement for a film that it says features “a very young girl doing it.” Later, Diego, who doesn't see the film (and dislikes pornography), learns that the film featured an un-emancipated performer under eighteen having sex. Diego is arrested and charged with violating §311.10(a). Should he be convicted?

Conclusion: The film Diego's newspaper advertised featured a minor having sex - which, of course, would qualify as “sexual conduct.” The material might well be described as “obscene” in that most communities wouldn't consider underage performers having sex to have redeeming value. The ad was placed in Diego's paper, as noted already. However, there's no reason to assume that Diego knew how old the minor in the advertised film was; he couldn't have known unless he saw the film or was told about it by the filmmakers. The facts don't say that Diego even wanted to see the picture or had any significant contact with the people who made the film. Diego shouldn't be convicted under §311.10(a).  

To convict you under CPC §311.11(a), Possession Or Control Of Child Pornography Produced Using Someone Under Eighteen, the prosecutor must prove the following beyond a reasonable doubt:

  • Knowingly Possess Or Control Matter/Representation: You knowingly possessed or controlled matter, a representation of information, data, or images; AND,
  • Person Under The Age Of Eighteen: The matter contains or incorporates any film or filmstrip involving a person under eighteen years of age; AND,
  • Knew The Age Of The Minor: You knew that the matter depicted a person under eighteen years of age; AND,
  • Sexual Conduct: The representation involved a minor personally engaging in, or simulating, sexual conduct (as defined in subdivision (d) of Section 311.4).

Note: “It is not necessary to prove that the matter is obscene in order to establish a violation of” CPC §311.11(a).[24]  

Example: An Internet user, Defendant Donnie, agrees to trade nude images with a man who lives in Europe. He has never met the man but he believes the man has sexually graphic images of adults. Donnie trades with the man and keeps the material he gets on his computer hard drive. Later, Donnie is arrested when his IP address is linked to his home. The police tell him that the man in Europe sent him images of a fifteen-year-old minor having sex. Donnie insists he never knew and wouldn't have traded for the images if had. Donnie is charged with violating §311.11(a). Should he be convicted of the crime?

Conclusion: Donnie knowingly possessed images of sexual conduct. He also knew that he possessed the images on his computer hard drive. The material actually featured a minor under eighteen. However, Donnie did not seek images of a minor, as the facts state; he thought he was getting images of adults. Therefore, since there's reasonable doubt regarding whether Donnie knew that he had images depicting a minor under eighteen, Donnie should be acquitted of violating CPC §311.11(a).

Penalties Under §311 Of The California Penal Code

CPC §311.1(a)

CPC §311.1(a) is a “wobbler” offense in this state, meaning that it can be charged as Misdemeanor or a Felony, depending on the facts of the case. If your case is prosecuted as a Misdemeanor, you can be sent to a county jail for up to one (1) year and be fined up to $1,000 (one-thousand dollars). If you're charged with Felony Possession Of Child Pornography, you can spend up to three (3) years in a state prison[25] and be fined up to $10,000 (ten-thousand dollars).[26] You can receive a combination of jail time and a fine for both forms.

CPC §311.2(b), 311.2(c), 311.2(d)

CPC §311.2(b) is a Felony. If convicted, you could spend up to six (6) years in state prison and face a fine of up to $100,000 (one-hundred-thousand dollars), or both.[27]

CPC §311.2(c) is a “wobbler.” Conviction of the Misdemeanor form can result in one (1) year in a county jail and/or a fine of up to $2,000 (two-thousand dollars). The Felony form can produce a sentence of up to three (3) years in state prison[28] and a fine of up to $10,000 (ten-thousand dollars) or both a fine and imprisonment.[29] Any violation of Section (c) occurring more than once will be treated as a Felony. 

CPC §311.2(d) is a Felony that could yield three (3) years in a state prison[30] and a fine of up to $10,000 (ten-thousand dollars).[31]

CPC §311.3(a)

CPC §311.3(a) is a Misdemeanor on its first occurrence. You can receive a sentence of up to one (1) year in a county jail, a fine of up to $2,000 (two-thousand dollars), or both imprisonment and a fine. Subsequent convictions under Section (a) could result in a sentence of up to three (3) years in a state prison,[32] a fine of up to $10,000 (ten-thousand dollars),[33] or both a fine and imprisonment.

CPC §311.4(a), 311.4(b), 311.4(c)

CPC §311.4(a) is a “wobbler.” The Misdemeanor form of Section (a) can produce a sentence of one (1) year in a county jail and/or a fine of up to $1,000 (one-thousand dollars),[34] while the Felony form can result in three (3) years in a state prison and a fine of up to $10,000 (ten-thousand dollars),[35] or both a fine and imprisonment. Subsequent convictions will be treated a felonies, allowing for three (3) years in a state prison[36] and a fine of up to $50,000 (fifty-thousand dollars), or both a fine and imprisonment.[37]

Sections (b) and (c) create Felony crimes, with §311.4(b) being punishable by up to eight (8) years in a state prison[38] and a fine of up to $10,000 (ten-thousand dollars),[39] while CPC §311.4(c) can produce a sentence of three (3) years in state prison and a fine of up to $10,000 (ten-thousand dollars),[40] or both a fine and imprisonment. In any case, should the victim be under fourteen years at the time of the crime, you can be sentenced to an additional six (6) years in state prison.[41] 

CPC §311.10(a)

CPC §311.10(a) is another “wobbler.” If you're convicted of the Misdemeanor form of the crime, you face up to one (1) year in county jail[42] and a fine of up to $1,000 (one-thousand dollars), or both a fine and imprisonment.[43] The Felony form can result in a sentence of up to four (4) years in a state prison and a fine of up to $50,000 (fifty-thousand dollars).[44]      

CPC §311.11(a)

CPC §311.11(a) can be punished with one (1) year in a county jail or three (3) years in a county jail and a fine of up to $2,500 (two-thousand five-hundred dollars).[45] However, these penalties apply only to first time offenses; subsequent convictions can be punished with up to six (6) years in a state prison[46] and a fine of up to $10,000 (ten-thousand dollars), or by both imprisonment and a fine.[47] 

CPC §311.11 allows for aggravation of sentences based on additional facts. You will be charged with a Felony if one of a number of facts exist in your case.[48] If any one of these additional facts exist, you can serve up to five (5) years in a state prison[49] and pay a fine of up to $10,000 (ten-thousand dollars)[50] for a first conviction under CPC §311.11(a).

Sex Offender Registration & “Megan's Law”

Every person convicted of Child Pornography-related charges in California will be required to register as a sex offender. Current California law (the Sex Offender Registration Act, CPC §290) requires that all persons convicted under the Code sections described above must register with the state as sex offenders. Child pornography convictions require lifetime registration. However, California Senate Bill (SB) 384, Ch. 541, changes this in 2021. After 2021, the Sex Offender Registry will be broken into three tiers. Tier 1 will require registration for a minimum of ten years, while Tier 2 will require twenty, and Tier 3 will require lifetime registration. Child pornography convictions will be Tier 1 or Tier 3 offenses. Misdemeanor convictions will allow ten-year registration; all others will require lifetime registration.

Under “Megan's Law,” sex offenders must register with a database and notify their local communities of living in their areas. The state created a web page to summarize the obligations of persons convicted of sex offenses. The “California Megan's Law Website” describes the process for notifying a convicted person of the duty to register with the state, the time allowed for registration based on the date of release into the community (five days), the obligation to update information on a regular basis, the ways in which a registrant's information is presented to the public (using ZIP codes, counties, cities, and, in some cases, home addresses) and the right some offenders have to be excluded from public disclosure of their private information, as there's a rule that permits those convicted of possession of some kinds of illegal pornography to apply to have their personal information excluded from public disclosure.[51] 

Note: Failure To Register As A Sex Offender (CPC §290.018) is a crime punishable with at least one (1) year in a county jail[52] and/or a fine of up to $1,000 (one-thousand dollars).[53]

Defenses To Possession Of Child Pornography Under CPC §311.1(a)

The six basic defenses to a conviction under California's Penal Code §311.1(a) are:

You Were Entrapped

Example: Defendant Danny has been arrested for possession of child pornography and has registered as a Sex Offender. He moves into a new community and local police become aware of his presence. They decide to arrest him again. First they try to contact him over the Internet using false identities to offer to sell him child pornography but he refuses. Then they try to call him but he hangs up as soon as they say “pornography.” Finally they decide to mail Danny samples of actual child pornography as well as a contact number to order more. Danny, in a moment of weakness, calls the number and places an order. The police respond and arrest him for violating CPC §311.1(a). Should Danny be convicted of the charge?

Conclusion: While Danny did knowingly order child pornography that would've been sent into the state, Danny was the victim of unlawful Entrapment. Law enforcement tried numerous times to induce him to order illegal pornography and then went as far as sending it to him. When law enforcement uses tactics like “badgering[ ] […] [ ] [or] repeated and insistent requests”[54] to convince a person to commit a crime, law enforcement creates a defense to conviction. If it's properly pleaded, a defendant should be acquitted. Danny, therefore, shouldn't be convicted because he was the victim of police Entrapment.

You Didn't Have The Intent To Violate The Law

Example: Defendant Danica is arrested for causing child pornography she ordered to be sent into the state of California. She admits that she ordered it (and, though she didn't know it, that the material featured a minor younger than eighteen engaged in sex acts), that she offered to show it to another person, and she even admits that the material could be considered “obscene.” But Danica insists that she didn't know it was illegal to cause child pornography to be sent into the state for exhibition. She says that she shouldn't be convicted of violating §311.1(a) because she didn't intend on breaking any laws. Should Danica be convicted?

Conclusion: Danica believes that because she was incorrect about the facts surrounding her act (i.e., that it was actually illegal to cause the material to be sent into the state), she shouldn't be convicted of the crime. But ignorance of the law, as we've all heard, is no excuse. The only knowledge Danica had to have to violate the law was that a minor was in the filmknowledge which she didn't have. This means that Danica didn't intend on something required for conviction under the statute, an element required for conviction. Any time the prosecution can't prove an element of a crime, the judge or jury must find in the defendant's favor. Therefore, though the other elements of the crime are present, Danica shouldn't be convicted under CPC §311.1(a).

You Were The Victim Of An Illegal Search Or Seizure

Example: A motorist, Defendant Dain, is pulled over by a police officer. The officer has Dain step out of the car and informs Dain that he's been pulled over for speeding. The officer writes Dain a ticket. Dain is about to get into his car and leave when the officer asks Dain if the officer can look in Dain's trunk. Dain very politely declines, explaining that he must get to work. But the officer ignores Dain's reply and opens the trunk, where he finds a box of material he concludes is child pornography that Dain is trying to import for distribution or exhibition. The officer arrests Dain and charges him with violating CPC §311.1(a). Should Dain be convicted?

Conclusion: Dain was the victim of an illegal search. The Fourth Amendment creates a reasonable expectation of privacy in spaces like the trunks of vehicles absent articulable facts suggesting probable cause to search, or a warrant, or simply giving consent to police to look.[55] Dain was asked for consent to look in his trunk, which suggests the officer didn't have probable cause to open the trunk. The officer also didn't have a warrant. Thus Dain had the right to turn the officer away, as the officer had no right to look in Dain's trunk. All evidence the officer found in the trunk should, therefore, be excluded from trial. (This kind of evidence would be called “fruit of the poisonous tree.”) Since there should be no admissible evidence at Dain's trial owing to the illegal trunk search, Dain shouldn't be convicted under §311.1(a).

You Were Falsely Accused

Example:  Defendant Daisy is getting a divorce from her husband. It's going very poorly. The spouses accuse each other of all kinds of bad behavior. The fight reaches its zenith when Daisy's husband accuses Daisy of forcing their daughter, Victim Veronica, to participate in pornographic films that he says Daisy offers to sell online for profit. Daisy, who has no such intentions and has never abused Veronica in any way, is arrested and charged with violating CPC §311.1(a). Should Daisy by convicted of the charge?   

Conclusion: Daisy has done nothing that qualifies as an element of CPC §311.1(a). The only reason she was arrested was a completely false accusation made by her estranged husband. Since the prosecution can't prove even one element of the charge made by Daisy's husband (and since, as the facts tell us, Daisy never abused Veronica in any way), Daisy should be acquitted of violating CPC §311.1(a).  

The Performer In The Pornography Wasn't A Minor

Example: Defendant Dagwood orders a video he finds online. The video advertises “young schoolgirls stripping for your pleasure.” An image on the cover shows a woman wearing a Catholic school uniform as she hangs from a brass pole. Dagwood, who knows the performer did some adult films when she was under eighteen, is sure that the dancer was an adult over eighteen years when she did the film he wants to order. Dagwood orders the video. When it's delivered he's shocked to be arrested for violating CPC §311.1(a). Should Dagwood be convicted?

Conclusion: As the facts state, Dagwood knows the performer in the video he ordered is in fact an adult. This is something Dagwood could plead and prove in a trial. Furthermore, while the performer did underage adult films, the one Dagwood ordered is not included. Yet Dagwood is being prosecuted for knowingly causing an obscene video in which a minor under eighteen is a performer to be imported for exhibition. Thus an element of the offense (the performer being underage) can't be established by the prosecution. Any time this happens, a judge or a jury must find in the defendant's favor in this country. Since the performer in the video wasn't a minor, Dagwood should be acquitted under §311.1(a).       

You Have A Psychological Addiction

Example: Defendant Dallas is arrested and tried for possession of child pornography in violation of CPC §311.1(a). Dallas's lawyer arranges for him to be interviewed by a psychiatrist who gives Dallas several psychological evaluations. The psychiatrist is called as a witness at Dallas's trial. He testifies that Dallas has an addiction to pornography that makes him incapable of resisting his desire to possess illegal material. The psychiatrist believes Dallas needs mental help, not a term in prison, but the prosecution believes Dallas knew exactly what he was doing and wants him jailed. If Dallas is addicted to illegal pornography, should he be convicted?

Conclusion: California law permits a defense for sex addicts. The defense requires the support of a mental health professional's evaluation and testimony. Should the defense prove successful, charges related to possession of illegal pornography shouldn't result in jail time because the accused can't make rational choices. Dallas could argue that he has an addiction to pornography. He has the support of a psychiatrist who will testify that this is true. Dallas, therefore, could be required to get professional help instead of serving time in prison. If Dallas can establish he has a psychological addiction to pornography, he shouldn't be convicted of the charge, since his addiction would severely limit his ability to make free and independent choices.

Related Offenses

Note: The crimes below are described as “related” because they're frequently charged together and/or have common elements that the prosecutor must prove beyond a reasonable doubt.

The California Penal Code contains several offenses related to Possession Of Child Pornography: Lewd Conduct With A Minor (§288), Statutory Rape (§261.5), Contributing To The Delinquency Of A Minor (§272), Human Trafficking (§236.1), and Creating/Distributing “Revenge Porn” (§647(j)(4)).

Lewd Conduct With A Minor

The crime of Lewd Conduct With A Minor (CPC §288) occurs when an adult engages in a sex act with a minor under fourteen (Section (a)) or a minor who's fourteen or fifteen and a minimum of ten years younger than the adult (Section (c)). Section 288 is written to so that prosecutors can charge differently, depending on the ages of the victim and defendant,[56] so Lewd Conduct With a Minor is a “wobbler” in California. The crime is related to Possession Of Child Pornography because both offenses can involve sexual conduct between adults and minor children, resulting in charges for both crimes in the same trial.

If you're convicted of Lewd Conduct With A Minor Under Fourteen (a Felony), the penalty may be:

  • A term in the state prison of three (3), six (6), or eight (8) years;[57] OR,
  • A fine of up to $10,000 (ten-thousand) dollars;[58] OR,
  • Both a fine and imprisonment.[59]

Note: Section 288 also requires some kind of touching “with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of [the adult] or the child” for the law to be broken - but actual arousal isn't required. Additionally, it is not a defense that the minor consented to the act.[60]

More information can be found in the Sex Offense Lawyer section of the Kann California Defense Group's website. If you have questions, contact any of the Kann Defense Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your call will always go directly to a lawyer – and we guarantee it.

California Criminal Jury Instructions – Lewd Conduct With A Minor
To convict you under §288(a), the prosecutor must prove the following beyond a reasonable doubt:

You willfully touched a part of a child's body on the bare skin or through the clothing OR you got a child to touch your body, the child's own body, or someone else's body on bare skin or through the clothing. The prosecutor must also show that you acted intending to gratify your sexual desires or the desire of the child. Finally, the prosecutor must prove the child was under the age of 14 at the time of the act.

Example: Defendant Damek coaches a Little League team. One night he keeps the team late for batting practice. Victim Vareck, a nine-year-old boy, is the last player to leave. When Vareck's mother arrives to pick him up, she finds Damek leaning over Vareck and touching the boy's arms inside the batting cage. She accuses Damek of groping and molesting her son. Damek explains that he was just helping Vareck to hold the bat properly but he's arrested for violating §288(a) nonetheless. Should Damek be convicted?

Conclusion: Damek touched Vareck's arms as the pair stood in the batting cage. Vareck, as the facts state, is only nine years of age. Damek, we can assume, intended on touching Vareck in the batting cage. But the prosecution must prove that Damek touched Vareck to “gratify his sexual desires,” since Vareck, we can assume, wasn't seeking sexual gratification from Damek, given his tender age. Since the facts say nothing about Damek acting to gratify his own desires, Damek should be acquitted of violating §288(a).          

Statutory Rape

Statutory Rape (CPC §261.5) occurs in California whenever an adult has “[u]nlawful sexual intercourse[61] […] with a [minor] who is not the spouse of the perpetrator[.]”[62] For purposes of the law, “adult” means a person eighteen years of age or older, while a “minor” is under eighteen.[63] Section 261.5 is written to so that prosecutors can charge differently, depending on the ages of the victim and defendant.[64] This makes Statutory Rape a “wobbler” crime. However, without aggravating facts, you won't be required to register as a Sex Offender for violating §261.5.[65]

The crime of Statutory Rape is related to Possession Of Child Pornography because both offenses may involve sex acts between adults and minor children, resulting in charges for both in the same trial.

If you're convicted of the Statutory Rape Of A Minor Within Three Years Of Your Age (CPC §261.5,(b)), a Misdemeanor, the penalty may be:

  • Imprisonment in a county jail for up to one (1) year;[66] OR,
  • A fine of up to $1,000 (one-thousand dollars);[67] OR,
  • Both imprisonment and a fine.[68]

Note:  The minor's consent is not a defense to a charge of violating §261.5.[69] However, it is a defense that you reasonably believed the other person was eighteen or older. The prosecutor must prove that you didn't reasonably (and actually) believe the other person was at least eighteen.[70]

More information can be found in the Statutory Rape Lawyer section of the Kann California Defense Group's website. If you have questions, contact any of the Kann Defense Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. We guarantee that your call will go directly to a lawyer.

California Criminal Jury Instructions – Statutory Rape

To convict you under §261.5(b), Statutory Rape Of A Minor Within Three Years Of Your Age, the prosecutor must prove the following beyond a reasonable doubt:

You had sex with another person. You and the other person were not married to each other at the time. Finally, at the time of the sex, the other person was under the age of 18 but not more than three years younger or older than you are.

Example: Defendant Dalilah is a nineteen year-old college student. One afternoon she meets a young man, Victim Valery, as he's about to enter a classroom. The two get to know each other, talk about their classes and what they think of college, and soon they begin to date. After a few weeks they have sex. A few days later a police officer arrests Dalilah for having sex in violation of §261.5. Dalilah had no idea that Valery was actually seventeen when they slept together. Should Dalilah be convicted of the charge?

Conclusion: Dalilah had sex with Valery, who was under eighteen when he was with nineteen year-old Dalilah. She wasn't Valery's wife. These are elements of the crime. However, the prosecution must prove that Dalilah didn't actually and reasonably know that Valery was under eighteen. Since she met Valery on a college campus while he was on his way into a class and then talked about college with him, Dalilah could argue that she had no reason to believe Valery wasn't at least eighteen years of age. This would create reasonable doubt regarding her guilt. In this nation, reasonable doubt is to be resolved in the defendant's favor in a criminal trial. Dalilah, therefore, shouldn't be convicted of violating §261.5.

Contributing To The Delinquency Of A Minor

Contributing To The Delinquency Of A Minor (CPC §272(a)(1)) occurs whenever anyone “commits any act or omits the performance of any duty” which “causes or tends to cause or encourage any person under the age of 18 years” to “fail or refuse to conform to a lawful order of the juvenile court, or to […] perform any act or [ ] follow any course of conduct […] as would cause” the person to remain under the jurisdiction of courts applying certain provisions of the California Welfare and Institutions Code.[71] The crime is a Misdemeanor related to Possession Of Child Pornography because both offenses can involve sexual abuse of minors, resulting in charges for both crimes in the same trial.    

If you're convicted of violating CPC §272(a)(1), the penalty may be:           

  • A term of up to one (1) year in county jail; OR,
  • A fine of up to $2,5000 (two-thousand five-hundred dollars); OR,
  • Both imprisonment and a fine.[72]

Note: A person convicted under this Section may receive Probation (which allows at least part of his or her sentence to be served outside jail) for up to five years.[73] However, to be convicted under §272, you must either act with general criminal intent[74] or criminal negligence.[75]

More information can be found on the Kann California Defense Group's website. If you have questions, contact any of the Kann Defense Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Remember - we guarantee that your call will go directly to a lawyer.

California Criminal Jury Instructions – Contributing To The Delinquency Of A Minor

To convict you under CPC §272(a)(1), the prosecution must prove the following beyond a reasonable doubt:

You did something or failed to perform a duty. As a result, you caused, encouraged, or contributed to causing or encouraging a minor to become (or continue to be) a child of the juvenile court, OR you got a minor through act, failure to act, threat, command, or persuasion to refuse a lawful order of the juvenile court OR do something that would tend to cause the minor to become (or remain) a child of the court.

Example: Defendant Dylan's best friend, Victim Vaughn, is a sixteen-year-old. While Dylan is eighteen, and a high school graduate, Vaughn isn't yet out of school. One day, Dylan invites Vaughn to go motor biking with him. Vaughn, knowing that he's been ordered to attend a juvenile court hearing that day because of vandalism he committed prior, declines. Dylan tells Vaughn to “blow off court.” He offers Vaughn $50 and offers to pay Vaughn's riding fees if Vaughn goes with him. Vaughn agrees. Later, after Vaughn is arrested by order of the court, he tells the police that Dylan convinced him not to attend the hearing. Dylan is then arrested and charged with violating CPC §272(a)(1). Should Dylan be convicted?

Conclusion: Dylan did two specific things (offering to give Vaughn money and pay his riding fees). The result of these acts was Vaughn's decision to ignore a hearing regarding Criminal Mischief (vandalism). The hearing and Vaughn's attendance would, therefore, constitute lawful orders. The obvious effect of Vaughn's decision would be Vaughn remaining under the jurisdiction of the juvenile court responsible for Vaughn's vandalism, since failing to attend would require that the court continue scheduling matters related to Vaughn's case (which could aggravate Vaughn's trouble). Dylan, therefore, having induced a minor to ignore a lawful order of the juvenile courts, should be convicted of violating CPC §272(a)(1).     

Human Trafficking (Of Minors)

The crime of Human Trafficking (CPC §236.1(c)) occurs whenever anyone “causes, induces, or persuades, or attempts to cause, induce, or persuade [… ] a minor […] to engage in a commercial sex act” in violation of statutes including CPC §311.1(a).[76] This form of Human Trafficking is related to Possession Of Child Pornography because both crimes can involve compelled sexual abuse of minor children, resulting in charges for both offenses in the same trial. 

If you're convicted of violating §236.1(c), Human Trafficking (Of Minors), a Felony, the penalty may be:

  • A term of life imprisonment in the state prison;[77] AND,
  • A fine of up to $500,000 (five-hundred-thousand dollars).[78]

Note: When a jury or judge decides whether you deprived another person of personal liberty or violated that person's personal liberty, the jury or judge must consider all of the circumstances, including the age of the other person, his or her relationship to you, and the other person's handicap or disability, if any.[79]

More information can be found in the False Imprisonment section of the Kann California Defense Group's website. If you have questions, contact any of the Kann Defense Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. We guarantee that your call will go directly to a lawyer.

California Criminal Jury Instructions – Human Trafficking (Of Minors)

To convict you under CPC §236.1(c), the prosecution must prove the following beyond a reasonable doubt:

You caused, induced, persuaded, or attempted to cause, induce, or persuade, a minor at the time to engage in a commercial sex act, with the intent to effect or maintain a violation of one of the Code sections covered by the statute (e.g., CPC §311.1(a)).

Example: Defendant Danilo is a “coyote,” meaning that he illegally smuggles people from Cuba into the United States. One of his clients, Victim Valentino, arrives in California with Danilo after being signed to play minor league baseball for an American team. But Valentino finds that Danilo won't let him out of his motel room unless Valentino pays Danilo one-half of his contract money.[80] Danilo brandishes a gun and threatens to kill Valentino's family if the money isn't paid. Police later track down Valentino and arrest Danilo for violating CPC §236.1(b). Should Danilo be convicted of the accusation?

Conclusion: Danilo confined Valentino in a motel room using threats of violence against Valentino and his family. He did so to commit a felony (Kidnapping For Ransom, a violation of CPC §209(a)). However, CPC §236.1(b) is very specific about the forms of Felony covered by the statute.[81] While Danilo clearly committed at least one illegal act,[82] Kidnapping is not criminalized under §236.1(b) - and the facts don't suggest that Valentino is a minor (under eighteen), only that he'll play in the minor leagues. Therefore, though he can be punished under another Code section, Danilo shouldn't be convicted under §236.1(b).    

Creating/Distributing ‘Revenge Porn'

Revenge porn' is illegal under CPC §647(j)(4). The crime occurs whenever anyone “intentionally distributes[83] [an] image of [an] intimate body part[84]… of another identifiable person, or an image of [a] person depicted engaged in… sexual intercourse, sodomy, oral copulation, sexual penetration, or an image of masturbation… under circumstances in which the persons [involved] agree… that the image shall remain private, the person distributing the image knows or should know that distribution of the image will cause serious emotional distress, and the person depicted suffers [ ] distress.”[85] The crime is related to Possession Of Child Pornography because both involve distributing sexually explicit images, which could result in charges of both being filed in the same trial.

If you're convicted under §647(j)(4), a Misdemeanor, the penalty may be:

  • A term of up to one (1) year in a county jail;[86] OR,
  • A fine of up to $1,000 (one-thousand dollars);[87] OR,
  • Both a fine and imprisonment.[88]

Note: You will not violate CPC §647(j)(4) if you distribute images to comply with a court order, or to report an offense, or if the distribution is made in some other form of “lawful public proceeding.”[89]       

More information can be found in the Sex Offense Lawyer section of the Kann California Defense Group's website. If you have questions, contact any of the Kann Defense Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your call will go directly to a lawyer.

California Criminal Jury Instructions – Creating/Distributing ‘Revenge Porn'

To convict you under CPC §647(j)(4), the prosecution must prove the following beyond a reasonable doubt:

You intentionally distributed an image of the intimate body part of another identifiable person or an image of a person engaged in sexual intercourse, sodomy, oral copulation, sexual penetration, or an image of masturbation. You distributed the image having agreed with the person depicted that the image would remain private. You knew (or should've known) that distributing the image would cause serious emotional distress. Finally, the person in the image suffered serious emotional distress.

Example: Victim Vanessa recently ended a one-year romantic relationship with Defendant Dustin. The break-up didn't go well. Vanessa resolved not to see Dustin again after the end - but, two weeks later, Vanessa received an email from Dustin that contained nothing more than a web link. When she clicked on it, she found it connected to a “revenge porn” website that had pictures of Vanessa masturbating for Dustin's camera. Her face could be clearly seen. While they never talked about it, Vanessa always assumed the photos she took with Dustin would remain private. Vanessa was furious and began to lose sleep. Her appetite almost vanished. She started missing work. Finally, Vanessa reported Dustin for violating §647(j)(4). Dustin was arrested and charged. Should he be convicted of the accusation?

Conclusion: Dustin had pictures of Vanessa which showed her face, making her identifiable. Vanessa was masturbating, which is an act covered by the statute. We can presume Dustin knew that distributing the image would upset Vanessa, which he wanted, since the break-up went poorly, Vanessa was the one who ended the relationship with Dustin, and Dustin sent the link to Vanessa like some sort of taunt. Vanessa also suffered serious distress, as evidenced by missing work, losing her appetite and being unable to sleep. However, as the facts state, the couple never agreed the image Dustin released would remain private; Vanessa simply assumed it wouldn't be seen by anyone else. Therefore, given that an element of the crime can't be proven in court, Dustin shouldn't be convicted of violating CPC §647(j)(4).

What Can I Do If I'm Charged With Possession Of Child Pornography?

The State of California regards sex crimes as serious offenses. If you're charged with Possession Of Child Pornography, it's essential that you retain a skilled, dedicated criminal defense attorney as soon as possible. Your rights, freedom, and livelihood are at stake.

Remember, a professional criminal defense attorney may be able to:

  • Negotiate a lesser charge in a plea bargain;
  • Reduce your sentence;
  • Or even get charges dismissed completely.

The attorneys at the Kann California Defense Group have an excellent understanding of the local courts and an extensive knowledge of California's criminal justice system. We can represent you in Ventura, Santa Clarita, Los Angeles, Encino, Pasadena and many other Southern California cities. 

If you or someone you know has been arrested or charged with Possession Of Child Pornography, our attorneys will analyze the facts of your case and plan a defense strategy that will help you obtain the very best possible outcome.

Contact the Kann California Defense Group today to schedule your free and confidential consultation.   

References

[1] See “Wobbler” definition at USLegal.com (“In California, Wobbler refers to a criminal offense that can be classified as either a misdemeanor or a felony. It ‘wobbles' between these two categories of offenses. It signifies a lesser felony offense that specifies fines or jail time as alternative punishments to state prison”).

[2] “Matter is obscene if, when considered as a whole: [¶] 1. It shows or describes sexual conduct in an obviously offensive way; [¶] 2. A reasonable person would conclude that it lacks serious literary, artistic, political, or scientific value; AND [¶] 3. An average adult person, applying contemporary statewide standards, would conclude it appeals to a prurient interest. [¶]A prurient interest is a shameful or morbid interest in nudity, sex, or excretion.” See California Criminal Jury Instructions 1141 (CALCRIM) (2017)..

[3] “Matter means any representation of information, data, or [an] image.” See above.

[4] “A person accused of committing this crime can be an individual, partnership, firm, association, corporation, limited liability company, or other legal entity.” See above.

[5] “To distribute means to transfer possession, whether or not the transfer is made for money or anything else of value.” See above.

[6] “Two or more people may possess something at the same time. [¶] A person does not have to actually hold or touch something to possess it. It is enough if the person has control over it or the right to control it, either personally or through another person [or] other people.” See above.

[7] “The People must prove that the defendant knew the obscene nature of the matter but do not need to prove that the defendant knew whether the matter met the definition of obscene.” See above.

[8] “An act is simulated when it gives the appearance of being sexual conduct.” See above.

[9] “Sexual conduct means actual or simulated sexual intercourse or oral copulation, or anal intercourse, or anal oral copulation, or [any other sex act].” See above.

[10] “Matter is not considered obscene under the law if (all persons under the age of 18 depicted in the matter are legally emancipated or it only shows lawful conduct between spouses.” See above.

[11] Facts paralleling People v. Kongs, 30 Cal.App.4th 1741, 37 Cal. Rptr.2d 327 (1994).

[12] “The contemporary statewide standard means what is acceptable to the statewide community as a whole, not what some person or persons may believe the community ought to accept. The test [the jury] must apply is not what [they] find offensive based on [their] own personal, social, or moral views. Instead, [they] must make an objective determination of what would offend the statewide community as a whole. [¶] [The jury] may consider evidence of local community standards in deciding what the contemporary statewide standard is. However, [jurors] may not use the standard of a local community, by itself, to establish the contemporary statewide standard. [¶] The material is not obscene unless a reasonable person would conclude that, taken as a whole, it lacks serious literary, artistic, political, or scientific value […] [¶] The defendant is not guilty of this crime if (he/she) was engaging in legitimate medical, scientific, or educational activities. The People have the burden of proving beyond a reasonable doubt that the defendant was not acting for a legitimate medical, scientific, or educational purpose” (original emphasis). See California Criminal Jury Instructions 1141 (CALCRIM) (2017).

[13] See People v. Cochran, 28 Cal.4th 396, 121 Cal.Rptr. 2d 595 (2002) (Defendant Cochran asserted that court's “analysis [had to] focus[ ] solely on whether the defendant had ‘financially profited from his Internet posting, trading, and videomaking enterprise'”; Fourth District Court Of Appeal rejected the argument) (emphasis added).

[14] See CPC §311.2(c).

[15] See CPC §311.2(d).

[16] “(b) As used in this section, ‘sexual conduct' means any of the following: [¶] (1) Sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex or between humans and animals. [¶] (2) Penetration of the vagina or rectum by any object. [¶] (3) Masturbation for the purpose of sexual stimulation of the viewer. [¶] (4) Sadomasochistic abuse for the purpose of sexual stimulation of the viewer. [¶] (5) Exhibition of the genitals or the pubic or rectal area of any person for the purpose of sexual stimulation of the viewer. [¶] (6) Defecation or urination for the purpose of sexual stimulation of the viewer.” See CPC §313.3(b)(1)-(6).

[17] See CPC §313.3(c), (e), (f).

[18] Note that CPC §311.4(a) refers to minors being used to “assist” in violating the law.

[19] “Under the law, a person becomes one year older as soon as the first minute of his or her birthday has begun.” See California Criminal Jury Instructions 1144 (CALCRIM) (2017).

[20] “Use for commercial purposes includes intending to trade the matter depicting sexual conduct for a commercial purpose at some point in the future. A commercial purpose does not have to include financial gain.” See above.

[21] See CPC §311.4(d).

[22] Derek would likely be charged under CPC §311.4(c), which doesn't require commercial purposes.

[23] Denise could be convicted under CPC §311.4(b) or §311.4(c), as her behavior is punishable under both sections, with the major difference being that in one section there's a requirement of proving a commercial purpose, and no such requirement in the other.

[24] See CPC §311.11(d).

[25] “Except in cases where a different punishment is prescribed by any law of this state, every offense declared to be a felony is punishable by imprisonment for 16 months, or two or three years in the state prison unless the offense is punishable pursuant to subdivision (h) of Section 1170 [establishing crimes covered by California's “Three Strikes” law].” See CPC ‍§18(a).

[26] See CPC §311.1(a).

[27] See CPC §311.2(b).

[28] See Endnote 25.

[29] The fine (and the possibility of jail time as well as a fine) is established in CPC §672.

[30] See Endnote 25.

[31] See Endnote 29.

[32] See Endnote 25.

[33] See Endnote 29.

[34] See Endnote 25.

[35] See Endnote 29.

[36] See Endnote 25.

[37] See CPC §311.4(a).

[38] See CPC §311.4(b).

[39] See Endnote 29.

[40] See Endnote 29.

[41] The crime may be enhanced if you commit an act that involves “annoy[ing] or molest[ing] any child under 18 years of age” after being convicted of the Felony form of 311.4 for engaging in acts with a minor under the age of fourteen. The additional penalty is up to six (6) years in state prison. See CPC §647.6(a)(1), (c)(2).

[42] See Endnote 25.

[43] See Endnote 29.

[44] See CPC §311.10(a).

[45] See CPC §311.11(a).

[46] See CPC §311.11(b).

[47] See Endnote 29.

[48] Specifically, you will be charged with an enhanced version of §311.11(a) if: “(1) The matter [you possess] contains more than 600 images that violate subdivision (a), and the matter contains 10 or more images involving a prepubescent minor or a minor who has not attained 12 years of age[ ] [,] [OR] [¶] (2) The matter portrays sexual sadism or sexual masochism involving a person under 18 years of age. For purposes of this section, ‘sexual sadism' means the intentional infliction of pain for purposes of sexual gratification or stimulation. For purposes of this section, ‘sexual masochism' means intentionally experiencing pain for purposes of sexual gratification or stimulation.” See CPC §311.11(c)(1),(2).

[49] See CPC §311.11(c).

[50] See Endnote 29.

[51] Specifically, “[a]n offender convicted of felony child pornography (Penal Code §§ 311.1, 311.2 subd. (b), (c), or (d), or Penal Code §§ 311.3, 311.4, 311.10, or 311.11), where the victim was at least 16 years or older, can also apply for exclusion.” See CPC §290.46(e)(1) (cited in California Megan's Law Website, Summary Of Registration Laws).

[52] See CPC §290.018(a).

[53] See Endnote 29.

[54] See California Criminal Jury Instructions 3408 (CALCRIM) (2017).

[55] Searches “incident to arrest” are also acceptable so long as the searches are limited to the “wingspan” of the defendant and occur in connection with an arrest.

[56] See §288(c)(1).

[57] A still more serious form of this offense is established in §288(b)(1). (“Any person who commits an act described in subdivision (a) by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, is guilty of a felony and shall be punished by imprisonment in the state prison for 5, 8, or 10 years” [emphasis added].)

[58] See §288(e).

[59] See Endnote 29.

[60] See California Criminal Jury Instructions 1110 (CALCRIM) (2017).

[61] See California Criminal Jury Instructions 1070 (CALCRIM) (2017).

[62] See CPC §261.5(a).

[63] See above.

[64] See §§261.5(b ),(c),(d).

[65] See CPC §290(c)  for a list of those who must register.

[66] See Endnote 25.

[67] See Endnote 29.

[68] See Endnote 29.

[69] See California Criminal Jury Instructions 1070 (CALCRIM) (2017).

[70] See above.

[71] See CPC §272(a)(1).

[72] See above.

[73] See above.

[74] “In order to act with general criminal intent, a person must not only commit the prohibited act [or fail to do the required act], but must do so intentionally or on purpose. However, it is not required that he or she intend to break the law.” See California Criminal Jury Instructions 2980 (CALCRIM) (2017).

[75] “Criminal negligence involves more than ordinary carelessness inattention, or mistake in judgment. A person acts with criminal negligence when: [¶] 1. He or she acts in a reckless way that creates a high risk of death or great bodily injury; AND, [¶] 2. A reasonable person would have known that acting in that way would create such a risk. [¶] In other words, a person acts with criminal negligence when the way he or she acts is so different from the way an ordinarily careful person would act in the same situation that his or her act amounts to disregard for human life or indifference to the consequences of that act.” See above.

[76] See CPC §236.1(b).

[77] The trafficking must involve “force, fear, fraud, deceit, coercion, violence, duress, menace, or threat of unlawful injury” for a life sentence to be possible. See CPC §236(c)(2).

[78] See CPC §236(c)(2).

[79] See CPC §236.1(2)(d).

[80] Facts paralleling the story of LA Dodgers' right fielder Yasiel Puig, who was smuggled into the US and then held captive under a demand for a 20% share of all his future earnings. See “From Cuba To LA Baseball Diamond, Yasiel Puig's Dangerous Odyssey” by NPR Staff. April 16, 2014, National Public Radio online. 

[81] See CPC §236.1(b).

[82] In addition to Kidnapping For Ransom, Danilo might, for example, be charged with Attempted Robbery (§664) or Attempted Extortion (§524).

[83] See CPC §647(j)(4)(B).

[84] See CPC §647(j)(4)(C).

[85] See CPC §647(j)(4)(A).

[86] See Endnote 25.

[87] See Endnote 29.

[88] See Endnote 29.

[89] See CPC §647(j)(4)(D)(i-iv).

 

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