Misdemeanor Child Pornography - Penal Code 311.1 and 311.11
While child pornography laws in California are notably stringent and carry with them severe penalties, not every child porn offense is charged as a felony.
Some child pornography offenses are "wobblers," meaning they can be charged as a misdemeanor or a felony. These specific crimes are embodied in Penal Code 311.1 and 311.11 PC.
Most forms of child porn are charged as either wobblers or felonies. Misdemeanor child pornography is usually punishable by up to one year in county jail.
Penal Code 311 PC is California's primary statute making child porn illegal. Simply put, this law makes it a crime to send, duplicate, print, advertise, or possess child porn or hire or persuade minors to produce pornographic images.
Penal Code 311.1 PC makes it a misdemeanor crime to send, transport knowingly, produce, possess, or duplicate any child porn intending to distribute such material, such as photos, film, negatives, slides, or videotapes.
Penal Code 311.11 PC makes it a crime knowingly to possess or control any child pornography that was produced using a minor under 18.
You are only guilty under child porn laws if you act knowingly, meaning that you knew the nature of the material you were transporting or possessing and knew the material showed someone under 18 participating in sexual conduct.
Even so, a conviction of misdemeanor child pornography can result in up to one year in jail, substantial fines, and required registration as a sex offender for a minimum of ten years. Let's review further below.
What is the Definition of Child Pornography?
Under California law, child pornography is any material visually depicting someone under 18 engaging in sexual conduct. Examples include photos, films, digital media, computer-generated images, etc.
For purposes of this law, acts considered sexual conduct (actual or simulated) are defined in Penal Code 311.4 PC. They include, but are not limited to:
- Sexual intercourse;
- Anal intercourse;
- Masturbation;
- Oral copulation;
- Anal oral copulation;
- Anal penetration;
- Bestiality;
- Sexual penetration with objects;
- Sexual sadism;
- Sexual masochism;
- Exhibition of the genitals or pubic or rectal area for sexual stimulation;
- Any lewd or lascivious sexual act as defined in Penal Code 288 PC;
- Excretory functions performed in a lewd or lascivious manner.
Wobbler Offenses - Explained
In California, "wobbler" offenses are crimes that can be charged as either a felony or a misdemeanor, depending on the circumstances of the case. Factors influencing this decision include the offense's nature, the minor's age, the amount of material possessed, and the defendant's criminal history.
The district attorney has discretion in determining the severity of the charges, making it all the more critical to have a robust legal defense strategy since misdemeanors are eligible for less severe penalties than felonies.
Which Child Pornography Crimes Can Be Prosecuted as Misdemeanors?
As noted, the two specific California ordinances that can be charged as misdemeanor child pornography crimes are Penal Code 311.1 and Penal Code 311.11 PC.
PC 311.1
PC 311.1 deals with circulating or showcasing child pornography. This statute makes it unlawful for anyone to knowingly transport, create, possess, or replicate, with intent to distribute, any material that graphically represents a minor participating in sexual conduct.
PC 311(a) says, “Every person who knowingly sends or brings into this state for sale or distribution, or possesses, prepares, publishes, produces, develops, duplicates, or prints any information, image, including any film, photograph, with the intent to distribute obscene matter, knowing it depicts a person under 18 engaging or simulating sexual conduct shall be….”
PC 311.11
Penal Code 311.11 prohibits the possession or control of child pornography. Under this code, it is illegal for anyone to knowingly possess or control any material that visually depicts a minor engaging in sexual conduct.
What Are the Exceptions?
There are two exceptions for which these laws do not apply. These include:
- Materials depicting sex among legally emancipated or married minors (PC 311.1). In this case, the minors are legally permitted to consent and have not been legally exploited.
- Materials in which a minor's head has been digitally superimposed on an adult's body (PC 311.11). In this case, no minor has been sexually exploited in making the material.
What Are the Penalties?
To understand why it's advantageous to be charged with misdemeanor versus felony child pornography, let's compare the possible penalties for each.
If you're convicted of misdemeanor child pornography, the penalties include the following:
- Up to 1 year in county jail; and
- Up to $2500 in fines.
If you're convicted of felony child pornography, the penalties include the following:
- Up to 3 years in state prison; and
- Up to $10,000 in fines.
What Are the Sex Offender Registry Requirements?
For any conviction of child pornography (misdemeanor or felony), you must register as a sex offender. However, the time frame of required registration differs significantly between the two:
- Misdemeanor child pornography is a Tier 1 offense. This means you'll have to register as a sex offender for at least ten years after your release from custody.
- Felony child pornography is a Tier 3 offense. This means you'll have to register as a sex offender for life.
What are the Legal Defenses?
If you're charged with violations of PC 311.1 or PC 311.11 (or both), an experienced California criminal defense attorney can implement several legal defenses to counter the charges, as discussed below.
Perhaps we can argue that you were unaware you possessed or distributed child pornography. Prosecutors must prove knowledge and intent to procure a conviction.
Your attorney may therefore argue that you were unaware that you possessed child pornography or that you were genuinely unaware that the individuals in the materials were under age 18.
Perhaps we can argue that the materials do not meet the standard of child pornography. The attorney may say that the materials do not depict minors engaging in sexual conduct as described in PC 311.4. For example, the individuals were of legal age or were emancipated, or the images are of such poor quality that they can't be clearly identified as minors.
Perhaps we can argue that there was an unlawful search and seizure. If the evidence against you was obtained through an illegal search, it could be dismissed, possibly leading to the entire case being thrown out.
Perhaps we can negotiate with the prosecutor to reduce the charges. Given the difference in the severity of penalties for misdemeanor versus felony child pornography, it's a common legal strategy for a defense attorney to negotiate to get wobbler offenses charged as misdemeanors rather than felonies.
This is more likely to be successful if You are a first-time offender (repeat offenders are typically charged with felonies) or the evidence against you is weak. Perhaps we can negotiate prefiling to avoid criminal charges being filed, called a “DA reject.”
Contact our law firm for a confidential case review. We handle state or federal child pornography cases. Eisner Gorin LLP has offices in Los Angeles, CA.
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