Possession of child pornography is one of the most aggressively prosecuted crimes in California. Under Penal Code 311.11 PC, it is unlawful to knowingly possess or control any material that depicts a minor engaged in sexual conduct. This statute applies broadly, encompassing images, videos, and any digitally stored files.
Child pornography is defined as any matter or material, depicts sexual conduct by a person under 18 years of age. Sexual conduct includes such acts as sexual intercourse, oral or anal copulation, sexual activity with objects, sadomasochistic abuse, and bestiality.
Possession can be either actual possession, which is knowingly holding or carrying the child pornography materials, or constructive possession, which is knowingly keeping the materials in a location you have control over, such as your home or vehicle. It also includes joint possession, which is knowingly sharing possession with another person, such as a friend or roommate.
The penalties for violating PC 311.11 are severe. A conviction can lead to substantial fines, imprisonment, mandatory sex offender registration, and other long-term consequences that can profoundly impact your personal and professional life.
The offense can be charged as a misdemeanor or felony and is punishable by up to one year in county jail or up to three years in state prison. Suppose you have child porn videos on a laptop knowing that they contain 15-year-old girls or that you keep pictures of young teens engaged in sexual acts. In that case, you could face charges of PC 311.11 child porn possession.
What makes this law particularly daunting is that you may still be at risk of conviction even if you believe you have not met the prerequisites for "possession." California law defines possession broadly.
What Does the Law Say?
California Penal Code 311.11 PC says -
"(a) Every person who knowingly possesses or controls any matter, representation of information, data, or image, including, but not limited to, any film, filmstrip, photograph, negative, slide, photocopy, videotape, video laser disc, computer hardware, computer software, computer floppy disc, data storage media, CD-ROM, or computer-generated equipment or any other computer-generated image that contains or incorporates in any manner, any film or filmstrip, the production of which involves the use of a person under 18 years of age, knowing that the matter depicts a person under 18 years of age personally engaging in or simulating sexual conduct, as defined in subdivision (d) of Section 311.4, is guilty of a felony and shall be punished by imprisonment in the state prison, or a county jail for up to one year, or by a fine not exceeding two thousand five hundred dollars ($2,500), or by both the fine and imprisonment."
California Penal Code 311.4(d) PC says -
"Sexual conduct" means any of the following, whether actual or simulated: sexual intercourse, oral copulation, anal intercourse, anal oral copulation, masturbation, bestiality, sexual sadism, sexual masochism, penetration of the vagina or rectum by any object in a lewd or lascivious manner, exhibition of the genitals or pubic or rectal area for sexual stimulation of the viewer, any lewd or lascivious sexual act as defined in Section 288, or excretory functions performed in a lewd or lascivious manner, whether or not any of the above conduct is performed alone or between members of the same or opposite sex or between humans and animals. An act is simulated when it gives the appearance of being sexual conduct."
Simply Viewing Child Porn Is Possession
Many people assume that possession of child pornography requires downloading or physically saving files to a device. However, under California law, intentionally accessing and viewing such content online-even without downloading it, is often enough to justify charges.
The legal definition of possession extends to situations where an individual knowingly views prohibited material and has control over it. If prosecutors can demonstrate that you intentionally accessed or sought out this content, you may face charges regardless of whether the files were stored on your device.
Conversely, downloading the content without actually viewing it is still considered possession, as well. California prosecutors must prove two crucial factors to convict you of possessing child pornography under PC 311.11, including that you knowingly possessed or controlled child pornography, and that you did so while also knowing that it depicted a person under the age of 18 engaging in sexual conduct.
Other Factors You May Not Know
Let's look at some key aspects of PC 311.11 child porn possession that many individuals may not fully understand, such as the following:
- By the Time You Are Charged, Investigators May Already Have a Solid Case of Evidence Against You. Prosecutors don't like to lose child pornography cases. For this reason, investigations into child pornography possession are often extensive and meticulously conducted. Law enforcement agencies frequently employ advanced surveillance techniques, cyber forensic tools, and undercover operations to gather evidence. They may monitor online activity for months or even years before making an arrest. Special attention is given to devices like computers, smartphones, and external drives, all of which can serve as evidence. It is important to know that the authorities may already have substantial evidence against you by the time you are charged, underscoring the need for a skilled criminal defense attorney.
- Relationship Status Does Not Exempt You. Some individuals facing these charges believe they have a valid defense if the minor involved was their romantic partner or if the material involves a consensual relationship. However, under California law, this is not a defense. The state takes a zero-tolerance approach to child pornography because, by law, minors cannot legally consent to sexual activity. For example, if two teenagers are in a sexual relationship and decide to make a sex tape, the content is still child pornography, and one or both partners can be charged for possessing it.
- Accusations Alone Can Have Devastating Consequences. Even being accused of possessing child pornography can cause irreparable harm to your reputation, relationships, and career. These accusations carry a significant social stigma, often overshadowing the presumption of innocence. Employers may terminate their position, friends and family may distance themselves, and community relationships can fracture. Many individuals face public scrutiny long before their case is resolved. Whether or not you are ultimately convicted, the allegation itself can have long-term repercussions.
- Your Confinement May Not End When Your Sentence Is Complete. Depending on the nature of your offense, you may also face additional restrictions under California's sexually violent predator (SVP) laws even after you have served your sentence. California's sexually violent predator (SVP) laws allow for the indefinite civil commitment of individuals deemed to pose a continued threat to public safety due to a diagnosed mental disorder that makes them likely to reoffend sexually. These laws are designed to protect the public by confining such individuals in secure treatment facilities even after they have completed their criminal sentences.
What are Related Crimes?
- Employment of a minor in pornography - Penal Code 311.4 PC makes it a felony to employ, coerce, or persuade anyone under 18 to participate in pornography or otherwise to sell or distribute it and carries a penalty of up to eight years in prison.
- Lewd acts with a child - Penal Code 288 PC defines the felony crime of lewd and lascivious acts with a minor child as touching a child for sexual purposes, or causing a child to touch themself or someone else for a sexual purpose.
- Statutory rape - Penal Code 261.5 PC, statutory rape is having sex with a minor under 18. Violations of this law are wobbler offenses that can be filed as a misdemeanor or felony offense.
- Revenge porn - Penal Code 647j4 PC criminalizes certain acts of revenge porn, but the illegal porn can involve both minors and adults.
Repercussions Beyond Jail Time
If you are convicted under PC 311.11, you will have to register as a sex offender for at least 10 years (and possibly for life if you're convicted of a felony). However, there are other ramifications to a conviction of this nature, including, but not limited to, the following:
- If you hold a professional license in the State of California, there's a high risk that the license will be either suspended or revoked, thereby hindering your ability to work in your chosen profession.
- Your conviction can also negatively impact your custody rights. If you have minor children, a conviction for a sexual offense can result in limited or supervised visitation rights. In severe cases, it may even result in the termination of your parental rights altogether.
- The possession of child pornography may also result in restitution payments to any victims, court fees separate from criminal fines, restraining orders, losing various civil rights while you are in custody, and losing your gun rights if you are convicted of felony child porn possession.
- Additionally, a conviction for a sexual offense can affect your immigration status. Depending on the severity of the offense and your current immigration status, you could face deportation or be denied reentry to the United States.
For additional information, contact Eisner Gorin LLP, our California criminal defense lawyers, located in Los Angeles, CA.
Related Content:
If you have one phone call from jail, call us! If you are facing criminal charges,