Imagine you are facing a conviction for possessing child pornography under California Penal Code 311.11. In such a situation, it's important to know that the judge may consider the circumstances of your case and decide to grant you probation instead of a jail or prison sentence.
However, if probation is granted, it's crucial to understand that the conditions will be significantly more restrictive than those for many other offenses, underscoring the seriousness of the situation and the need for strict compliance.
The court imposes these stringent terms to protect the public, prevent repeat offenses, and facilitate rehabilitation.
Failure to comply with any condition can result in severe consequences, including the revocation of probation and imposition of the maximum sentence for the original crime, highlighting the gravity of the situation and the need for strict adherence to the conditions.
Under PC 311.1(a), in California, possession of child pornography happens when someone causes an image or recording of a person under eighteen performing sexual acts to be brought into or created within the state. Sharing, selling, or displaying child pornography is prohibited in California. Anyone aware that a minor under eighteen appears in such material and who engages in these acts violates the Penal Code.
Standard Child Porn Penalties
PC 311.1(a) is a "wobbler," meaning prosecutors may charge it as a felony or a misdemeanor depending on the circumstances. A conviction for misdemeanor child porn carries a sentence of up to one year in a county jail and a fine of up to $1,000.
If convicted of a felony, the penalty can include up to 3 years in state prison and a fine of up to $10,000. Courts may also impose both jail time and fines as punishment. It's important to fully understand these potential penalties and their impact on your life.
Key Takeaways
- Child pornography is any material that depicts sexual conduct involving a person under 18 years old. This includes acts such as sexual intercourse, oral or anal sex, sexual activity with objects, sadomasochistic abuse, and bestiality.
- Possession can be actual, where you knowingly hold or carry child pornography materials. It also includes constructive possession, meaning you knowingly keep the materials in a place you control.
- Joint possession of child porn involves knowingly sharing possession with someone else, such as a friend or roommate.
- A conviction can result in heavy fines, jail time, mandatory sex offender registration, and other lasting effects that can significantly affect your personal and professional life.
- Many believe that possessing child pornography involves downloading or saving files to a device. However, under California law, simply accessing and viewing such content online—even without downloading —is sufficient to face charges.
- California Penal Code 311.2 PC criminalizes knowingly distributing obscene material with the intent to share or display it to others.
However, as noted above, the judge has the discretion to grant you probation instead of a jail or prison sentence. Let's review below.
Restrictive Conditions of PC 311.11 Probation
Probation for a child pornography conviction is designed to manage and monitor your activities strictly. While specific conditions can vary by case and jurisdiction, several terms are commonly ordered by the court as follows:
- Prohibition from Viewing All Pornography: A standard condition is a complete ban on accessing, viewing, or possessing any pornographic material, including legal adult content. The rationale behind this restriction is rooted in the belief that for individuals convicted of this offense, consumption of any pornography can be a trigger for relapse into illegal behavior. The court views this prohibition as a necessary preventative measure to disrupt patterns of behavior associated with the crime.
- No Contact with Minors: You may be prohibited from having any contact with minors under the age of 18, unless specifically approved by the court and your probation officer. This may include your own children, and any court-approved contact will be strictly supervised. The restriction extends to places where children congregate, such as parks, schools, playgrounds, and youth centers.
- Mandatory Counseling: The court will likely order you to participate in and complete a state-approved sex offender treatment program. This counseling is considered a central component of probation. The goal is to address the underlying issues that contributed to the criminal behavior through specialized therapy. You will be responsible for the costs associated with this treatment.
- Curfews and Travel Restrictions: You may be subject to a strict curfew, requiring you to be at your residence during specific hours, typically overnight. Additionally, you will not be permitted to travel outside the county or state without prior written permission from your probation officer.
Internet and Social Media Restrictions
Your use of the internet and electronic devices will be heavily restricted and monitored. Common limitations include:
- A ban on using social media platforms.
- Prohibition from accessing chat rooms or online forums.
- A requirement to provide all usernames and passwords for any online accounts to your probation officer.
- A restriction against deleting your internet browsing history.
These rules are intended to prevent access to illegal material and limit opportunities for inappropriate contact with others.
Monitoring and Enforcement of Probation Conditions
Law enforcement and probation departments use several methods to ensure compliance with these demanding conditions, including (but not limited to) the following:
- Internet Monitoring Software: You will be required to install monitoring software on all your computers, smartphones, and any other device capable of accessing the internet. This software tracks all online activity and can flag prohibited content or behaviors, reporting them directly to your probation officer.
- Periodic Device Checks: Your probation officer has the authority to conduct unannounced searches of your electronic devices, home, and vehicle at any time to check for compliance. They will look for prohibited material, unauthorized accounts, or evidence of deleted histories.
- Polygraph Testing: The court may order you to undergo periodic polygraph examinations, often referred to as "lie detector tests." These tests are used to verify your compliance with probation terms, particularly those related to pornography consumption, contact with minors, and honesty with your probation officer and therapist.
Penalties for Violating Probation
A probation violation for a PC 311.11 conviction is treated with extreme seriousness. If your probation officer believes you have violated any of the terms, they will file a petition with the court to revoke your probation.
A probation violation hearing will be held, at which a judge will determine whether you are in violation. The consequences of a violation can be severe, potentially leading to the revocation of probation and imposition of the maximum sentence for the original offense.
Unlike a criminal trial, the standard of proof is lower. The prosecutor only needs to prove a "preponderance of the evidence," meaning it is more likely than not that you violated a condition. If the judge finds you in violation, they have several options.
They can reinstate probation with more restrictive terms, order a short period of jail time as a sanction, or revoke probation entirely and sentence you to serve the maximum term for the original offense in jail or state prison.
The judge's decision in this matter is crucial and can significantly impact your future. For more information, contact our California criminal defense lawyers, Eisner Gorin LLP in Los Angeles, CA.
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