Possession of Child Pornography
(Possess Obscene Material Depicting Minor)
PC 311.1 & PC 311.11
Law, Penalties, & Defense
California laws prohibiting a person from possessing child pornography, also called possession of obscene material depicting a child, can be found at penal code sections 311.11(a), 311.11(b), and 311.11(c).
PC 311.11 Law
PC 311.11(a): Every person who knowingly possesses or controls any matter, data, or image, including, but not limited to, any film or photo, negative, slide, photocopy, videotape, computer hardware or software, or computer generated image, that contains the depiction of a person under 18 years of age, engaging in, or simulating sexual conduct, is guilty of the crime of possessing obscene matter depicting a minor engaging in sexual conduct (PC 311.11(a) [Abbr.]).
Sexual Conduct Defined: Per PC 311.11(a), sexual conduct means any of the following, whether actual or simulated: sexual intercourse, oral copulation, anal sex, 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 the purpose of sexual stimulation of the viewer, any lewd or lascivious sexual act, 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 (PC 311.4(d)(a) Abbrev.)
Note: A simulated sexual conduct act involving a minor child is punished the same as if the sexual act is not simulated.
Possession Defined: Possession can be actual or constructive. Actual possession means that a person knowingly has something on his or her person and with his or her consent. Constructive possession means that a person has access and ability to control something, regardless the person's physical presence (i.e., content on cell phones, computers, in house, etc.).
To prove that the defendant is guilty of the crime of possession of child pornography, the prosecutor must prove that:
The defendant possessed an image or video, in any media format, that depicts sexual conduct, simulated or actual, of a minor under eighteen (18), and
The defendant knew that he or she possessed the images or video and knew that the image or video depicted the minor, engaging in, or simulating sexual conduct.
Punishment for PC 311.11
PC 311.11(a) Sentence: Possession of obscene matter depicting a minor engaging in sexual conduct is charged as a felony or as a misdemeanor (a wobbler). If found guilty of felony PC 311.11(a), the defendant may face up to three (3) years in prison. If found guilty of misdemeanor PC 311.11(a), the defendant may face up to one (1) year in jail.
PC 311.11(c) Sentence: Possession of more than six hundred (600) images or twelve (12) videos of child pornography, or possession of child pornography with a child engaging in sexual sadism or sexual masochism, is charged as a felony or as a misdemeanor (a wobbler). If found guilty of felony PC 311.11(c), the defendant may face up to five (5) years in prison. If found guilty of misdemeanor PC 311.11(c), the defendant may face up to one (1) year in jail.
Note: Many other possession of child pornography crimes exists under California law depending on the facts of the case. For brevity, only PC 311.1, 311.11(a), and 311(c) crimes are discussed in this article.
Probation Sentence: Probation is period of supervision instead of jail or Prison. Probation sentences come with probation terms that must be followed to avoid further punishment, including actual jail or prison.
Probation for felony PC 311.11(a) and 311.11(c) is called formal probation, which means the defendant is monitored by a felony probation officer. Probation for misdemeanor PC 311.11(a) and 311.11(c) is called informal probation, which means the probation is monitored by the court.
Probation sentences are available in both PC 311.11(a), and 311.11(c) cases, but every case is decided on a case-by-case basis. Whether or not a probation sentence is available in a particular case depends largely on the facts of the case and the defendant's criminal history.
Suspended Prison Sentence: The crimes of possession of obscene matter depicting a child engaged in sexual conduct ((PC 311.11(a)) and 311.11(c)) do not qualify for suspended prison sentences (also called joint suspension), or split prison sentences.
This means that if the defendant is found guilty of PC 311.11(a) or 311.11(c), and the defendant is not granted a probation sentence, then the defendant must serve his or her incarceration in a California state prison, as opposed to a local county jail, and no part of his or her prison sentence may be served out of prison on work release or house arrest (PC 1170(h)).
Sex Offender Registration: If found guilty of possession of obscene matter depicting a minor engaging in sexual conduct (PC 311.11(a) or 311.11(c)), the defendant will be ordered to register as sex offender with law enforcement.
The length of sex offender registration depends on the exact possession of child pornography crime for which the defendant is convicted (10 years for misdemeanor PC 311 crimes and lifetime sex offender registration for PC 311.1, 311.11(b), (c), or (d), 311.1, 311.2, 311.3, 311.4, 311.10). For more information, see CA Tier System for Sex Offenders & Sex Offender Registration Requirements.
Immigration Issues: A criminal convictions for the crime of possession of obscene matter depicting a minor engaging in sexual conduct (PC 311.11(a) or 311.11(c)) can lead to severe immigration consequences for non-U.S. citizens, including deportation or denial of reentry into the United States.
Collateral Penalties: In addition to the punishments listed above, if found guilty of possession of child pornography (PC 311.11(a) or 311.11(c), the defendant may face any of the following: fines and court fees, restitution to victims, criminal protective orders, loss of a professional license, loss of civil rights (including the right to own firearms for felony convictions of PC 311 crimes), loss of family law rights, and more.
Defenses to PC 311
Every PC 311 case is different; therefore, every defense to a possession of child pornography case is different; however, PC 311 charges tend to follow common defenses, including: reasonable mistake of fact (as to age of the minor depicted), insufficient evidence to prove possession (actual or constructive possession), statute of limitations, coerced confession, illegal search and seizure, insanity, and more.
Note: PC 311 crimes do not apply to drawings, figurines, statues, or films rated by the Motion Picture Association of America (PC 311.11(e) [Abbr.]).
Age of Consent in Different State: It is NOT a defense to a criminal charge of possession of child pornography to demonstrate that the person depicted in the material is old enough to consent in the state where the obscene material was produced. The age of consent in all instances of child pornography crimes charged in California criminal court is 18.
Reclassification of Offense: In some possession of child pornography cases, the crime may be reclassified from a felony to a misdemeanor offense (PC 17(b)). Of course, reclassifying a crime from a felony offense to a misdemeanor offense is not a true defense in the sense that the criminal charges are dismissed, or that defendant is found "not guilty." Nevertheless, upon successful petition, a reclassification of a possession of child pornography crime, from a felony offense to a misdemeanor offense, will lead to less punishment (i.e., much shorter jail or probation sentence, shorter sex offender registration period, etc.).
Note: Reclassification of PC 311.1, PC 311.11(a), & PC 311.11(c)(2) charges is available in some cases where the interest of justice is best served by reducing the crime from a felony to a misdemeanor (i.e., lack of defendant's criminal history, lack of criminal sophistication, showing of remorse, early confession to police, etc.).
For more information on defenses to an allegation of possession of child pornography, including a discussion of the defense of entrapment and statute of limitations, see Sex Crimes Defense Options.
If you charged with any possession of child pornography crime, including possession of obscene material depicting a child engaging sexual conduct (PC 311.11(a), PC 311.11(c), or 311.1), contact our sex crimes criminal defense attorneys for a free consultation. Our team is experienced and successful in defending against sex crimes charges, including possession of child pornography charges. Call today!