Arrested for Advertising Child Pornography (Penal Code § 311.10) in California?

If you’ve been arrested for advertising child pornography under California Penal Code § 311.10, you are facing extremely serious felony charges. A conviction for this offense carries the potential for years in state prison, huge fines, and mandatory lifetime registration as a sex offender.

If you’re in this situation, the most important thing you can do is educate yourself about the law, penalties, and your legal options before making any decisions in your case.

The Crime of Advertising Child Pornography Under PC 311.10

Penal Code 311.10(a) makes it illegal to advertise for sale or distribution any obscene matter depicting a person under 18 years old engaging in or simulating sexual conduct. This statute also criminalizes advertising any obscene matter that was produced using a minor, even if that minor is not personally depicted in the obscene matter being advertised.

Some examples of “advertising” child pornography include:

• Posting online that you have child sexual abuse material available to purchase or trade
• Texting someone that you will send them child porn in exchange for money or more child porn
• Emailing links to a website where people can access obscene content depicting minors
• Mailing a catalog or price list of child pornography videos for sale

To be convicted under PC 311.10(a), the prosecution must prove:

1. You advertised obscene matter for sale or distribution
2. The obscene matter depicted a person under 18 engaged in real or simulated sexual conduct OR was produced using a minor
3. You knew the obscene nature of the material being advertised
4. You knew or reasonably should have known the material depicted or involved a minor

Put simply, advertising child pornography means offering to sell, share, or trade sexual content exploiting children. There is no requirement that any transactions were actually completed. The crime is in the advertising itself.

Penalties for PC 311.10 Advertising Child Porn

Advertising child pornography is a felony offense in California, punishable by:

• 2, 3, or 4 years in state prison, and/or
• A fine of up to $50,000
• Mandatory lifetime registration as a sex offender per PC 290

Additionally, the court may impose a fine of up to $2,000 to fund child sexual abuse and exploitation prevention programs.

Repeat offenders face even harsher punishments. If you have a prior conviction for PC 311.10 or related offenses like distribution of obscene matter depicting minors, you could be sentenced to 3, 6, or 8 years in prison.

But perhaps the most severe penalty is mandatory sex offender registration. If convicted, you’ll have to register with local law enforcement every year and any time you move for the rest of your life.

Your name, photograph, and conviction offense will be publicly accessible on the Megan’s Law website. The stigma of being on the sex offender registry can make it extremely difficult to find employment and housing.

Defenses to Advertising Child Pornography Charges

Given the grave consequences of a PC 311.10 conviction, you need a robust defense strategy. A skilled criminal defense attorney will identify the most effective arguments for your case, which may include:

Lack of knowledge of content

You must have actually known the material being advertised was obscene and involved minors. If you were unaware of the nature of the content, that can be a defense. However, willful blindness is not an excuse.

No actual advertising

Offering to provide child pornography to another for free is illegal under other statutes but is not “advertising” under PC 311.10. There must be an offer to sell or trade the material.

Mistaken age

If you reasonably believed the individuals depicted or used in production were adults, that may be a defense. But the belief must be objectively reasonable based on the circumstances.

Illegal search and seizure

If police obtained evidence against you through an unlawful search, your attorney can file a motion to suppress that evidence. This may include a warrantless search, exceeding the scope of a warrant, or a coerced confession.

Entrapment

While rare, entrapment can be a defense if the idea to commit the crime originated with law enforcement and you were induced to act in a way you otherwise would not have. But simply being offered an opportunity to commit a crime by police is not entrapment.

False accusations

Sometimes, people are falsely accused of child pornography crimes out of anger, revenge, or mental health issues. If the allegations against you are fabricated, an attorney will work to expose inconsistencies and ulterior motives.

The best defense for your case will depend on the unique facts and evidence involved. It’s crucial to have an attorney thoroughly investigate and develop the most effective strategy.

The Court Process

Being prosecuted for advertising child pornography is a daunting experience. While every case is different, here’s a general overview of what you can expect in the criminal court process:

1. Arrest and Bail – After your arrest, you’ll be booked into jail and have a first appearance in court. The judge will decide whether to release you on bail pending trial.
2. Arraignment – This is the formal reading of charges where you enter an initial plea, usually “not guilty.” The judge may also issue protective orders.
3. Pretrial Conferences – You’ll have a series of court dates where your lawyer negotiates with prosecutors, receives discovery evidence, and files pretrial motions.
4. Preliminary Hearing – Since PC 311.10 is a felony, you’re entitled to a preliminary hearing where the judge decides if there’s probable cause for trial. Your lawyer can cross-examine witnesses and challenge evidence.
5. Pretrial Motions – Before trial, your attorney may file motions to dismiss the case, suppress illegally obtained evidence, or compel additional discovery.
6. Jury Trial – If you don’t accept a plea bargain, your case will proceed to jury trial. The jury must reach a unanimous decision to convict. You have the right to testify or remain silent.
7. Sentencing – If convicted by plea or after trial, the judge will decide your sentence based on the charges, aggravating and mitigating factors, and your criminal history.

Having an experienced attorney guide you through this complex, high-stakes process is essential.

What to Do if You’ve Been Charged Under PC 311

Advertising child pornography accusations are extremely serious. A few key things to keep in mind if you’re facing these charges:

1. Don’t talk to police without a lawyer – You have the right to remain silent. Trying to talk your way out of it will only hurt your case. Politely tell police you won’t answer questions without an attorney present.
2. Seek counsel immediately – The earlier you involve an experienced defense lawyer, the better your chances. Waiting to get help can limit your options.
3. Be honest with your lawyer – Attorney-client communications are protected by confidentiality. Your lawyer needs to know all the facts to mount the strongest defense.
4. Stay off social media – Don’t post about your case or respond to comments online. Prosecutors will be looking for anything that can be used against you.
5. Follow all court orders – If you’re out on bail, follow release conditions to the letter. Violating court orders can land you back in jail.

How The Nieves Law Firm Can Help

At The Nieves Law Firm, we understand the overwhelming stress and fear that come with being accused of advertising child pornography. Our experienced attorneys have successfully defended many clients facing these grave charges. We will:

• Thoroughly investigate your case to uncover weaknesses in the prosecution’s evidence
• Consult with digital forensic experts to challenge police procedures and technical evidence
• File motions to get unlawfully obtained evidence suppressed and charges dismissed
• Skillfully negotiate for reduced charges or alternative sentencing where possible
• Provide the dedicated, discreet representation you need during this difficult time

You don’t have to face PC 311.10 charges alone. Contact us today for a confidential consultation. Let us put our knowledge and advocacy to work for you.