Arrested for Distribution of Child Pornography (Penal Code § 311.2) in California?

If you’ve been arrested for distribution or selling of child pornography under California Penal Code § 311.2, you are facing extremely serious criminal charges. A conviction for this felony offense can result in years in state prison, massive fines, and mandatory lifetime registration as a sex offender. It’s critical to understand exactly what the charges entail, the potential consequences, and what legal defenses may be available.

What is Distributing Child Pornography Under PC 311.2?

California Penal Code Section 311.2 makes it illegal to distribute “obscene matter” of anyone under 18 engaging in sexual acts. This includes sharing, selling, or showing this material to others – whether it’s in photos, videos, on computers, or even AI-generated content.

The penalties outlined in PC 311.2 get more serious depending on who you share it with and why. If you sell it or distribute it commercially (PC 311.2(b)), you could face up to 6 years in prison and $100,000 in fines. Sharing it with adults without selling it (PC 311.2(c)) can get you up to a year in jail. Sharing it with someone under 18 (PC 311.2(d)) is always a felony offense.

The law applies to both real images of minors and digitally created or altered images that appear to show minors in sexual situations.

What Qualifies as “Obscene Matter” Under California Law?

The legal definition of “obscene matter” comes from Penal Code 311 PC and has three elements:

1. It shows or describes sexual conduct in an offensive way
2. A reasonable person would conclude it lacks serious literary, artistic, political or scientific value
3. It either:
   • Appeals to the prurient interest, judged by average adult standards
   • Clearly offends the prevailing adult standard and goes substantially beyond customary limits of candor
   • Is so patently offensive as to affront current community standards of decency

Key Elements of Child Pornography Distribution Charges

To convict you under PC 311.2, prosecutors must prove:

• You knowingly distributed, transported, produced, possessed, duplicated, printed or exchanged the material
• The obscene material depicted a child engaged in or simulating sexual conduct
• You knew the person depicted was under 18 years old

Distribution means you shared the material with others, whether for commercial purposes or not. This could be via email, filesharing services, messaging apps, websites, physical copies, or any other means. Even showing the material to one other person could qualify as distribution.

Penalties for Distributing Child Pornography in California

Violations of Penal Code 311.2 are always felony offenses. If convicted, you face:

• 2, 3, or 6 years in California state prison
• Up to $100,000 in fines
• Felony (formal) probation
• Mandatory lifetime registration as a sex offender under PC 290

Aggravating factors can increase the prison sentence. For a second or subsequent violation of PC 311.2 or prior convictions for certain other sex crimes, you face:

• 3, 6 or 8 years in state prison
• Up to $100,000 in fines

Being ordered to register as a sex offender is a particularly severe consequence. You will have to register with local law enforcement every year and upon moving. Your name, photograph and offense will be publicly accessible. This can impact where you can live and work for the rest of your life.

Defenses to PC 311.2 Distribution of Child Pornography Charges

If accused of distributing child porn, you need an aggressive, strategic legal defense. An experienced criminal defense attorney will analyze the evidence to identify the most effective arguments. Potential defenses include:

Knowledge

You must have known the material depicted a minor engaged in or simulating sex acts. If you truly didn’t know, that can be a defense. However, prosecutors can argue you should have known based on the nature of the content.

Lack of Distribution

If you merely possessed the material privately but did not send or show it to anyone else, you are not guilty of distribution. However, you could still be prosecuted for possession under PC 311.11.

Computer Forensics

In many cases, the prosecution’s evidence relies heavily on forensic analysis of your digital devices. A skilled defense attorney can challenge the reliability of this evidence, such as by arguing malware or remote access by third parties put the material on your devices without your knowledge.

Illegal Search and Seizure

If police violated your Fourth Amendment rights in obtaining evidence, such as searching without a valid warrant or exceeding the scope of a warrant, your attorney can file a motion to suppress that evidence. If successful, the prosecution may have to dismiss the case.

Entrapment

Entrapment occurs when police originate the idea of the crime and induce a normally law-abiding person to commit it. For example, if an undercover cop pressured you to distribute child porn you would not have otherwise shared, entrapment could be a defense. However, simply providing an opportunity to commit the crime is not entrapment.

These are just some of the many defenses a savvy attorney may raise on your behalf. Poking holes in the prosecution’s case is key to getting charges reduced or dismissed.

The Court Process for Child Porn Distribution Charges

Knowing what to expect in the criminal court process can help you feel more prepared. After an arrest, a typical felony case involves:

• Arraignment – The formal reading of charges. You enter an initial plea, usually “not guilty” at this stage.
• Pretrial hearings – Court dates where your lawyer negotiates with prosecutors, files motions, and handles other pretrial issues.
• Preliminary hearing – A hearing where the judge decides if there is probable cause to make you “stand trial” on the felony charges.
• Jury trial – If your case is not resolved through dismissal or a plea deal, it will proceed to a trial. The jury will hear evidence and must reach a unanimous verdict to convict. You may choose to testify or remain silent.
• Sentencing – If convicted by guilty plea or jury verdict, the judge will sentence you after considering aggravating and mitigating factors.

Throughout this process, your attorney will work to discredit the evidence against you and advocate for the most favorable outcome. You need a lawyer with the skill and experience to handle these complex, high stakes cases.

What You Should Know About PC 311.2 Charges

There are many misunderstandings about California’s child pornography distribution laws. It’s important to know:

• You can be charged with both distributing and possessing the same unlawful material
• Distributing to just one other person is enough to violate the law
• Mistake of age is not a defense – the material only has to depict someone who appears to be a minor engaged in real or simulated sex acts
• Your relationship to the minor depicted does not matter, even if they are your child or romantic partner
• Federal charges often apply in addition to California charges, carrying even harsher penalties
• You may also face charges for using a minor to make the material under PC 311.4
• Registration requirements apply for life unless you obtain a Certificate of Rehabilitation

How The Nieves Law Firm Can Protect Your Rights

The severe penalties and permanent stigma of a child pornography distribution conviction cannot be overstated. Your freedom, family, reputation and future are all on the line. You need a defense team with the knowledge and experience to effectively advocate for you.

At The Nieves Law Firm, our attorneys have successfully defended many clients facing charges under Penal Code 311.2. We will:

• Investigate your case to find weaknesses in the evidence
• Meticulously review digital forensics for signs of illegal searches, mishandling or tampering
• Bring in respected experts to challenge the prosecution’s case
• File motions to suppress evidence and dismiss charges when appropriate
• Pursue reduced charges and alternatives to incarceration through negotiations
• Represent you at trial if necessary and argue for acquittal
• Treat you and your loved ones with dignity, discretion and compassion

You don’t have to fight PC 311.2 charges alone. Contact The Nieves Law Firm today for a confidential consultation. We are here to protect your rights and freedom.