Arrested for Possession of Child Pornography (Penal Code § 311.11) in California?

If you’ve been arrested for possession of child pornography under California Penal Code § 311.11, you are facing extremely serious criminal charges that can have devastating consequences on your life.

A conviction for this 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 you are being accused of, the severity of the potential penalties, and what legal defenses may be available.

What is Possession of Child Pornography under Penal Code 311.11 PC?

Penal Code 311.11(a) makes it a crime to knowingly possess or control any matter or representation of information, data or images, the production of which involved a person under 18 engaging in or simulating sexual conduct, with knowledge that it depicts a person under 18.

The statute states:

(a) (1) 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.

To convict you under PC 311.11(a)(1), the prosecutor must prove the following elements:

1. You knowingly possessed or controlled the material
2. The material depicted a person under 18 years old engaging in or simulating sexual conduct
3. You knew that the material showed a person under 18
4. The material was made using an actual person under 18 years old

It’s important to note that simply possessing the child porn is enough for a conviction. You do not need to have produced, distributed, or sold it. And you must have known the material depicted a real minor, not just an adult who appeared young.

Penalties for PC 311.11 Child Pornography Possession

In most cases, possession of child pornography is a felony offense in California. If convicted, you face:

• 16 months, 2 years or 3 years in state prison
• A fine of up to $2,500
• Formal (felony) probation
• Lifetime registration as a sex offender per Penal Code 290 PC

However, aggravating factors can increase the state prison sentence to 16 months, 2 years or 5 years. These include:

• The material had over 600 images with at least 10 depicting a prepubescent minor or child under 12
• The material portrayed sexual sadism or masochism involving a minor

Additionally, prior convictions related to child porn, certain sexual offenses, or attempts of those crimes increase the prison term to 2, 4 or 6 years.

Along with incarceration and fines, a PC 311.11 conviction has the devastating collateral consequence of lifetime sex offender registration. This comes with strict residency restrictions, regular registration requirements, and a stigma that impacts every area of your life.

Legal Defenses to California Child Pornography Charges

“I didn’t know it was child porn!” is one of the most common responses from people arrested for this offense. Lack of knowledge is indeed a valid legal defense since the law requires that you knew the material depicted a minor.

However, prosecutors can try to prove knowledge circumstantially based on factors like the nature of the content and how it was stored/accessed.

Other potential defenses against Penal Code 311.11 charges include:

• The material did not actually depict anyone under 18 years old
• You did not knowingly possess or control the material
• The child porn was accessed or downloaded unintentionally
• Law enforcement found the material through an illegal search
• You were the victim of false accusations or mistaken identity

An experienced criminal defense lawyer can assess the evidence and determine which defenses may be most effective in your case. Given the complexity of these cases and the zealousness with which they are prosecuted, having a skilled attorney is vital.

The Court Process for Child Pornography Charges

Being arrested is just the start of what can be a long, daunting legal battle. While each case is different, a general outline of the process is:

1. Arrest and booking – After an investigation, you are taken into custody, processed, and typically held in jail.
2. Arraignment – Your first court appearance where charges are read and you enter an initial plea.
3. Preliminary hearing – For felonies, a “probable cause” hearing where a judge decides if there is enough evidence for trial.
4. Pretrial motions and discovery – Your lawyer may file motions to suppress evidence or obtain key information from prosecutors.
5. Jury trial – If a plea deal is not reached, your case may go before a jury who will decide your guilt or innocence after hearing evidence from both sides.
6. Sentencing – If you are convicted, the judge will impose a sentence based on the charges and aggravating/mitigating factors.

Throughout this process, your attorney will work to poke holes in the prosecution’s case and either get the charges reduced/dismissed or attain the most favorable outcome possible under the circumstances. Having skilled representation from the outset is crucial.

What Most People Don’t Know About PC 311.11 Charges

There are many misconceptions surrounding child pornography laws in California. Here are a few important things to know:

• Viewing child porn online without downloading is still illegal. Knowingly accessing and viewing an image can be considered possession even if you don’t save it.
• You can still be charged if the minor was your girlfriend/boyfriend. The law is very strict and consent/ relationship status is not a defense.
• A conviction will likely impact professional licenses, child custody, and immigration status in addition to resulting in sex offender registration.
• The mere accusation of this offense can turn your life upside down, even if you are ultimately exonerated. The social stigma can be severe.
• The investigation may have involved extensive surveillance and covert tactics to gather evidence long before your arrest.
• If convicted, sexually violent predator (SVP) laws may keep you confined even after serving your sentence if deemed a continuing threat.
• Getting charges reduced to a non-registerable offense is difficult but not impossible with a skilled attorney.

FAQs on California Child Porn Charges

Can I be convicted if I thought the person was over 18?

If the prosecution proves you had reason to know or should have known the material depicted a minor, your belief about their age is not a defense. But an honest mistake of age may help in plea negotiations.

Will I have to register as a sex offender for related charges?

California has tiered sex offender registration now. Some related offenses like PC 311.3 sexual exploitation of a child require Tier 2 or 3 registration while others may allow avoiding the registry with a skilled negotiator.

Should I just plead guilty if the evidence seems strong?

Never plead guilty to child pornography charges without first consulting an experienced defense lawyer. Skilled counsel may be able to suppress key evidence, reduce the charges, or mitigate the sentence.

How The Nieves Law Firm Can Protect Your Rights

The severe penalties and lifelong consequences of a child pornography conviction make it critical to have an aggressive, experienced attorney in your corner. At The Nieves Law Firm, our team of accomplished defense lawyers provides zealous advocacy for clients facing these charges.

We offer:

• A rigorous analysis of the evidence to identify weaknesses in the prosecution’s case
• In-depth knowledge of the latest case law, statutes, and technologies involved in PC 311.11 cases
• Skill in negotiating with prosecutors to get charges reduced or dismissed when possible
• Extensive experience defending clients at trial in both state and federal courts
• A focus on discretion and protecting your reputation as well as your freedom

If you or a loved one has been arrested for possession of child pornography, do not lose hope. Effective defenses may be available. Start regaining control of your future by contacting us for a confidential consultation today.