Arrested for Production of Child Pornography (Penal Code § 311.4) in California?

If you’ve been arrested for production of child pornography under California Penal Code § 311.4, you are facing extremely serious felony charges. A conviction for this offense can result in years or even decades in state prison, huge fines, and lifetime registration as a sex offender. Before you talk to police or make any decision about your case, you need to understand the law, the potential penalties, and your legal options.

What is Production of Child Pornography Under California Penal Code 311.4 PC?

Penal Code 311.4(a) makes it a felony to knowingly produce or direct the production of any child pornography using a person under 18, or to knowingly develop, duplicate, print or exchange it. The statute states:

(a) Every person who, with knowledge that a person is a minor, or who, while in possession of any facts on the basis of which he or she should reasonably know that the person is a minor, hires, employs, or uses the minor to do or assist in doing any of the acts described in Section 311.2, is guilty of a felony and shall be punished by imprisonment in the state prison for three, six, or eight years.

PC 311.4(b) makes it a felony for anyone involved in the commercial production of child porn to knowingly promote, employ, use, persuade, induce or coerce a minor under 18 to engage in or assist others to engage in either posing or modeling alone or with others for purposes of preparing a film, photograph, negative, slide, or live performance involving sexual conduct by the minor.

PC 311.4(c) is known as the “sexual exploitation of a child” law. It makes it a crime to knowingly permit a minor under your custody or control to be used for child pornography. This section applies even if you were not directly involved in the production.

Elements of Child Pornography Production Charges

To convict you under PC 311.4, the prosecution must prove:

1. You knowingly produced, directed, promoted, employed, used, persuaded, induced or coerced a minor to engage in child pornography, OR
2. You knowingly permitted a minor in your custody to participate in production of child porn
3. You knew the person was under 18 years old or reasonably should have known based on the facts
4. The material depicted the minor engaged in or simulating sexual conduct

Unlike Penal Code 311.11 which criminalizes mere possession, PC 311.4 targets those involved in actually making the unlawful material or allowing it to be made.

Penalties for Producing Child Pornography under PC 311.4

Production of child pornography is always a felony in California. The specific penalties depend on the circumstances and your criminal history:

• PC 311.4(a) hiring/employing minor for porn: 3, 6, or 8 years in state prison.
• PC 311.4(b) commercially producing child porn: 3, 6, or 8 years state prison.
• PC 311.4(c) sexual exploitation of child: Up to 1 year county jail or 16 months, 2, or 3 years state prison if parent/guardian; 3, 6, or 8 years state prison if not parent/guardian.

Additionally, all PC 311.4 convictions result in:

• Up to $100,000 in fines
• Mandatory lifetime sex offender registration under Penal Code 290 PC
• Formal (felony) probation after release

A prior conviction related to child porn or certain sex offenses increases the potential prison sentence to 16 months, or 2, 4 or 6 years.

Aside from the official penalties, a child pornography production conviction has massive collateral consequences. From difficulty finding employment and housing due to being on the sex offender registry, to issues with professional licensing and child custody, this offense turns your life upside down.

Legal Defenses to PC 311.4 Child Porn Production Charges

Given the grave nature of these charges, a robust legal defense is vital. A skilled criminal defense attorney will scrutinize all evidence to determine the most effective strategy. Common defenses to producing child pornography charges include:

Lack of Knowledge

You must have actually known that the person in the material was a minor or reasonably should have known based on facts you had at the time. An honest mistake about their age could be a defense if you had good reason to believe they were an adult.

No Sexual Conduct Depicted

The material must show the minor actually engaged in or simulating sexual conduct. Mere nudity is not enough. If the images don’t meet the definition of child pornography, that’s a defense.

False Accusations

It’s an unfortunate reality that people sometimes make up allegations of child sexual abuse out of anger, jealousy, or to gain an advantage in family court. If the charges are fabricated, a thorough investigation may uncover motives and inconsistencies that prove your innocence.

Police Misconduct

If law enforcement violated your constitutional rights in obtaining evidence, such as conducting an illegal search or coercing a confession, that evidence may get suppressed. This can greatly weaken the prosecution’s case.

Insufficient Evidence

The prosecutor must prove every element of the offense beyond a reasonable doubt. If there are gaps in their case or evidence that contradicts their allegations, that can be basis for acquittal.

An experienced attorney will know what to look for in the discovery process and how to effectively deploy defenses in negotiations or at trial. Having top-notch representation from the outset is key.

What to Expect If You’ve Been Charged Under PC 311.4

The court process after an arrest for producing child pornography can be long and complex. While each case is unique, a general outline includes:

1. Investigation and arrest: Law enforcement conducts an investigation, often involving search warrants and seizures of devices, before making an arrest. You will be taken into custody and booked into jail.
2. Arraignment: Your first court appearance, typically within 48 hours of arrest. Charges are read, the judge decides on bail, and you enter an initial plea (usually not guilty at this stage).
3. Preliminary hearing: A probable cause hearing where the judge determines if there is enough evidence for the felony case to move forward to trial.
4. Pretrial motions and discovery: Your lawyer may file motions to suppress illegally obtained evidence, compel additional discovery, or dismiss charges.
5. Plea bargaining: The vast majority of criminal cases resolve through negotiated plea bargains before trial. Your lawyer will advocate for the most favorable deal possible.
6. Jury trial: If no agreement is reached, your case will be decided by a jury of your peers. They must find you guilty beyond a reasonable doubt to convict. You have the right to testify or remain silent.
7. Sentencing: If you are found guilty by plea or after trial, the judge will impose a sentence based on the charges, aggravating/mitigating factors, and your criminal history.

Having a proactive, aggressive defense lawyer fighting for you at every stage is critical.

What to Know About Child Pornography Production Charges

There are many misunderstandings surrounding California child pornography laws. Key facts about PC 311.4 include:

• The charge applies even if the minor consented and no force or coercion was used. Minors cannot legally consent.
• Producing child porn of your own child is not a defense and can actually lead to harsher penalties and additional child abuse charges.
• Upskirt photos or surreptitious recordings of minors that capture sexual conduct can be prosecuted under this law even if the minor was unaware.
• You can be charged with both production and possession of the same materials.
• Federal child pornography charges may apply in addition to California charges if jurisdictional requirements are met.
• Mandatory sex offender registration applies for life, even if you don’t serve prison time. Tiers only impact the frequency of registration.

How The Nieves Law Firm Can Defend Your Case

Allegations of producing child pornography are incredibly serious, carrying severe criminal penalties and lifelong consequences. You need a law firm with extensive experience handling these sensitive, high-stakes cases.

At The Nieves Law Firm, our skilled sex crimes attorneys are dedicated to providing the strongest possible defense for clients facing PC 311.4 charges. We offer:

• A meticulous review of all evidence to identify weaknesses in the prosecution’s case
• Vast knowledge of child pornography laws, technology, and the most effective defense strategies
• Relationships with respected experts to challenge forensic evidence and evaluate your case
• Tireless negotiations to get charges reduced or dismissed whenever possible
• Extensive trial experience and courtroom skill to advocate for acquittal
• Commitment to protecting your future and reputation, not just avoiding a conviction

Don’t facing child porn production charges alone. Contact us today for a confidential consultation. Let our team start building your defense immediately.