Arrested for Using a Minor for Obscene Purposes (Penal Code § 311.3) in California?

If you’ve been arrested for using a minor for obscene purposes under California Penal Code § 311.3, you’re facing extremely serious charges with severe, lifelong consequences.

A conviction for this offense can result in years in state prison, huge fines, and mandatory lifetime registration as a sex offender. Before saying anything to the police or making decisions about your case, you need to understand the law, the potential penalties, and what legal defenses may be available.

What Does “Using a Minor for Obscene Purposes” Mean Under PC 311.3?

Penal Code 311.3(a) makes it a felony to knowingly depict by film, photograph, video recording, AI or computer generated image, or any other means a person under 18 years old engaging in or simulating sexual conduct. The statute prohibits depicting minors alone or with others for obscene purposes.

PC 311.3(b) and 311.4(d) define the sexual conduct covered to include:

• Sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal contact
• Masturbation
• Bestiality
• Lewd or lascivious exhibition of genitals, pubic, or rectal area
• Defecation or urination for sexual purposes
• Penetration of the vagina or rectum by any object
• Sadomasochistic abuse for sexual purposes

To get a conviction under PC 311.3, prosecutors must prove:

1. You knowingly participated in depicting a minor engaged in real or simulated sexual conduct through photography, video, film, computer image, etc.
2. You were aware of the obscene character and content of the depiction
3. You knew the person depicted was under 18 or reasonably should have known based on the circumstances

In essence, PC 311.3 targets those involved in the production and creation of child pornography and related obscene content exploiting minors. Distribution is not required for conviction, only your role in producing the unlawful material.

Penalties for Violating Penal Code 311.3 PC

Using a minor for obscene purposes is always a felony offense in California, carrying severe criminal penalties. If convicted, you face:

• 3, 6 or 8 years in California state prison
• A fine of up to $50,000
• Lifetime registration as a sex offender under Penal Code 290 PC

On top of that, the judge has the discretion to impose an additional fine of up to $2,000 to be deposited into the Victim-Witness Assistance Fund.

Prior convictions for PC 311.3 or related offenses like possession of child pornography can significantly increase the potential prison sentence. In some cases, you could face 6, 8, or 12 years in state prison.

But beyond incarceration and fines, the lifelong repercussions of mandatory sex offender registration are devastating. You’ll have to register with law enforcement annually and every time you move. Your name, photo, and information about your conviction will be publicly available on the Megan’s Law website. This can severely restrict where you can live and work, leading to ongoing stigma and challenges long after you’ve served your sentence.

Legal Defenses to PC 311.3 Charges

With such harsh potential consequences, you need a powerful, proactive legal defense to fight PC 311.3 charges. An experienced criminal defense attorney will scrutinize all evidence in your case to determine the most effective strategies, which may include:

Lack of knowledge of the minor’s age

If you genuinely and reasonably believed the person depicted was 18 or older, that can form a mistake of age defense. However, prosecutors will look at the totality of circumstances to argue you should have known. Factors like the apparent age of the alleged victim, the nature of the material, and the context will be considered.

Content doesn’t meet the definition of “obscene”

The depiction must involve actual or simulated sexual conduct, not just mere nudity or suggestive acts. If the material doesn’t rise to the level of “obscene” under the statutory definition, the charges can’t be sustained.

False allegations

Sadly, false accusations of child sexual exploitation are not uncommon. Alleged victims may have ulterior motives to fabricate charges, such as anger, jealousy, or to gain an upper hand in family court. Eyewitness misidentification can also lead to wrongful arrests. A skilled attorney will examine all evidence to expose inconsistencies and lies.

Illegal search and seizure

If police violated your Fourth Amendment rights in obtaining evidence against you, such as searching without a warrant or probable cause, your lawyer can file a motion to suppress that evidence. If key evidence is thrown out, it can severely weaken the prosecution’s case.

Insufficient evidence of intent

The prosecutor must prove beyond a reasonable doubt that you knowingly participated in creating the obscene content. If evidence of your intent is lacking or ambiguous, it can be grounds for acquittal.

These are just some of the many defenses that may apply, depending on the unique facts of your case. Having an attorney who will leave no stone unturned and aggressively challenge the allegations is absolutely critical.

The Court Process After a PC 311.3 Arrest

The criminal court process after an arrest for using a minor for obscene purposes can be lengthy, daunting, and confusing. While every case is different, here’s a general idea of what to expect:

1. Arrest and Arraignment – After your arrest, you’ll be brought to court for your first appearance, called an arraignment. Here, the judge will read the charges against you and ask for your initial plea.
2. Pretrial Conferences – These are meetings between your lawyer, the prosecutor, and the judge to discuss the status of the case. Your attorney will negotiate with the DA, file motions to suppress evidence or dismiss charges, and obtain discovery (evidence) from the prosecution.
3. Preliminary Hearing – Since PC 311.3 is a felony, you have the right to a preliminary hearing. This is a sort of “mini-trial” where the judge decides if there is probable cause to make you stand trial on the charges.
4. Pretrial Motions and Plea Bargaining – After the preliminary hearing, your lawyer may file additional motions to challenge evidence or charges. Plea bargaining will also continue.
5. Jury Trial – If your case is not resolved through dismissal or a plea, it will go to a jury trial. The jury will hear evidence from both sides and must reach a unanimous verdict on guilt.
6. Sentencing – If you’re convicted by plea or after trial, the final stage is sentencing. The judge will consider aggravating and mitigating factors and decide whether to impose the low, mid or high term sentence under the PC 311.3 sentencing scheme.

This process can take several months and sometimes over a year in complex cases. Having an experienced attorney guide you through it and fight for you every step of the way is invaluable.

Little-Known Facts About PC 311.3 Charges

There are many misconceptions about California’s child pornography and exploitation laws.

Here are a few important things to know about PC 311.3 cases:

• No distribution necessary – You can be convicted of using a minor for obscene purposes even if you never shared or distributed the material. The crime is in the production.
• No commercial profit required – While many PC 311.3 cases involve trying to profit off exploitative content, that’s not required. Creating obscene content of minors for personal gratification is also illegal.
• Relationship to the alleged victim is irrelevant – Sadly, many PC 311.3 cases involve parents exploiting their own children or adults exploiting minor romantic partners. But your relationship with the minor offers no legal protection.
• Separate charges for distribution – If you’re also accused of sharing or selling the content you produced, you can face additional felony charges for distribution of child pornography under PC 311.2.
• Federal charges may apply – Using a minor to produce obscene content can also be charged as a federal crime, often carrying even harsher penalties than California law. State and federal charges can both be brought.
• Sex offender registration is mandatory and lifelong – There is no way to avoid PC 290 sex offender registration if convicted of using a minor for obscene purposes. Even a short jail sentence or probation comes with lifetime registration.
• Professional licenses at risk – A PC 311.3 conviction can bar you from holding professional licenses, such as teaching, nursing, or law. It can also cause immediate termination if you already hold a professional license.

Needless to say, the repercussions of a PC 311.3 conviction are massive. You need an attorney who understands what’s at stake and has a proven track record of success in these cases.

How The Nieves Law Firm Can Protect Your Rights

Being accused of involving a minor in obscene content is a nightmare scenario. You’re likely feeling overwhelmed, ashamed, and terrified about what this means for your life. At The Nieves Law Firm, we understand.

Our knowledgeable attorneys have years of experience successfully defending clients charged with child pornography and exploitation crimes. We know how to build effective defenses in these sensitive, high-stakes cases. When you hire us, we will:

• Meticulously examine all state’s evidence to find weaknesses in their case
• Bring in digital forensic experts to challenge police procedures and technical evidence
• File motions to dismiss charges or suppress illegally obtained evidence
• Skillfully negotiate for reduced charges or alternative sentencing where appropriate
• Take your case to trial and present a vigorous defense if needed
• Offer the compassionate yet aggressive representation you need in this trying time

You don’t have to face PC 311.3 charges on your own. Contact The Nieves Law Firm today for a confidential consultation. Let us start fighting for your rights and future immediately.