The possession of child pornography within the State of California is a serious crime under both state and federal law. While most charges related to the possession of child porn are covered under California state law, you could be charged under federal law in certain circumstances as well. Regardless of whether the charges are in state or federal court, the repercussions of a conviction are enormous.
Facing accusations of child pornography can have an adverse impact on your ability to maintain employment, housing, or even relationships. What's more, a conviction of these crimes could cost you years of your life in the prison system and register you as a sex offender. If you or a loved one are facing a charge of child pornography in L.A. County, William S. Kroger Attorney at Law is ready to help you understand the charges against you as well as fight back.
Child Pornography Laws in California
Generally speaking, it is unlawful under California Penal Code § 311.11 to send, transport, duplicate, print, exchange, advertise or possess child pornography, and to hire or persuade minors to participate in making child pornography. This includes sharing or downloading images or videos on the internet.
The penalties for a conviction vary, but can either be a straight felony or what is known as a “wobbler.” In California, a wobbler is any criminal charge that can be filed as either a misdemeanor or a felony at the prosecutor's discretion.
State vs. Federal Child Porn Charges
The acts made illegal by California Penal Code § 311.11 are also covered entirely by federal law. In fact, it is possible that any allegation that leads to a California child pornography charge could also bring about a federal case. The major difference is that federal charges carry far more severe sentences than their California state law counterparts.
Just because it's possible for a federal prosecutor to bring charges of child pornography in federal court doesn't mean they will, however. In most cases, the federal government will leave the prosecution of these crimes to state authorities. However, a federal prosecutor is more likely to file charges in cases where the production or distribution of child pornography involves a large-scale operation.
Elements of California Child Pornography Law
It is unlawful to possess child pornography, but what does that actually mean under the law? According to statute, child pornography is:
- Any material
- Depicting sexual conduct
- By a person under the age of 18
In California, material means any representation of information, data, or image. This can include anything from Polaroid photos to computer hardware to filmstrips. The law is intentionally broad, with the intent to cover any possible medium for conveying or distributing child pornography.
Sexual conduct is also construed very broadly under California law. In fact, the law covers both actual sex acts that are performed as well as sexual activities that are merely simulated. Sexual conduct can include any form of intercourse, masturbation, exhibitionism, or other lewd acts outline in California law.
Under the Age of 18
Obviously, California Penal Code § 311.11 only applies to children under the age of 18. If the alleged victim was 18 years or older at the time, California Penal Code § 311.11 does not apply. There are, however, two exceptions regarding minors under the age of 18:
Emancipated Minors – You cannot be charged for the employment or use of a minor in pornography if the minor has been legally emancipated.
Underage Spouses – California child pornography laws do not apply to conduct between spouses when one or both spouse is under the age of 18.
Penalties for Child Pornography
The penalty for a conviction of possession of child pornography can either be charged as a wobbler or a straight felony depending on the circumstances surrounding the crime. Additionally, any conviction for child pornography will lead to permanent placement on the child sex offender registry.
Any charge of possession of child pornography that qualifies as a wobbler can be charged as a misdemeanor or a felony at the prosecutor's discretion. A wobbler charged as a misdemeanor carries a maximum sentence of 1 year in county jail and a fine of $2,000. A wobbler charged as a felony carries 16 months, two years, or three years in state prison as well as a fine of up to $10,000.
Any child pornography charge that doesn't qualify as a wobbler is treated as a felony in California. Depending on the circumstances, a conviction can carry a penalty of up to 8 years in prison and a maximum fine of $10,000. Common felony charges include knowingly persuading or coercing a minor into creating child pornography, or knowingly distributing child pornography to a person under the age of 18.
Child Pornography Charge Defenses
The mere allegation of possessing child pornography is incredibly damaging; a conviction even more so. That's why hiring the right criminal defense attorney is so important. There are a variety of valid defenses in child pornography cases that your attorney may rely on.
The best and the most obvious defense in a child pornography case is to show that the alleged victim is not under the age of 18. Mistakes are made, and in many cases, people appear much younger than their actual age. The issue is black and white, so even if a person holds themselves out as being under 18, a crime hasn't been committed if they were actually of legal age.
It is a potential defense if your lawyer can show a jury you were coerced or harassed into committing a crime by law enforcement. This can often take place through elaborate sting operations targeting you from the outset. While rare, this defense has been successful in the past.
False accusations happen every day. Whether it was the result of a mistake or malice, innocent people still get accused of crimes frequently. If you were falsely accused of possession of child pornography, your lawyer might be able to prove your innocence to a jury.
LA County Criminal Defense Attorney is your Advocate
If you or a loved one have been charged with possession of child pornography in L.A. County, contact William S. Kroger Attorney at Law for a free consultation today.