Penal Code § 311.11 PC – Possession of Child Pornography in California

California Penal Code §311.11 PC makes it a crime to have possession of child pornography produced using a minor under the age of 18. The offense can be charged as a misdemeanor or felony and is punishable by up to 1 year in county jail or up to 3 years in state prison.

Examples

• having child porn videos on a laptop knowing that they contain 15-year-old girls.
• keeping pictures of young teens engaged in sexual acts in a bedroom closet.
• saving videotapes of young boys masturbating.

Legal Defenses

• you did not know that the person was under 18,
• you did not possess any child pornography,
• you were entrapped,
• the police coerced your confession,
• you were legally insane,
• you were falsely accused, or
• the police committed an unlawful search and seizure.

Our California criminal defense attorneys will address the following in this article:

• 1. The law
• 2. Defenses
• 3. Penalties
• 4. Statute of limitations
• 5. Expungements
• 6. Related offenses
• Additional resources

1. The law

California prosecutors must prove two things to convict you of possessing child pornography under PC 311.11. These are:

1. you knowingly possessed or controlled “child pornography,” and
2. you did so while also knowing that it depicted a person under the age of 18 engaging in sexual conduct.¹

“Child pornography” is defined as:

1. any matter or material,
2. depicting “sexual conduct,”
3. by a person under 18 years of age.²

“Sexual conduct” includes such acts as:

• sexual intercourse,
• oral copulation,
• anal intercourse,
• sadomasochistic abuse,
• sexual activity with objects, and
• bestiality.³

“Possession” can be either:

• “actual possession,” which is knowingly holding or carrying the child pornography materials;
• “constructive possession,” which is knowingly keeping the materials in a location you have control over such as your home, car, or storage unit; or
• “joint possession,” which is knowingly sharing possession with another person(s) such as a friend or roommate.

If you have only “fleeting possession” of the materials, that should not qualify as criminal. An example is if a co-worker hands you a packet of child pornography, and you give it right back upon realizing what it is.

Note that PC 311.11 does not apply to images where computer software was used to replace an adult’s head with a child’s head.⁴

2. Defenses

Here at Shouse Law Group, we have represented literally thousands of people charged with sex crimes such as child pornography. In our experience, the following defenses have proven very effective with prosecutors, judges, and juries.

1. You thought the child was at least 18 (“mistake of fact”). For you to be convicted of violating PC 311.11, the D.A. has to prove that you knew the person in the subject pornographic material was under the age of 18. As long as the state has insufficient evidence of what you knew, the charge cannot stand.
2. You never possessed any child pornography. Being near child pornography or knowing someone who has child pornography does not rise to the level of being “in possession.” As long as the D.A. cannot prove you had actual or constructive possession of child pornography materials, the case should be dismissed.
3. You were entrapped. Police are allowed to trick you such as by going undercover and suggesting you break the law, but they cannot pressure or threaten you into committing a crime that you are not predisposed to commit. If we can show you would never have possessed the child pornography but for the police’s entrapment, the court should dismiss the case.
4. The police coerced your confession. If you confessed to police during an interrogation, we would go over the transcript in search of evidence that the police unduly pressured or threatened you to admit guilt. If it appears law enforcement illegally drew out your confession, the judge should suppress it as evidence.
5. You were legally insane. In rare cases, it may be a viable defense to argue you are not guilty by reason of insanity if we can show that you did not understand either the nature of your criminal act or that what you were doing was morally wrong. We would rely on medical expert testimony to demonstrate what your state of mind was.
6. You were falsely accused. Perhaps someone was trying to get you into trouble out of revenge or anger. In many cases, we can use the accuser’s own text messages and voicemails to show prosecutors their motivation to lie. Once they see your accuser’s credibility has been impeached, they may drop your charge.
7. The police’s search was illegal. If police found the child pornography without a valid search warrant – or without a valid reason for a warrantless search – then we could ask the court to suppress the materials as evidence. If the court agrees, the D.A. may be forced to drop the case for lack of proof.⁵

Note that it is not a defense that the child depicted in the materials consented. California’s age of consent is 18, which means no minor under 18 can lawfully consent.

3. Penalties

Violating PC 311.11 is a wobbler, which means a prosecutor can charge it as either a misdemeanor or a felony. In either case, you will have to register as a sex offender.

A misdemeanor conviction is punishable by:

• custody in county jail for up to 1 year, and/or
• a maximum fine of $2,500.⁶

A felony conviction is punishable by:

• a state prison sentence of 16 months, 2 years, or 3 years, and/or
• a fine of up to $2,500.

However, the maximum felony sentence increases from 3 to 5 years if either:

• The child pornography consists of more than 600 images or 12 videos, and it contains at least 10 images of a prepubescent minor or any minor under 12 years old; or
• The child pornography portrays sadism or sexual masochism with a minor.

Note that possessing child pornography is not a strike offense. However, it is always prosecuted as a felony if you have a prior conviction of any offense requiring sex offender registration. In this case, the potential prison term is 2, 4, or 6 years.⁷

Also note that if you are sentenced to jail or prison for possessing child pornography, the court may not grant you a “split sentence” (also called a “joint sentence.”) This means you may not serve any of your sentence on work release, work furlough, or house arrest.

However, you can potentially shave off up to half of your jail or prison sentence by earning “good conduct” credits by being a model inmate.

Probation

California judges may grant probation instead of incarceration on a case-by-case basis. As long as you follow all of the court’s conditions, you can remain out of custody.

In misdemeanor cases, probation is called “informal probation” or “summary probation.” Here, you have no official probation officer and instead report directly to the court.

In felony cases, probation is called “formal probation.” You report directly to a probation officer, and you have more conditions than with informal probation.

Other consequences

In addition to fines and incarceration, the possession of child pornography may also result in:

• restitution payments to any victims;
• court fees (which are separate from criminal fines);
• restraining orders;
• losing various civil rights while you are in custody;
• having your professional license revoked or suspended;
• losing your gun rights (if you are convicted of felony child pornography possession); and/or
• potentially losing legal or custodial rights over your children in ongoing family law cases.

Comparison of related offenses

Child pornography crime	California penalties
PC 311.11 – Possession	Misdemeanor: Up to 1 year in jail and/or $2,500 or Felony: 16 months, 2 years, or 3 years in prison and/or $2,500
PC 311.2 – Production/distribution/exhibition of obscene matter	Misdemeanor: Up to 1 year in jail and/or $2,000 or Felony: 16 months, 2 years, or 3 years in prison and/or $10,000 OR 2, 3, or 6 years and/or $100,000.
PC 311.4 – Employing children to sell/distribute pornography	Misdemeanor: Up to 1 year in jail and/or $2,000 or Felony: 16 months, 2 years, or 3 years in prison and/or $10,000

4. Statute of limitations

In general, California prosecutors must bring misdemeanor charges for child pornography possession within one year of the alleged possession. For felony charges, the statute of limitations is three years after the alleged possession.⁸

5. Expungements

You can get a misdemeanor PC 311.11 conviction expunged if you complete

• your jail term, or
• probation (whichever was imposed).

Felony convictions are not expungeable.

6. Related offenses

Lewd acts with a child – PC 288

Penal Code 288 PC defines the crime of “lewd and lascivious acts with a minor child” as either:

1. touching a child for sexual purposes, or
2. causing a child to touch themself or someone else for a sexual purpose.

Unlike PC 311.11 violations, convictions under this law are always charged as felonies.

Statutory rape – PC 261.5

Per Penal Code 261.5 PC, statutory rape is having sex with a minor under 18 (and you are not married to each other).

As with PC 311.11, violations of this law are wobbler offenses.

Revenge porn – PC 647j4

Penal Code 647j4 PC criminalizes certain acts of “revenge porn.”

Unlike obscene matter subject to PC 311.11, illegal porn under this law can involve both minors and adults.

Additional reading

For more in-depth information, refer to these scholarly articles:

• The Perverse Law of Child Pornography – Columbia Law Review.
• Child Pornography Law: Does it Protect Children? – Journal of Social Welfare and Family Law.
  
• Defining Child Pornography: Law Enforcement Dilemmas in Investigations of Internet Child Pornography Possession – Police Practice and Research.
• The Expansion of Child Pornography Law – New Criminal Law Review.
• Legal definitions of child pornography – Journal of Sexual Aggression.

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