California Penal Code § 311.2 PC prohibits people from knowingly transporting, duplicating or possessing child pornography or other obscene material with the intent to distribute or show it to others. The penalties vary depending on the circumstances. But it is always a felony to possess child porn with the intent to sell it, carrying two, three, or six years in California State Prison and/or up to $100,000 in fines.
The full text of the statute reads as follows:
311.2. (a) Every person who knowingly sends or causes to be sent, or brings or causes to be brought, into this state for sale or distribution, or in this state possesses, prepares, publishes, produces, or prints, with intent to distribute or to exhibit to others, or who offers to distribute, distributes, or exhibits to others, any obscene matter is for a first offense, guilty of a misdemeanor. If the person has previously been convicted of any violation of this section, the court may, in addition to the punishment authorized in Section 311.9, impose a fine not exceeding fifty thousand dollars ($50,000).
(b) Every person who knowingly sends or causes to be sent, or brings or causes to be brought, into this state for sale or distribution, or in this state possesses, prepares, publishes, produces, develops, duplicates, or prints any 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, with intent to distribute or to exhibit to, or to exchange with, others for commercial consideration, or who offers to distribute, distributes, or exhibits to, or exchanges with, others for commercial consideration, any obscene matter, knowing that the matter depicts a person under the age of 18 years personally engaging in or personally simulating sexual conduct, as defined in Section 311.4, is guilty of a felony and shall be punished by imprisonment in the state prison for two, three, or six years, or by a fine not exceeding one hundred thousand dollars ($100,000), in the absence of a finding that the defendant would be incapable of paying that fine, or by both that fine and imprisonment.
(c) Every person who knowingly sends or causes to be sent, or brings or causes to be brought, into this state for sale or distribution, or in this state possesses, prepares, publishes, produces, develops, duplicates, or prints any 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, with intent to distribute or exhibit to, or to exchange with, a person 18 years of age or older, or who offers to distribute, distributes, or exhibits to, or exchanges with, a person 18 years of age or older any matter, knowing that the matter depicts a person under the age of 18 years personally engaging in or personally simulating sexual conduct, as defined in Section 311.4, shall be punished by imprisonment in the county jail for up to one year, or by a fine not exceeding two thousand dollars ($2,000), or by both that fine and imprisonment, or by imprisonment in the state prison. It is not necessary to prove commercial consideration or that the matter is obscene in order to establish a violation of this subdivision. If a person has been previously convicted of a violation of this subdivision, he or she is guilty of a felony.
(d) Every person who knowingly sends or causes to be sent, or brings or causes to be brought, into this state for sale or distribution, or in this state possesses, prepares, publishes, produces, develops, duplicates, or prints any 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, with intent to distribute or exhibit to, or to exchange with, a person under 18 years of age, or who offers to distribute, distributes, or exhibits to, or exchanges with, a person under 18 years of age any matter, knowing that the matter depicts a person under the age of 18 years personally engaging in or personally simulating sexual conduct, as defined in Section 311.4, is guilty of a felony. It is not necessary to prove commercial consideration or that the matter is obscene in order to establish a violation of this subdivision.
(e) Subdivisions (a) to (d), inclusive, do not apply to the activities of law enforcement and prosecuting agencies in the investigation and prosecution of criminal offenses, to legitimate medical, scientific, or educational activities, or to lawful conduct between spouses.
(f) This section does not apply to matter that depicts a legally emancipated child under the age of 18 years or to lawful conduct between spouses when one or both are under the age of 18 years.
(g) It does not constitute a violation of this section for a telephone corporation, as defined by Section 234 of the Public Utilities Code, to carry or transmit messages described in this chapter or to perform related activities in providing telephone services.
Legal Analysis
PC 311.2 makes it a California crime to knowingly possess, duplicate, exhibit or transport obscene matter or child pornography (such as photos or videos) with the intent to distribute it. The penalties turn on the specifics of the case:
| PC 311.2 offense | Punishment |
| Obscene matter not involving children, and the defendant intends to distribute it | Misdemeanor:
Subsequent violations carry a possible additional fine of up to $50,000. |
| Obscene matter involving children under 18, and the defendant intends to sell it (“commercial consideration”) | Felony:
A conviction also carries sex offender registration. |
| Matter (whether obscene or not) involving children under 18 engaging or simulating sexual conduct, and the defendant intends to give the matter to an adult 18 or older | Misdemeanor or a felony:
A conviction may also require sex offender registration. Subsequent offenses are always felonies. |
| Matter (whether obscene or not) involving children under 18 engaging or simulating sexual conduct, and the defendant intends to give the matter to a child under 18 | Felony:
A conviction also requires sex offender registration.1 |
California courts qualify matter as “obscene” if:
- it shows or describes sexual conduct in an offensive way,
- a reasonable person would conclude that it lacks serious literary, artistic, political, or scientific value, and
- an average adult person would conclude that it appeals to a prurient interest (which is a shameful or morbid interest in sex, nudity, or excretion).2
The main defense to these charges is that the defendant did not act knowingly. People who were genuinely unaware that they possessed obscene materials or child porn are not criminally liable under PC 311.2.3
Comparison of related offenses
| Child pornography crime | California penalties (generally) |
| 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 |
Legal References
- California Penal Code 311.2 PC – Production, distribution, or exhibition of obscene matter.
- CALCRIM 1141. See also Bloom v. Municipal Court (1976) 16 Cal.3d 71; and, Pope v. Illinois (1987) 481 U.S. 497.
- People v. Harris (Cal. App. Dep’t Super. Ct., 1961), 192 Cal. App. 2d Supp 887. People v. Haraszewski (Cal. App. 4th Dist., 2012), 203 Cal. App. 4th 924.