Under the California Penal Code a range of conduct, involving obscene material showing a minor engaging in sexual contact or “child pornography” is criminalized. One of the most common examples involves the production and distribution of child pornography. To prove that the defendant is guilty of this crime, the People must prove that:
1. The defendant sent or brought obscene matter into California or caused obscene matter to be sent or brought into California; OR the defendant possessed or prepared or published, or produced, or developed, or duplicated, or printed obscene matter; OR the defendant offered to distribute obscene matter to someone else; OR The defendant distributed or showed or exchanged obscene matter to or with someone else;
2. When the defendant acted, he or she knew the character of the matter;
3. When the defendant acted, he or she knew that the matter showed a person under the age of 18 years who was personally participating in or simulating sexual conduct;
4. When the defendant acted, he or she intended to sell or distribute, show, or exchange the matter to someone else for money or other commercial benefit.
There are cases in which the content clearly falls within the category of obscene matter showing a minor engaging in sexual contact; however, the State must establish evidence that the material in question was, in fact, obscene. Matter is considered obscene if, when considered as a whole:
1. It shows or describes sexual conduct in an obviously offensive
2. A reasonable person would conclude that it lacks serious literary, artistic, political, or scientific value;
3. An average adult person, applying contemporary statewide standards, would conclude it appeals to a prurient interest.
Besides the conduct outlined above the California Penal Code also considers it a felony
to employ, use, or persuade a minor to engage in or assist others in posing or modeling for the purpose of preparing a commercial or noncommercial film or other medium involving sexual conduct by a minor. (See Pen. Code, § 311.4(b), (c).) Producing child pornography and posting it on the Internet to induce others to trade such pornography without making a monetary profit satisfies the “commercial purposes” requirement of Penal Code section 311.4(b).
If you are convicted for violating a California child pornography law under Penal Code 311, you face a variety of penalties and sentencing, depending on (1) the exact offense with which you are charged, (2) your criminal history, and (3) whether you are charged with a state or federal crime.
As previously stated, child porn offenses are typically prosecuted as felonies, although they can be charged as misdemeanors.
Misdemeanor California child pornography sentences can include jail sentences of up to one year and fines of up to $2,500. Felony sentences can include California State Prison sentences between sixteen months and eight years with fines of up to $100,000.
Defendants with a prior conviction for child pornography or a similar offense may face enanced penalties. Further, a child pornography conviction will require lifetime registration as a sex offender.
Defenses to child pornography related offenses could involve two main areas. The first defense may involve attacking the intent element of the crime. A defendant must knowingly produce, possess or distribute child pornography; this implies that the Defendant was aware that the content was in fact child pornography. Further, the Defendant may also attack the fact that the material is, in fact, obscene and contains serious literary, artistic, political, or scientific value, which is not offense to a reasonable member of the community.
Given the high risk involved with a child pornography charge, it is important to seek experienced counsel if you are the subject of an investigation or are detained by law enforcement. Regardless of whether or not the case proceeds to trial, the seriousness of a California child pornography charge requires the assistance of a skilled and committed California criminal lawyer who knows every legal argument when defending clients.
If you have been arrested for the crime of child pornography in the Visalia, California area, contact an expert criminal lawyer as soon as possible to protect your legal rights.
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