Information on the crime of advertising or distributing obscene matter depicting a child (aka child pornography), is found at California penal code section 311.10(a). This summary describes the law, penalties, and common defenses to PC 311.10(a). For more information, contact our sex crimes criminal defense attorneys for a free consultation.
PC 311.10(a) Law
Per PC 311.10(a): Any person who advertises for sale or distribution any obscene matter knowing that it depicts a person under the age of 18 years personally engaging in or personally simulating sexual conduct… is guilty of advertising or distribution of child pornography (PC 311.10(a) Abbrev.).
Obscene Matter: For purposes of PC 311.10(a), “Obscene Matter” means pictures, videos, or depictions of a child or children engaging in sexual conduct, which is patently offensive to the average person and lacks any serious literary, artistic, political, or scientific value (PC 311(a) Definition Abbrev. & Extrapolated).
Sexual Conduct: For purposes of PC 311.10(a), “Sexual Conduct” means any of the following, whether actual or simulated: sexual intercourse, oral copulation, anal intercourse, anal oral copulation, masturbation, bestiality, sexual sadism, sexual masochism, penetration of the vagina or rectum by any object in a lewd or lascivious manner, exhibition of the genitals or pubic or rectal area for the purpose of sexual stimulation of the viewer, any lewd or lascivious sexual act as defined in Section 288, or excretory functions performed in a lewd or lascivious manner, whether or not any of the above conduct is performed alone or between members of the same or opposite sex or between humans and animals. An act is simulated when it gives the appearance of being sexual conduct (PC 314(d)(1) Abbrev.)).
Note: A “child,” for purposes of penal code 311.10(a) law, is any person under the age of eighteen (18) [aka a “minor.”].
Example: John operates an “adult store” where he sells sex toys and videos to his customers. Unbeknownst to John, some of the “adult” videos that he purchased for resale contain underage “performers” engaging in simulated sex acts. Result: John should not be charged with PC 311.10(a) [advertising or distribution of child pornography] because he was unaware of the matter contained in the videos. Similarly, John should not be charged with possession of child pornography for the same reason (PC 311.11(a)).
PC 311.10(a) Penalties
The crime of advertising or distribution of obscene matter depicting a child (child pornography) is classified as a “wobbler” crime in California. This means that PC 311.10(a) may be charged either as a misdemeanor, or alternatively as a felony.
Whether PC 311.10(a) is charged as a misdemeanor or as a felony by the district attorney depends on several factors, including the sophistication level involved in the offense, the defendant’s criminal history, the amount of child pornography that is advertised or distributed by the defendant, and more.
Incarceration: When PC 311.10(a) is charged as a felony, the defendant may face up to 2, 3, or 4 years in a California state prison. When PC 311.10(a) is charged as a misdemeanor, the defendant may face up to a year in a local county jail.
Note: A probation sentence, with or without some prison or jail sentence, is allowed in both felony and misdemeanor PC 311.10(a) cases. For more information, see “Probation Sentence.”
Length of Prison Sentence: The length of a prison sentence after a felony conviction for PC 311.10(a) depends on the facts of the case, the defendant’s criminal history, the terms of any negotiated plea bargain between the defendant and the district attorney, and more.
Example: John is charged with felony advertising or distribution of child pornography. John is facing four (4) years in a California state prison if he is found guilty (Max prison term). However, to avoid the possibility of a judge ordering the maximum four (4) year prison sentence after a jury trial conviction, John enters into a plea bargain with the district attorney wherein he agrees to plead guilty to a misdemeanor PC 311.10(a) offense.
Probation Sentence: A probation sentence is a period of supervision, as opposed to a sentence to prison or jail. As stated, a probation sentence is allowed in both felony and misdemeanor cases of PC 311.10(a). However, a probation sentence is not guaranteed.
Whether a defendant receives a probation sentence after a conviction for either a felony or misdemeanor conviction of penal code 311.10(a) depends on many factors, including the terms of any negotiated plea bargain between the district attorney and the defendant, the fact and circumstances of the case, the sophistication level of the offense, the remorse shown by the defendant, and more.
Note: A probation sentence may include a period of incarceration as a “condition of probation.” However, when a period of incarceration is ordered as a term of probation, that incarceration period is generally much shorter than it would otherwise be if the defendant was not granted a probation sentence.
Example: John is convicted of a felony violation of advertising or distribution of obscene matter depicting a child (child pornography). John is facing up to four (4) years in a California state prison; however, the criminal court judge grants John a probation sentence, as opposed to a prison sentence. As part of the probation sentence, John is ordered to serve six (6) months of county jail as a “condition of probation.”
Note: Incarceration periods that are ordered as part of a probation sentence in PC 311.10(a) cases may usually, but not always, be served alternatively on work release, community service, or house arrest.
Felony v. Misdemeanor Probation: A probation sentence ordered after a felony conviction of PC 311.10(a) is supervised by a felony probation officer (i.e. “formal probation”). A probation sentence ordered after a misdemeanor conviction of penal code 311.10(a) is monitored by the court (i.e. “summary probation”).
Regardless of whether the defendant is granted felony or misdemeanor probation, his or her probation sentence is conditioned upon completion of “probation condition.” The probation condition in PC 311.10(a) cases generally include restraining orders, payment of court fees, “remain out of trouble,” and more.
State Prison Required: If the defendant is convicted of a felony violation of PC 311.10(a), and he is not granted a probation sentence, then he must serve his incarceration in a California state prison, as opposed to a local county jail. Additionally, no part of the defendant’s felony prison sentence may be served out of prison, such as on work release or house arrest, an no part of the defendant’s prison sentence may be “suspended.”
Note: Any incarceration ordered after a conviction of advertising or distribution of child pornography may be reduced by up to fifty percent (50%) is the defendant serves his jail or prison sentence with “good behavior.”
Sex Offender Registration: Both felony and misdemeanor violation of PC 311.10(a) require the defendant to register as a sex offender with the California Department of Justice (DOJ) [PC 290 Registration].
Length of PC 290 Registration: For misdemeanor violations of PC 311.10(a), the defendant must register as a sex offender for at least ten (10) years from the date of release from jail. For felony violations of PC 311.10(a), the defendant must register as a sex offender for at least twenty (20) years from the date of release from jail or prison. For more information, see CA Tier System for PC 290 Registration.
Three Strikes Crimes: PC 311.10(a) crimes are not considered serious or violent offenses as those terms are described in the California penal code at sections 1192.7(c) and 667.5(c), respectively. This means that PC 311.10(a) is not a “strike” offense under California’s Three Strikes Sentence Law. Nevertheless, if the defendant has previously suffered two (2) “strike” convictions, then a conviction for felony PC 311.10(a) may “trigger” a third strike under California law.
Additional Penalties: In addition to any jail or prison sentence, and sex offender registration requirements, if found guilty of penal code 311.10(a) violations, the defendant could face immigration consequences, military service consequences, professional licensing consequences, court fees and fines, restitution orders, criminal protective orders, bail requirements, enhanced punishment for future criminal conduct, and more.
Note: Per PC 311.10(a), the defendant may be fined by up $50,000 for each conviction of advertising or distribution of obscene matter depicting a child (child pornography).
PC 311.10(a) Defenses
Common defenses associated with an allegation of advertising or distribution of obscene matter depicting a child (child pornography) include insufficient evidence to prove defendant knew, or likely knew, that a child under eighteen (18) years of age was included in the matter advertised or distributed, statute of limitation (3 years from the date of alleged offense), mistake of fact, coerced confession, illegal search and seizure, lack of proper Miranda Rights followed, entrapment, and more.
Note: It is not a defense to PC 311.10(a) allegations to show that the child depicted reached the “age of consent” in the place where the matter was produced. California’s PC 311.10(a) specifically refers to minors under the “age of 18” in its PC 311.10(a) law.
Also, PC 311.10(a) law does not apply to the activities of law enforcement and prosecution agencies in the investigation of prosecution of criminal offenses.
Reclassification of Crime: In some cases, usually where the evidence against the defendant is somewhat weak, or where there are other “mitigating” factors in the case, the judge will reclassify a felony PC 311.10(a) offense to a misdemeanor PC 311.10(a) offense. This is true even if the district attorney objects to the reclassification of the judge (PC 17(b)).
Note: A reclassification from a felony to a misdemeanor offense is not a true defense in the sense that the criminal matter is dismissed, or the defendant is found “not guilty.” However, a reclassification of a PC 311.10(a) allegation from a felony to a misdemeanor does not preclude the defendant from continuing to fight his case as a misdemeanor offense, while avoiding the harsher penalties of a felony offense if he is ultimately convicted.
Post-Conviction Relief: After a conviction for advertising or distribution of obscene matter depicting a child (child pornography), the defendant may have several post-conviction options, depending on the circumstances of his conviction. These remedies include appeal of the criminal conviction, withdraw of a guilty plea (PC 1018), expungement of the sex crimes conviction (PC 1203.4), petition the court for certificate of rehabilitation (PC 4852), termination sex offender registration (PC 290.5), and more.
For more information on the crime of advertising or distributing child pornography (obscene matter), contact our sex crimes criminal defense attorneys for a free consultation. Our experienced and dedicated team of award-winning criminal defense lawyers, including successful trial lawyers, have helped hundreds of people charged with every type of felony and misdemeanor sex crime in the Inland Empire.
Out team of sex crimes criminal defense lawyers handle every type of misdemeanor and felony sex crime, including failure to register as a sex offender (PC 290(b)), lewd or lascivious act on a child under fourteen (PC 288(a)), indecent exposure (PC 314), sexual battery (PC 243.4), annoy or molest a child (PC 647.6), rape by force or fear (PC 261(a)(2)), prostitution (PC 647(b)), oral copulation (PC 287), sexual penetration (PC 289), possession of child pornography (PC 311.11), engage in public lewd act (PC 647(a)), and more. Call now!
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