California penal code section 311.11(C)(2) covers the law and punishment related to the unlawful possession of child porn depicting sadomasochistic material. This article covers the law, punishments, and common defenses related to penal code 311.11(C)(2). For more information, contact our sex crimes criminal defense attorneys for a free consultation.
Note: Possession Child Pornography is also known as possession of obscene material depicting a child under the age of 18 (PC 311), or Child Sexual Assault Material (CSAM) .
PC 311.11(C)(2) Law
Every person who knowingly possesses any… image, including, but not limited to, any film…, photograph…, video…, computer hardware, computer software…, data storage media…, or computer-generated equipment, or any other computer-generated image that contains or incorporates in any manner, any film…, the production of which involves the use of a person under 18 years of age, knowing that the matter depicts a person under 18 years of age personally engaging in or simulating sexual conduct…, is guilty of possession of child porn (PC 311.11(a) Abbrev.).
Sexual Conduct means... 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…, 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 311.4(d)(1) Abbrev.).
Sadomasochistic Material: Sadomasochistic material, in the context of possession of child porn crimes, involves the depiction of a child receiving pain, suffering, or humiliation (Sadism). A person who receives sexual gratification from having pain inflicted upon himself or herself is known as “masochism,” but for purposes of possession of child porn crimes, masochism does not really apply (PC 311.11(C)(2)).
Note: Collectively, Sadism and Masochism are known as sadomasochism, or “S&M.” Sadomasochism generally applies to ‘consensual conduct’ between adults. However, a child cannot legally consent to sadism or masochism. Therefore, the possession of any depiction (photo, video, etc.) of sadomasochistic material, including sexual material, is illegal in California (PC 311.11(C)(2)).
PC 311.11(C)(2) Punishments
Incarceration: Possession of child porn involving sexual sadism or sexual masochism is classified as a “wobbler” crime in California. A “wobbler” crime is any offense that may be charged either as a felony, or alternatively as a felony.
Felony PC 311.11(C)(2): A conviction for felony possession of child porn involving sadism or masochism can result in a prison sentence of either 16 months, 2 years, or 5 years, depending on the facts of the case. A probation sentence, with or without some incarceration, may also be available in some felony PC 311.11(C)(2) cases (See Probation Sentence below).
Misdemeanor PC 311.11(C)(2): A conviction for misdemeanor possession of child porn involving sadism or masochism can result in a jail sentence of up to 1 year. A probation sentence, with or without some incarceration, may be available in some misdemeanor PC 311.11(C)(2)-M cases (See Probation Sentence below).
Note: Whether a defendant receives a probation sentence, a 16-month prison sentence (low-term), a 2 year prison sentence (mid-term), or a 3 year prison sentence (high-term), after a conviction for penal code 311.11(C)(2)-F, depends on the level of sophistication of the defendant’s criminal conduct, the remorse shown by the defendant, if any, the terms of any negotiated plea bargain between the district attorney the defendant’s attorney, and much more.
Probation Sentence: A probation sentence is a non-prison sentence, where the defendant is monitored by a probation officer (felony probation), or the court (informal probation). A probation sentence is allowed in PC 311.11(c)(2) cases, but a probation sentence is never guaranteed.
Whether a defendant receives a probation sentence, as opposed to a prison or jail sentence, after a conviction of PC 311.11(C)(2) depends on many factors, including the defendant’s criminal history, the amenability of monitoring the defendant on probation, the terms of any negotiated plea bargain between the defense attorney and the district attorney, and more.
A probation sentence carries “terms of probation” that the probationer must obey to remain on probation. A violation of any of the terms of probation can result in additional criminal charges and incarceration of the probationer.
Probation Terms: The term of probation in a PC 311.11(C)(2) case depends on whether the defendant is convicted of a felony or misdemeanor violation of possession of child porn involving sadomasochistic material.
In any event, probation terms for both felony and misdemeanor convictions will generally include a term that the defendant remains out of criminal trouble (i.e., no new felony or misdemeanor cases during the period of probation). Court fines, restitution, criminal protective orders, and other terms are typical in PC 311.11(C)(2) cases.
Note: A probation sentence can include a jail sentence as a term of probation. However, when the defendant is ordered to serve a jail term as a term or condition of probation, the jail sentence is generally much shorter than the jail sentence that the defendant would otherwise have received if he or she was not granted probation, and the jail term may be served alternatively on work release or house arrest in some situations.
State Prison Presumptive: If the defendant is not granted a probation sentence after a conviction for penal code 311.11(C)(2), then he or she must serve his or her incarceration in a California state prison, as opposed to a local county jail. In addition, the state prison sentence may not be “split” (served partially out of prison on work release), or “suspended” (not served subject to a violation of a court order).
Custody Credits: Any jail, prison, or work release sentence that is ordered after a conviction of possession of child porn involving sadism or masochism may be reduced by up to fifty percent (50%) if the defendant serves his or her incarceration or work release with “good behavior.”
Three Strikes Application: The crime of possession of child porn, including PC 311.11(C)(2), is not a crime subject to California’s Three Strikes Sentencing Law. As such, PC 311.11(C)(2) is not classified as a “serious” crime, or a “violent” crime, at least as those terms are described in the California penal code at sections PC 1192.7 and 667.5, respectively.
Sex Offender Registration: The crime of possession of child pornography involving sadism or masochism is sex offender registerable crime (PC 290). Per California’s new Tier System for Sex Offender Registration, a misdemeanor violation of PC 311.11(C)(2) will result in a ten (10) year duty to register as a sex offender, and a felony violation of PC 311.11(C)(2) will result in a lifetime duty to register as a sex offender (PC 290(d)(3)). Some exceptions to these requirements could extend the sex offender registration period.
Moral Turpitude Crime: Possession of child pornography crimes, including penal code 311.11(C)(2) crimes, are classified as crimes involving moral turpitude (CIMT).
A crime involving moral turpitude carries additional direct and indirect punishments for persons who are not United States citizens (deportation, denial of naturalization), licensed professionals (loss of Bar, Board, or Commission License), and military service personnel (discharge from the military, denial of entry).
Additional Punishment: In addition to the punishment listed above, if found guilty of PC 311.11(C)(2) crimes, the defendant could face civil lawsuits, loss of firearm rights (felony convictions), court fines and fees (up to $2,500), restraining orders against use of technology, loss of scholastic opportunities, loss of family law rights (child custody, adoption, child visitation), and much more.
Note: If the defendant has previously been convicted of possession of child pornography, including any penal code 311.11(C)(2) crime, then any subsequent conviction for the same, could result in a prison sentence up to six (6) years (PC 311.11(b)).
PC 311.11(C)(2) Defenses
PC 311.11(C)(2) does not apply to drawings, figurines, statues, or any film rated by the Motion Picture Association of America…, (PC 311.11(e) Abbrev.).
Also, PC 311.11(C)(2) does not apply to matter that “depicts a person under the age of 18 years personally engaging in or personally simulating sexual conduct” in non-visual works (i.e., images, videos, etc.) [PC 311]
Lack of Possession: A common defense to PC 311.11(C)(2) charges revolves around the defendant’s possession of the obscene material, or lack thereof.
In other words, if the defendant can show that he or she did not actually, or constructively, possess the child porn, then the defendant may maintain a valid defense to PC 311.11(C)(2) charges.
Constructive possession means the defendant had the ‘ability’ to control the child porn material even if the material was not within his or her physical control. This defense is more common when an electronic device that hold child porn material cannot be attached to the defendant.
Lack of Knowledge of Material: For the defendant to be found guilty of possession of child porn, the district attorney must prove, beyond a reasonable doubt, the defendant knew the material he or she possessed involved child porn (obscene material depicting a minor). This defense is more common when the defendant downloads legal pornography, and illegal child porn is attached, unknowingly, in the download.
No Sadism or Masochism: When the defendant is charged with PC 311.11(C)(2), he or she may defend by showing the depiction of children in any child porn material does not amount to sadism or masochism, or that the material does not involve Child Sexual Assault Material (CSAM) [No actual child depicted in the material, or person(s) in image or video is reasonably within the age of consent].
Reclassification of Crime: In some cases, where the defendant is charged with a felony PC 311.11(C)(2)-F crime, the defendant may seek to reduce the charge to a misdemeanor PC 311.11(C)(2) crime. This can be accomplished over the objection of the district attorney is some cases where the judge agrees that the reclassification would meet the interest of justice (PC 17(b)).
Other defenses to possession of child pornography material include the district attorney’s failure to comply with the statute of limitations (a time-period in which the district attorney must bring criminal charges against the defendant), insanity, duress, mistake of fact as to the nature of the material possessed, coerced confession of the defendant, illegal search and seizure of the material, and more.
Note: A “double jeopardy” defense does not apply to possession of child pornography crimes, including PC 311.11(C)(2), where the defendant is prosecuted in both state and federal court for the same offense.
Post-Conviction Relief Options: after a conviction for PC 311.11(C)(2), the defendant may have some post-conviction relief options, including the withdrawal of a guilty plea (or “no contest” plea), an appeal of the misdemeanor or felony conviction (after trial), the reduction or modification of a probation sentence (PC 1203.3), a petition to terminate sex offender registration (PC 290.5), and more.
Note: Expungement and Certificate of Rehabilitation options for certain crimes involving the possession of child pornography are very limited. For more information, see Certificate of Rehabilitation for Sex Crimes.
For more information on the crime of possession of child pornography involving sadism or masochism, or California penal code 311.11(C)(2), contact our sex crimes criminal defense attorney today for a free consultation.
Our team of sex crimes defense attorneys, including award-winning trial attorneys, have successfully defended against hundreds of misdemeanor and felony sex crimes in the Inland Empire, including the cities and criminal courts of Redlands, Fontana, Rancho Cucamonga, Ontario, Victorville, Upland, Yucaipa, Rialto, Riverside, Moreno Valley, and more. Call today!
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