Penal Code 311.4 PC – Employ Minor to Sell or Distribute Child Pornography. Sex Crimes Criminal Defense Lawyers Explain the Law, Sentence & Penalties Related to Penal Code 311.4.
- sexcrimesdefensela
- Mar 30
- 9 min read
Updated: Mar 30
Information on the crime of employing or using a minor to sell or distribute child pornography is found at California penal code section 311.4. The following is a summary of the law, penalties and common defenses related to PC 311.4 crimes.
First, there are various crimes that fall under the general PC 311.4 heading, depending on the specific allegations levied against the defendant. The law, penalties and defenses vary depending on the specific PC 311.4 allegations.
PC 311.4 Laws (Abbrev.)
PC 311.4(a): A person who, with knowledge that a person is a minor…, hires, employs, or uses the minor to sell, make or distribute child pornography, is guilty of hiring, employing or using a minor to sell, make, or distribute child pornography [PC 311.4 Abbrev.].
PC 311.4(b): A person who knowingly promotes, employs, uses, persuades, induces, or coerces a minor under eighteen (18) to engage in, or assist others to engage in, production of sexual conduct involving minors, for commercial use, is guilty PC 311.4(b) [PC 311.4(b) Abbrev.].
PC 311.4(c): A person who knowingly promotes, employs, uses, persuades, induces, or coerces a minor under eighteen (18), or any parent or guardian of a minor under eighteen (18), who is under their control who permits the minor to engage in, or assist others to engage in, sexual conduct, is guilty of Penal Code 311.4 (PC 311.4 Abbrev.).
Sexual Conduct Defined: The term “sexual conduct” as used in PC 311.4 laws, means employing a minor to perform in ‘actual or simulated sexual intercourse, oral copulation (oral sex with vagina, penis, or anus), anal intercourse (sodomy), masturbation, bestiality (sexual conduct animals), sexual sadism or masochism, sexual penetration by object, or lewd and lascivious acts (PC 311.4(d) Abbrev.).
When a defendant is charged with employing or using a minor to produce child pornography, the defendant may also be charged with any crimes related to that production.
Example: John directs a minor to engage in sexual sadomasochism on film. John then retains the child pornography film for his personal collection.
Result: John may be charged with employing a minor to produce child porn (PC 311.4). John may also be charged with possession of sadomasochistic material involving a minor (PC 311.11(C)(2)).
PC 311.4 Penalties
PC 311.4 Jail or Prison Sentence
The jail or prison sentence (or probation sentence) related to PC 311.4 crimes vary depending on the specific allegation. These jail or prison sentences include:
PC 311.4(a) Jail or Prison Sentence: Misdemeanor jail sentence of up to one year, or a fine of up to two thousand dollars ($2,000), or both a jail sentence and fine, upon a misdemeanor conviction of PC 311.4(a)-M. A felony prison sentence of up to three upon a felony violation of PC 311.4(a)-F.
Wobbler Offense: PC 311.4(a) is considered a “wobbler” offense. This means that penal code 311.4(a) may be charged either as a misdemeanor, or alternatively as felony, depending on the facts and circumstances of the case.
PC 311.4(b) Prison Sentence: Conviction of the crime of employing or using a minor per penal code 311.4(b) may result in a felony prison sentence of up to three (3), six (6), or eight (8) years, depending on the facts and circumstances of the case. A probation sentence is not available in PC 311.4(b) cases.
PC 311.4(c): Prison Sentence: Conviction of the crime of using a minor to pose or model for child pornography (PC 311.4(c)) may result in a felony prison sentence of up to sixteen (16) months, two (2) years, or three (3) years in prison. A probation sentence is not available in PC 311.4(c) cases.
Probation Sentence: A probation sentence is a period of supervision, as opposed to a jail or prison sentence. A probation sentence is available after a misdemeanor or felony conviction of penal code 311.4(a), but there is no guarantee that the defendant will receive a probation sentence after a conviction for this criminal charge.
Whether a probation sentence is granted to the defendant after a conviction for PC 311.4(a) depends on the facts and circumstances of the case, including the presence of any mitigating circumstances related to the case, the defendant’s criminal history, the terms of a negotiated plea bargain, if any, between the defendant and the district attorney, and more.
Note: Probation sentences are not available for convictions related to PC 311.4(b) or 311.4(c) crimes.
Also, any probation related to a PC 311.4(a) conviction is no less than two (2) years (PC 1203.2), unless the defendant and the minor are domestically related, in which case, the minimum probationary period is three (3) years (PC 1203.097).
PC 1170(h) Sentencing: If the defendant is found guilty of any PC 311.4 crime, and he or she does not receive a probation sentence, then the defendant must be incarcerated in a California state prison, as opposed to a local county jail.
If the defendant is not granted probation in a PC 311.4 case, then no part of the defendant’s prison sentence may be split (served partially in prison and partially out of prison on work release) or suspended (not served subject to certain conditions).
Example: David is convicted of a felony violation of employing a minor to distribute child pornography (PC 311.4(a)). David is not granted a sentence of probation. Therefore, David must be incarcerated in state prison, and he must serve no less than sixteen (16) months of that prison sentence (No portion of David’s sentence may be served on work release or suspended).
Sex Offender Registration: Per California law, a conviction for any PC 311.4 crime will result in a duty to register as a sex offender pursuant to PC 290.
A misdemeanor violation of PC 311.4(a) requires the defendant to register as a sex offender for no less than ten (10) years from the date of conviction. A felony violation of any PC 311.4 requires the defendant to register as a sex offender for no less than twenty (20) years from the date of conviction.
Note: The duty to register as a sex offender does not automatically expire after the minimum period of registration is met. Rather, the defendant must bring a petition to terminate sex offender registration after the minimum period of sex offender registration is met (PC 290.5).
For more information, see Sex Offender Registration Requirements.
Work Release: In some misdemeanor violations of PC 311.4(a), the defendant may be ordered to serve a work release sentence, as opposed to a jail sentence. A work release sentence may be made part of either a probation sentence, or as an alternative to a jail sentence, but this only applies to misdemeanor violations of penal code 311.4(a).
Firearm Prohibition: A felony violation of any PC 311.4 crime will result in a lifetime firearm ban. This includes a prohibition from owning or possessing firearms, firearm ammunition, or body armor. In some cases, the defendant may apply to have his or her firearm rights restored after a felony conviction of PC 311.4.
Note: Firearm prohibition does not apply to a misdemeanor violation of PC 311.4(a).
Three Strikes Application: A felony violation of any PC 311.4 crime is not, by itself, a serious or violent felony, as those terms are defined in the California penal code at sections 1192.7 and 667.5, respectively. This means that felony PC 311.4 crimes are not “strike” offenses within California’s Three Strikes Sentence Law.
However, if the defendant has previously suffered two prior strike offenses, and he or she is then convicted of a felony PC 311.4 violation, then the PC 311.4 violation may be used to trigger a third strike under California law, which could lead to a life sentence upon conviction.
CIMT: All misdemeanor and felony violations of PC 311.4 are considered “crimes involving moral turpitude.” A crime involving moral turpitude, or CIMT, is any crime that involves immoral behavior or deceit.
CIMTs, including all misdemeanor and felony violations of PC 311.4 carry severe direct and indirect consequences that are above and beyond any jail or prison sentence.
These consequences include, but are not limited to, immigration consequences for non-US citizens (deportation and denial of reentry into the U.S.), professional licensing consequences for licenses professionals (i.e. lawyers, doctors, dentists, therapists, teachers, etc.), and military service consequences (denial of, or discharge from, any military service).
Parole After Prison: Parole after prison for any PC 311.4 crime is for three years from the date of release. Parole terms and conditions are monitored by local probation officers as part of a Post-Release Community Supervision program (PRCS).
Violations of parole can lead to either “flash incarceration” for up to ten (10) days, or up to one (1) year in prison, depending on the nature of the alleged parole violation. For more information, see Parole Violations & CA Sex Crimes Cases.
Additional Penalties: All misdemeanor and felony violations of any PC 311.4 crime can carry penalties that in addition to any jail, prison, or probation sentence. These additional penalties include civil lawsuits, criminal protective orders (CPO), harsh probation or parole terms, loss of scholarship, court fines and fees, damage to reputation, and more.
PC 311.4 Defenses
Every PC 311.4 case is different in terms of the alleged facts and circumstances that surround the offense. Therefore, the defense to any PC 311.4 can change from one case to another. Nevertheless, some defenses tend to be common to PC 311.4 cases, these include:
Statute of Limitations: The statute of limitations is a time limit by which the district attorney must bring formal allegations or forever lose the ability to prosecute the case.
In PC 311.4 cases, the statute limitations are ten (10) years from the date of the alleged offense. This ten-year statute of limitations applies to both misdemeanor and felony violations of penal code 311.4 (PC 799-805).
Note: A violation of any other law that is related to the PC 311.4 allegation might have a different statute of limitation (SOL) period.
Example: Joshua uses a minor to produce child pornography films for Joshua’s private collection. In the child pornography films, an adult commits a lewd and lascivious act upon a child under fourteen years of age.
Result: The SOL for the crime of using a minor to make child porn is ten (10) years, but the lewd act crime depicted in the child porn carries a much longer SOL (PC 288(a) & PC 803(f)).
Reasonable Mistake of Age: A reasonable mistake as to the age of the minor may be defense in any PC 311.4 case. The reasonable mistake must be both subjective (truly held belief by the defendant) and objective (reasonable mistake would be made by an average person in the same or similar situation).
Enumerated Exception: PC 311.4 violations do not apply where the minor that is used, directed, modeled, depicted, or otherwise employed in pornography is either legally emancipated from his or her parents or guardians, or the legally married spouse of the defendant (PC 311.4(e) Abbrev.).
Other common defenses include insufficient evidence to prove the defendant committed the alleged offense, illegal search or illegal seizure of evidence that may not be used against the defendant, coerced confession of the defendant, alibi defense, and more. For more information, see Defenses to Sex Crimes Allegations.
No Defense of Consent: A minor under the age of eighteen (18) cannot legally consent to be employed, used, directed, modeled, or otherwise participate in the making or distribution of sexual conduct (child pornography). This is true regardless of whether sexual conduct is real or simulated. There is an exception for legally emancipated minors and legally married minors (PC 311.4(e)).
Plea Bargain: Plea bargaining is common in most criminal cases, including PC 311.4 cases. A Plea bargain is an agreement to plead guilty to a crime in exchange for a lighter sentence, or a lighter charge, or both.
Example: John is charged with a PC 311.4(b) [Employ Minor for Child Pornography for Profit]. John is facing up to eight (8) years in prison if he is found guilty of crime. However, the district attorney offers John the opportunity to plead guilty to a PC 311.4(a), a lighter offense, with a predetermined prison sentence of sixteen (16) months, in exchange for John’s promise to plead guilty to newly alleged offense.
Plea bargain is not a true defense in the sense that the defendant is found not guilty, or the criminal charges are dismissed altogether. Rather, plea bargaining is a quasi-defense tactic where the evidence of guilt against the defendant is strong, and the reality of a greater prison sentence is likely if the defendant were to proceed to trial and be found guilty of the offense.
17(b) Option: In felony PC 311.4(a) cases, the defendant may petition the court to have his felony PC 311.4(a) charges reduced to misdemeanor PC 311.4(a) charges through a “17(B) Motion to Reduce.” A 17(B) Motion may be brought at any time in the criminal prosecution process.
A 17(B) motion to reduce a felony to a misdemeanor may be brought, with or without, a plea bargain agreement. When there is a plea bargain agreement to plead guilty to a misdemeanor violation of PC 311.4(a), as opposed to a felony violation of PC 311.4(a), then the case is resolved, and the defendant is convicted of a misdemeanor offense.
However, the defendant may petition the court to reduce his felony PC 311.4(a) charges to misdemeanor charges even over the objection of the district attorney and without a plea bargain agreement in place. If the defendant is successful in his PC 17(B) motion in this situation, then the prosecution continues as a misdemeanor charge and the final disposition of the case remains to be seen.
Post-Conviction Options: After a conviction for any PC 311.4 violation, the defendant may have several post-conviction options, including a post-conviction 17(B) motion to reduce a felony PC 311.4(a) charge to a misdemeanor, appeal the conviction, motion to withdraw a guilty plea (PC 1018), motion to expunge the criminal conviction, or motion to terminate a probation sentence early and petition to terminate sex offender registration.
To learn more about the crime of employing a minor to sell, participate in, or distribute obscene matter depicting a minor (Child Pornography), or penal code 311.4 crimes, contact our sex crimes criminal defense lawyers today for a free consultation.
Our top-rated sex crimes criminal defense lawyers have successfully handled thousands of misdemeanor and felony sex crimes defense, including penal code 311.4 charges. We can help you too. Call today!
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