Things to know if you are being investigated for child-pornography-related offenses in the San Francisco Bay Area and beyond.
What's the law on possessing child pornography?
California prohibits possessing child pornography in Penal Code section 311.11. It makes possession either a felony or a misdemeanor, depending on the circumstances. To convict someone of violating this section, the state has to prove that the person: (1) knowingly possessed or controlled any matter or image that was produced involving a person less than 18 years old, and (2) knew that the person depicted was less than 18 years old and either engaging in or simulating sexual conduct. Knowledge is important under the law—we'll get back to this later, in the defenses section.
Images are prohibited when they depict a minor engaging in or simulating “sexual conduct” as defined in section 311.4(d) of the Penal Code. Sexual conduct includes a broad range of activities:
- oral copulation
- anal penetration
- anal-oral copulation
- sexual sadism or masochism
- exhibiting the genitals or pubic or rectal area for the purpose of sexually stimulating the viewer
- any lewd or lascivious sexual act.
Although the law defines sexual conduct broadly, it specifically excludes some things. Drawings, figurines, and statues are all excluded, meaning that it is not illegal to possess a drawing of a child engaging in a sex act. Penal Code § 311.11(d). Also, any film that the Motion Picture Association of America rated (G, PG, PG-13, R, NC-17) cannot be considered child pornography under the law. Id.
Prosecutions for possessing child pornography often involve hundreds or thousands of images and movies, so that creates the question of how many crimes does a person commit when they possess multiple images of child pornography? The answer under California law (this differs from federal law) depends on how and where those images are stored.
The courts have held that having multiple images or videos on a computer counts as a single crime no matter how many images are involved. In People v. Hertzig, 156 Cal. App. 4th 398 (2007), the court held that a defendant in Sacramento County committed just one violation of section 311.11 even though he had 30 videos of child pornography on his computer. Similarly, in People v. Manfredi, 169 Cal. App. 4th 622 (2008), the court found just one violation in Tulare County even though the defendant had multiple images not just on his computer, but also on several discs and tapes in his home. The important fact was that all the items were found at one time and in one location.
But on the other hand, the court in People v. Sample, 200 Cal. App. 4th 1253 (2011), ruled against the defendant from San Diego County and held that he violated section 311.11 twice by having child pornography on a hard drive in his backpack and a computer in his storage shed. Because the possession occurred at different places and different times, he could be charged with multiple violations.
Aside from possession, what are some other crimes related to child pornography?
There are several other crimes relating to child pornography, including:
- distributing child pornography under Penal Code § 311.2.
- developing, duplicating, printing, or exchanging child pornography under Penal Code § 311.3.
- advertising the sale or distribution of child pornography under Penal Code § 311.10.
- employing or using a minor to engage in child pornography under Penal Code § 311.4.
Further, there are crimes related to child porn that do not actually involve child pornography. People who make or produce child porn run the additional risk of being charged with violating Penal Code § 288, committing lewd acts with a minor. This statute prohibits touching a child under age 14 for the purpose of sexually arousing the child or the person touching the child.
Even just contacting a minor can be illegal under Penal Code § 288.3, which prohibits contacting a minor with the purpose of getting that minor to participate in child porn.
People who let their child work on a movie or photo shoot involving child porn can be charged with child endangerment under Penal Code § 273a. This prohibits willfully placing your child into a situation that endangers their health or well being.
What steps should you take if you are being investigated for possession?
The first step should be that you don't hurt yourself by creating evidence against you, even if by accident. Any statement that you make can come back to haunt you in court, whether you make it face to face, by email, by text, by internet chat, phone or any other way. By law, all of your statements are admissible as evidence against you. Evidence Code § 1220. Your best plan is to say nothing, and certainly don't make any statements about sex, pornography, or a possible criminal case to anyone. Even if you are innocent and say something that seems harmless, you can incriminate yourself and make things worse. Like the famous Miranda warnings state, anything you say can and will be used against you in court. Miranda v. Arizona, 384 U.S. 436 (1966). So don't speak to anyone (except your attorney) about anything related to the investigation.
If you use the internet for anything related to sex, you should stop. Stay off dating sites, chat rooms, and pornography sites (even those that depict only adults). Don't click on any links that you don't trust. You should also not talk to strangers, especially online. Law enforcement often uses the internet in sting operations (like on the TV show Dateline's To Catch a Predator) so don't talk online to people whom you don't know. Officers might pose as someone interested in adult pornography, get you speaking to them and feeling comfortable, and then steer the conversation toward child porn.
Using the internet is also dangerous because your internet service provider (or your web browser) can keep track of your internet activity. If your service provider is willing to cooperate with law enforcement, they might disclose your history of web activity.
Peer-to-peer sharing sites pose another danger. One man in Elk Grove outside of Sacramento was arrested on child pornography charges and the officers found evidence that he used a peer-to-peer network to share child pornography. But even if you're not uploading child porn on a peer-to-peer network, you can't be sure that other people won't say they are sending you one thing but really send you something illegal.
Be cautious in any interaction with law enforcement. Do not consent to searches—that is your right under the 4th Amendment to the Constitution. It's as simple as politely telling the officers, “I do not consent to any searches.” Do not speak to the officers. You have a right to remain silent under the 5th Amendment to the Constitution and you should invoke that right. If the officers tell you to come with them to the station to talk, politely decline. Tell them that if you are not being detained or arrested, you will not go with them. Be respectful and calm, but don't be shy about invoking your rights. Most importantly, ask to contact your attorney, as it is essential in order to protect your rights.
If you are charged with a felony, your punishment can range from 16 months to 3 years under Penal Code § 18. If you have a prior conviction for any crime that requires sex-offender registration, that increases the punishment range to 2, 4, or 6 years. Penal Code § 311.11. And if you have a prior conviction for a serious or violent felony, that can double your term. The potential sentence depends on which statute you violated and your criminal history.
Convictions for possessing child pornography also require mandatory sex-offender registration under Penal Code section 290(c). This means that under Megan's Law, your name, address, photo, and criminal conviction may be available online to the public. This could result in restrictions on where you can live and spend time, and will definitely include a social stigma that can disrupt every aspect of your life.
What defenses are available?
1. Before conviction
It is essential that an attorney intervene at the earliest possible time. If the authorities contact you about an ongoing investigation, you should immediately contact an attorney as they can have a significant impact on the outcome of the investigation and any future court case.
If you are charged, there are several defenses that you can discuss with your attorney. If police found the child pornography as a result of an illegal search, you can try to have the images excluded from evidence as a violation of the 4th Amendment. This is why it's so important that you don't consent to any searches—if you consent then you give up your rights and you cannot challenge the search in court.
Another defense is lack of knowledge. The prosecution has to prove that you knew about the images or video (or whatever it is) and that you knew that the images depicted a person who is less than 18 years old. § 311.11(a). So if you have pornographic images of a 17-year old who appears to be 25, and you believed the person was 25, then you can use your lack of knowledge as a defense. But be warned that the state can use expert witnesses to establish the age of the person depicted in the images. People v. Kurey, 88 Cal. App. 4th 840, 847 (2001).
Or if you did not know that you possessed the images (for instance someone sent you the files without your knowledge), then you can use that as a defense as well. § 311.11(a) (requiring knowing possession).
A lawyer can also raise a defense that law enforcement entrapped you. This means that you were not going to commit the crime but did so once law enforcement enticed you. By law, the test for entrapment is whether the law-enforcement conduct was likely to induce a normally law-abiding person to commit a crime. People v. Barraza, 23 Cal. 3d 675, 689 (1979). This defense is common when law enforcement set up an internet sting operation. If they contact you and offer child pornography, or send you a link to a child-pornography site, you can argue that they entrapped you.
Another defense that might apply comes up when the images or video are possessed for “legitimate scientific or educational purposes.” Penal Code § 311.8(a). One court, in a case out of Sacramento County, has interpreted “legitimate” to mean genuine, real, and reasonable. People v. Woodward, 116 Cal. App. 4th 821 (2004). Most people do not have scientific or educational purposes for possessing child pornography, but the law provides a defense to people who do.
2. At sentencing
Usually, statutes lay out potential sentences and the judge gets to decide which is most appropriate. For most felonies in California, Penal Code § 18 sets the potential sentences at 16 months, 2 years, or 3 years. Because the judge can sometimes choose among those three terms or placing the defendant on probation with a county jail sentence, the sentencing process is ripe for bringing in favorable evidence.
When available, it can be useful to show that you committed the child-pornography-related crime as a result of a sexual or pornographic addiction or compulsion and not because you are a predator. If we can show the judge a comprehensive addiction-treatment plan, the judge may be more likely to choose the lesser sentence. We can offer treatment plans and recommend treatment providers. We also have numerous experts, including psychologists and psychiatrists, who can administer a psychological evaluation to strengthen our case.
At sentencing, the possibilities are nearly endless to bring in evidence showing why you deserve a lesser sentence. This is where an attorney can make a big difference for you, particularly by selecting what kinds of evidence to emphasize to the court and raising that evidence in a light most favorable to you.
3. Avoiding mandatory sex-offender registration after conviction
Even if you are convicted, you might have a defense against having to register as a sex offender. The Equal Protection Clause of the Constitution requires that similarly situated defendants be treated the same. In People v. Hofsheier, the defendant was a 22-year-old man who pleaded guilty to oral copulation with a 16-year-old girl in violation of Penal Code § 288a(b)(1). As a result, he had to register as a sex offender. On appeal, he argued that it violated Equal Protection to force him to register when defendants who actually had sex with a minor (violating Penal Code § 261.5) did not have to. The court agreed that it violated equal protection to force him to register for having oral sex with a minor but not force registration on similarly situated defendants who had sex with a minor. People v. Hofsheier, 37 Cal. 4th 1185 (2006).
Under Hofsheier, it might violate equal protection if you have to register as a sex offender when another person who committed a similar or more serious sex crime does not have to. Defendants who win these claims, called Hofsheier writs, get to avoid mandatory registration. Instead, the trial court gets to decide whether or not to require it.
Since the California Supreme Court decided Hofsheier in 2006, the state courts have extended its reasoning to other crimes, so defendants convicted of the following crimes are not subject to mandatory registration, but they can still be ordered to register if the trial court chooses under Penal Code section 290.006:
- Consensual sodomy with a 17-year-old under Penal Code § 286(b)(1). People v. Thompson, 177 Cal. App. 4th 1424 (2009)(from Contra Costa County).
- Consensual oral copulation with a person under age 16 by a person over age 21 under Penal Code § 288a(b)(2). People v. Luansing, 176 Cal. App. 4th 676, 685 (2009) (from Los Angeles County).
- Digital penetration of a 13-year-old's vagina under Penal Code § 289(h). People v. Ranscht, 173 Cal. App. 4th 1369, 1375 (2009) (from San Diego County).
- Consensual oral copulation by a defendant over age 21 with 14- or 15-year-old minors under Penal Code § 288a(b)(2). People v. Hernandez, 166 Cal. App. 4th 641, 650 (2008) (Los Angeles County); and People v. Garcia, 161 Cal. App. 4th 475, 482 (2008) (Los Angeles County).
As you can see, this is a developing body of law and there are opportunities to make arguments for various convictions.
If you have already been convicted and forced to register and you want to bring a Hofsheier claim to get off registration, you must use a procedure called a writ of mandate or a writ of habeas corpus. The California Supreme Court required those procedures in a case from Trinity County, People v. Picklesimer, 48 Cal. 4th 330 (2010).
What happens if I have to register as a sex offender, and what is Jessica's Law?
Penal Code § 290 governs the registration requirements. It mandates that sex offenders must report to a local law enforcement office (police or sheriff station) and give them private information including your home address, employment information, phone numbers, and identifying marks (such as tattoos or birth marks). You also will be fingerprinted, photographed, and forced to carry a registration receipt at all times. Registration under § 290 is for life—you will always be registered unless you are granted a Certificate of Rehabilitation under Penal Code § 4852Penal Code § 4852, et seq or prevail on a Hofsheier writ as described above.
Jessica's Law is another consequence of being a registered sex offender. The voters passed this law in 2006, enacting Penal Code § 3003.5. That section forbids sex offenders from living within 2,000 feet of a school or park where children regularly gather. This can be a significant problem in cities with many schools and parks. Indeed, a San Diego newspaper reported that, between 2007 and August 2011, homelessness among registered sex offenders jumped an astonishing 5,700 percent. Perhaps this explains why the California Supreme Court decided in January 2013 to decide whether the residency restriction in Jessica's Law violates defendants' constitutional rights. The case is currently pending and is called In re William Taylor, case number S206143. You can get news about the case here.
Even the accusation of possessing child pornography can come with a social stigma that will disrupt your life. An experienced lawyer can guide you through the criminal process and help you get through it with the least damage possible. Contact an attorney immediately if you become aware of an ongoing investigation or learn that criminal charges have been filed.