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Cal. Penal Code § 311.11 relates that in California, any person who knowingly possesses any material involving 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 the crime of possession of child pornography.  For you to be found guilty at trial, the prosecution must prove the following elements: (1) the material involved a person under 18 years old, (2) you knew that you possessed the material and that the material had a person under 18 years of age, and (3) the minor was involved in sexual conduct.  Our Ventura sex crime defense attorneys examine these charges in detail, including the consequences of accidentally visiting an illegal website or opening an illegal link.

Can You Be Convicted of Possessing Child Pornography if You Visit a Website by Accident?

In order for a defendant to be convicted of child pornography possession in California, the prosecutor must prove, beyond a reasonable doubt, certain facts to be true.  These facts are known as the elements of the offense.

Element #1: Person Under 18 Years Old

It is a requirement that the person be a real person under 18 years old.  Altered images, anime, or drawings do not meet this requirement.

Element #2: Knowledge of Nature of Material and Person Under 18 Years of Age

Knowledge is almost always the toughest element that the prosecutor has to prove in a Cal. Penal Code § 311.11 case.  In order to be guilty of possession of child pornography, the prosecutor must show that you had knowledge of the nature of the material and that a person under 18 years of age was on the material.  Even without evidence that you knew that illegal material was on your computer, if the prosecutor can prove that you actively used search terms commonly associated with child pornography, or that multiple images of child pornography were displayed on your computer at one time, then you will have a much more difficult defense.

Element #3: Sexual Conduct

The sexual conduct element requires either actual or simulated sexual conduct.  Examples of sexual conduct include, but are not limited to:

  • Exhibition of the genitals for the purpose of sexual stimulation
  • Intercourse
  • Masturbation
  • Oral copulation
  • Penetration of the vagina or anus by an object
  • Sexual sadism or masochism

California courts have also ruled that photos and videos focusing on the genital areas of minors wearing underwear or swimsuits is child pornography, because they constitute an exhibition for the purpose of sexual stimulation of the viewer.
In addition to the elements of this charge, it’s important to understand a few key legal definitions.

Material

“Material” can be computer generated images or video observed on a computer from clicking on links, from internet websites, a result of emails, magazines, photographs, or any other way information or data that can be represented.

Possession

“Possession” means that you had the material in your control at one time.  Merely searching for the material is not illegal, if you do not come into possession of it.  However, deleting the material from your computer does not eliminate the possession.  The prosecutor often uses forensic experts to examine your computer to determine whether or not you possessed the illegal material, as well as your internet search history.

Child Pornography Penalties and Sentencing Under California Penal Code 311.11

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First-time possession of child pornography in California is a wobbler, meaning the prosecutor has discretion to either charge you with a felony or a misdemeanor.  A felony is a more serious charge with greater criminal penalties.

If you are charged with a first-time felony, you could be sentenced to up to five years in prison.  If you are charged with a misdemeanor, you could be sentenced to up to one year in jail.

Just as bad if not worse than prison or jail time, a misdemeanor or felony conviction under Cal. Penal Code § 311.11 carries a mandatory lifetime registration as a sex offender.  This can dramatically disrupt virtually every aspect of your life.

What Are the Legal Defenses Against Child Pornography Charges?

There are many defenses that may be used to help defend you against a charge of possession of child pornography.  The most common defense is lack of knowledge.  For example, if the illegal material was solely a result of accidentally clicking on a link to an unknown internet website, an involuntary computer pop-up, or mistyping a search term, then the prosecutor will have a difficult time proving the knowledge element.

Another defense is that the material didn’t contain sexual conduct.  For example, if the material at issue solely contains images of nude minors without any sexual connotation, then it will be difficult for a prosecutor to prove the sexual conduct element.

A third defense is that the material didn’t contain a real person under 18 years old.  For example, a defendant is not guilty of violating Cal. Penal Code § 311.11 if a minor’s head is superimposed on a sexual image of an adult.

For more information about this offense, see our article on being charged with child pornography in California.

Sex Crime Defense Lawyers Serving Ventura and Santa Barbara County

Child pornography charges are extremely serious and urgently demand assistance from a skilled and experienced sex crimes defense lawyer, like the criminal attorneys at The Law Offices of Bamieh & De Smeth, PLC.  We have more than 22 years of experience handling misdemeanor and felony child pornography charges in Ventura County and Santa Barbara County.  If you or one of your loved ones has been arrested for child pornography possession, it is in your best interests to contact us immediately at (805) 585-5056 for a free and confidential legal consultation.

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