Child Pornography

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CHILD PORNOGRAPHY - THE LAW

Sex Crimes & Child Pornography

Child pornography can be defined as any media that involves a minor engaging in any kind of sexually explicit activity. California law prohibits any simulation of sexual activity that is performed by a distinguishable minor. In California there are many laws prohibiting the sexual exploitation of a child and any violation of these laws is often criminalized as child abuse. These crimes are typically filed as felonies however few may be charged as misdemeanors. Sexual conduct involving a child includes any form of intercourse, penetration, masturbation, voyeurism, exhibitionism and more. Should a conviction occur, part of the mandatory sentencing in this area is Sex Offender Registration for Life. Which is why it is important to retain Jeff Voll as your lawyer as he will fight to save your reputation and freedom from these types of charges.

WHAT DOES SECTION 311 OF THE CALIFORNIA PENAL CODE DEFINE AS CHILD PORNOGRAPHY?

In California the criminalization of possessing child pornography is codified in five different areas of section 311 of the California Penal Code. Below is a brief description of these five areas of California Penal Code section 311, - Child Pornography

Section 311.1 and 311.2 of the California Penal Code – These sections refer to the crimes of sending, transporting, producing, possessing or duplicating child pornographic material.

Section 311.3 of the California Penal Code – This section deals with the crime of creating, reproducing or exchanging child pornography.

Section 311.4 of the California Penal Code – This section relates to the crime of hiring, employing, using, persuading or coercing someone under 18 years of age to take part in the creation of child pornographic material.

Section 311.10 of the California Penal Code – This section refers to the crime of marketing “obscene” child pornography with the purpose of selling or disseminating it.

Section 311.11 of the California Penal Code – This section refers to the crime of storing or supervising child pornography.

THE ELEMENTS OF SECTION 311 OF THE CALIFORNIA PENAL CODE - CHILD PORNOGRAPHY:

Under California Penal Code Section 311, it is illegal to knowingly engage in the distribution, possession, production, publication, duplication, sale, or printing of child pornography in any form.

To be convicted of a child pornography crime under California Penal Code Section 311, the Deputy District Attorney must prove the following:

(1) You knowingly committed the crime; and

(2) When you committed the act, you knew that the material depicted a person under the age of 18 engaging in sexual conduct or simulating such conduct.

* (1) KNOWINGLY

Under California Penal Code Section 311 - Child Pornography, the intent requirement is knowledge or knowingly. This means that the prosecutor has to show that you knew or reasonably should have known that the material you possessed consisted of images of nude, underage children displaying their private areas.

Example:

If Attorney Mark Rosenstein likes to show off summer pictures of his 2 and 5 year old kids naked backsides when they exit the pool of his Beverly Hills Spanish style home bought and paid for by his wealthy Mommy and Daddy, those images are not necessarily child pornography because they do not show the child's frontal private areas.

Caveat: Proving intent is often problematic for a Deputy District Attorney. This is because it is impossible to view into another person's mind to determine what they are thinking or have been thinking. The prosecutor is often forced to rely on circumstantial evidence to prove one's intent.

* (2) MINOR

Pursuant to California Penal Code Section 311 - Child Pornography, the term “minor or child” refers to a person who is under the age of eighteen. A defendant can never be criminally culpable for violating California Penal Code Section 311 - Child Pornography, if the person appears to be a minor but is actually an adult over eighteen years of age. 

Caveat: if the person viewed in the sexual conduct/pornography is not a minor, the accused may still be charged with violating Penal Code section 647.6 - Annoying or Molesting a Child.

Also, under California Penal Code Section 311 - Child Pornography, the accused is not criminally liable if the minor is legally emancipated or legally married in the place where the sexual conduct with the minor's spouse occurred.


* SUBSTANCE OR PROPERTY

Under California Penal Code Section 311 - Child Pornography, “substance” or “property” is defined broadly. As such, California Penal Code Section 311 - Child Pornography, covers a wide variety of illustrated or visual material. This includes the following: videofilms, videotapes, photos (including negatives and slides), reproductions of the above, prints and their reproductions, computer records however stored and accessible, computer digital photos, analog photos, canvases, paintings, portraits, sketches, drawings, illustrations, artistic books/materials, graphics, molds, clay molds, porcelains, figurines, dolls, sculptures etc.

* SEXUAL CONDUCT

Under California Penal Code Section 311 - Child Pornography, sexual conduct means, but is not limited to, the following types of conduct: sex, oral sex, sexual touching, sexual fondling, intercourse, anal intercourse, copulation, oral copulation, anal sex, masturbation, spackling, masturbation of another, felching, sex with animals, sadistic sexual acts like those of John C., Matt N and David K., masochistic sexual acts, lascivious sex acts with sex toys, anal or genital penetration with the use of any mechanism, displaying one's genitals for the sexual arousal of others and or oneself, showing the genitals or anus for the purpose of sexual arousal, urinating or defecating in a lewd and or lascivious manner, urinating or defecating in another's mouth, anal cavity or other orifice of the human body that is not necessarily appropriate or meant to be shat or urinated in or maintaining physical contact with a minor for the purpose of sexual gratification or arousal.

Under California Penal Code Section 311 - Child Pornography, the above sexual conduct may be actual or pretended, performed alone or with other persons, heterosexual, A-sexual, B-sexual, homosexual, Lesbian, Gay, Bi- sexual, transsexual, pre-op transsexual, post-op transsexual, questioning, queer, lovey-dovey, and/or involve animals such as skunks, possums, sheep, wildebeest and or Impalas. An action is considered “intended” when it produces the manifestation of sexual conduct to the perpetrator.

* OBSCENE

Certain sections of California Penal Code Section 311 - Child Pornography, only applies if the materials in question can be considered obscene. The United States Supreme Court has long had difficulty accurately defining the concept of obscenity. With respect to California Penal Code Section 311 - Child Pornography, obscenity means something that 

* (1) depicts sexual conduct in bad taste; 
* (2) such that the normal average person would consider that it lacks any intellectual/relevance from a creative/literary, political or scientific point of view; 
* (3) and that a normal person would determine that the material attracts sexual/lustful desires.

* MATERIAL FOR NON ILLICIT PURPOSES
If the material is for lawful purposes, it is not criminal pursuant to California Penal Code Section 311 - Child Pornography. The law recognizes two types of exceptions relating to “lawful purposes.” 

(1) If the material is used by law enforcement in the investigation/prosecution of crimes, the material is not subject to criminal liability under California Penal Code Section 311 - Child Pornography;
(2) Also, if the material is used for lawful endeavors in medicine, science, or education, it is also not subject to criminal liability under California Penal Code Section 311 - Child Pornography.

Actual Case #1

In People v. Shamus M. - Case No. 7PS60546-02, my client was accused of possessing child pornography on his home computer. See what happened is that the Monrovia Police Department received a tip that someone at the home of my client was downloading mass quantities of child sex images onto their home computer. The problem is that more than one person lived at the home and everyone had their own computer. So the police raided the home of my client, arrested everyone there, conducted forensics of my clients computer and observed what the determined to be child pornography. After repeated requests to compel the not so bright Deputy District Attorney to turn over these alleged pornographic images I was forced to request a meeting with the D.A. and the Investigating Officer at the Monrovia Police Department. When I was finally able to physically observe these images I laughed out loud (LOL). It was obvious the pornography that the police and the prosecutor recovered from my clients computer was LEGAL ADULT pornography. One of the images had a domain name or website superimposed on the image. I challenged the Detective right there to access the website in front of me and the prosecutor. He refused. Outcome: The case was dismissed on the next court date. 

THE PENALTIES FOR VIOLATING SECTION 311 OF THE CALIFORNIA PENAL CODE - CHILD PORNOGRAPHY

The penalties for violating California Penal Code Section 311 - Child Pornography vary depending on: the amount and of material involved, if it was intended to be circulated, if it was intended to be circulated for a financial benefit, whether intent can be shown to involve a minor/child, whether the accused was an active participant in the production of the material and/or whether the defendant has a criminal past for violating sex crimes. The penalties for violating California child pornography laws can be severe. Factors that also affect sentencing are the specific offense that one is charged with, ones criminal history or RAP sheet, and whether or not one is charged with a felony or misdemeanor offense. Child pornography offenses are usually filed as felonies, however some of them can be charged as misdemeanors. If charged as a misdemeanor, fines could be imposed of up to $2,500 and a jail sentence imposed of up to one year in County Jail. If one is convicted of a felony Child Pornography charge fines of up to $100,000 could be imposed and a State Prison sentence of 16 months to 8 years is possible. And remember that most convictions will result in automatic sex offender registration from 10 years to Life.

WOBBLER OFFENSES?

Many crimes under California Penal Code Section 311 - Child Pornography, are automatically considered felonies. However, some sex crimes charged for the first time against a person for violating California Penal Code Section 311 - Child Pornography may be considered a “wobbler” offense. This means that the prosecutor can choose to charge the case as a misdemeanor or felony. This decision depends on the facts of the case and the accused's criminal past.

California Penal Code section 311.1 (Possession of Obscene Child Pornography with the Purpose of Distributing the Materials) 

Every person who knowingly sends/causes to be sent, brings/causes to be brought, into this state for sale/distribution, or in this state possesses/prepares, publishes/produces, develops/duplicates, or prints any depiction of information/data, or image, including, but not limited to, any film/filmstrip, photograph/negative, slide/photocopy, videotape/video laser disc, computer hardware/software, computer floppy disc/data storage media, CD-ROM/computer-generated equipment or any other computer-generated image that contains has in any manner, any film/ filmstrip, with intent to distribute/exhibit/exchange with others or who offers to  distribute/exhibit/exchange with others knowing the matter shows a minor personally engaging in or simulating sexual conduct, pursuant to Section 311.4, is guilty of a felony or a misdemeanor.

If filed as a misdemeanor this crime may be punishable by a maximum of one year in county jail and/or a maximum fine of one thousand dollars. However, if charged as a felony, can be punishable by a sentence of between sixteen months and three years in a California state prison and/or a maximum fine of ten thousand dollars.

California Penal Code section 311.2(b) (Purpose is to Disperse Child Pornography for Financial Gain) 

Every person who knowingly sends/causes to be sent, brings/causes to be brought, into this state for sale/distribution, or in this state possesses/prepares, publishes/produces, develops/duplicates, or prints any depiction of information/data, or image, including, but not limited to, any film/filmstrip, photograph/negative, slide/photocopy, videotape/video laser disc, computer hardware/software, computer floppy disc/data storage media, CD-ROM/computer-generated equipment or any other computer-generated image that contains has in any manner, any film/ filmstrip, with intent to distribute/exhibit/exchange for commercial consideration knowing the matter shows a minor personally engaging in or simulating sexual conduct, pursuant to Section 311.4, is guilty of a felony.

A conviction is considered a felony with a sentencing triad of between two, four or six years in a California state prison and/or a maximum fine of one hundred thousand dollars.

California Penal Code 311.2(c) (Intent to Distribute to a Person Who is an Adult) – 
 
Every person who knowingly sends/causes to be sent, brings/causes to be brought, into this state for sale/distribution, or in this state possesses/prepares, publishes/produces, develops/duplicates, or prints any depiction of information/data, or image, including, but not limited to, any film/filmstrip, photograph/negative, slide/photocopy, videotape/video laser disc, computer hardware/software, computer floppy disc/data storage media, CD-ROM/computer-generated equipment or any other computer-generated image that contains has in any manner, any film/ filmstrip, with intent to distribute/exhibit/exchange with, a minor or who offers to distribute(s), or exhibits/exchanges with, an adult knowing that the matter shows a minor personally engaging in or simulating sexual conduct, pursuant to Section 311.4, is guilty of a felony. It is not necessary to prove commercial consideration or that the matter is obscene for one to be found guilty of this offense.
 
This is a wobbler offense meaning it could be charged as a felony or misdemeanor. If you are charged with this offense a 2nd time it will automatically be filed as a felony. A misdemeanor is punishable by a maximum of one year in county jail and/or a fine of $1,000.00. A felony is punishable by a sentence between 16 months, 2 or 3 years in a California state prison and/or a maximum fine of $10,000.00.
 
California Penal Code 311.2(d) (Intent to Distribute to a Minor)
 
Every person who knowingly sends/causes to be sent, brings/causes to be brought, into this state for sale/distribution, or in this state possesses/prepares, publishes/produces, develops/duplicates, or prints any depiction of information/data, or image, including, but not limited to, any film/filmstrip, photograph/negative, slide/photocopy, videotape/video laser disc, computer hardware/software, computer floppy disc/data storage media, CD-ROM/computer-generated equipment or any other computer-generated image that contains has in any manner, any film/ filmstrip, with intent to distribute/exhibit/exchange with, a minor or who offers to distribute(s), or exhibits/exchanges with, a minor knowing that the matter shows a minor personally engaging in or simulating sexual conduct, pursuant to Section 311.4, is guilty of a felony. It is not necessary to prove commercial consideration or that the matter is obscene for one to be found guilty of this offense.
 
A conviction of this crime is a felony. It could be punishable by a sentence between 16 months, 2 or 3 years in a California state prison and/or a maximum fine of $10,000.00.
 
California Penal Code section 311.3 (Sexual Exploitation a Minor) - 
A person is guilty of sexual exploitation of a child if they knowingly develop/duplicates, prints/exchanges any representation of information, data/image, including, but not limited to, any film/filmstrip, photograph/negative, slide/photocopy, videotape/video laser disc, computer hardware/software, computer floppy disc/data storage media, CD-ROM/computer-generated equipment or any other computer-generated image that has in any manner, any film/filmstrip that shows a person a minor in an act of sexual conduct.
 
If it is one's first offense the case will likely be filed as a misdemeanor. A misdemeanor is punishable by a maximum of one year in county jail and/or a fine of $1,000.00. A felony is punishable by a sentence between 16 months, 2 or 3 years in a California state prison and/or a maximum fine of $10,000.00.
 
California Penal Code 311.4 (Employing, Hiring or Recruiting a Minor for Child Pornography) 
 
311.4(a) Every person who knows or should reasonably know a person is a minor and who hires/employs, or uses the minor to do/assist in performing any of the acts stated in Section 311.2, shall be punished by a maximum of one year in county jail and/or a fine of $1,000.00. A felony is punishable by a sentence between 16 months, 2 or 3 years in a California state prison and/or a maximum fine of $10,000.00.
 
If the person has a prior conviction for this section, the court may also impose a fine not exceeding fifty thousand dollars ($50,000).
 
311.4(b) Every person who knows or should reasonably know a person is a minor and who  knowingly promotes/employs, uses/persuades, induces/coerces a minor under the age of 18 years, or any parent/guardian of a minor under their control who knowingly allows the minor to engage in/assist others to engage in posing/modeling to prepare any form of information/data/image, including any film/filmstrip, photograph/negative, slide/photocopy, videotape/video laser disc, computer hardware/software, computer floppy disc/data storage media, CD-ROM/computer-generated equipment or any other computer-generated image that shows any film/filmstrip, or a live performance displaying sexual conduct by a minor alone or with other persons/animals, for commercial purposes, is guilty of a felony and shall be punished by state prison for three, six, or eight years.
 
311.4( c) Every person who knows or reasonably should that a person is a minor and who knowingly promotes/employs, uses/persuades, induces/coerces a minor or any parent/guardian of a minor under their control who knowingly allows the minor to engage in posing/modeling alone or with others for purposes of displaying any data/image, film/filmstrip, photograph/negative, slide/photocopy, videotape/video laser disc, computer hardware/software, computer floppy disc/data storage media, CD-ROM/computer-generated equipment/image that shows any film/filmstrip, or a live performance of sexual conduct by a minor alone or with other persons/animals, is guilty of a felony. It is not necessary to prove commercial purposes in order to establish a violation of this subdivision.
 
First time offenders can be charged as a misdemeanor or felony. Those who have previous convictions for violating this section will automatically be charged with a felony. A misdemeanor carries a maximum of one year in county jail and/or a maximum fine of one thousand dollars. A felony carries between sixteen months and three years in a California state prison and/or a maximum fine of fifty thousand dollars. If the minor is under fourteen years old, the penalties increase to a maximum of six years in a California state prison.
 

Common Defenses of Child Pornography

There are several defenses available to criminal charges under California Penal Code Section 311 - Child Pornography. Experienced sex crimes attorneys like Jeff Voll use these defenses to completely dismiss or reduce these charges. Jeff Voll examines the specific circumstances of a case to determine what legal defenses may be available. He then can use these defenses as part of a broader legal defense strategy designed to obtain the best possible outcome.

Below are some of the most common legal defenses against California Penal Code Section 311 - Child Pornography.

KNOWLEDGE

1) I was not aware of child pornography on my computer. The information stored on my computer is not in a way that I would have stored knowingly. Example a computer virus injected the information into my computer.

2) I did not realize the images found were child pornography.

POLICE ENTRAPMENT

This defense is available if the defendant's attorney can prove two separate facts. First, attorney has to prove that law enforcement officers acted in a coercive manner AND Secondly, the lawyer has to prove that his client acted unlawfully due to the far reaching methods of the police. Typically, the defense of police entrapment is available when a defendant is arrested as a result of an undercover police operation. The most common undercover police operation in cases involving Child Pornography involve online chat rooms.

FALSE ALLEGATIONS

It is not uncommon for defendants to face false allegations under California Penal Code Section 311 - Child Pornography. There have been many cases where work associates, in order to get someone they do not get along with fired or family members involved in divorce proceedings have surreptitiously placed illegal material on the defendant's phone. This is especially true with ex-spouses trying to gain an advantage in future divorce or custody hearings. In these types of cases, your sex crimes attorney Jeff Voll may be able to get the charges dismissed if he can prove that other people had access to the computer or phone in question.

BELOW ARE SOME CASES I HANDLED WHERE FALSE ALLEGATIONS RESULTED IN THE ARREST OF THE INNOCENT

Actual Case #1 represented by Attorney Jeff Voll

In People v. F. H. - Case No. 1CJ03293-01, my client was charged with 4 counts of sexual molestation of a minor and 4 counts of lewd conduct of a minor. The alleged victims were his kids! This case was filed as a misdemeanor because the Los Angeles District Attorney's Office saw the B.S. on the wall in bright neon paint that these were false allegations so they referred it to the Los Angeles City Attorney's Office who only filed misdemeanors. It was clear from the police report that the ex-wife mother of the kids was a life time subscriber to the old adage "hell hath no fury like a woman's scorn." You see, because they were divorcing, Mom wanted sole custody of the kids, so the Mom made her kids lie about my client touching them because Mom is a POS who forced her kids to lie so my client would not get custody. I mean this turd actually made her minor son and daughter lie to the police while forcing them to talk about their private parts and so forth. Yes, this happens. And it happens often. This is not the first time someone has fabricated a tale and used the criminal justice system against an innocent party. Just take me Attorney Jeff Voll as the defendant and perjuring losers John, David and Matt etc... for example. Anyway, the allegations she made were completely untrue. It was clear that she was full of excrement. Nevertheless, the City Attorney prosecutor (who has quite a reputation on the World Wide Web) filed 4 counts of sexual molestation of a minor and 4 counts of lewd conduct of a minor against my client which would mean if he was convicted he would have to register as a sex offender for life. After my Private Investigator got a chance to interview the kids, the prosecutor threw in towel. This case was clearly such bullshit that I could not wait for jury trial. Outcome: Case Dismissed.

Actual Case #2 represented by Attorney Jeff Voll

In People v. J.A. - Case No. FVI21002809, my client was charged with 3 sex crimes counts: 1 count of continuous sexual abuse of a minor  under 14 years of age, 1 count of lewd conduct of a minor under 14 and 1 count of lewd conduct with a 14 year old. The alleged victims were my client's great grandchildren! This case was filed as a Life in Prison felony by the San Bernardino County District Attorney's Office due to their being multiple "victims" and took over 2 years to fight. The trial lasted 3 weeks. It was crystal clear from the police report and associated discovery that the "victim" grandchildren were lying through their teeth and wanted to cast blame on Great Grand Dad because the youngest of the two "victims" at age 8 would like to take selfies of her vagina using great grand dad's tablet phone and the oldest of the two "victims at age 16 would travel to Bakersfield 3 times overnight to get down with an adult male. So when Chile Protective Services came around to investigate these incidents, the two little skeezers for the first time, after "years of abuse," told their parents and CPS that Great Grand Dad touched them and fingered their vaginas. Both "victims" testified at trial and were caught lying on the witness stand. The oldest of the two continue to make up lies ON THE WITNESS STAND which the jury could clearly see was a fairytale. Yes, this happens. And it happens often. This is not the first time someone has fabricated a story and used the criminal justice system against an innocent party. Just take me as the defendant and turds John, David, Matt, Gary, Jefferson, Angel, Scott and Midget etc... for example. Anyway, the allegations the children made were completely untrue. It was clear that the kids were completely full of excrement. Remember, if my client was convicted he would have had to register as a sex offender for life IF he ever made it out of a Life in Prison sentence. Outcome: Jury Verdict All Counts Not Guilty!

Whatever your defense maybe a child pornography charge is very serious. It carries severe penalty if convicted. In some cases you could be facing 5 – 50 years or life in prison if you are a repeat offender.

What You Should Do If You Are Being Charged with Child Pornography?

If you have been accused of possessing child pornography in the Los Angeles area, it is imperative that you avail yourself of the best possible criminal defense team. The consequences of a conviction can be severe and lifelong.

We at the Law Offices of Jeff Voll have extensive experience at handling possession of child pornography and other sex crime allegations. Our team of indecent exposure defense lawyers have never been prosecutors and have only defended against these types of crimes. We know how to choose and proceed with the best possible defense for each case.

Do not hesitate to call us at 323-467-6400 for a free legal consultation and immediate attention to your needs. Jeff Voll is skilled at defending these types of cases and knows how to defeat sex crimes allegations by the prosecution. Legal niche experts, researchers, investigators, and more also boost the effectiveness of our defense team. Contact us today and we will put our knowledge and experience to work for you. Remember that Attorney Jeff Voll is the ONLY California criminal defense firm that can truthfully state he achieved over 100 case dismissals in one 12 month period. Look no further for an attorney to represent you or a loved one.

Trust the Only Attorney You Will Find with 100 Criminal Cases Dismissed in a 1 Year Time Frame. Is Your Case the Next Dismissal?

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