Distribution of Child Pornography
It is a felony to distribute, sell, or possess with the intent to distribute any obscene matter that involves a person under the age of 18 (Child Pornography). This matter can be in the form of information, data or an image and can include any film, filmstrip, picture, photographic negative, slide, photocopy, videotape, laser disc, computer hardware, computer software, floppy disc, data storage media, cd-rom, or computer generated equipment or any other computer generated image. This list is not exhaustive.
The material doesn’t have to show a minor engaging in sexual conduct. It can also show a minor simulating sexual conduct in order to qualify under this penal code.
In this context, “to distribute” means to “transfer possession, whether or not the transfer is made for money or anything else of value.” (CALCRIM Jury Instructions 1141)
Sexual conduct is defined for the purposes of this charge as any of the following: “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 […], or excretory functions performed in a lewd or lascivious manner, 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.” (CA Penal Code 311.4)
Sentences for Distribution of Obscene Matter involving a minor
If you are found guilty of distributing or possessing with the intent to distribute obscene matter that shows a minor under the age of 18, you may be sentenced to prison for two, three, or six years, fined up to $100,000, or both.
Prosecuting CA Penal Code 311.2 (b)
The prosecutor must first prove that you distributed, offered to distribute, or possessed with the intent to distribute obscene matter within, or into, California.
The second thing they must prove is that you knew the nature of the material when the act occurred, meaning you were aware that the material is obscene.
The third thing the prosecution must prove is that you knew that the material depicted a person under the age of 18 engaging in, or simulating, a sexual act as defined above.
The final thing the prosecution must prove is that you intended to distribute the material to someone else for money or other commercial benefit. Commercial benefit can include distribution on the internet, even if no profit was made from the distribution.
Defending against a CA Penal Code 311.2 (b) charge
In order to defend against a CA Penal Code 311.2 (b) charge, your defense attorney will first look at the above list to counter what the prosecution must prove in order to charge you.
The best defense against a distribution of obscene materials involving a minor charge is to prove that you were never in possession of, or didn’t act to distribute in any way obscene material. Possession in this case does not simply apply to being in physical contact with the material; “it is enough if the person has control over it or the right to control it, either personally or through another person.” (CalCrim Jury Instructions 1141)
Another defense would be to prove that you had no knowledge of the content and nature of the material. For instance if you were not aware that a CD-ROM contained sexually explicit materials involving a minor under the age of 18 when you gave it to someone else, then you would not have had knowledge of the nature of the material.
Finally your attorney will try to prove that you did not know that the material showed a person under the age of 18 engaging in or simulating a sexual act. This applies to cases when the person’s age is not immediately apparent, and there is a reasonable possibility that you believed that each person in the material to be over the age of 18.
The jury will need to decide if the material can be considered obscene. “Matter is obscene if, when considered as a whole:
1. It shows or describes sexual conduct in an obviously offensive way;
2. A reasonable person would conclude that it lacks serious literary, artistic, political, or scientiﬁc value;
3. An average adult person, applying contemporary statewide standards, would conclude it appeals to a prurient interest.” (CalCrim Jury Instructions 1141)
Contemporary statewide standards means using present day standards to determine the effect on the average person in California that the material is likely to reach and decide whether the material would be acceptable to the statewide community as a whole.
A prurient interest is defined as “a shameful or morbid interest in nudity, sex, or excretion.” (CalCrim Jury Instructions 1141)
Your attorney can use these instructions in your defense. If he can prove that the material is not obscene under these standards than you cannot be convicted of CA Penal Code 311.2 (b).
If all the people under the age of 18 shown in the material are legally emancipated or if it shows legal activities between spouses under the age of 18, then the material is not considered obscene. If either of these situations applies to your case let your defense attorney know immediately.
Another defense that may apply is if you were acting as an agent of a law enforcement or prosecution agency. This means if a law enforcement or prosecution agency requested, suggested or directed you to distribute or sell obscene material involving a person under the age of 18, you cannot be found guilty under penal code 311.2 (b).
If you are being charged with CA Penal Code 311.2 (b), it’s important to discuss your situation with an effective criminal defense lawyer like Seppi Esfandi. He has over 13 years of experience defending clients in many types of criminal cases, including obscene matters depicting a minor. Don’t hesitate to call for a FREE case evaluation.
If you have recently been arrested for Child Pornography or related offense, please don’t hesitate to call us for a free, no-obligation consultation with Seppi Esfandi. During your call, Mr. Esfandi will hear the details of the case and advice you on the best approach to defend yourself. If you wish, a consultation in our office can be promptly scheduled.
Call Us for a FREE Case Review: 310-274-6529
CA Penal Code 311.2 (b)
CalCrim Jury Instructions 1141