In California, a conviction for possession of child pornography carries severe penalties. In addition to the potential for a lengthy prison term, a conviction could also have collateral consequences for your personal life. These consequences could come at the hands of either state or federal prosecutors depending on the circumstances. In either case, the right defense lawyer can make a major impact on your defense. To discuss your options, contact attorney Vitaly Sigal right away.
Federal and California Statutory Definitions of Child Pornography
Possession of child pornography is not outlawed by California law alone. In addition to state charges, the possession of these images could also result in a federal prosecution. Generally, possessing child pornography results in state charges while transmitting or creating it is more often pursued by the federal government. That said, there is nothing prohibiting either jurisdiction from pursuing a charge of possessing child pornography against you.
California Possession of Child Pornography Law
In California, the possession of child pornography is barred by California Penal Code Section 311.1. The statute itself defines possession broadly to limit the potential for unintentionally allowing some use of illicit photos of a child. According to the statute, it is a violation of state law when a person:
possesses, prepares, publishes, produces, develops, duplicates, or prints any representation of information, data, or image, including, but not limited to, any film, filmstrip, photograph, negative, slide, photocopy, videotape, video laser disc, computer hardware, computer software, computer floppy disc, data storage media, CD-ROM, or computer-generated equipment or any other computer-generated image that contains or incorporates in any manner, any film or filmstrip…
Further, the possession of child pornography is a crime of intent. If you did not knowingly possess illicit material, you are not guilty under the statute.
In California, these offenses are typically considered “wobblers.” A wobbler is a charge that allows a prosecutor to charge a defendant with either a misdemeanor or a felony. A misdemeanor conviction could lead to up to a year behind bars and a fine of no more than $2,500. For a felony charge, you could spend up to three years in prison upon a conviction.
While these charges are serious, violations of federal law can also have a life-changing impact.
Federal Statute on Possession of Child Pornography
The federal laws related to child pornography are broad and cover several areas that state law does not cover. Federal law is primarily and comprehensively focused on:
- the production of child pornography; and
- the transmission of child pornography across state lines.
It should come as no surprise, then, that the federal statute relating to the possession of child pornography relates to interstate commerce. According to U.S. Code Section 2252, there are two circumstances where possession of child pornography is commonly prosecuted. They involve the possession of child pornography:
- with the intent to sell it on government land; or
- that has been transported across state lines with the intent to sell it.
Examples of Possession of Child Pornography Crimes
One of the best ways to understand what conduct violates state law and what does not is through the use of examples. Consider the examples below:
Example #1: Violation of the Statute
You are driving in your car one afternoon when a police officer pulls you over for a broken tail light. Suspecting something was amiss, the officer questions you until you admit you possess child pornography in the trunk of your car. When law enforcement finds the illicit material in your trunk, you are arrested for violation of the statute.
Example #2: Unknowing Possession
You are driving in your car one afternoon when a police officer pulls you over for a broken tail light. Suspecting something was amiss, the officer asks your permission to search your car, which you agree to. During the search, the officer finds a suitcase in the back of your car that you borrowed from a friend. In a hidden compartment, the officer finds child pornography that you were not aware of. While you were technically in possession of the illicit material, you have a viable defense that you did not knowingly possess it.
Common Defenses to Possession of Child Pornography Charges in California
There are many potential defenses to a charge of possession of child pornography. Every case is unique, and your attorney can assist you in identifying the defenses that could be available in your case. Some of the common defenses a
Lack of Evidence
At the end of the day, the strongest defense is often denying that you have done anything wrong. Law enforcement makes mistakes, and in some cases, you are simply not guilty of a crime. For instance, child pornography possession revolves around possessing illicit material. If the material you possess depicts consenting adults, for example, your defense would center on the police's mistaken arrest.
Lack of Knowing Possession
As discussed in the example above, the lack of knowledge is another common argument for the defense. Only a person that is aware he or she is in possession of child pornography has committed a crime. If you are unaware that you are in possession of the illicit material or are not aware of its nature, you could have a defense. Keep in mind, this defense requires the jury to take your word that you lacked knowledge.
Like with every crime, you could have a defense if law enforcement violated your constitutional rights while building the case against you. For example, if you or your property is unlawfully seized or if the police search your car or home unlawfully, any evidence collected cannot be used against you. This includes physical evidence found in your home or even admissions you make prior to an unlawful arrest.
Entrapment is a fairly common defense in these crimes as well. Law enforcement frequently attempts “sting” operations to trap suspecting traffickers of child pornography. In some cases, they can become so overzealous they can lure you into a crime you had no intention of committing. If a jury determines law enforcement used undue influence like pressure, threats, or fraud to get you to commit a crime, you could have a viable defense against a charge of possessing child pornography.
Contact a Los Angeles Criminal Defense Lawyer Today
The cost to your reputation can be significant following a conviction for possessing child pornography. However, that cost can pale in comparison to the impact spending years of your life in prison can have. Thankfully, you can fight back against these charges. Contact the Sigal Law Group, located in Los Angeles, right away to learn more.