Child Pornography

Possession of child pornography is a very serious crime in California, just as it is in all states and under federal law. If you or a loved one are facing possession of child pornography charges, you should immediately contact an experienced criminal defense attorney.

Most importantly, do not make any statements to the police regarding possession of child pornography. Don’t try to explain anything, even if you are 100% innocent. You need to contact a lawyer immediately. Remember, if child porn is found on your computer, whether you intended to possess it or not, law enforcement already thinks you’re guilty. You are not going to be able to convince them otherwise on your own. You need a lawyer. Simply tell the police that you are retaining a lawyer and that you are not going to make any statements.

Felony or Misdemeanor?

This offense is a “wobbler.” This means that the offense can be charged as a felony or a misdemeanor. A misdemeanor conviction could result in a sentence of up to one year in the county jail, while a felony conviction could result in a state prison sentence.

If you are accused of possession of child pornography in California, you are facing very serious consequences and you should hire an attorney immediately. A conviction of this offense, either as a felony or a misdemeanor, shall require registration under the Sex Offender Registration Act, which is a mandatory life time registration. Here is the language of the statute:

“Every person who knowingly possesses or controls any matter, representation of information, data, or image, including but not limited to, any film, filmstrip, photograph, videotape, computer hardware or software, CD-ROM, or computer-generated equipment or any other computer-generated image that contains or incorporates in any manner, any film or filmstrip, the production of which involves the use of a person under the age of 18 years, knowing that the matter depicts a person under the age of 18 years personally engaging in or simulating sexual conduct, shall be punished by imprisonment in the state prison, or a county jail for up to one year, or by a fine, or by both the fine and imprisonment.”

If you have been previously convicted of a violation of this section, or an attempt to commit a violation of this section and found guilty, you could be charged with a felony and punished by up to six years in state prison.

Defenses to Child Pornography Charges

There are three complete defenses to possession of child pornography:

  1. You did not possess or control images of a child – The prosecution must prove beyond a reasonable doubt that you possessed or controlled images of child pornography. Raising this defense requires the work of a forensic computer expert working at the direction of your attorney. If the defendant discovered child pornography on his or her computer, what did he or she do? Call police immediately? Alert an attorney? Take steps to destroy the image? All of this plays into the defense.
  2. It is not child pornography – Are the people in the images actually under 18? Is it an actual photographic image of an actual person under 18 years old or is it a digitally generated composite image? Is it a “drawing, statute or any film rated by the Motion Picture Association of America?” Is it an image used for a legitimate scientific purpose? All of these are defenses to possession of child pornography.
  3. Unlawful search and seizure – An experienced criminal defense lawyer will always look for issues regarding the search and seizure of computers or other materials that lead to law enforcement’s discovery of child pornography. Was there a warrant? Was the warrant lawfully obtained based on probable cause? If there was not a warrant, was there a valid exception to the warrant requirement?

Is Ignorance a Defense?

“But I didn’t know I had child pornography on my computer.” Is that a defense? This is perhaps the most understood area in California criminal law and is often the very question that a jury needs to decide in child pornography possession cases.

Under California Penal Code Section 311.11(a), the prosecution must prove possession or control of any child pornography “matter, representation of information data, or image.” Under California law, the mere viewing of child pornography is not a crime. However, if the image is viewed in an Internet browser, it is highly likely that the image will remain in the user’s temporary Internet files which will be recovered by law enforcement. Unfortunately, this means that even though there may be no child pornography images readily accessible to the owner of the computer, if there are any images stored in the computer’s hidden temporary Internet files, even if the owner was not aware they were there, this may be enough for a conviction under California law.

The main case on this issue is Tecklenburg v. Superior Court (2009) 169 Cal. App. 4th 1402. In the Tecklenburg case, the California court of appeal found that the statutory language of Penal Code Section 311.11(a) “reflects a far-reaching intent by the Legislature to cover both traditional means of displaying child pornography and the new era of Internet use in an effort to reduce the exploitation of children. By its plain terms, section 311.11 includes an image of child pornography as it is displayed on a computer screen as an object that can be knowingly possessed or controlled. Section 311.11, subdivision (a), is not limited to the knowing possession or control of the computer’s underlying data or files.” However, there is a bit more to the story. In the Tecklenburg case, there was more evidence than just the images stored in the temporary Internet files. Most significantly, there was evidence that these images were not unwanted and unsolicited “pop-ups” that appeared in the defendant’s Internet browser and that a large amount of “similar child pornography was found on three work computers; [the] defendant provided the commonality among all four computers reasonably demonstrated that it was defendant who searched the Internet for and accessed the child pornography web sites and images.”

So the bottom line is this: If there’s any evidence of child pornography images on a computer, not matter how scant or tenuous and the computer can be linked to the user, it might be enough for the District Attorney to file a case. Will it be enough to convict? It depends on the facts of the case. This is why it is critical to retain an attorney who is experienced in defending child pornography cases.

Mental Health Issues as a Defense

Unless the defendant meets the legal definition of insanity under California law, which is rare, mental illness is not a defense. While obsessive-compulsive disorder (OCD), addiction issues, bipolar disorder, or severe depression can all explain why a person accessed child pornography, it is not a legal defense. However, it can go a long way towards helping craft a drastically reduced punishment. This requires generating what you may call a “private probation report” in which a forensic psychologist or psychiatrist is retained to evaluate and assess the client’s conduct as it relates to their social history and mental health history.

If you or a loved one is under investigation for or has been charged with violating California’s possession of child pornography laws, do not hesitate to contact criminal defense attorney Jerod Gunsberg in Los Angeles at (323) 633-3423 for a confidential consultation about your case or get in touch via the secure contact form on this page. Help is available 24 hours a day, 7 days a week.

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