Introduction 

The state’s laws in regard to possession and distribution of Child Pornography are codified at the following:

California Penal Code section 311.1;

California Penal Code section 311.2;

California Penal Code section 311.3;

California Penal Code section 311.4;

California Penal Code section 311.10; and

California Penal Code section 311.11.

Crimes involving child pornography largely fall into two categories – possession and distribution – but they are often, if not typically, charged together as part and parcel of a single incident.

Material that constitutes child pornography is fairly expansive but includes any photos or videos portraying sexual activity with anyone age 17 or younger. Penal Code section 311.4.

See also Judicial Council of California Criminal Jury Instructions (“CALCRIM”) number 1141 (“Distributing Obscene Matter Showing Sexual Conduct by a Minor”).

What is considered sexual activity is also fairly broad but always encompasses sexual intercourse, sodomy, oral copulation, and masturbation. Pen. Code section 311.4.

Not surprisingly, the District Attorney’s Office aggressively prosecutes child-pornography crimes and utilizes its highly-trained Cyber Crime Division personnel to do so. It often does so in conjunction with the LAPD’s Juvenile Division’s Internet Crimes Against Children Task Force.

Child pornography distribution crimes are virtually always charged as felonies, but possession crimes are considered “Wobblers” (California Penal Code section 17(b)): https://codes.findlaw.com/ca/penal-code/pen-sect-17.html, which means you can be charged with a misdemeanor or a felony, depending on what the Deputy DA prosecuting you wants to do.

Importantly, to be convicted of distribution, you don’t need to actually distribute the material, only make it available for downloading in a file-sharing account (as we learned when we successfully represented one particular client in such a case – see below).

Finally, simply viewing child pornography – as opposed to downloading it – can in and of itself trigger criminal prosecution. Notwithstanding, in the almost-16 years that LADALF’s founding attorney (as of February 2021), Ninaz Saffari, has fought against child porn cases, she has never represented a defendant who was not alleged to have also downloaded the subject material.

Emergency Bulletin re Non-Violent Sex Offenders Currently in Prison

California Supreme Court rules non-violent sex offenders can qualify for early parole

At the end of the year 2020, our state Supreme Court unanimously held that non-violent sex offenders currently in prison now and in the future will be eligible for early parole. This was obviously a major decision with far-reaching effects.

Previously, the California Department of Corrections had excluded from early parole this entire class of prisoners. Fortunately, the Court ruled that doing so was unconstitutional. The Supreme Court justices’ ruling was hardly surprising in light of the fact that all the California Courts of Appeal which had previously reviewed this wholesale exclusion had also ruled that doing so was unconstitutional.

In rendering its decision, the Court stated that the underlying ballot allowing for potential early release of all non-violent prisoners, which had been approved by a two-thirds majority of California voters in 2016, included no language that explicitly prohibited early parole for non-violent sex offenders. (Again, even if it had, the California Supreme Court would have struck it down as unconstitutional.) Specifically, Californians approved of Proposition 57

Aside from possession and distribution of child pornography, non-violent registerable sex offenses also include incest and indecent exposure. Please keep in mind that such offenders will not automatically be paroled – this is still left in the all-powerful discretion of the parole board.

See: washingtonexaminer.com.

A Special Note for Inexperienced Defense Attorneys

Attorneys who are new to or otherwise inexperienced in the practice of criminal law, or even to representing sex-crime defendants, should be extremely cautious in regard to handling child pornography cases. Specifically, even though an attorney is obviously doing so for the purpose of defending the client, if the former downloads or transmits the subject obscene material, then the attorney could also be prosecuted!

In other words, a defense lawyer should always avoid personally handling this material. Similarly, I have heard a story about one such lawyer who downloaded apparently obscene materials to prove to his client’s jury that such material is arguably not pornographic and is readily accessible online. Unfortunately, he was supposedly disbarred and prosecuted.

Sex Crimes – Child Pornography – Pre-Files/Early Dismissals

Child pornography charges can often be favorably resolved either before they are filed by the DA’s Office or shortly thereafter without even a misdemeanor conviction. At the Los Angeles Defense Attorney Law Firm, we have enjoyed considerable success in convincing the investigating detective and/or the prosecuting Deputy DA that you are not criminally culpable, including based on the defenses set forth below.

If you learn that you are subject to an investigation for possession and/or distribution of child pornography, please contact us to find out about your options.

California Statutes – Sex Crimes – Child Pornography

California Penal Code section 311

This is the state’s main child pornography statute, which criminalizes the production, distribution, dissemination, exhibition, sale, publication, publicization, presentation, and commercial exploitation of obscene material depicting minors. This is material that lacks legitimate “literary, artistic, political, or scientific value”, and which may be directed to specifically identified deviant groups.

To be illegal, this material must also appeal to a prurient interest (i.e., sexual desire, pleasure, etc.). In addition, the subject matter can appear in virtually any form or medium – from hard-copy papers to digital images that may be automatically deleted shortly after transmission via disappearing-message apps. All of the other Penal Code sections identified above codify variations of these criminal prohibitions. See, e.g.:

Possession of Child Pornography (California Penal Code section 311.11(a)). 

Keep in mind that regardless of how much obscene material is found in a single location – and regardless of how many forms/mediums that material is contained in – you can only be charged with a single count of possession. See People v. Manfredi (2008) 169 Cal.App.4th 622.

See also Distribution of Child Pornography (California Penal Code section 311.1(a)).

Regardless of the particular Penal Code statute, every crime involving child pornography requires “specific intent”, which means that you specifically intended to download or distribute the obscene material.

Defenses to Sex Crimes Charges – Child Pornography

The following defenses, which are all set forth in CALCRIM, apply to charges of possessing and/or distributing child pornography:

  1. you never actually possessed or controlled the subject obscene material;

  2. you didn’t act knowingly (i.e., there was no specific intent on your part to download, distribute, or make available for the same the subject material; alternatively, you weren’t aware of the nature of the material you were downloading or disseminating; or you weren’t reasonably aware that the individuals involved in the depicted sexual activity were minors);

  3. you acted with an objectively legitimate purpose in mind (e.g., you were distributing a critically acclaimed foreign film, such as France’s Blue is the Warmest Colour, which depicted underage sex acts, and which was awarded the highly prestigious Palme d'Or at the 2013 Cannes Film Festival);

  4. the individuals depicted in the subject material were not in fact minors;

  5. you did not act out of prurient interest (i.e., you didn’t act out of lust, passion, or sexual desire; alternatively, you didn’t disseminate the subject material to arouse the same in another person);

  6. the material did not in fact depict actual or simulated sexual activity that would offend a reasonable person;

  7. nor did it objectively appeal to a reasonable person’s prurient interest;

  8. you didn’t intent to disseminate the material for any financial or commercial benefit;

  9. you didn’t import, distribute, produce, prepare, publish, or sell the obscene material in California;

  10. when you acted, you never intended to distribute the material to another person.

Again, these defenses, as well as others, can be found in the following CALCRIM sections:

CALCRIM number 1140 (“Distributing, Sending, or Exhibiting Harmful Material -- Pen. Code § 288.2(a)(1) & (2)”);

CALCRIM number 1141 (“Distributing Obscene Matter Showing Sexual Conduct by a Minor -- Pen. Code §§ 311.1(a), 311.2(b)”);

CALCRIM number 1142 (“Distributing or Intending to Distribute Obscene Material -- Pen. Code § 311.2(a)”); and

CALCRIM number 1145 (“Possession of Matter Depicting Minor Engaged in Sexual Conduct -- Pen. Code § 311.11(a)”).

The Critical Importance of Using a Top Expert Witness

In the vast majority of child porn cases we have handled over more than a decade-and-a-half (again, as of February 2021), we have utilized a top IT expert. Our favorite is a former NSA employee who trained Edward Snowden, and who had ultra-top-secret security clearance. Such an expert – particularly when testifying at trial (or sometimes at the preliminary hearing) – can help us prove your innocence. And although such an expert is expensive, we are typically successful in petitioning the court to have his consultation fees paid by the county.

Conversely, however, sometimes an expert is not required. Nor is such an expert required to be presented by either the Deputy DA or your counsel. Pen. Code § 312.1.

Nevertheless, in our opinion, if the prosecutor presents an expert witness to testify against you, then your own lawyer’s failure to counter with a defense expert amounts to legal malpractice, as well as a violation of your constitutional right to adequate counsel.

Sex Crimes Convictions – Child Pornography

As with virtually all misdemeanors, a misdemeanor conviction for possession of child pornography entails up to 12 months in jail. Conversely, a felony conviction will get you as much as three years in prison.

However, prior child pornography convictions typically result in far harsher sentences upon a second conviction. Specifically, if you’ve previously been convicted of Possession of Child Pornography (Penal Code section 311.11(a)), upon a second conviction, you’ll receive two, four, or six years in prison. Pen. Code § 311.11(b).

In addition, regardless of the nature of the conviction, you will be placed on probation for three or five years; be required to complete 52 weeks of sexual compulsion counseling; be required to submit to having your person, residence, and possessions (including digital and computer devices) searched without advance notice or a warrant; and usually (though not always) have to register as a sex offender (see below).

Finally, if specific minors are involved, you’ll be prohibited from having any contact with them in the future.

Sex Crimes – Registration Requirements – Child Pornography

Pursuant to California Penal Code section 290 (the Sex Offender Registration Act), as well a new state law enacted on January 1, 2021 (Senate Bill 384), even a misdemeanor conviction for child porn can result in a decade-long sex offender registration requirement.

(Any sex-crime conviction that entails a decade-long registration requirement is known as a “Tier One” offense.) This means that any member of the public can quickly and easily look you up on the state’s “Megan’s Law” website and find out every pertinent detail about your conviction.

At least as bad is the fact that if you fail to properly and timely register whenever you move to another locale within the state, you could be subject to significant penalties pursuant to California Penal Code section 290.018.

Examples of Sex Crimes – Possession of Child Pornography

Former CHP officer is sentenced to 6 months in jail for possessing more than 600 child porn images

On May 15, 2018, Lancaster resident and former CHP officer Robert Tamayo (thirty-eight) pled guilty to a single felony count of Possession of Child Pornography (Pen. Code section 311.11(a)).

Exactly one month later, he received his sentence: six months in jail, 60 months of formal probation, one year of weekly sex-offender therapy sessions, and lifetime sex-offender registration.

The investigation commenced after the DA’s Office received a tip from the FBI. The former’s Bureau of Investigation and the CHP thereafter conducted a joint investigation of Tamayo.

When arrested, sex crimes detectives allegedly found more than six hundred incriminating images on his digital devices.

See: da.lacounty.gov..

Glendora resident sentenced to 13 years, four months in prison after being arrested at public library

On February 9, 2014, Glendora resident Kirk Eggleston (forty-nine) used a computer at the local public library to view child porn images. His arrest came about after library employees noticed him viewing semi-nude images of female minors. They immediately called Glendora PD, whose officers rushed to the scene and, after looking at his search history (which included child porn search terms), and after running his name through various databases (including the Megan’s Law website), they arrested him.

According to police, Eggleston had previous felony convictions for the following:

Lewd Acts with a Minor Child Under 14 (California Penal Code section 288);

Annoying or Molesting a Child Under 18 (California Penal Code section 647.6); and

Indecent Exposure (California Penal Code section 314).

At that point, police obtained a search warrant to raid his nearby residence, where they found more child porn images.

On October 20, 2014, he was convicted by a jury of Possession of Child Pornography after a Prior Conviction (Pen. Code § 311.11(b)) and Attempted Child Pornography after a Prior Conviction.

On January 14, 2015, he received the following sentence: almost 13-and-a-half years in prison, plus lifetime sex-offender registration. The sentence was particularly harsh because of all of his prior sex-crime convictions involving minors.

See: https://da.lacounty.gov/sites/default/files/press/011415_Glendora_Man_Sentenced_to_Prison_for_Child_Pornography.pdf.

Example of a Sex Crime – Distribution of Child Pornography

Former DCFS employee receives two-year suspended prison sentence for distributing images

Over a six-month period, from late 2017 through early 2018, former LA Co. Dept. of Children and Family Services employee and Angeleno Carlos Castillo (age 53 or 54 at the time) transmitted via the internet child porn images to one or more third parties from his home laptop. As a result, he was arrested by LAPD, which also seized those same images therefrom.

On February 5, 2019, he pled nolo contendre to five felony counts of Distribution of Child Pornography (Pen. Code section 311.1(a)) and one felony count of possession of child pornography.

Twenty-three days later, he given a two-year suspended prison sentence; ordered to complete 60 months of formal probation, as well as one year of weekly sex-offender therapy; subjected to search and seizure; forfeiture of numerous digital devices seized from his residence; and lifetime registration.

See: da.lacounty.gov.

Sex Crimes – Child Pornography – Examples of Celebrity Cases

“Pee-Wee Herman” Actor Paul Reubens

In November 2001, actor Paul Reubens, who portrayed the beloved “Pee-Wee Herman” character of the hit television series Pee-Wee’s Playhouse, was arrested following a raid on his residence wherein detectives allegedly seized tens of thousands of child porn images.

On or about March 1, 2004, he pled guilty to a single misdemeanor for possession of obscene materials with intent to distribute and received the following: 36 months’ probation; no unsupervised contact with anyone under 18; a small fine; 52 weeks of sex offender therapy sessions; and three years of registration. Needless to say, that was the end of his entertainment career.

See: latimes.com..

Actor Jeffrey Jones (Ferris Bueller’s Day Off)

At or around the same time Reubens was arrested, so, too, was actor Jeffrey Jones, best known for his portrayal of the hapless principal in Ferris Bueller’s Day Off. This was not a coincidence as both actors had been targeted in the same 12-months-long investigation by LAPD sex crimes detectives.

For approximately a year-and-a-half, beginning in 2000, Jones (then 53) allegedly paid a boy (age fourteen) to pose nude for him while he photographed him. Jones, like Reubens, was arrested following a raid on his residence (located in the Hollywood Hills).

In early July 2003, Jones pled nolo contendre to a single misdemeanor count for Possession of Child Pornography (Pen. Code § 311.11(a)).

As a result, he was sentenced to five years of probation (which is highly unusual for a misdemeanor conviction of any nature); sex-offender registration, also for five years; 52 weeks of therapy; 24 months of alcohol & substance-abuse therapy; and a ban on viewing or possessing pornographic images (including those involving only adults).

He had initially been charged with felony child-porn possession, which carries a maximum three-year prison term. (At no point was he alleged to have molested or otherwise touched the boy.)

The investigation against both actors apparently commenced after the boy reported to a family member that another photographer had paid him to pose nude, and that this man had thereafter referred the boy to Jones.

See: latimes.com..

An Example of a Sex Crime Case -- Child Pornography Handled by the Los Angeles Defense Attorney Law Firm (LADALF)

Possession & Distribution Charges – 6 Years, Lifetime Registration & Deportation – Case Dismissed

People v. J.L.: Client apprehended at Los Angeles Int’l Airport after police found obscene images on his smart phone. After they learned he had forwarded some of these images to a third party and also posted them on a chat room site, he was charged with:

Possession of Child Pornography (P.C. § 311.11(a)); and

Distribution of Child Pornography (P.C. § 311.1(a)).

Maximum sentence if convicted: half-a-dozen years in a state penitentiary; lifetime sex-offender registration (California Penal Code section 290(b)); and deportation (client was living here on a work visa).

Result: We were able to obtain a drastically reduced plea to Second-Degree Commercial Burglary (California Penal Code section 460), which wouldn’t trigger deportation. All other charges were dismissed. He received no jail time and, after he finishes probation, he will be eligible to have the burglary conviction expunged from his record.

The Los Angeles Defense Attorney Law Firm (LADALF)

As of March 2021, it will have been 16 years that LADALF founding criminal attorney Ninaz Saffari has been defending individuals against virtually every type of sex crime codified in the California Penal Code, including many involving minors, and particularly in regard to possession and distribution of child pornography cases.

She is able to favorably dispose many of these cases either before or immediately after charges are filed, though some are only disposed of following a successful jury trial. Regardless of the stage or prosecution or nature of the crime, there is no finer sex-crime lawyer in the entire county. And her track record proves it.