Defending Against Charges Under California Penal Code 311.11

California Penal Code 311.11 makes it a crime to possess child pornography involving minors under 18 years old. Being charged under this law can be frightening and overwhelming, but there are several legal defenses that can be used to fight these charges. This post will discuss the law, possible defenses, penalties, the statute of limitations, expungement options, and related offenses.

Understanding 311.11 Penal Code

To convict someone under California Penal Code 311.11, prosecutors must prove two main points:

  • The defendant knowingly possessed or controlled child pornography.
  • The defendant knew the material depicted a minor under 18 engaging in sexual conduct.

Child pornography includes any material showing a minor involved in sexual acts such as intercourse, oral sex, anal sex, sadomasochistic abuse, sexual activity with objects, or bestiality. Possession can be actual (having the material on you), constructive (keeping it in a place you control), or joint (sharing possession with someone else). However, brief possession, like immediately returning it after realizing what it is, doesn’t count.
It’s important to note that images altered by computer software, such as replacing an adult’s head with a child’s head, may not fall under this law. However, with the advent of artificial intelligence (A.I.), expect this to change in the future.

Legal Defenses for 311.11 Penal Code Charges

If you’re charged with possession of child pornography, several defenses can help you:

  • Mistake of Fact: If you genuinely believed the person depicted was 18 or older, this can be a defense. The prosecutor must prove you knew the person was underage.
  • Lack of Possession: Simply being near child pornography or knowing someone who has it doesn’t mean you’re guilty. The prosecutor must prove you had actual or constructive possession.
  • Entrapment: If law enforcement tricked or pressured you into committing the crime, this could be a defense. Police can suggest committing a crime, but they cannot force or coerce you.
  • Coerced Confession: If your confession was obtained through undue pressure or threats by police, it might be inadmissible in court.
  • Insanity: In rare cases, if you didn’t understand the nature of your actions or that they were wrong due to mental illness, this could be a defense.
  • False Accusation: Sometimes, people are falsely accused out of revenge or anger. Evidence like text messages or voicemails from the accuser can demonstrate their motive to lie.
  • Illegal Search and Seizure: If the police conducted an illegal search without a valid warrant, the evidence might be suppressed, leading to the case being dismissed.

It’s important to remember that a minor’s consent is not a defense. In California, no one under 18 can legally consent to sexual conduct.

Penalties for Violating Penal Code Section 311.11

Possessing child pornography is a “wobbler” offense, meaning it can be charged as a misdemeanor or a felony. Both convictions require you to register as a sex offender ranging from 10 years to Lifetime registration under Penal Code section 290.
Misdemeanor Penalties:

  • Up to 1 year in county jail
  • Fines up to $2,500

Felony Penalties:

  • 16 months, 2 years, or 3 years in state prison
  • Fines up to $2,500
  • The maximum sentence can increase to 5 years if the material involves more than 600 images, contains at least 10 images of prepubescent minors, or shows sadism or masochism with a minor.

Felony charges are automatic if you have a prior sex offense conviction, with potential sentences of 2, 4, or 6 years.

Statute of Limitations:

Generally, for misdemeanor charges, prosecutors must file within 1 year of the alleged offense. For felony charges, the prosecutors generally have 3 years to file a case, however, depending on the circumstances, that period can be longer.


While most misdemeanors are eligible for expungements after successful completion of a jail term or probation, unfortunately a conviction for Penal Code section 311.11—as a misdemeanor or felony—is not eligible for expungement. Hopefully the law will be amended in the future to allow for expungements.

Related Offenses:

Other related offenses include:

  • PC 311.2: Production/distribution of obscene material. Penalties range from up to 1 year in jail for misdemeanors to 6 years in prison for felonies.
  • PC 311.4: Employing minors to sell or distribute pornography, with similar penalties as PC 311.2.
  • PC 288: Lewd acts with a child, always charged as a felony.
  • PC 261.5: Statutory rape, which can be a misdemeanor or felony.
  • PC 647(j)4: Revenge porn, which can involve minors or adults.


Facing charges under California Penal Code 311.11 can be extremely serious, but there are multiple defenses available. From proving a mistake of fact to demonstrating a lack of possession and from entrapment to illegal search and seizure, an experienced attorney like DCD LAW can help build a strong defense. Understanding the penalties, statute of limitations, and expungement options can also help you manage this challenging situation. If you find yourself facing such charges, consult with a DCD LAW Attorney, who can guide you through the legal process and fight for your rights.