Production of Child Pornography (Penal Code § 311.4) in California

Being charged with production of child pornography under California Penal Code § 311.4 represents one of the most serious criminal allegations a person can face. These charges carry severe penalties, including substantial prison time, hefty fines, and lifetime sex offender registration.

At David P. Shapiro Criminal Defense Attorneys, we understand that those facing such charges need immediate legal guidance. If you’re under investigation or have been charged in San Diego County, contacting an experienced defense attorney should be your first priority.

Understanding California Penal Code § 311.4

California Penal Code § 311.4 specifically criminalizes the production of child pornography, targeting those who use minors in the creation of sexual content. Unlike other child pornography statutes that focus on possession or distribution, this law targets the actual production process.

The statute is divided into multiple sections with varying elements and penalties:

PC § 311.4(a) – Using a Minor to Help Create Obscene Material

This section prohibits hiring, employing, or using a minor to assist in creating obscene material as outlined in PC § 311.2. It can be charged as either a misdemeanor or a felony.

PC § 311.4(b) – Commercial Production

This more serious subsection applies when someone knowingly uses a minor to engage in posing or modeling for sexual content for commercial purposes. This is always a felony with severe prison sentences.

PC § 311.4(c) – Non-Commercial Production

This section mirrors subsection (b) but applies even when there is no commercial purpose. Prosecutors don’t need to prove you intended to sell or distribute the material – simply creating it is sufficient for charges.

Key Elements Prosecutors Must Prove

For a conviction under PC § 311.4, prosecutors must establish specific elements beyond a reasonable doubt, though these vary slightly depending on which subsection applies:

For PC § 311.4(a):

1. You hired, employed, or used a minor
2. The minor assisted in producing obscene material
3. You knew or should have reasonably known the person was a minor

For PC § 311.4(b) and (c):

1. You knowingly promoted, employed, used, persuaded, induced, or coerced a minor (or permitted a minor under your control) to engage in posing or modeling
2. The posing or modeling involved sexual conduct
3. You knew or should have reasonably known the person was under 18
4. For (b) only: The production was for commercial purposes

These elements create specific targets for defense strategies, as we’ll discuss later.

What Qualifies as “Sexual Conduct” Under the Law

California Penal Code § 311.4(d) provides a detailed definition of “sexual conduct,” which includes:

• Sexual intercourse (vaginal or anal)
• Oral copulation
• Masturbation
• Bestiality (sexual acts with animals)
• Sexual sadism or masochism
• Penetration of the vagina or rectum by any object in a lewd manner
• Exhibition of genitals or pubic/rectal areas for sexual stimulation
• Any lewd act as defined in PC § 288 (lewd acts with a minor)
• Excretory functions performed in a lewd manner

Importantly, the statute specifies that these acts can be either actual or simulated. An act is considered “simulated” when it gives the appearance of being sexual conduct, even if no actual sexual activity occurred.

Penalties for Violating PC § 311.4

The consequences for production of child pornography vary based on the specific subsection violated:

PC § 311.4(a):

• Misdemeanor: Up to 1 year in county jail and/or fine up to $2,000
• Felony: 16 months, 2 years, or 3 years in state prison
• Enhanced fines up to $50,000 for those with prior convictions

PC § 311.4(b) – Commercial Production:

• Felony: 3, 6, or 8 years in state prison
• Fines up to $100,000
• Sentence enhancements possible for multiple victims or prior convictions

PC § 311.4(c) – Non-Commercial Production:

• Felony: Typically 16 months, 2 years, or 3 years in state prison
• Additional fines

Enhanced Penalties for Victims Under 14:

PC § 311.4(f) provides for enhanced penalties when the victim is under 14 years old. This must be specifically pled and proven by prosecutors.

Additional Consequences:

Beyond direct criminal penalties, a conviction also results in:

• Mandatory sex offender registration: Typically Tier 3 (lifetime) registration under California’s tiered system
• Strike under California’s Three Strikes Law
• Professional license revocation
• Employment difficulties, especially in fields involving children or positions of trust
• Housing limitations due to sex offender residency restrictions
• Immigration consequences for non-citizens, potentially including deportation
• Reputation damage and profound personal and social consequences

Statute of Limitations

Understanding when charges can be filed is important. For PC § 311.4 offenses:

• For offenses committed against victims under 18: Prosecution can begin any time before the victim’s 40th birthday
• For offenses with adult victims: Generally 3 years from the date of the offense
• Various circumstances can extend or toll (pause) these limitations

The extended statute of limitations for offenses against minors means charges can sometimes be filed many years after the alleged conduct.

Common Defense Strategies

Several defense approaches may be effective depending on the specific circumstances:

Lack of Knowledge of Minor Status

If you genuinely didn’t know and had no reasonable way to know the person was under 18, this directly challenges a key element of the offense. Potential evidence might include:

• The minor presented fake identification
• The minor participated in age-restricted environments
• The minor’s appearance and behavior suggested adult status

No Sexual Conduct

If the material in question doesn’t meet the legal definition of “sexual conduct” under PC § 311.4(d), this is a complete defense. Sometimes material is suggestive but doesn’t rise to the legal standard required.

Constitutional Challenges

In some cases, Fourth Amendment violations in the search and seizure process or First Amendment issues regarding protected expression might provide grounds for defense.

Mistaken Identity/Lack of Involvement

Evidence showing you weren’t the person who produced the material or weren’t involved in the production process can be a complete defense.

No Commercial Purpose (for PC § 311.4(b) charges)

If charged under subsection (b), proving the production wasn’t for commercial purposes might result in charges under the less severe subsection (c) instead.

False Accusations

Unfortunately, false allegations do occur, particularly in contentious family situations or where other motives for fabrication exist.

The Investigation Process

Understanding how these cases are typically investigated helps in preparing a defense:

Initial Investigation

• Reports from witnesses, parents, or digital service providers
• Identification and interviews with potential victims
• Search warrants for homes, electronic devices, and online accounts

Digital Forensics

Investigators employ specialized techniques to recover:

• Metadata showing when and how images/videos were created
• File transfer and sharing records
• Evidence of editing or manipulation
• Deleted files and browsing history

Psychological Evaluations

In some cases, victims undergo psychological evaluations to assess trauma and verify accounts.

Multi-Agency Cooperation

These investigations often involve:

• Local law enforcement
• FBI and federal agencies
• Internet Crimes Against Children (ICAC) Task Forces
• National Center for Missing and Exploited Children (NCMEC)

Legal Exemptions to PC § 311.4

The statute contains limited exemptions:

1. Legally emancipated minors: The law doesn’t apply to legally emancipated minors
2. Lawful conduct between spouses: If one or both spouses are under 18

These narrow exceptions highlight the strict nature of California’s child pornography production laws.

What Sets PC § 311.4 Apart from Other Child Pornography Laws

California has several statutes addressing different aspects of child pornography:

• PC § 311.1 and 311.2: Focus on distribution and transportation
• PC § 311.3: Addresses development, duplication, and exchange
• PC § 311.11: Specifically targets possession

What makes PC § 311.4 distinct is its focus on the production process and those who use minors to create sexual content. The penalties are typically more severe than for possession alone, reflecting the legislature’s view that directly involving minors in the creation of pornography represents a more serious harm.

Frequently Asked Questions

Does material have to be distributed to qualify as a violation?

No. Simply producing the material is sufficient for charges under PC § 311.4, regardless of whether it was ever distributed or shared.

What constitutes “commercial purposes” under PC § 311.4(b)?

Courts generally define commercial purposes as the intent to sell, trade, or otherwise distribute the material for financial gain. However, the exact interpretation can vary by case.

Can digitally created or AI-generated images lead to charges?

Yes. The statute explicitly includes “digitally altered or artificial-intelligence-generated matter” when it incorporates actual minors.

Does a minor have to be unclothed to constitute a violation?

No. The focus is on whether the material depicts “sexual conduct” as defined in the statute, which can include both actual and simulated conduct, sometimes even with clothed individuals.

What if I didn’t take the photos/videos but directed someone else to do so?

You can still be charged. The law applies to anyone who “promotes, employs, uses, persuades, induces, or coerces” a minor to engage in the prohibited conduct.

Can parents be charged under this statute?

Yes. The law specifically mentions parents or guardians who knowingly permit minors under their control to engage in the prohibited conduct.

Why You Need an Experienced Defense Attorney

Charges under PC § 311.4 demand specialized legal representation because:

1. Technical complexity: These cases involve digital evidence requiring specialized knowledge
2. Severe consequences: The penalties affect virtually every aspect of your life
3. Stigma management: The nature of the allegations creates immediate prejudice that must be carefully countered
4. Multifaceted defense needs: Effective representation often requires experts in digital forensics, psychology, and age verification

How David P. Shapiro Criminal Defense Attorneys Can Help

Our San Diego defense team brings specific advantages to your case:

• Experience with PC § 311.4 defenses and how to effectively challenge the prosecution’s evidence
• Technical knowledge of digital evidence and forensic analysis
• Strategic approach to case evaluation and defense planning
• Access to experts in relevant fields who can evaluate evidence and provide testimony
• Compassionate representation that understands the human impact of these charges

We begin by conducting a thorough evaluation of the evidence, identifying potential legal issues, and developing a defense strategy tailored to your specific situation.

Contact a San Diego Defense Attorney Today

If you’re facing charges under California Penal Code § 311.4, immediate legal representation is critical. The early stages of your case can significantly impact the outcome, from initial police interviews to pretrial motions.

If you or someone you love is facing criminal charges in California, swift action is imperative. The penalties can be life altering and long lasting. Give us a call today to set up a case evaluation with one of our attorneys and learn how to best protect your freedom and future.

Too often, we see clients who “wait and see,” unsure of the legal landscape ahead, only for charges to escalate. They then find themselves backpedaling into a bad defense and an even worse lawyer. Don’t let that happen to you. Protect your freedom. Protect your future. Know your rights.

The contents of this article and blog are meant for informational and marketing purposes only and do not constitute legal advice. Viewing and/or use of the blog does not form an attorney-client relationship. No statements in this post are a guarantee, warranty, or prediction of a particular result in your case.