Arrested or Charged with Advertising Child Pornography (Penal Code § 311.10) in California?

Advertising child pornography under California Penal Code § 311.10 carries serious consequences including prison time, substantial fines, and sex offender registration.

At David P. Shapiro Criminal Defense Attorneys, we provide experienced, strategic defense for clients facing these serious allegations in San Diego County. If you’re under investigation or have been charged, contact us immediately – the early steps in your case are critical to protecting your rights and future.

California’s Law on Advertising Child Pornography

Penal Code § 311.10 criminalizes the advertisement of obscene material depicting minors. Unlike other child pornography statutes that focus on possession or distribution, this law specifically targets the act of advertising or marketing such material for sale or distribution.

The statute states:

“Any person who advertises for sale or distribution any obscene matter knowing that it depicts a person under the age of 18 years personally engaging in or personally simulating sexual conduct, as defined in Section 311.4, is guilty of a felony.”

This targeted approach allows prosecutors to charge individuals who promote or attempt to sell such material, even if they aren’t directly engaged in its production.

What Prosecutors Must Prove

For a conviction under PC 311.10, the prosecution must establish three key elements beyond a reasonable doubt:

1. You advertised obscene material for sale or distribution
2. You knew the material depicted a minor engaging in or simulating sexual conduct
3. The person shown was actually under 18 years of age

The “knowledge” requirement is particularly important in these cases. Prosecutors must show you were aware of the nature of the material you were advertising.

What Constitutes “Advertising” Under the Law

Courts interpret “advertising” broadly under this statute. Actions that may qualify include:

• Posting listings on websites, forums, or social media
• Sending emails or text messages offering material for sale
• Creating or distributing flyers or other physical advertisements
• Making verbal offers to potential buyers
• Posting on file-sharing networks with descriptive file names
• Using messaging apps to promote material

The key factor is promoting the material with the intent to sell or distribute it to others.

Penalties for Violating PC 311.10

California imposes severe penalties for advertising child pornography:

Criminal Punishment

• Prison sentence for a felony conviction: 2, 3, or 4 years in state prison (alternatively, up to one year in county jail for a misdemeanor conviction)
• Fines: Up to $50,000
• Possibility of both imprisonment and fines

Additional Consequences

A conviction also brings life-altering secondary effects:

• Sex offender registration: Required registration under California’s tiered system, potentially for life
• Employment barriers: Difficulty finding or maintaining employment
• Housing restrictions: Many landlords refuse to rent to registered sex offenders
• Professional licensing issues: Loss of professional licenses and career opportunities
• Reputation damage: Long-term harm to personal and professional relationships
• Immigration consequences: Potential deportation for non-citizens

How PC 311.10 Differs From Other Child Pornography Laws

California has multiple 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 311.4: Criminalizes the use of minors in producing pornography
• PC 311.11: Targets simple possession

What makes PC 311.10 distinctive is its focus on the marketing aspect. This allows prosecutors to target those who promote such materials, even if they’re not directly engaged in production or distribution.

Legal Exemptions

The law provides a limited exemption for:

• Law enforcement and prosecution agencies engaged in the investigation and prosecution of criminal offenses

This exemption allows authorities to conduct undercover operations and investigations without violating the law themselves.

Effective Defenses Against PC 311.10 Charges

Several defenses may be available depending on the specific circumstances of your case:

Lack of Knowledge About Content

If you didn’t know the material contained depictions of minors engaged in sexual conduct, this may serve as a defense. For example, if you advertised sealed or encrypted content without knowing what it contained.

Constitutional Challenges

In some cases, search and seizure violations may provide grounds for excluding evidence. If investigators violated your Fourth Amendment rights when gathering evidence, your attorney may file a motion to suppress that evidence.

Mistaken Identity

Evidence may show someone else used your accounts, devices, or network to post the advertisements without your knowledge or consent.

Age of Participants

If you can prove all persons depicted were actually 18 or older at the time, this directly counters an essential element of the charge.

Entrapment

Though challenging to establish, if law enforcement induced you to commit a crime you otherwise wouldn’t have, this may constitute entrapment.

The Investigation Process

Understanding how these cases are typically investigated can help you understand what you’re facing:

Digital Forensics

Investigators use specialized tools to recover evidence from computers, phones, and other devices, including:

• Browsing history
• Email communications
• File metadata and timestamps
• User account information

Undercover Operations

Law enforcement often poses as potential buyers to identify those advertising illegal material and gather evidence against them.

Electronic Surveillance

With proper warrants, authorities may monitor internet activity, track IP addresses, and intercept communications related to advertising illegal content.

Search Warrants

Physical searches of homes and offices to seize devices and other evidence are common in these cases.

What Most People Don’t Know About These Charges

Several aspects of advertising child pornography charges often surprise defendants:

1. Federal involvement: These cases frequently involve federal authorities in addition to state prosecution
2. Evidence recovery: Deleted files and communications can often be recovered through forensic methods
3. Scope of “advertising”: The definition is broader than many realize and doesn’t require formal commercial advertising
4. Unintentional violations: In some cases, people may advertise content without fully understanding what it contains
5. Digital fingerprinting: Law enforcement uses sophisticated technology to track the origin and distribution of illegal content

Frequently Asked Questions

Can I be charged if I didn’t create or possess the material I advertised?

Yes. PC 311.10 specifically targets advertising, regardless of whether you created, possessed, or distributed the actual material.

Does this law apply to digitally created images with no real children?

This is a complex legal area. While PC 311.10 focuses on depictions of actual minors, other statutes may cover virtual or computer-generated images that appear to show minors.

What if I thought the people in the images were adults?

Believing the individuals were adults might be a defense, but you would need evidence supporting this belief. The prosecution doesn’t have to prove you knew the exact ages, only that the individuals were underage.

Can I face both state and federal charges?

Yes. Child pornography advertising violates both state and federal law, and you could potentially face prosecution in both systems.

Will my electronic devices be returned if charges are dropped?

Not necessarily. Even if charges are dismissed, devices containing contraband typically aren’t returned. Getting “clean” devices back often requires specific legal motions.

Why You Need an Experienced Defense Attorney

Advertising child pornography allegations demand specialized legal representation because:

1. Technical complexity: These cases involve sophisticated digital evidence and forensic analysis
2. Severe consequences: The penalties are among the harshest in California’s criminal code
3. Strategic approach: Early defense decisions can significantly impact the ultimate outcome
4. Multiple jurisdictions: These cases often involve both state and federal authorities
5. Stigma management: The sensitive nature of these charges requires careful attention to privacy concerns

How David P. Shapiro Criminal Defense Attorneys Can Help

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

• Technical knowledge: We understand digital evidence and how to challenge forensic findings
• Strategic defense planning: We develop comprehensive defense strategies tailored to your specific situation
• Prosecutor relationships: Our experience with local prosecutors helps in negotiating potential resolutions
• Privacy protection: We handle your case with discretion and sensitivity
• Comprehensive approach: We address both immediate legal defense and long-term consequences

Our approach begins with a thorough case evaluation, identifying weaknesses in the prosecution’s evidence and developing a strategic defense plan focused on your specific circumstances.

Contact a San Diego Defense Attorney Today

If you’re facing charges under California Penal Code § 311.10, don’t wait to get help. The early stages of your case are critical, and having experienced legal representation from the beginning can make a significant difference in the outcome.

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.