Child Pornography

New Bay Area scam targeting chat room users with threats of Criminal Prosecution for Child Pornography (CA Penal Code 311)

Since January 2017, Summit Defense Criminal Attorneys has received numerous calls from terrified individuals who describe essentially an identical fact pattern:

After a brief encounter with an another individual in a chat room and an unsolicited sexual photograph, they receive a call from an irate father who claims either an accident or medical treatment for their minor child.  The calls is accompanied with demand for funds and a threat to contact the authorities for sexual contact with a minor or possession of child pornography (CA Penal Code 311).

Naturally, this produces extreme anxiety and several callers have informed us that they have indeed made large payments, only to get additional calls and additional demands for compensation.  This scam relies on two things:

  1. Inability of victim to contact the police for fear of criminal prosecution.
  2. Anxiety produced as the victim is often unable to sort out actual criminal liability.

THIS IS A SCAM.  While the details of the scam may vary slightly, it essentially follows the fact pattern above.  If you find yourself in this situation, Summit Defense Criminal Attorneys can help you ascertain actual potential for criminal liability free of charge.  Under no circumstances, should you concede to demand for payment.

San Francisco Sheriff Denies Home Detention After Child Porn Conviction (CA Penal Code 311)

San Francisco Sheriff denies Home Detention After Child Porn Conviction

In a far too common turn, Enrique Pearce’s sentencing for possession of Child Pornography (CA Penal Code section 311) was delayed because the San Francisco Sheriff declined to accept Mr. Pearce into it’s home detention program. 

While the Sheriff may deny anyone from the home detention program, Bay Area Sheriff departments routinely will deny those convicted of offenses involving minors from home arrest.  To be clear, home arrest allows a defendant to work but demands HOME ARREST at all other times. 

Prosecutors, under pressure from public outcry, and now the Sheriff’s office have yet again turned a negotiated plea agreement into a public display of false disgust.  While Mr. Pearce was convicted of more that simple possession of child pornography (distribution under penal code section 311.2) , it is clear that the facts of his case do not lend themselves to harsh sentencing under the statute.  Given that this material is most often shared via file sharing software, any one who downloads and possesses, often unknowingly, also distributes. 

At some point the emotional reactions to these crimes become nothing more than fear mongering.  Much like the military industrial complex sows fear to accommodate the large budges it enjoys, this fear mongering is putting money in someone’s pocket and we just eat it up.

Palo Alto Judge Recuses Himself from Hearing Routine Child Porn Case (CA Penal Code 311)

We all know the background of Judge Persky and the absurd effort by Stanford law professor Michele Dauber to recall Persky.  It is, indeed, difficult to find anyone who doesn’t have very strong emotions about this matter.  But emotions aside, any legal professional (professors not included) would attest that the sentencing decision was appropriate and in line with other similarly situated defendants.

But now, Judge Persky has opted to recuse himself from the case of Robert Plummer, a child porn case (CA Penal Code 311) a case Judge Persky has overseen since its inception, despite the fact that there appears to be no conflict whatsoever.  That this is a routine request by a defendant under CA Penal Code 17, to reduce a wobbler offense to a misdemeanor makes matters even more confusing.

As a background, many California crimes are wobblers in that defendants can be charged with a misdemeanor or a felony.  Possession of child pornography (CA PC 311) is one of those wobbler offenses.  The law allows the prosecutor an initial discretion to decide whether a particular offense is a felony or  a misdemeanor, however, this discretion is subject to judicial review.  A judge could, after hearing the facts of the case and evaluating the conduct as well as the defendant’s background deem the matter a misdemeanor at any stage.  Many defendants who are convicted of a felony use the mechanism under CA Penal Code 1203.3 and 1203.4 for a reduction to a misdemeanor and expungement of their record.  This remedy is limited and DOES NOT remove the lifetime registration requirement under CA Penal Code 290.

That said, Judge Persky’s decision to recuse himself from a routine request for a remedy we would all enjoy reveals the political pressure that the Brock Turner sentence has caused.

Sacramento County Sheriff Deputy Academy Member Sentenced for Receiving Child Pornography (CA Penal Code 311.1, 311.2, and 311.11)

An Elk Grove man who had nearly completed his training as a sheriff’s deputy has now been sentenced for having received, and traded, child pornography over the Internet.  Although his supporters claim that he only downloaded the sexual images of children over a short period of time, a U.S. District Judge saw things differently.  He has been sentenced to the mandatory minimum of 5 years in state prison and will remain on probation for 10 years after his incarceration.  The man may also have to pay restitution to the victims involved in the case, which included one girl from the Netherlands who was rescued from her abuser and another girl for whom there is already a precedent for restitution as it is already an oft-shared image among those receiving child pornography.

CA Penal Code 311.1, 311.2, and 311.11 are the portions of the California Penal Code that address the possession, distribution, transportation, and control of sexual images of children.  As is clear, there are various different ways in which an individual could be accused of, and then convicted of, a violation of the law as it pertains to child pornography.  Specifically, this crime is a ‘wobbler’ in California, meaning that prosecutors determine, depending on the specific facts of the case at hand, whether to treat the offense as a misdemeanor or as a felony.  If an individual is convicted of a misdemeanor child pornography offense, they are likely to be subject to a $2,500 fine and may spend up to 1 year in county jail.  However, a felony child pornography conviction could lead to a hefty prison sentence, anywhere from 16 months to 8 years in state prison.

Saratoga Camp Employee Arrested for Possession of Child Pornography (CA Penal Code 311)

An employee and resident of the Walden West Outdoor Science School in Saratoga has recently been arrested on charges of possession of child pornography, and also for creating child pornography and participated in child molestation.  The man, known to campers, affectionately, as “Papa Bear” denies all charges, claiming that the pornographic images found on his home computer were the result of accidental spamming.  Additionally, a frequent camper at the school (10) may have been the victim of child molestation, though this is not clear and law enforcement officials have yet to fully investigate.

Unfortunately, there are persons who purposefully download child pornography.  However, there are many cases in which an innocent person has been accused of such heinous crimes.  For example, “Papa Bear’s” claim that he accidentally downloaded spam associated with a movie called “Little Boy” may very well be true.  The simple fact is that there is no way to prove that a specific person downloaded the images on his home and camp computer.  This could show what is called, legally speaking, a ‘lack of intent.’

In other words, though penalties for the possession of child pornography are harsh (CA Penal Code 311), including up to 3 years in state prison and a $10,000 fine, prosecutors must be able to prove that you purposefully and willingly downloaded or otherwise received inappropriate images of children.  Otherwise, if intent cannot be proved, prosecutors will have a difficult time getting a conviction.

Chairman of Concord Chamber of Commerce Arrested on Child Porn Charges (CA Penal Code 311)

The 52-year-old former chairman of the Greater Concord Chamber of Commerce, a prominent member of his community, has recently been arrested on charges of illegally downloading pornographic images involving children and possession of child pornography.  His arrest was the result of a search warrant that was carried out at his home.  Law enforcement officials discovered digitally recorded videos that included images of children in sexual situations.

California law concerning the possession of child pornography is quite strict.  CA Penal Code 311 addresses a wide variety of crimes associated with the possession, distribution, sale, and duplication of images containing children engaging in sexual acts.  If it can be proved that you willingly, purposefully, and knowingly possess child pornography and prosecutors can show that the images in question involve persons under the age of 18, you face possible punishment under the law.

Depending upon what charges you are brought up against, you will likely be looking at felony charges.  For example, simply possessing child pornography is a felony under California law.  It carries with it the penalty of 1 year in county jail and a possible $2,500 fine.  If, however, this is the second time that you have been convicted of possession of child pornography, the consequences become harsher.  In fact, you could end up spending up to 6 years in state prison.  In either case, any child pornography charge carries with it the burden of registering as a sex offender for life.

Man’s Failure to Register as Sex Offender Leads to Additional Jail Sentence (CA Penal Code 311)

In California, sex offender registration is taken quite seriously.  Any person who has been convicted of any one of a litany of sex crimes (including indecent exposure) could be forced to register as a sex offender, oftentimes, for life.  While there is debate among members of the public and political pundits concerning the wisdom of the sex offender registration system as it stands, with its burdensome and onerous litany of requirements, the fact remains that an individual who does not comply with the obligations of their registration could end up facing harsh penalties.

Recently, a 26-year-old man from Winters was sentenced to over 13 years in state prison for having violated the terms of his status as a sex offender registrant.  In sum, he failed to update registry officials when he changed addresses, which he was required by law to do annually on or within 5 business days of his birthday.  The man was already on probation for having failed to register in the first place.  Once law enforcement officials associated both with the FBI and the Sacramento Sexual Assault Felony Enforcement Task Force (funded by the California Office of Emergency Services) were alerted to the man’s whereabouts, they searched the home, where he was living illegally with a child, and found 6 different videos containing exploitative images of children in sexual situations.

This was on the basis of being convicted of child pornography (CA Penal Code 311).  Situations like these stress both the importance of keeping up with one’s sex offender registration requirements and the unusual nature of the strict requirements themselves.

Former Mendocino Prison Guard Convicted of Peeping and Possession of Child Pornography (CA Penal Code 647(i), 647(j) and 311)

Clandestine photographs of a 15-year-old female relative of a Sonoma County man (44) were the reason for his arrest and recent sentencing.  The man, who once worked as a prison guard in Mendocino County, was caught with a flash drive containing photographs of the teenage relative he lived with.  Her mother evidently found the flash drive when she washed his uniform and immediately alerted law enforcement agents to its contents.  As it turns out, the drive contained sexually explicit images of the girl, which had been taken without her knowledge as she went about her daily routine in the bathroom and her bedroom of their shared home.  He has been sentenced to 1 year in jail for peeping and possession of child pornography (CA Penal Code 311).

Many Bay area residents may already be familiar with the consequences of possessing child pornography.  However, they may not be aware of just how serious ‘Peeping Tom’ charges can be in the state of California.   In reality, there are 2 California laws that, when taken together, make up a set of ‘peeping’ violations.  Whereas CA Penal Code 647(I) deals directly with ‘Peeping Tom’ behavior, CA Penal Code 647(j) (Invasion of Privacy) may also be applied.

Normally, CA PC 647(i) covers situations in which an individual is trespassing on private property in order to peek through a window or door of a residence.  Thus, this violation is technically considered ‘peeking while loitering.’  However CA PC 647(j) is a bit more intricate.  In the main, anything from watching someone through binoculars or a telescope in order to invade their privacy to taking photographs or video recordings of persons in a private setting (like their bedroom) in order to see them nude (or in their underwear).  Violating either of these sections of the law could end in up to $1,000 in fines and 6 months in county jail.

Galt Resident Convicted of Felony Charges of Child Pornography (CA PC 311.1-311.11)

U.S. District Judge Garland E. Burrell Jr.  recently sentenced a 32-year-old Galt man to 17 ½ years in prison by for his role in the production of pornographic images involving children.  In addition to his prison sentence, the man will be forced to live under lifetime supervised release after he serves his term.  Investigators included the Sacramento Internet Crimes Against Children Task Force, which is funded both by the state and federal government.  Task forces such as these often work with local and federal law enforcement officials to track down anyone who produces, distributes, or possesses child pornography, especially online.

There are many different crimes associated with sexually explicit images of children.  According to California Penal Code 311, it is a crime to possess, distribute, duplicate, transport, or produce child pornography, and task forces such as the one listed above are vicious in their attempts to catch anyone breaking the law.  Depending on which section of the law an individual has been charged with, the penalties vary.  This means, in effect, that most violations of  CA PC 311 are ‘wobblers,’ meaning that it is at the discretion of prosecutors whether they will treat it as a misdemeanor or as a felony.

If an individual has been convicted of a misdemeanor child pornography charge, they can expect to spend up to $2,000 in fines and spend up to 1 year in county jail.  However, if a person is convicted of a felony charge of child pornography, then they may face up to 8 years in state prison and hefty fines that reach up to $100,000.  In the above case, it seems that the Galt man was given a sentence very close to the maximum felony penalty.  This is likely because he admitted to court officers that he had not only taken sexually explicit pictures of at least 2 minor children, but also that a search of his home yielded over 20,000 videos and images related to child pornography.  Additionally, task force members were able to receive at least 60 similar files from him during their investigation.  All of these factors would have been taken into account during his trial and sentencing.


Federal Employee Charged with Possession of Child Pornography (CA Penal Code 311.1-311.11)

In a strange local case, a man from Rancho Cordova (56) who works in the U.S. Department of Transportation currently stands accused of having taken nude films of the young foster children he was charged with the care of.  He self-identified himself to local law enforcement officials as a ‘pedophile,’ but insists that, though he used the videos and other pornographic images of children in order to sexually gratify himself, that he “would not harm my kids.”  He faces charges of possession of child pornography and the attempted sexual exploitation of children.

California law is strict when it comes to the exploitation of children for sexual purposes (CA Penal Code 311.1-311.11).  In the case above, CA PC 311.11 (the possession of pornographic images that were produced using a child under the age of 18) applies, as does CA Penal Code 311.3 (the sexual exploitation of a child).  Possession of child pornography charges were easily identified, a search of the man’s home and office yielded, not only a hidden camera in the bathroom, but a flash drive that contained approximately 552 sexual images of children.  More images were found on his laptop.

It is usual for many child pornography cases in California to be considered ‘wobblers,’ meaning that they may be prosecuted as either misdemeanors or felonies, depending on the decision of prosecutors.  However, felony charges could also apply.  If convicted on felony child pornography charges, this man could face up to 8 years in county jail and a possible whopping $100,000 in fines.  More than this, for the exploitation charges (which can always be levied at the federal level), mean that he could be subject to a mandatory minimum sentence of 15-30 years in federal prison.