Insufficient evidence child pornography child’s face pasted over an adult’s body PC 311.11(a)

Joseph Gerber and his thirteen year old daughter were habitual drug users.  During their time together, Mr. Gerber told his daughter that she owed him some pictures for furnishing her drugs.  Mr. Gerber took non-nude pictures of his daughter in suggestive poses.  Mr. Gerber’s daughter told her mom what her dad was doing and police arrested Mr. Gerber.  During a search of Mr. Gerber’s home, police found two USB drives with pornographic pictures with his daughter’s head pasted on the pictures.  Mr. Gerber admitted to downloading pornographic pictures and altered the pictures by replacing the women’s heads with his daughter’s head.  Joseph Gerber was found guilty of violating Penal Code section 311.11(a), possession of child pornography.

Penal Code Section 311.11(a) states that it is unlawful for a person who knowingly possesses a computer generated image “knowing that the matter depicts a person under the age of eighteen years personally engaging in or simulating sexual conduct.”  The Court of Appeal held that a violation of Section 311.11(a) requires an image to actually depict a real child engaging in or simulating sexual conduct.  The Court reasoned that since the images were of adult women engaging in sexual conduct Mr. Gerber did not violate Section 311.11(a).  Although, Mr. Gerber’s daughter’s face was pasted over the adult models, the pictures did not depict herself, a minor, engaging in any sexual conduct; therefore, there is no violation of Section 311.11(a).

If you or a loved one is charged with possession of child pornography, it is important that you speak with an experienced child pornography attorney.  At Wallin & Klarich, our attorneys have over 40 years of experience in handling all types of child pornography cases.  We will aggressively fight to defend your rights and get you the best possible result in your case. Call us today at (888) 749-0034, we will be there when you call.