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Child Pornography Defense — CA Penal Code 311 PC

Available Defenses to a Penal Code 311 PC Child Pornography Charge

There are many different factual scenarios that can lead to you being prosecuted for a violation of child pornography laws in California. (CPC 311.1). However, because of the difficulty in successfully proving the crime, there are also many defenses available that your defense attorney can argue on your behalf. If you are facing charges, or are under investigation for a child pornography offense, then you need to contact a pornography defense attorney. Below are some of the most common defenses that may be available to you.

Knowledge of Age

To successfully convict you under California Penal Code 311, the prosecution must prove that individuals who are shown in the pornographic material are under 18 years of age and that you knew they were under the age of 18. If you were not aware that the individuals in the materials were under 18, then you may have a strong defense for your child pornography defense attorney to build on.

Knowledge of Obscene Matter

Similar to the knowledge of age requirement, under California law, you must also be aware that the material you were viewing was in fact pornographic material. Your attorney can use this defense to help establish that the prosecutor cannot meet his or her burden to prove that you knew the content was pornographic in nature.


Although this child pornography defense is much more difficult to assert than others, if you were coerced by an undercover agent into possessing, distributing, or downloading child pornography, then you may be able to establish an entrapment defense and win your case. Entrapment generally means that the government induced, or pressured you to commit the crime and that you would not have committed the crime without the government pressure. Because of the difficulty in asserting this defense, you will need expert guidance from a child pornography defense attorney to successfully raise this defense.


A valid child pornography defense is no legal "possession" of child porn.
A possible child pornography defense is that you did not have legal possession of the illicit material on your computer.

The prosecution must prove beyond a reasonable doubt that you actually possessed child pornography materials in order to successfully convict you under California Penal Code 311. If your defense attorney can establish you did not have legal “possession” of the child pornography then this can be a valid defense to the child pornography charges. Two ways in which to show that you lacked legal possession are:

(1) Any possible illegal images were deleted from your computer’s web browser, history, and/or cookies, which shows that you only viewed the images online and did not download those images; AND

(2) Any possible illegal images were deleted from your web browser, history, and/or cookies, and you lacked specific knowledge as to how to locate the images on your computer.

This is the most common defense used in child pornography cases because without possession, the prosecution has no case. However, if you downloaded child pornography into your computer hard drive then you cannot successfully raise this defense.

Illegal Search and Seizure

In some child pornography defense cases, you may raise the defense that the police conducted an illegal search and seizure for child pornography. This defense may be raised if there was an illegal search and/or seizure conducted, or if the search and/or seizure went beyond the scope of what was described in the warrant.

In order to bring to the courts attention the illegality of the police conduct your criminal defense attorney will bring a motion to suppress evidence. (CPC 1538.5). If the motion is granted the court will rule that the evidence unlawfully seized cannot be used against you in court. This often leads to dismissal of all charges in child pornography cases.

Legitimate Purpose

If you were using the child pornographic material to engage in activities related to a scientific or educational purpose, then you may have a legitimate defense to your child pornography offense charges.

Call Wallin & Klarich Today

Wallin & Klarich child pornography attorneys
Our child pornography defense attorneys are ready to protect you. Call today.

Child pornography charges are very serious matters which can permanently affect your life. You need a defense attorney that will aggressively fight for your rights to help you win your case. At Wallin & Klarich, we have over 30 years of experience fighting for the rights of clients just like you in child pornography cases. We know that right now you probably feel like the world is against you because of the gravity of your situation. However, you are not alone and we are here to help.

With offices in Orange County, Los Angeles, San Bernardino, Riverside, Ventura, Victorville, West Covina, San Diego, Torrance and Sherman Oaks., there is an experienced Wallin & Klarich criminal defense available near you no matter where you work or live.

To schedule a phone consultation with one of our child pornography defense attorneys call us at (877) 4-NO-JAIL (877-466-5245) today.

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