September 4, 2017

PhotoIf you are charged with a child pornography crime, you face severe consequences that could impact you for the rest of your life. A conviction of possession of child pornography carries a sentence of up to 364 days in prison, fines of up to $2,500 and lifetime registration as a sex offender.

California Penal Code Section 311.11(a) prohibits the knowing distribution, possession, production, publication, duplication, sale or printing of child pornography in any form. To be convicted under PC 311.11(a), the prosecution must prove:

  • You knowingly committed the act; AND
  • When the act was committed, you knew the content showed a person under 18 years of age who was participating in or simulating sexual conduct

When it comes to child pornography, one of the biggest questions is “what constitutes child pornography?” For example, what if the images don’t really depict a minor but were altered to appear that way?

To understand the answer to this question, let’s dive into a recent California criminal case.

Can You Be Convicted of Child Pornography if the Images were Altered?

Joseph Gerber provided drugs to his 13-year-old daughter. As a form of payment for the drugs, Gerber took non-nude photos of his daughter. He would then use computer software to superimpose his daughter’s face onto sexual, explicit photos of adult women.

After a visit with Gerber, his daughter informed his mother of the drug use and photos that he would take of her. He was arrested by police and confessed to digitally putting his daughter’s face on explicit photos of women. Gerber was convicted of child pornography possession under PC 311.11(a) and sentenced to 13-and-a-half years in prison.

But do these images constitute child pornography? Gerber appealed his case, citing a 2002 Supreme Court case that struck down a federal law prohibiting completely computer-generated child pornographic images, or “virtual child pornography.”

Gerber’s appellate attorneys argued that to convict Gerber of child pornography possession under PC 311.11(a), the prosecution needed to prove that he possessed an image of a person under the age of 18 participating in or simulating sexual conduct.

However, the images in question did not constitute child pornography because the women in sexual poses in the image were adults. No minor is actually participating in or simulating sexual conduct in the images.

The Court of Appeals agreed, and Gerber’s conviction was overturned.

What Did This Ruling Mean?

The reversal of Gerber’s conviction along with the 2002 Supreme Court decision is a clear message that virtually created images of child pornography do not violate California law as it is currently written.

If you are accused of possessing child pornography but the images in question were virtually created or altered, your child pornography attorney may have a valid legal defense to the charges against you.

Contact the Child Pornography Attorneys at Wallin & Klarich Today

If you or a loved one has been charged with a child pornography crime, you should contact an experienced criminal defense attorney immediately. At Wallin & Klarich, our skilled and knowledgeable attorneys have over 35 years of experience successfully defending our clients facing child pornography charges. We understand the laws regarding child pornography and may be able to help you obtain a favorable outcome in your case.

With offices in Orange County, Riverside, San Bernardino, Victorville, West Covina, Torrance, Los Angeles and San Diego, you can find an experienced Wallin & Klarich child pornography attorney available near you no matter where you work or live.

Call us now at (877) 4-NO-JAIL or (877) 466-5245 for a free phone consultation. We will get through this together.


Author: Paul Wallin

Paul Wallin is one of the most highly respected attorneys in Southern California. His vast experience, zealous advocacy for his clients and extensive knowledge of many areas of the law make Mr. Wallin a premiere Southern California attorney. Mr. Wallin founded Wallin & Klarich in 1981. As the senior partner of Wallin & Klarich, Mr. Wallin has been successfully representing clients for more than 30 years. Clients come to him for help in matters involving assault and battery, drug crimes, juvenile crimes, theft, manslaughter, sex offenses, murder, violent crimes, misdemeanors and felonies. Mr. Wallin also helps clients with family law matters such as divorce and child custody.

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