Sexting and California Child Pornography Laws – PC 311

Let’s face it. Teenagers don’t always use the best judgment. More and more frequently, Orange County teenagers are using their smartphones and computers to send, receive and distribute naked, sexually provocative or sexually explicit pictures and videos of themselves and/or an underage girlfriend or boyfriend to each other and his or her peers via text or email. This is known as “sexting” and it is important for all teens to understand the link between sexting and California child pornography laws.

Law enforcement considers sexting child pornography, which is illegal under California Penal Code section 311. Law enforcement has become increasingly aggressive in arresting youths and prosecuting them for sexting charges. If you or your child is being charged with crime stemming from sexting, it is important to contact an experienced criminal defense attorney who can help you with your case.

Facts about Teen Sexting

The National Campaign to Prevent Teen Pregnancy has compiled statistics of teens who use cellphones to send or post nude or semi-nude photos and videos of themselves. The percentage of teens who are sexting are as follows:

• 20% of teens overall;
• 22% of teen girls
• 18% of teen boys
• 11% of young teen girls ages 13-16

The FBI reports that nearly one in six teens between the ages of 12 and 17 who own cell phones have received naked or nearly nude pictures via text message from someone they know.

What Should I do if my Teenager has been Accused of Sexting?

If your child has been arrested and/or charged with sexting, you need to know that the District Attorney in Orange County considers this to be a child pornography crime and will attempt to prosecute your son or daughter. This crime can be prosecuted as a felony or a misdemeanor. Your child could face fines and/or probation or counseling. Depending on the circumstances, your child may also be facing a felony child pornography possession charge (Penal Code section 311.11(a)) that can include detention in county juvenile hall, transfer to an Orange County jail facility upon reaching the age of 18, and mandatory lifetime sex offender registration upon release from custody if your child is tried and convicted as an adult.

If you are a parent in this situation, you need to seek representation from a skilled juvenile sex crimes defense attorney in order to protect your child’s rights. For over 40 years, Wallin & Klarich has successfully defended clients accused of violating child pornography laws. We can help you and your child overcome this challenge.

If your child is arrested for sexting, these are the steps you should take:

1. Contact an experienced criminal defense attorney to represent your teenager immediately.

If your child is facing sexting charges, you need to retain an experienced juvenile crimes attorney at Wallin & Klarich. If you allow your child to be represented by the public defender, you may find that he/she does not have the time or resources to provide an adequate defense. In addition, you must keep in mind that the county will charge you a fee for your child to use the public defender. Also, you do not get to choose the public defender, so you may be assigned a public defender that you do not want and you will still have to pay for his/her legal services.

When you hire Wallin & Klarich, you will be able to meet with your child’s lawyer in our law office and go over in detail how the case will progress. We will get to know your child and be able to aggressively defend him/her to obtain the best possible result in his/her case.

2. Do not allow the police to enter or search your home or property without a warrant.

You and your child have constitutional rights as long as no one in the home is on probation or parole. The 4th Amendment to the United States constitution prohibits unreasonable searches and seizures. This applies to any property under your or your child’s control, including the home, a smartphone or computer, or a place of business. If the police want to confiscate your child’s smartphone or computer upon probable cause that either contain child pornography, they must obtain a search warrant from a judge in advance, describing “with particularity” the thing(s) to be searched. The police may not simply ransack your home looking everywhere for anything.

If the police do conduct an illegal search and/or seizure, the attorney’s at Wallin & Klarich may be able to file what is known as a Motion to Suppress Evidence under California Penal Code section 1538.5. If the motion is granted by the judge, any illegally obtained evidence must be ruled inadmissible, which usually leads the Orange County DA’s office to drop all of the charges.

3. When the police come to investigate your child, do not offer any information to them.

Neither you nor your child are under any obligation to volunteer information to law enforcement. Do not answer any questions other than to identify yourself. Clearly state to the police that you and your child are invoking your 5th Amendment right to remain silent. Clearly indicate to the detective in charge that you want a lawyer present before you or your child will answer any questions. Be polite, but firm.

4. If your child is arrested for sexting, be sure to request of the law enforcement agency making the arrest to release your son or daughter into your custody.

Following the arrest of a juvenile offender, a law enforcement officer has the discretion to release the juvenile to his or her parents, or take the offender to juvenile hall. The county probation department, the agency responsible for the juvenile hall, has the discretion to accept and book the offender or not, in which case, the disposition of the juvenile is left to the police.

5. If your child is charged with a child pornography crime, tell your attorney you want your son or daughter’s case heard in juvenile court.

Juvenile delinquency court is a court dedicated to adjudicating felony and misdemeanor crimes allegedly committed by minors. Technically, juvenile court is not part of the California criminal law system. It is part of the civil law system where cases are “adjudicated.” An adjudication is not a conviction. Juvenile delinquency proceedings are sometimes referred to as “Section 602 proceedings” after the applicable section of California law that governs delinquency proceedings. Judges hear cases in juvenile court. There are prosecutors and defense attorneys, but no juries. Juvenile court proceedings are generally confidential. Most importantly, the role of the juvenile court is to attempt to rehabilitate your child and not to punish him or her. The role of the adult criminal court is to punish an adult, who is found guilty of a criminal offense.

6. If your child is adjudicated for being in violation of a child pornography crime, it is not the end of the world.

Your Orange County juvenile defense lawyer will argue for a sentence that consists of informal probation and counseling. Provided that your son or daughter successfully completes his or her sentence, your child can go back to court and request that the charges against him or her be dismissed. Your attorney can help your child avoid any additional consequences as well, such as mandatory lifetime registration as a sex offender.

7. Talk with your child about the dangers of using a smartphone, computer, or social media to engage in unlawful behavior.

Parents must take a proactive role in protecting their children from engaging in unlawful conduct such as sexting. While it may seem harmless, sexting is illegal in most cases and can result in serious consequences for your child if he or she is found to be in violation of child pornography laws.

8. Monitor your child’s smartphone use and posts on social media websites.

The best defense to protecting your son or daughter from unlawful (sexual) behavior using a smartphone and the internet is prevention. The most telling statistic is that 75 percent of all teens say sexting can have serious negative consequences. Educate yourself and your family on the rising trend of minors engaging in sexting. Know your rights. Protect your family by asserting your parental control.

Contact Wallin & Klarich

If your child has been accused of sexting, the attorneys at Wallin & Klarich can help your son or daughter avoid the more serious consequences of a sex crime.

If your child has been accused of an unlawful sexual offense such as sexting, you need to contact an experienced criminal defense attorney today. We have over 40 years of experience successfully representing our juvenile clients charged with a sex crime. The knowledgeable criminal defense attorneys at Wallin & Klarich will be able to examine all of the evidence against your child to determine if all of the elements of a sexting crime are present. Our attorney’s may be able to challenge all the evidence against your child with a Motion to Suppress Evidence under Penal Code section 1538.5, or we may be able to negotiate for probation and/or counseling in juvenile court, allowing your child the opportunity to have his or her case dismissed upon successful completion of his or her sentence.

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