California Penal Code Section 311 prohibits possession and distribution of child pornography and also sexual exploitation of children. Convictions for these offenses can “wobble” down to misdemeanors or result in up to six years in state prison even for first time offenders. Even misdemeanor convictions can result in mandatory sex offender registration.

Federal prosecutions for child pornography tend to bring even harsher sentences. Simple possession can result in up to ten years in federal prison for a first offense or up to twenty years with a prior conviction for a wide range of crimes. That’s just for possessing an image of a person under age 18 found to be pornographic, a simple photograph for example.

Most cases involve computers, and most images were downloaded from the Internet. In federal court, downloading an image is called “receipt” and is punished just like “distribution” under 18 U.S.C. § 2252A(a)(2) or 18 U.S.C. § 2252(a)(2). Even first time federal offenders are subject to a five-year mandatory minimum sentences in federal prison for just downloading or distributing child pornography. With a prior, downloading “receipt” or distribution of child pornography carries a fifteen year mandatory minimum federal prison sentence up to forty years. Simple “sexting” can result in convictions for these offenses.

Once charged in federal court, detention is presumed, and if you are released pretrial, you must submit to electronic monitoring. 18 U.S.C. § 3142(c)(1)(B).

In either state or federal court your attorney should get disclosure of results and reports of computer forensic testing including reports of software program used by law enforcement. Your attorney should also learn about any surveillance of your computer over the internet. Every image has a hash mark, and law enforcement uses programs that grab known images out of cyberspace and trace them back to sending and receiving computers. After that, law enforcement is watching what you are watching in real time, sometimes.

Even sentencing law software developers, like this blog’s author, hire computer experts to forensically examine hard drives looking for defenses regarding:

Adult pornography

File sharing

Viruses, trojans and malware

Downloader identity

File storage location: accessible or unallocated

Timing of access, transmittal and import

Storage

A little mischief can result in a lot of trouble when it comes to pornography. Make sure you get an attorney who zealously defends you and your liberty.

There are approximately 170 offenses requiring registration in California.  To see the complete list of these offenses, visit the Megan’s Law website.

Offenses Not Requiring Posting

Not all of these 170 offenses require that information about the offender be posted on the public Megan’s Law website.  People convicted of the following Penal Code sections may apply to be excluded from the Internet site:

• Felony 243.4(a) – Sexual Battery
• Misdemeanor 647.6 – Annoying or molesting a child age 16 or over
• Any offense which did not involve penetration or oral copulation, the victim of which was a child, stepchild, grandchild, or sibling of the offender, and for which the offender successfully completed or is completing probation. 

To be excluded from the posting requirements, the person must file an application with the California Department of Justice.  

Offenses Not Requiring Registration

Not all sex offenses are restigerable either.  For instance, the following Penal Code offenses do not require mandatory registration:

• 647(a) – lewd conduct (flashing, groping, having sex in public)
• 261.5 – unlawful sexual intercourse with a minor over 16 years old;
• 266h and 266i – pimping and pandering

However, it’s important to note that a court during sentencing may order lifetime registration for these offenses as well.  (See Penal Code § 290.006)  That is why it is imperative that you have a skilled attorney representing you regardless of the particular charges you face.

Avoiding Sex Registration

Additionally, you may initially be charged with a registerable offense that – due to lack of evidence or for some other reason – cannot be proven beyond a reasonable doubt in court.  Or you may be able to convince the prosecutor to accept a plea to an offense that does not require registration.  An experienced attorney is needed to help you navigate through these processes.

I have had over 20 years experience defending people in California. If you need help, contact me.

~ Dan Koukol, Criminal Defense Attorney

This blog series will help you understand the registration requirements in California and educate you on how to protect yourself from the pitfalls that may arise regarding those requirements.  It will also discuss the ramifications of a recent California Supreme Court case regarding 290 registration in California.

Section 290 Overview

Section 290 of the Penal Code requires persons convicted in California of specific sex offenses to register their personal information with the local law enforcement agency for life.  It also requires people who were convicted of a sex offense in another state to register in California if they work or live here and the offenses they were convicted of in another state would have been a registerable offense if originally committed in California.

If you have been convicted of such an offense, the law requires you to provide your name, date of birth, a photograph, criminal history and in some cases your address of residence.  The agency then provides this information to the California Department of Justice (DOJ) who in turn posts some or all of it on their Megan’s Law website.  Information not published by DOJ is still accessible by the public upon their request.

Megan’s Law Website

The California DOJ maintains the Megan’s Law website.  This is a publicly accessible database of sex offenders in California.  A person can view information about a sex offender by searching by name or by typing in their address and viewing a map pinpointing the residences of offenders living in their area.  You can access this web site at www.meganslaw.ca.gov. 

The Megan’s Law website is designed to provide information to the public about sex offenders in their community.  The law does not allow the information to be used by insurance, credit, loan, housing or education institutions to evaluate the person’s worthiness to do business with them.  (See Penal Code § 290.46(d)).  Some employers may consider prior sex offense convictions as a basis of employment but they must have specific legal authority to do so. 

If you know or suspect such companies discriminating against you on this basis of your status as a 290 registrant, I suggest you contact an attorney.

As a defense attorney in the Sacramento, California metropolitan area, I have extensive experience with these matters. Contact me, I can help.

~ Dan Koukol, Criminal Defense Attorney