Bill Text: CA AB1831 | 2023-2024 | Regular Session | Amended

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Crimes: child pornography.

Spectrum: Slight Partisan Bill (Democrat 21-9)

Status: (Passed) 2024-09-29 - Chaptered by Secretary of State - Chapter 926, Statutes of 2024. [AB1831 Detail]

Download: California-2023-AB1831-Amended.html

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Amended  IN  Assembly  March 21, 2024

CALIFORNIA LEGISLATURE— 2023–2024 REGULAR SESSION

Assembly Bill

No. 1831

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Introduced by Assembly Member Berman
(Coauthors: Assembly Members Alanis, Calderon, Chen, Dixon, Flora, Grayson, Lackey, Low, Stephanie Nguyen, Joe Patterson, Pellerin, Petrie-Norris, Schiavo, Ta, Weber, Wilson, and Wood)
(Coauthors: Senators Allen, Archuleta, Becker, Ochoa Bogh, Portantino, and Rubio)

January 12, 2024

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An act to amend Sections 311, 311.1, 311.2, 311.5, 311.3, 311.4, 311.11, 311.12, 312, and 312.3 of the Penal Code, relating to crimes.

LEGISLATIVE COUNSEL'S DIGEST

AB 1831, as amended, Berman. Crimes: child pornography.

Existing law makes it a crime to, among other things, possess any matter, representation of information, data, or image, including, but not limited to, any film, filmstrip, photograph, negative, slide, photocopy, videotape, video laser disc, computer hardware, computer software, computer floppy disc, data storage media, CD-ROM, or computer-generated equipment or any other computer-generated image that contains or incorporates in any manner, any film or filmstrip, the production of which involves the use of a person under 18 years of age, knowing that the matter depicts a person under 18 years of age personally engaging in or simulating sexual conduct. Existing law defines person for these purposes as any individual, partnership, firm, association, corporation, limited liability company, or other legal entity. Existing law defines obscene matter as matter taken as a whole, that to the average person, applying contemporary statewide standards, appeals to the prurient interest, that, taken as a whole, depicts or describes sexual conduct in a patently offensive way, and that, taken as a whole, lacks serious literary, artistic, political, or scientific value.

This bill would, as it pertains to obscene matter, define “depicts a person under 18 years of age personally engaging in or simulating sexual conduct” as including a representation of a real or fictitious person through use of artificially intelligent software or computer-generated means, who is, or who a reasonable person would regard as being, a real person under 18 years of age, engaging in or simulating sexual conduct. The bill would make other conforming changes. By expanding the scope of a crime, this bill would impose a state-mandated local program.

Existing law makes it a crime to knowingly send or cause to be sent, or bring or cause to be brought, into this state for sale or distribution, or in this state possess, prepare, publish, produce, develop, duplicate, or print any representation of information, data, or image, including, but not limited to, any film, filmstrip, photograph, negative, slide, photocopy, videotape, video laser disc, computer hardware, computer software, computer floppy disc, data storage media, CD-ROM, or computer-generated equipment or any other computer-generated image that contains or incorporates in any manner, any film or filmstrip, with intent to distribute or exhibit to, or to exchange with, a person under 18 years of age, knowing that the matter depicts a person under 18 years of age personally engaging in or personally simulating sexual conduct.

This bill would expand that crime to include when the representation of information, data, or an image is a representation of a real or fictitious person created through use of artificially intelligent software or computer-generated means, who is, or who a real person would regard as being, a real person under 18 years of age, engaging in or simulating, sexual conduct. By expanding the scope of a crime, this bill would impose a state-mandated local program.

Existing law prohibits the production, development, duplication, distribution, or possession, as specified, of matter, in specified formats, that depicts a person under 18 years of age engaging in or simulating sexual conduct, as defined. Existing law separately prohibits this conduct where it is done for consideration or where such matter is shared with a minor.

Existing law also prohibits the employment or use of a minor, or the permitting by a parent guardian of the employment or use of a minor for the production of such matter.

Existing law provides an enhanced punishment when these offenses are committed using government property.

Existing law authorizes the forfeiture and destruction of such matter regardless of whether a conviction is sought or obtained.

This bill would expand the scope of these provisions to include matter that is generated by the use of artificial intelligence, as such matter is defined.

By expanding the scope of an existing crime, this bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Digest Key

Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: YES  

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Bill Text

The people of the State of California do enact as follows:

SECTION 1.Section 311 of the Penal Code is amended to read:

311.

As used in this chapter, the following definitions apply:

(a)“Obscene matter” means matter, including representations of real or fictitious persons generated through use of artificially intelligent software or computer-generated means, who are, or who a reasonable person would regard as being, real persons under 18 years of age, engaging in or simulating sexual conduct as defined in paragraph (1) of subdivision (d) of Section 311.4, that, taken as a whole, to the average person, applying contemporary statewide standards, appeals to the prurient interest, that, taken as a whole, depicts or describes sexual conduct in a patently offensive way, and that, taken as a whole, lacks serious literary, artistic, political, or scientific value.

(1)If it appears from the nature of the matter or the circumstances of its dissemination, distribution, or exhibition that it is designed for clearly defined deviant sexual groups, the appeal of the matter shall be judged with reference to its intended recipient group.

(2)In prosecutions under this chapter, if circumstances of production, presentation, sale, dissemination, distribution, or publicity indicate that matter is being commercially exploited by the defendant for the sake of its prurient appeal, this evidence is probative with respect to the nature of the matter and may justify the conclusion that the matter lacks serious literary, artistic, political, or scientific value.

(3)In determining whether the matter taken as a whole lacks serious literary, artistic, political, or scientific value in description or representation of those matters, the fact that the defendant knew that the matter depicts persons under the age of 16 years engaged in sexual conduct, as defined in subdivision (c) of Section 311.4, is a factor that may be considered in making that determination.

(b)“Matter” means any book, magazine, newspaper, or other printed or written material, or any picture, drawing, photograph, motion picture, or other pictorial representation, or any statue or other figure, or any recording, transcription, or mechanical, chemical, or electrical reproduction, or any other article, equipment, machine, or material. “Matter” also means live or recorded telephone messages if transmitted, disseminated, or distributed as part of a commercial transaction.

(c)“Person” means any individual, partnership, firm, association, corporation, limited liability company, or other legal entity.

(d)“Distribute” means transfer possession of, whether with or without consideration.

(e)“Knowingly” means being aware of the character of the matter or live conduct.

(f)“Exhibit” means show.

(g)“Obscene live conduct” means any physical human body activity, whether performed or engaged in alone or with other persons, including but not limited to singing, speaking, dancing, acting, simulating, or pantomiming, taken as a whole, that to the average person, applying contemporary statewide standards, appeals to the prurient interest and is conduct that, taken as a whole, depicts or describes sexual conduct in a patently offensive way and that, taken as a whole, lacks serious literary, artistic, political, or scientific value.

(1)If it appears from the nature of the conduct or the circumstances of its production, presentation, or exhibition that it is designed for clearly defined deviant sexual groups, the appeal of the conduct shall be judged with reference to its intended recipient group.

(2)In prosecutions under this chapter, if circumstances of production, presentation, advertising, or exhibition indicate that live conduct is being commercially exploited by the defendant for the sake of its prurient appeal, that evidence is probative with respect to the nature of the conduct and may justify the conclusion that the conduct lacks serious literary, artistic, political, or scientific value.

(3)In determining whether the live conduct taken as a whole lacks serious literary, artistic, political, or scientific value in description or representation of those matters, the fact that the defendant knew that the live conduct depicts persons under the age of 16 years engaged in sexual conduct, as defined in subdivision (c) of Section 311.4, is a factor that may be considered in making that determination.

(h)The Legislature expresses its approval of the holding of People v. Cantrell, 7 Cal. App. 4th 523, that, for the purposes of this chapter, matter that “depicts a person under the age of 18 years personally engaging in or personally simulating sexual conduct” is limited to visual works that depict that conduct.

(i)As it pertains to obscene matter, “depicts a person under 18 years of age personally engaging in or personally simulating sexual conduct” includes a representation of a real or fictitious person through use of artificially intelligent software or computer-generated means, who is, or who a reasonable person would regard as being, a real person under 18 years of age, engaging in or simulating sexual conduct.

SECTION 1.

 The Legislature finds and declares all of the following:

(a) The sexual abuse of children is a most serious crime and an act repugnant to the moral instincts of decent people. Therefore, the prevention of sexual exploitation and abuse of children constitutes a government objective of paramount importance. California has a compelling interest in protecting the physical and psychological well-being of children and in eliminating the market for images of child sexual exploitation.

(b) Child sexual assault material (CSAM) is a visual depiction of the sexual abuse and exploitation of children. Its creation, distribution, and possession perpetuates the sexual exploitation of children and places children in danger of exploitation. Research has shown a correlation between the consumption of CSAM and an increased risk of individuals engaging in hands-on sexual offenses against minors. This is similar to research on the impact of legal pornography, which has concluded that pornography may increase sexually aggressive thoughts and behaviors.

(c) The possession of CSAM normalizes and validates the sexual exploitation of children and contributes to new victimization. Some offenders use CSAM to groom children into believing that sex with adults is appropriate. Moreover, for some higher risk offenders, viewing CSAM leads to escalating behavior, including physical sexual assault of children. Moreover, exchange of CSAM over internet communities allows offenders to promote CSAM and validate the sexual abuse of children.

(d) The harms identified above exist regardless of how CSAM is produced, and it is imperative that we protect our children from that harm regardless of how the images are produced.

(e) Artificial intelligence (AI) technology is advancing to the point where it can create images that may be indistinguishable from traditional photographs, and this advanced technology is now being used to create CSAM. Internet websites available to the public offer services that will create artificial CSAM, whether with or without an existing image of a real child.

(f) The creation of CSAM using AI is inherently harmful to children because the machine-learning models utilized by AI have been trained on datasets containing thousands of depictions of known CSAM victims, revictimizing these real children by using their likeness to generate AI CSAM images into perpetuity.

(g) The threat posed by AI-generated CSAM is real now and is emerging quickly as a serious impediment to protecting our children.

(h) CSAM that incorporates, in any manner, an image of a real child is not protected by the First Amendment. The First Amendment does not protect obscenity, nor does the First Amendment protect child obscenity, even if that obscenity was created entirely by AI.

(i) Federal law already criminalizes child obscenity even if it is created without using a real child. Federal law also prohibits distribution of CSAM created without using a real child when that CSAM lacks serious literary, artistic, political, or scientific value.

(j) As technology evolves, so must our laws. California’s law regulating CSAM must be updated to also prohibit artificially created images that depict the sexual assault and exploitation of children and that are obscene.

(k) Amendments can be made to California’s existing CSAM prohibitions so that California can also prohibit child obscenity and distribution of sexually explicit images of persons who are, or who appear to be, children.

SEC. 2.

 Section 311 of the Penal Code is amended to read:

311.

 As used in this chapter, the following definitions apply:

(a) “Obscene matter” means matter, taken as a whole, that to the average person, applying contemporary statewide standards, appeals to the prurient interest, that, taken as a whole, depicts or describes sexual conduct in a patently offensive way, and that, taken as a whole, lacks serious literary, artistic, political, or scientific value.

(1) If it appears from the nature of the matter or the circumstances of its dissemination, distribution, or exhibition that it is designed for clearly defined deviant sexual groups, the appeal of the matter shall be judged with reference to its intended recipient group.

(2) In prosecutions under this chapter, if circumstances of production, presentation, sale, dissemination, distribution, or publicity indicate that matter is being commercially exploited by the defendant for the sake of its prurient appeal, this evidence is probative with respect to the nature of the matter and may justify the conclusion that the matter lacks serious literary, artistic, political, or scientific value.

(3) In determining whether the matter taken as a whole lacks serious literary, artistic, political, or scientific value in description or representation of those matters, the fact that the defendant knew that the matter depicts persons under the age of 16 years engaged in sexual conduct, as defined in subdivision (c) of Section 311.4, is a factor that may be considered in making that determination.

(b) “Matter” means any book, magazine, newspaper, or other printed or written material, or any picture, drawing, photograph, motion picture, or other pictorial representation, or any statue or other figure, or any recording, transcription, or mechanical, chemical, or electrical reproduction, or any other article, equipment, machine, or material. “Matter” also means live or recorded telephone messages if transmitted, disseminated, or distributed as part of a commercial transaction.

(c) “Matter generated through the use of artificial intelligence” means an image that has been generated or modified by a machine-based system that can, for a given set of human-defined objectives, create visual content that is, or would falsely appear to a reasonable person to be, or to incorporate, actual photographs or recordings of a real human being actually engaging in the actions depicted.

(c)

(d) “Person” means any individual, partnership, firm, association, corporation, limited liability company, or other legal entity.

(d)

(e) “Distribute” means transfer possession of, whether with or without consideration.

(e)

(f) “Knowingly” means being aware of the character of the matter or live conduct.

(f)

(g) “Exhibit” means show.

(g)

(h) “Obscene live conduct” means any physical human body activity, whether performed or engaged in alone or with other persons, including but not limited to singing, speaking, dancing, acting, simulating, or pantomiming, taken as a whole, that to the average person, applying contemporary statewide standards, appeals to the prurient interest and is conduct that, taken as a whole, depicts or describes sexual conduct in a patently offensive way and that, taken as a whole, lacks serious literary, artistic, political, or scientific value.

(1) If it appears from the nature of the conduct or the circumstances of its production, presentation, or exhibition that it is designed for clearly defined deviant sexual groups, the appeal of the conduct shall be judged with reference to its intended recipient group.

(2) In prosecutions under this chapter, if circumstances of production, presentation, advertising, or exhibition indicate that live conduct is being commercially exploited by the defendant for the sake of its prurient appeal, that evidence is probative with respect to the nature of the conduct and may justify the conclusion that the conduct lacks serious literary, artistic, political, or scientific value.

(3) In determining whether the live conduct taken as a whole lacks serious literary, artistic, political, or scientific value in description or representation of those matters, the fact that the defendant knew that the live conduct depicts persons under the age of 16 years engaged in sexual conduct, as defined in subdivision (c) of Section 311.4, is a factor that may be considered in making that determination.

(h)

(i) The Legislature expresses its approval of the holding of People v. Cantrell, 7 Cal. App. 4th 523, that, for the purposes of this chapter, matter that “depicts a person under the age of 18 years personally engaging in or personally simulating sexual conduct” is limited to visual works that depict that conduct.

SEC. 3.

 Section 311.1 of the Penal Code is amended to read:

311.1.

 (a) Every person who knowingly sends or causes to be sent, or brings or causes to be brought, into this state for sale or distribution, or in this state possesses, prepares, publishes, produces, develops, duplicates, or prints any representation of information, data, or image, including, but not limited to, any film, filmstrip, photograph, negative, slide, photocopy, videotape, video laser disc, computer hardware, computer software, computer floppy disc, data storage media, CD-ROM, or computer-generated equipment or any other computer-generated image that contains or incorporates in any manner, either any film or filmstrip, or any matter generated through the use of artificial intelligence, with intent to distribute or to exhibit to, or to exchange with, others, or who offers to distribute, distributes, or exhibits to, or exchanges with, others, any obscene matter, knowing that the matter depicts a person under the age of 18 years of age engaging in or simulating sexual conduct, as defined in Section 311.4, or what appears to be a person under 18 years of age engaging in or simulating such sexual conduct, shall be punished either by imprisonment in the county jail for up to one year, by a fine not to exceed one thousand dollars ($1,000), or by both the fine and imprisonment, or by imprisonment in the state prison, by a fine not to exceed ten thousand dollars ($10,000), or by the fine and imprisonment.

(b)  This section does not apply to the activities of law enforcement and prosecuting agencies in the investigation and prosecution of criminal offenses or to legitimate medical, scientific, or educational activities, or to lawful conduct between spouses.

(c)  This section does not apply to matter which that depicts a child under the age of 18, which 18 years of age when the child is legally emancipated, including lawful conduct between spouses when one or both are under the age of 18. 18 years of age.

(d)  It does not constitute a violation of this section for a telephone corporation, as defined by Section 234 of the Public Utilities Code, to carry or transmit messages described in this chapter or perform related activities in providing telephone services.

SEC. 2.SEC. 4.

 Section 311.2 of the Penal Code is amended to read:

311.2.

 (a) Every person who knowingly sends or causes to be sent, or brings or causes to be brought, into this state for sale or distribution, or in this state possesses, prepares, publishes, produces, or prints, with intent to distribute or to exhibit to others, or who offers to distribute, distributes, or exhibits to others, any obscene matter is for a first offense, guilty of a misdemeanor. If the person has previously been convicted of any violation of this section, the court may, in addition to the punishment authorized in Section 311.9, impose a fine not exceeding fifty thousand dollars ($50,000).

(b) Every person who knowingly sends or causes to be sent, or brings or causes to be brought, into this state for sale or distribution, or in this state possesses, prepares, publishes, produces, develops, duplicates, or prints any representation of information, data, or image, including, but not limited to, any film, filmstrip, photograph, negative, slide, photocopy, videotape, video laser disc, computer hardware, computer software, computer floppy disc, data storage media, CD-ROM, or computer-generated equipment or any other computer-generated image that contains or incorporates in any manner, either any film or filmstrip, or any matter generated through the use of artificial intelligence, with intent to distribute or to exhibit to, or to exchange with, others for commercial consideration, or who offers to distribute, distributes, or exhibits to, or exchanges with, others for commercial consideration, any obscene matter, knowing that the matter depicts a person under 18 years of age personally engaging in or personally simulating sexual conduct, as defined in Section 311.4, or what appears to be a person under 18 years of age engaging in or simulating such sexual conduct, is guilty of a felony and shall be punished by imprisonment in the state prison for two, three, or six years, or by a fine not exceeding one hundred thousand dollars ($100,000), in the absence of a finding that the defendant would be incapable of paying that fine, or by both that fine and imprisonment.

(c) (1) Every person who knowingly sends or causes to be sent, or brings or causes to be brought, into this state for sale or distribution, or in this state possesses, prepares, publishes, produces, develops, duplicates, or prints any representation of information, data, or image, including, but not limited to, any film, filmstrip, photograph, negative, slide, photocopy, videotape, video laser disc, computer hardware, computer software, computer floppy disc, data storage media, CD-ROM, or computer-generated equipment or any other computer-generated image that contains or incorporates in any manner, either any film or filmstrip, or any matter generated through the use of artificial intelligence, with intent to distribute or exhibit to, or to exchange with, a person 18 years of age or older, or who offers to distribute, distributes, or exhibits to, or exchanges with, a person 18 years of age or older any matter or obscene matter, knowing that the matter depicts a person under 18 years of age personally engaging in or personally simulating sexual conduct, as defined in Section 311.4, or knowing that the matter depicts what appears to be a person under 18 years of age engaging in or simulating such sexual conduct, and lacks serious literary, artistic, political, or scientific value, shall be punished by imprisonment in the county jail for up to one year, or by a fine not exceeding two thousand dollars ($2,000), or by both that fine and imprisonment, or by imprisonment in the state prison. If a person has been previously convicted of a violation of this subdivision, they are guilty of a felony.

(2) It is not necessary to prove commercial consideration in order to establish a violation of this subdivision.

(3) It is not necessary to prove that matter that depicts a real person under 18 years of age is obscene or lacks serious literary, artistic, political, or scientific value in order to establish a violation of this subdivision.

(d) Every person who knowingly sends or causes to be sent, or brings or causes to be brought, into this state for sale or distribution, or in this state possesses, prepares, publishes, produces, develops, duplicates, or prints any representation of information, data, or image, including, but not limited to, any film, filmstrip, photograph, negative, slide, photocopy, videotape, video laser disc, computer hardware, computer software, computer floppy disc, data storage media, CD-ROM, or computer-generated equipment or any other computer-generated image that contains or incorporates in any manner, any film or filmstrip, or any matter generated through the use of artificial intelligence, with intent to distribute or exhibit to, or to exchange with, a person under 18 years of age, or who offers to distribute, distributes, or exhibits to, or exchanges with, a person under 18 years of age any matter, knowing that the matter depicts a person under 18 years of age personally engaging in or personally simulating sexual conduct, as defined in Section 311.4, or any representation of a real or fictitious person created through use of artificially intelligent software or computer-generated means, who is, or who a real person would regard as being, a real person under 18 years of age, engaging in or simulating sexual conduct as defined in subdivision (d) of Section 311.4, or what appears to be a person under 18 years of age engaging in or simulating such sexual conduct, is guilty of a felony. It is not necessary to prove commercial consideration or that the matter is obscene in order to establish a violation of this subdivision.

(e) Subdivisions (a) to (d), inclusive, do not apply to the activities of law enforcement and prosecuting agencies in the investigation and prosecution of criminal offenses, to legitimate medical, scientific, or educational activities, or to lawful conduct between spouses.

(f) This section does not apply to matter that depicts a legally emancipated child under 18 years of age or to lawful conduct between spouses when one or both are under 18 years of age.

(g) It does not constitute a violation of this section for a telephone corporation, as defined by Section 234 of the Public Utilities Code, to carry or transmit messages described in this chapter or to perform related activities in providing telephone services.

SEC. 3.Section 311.5 of the Penal Code is amended to read:

311.5.

Every person who writes, creates, or solicits the publication or distribution of advertising or other promotional material, or who in any manner promotes, the sale, distribution, or exhibition of matter or obscene matter represented or held out by them to be obscene, is guilty of a misdemeanor.

SEC. 5.

 Section 311.3 of the Penal Code is amended to read:

311.3.

 (a) A person is guilty of sexual exploitation of a child if he or she that person knowingly develops, duplicates, prints, or exchanges any representation of information, data, or image, including, but not limited to, any film, filmstrip, photograph, negative, slide, photocopy, videotape, video laser disc, computer hardware, computer software, computer floppy disc, data storage media, CD-ROM, or computer-generated equipment or any other computer-generated image that contains or incorporates in any manner, either any film or filmstrip filmstrip, or any matter generated through the use of artificial intelligence, that depicts a person under the age of 18 years of age engaged in an act of sexual conduct.

(b) It is not necessary to prove that the matter is obscene in order to establish a violation of subdivision (a).

(b)

(c) As used in this section, “sexual conduct” means any of the following:

(1) Sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex or between humans and animals.

(2) Penetration of the vagina or rectum by any object.

(3) Masturbation for the purpose of sexual stimulation of the viewer.

(4) Sadomasochistic abuse for the purpose of sexual stimulation of the viewer.

(5) Exhibition of the genitals or the pubic or rectal area of any person for the purpose of sexual stimulation of the viewer.

(6) Defecation or urination for the purpose of sexual stimulation of the viewer.

(c)

(d) Subdivision (a) does not apply to the activities of law enforcement and prosecution agencies in the investigation and prosecution of criminal offenses or to legitimate medical, scientific, or educational activities, or to lawful conduct between spouses.

(d)

(e) Every person who violates subdivision (a) shall be punished by a fine of not more than two thousand dollars ($2,000) or by imprisonment in a county jail for not more than one year, or by both that fine and imprisonment. If the person has been previously convicted of a violation of subdivision (a) or any section of this chapter, he or she the person shall be punished by imprisonment in the state prison.

(e)

(f) The provisions of this section do not apply to an employee of a commercial film developer who is acting within the scope of his or her employment and in accordance with the instructions of his or her their employer, provided that the employee has no financial interest in the commercial developer by which he or she is they are employed.

(f)

(g) Subdivision (a) does not apply to matter that is unsolicited and is received without knowledge or consent through a facility, system, or network over which the person or entity has no control.

SEC. 6.

 Section 311.4 of the Penal Code is amended to read:

311.4.

 (a) Every person who, with knowledge that a person is a minor, or who, while in possession of any facts on the basis of which he or she they should reasonably know that the person is a minor, hires, employs, or uses the minor to do or assist in doing any of the acts described in Section 311.2, shall be punished by imprisonment in the county jail for up to one year, or by a fine not exceeding two thousand dollars ($2,000), or by both that fine and imprisonment, or by imprisonment in the state prison. If the person has previously been convicted of any violation of this section, the court may, in addition to the punishment authorized in Section 311.9, impose a fine not exceeding fifty thousand dollars ($50,000).

(b) Every person who, with knowledge that a person is a minor under the age of 18 years, 18 years of age, or who, while in possession of any facts on the basis of which he or she they should reasonably know that the person is a minor under the age of 18 years, 18 years of age, knowingly promotes, employs, uses, persuades, induces, or coerces a minor under the age of 18 years, 18 years of age, or any parent or guardian of a minor under the age of 18 years of age under his or her their control who knowingly permits the minor, to engage in or assist others to engage in either posing or modeling alone or with others for purposes of preparing any representation of information, data, or image, including, but not limited to, any film, filmstrip, photograph, negative, slide, photocopy, videotape, video laser disc, computer hardware, computer software, computer floppy disc, data storage media, CD-ROM, or computer-generated equipment or any other computer-generated image that contains or incorporates in any manner, any film, filmstrip, or a live performance live performance, or matter generated through the use of artificial intelligence, involving, sexual conduct by a minor under the age of 18 years of age alone or with other persons or animals, for commercial purposes, is guilty of a felony and shall be punished by imprisonment in the state prison for three, six, or eight years.

(c) Every person who, with knowledge that a person is a minor under the age of 18 years, 18 years of age, or who, while in possession of any facts on the basis of which he or she they should reasonably know that the person is a minor under the age of 18 years, 18 years of age, knowingly promotes, employs, uses, persuades, induces, or coerces a minor under the age of 18 years, 18 years of age, or any parent or guardian of a minor under the age of 18 years of age under his or her their control who knowingly permits the minor, to engage in or assist others to engage in either posing or modeling alone or with others for purposes of preparing any representation of information, data, or image, including, but not limited to, any film, filmstrip, photograph, negative, slide, photocopy, videotape, video laser disc, computer hardware, computer software, computer floppy disc, data storage media, CD-ROM, or computer-generated equipment or any other computer-generated image that contains or incorporates in any manner, any film, filmstrip, or a live performance live performance, or matter generated through the use of artificial intelligence, involving, sexual conduct by a minor under the age of 18 years of age alone or with other persons or animals, is guilty of a felony. It is not necessary to prove commercial purposes in order to establish a violation of this subdivision.

(d) (1)As used in subdivisions (b) and (c), “sexual conduct” means any of the following, whether actual or simulated: sexual intercourse, oral copulation, anal intercourse, anal oral copulation, masturbation, bestiality, sexual sadism, sexual masochism, penetration of the vagina or rectum by any object in a lewd or lascivious manner, exhibition of the genitals or pubic or rectal area for the purpose of sexual stimulation of the viewer, any lewd or lascivious sexual act as defined in Section 288, or excretory functions performed in a lewd or lascivious manner, whether or not any of the above conduct is performed alone or between members of the same or opposite sex or between humans and animals. An act is simulated when it gives the appearance of being sexual conduct.

(2)As used in subdivisions (b) and (c), “matter” means any film, filmstrip, photograph, negative, slide, photocopy, videotape, video laser disc, computer hardware, computer software, computer floppy disc, or any other computer-related equipment or computer-generated image that contains or incorporates in any manner, any film, filmstrip, photograph, negative, slide, photocopy, videotape, or video laser disc.

(e) This section does not apply to a legally emancipated minor or to lawful conduct between spouses if one or both are under the age of 18. 18 years of age.

(f) In every prosecution under this section involving a minor under the age of 14 years of age at the time of the offense, the age of the victim shall be pled and proven for the purpose of the enhanced penalty provided in Section 647.6. Failure to plead and prove that the victim was under the age of 14 years of age at the time of the offense is not a bar to prosecution under this section if it is proven that the victim was under the age of 18 years of age at the time of the offense.

SEC. 4.SEC. 7.

 Section 311.11 of the Penal Code is amended to read:

311.11.

 (a) (1) Every person who knowingly possesses or controls any matter, representation of information, data, or image, including, but not limited to, any film, filmstrip, photograph, negative, slide, photocopy, videotape, video laser disc, computer hardware, computer software, computer floppy disc, data storage media, CD-ROM, or computer-generated equipment or any other computer-generated image that contains or incorporates in any manner, either any film or filmstrip, or any matter generated through the use of artificial intelligence, the production of which involves the use of a person under 18 years of age, knowing that the matter depicts a person under 18 years of age personally engaging in or simulating sexual conduct, as defined in subdivision (d) of Section 311.4, is guilty of a felony and shall be punished by imprisonment in the state prison, or a county jail for up to one year, or by a fine not exceeding two thousand five hundred dollars ($2,500), or by both the fine and imprisonment.

(2) Every person who knowingly possesses or controls any matter, representation of information, data, or image, including, but not limited to, any film, filmstrip, photograph, negative, slide, photocopy, videotape, video laser disc, computer hardware, computer software, computer floppy disc, data storage media, CD-ROM, or computer-generated equipment or any other computer-generated image that contains or incorporates in any manner, either any film or filmstrip, or any matter generated through the use of artificial intelligence, knowing that the matter is obscene and depicts what appears to be a person under 18 years of age engaging in or simulating sexual conduct, as defined in subdivision (d) of Section 311.4, is guilty of a felony and shall be punished by imprisonment in the state prison, or imprisonment in a county jail for up to one year, or by a fine not exceeding two thousand five hundred dollars ($2,500), or by both that fine and imprisonment.

(b) Every person who commits a violation of subdivision (a), and who has been previously convicted of a violation of this section, an offense requiring registration under the Sex Offender Registration Act, or an attempt to commit any of the above-mentioned offenses, is guilty of a felony and shall be punished by imprisonment in the state prison for two, four, or six years.

(c) Each person who commits a violation of subdivision (a) shall be punished by imprisonment in the state prison for 16 months, or two or five years, or shall be punished by imprisonment in a county jail for up to one year, or by a fine not exceeding two thousand five hundred dollars ($2,500), or by both the fine and imprisonment, if one of the following factors exists:

(1) The matter contains more than 600 images that violate subdivision (a), and the matter contains 10 or more images involving a prepubescent minor or a minor who has not attained 12 years of age.

(2) The matter portrays sexual sadism or sexual masochism involving a person under 18 years of age. For purposes of this section, “sexual sadism” means the intentional infliction of pain for purposes of sexual gratification or stimulation. For purposes of this section, “sexual masochism” means intentionally experiencing pain for purposes of sexual gratification or stimulation.

(d) It is not necessary to prove that the matter is obscene in order to establish a violation of this section, unless, pursuant to subdivision (i) of Section 311, the matter is depicting a fictitious person through the use of artificially intelligent software or computer-generated means, who a reasonable person would regard as being a real person under 18 years of age. paragraph (1) of subdivision (a).

(e)This section

(1) Paragraph (1) of subdivision (a) does not apply to drawings, figurines, statues, or any film or statues.

(2) This section does not apply to any film rated by the Motion Picture Association of America, nor does it apply to live or recorded telephone messages when transmitted, disseminated, or distributed as part of a commercial transaction.

(f)

(e) For purposes of determining the number of images under paragraph (1) of subdivision (c), the following shall apply:

(1) Each photograph, picture, computer or computer-generated image, or any similar visual depiction shall be considered to be one image.

(2) Each video, video-clip, movie, or similar visual depiction shall be considered to have 50 images.

SEC. 5.SEC. 8.

 Section 311.12 of the Penal Code is amended to read:

311.12.

 (a) (1) Every person who is convicted of a violation of Section 311.1, 311.2, 311.3, 311.10, or 311.11 in which the offense involves the production, use, possession, control, or advertising of matter, or obscene matter, or an image that depicts a person under 18 years of age personally engaging in or simulating sexual conduct, as defined in subdivision (d) of Section 311.4, in which the violation is committed on, or via, a government-owned computer or via a government-owned computer network, shall, in addition to any imprisonment or fine imposed for the commission of the underlying offense, be punished by a fine not exceeding two thousand dollars ($2,000), unless the court determines that the defendant does not have the ability to pay.

(2) Every person who is convicted of a violation of Section 311.1, 311.2, 311.3, 311.10, or 311.11 in which the offense involves the production, use, possession, control, or advertising of matter, or obscene matter, or an image that depicts a person under 18 years of age personally engaging in or simulating sexual conduct, as defined in subdivision (d) of Section 311.4, in which the production, transportation, or distribution of which involves the use, possession, or control of government-owned property shall, in addition to any imprisonment or fine imposed for the commission of the underlying offense, be punished by a fine not exceeding two thousand dollars ($2,000), unless the court determines that the defendant does not have the ability to pay.

(b) The fines in subdivision (a) shall not be subject to the provisions of Sections 70372, 76000, 76000.5, and 76104.6 of the Government Code, or Sections 1464 and 1465.7 of this code.

(c) Revenue from any fines collected pursuant to this section shall be deposited into a county fund established for that purpose and allocated as follows, and a county may transfer all or part of any of those allocations to another county for the allocated use:

(1) One-third for sexual assault investigator training.

(2) One-third for public agencies and nonprofit corporations that provide shelter, counseling, or other direct services for victims of human trafficking.

(3) One-third for multidisciplinary teams.

(d) As used in this section:

(1) “Computer” includes any computer hardware, computer software, computer floppy disk, data storage medium, or CD-ROM.

(2) “Government-owned” includes property and networks owned or operated by state government, city government, city and county government, county government, a public library, or a public college or university.

(3) “Multidisciplinary teams” means a child-focused, facility-based program in which representatives from many disciplines, including law enforcement, child protection, prosecution, medical and mental health, and victim and child advocacy work together to conduct interviews and make team decisions about the investigation, treatment, management, and prosecution of child abuse cases, including child sexual abuse cases. It is the intent of the Legislature that this multidisciplinary team approach will protect victims of child abuse from multiple interviews, result in a more complete understanding of case issues, and provide the most effective child- and family-focused system response possible.

(e) This section shall not be construed to require any government or government entity to retain data in violation of any provision of state or federal law.

SEC. 6.Section 312 of the Penal Code is amended to read:

312.

Upon the conviction of the accused, the court may, when the conviction becomes final, order any matter, obscene matter, or advertisement, in respect whereof the accused stands convicted, and which remains in the possession or under the control of the district attorney or any law enforcement agency, to be destroyed, and the court may cause to be destroyed any such material in its possession or under its control.

SEC. 7.SEC. 9.

 Section 312.3 of the Penal Code is amended to read:

312.3.

 (a) Matter or obscene matter that depicts a person under 18 years of age personally engaging in or personally simulating sexual conduct as defined in Section 311.4 and that is in the possession of any city, county, city and county, or state official or agency is subject to forfeiture pursuant to this section.

(b) An action to forfeit matter described in subdivision (a) may be brought by the Attorney General, the district attorney, county counsel, or the city attorney. Proceedings shall be initiated by a petition of forfeiture filed in the superior court of the county in which the matter is located.

(c) The prosecuting agency shall make service of process of a notice regarding that petition upon every individual who may have a property interest in the alleged proceeds. The notice shall state that any interested party may file a verified claim with the superior court stating the amount of their claimed interest and an affirmation or denial of the prosecuting agency’s allegation. If the notice cannot be given by registered mail or personal delivery, the notice shall be published for at least three successive weeks in a newspaper of general circulation in the county where the property is located. All notices shall set forth the time within which a claim of interest in the property seized is required to be filed.

(d) (1) Any person claiming an interest in the property or proceeds may, at any time within 30 days from the date of the first publication of the notice of seizure, or within 30 days after receipt of actual notice, file with the superior court of the county in which the action is pending a verified claim stating their interest in the property or proceeds. A verified copy of the claim shall be given by the claimant to the Attorney General or district attorney, county counsel, or city attorney, as appropriate.

(2) If, at the end of the time set forth in paragraph (1), an interested person has not filed a claim, the court, upon motion, shall declare that the person has defaulted upon their alleged interest, and it shall be subject to forfeiture upon proof of compliance with subdivision (c).

(e) The burden is on the petitioner to prove beyond a reasonable doubt that matter is subject to forfeiture pursuant to this section.

(f) It is not necessary to seek or obtain a criminal conviction prior to the entry of an order for the destruction of matter or obscene matter pursuant to this section. Any matter described in subdivision (a) that is in the possession of any city, county, city and county, or state official or agency, including found property, or property obtained as the result of a case in which no trial was had or that has been disposed of by way of dismissal or otherwise than by way of conviction may be ordered destroyed.

(g) A court order for destruction of matter or obscene matter described in subdivision (a) may be carried out by a police or sheriff’s department or by the Department of Justice. The court order shall specify the agency responsible for the destruction.

(h) As used in this section, “matter” means any book, magazine, newspaper, or other printed or written material or any picture, drawing, photograph, motion picture, or other pictorial representation, or any statue or other figure, or any recording, transcription or mechanical, chemical or electrical reproduction, or any other articles, equipment, machines, or materials. “Matter” also means any representation of information, data, or image, including, but not limited to, any film, filmstrip, photograph, negative, slide, photocopy, videotape, video laser disc, computer hardware, computer software, computer floppy disc, data storage media, CD-ROM, or computer-generated equipment or any other computer-generated image that contains or incorporates in any manner any film or filmstrip. filmstrip, or matter generated through the use of artificial intelligence.

(i) This section does not apply to a depiction of a legally emancipated minor or to lawful conduct between spouses if one or both are under 18 years of age.

(j) It is a defense in any forfeiture proceeding that the matter or obscene matter seized was lawfully possessed in aid of legitimate scientific or educational purposes.

SEC. 8.SEC. 10.

 No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.