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California Penal Code 273a PC punishes acts of child endangerment. Simply put, this crime occurs when an individual either (1) places a child in a dangerous situation, or (2) allows a child to be placed in a dangerous situation without taking steps to protect the child.1
Because this crime may be charged even when the child suffers no actual injury2, it is easy (and unfortunately also common) for innocent people to face prosecution under California child endangerment laws.
The good news is that as former prosecutors and police officers, we know first-hand how child endangerment cases are investigated, prosecuted, and…most importantly…defended.
In order to help you better understand the complexities involved with California child endangerment law, our Los Angeles criminal defense attorneys3 will address the following:
(Click on any title below to proceed directly to that section)
If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.
You may also find helpful information in our related articles on Penal Code 273d PC Child Abuse, Penal Code 288 Lewd Acts with a Minor, Penal Code 242 Battery, Penal Code 187 Murder, Penal Code 192(c) Involuntary Manslaughter, California's Definition of Great Bodily Injury, California's DUI Laws, and California's Domestic Violence Laws.
We also invite you to join the Shouse Law Group Facebook fan page and follow us on Twitter to receive regular updates and commentary on California criminal law issues.
California Penal Code 273a PC child endangerment (sometimes interchangeably referred to as child abuse) is what's known in the law as a wobbler. A "wobbler" is an offense that…depending on the circumstances…prosecutors can charge as either a misdemeanor or a felony.4
If you willfully
prosecutors may charge you with misdemeanor or felony child endangerment under Penal Code 273a.
The History of Penal Code 273a
Since its enactment in 1905, California's legal definition of child endangerment hasn't changed significantly…it's the penalties that have received the most revisions.
When Penal Code 273a was first introduced, it was an automatic misdemeanor.5 It wasn't until 1976 that the crime became a wobbler, the felony version made punishable by one to ten years in prison.6 Then in 1980, the felony punishment was reduced to two, three, or four years in prison. In 1984, it again changed to two, four, or six years, which is how the code currently reads.7
In 1993, then Governor Pete Wilson tried to amend Penal Code 273a to include a four-year enhancement in cases where the alleged endangerment resulted in the child's death. Although that amendment was added, it didn't become law under this code section.
It instead became Penal Code 12022.95 (which is a sentencing enhancement used in connection with child endangerment convictions).8 That legislation also led to Penal Code 273ab which currently punishes acts of child abuse that result in death to young victims by a term of 25 years to life in the California State Prison.9
In order to convict you of child endangerment, the prosecutor must prove certain facts (otherwise known as "elements" of the crime)10. Specifically, the prosecutor must prove:
(a) willfully caused or willfully and as a result of criminal negligence permitted the child's person or health to be injured, or
(b) willfully caused or willfully and as a result of criminal negligence permitted the child to be placed in a situation where his or her person or health may have been endangered.
Let's take a closer look at some of these legal terms to gain a better understanding of their meanings.
Willfully
"Willfully" means deliberately or on purpose. It doesn't require that you actually intended to break the law or to injure another person.12
Example: A woman was convicted of felony child endangerment for entrusting her 11-month-old daughter to her violent live-in fiancé while she worked. On previous occasions, the baby had suffered serious burns, a broken arm, and a black eye while under the fiancé's care.13
Even though she didn't intend to break the law or injure her child, she willfully allowed her violent fiancé to take care of the baby (who was subsequently killed when the fiancé brutally beat and shook the child).
Unjustifiable physical pain or mental suffering
"Unjustifiable physical pain or mental suffering" is pain or suffering that is unreasonable because either (1) it is unnecessary, or (2) the degree of the force used is too extreme.14
Example: When a parent "spanks" her child with an open hand, it is typically acceptable as a means of parental discipline. However, if a parent instead whips her child with a belt, it would likely be deemed excessive and dangerous. As a result, "whipping" would likely constitute unjustifiable physical pain.
Criminal negligence
Under California law, "criminal negligence" refers to behavior that is so aggravated, gross, or reckless that it goes against all common sense.
If a "reasonable" person in a similar situation would not have engaged in the same behavior, you could be found criminally negligent for your act.15
Put another way, if:
courts may find you to be criminally negligent for the consequences of your behavior.16
Criminal negligence can make something a crime even if you never intended to injure another person.17 This means that you can be held criminally negligent even for passive behavior or inaction…if it involves extreme neglect or exhibiting a complete disregard for the safety of others.18
In assessing criminal negligence, courts hold you to an "objective standard". This means that if the judge and/or jury determine that a "reasonable" person in the same position would have appreciated the risk, you will be presumed to have been aware of that risk, too.19
Examples -- The following are some examples of California child endangerment cases where courts found criminal negligence to exist:
A 34-year-old intoxicated man convinced his 14-year-old neighbor to play "Russian roulette" (a game where someone takes a gun loaded with at least one round, spins the cylinder, points the gun at his/her head and then pulls the trigger).20
Even though it was the child who ultimately pulled the trigger, the court held it was the defendant who initiated the game among a group of teenagers, encouraged the child's participation, and gave the child the gun, making his behavior criminally negligent.
The defendant allowed his 6-year-old stepson to be present in his house while he had extremely dangerous and highly flammable chemicals in the kitchen, dining room, living room, and garage. Many of these were on the floor, and included chemicals that could easily melt human flesh on contact and those known for their use in manufacturing methamphetamines.21
A mother strictly limited herself and her two-year old and four-year-old sons to a "macrobiotic" diet (a very restrictive diet consisting almost exclusively of beans, grains, and some vegetables). Both children were malnourished, underdeveloped, and the youngest suffered permanent neurological damage. The children's father, a social worker, and numerous doctors warned her of the dangers of this type of diet. But she listened to no one, even when her youngest was hospitalized by the police because he was emaciated, semi-comatose, in a state of shock, and actually dying.22
A father and his two children (ages seven and nine) lived in a home that contained extremely dangerous, flammable chemicals that were improperly stored near exposed electrical wires, dog feces throughout, rotted inoperable kitchen sinks, no food, and trash scattered about. The children also had access to any of the 12 weapons (at least 3 of which were loaded) that were kept in the home23.
Examples where courts didn't find criminal negligence
When a child is harmed due to excusable inattention, mistake, or misjudgment, the behavior is not criminally negligent, regardless of the consequences. This means that simple negligence will not trigger this type of criminal liability.
Examples -- In contrast to the above examples, here are some cases of alleged child endangerment where the courts found no criminal negligence:
A mother left her four small children (between the ages of 2 and 6) home alone while she went to a bar. Hours after she had been gone, a fire erupted. Although a neighbor was able to save three of the children, the two-year-old was killed in the fire.25
A mother left her four-month-old son with his father. Although she had never witnessed the father mistreat the child, he had hit her on occasion, showed little affection toward the child, and had a violent temper. While under the father's care, the baby suffered multiple, non-accidental fractures on his rib cage and arm.26
Although both of these mothers clearly exhibited poor judgment and lack of care, neither case rose to the level of criminal negligence. Despite the tragic consequences, the courts found that neither situation necessarily created a high risk of death or serious bodily harm.
Criminal negligence is only concerned with the act itself, not with the consequences. It will not be imputed to every careless or thoughtless act just because someone is injured as a result. If the act itself doesn't clearly involve a high-degree of danger, criminal negligence does not attach.27
As a "wobbler", prosecutors can elect to charge Penal Code 273a as either a misdemeanor or a felony. The major deciding factor is whether or not the child was placed in a situation where he/she was likely to suffer great bodily injury (alternatively referred to as great bodily harm).28
California's definition of "great bodily injury" includes significant or substantial injuries. It excludes minor or even moderate harm.29 Because there is no exact definition of what constitutes "great bodily harm"…it is actually determined on a case-by-case basis30…overzealous prosecutors have a tendency to allege it every chance they get.
It is important to remember that whether the child actually suffers an injury isn't the ultimate issue31. The relevant factor is whether the child was placed in a situation where he/she likely to suffer injury. That said, if the child does in fact suffer great bodily harm, that factor will likely cause the prosecutor to file more serious charges.
Penalties for misdemeanor child endangerment
If convicted of misdemeanor child endangerment, the sentence may include any or all of the following32:
Penalties for felony child endangerment
If convicted of felony child endangerment, your sentence may include any or all of the following34:
∗∗If the child was ultimately killed either (1) as a result of your child abuse, or (2) as a result of your criminal negligence, you face an additional and consecutive four years in prison.
∗∗If you are granted probation in a misdemeanor or felony case, you may expunge your California criminal record once you successfully complete the probationary period. But the judge can deny you an expungement if you suffer a probation violation, or fail to adhere to all the terms and conditions of probation.35
∗∗If you are charged with felony child endangerment, the court may be willing to reduce the wobbler from a felony to a misdemeanor. The court may also grant an early termination of probation if you comply with all the terms and conditions of probation for the first year or two.
A felony child endangerment conviction will result in a "strike" on your record under California's Three Strikes Law if the offense resulted in great bodily injury (defined above).36
This means that if you are subsequently charged with any felony and have a prior "strike" on your record, you will be considered a "second striker," and your sentence will be twice the term otherwise required by law.37
If charged with a third felony and you have two prior strikes, you will be considered a "third striker" and will serve a mandatory minimum sentence of 25 years-to-life in California state prison.38
The bad news is that Penal Code 273a child endangerment carries severe penalties. The good news is that there are a number of legal defenses that a skilled California criminal defense lawyer could present on your behalf in an effort to avoid conviction.
The following is an example of some of the most effective defenses to child endangerment allegations.
The act wasn't willful
Willfulness is an element of child endangerment, regardless of whether you are charged with
This means that if you didn't purposely act, you should not be held criminally responsible for the offense.
Using an example from above, let's say that instead of entrusting her child to her violent fiancé, the violent fiancé "took" the baby (without the mother's knowledge or consent) while the baby was with a qualified babysitter. Given these facts, the mother would not have been responsible for any injury the baby suffered, because she didn't willfully place the child in a dangerous situation.
Similarly, if the child suffered an injury that was an accident…or placed him/herself in a harmful situation without your knowledge or approval…you haven't willfully contributed to either scenario. See our page on "accident" as a legal defense in California for more discussion.
As Ventura criminal defense lawyer Darrell York explains39, "Accidents happen, and kids get into trouble -- period. Criminal liability requires more."
Parent's right to discipline
Parents maintain a legal right to discipline their children…and that right includes using "reasonable" corporal punishment.40 "Corporal punishment", simply put, is physical punishment or punishment inflicted on the body. "Spanking" is the most common example.
If your criminal defense attorney can convince the prosecutor, judge, and/or jury that the alleged corporal punishment was justified as a reasonable means of discipline, your actions don't violate California child endangerment law.41
False accusations / wrongful arrest
Many child abuse prosecutions stem from false accusations and wrongful arrests. This is based on two primary reasons: (1) children are known to embellish and even to "make up stories", and (2) police are quick to arrest if there is even an inclination that a child has suffered harm.
False allegations are also commonly asserted by jealous, angry, or even revenge-driven
who are looking to gain control over the accused. We frequently see this in connection with divorce or custody battles.
Caretakers can also falsely accuse a child's mother, father, or other family member of injuring a child in an effort to cover up their own culpability.
It wasn't me
Overzealous police and prosecutors want to hold someone accountable in apparent instances of child endangerment, neglect, or abuse. So they often jump to conclusions about who is responsible.
If, for example, you take your child to the doctor…either for a routine visit or because you suspect something may be wrong…the doctor is obligated to report any signs of potential abuse. If you are the child's primary caretaker, the police may jump to the conclusion that you are to blame, even if you are not. Perhaps a babysitter or other caregiver harmed your child without your knowledge.
If
then you shouldn't suffer liability under Penal Code 273a California's child endangerment law.
There are a variety of offenses that are related to California Penal Code 273a either because they (1) share similar elements, or (2) are commonly charged in connection with child endangerment.
The following are some of the most common:
Penal Code 273d Child Abuse
Under Penal Code 273d, California child abuse laws make it a crime to direct physical abuse at a minor. Child abuse doesn't require great bodily injury. Any visible or internal injury (no matter how minor) can trigger this charge.42
If you are accused of personally inflicting unjustifiable pain upon a child, prosecutors could charge you with both child endangerment and child abuse.
Penal Code 288 Lewd Acts with a Minor
Penal Code 288 (a) Lewd Acts with a Minor / Child Under 14 gets charged when a person touches a child for sexual purposes. Suppose you leave your child with someone who you know, or reasonably should know, has a propensity towards child molestation. And suppose the person actually does sexually abuse the child. Prosecutors could charge that person with Penal Code 288, and you with child endangerment.
Penal Code 243e1 Domestic Battery
Penal Code 243(e)(1), California domestic battery law makes it a crime to inflict force or violence against someone with whom you share a domestic relationship...which includes a current or former spouse, fiancé or fiancée, dating partner, the parent of your child, or any cohabitant.
We often see domestic battery charges filed in the case of alleged child abuse against an adult child (that is, a child who is over the age of 18)43. If you are accused of assaulting or battering an adult child living with you, prosecutors will likely proceed under penal code 243(e)(1). If the adult child suffers a visible injury, prosecutors may file a more serious charge of Penal Code 273.5 "infliction of corporal injury on a cohabitant."
Driving Under the Influence
California's DUI laws punish driving under the influence of drugs and/or alcohol.44 If you are arrested for driving under the influence of drugs and/or alcohol while you have a child in the car, prosecutors will likely charge you with (1) DUI and a child endangerment sentencing enhancement45, or (2) DUI and child endangerment as separate offenses, depending on the facts surrounding the DUI.
If the child was in a situation that was so severe that it ultimately resulted in his/her death, prosecutors could charge a number of different offenses in addition to child endangerment.
These include:
If, while you have care and custody over a child under eight, you assault that child by means likely to result in great bodily injury…and the child dies as a result of the injuries…you could be charged with California Penal Code 273ab.46 This offense carries a sentence of 25 years to life in the state prison.47
Prosecutors may charge California Penal Code 187 murder anytime someone kills another person with malice.48 "Malice" is defined as an intent to kill. With respect to murder, malice can be express or implied.49
Malice is "express" when there is clear evidence that someone intended to kill another person. Malice is "implied" when the person acted with a reckless disregard for human life.50 And while there are two degrees of murder…that is, first-degree murder and second-degree murder…both require that the defendant acted with malice.51
In cases where child endangerment leads to a child's death and thus murder charges, prosecutors generally charge it as a second-degree murder. This is because criminal negligence and lack of care usually invoke implied malice rather than an actual intent to kill.
Prosecutors can charge second-degree murder charge in connection with child endangerment charges in one of two ways: (1) through the California felony-murder rule, or (2) by demonstrating implied malice.52
These are two separate "theories" upon which prosecutors can base their second-degree murder charges. This means that a jury can convict a defendant of second-degree murder so long as it agrees with either of these theories. And, under certain circumstances, a jury may actually agree with both theories.
Below we will discuss each theory of child endangerment murder.
Second-degree felony murder
The second-degree felony murder rule applies to all felonies that are (1) inherently dangerous to human life, and (2) not specifically included under the first-degree felony murder rule.53 This includes child endangerment. The felony-murder rule imputes malice to the individual responsible for the death(s).54
Thus when a child dies as a result of child endangerment, prosecutors could file charges for Penal Code 273a and second-degree murder.
Example: A woman and her four children (ages seven, three, two, and one) lived in a mobile home with two other adults. The two adults watched the kids and otherwise acted as the housekeepers while the mother operated an in-house methamphetamine (otherwise known as "meth") lab.
In order to manufacture the methamphetamines, she kept all the necessary dangerous, flammable chemicals in and around the mobile home, accessible to the children. She also "cooked" the meth while the children were present.
An explosion erupted while the woman was combining some of the ingredients that she was "cooking". The three youngest children died in the fire.55
The court held that manufacturing methamphetamines is inherently dangerous to human life, because it necessarily involves using hazardous, highly flammable, and extremely volatile materials in connection with a heat source. The mother was convicted of second-degree murder.56
Implied malice
Implied malice has two components:
Implied malice connotes an even higher degree of reckless behavior than criminal negligence. Using the same example from above, the mother performed an act that was dangerous to human life and…based on the fact that she had been operating her meth lab for years and understood the dangers inherent with the operation…she did so without regard for the safety of her children.
Based on these facts, the jury found her guilty of second-degree murder based on both the felony murder rule and by find that she acted with implied malice.
Penal Code 192(c), California involuntary manslaughter law punishes acts of criminal negligence that result in death. The main difference between manslaughter and murder is that manslaughter doesn't involve malice.
Involuntary manslaughter is charged when a death results from either (1) committing an unlawful act that doesn't rise to the level of a felony, or (2) engaging in a lawful, but dangerous act without due caution.58
Example: A four-year-old girl was suffering from meningitis. Her mother, a firm believer in Christian Science relied on a Christian Science prayer practitioner and Christian Science nurse to pray for her ill daughter. Even after her daughter lost weight, became irritable and disoriented, and suffered from heavy, irregular breathing, the mother refused to seek medical treatment for her daughter. Doing so would have gone against her religious beliefs.59
Under these circumstances, failing to seek medical treatment was a lawful act. However, doing so was dangerous and led to the child's death, which is why the mother was convicted of involuntary manslaughter and child endangerment.
For more information about California child endangerment law, or to discuss your case confidentially with one of our attorneys, please don't hesitate to contact us at Shouse Law Group.
Our California criminal law offices are located in and around Los Angeles, Orange County, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
Additionally, our Las Vegas criminal defense attorneys represent clients accused of violating Nevada's laws against child abuse, child neglect, and child endangerment. For more information about Nevada's domestic violence laws, we invite you to contact our local attorneys at one of our Nevada law offices.60
1California Penal Code 273a -- (Willful harm or injury to a child). Child endangerment. ("(a) Any person who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or willfully causes or permits that child to be placed in a situation where his or her person or health is endangered, shall be punished by imprisonment in a county jail not exceeding one year, or in the state prison for two, four, or six years. (b) Any person who, under circumstances or conditions other than those likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or willfully causes or permits that child to be placed in a situation where his or her person or health may be endangered, is guilty of a misdemeanor.")
2People v. Jaramillo (1979) 98 Cal.App.3d 830, 835. ("[California Penal Code] Section 273a provides for felony punishment where certain actions are committed "under circumstances or conditions likely to produce great bodily harm or death." A misdemeanor status is to those acts committed "under circumstances or conditions other than those likely to produce great bodily harm or death." For the felony punishment there is no requirement that the actual result be great bodily injury. The statute is intended to protect a child from an abusive situation in which the probability of serious injury is great.")
3Our Los Angeles criminal defense attorneys have local law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier.
4See California Penal Code 273a -- Child endangerment, endnote 1, above.
5California Penal Code 273 -- Child Endangerment (Historical and statutory notes): "As added, this section originally read [in 1905]: "Any person who willfully causes or permits any child to suffer, or who inflicts thereon unjustifiable physical pain or mental suffering, and whoever, having the care or custody of any child, causes or permits the life or limb of such child to be endangered, or the health of such child to be injured, and any person who willfully causes or permits such child to be placed in such situation that its life or limb may be endangered, or its health likely to be injured, is guilty of a misdemeanor."")
6See same. ("The 1976 amendment [to California Penal Code 273a PC] deleted from the end of paragraph (1) "for not less than 1 year nor more than 10 years."")
7See same. ("The 1980 amendment [to California's child endangerment law] inserted at the end of paragraph (1) "for 2, 3 or 4 years". The 1984 amendment substituted in subd. (1) "4, or 6" for "3 or 4".")
8People v. Valdez (2002) 27 Cal.4th 778, 788. ("Indeed, in 1993, [California Penal Code] section 273a was amended by Assembly Bill No. 897 (1993-1994 Reg. Sess.) to add an enhancement if the conduct or omission resulted in the child's death. (Stats. 1993, ch. 1253, § 1, p. 7276.) This enhancement contained language similar to that in [California Penal Code] section 273a, and was subsequently moved to what is now [Penal Code] section 12022.95.")
California Penal Code 12022.95 -- Willful harm to a child resulting in death. ("Any person convicted of a violation of Section 273a [child endangerment], who under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or injury that results in death, or having the care or custody of any child, under circumstances likely to produce great bodily harm or death, willfully causes or permits that child to be injured or harmed, and that injury or harm results in death, shall receive a four-year enhancement for each violation, in addition to the sentence provided for that conviction. Nothing in this paragraph shall be construed as affecting the applicability of [California Penal Code] subdivision (a) of Section 187 or Section 192. This section shall not apply unless the allegation is included within an accusatory pleading and admitted by the defendant or found to be true by the trier of fact.")
9See California Penal Code 273a -- Child endangerment (Historical and statutory notes). ("The 1993 amendment redesignated former subds. (1) and (2) as subds. (a)(1) and (b), respectively, added subd. (a)(2), and made nonsubstantive changes elsewhere in the section. [(a)(2) read as follows: "[(a)](2) Any person convicted under this subdivision who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or injury that results in death, or having the care or custody of any child, under circumstances likely to produce great bodily harm or death, willfully causes or permits that child to be injured or harmed, and that injury or harm results in death, shall receive a four-year enhancement for each such violation in addition to the sentence provided for that conviction. Nothing in this paragraph shall be construed as affecting the applicability of subdivision (a) of Section 187 or Section 192."
The 1994 amendment, in subd. (a), deleted the paragraph designation for the first paragraph, substituted "shall be punished by" for "is punishable by", made nonsubstantive changes, and deleted subd. (a)(2)… Section 10 of Stats.1994, c. 1263 (A.B.1328), provides: "Section 3.5 of this bill incorporates amendments to Section 273a of the Penal Code proposed by both this bill and AB 27 (1st Ex. Sess.) [Stats.1993-94, 1st Ex.Sess., c. 47]. It shall only become operative if (1) both bills are enacted and become effective, (2) each bill amends Section 273a of the Penal Code [c. 47 did not amend § 273a. It added Penal Code 273ab relating to subject matter similar to amendment by § 3.5 of c. 1263.], and (3) this bill is enacted after AB 27 (1st Ex. Sess.) [c. 47 was approved Sept. 26, 1994, filed Sept. 27, 1994; c. 1263 was approved and filed Sept. 30, 1994].
See also California Penal Code 273ab -- Assault resulting in death of child under 8; imprisonment. ("Any person who, having the care or custody of a child who is under eight years of age, assaults the child by means of force that to a reasonable person would be likely to produce great bodily injury, resulting in the child's death, shall be punished by imprisonment in the state prison for 25 years to life. Nothing in this section shall be construed as affecting the applicability of subdivision (a) of [California Penal Code] Section 187 or Section 189.")
10California Jury Instructions – Criminal. CALJIC 16.170 -- Child endangerment. ("In order to prove this crime, each of the following elements must be proved:[1 A person willfully inflicted unjustifiable physical pain or mental suffering on a child[.]] [; or] [1 A person willfully caused or willfully and as a result of criminal negligence permitted a child to suffer unjustifiable physical pain or mental suffering[.]] [; or] [1 A person had care or custody of a child and: [a Willfully caused or willfully and as a result of criminal negligence permitted the child's person or health to be injured[.]] [; or] [b Willfully caused or willfully and as a result of criminal negligence permitted the child to be placed in a situation where his or her person or health may be endangered].]")
11People v. Thomas (1976) 65 Cal.App.3d 854, 857. Although this case specifically deals with Penal Code 273d child abuse, it's reasoning can nonetheless be applied to Penal Code 273a California child endangerment law. ("Civil Code section 25 provides that minors ‘are all persons under 18 years of age.' Various Penal Code sections refer to children according to chronological age. (Cf. Pen.Code, ss 273b and 647a.) Welfare and Institutions Code, sections 600, 601 and 602 adopt chronological age as the criteria for determining juvenile court jurisdiction. That age is 18 years. Where an age of less than 18 years is used in particular circumstances, it is specifically spelled out. (Pen.Code, ss 271, 271a.) Penal Code section 272 (contributing to the delinquency of a minor) has historically adopted the age used in Welfare and Institutions Code section 600 and Civil Code section 25. While the size and age of the alleged victim is relevant to the trier of fact's determination of the reasonableness of the corporal punishment and the cruel nature thereof, the only criteria which can be used in determining the legal applicability of the statute is chronological age. Further the only reasonable and logical approach is to equate ‘child' with ‘minor' as used in Civil Code section 25 and Welfare and Institutions Code section 600.")
12See CALJIC 16.170 -- Child endangerment, endnote 10, above. ("The word "willfully," as used in this instruction, means with a purpose or willingness to commit the act or make the omission in question. The word "willfully" does not require any intent to violate the law, or to injure another, or to acquire any advantage.")
13See People v. Valdez at 778, endnote 8, above. Defendant was convicted of willfully entrusting her infant to her live-in fiancé who had already injured her child on numerous occasions prior to the one that led to this case. The court found that she "willfully" placed her child in a situation where the circumstances or conditions were likely to produce great bodily harm or death.
14See CALJIC 16.170 -- Child endangerment, endnote 10, above. ("Unjustifiable physical pain or mental suffering is pain or suffering which, under the circumstances, is unreasonable either as to necessity or degree.")
15See People v. Valdez at 788, endnote 8, above. ("As construed to contain a criminal negligence requirement, [California Penal Code] section 273a, subdivision (a) sets forth a standard of conduct that is rigorous. Ordinary negligence will not suffice. Specifically, criminal negligence involves " 'a higher degree of negligence than is required to establish negligent default on a mere civil issue. The negligence must be aggravated, culpable, gross, or reckless, that is, the conduct of the accused must be such a departure from what would be the conduct of an ordinarily prudent or careful [person] under the same circumstances as to be incompatible with a proper regard for human life ... or an indifference to consequences.' " (Penny, supra, 44 Cal.2d at p. 879.)")
16See same at 789.
17See same at 783. ("Under section 20, criminal negligence "may be sufficient to make an act a criminal offense, without a criminal intent." (1 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Elements, § 20, p. 225.)")
18People v. Smith (1984) 35 Cal.3d 798, 806 (overruled on other grounds). ("Our task is to apply the foregoing rules to the offense at issue here - felony child abuse defined by section 273a, subdivision (1).FN4 (3)We recognize that a violation of its terms can occur in a wide variety of situations: the definition broadly includes both active and passive conduct, i.e., child abuse by direct assault and child endangering by extreme neglect. Two threshold considerations, however, govern all types of conduct prohibited by this law: first, the conduct must be willful; second, it must be committed ‘under circumstances or conditions likely to produce great bodily harm or death.‘ ( § 273a, subd. (1).) Absent either of these elements, there can be no violation of the statute.")
19See People v. Valdez at 783, endnote 8, above. (""Under the criminal negligence standard, knowledge of the risk is determined by an objective test: ‘[I]f a reasonable person in defendant's position would have been aware of the risk involved, then defendant is presumed to have had such an awareness.' " ( Williams v. Garcetti (1993) 5 Cal.4th 561, 574, 20 Cal.Rptr.2d 341, 853 P.2d 507, italics omitted [further stating "there can be no criminal negligence without actual or constructive knowledge of the risk"]
20People v. Hansen (1997) 59 Cal.App.4th 473
21People v. Toney (1999) 76 Cal.App.4th 618
22People v. Pointer (1984) 151 Cal.App.3d 1128
23People v. Odom (1991) 226 Cal.App.3d 1028
24See same. ("["Criminal negligence" refers to negligent conduct which is aggravated, reckless or flagrant and which is such a departure from the conduct of an ordinarily prudent, careful person under the same circumstances as to be contrary to a proper regard for [human life] [danger to human life] or to constitute indifference to the consequences of that conduct. The facts must be such that the consequences of the negligent conduct could reasonable have been foreseen and it must appear that the [death] [danger to human life] was not the result of inattention, mistaken judgment or misadventure but the natural and probable result of aggravated, reckless or flagrantly negligent conduct.]")
25People v. Rodriguez (1961), 186 Cal.App.2d 433
26People v. Peabody (1975) 46 Cal.App.3d 43
27See same at 47. ("Criminal liability cannot be predicated on every careless act merely because its carelessness results in injury to another. [Citation.] The act must be one which has knowable and apparent potentialities for ... death [or great bodily injury]. Mere inattention or mistake in judgment ... is not criminal unless the quality of the act makes it so. The fundamental requirement fixing criminal responsibility is knowledge, actual or imputed, that the act of the accused tended to endanger life."")
28See People v. Valdez at 784, endnote 8, above. ("The primary difference between the two subdivisions is that subdivision (a) requires the proscribed conduct occur under "circumstances or conditions likely to produce great bodily harm or death"; subdivision (b), a misdemeanor, has no such requirement.")
29California Jury Instructions – Criminal. CALJIC 17.20 -- Infliction of great bodily injury. ("Great bodily injury," as used in this instruction, means a significant or substantial physical injury. Minor, trivial or moderate injuries do not constitute great bodily injury.")
30People v. Escobar (1992) 3 Cal.4th 740, 750. ("It is well settled that the determination of great bodily injury is essentially a question of fact, not of law." 'Whether the harm resulting to the victim ... constitutes great bodily injury is a question of fact for the jury.")
31See endnote 2, above.
32California Penal Code 273a -- Child endangerment. ("(a) Any person who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or willfully causes or permits that child to be placed in a situation where his or her person or health is endangered, shall be punished by imprisonment in a county jail not exceeding one year… (c) If a person is convicted of violating this section and probation is granted, the court shall require the following minimum conditions of [California] probation: (1) A mandatory minimum period of probation of 48 months. (2) A criminal court protective order protecting the victim from further acts of violence or threats, and, if appropriate, residence exclusion or stay-away conditions. (3)(A) Successful completion of no less than one year of a child abuser's treatment counseling program approved by the probation department. The defendant shall be ordered to begin participation in the program immediately upon the grant of probation. The counseling program shall meet the criteria specified in Section 273.1. The defendant shall produce documentation of program enrollment to the court within 30 days of enrollment, along with quarterly progress reports. (B) The terms of probation for offenders shall not be lifted until all reasonable fees due to the counseling program have been paid in full, but in no case shall probation be extended beyond the term provided in subdivision (a) of Section 1203.1. If the court finds that the defendant does not have the ability to pay the fees based on the defendant's changed circumstances, the court may reduce or waive the fees. (4) If the offense was committed while the defendant was under the influence of drugs or alcohol, the defendant shall abstain from the use of drugs or alcohol during the period of probation and shall be subject to random drug testing by his or her probation officer. (5) The court may waive any of the above minimum conditions of probation upon a finding that the condition would not be in the best interests of justice. The court shall state on the record its reasons for any waiver.")
See also California Penal Code 672 -- Offenses for which no fine prescribed; fine authorized in addition to imprisonment. ("Upon a conviction for any crime punishable by imprisonment in any jail or prison, in relation to which no fine is herein prescribed, the court may impose a fine on the offender not exceeding one thousand dollars ($1,000) in cases of misdemeanors or ten thousand dollars ($10,000) in cases of felonies, in addition to the imprisonment prescribed.")
33California Probation Law and California Probation Violation Hearings are governed by the California Penal Code. California Penal Code 1203 -- Probation. ("(a) As used in this code, "probation" means the suspension of the imposition or execution of a sentence and the order of conditional and revocable release in the community under the supervision of a probation officer. As used in this code, "conditional sentence" means the suspension of the imposition or execution of a sentence and the order of revocable release in the community subject to conditions established by the court without the supervision of a probation officer. It is the intent of the Legislature that both conditional sentence and probation are authorized whenever probation is authorized in any code as a sentencing option for infractions or misdemeanors.")
34See same.
See also California Penal Code 12022.7 -- Enhancement for great bodily injury. ("(a) Any person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for three years. (b) Any person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony which causes the victim to become comatose due to brain injury or to suffer paralysis of a permanent nature, shall be punished by an additional and consecutive term of imprisonment in the state prison for five years. As used in this subdivision, "paralysis" means a major or complete loss of motor function resulting from injury to the nervous system or to a muscular mechanism…
(d) Any person who personally inflicts great bodily injury on a child under the age of five years in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for four, five, or six years. (e) Any person who personally inflicts great bodily injury under circumstances involving domestic violence in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for three, four, or five years. As used in this subdivision, "domestic violence" has the meaning provided in subdivision (b) of Section 13700.
(f) As used in this section, "great bodily injury" means a significant or substantial physical injury.")
See also California Penal Code 667.5(c). ("(c) For the purpose of this section, "violent felony" shall mean any of the following:…(8) Any felony in which the defendant inflicts great bodily injury on any person other than an accomplice which has been charged and proved as provided for in [California Penal Code] Section 12022.7, 12022.8, or 12022.9 on or after July 1, 1977, or as specified prior to July 1, 1977, in Sections 213, 264, and 461…
See also California Penal Code 1192.7(c). ("As used in this section [with respect to California child endangerment law], ‘serious felony' means…(8) any felony in which the defendant personally inflicts great bodily injury on any person, other than an accomplice…
See also California Penal Code 667 -- Habitual criminals; enhancement of sentence; amendment of section (otherwise known as California's Three Strikes Law). ("(b) It is the intent of the Legislature in enacting subdivisions (b) to (i), inclusive, to ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of serious and/or violent felony offenses.")
See also California Penal Code 12022.95 -- Willful harm to a child resulting in death. ("Any person convicted of a violation of Section 273a [child endangerment], who under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or injury that results in death, or having the care or custody of any child, under circumstances likely to produce great bodily harm or death, willfully causes or permits that child to be injured or harmed, and that injury or harm results in death, shall receive a four-year enhancement for each violation, in addition to the sentence provided for that conviction. Nothing in this paragraph shall be construed as affecting the applicability of [California Penal Code] subdivision (a) of Section 187 or Section 192. This section shall not apply unless the allegation is included within an accusatory pleading and admitted by the defendant or found to be true by the trier of fact.")
35California Penal Code 1203.4.
36California Penal Code 1192.7(c). ("As used in this section [with respect to California child endangerment law], ‘serious felony' means...(8) any felony in which the defendant personally inflicts great bodily injury on any person, other than an accomplice, or any felony in which the defendant personally uses a firearm...")
See also California Penal Code 667 -- Habitual criminals; enhancement of sentence; amendment of section (otherwise known as California's Three Strikes Law). ("(b) It is the intent of the Legislature in enacting subdivisions (b) to (i), inclusive, to ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of serious and/or violent felony offenses.")
37California Penal Code 667 -- Habitual criminals; enhancement of sentence; amendment of section -- California Three Strikes law . ("(e) For purposes of subdivisions (b) to (i), inclusive, and in addition to any other enhancement or punishment provisions which may apply, the following shall apply where a defendant has a prior felony conviction: (1) If a defendant has one prior felony conviction that has been pled and proved, the determinate term or minimum term for an indeterminate term shall be twice the term otherwise provided as punishment for the current felony conviction. (2)(A) If a defendant has two or more prior felony convictions as defined in subdivision (d) that have been pled and proved, the term for the current felony conviction shall be an indeterminate term of life imprisonment with a minimum term of the indeterminate sentence calculated as the greater of: (i) Three times the term otherwise provided as punishment for each current felony conviction subsequent to the two or more prior felony convictions. (ii) Imprisonment in the [California] state prison for 25 years…")
38See same.
39Ventura criminal defense lawyer Darrell York uses his former experience as a Glendale Police Officer to represents clients accused of child endangerment at the Ventura Hall of Justice, the Van Nuys courthouse, the Pasadena courthouse, the Burbank courthouse, the Glendale courthouse, the Lancaster courthouse, the San Fernando courthouse, and the Criminal Courts Building.
40CALJIC 4.80 -- Parent's right to discipline child. ("It is lawful for a parent reasonably to discipline a child, and in doing so to administer reasonable punishment, including the infliction of reasonable corporal punishment. However, it is unlawful for a parent to inflict unjustifiable punishment upon a child. Corporal punishment is not justified and is therefore unlawful if the punishment was not reasonably necessary, or was excessive, under the circumstances. The defendant contends that [he] [she] was lawfully disciplining the child. The People have the burden of proving that the force applied to the child was unlawful, that is, not reasonably necessary or excessive, under the circumstances. If you have a reasonable doubt that unlawful force was applied, you must find the defendant not guilty. If you find that the use of force was not reasonably necessary or was excessive, you must determine what crime, if any, was committed in light of the other instructions.")
41People v. Whitehurst, (1992) 9 Cal.App.4th 1045, 1050 ("A parent has a right to reasonably discipline by punishing a child and may administer reasonable punishment without being liable for a battery…Thus as these cases make clear, whether the corporal punishment falls within the parameters of a parent's right to discipline [under California law] involves consideration of not only the necessity for the punishment but also whether the amount of punishment was reasonable or excessive. Reasonableness and necessity therefore are not two separate defenses but rather two aspects of the single issue of parental right to discipline by physical punishment.")
42California Penal Code 273d -- Child abuse. ("(a) Any person who willfully inflicts upon a child any cruel or inhuman corporal punishment or an injury resulting in a traumatic condition is guilty of a felony and shall be punished by imprisonment in the state prison for two, four, or six years, or in a county jail for not more than one year, by a fine of up to six thousand dollars ($6,000), or by both that imprisonment and fine. (b) Any person who is found guilty of violating subdivision (a) shall receive a four-year enhancement for a prior conviction of that offense provided that no additional term shall be imposed under this subdivision for any prison term served prior to a period of 10 years in which the defendant remained free of both prison custody and the commission of an offense that results in a felony conviction.")
43See People v. Thomas (1976) 65 Cal.App.3d 854, endnote 11, above.
44California Vehicle Code 23152 -- Driving under the influence. ("(a) It is unlawful for any person who is under the influence of any alcoholic beverage or [under the influence of any controlled substance, i.e.] drug, or under the combined influence of any alcoholic beverage and drug, to drive a vehicle. (b) It is unlawful for any person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle.")
45California Vehicle Code 23572. This code adds additional punishment to a DUI sentence if the DUI offender had a child under the age of 14 in the vehicle at the time of the offense. The defendant can't be punished under this code and under California Penal Code 273, but can only be punished for one or the other.
46California Penal Code 273ab -- Assault resulting in death of child under 8; imprisonment. ("Any person who, having the care or custody of a child who is under eight years of age, assaults the child by means of force that to a reasonable person would be likely to produce great bodily injury, resulting in the child's death, shall be punished by imprisonment in the state prison for 25 years to life. Nothing in this section shall be construed as affecting the applicability of subdivision (a) of [California Penal Code] Section 187 or Section 189.")
47See same.
48California Penal Code 187 -- Murder. ("(a) Murder is the unlawful killing of a human being, or a fetus, with malice aforethought.")
49California Penal Code 188 -- Malice. ("Such malice may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.")
50See same.
51 See endnote 48, above.
52People v. James (1998) 62 Cal.App.4th 244, 257. ("Murder is defined as the "unlawful killing of a human being ... with malice aforethought." (Pen. Code, § 187, subd. (a).) Malice "may be express or implied."…Murder also may be committed, even in the absence of actual malice, under the felony-murder rule. ")
53See same. ("The felony-murder rule 'artificially imposes malice as to one crime because of defendant's commission of another' and thereby satisfies the standard of culpability necessary to raise a homicide to murder. [Citation.]" ( People v. Wells (1996) 12 Cal.4th 979, 989 [50 Cal.Rptr.2d 699, 911 P.2d 1374], quoting People v. Phillips (1966) 64 Cal.2d 574, 583, fn. 6 [51 Cal.Rptr. 225, 414 P.2d 353].) "The felony-murder rule applies to both first and second degree murder." ( People v. Hansen (1994) 9 Cal.4th 300, 308 [36 Cal.Rptr.2d 609, 885 P.2d 1022].) Under the first degree felony-murder rule, a homicide is first degree murder if it is committed in the perpetration or attempted perpetration of statutorily specified felonies (including arson, robbery and rape). Under the second degree felony-murder rule, a homicide is second degree murder if it is committed in the perpetration or attempted perpetration of any felony that is inherently dangerous to human life. ( Ibid.)")
54See same.
55See same.
56See same at 270. ("The dangers of manufacturing methamphetamine are closely analogous to the dangers of possessing a destructive device, as in Morse. Both felonies involve a dangerous instrumentality; its maker often loses control over it; it may wreak enormous havoc on persons and property; the victims are often unintended sufferers; and, considering its destructive potential, the dangerous instrumentality is susceptible of fairly easy concealment. In some ways, manufacturing methamphetamine is more dangerous than possessing a destructive device. One can commit the felony of possessing a destructive device even if the device has been rendered inoperable. However, one cannot commit the felony of manufacturing methamphetamine without possessing at least some hazardous substances; without using, pouring and mixing those substances; or without applying heat. Thus, manufacturing methamphetamine "by its very nature, ... cannot be committed without creating a substantial risk that someone will be killed ...." ( People v. Burroughs, supra, 35 Cal.3d at p. 830.) We conclude the trial court correctly ruled that manufacturing methamphetamine is inherently dangerous to human life for purposes of the second degree felony-murder rule.")
57See same at 277. (""[I]mplied malice has both a physical and a mental component, the physical component being the performance of ' "an act, the natural consequences of which are dangerous to life," ' and the mental component being the requirement that the defendant ' "knows that his conduct endangers the life of another and ... acts with a conscious disregard for life." ' [Citations.]" ( People v. Hansen, supra, 9 Cal.4th at p. 308, quoting People v. Patterson, supra, 49 Cal.3d at p. 626, quoting People v. Watson (1981) 30 Cal.3d 290, 300 [179 Cal.Rptr. 43, 637 P.2d 279].)")
58CALJIC 8.45 -- Involuntary Manslaughter. ("Every person who unlawfully kills a human being, [without malice aforethought,] [and] [without an intent to kill, and without conscious disregard for human life,] is guilty of the crime of involuntary manslaughter in violation of Penal Code section 192, subdivision (b)….A killing is unlawful within the meaning of this instruction if it occurred: [1] During the commission of an unlawful act [not amounting to a felony] which is dangerous to human life under the circumstances of its commission; or [2] In the commission of an act, ordinarily lawful, which involves a high degree of risk of death or great bodily harm, without due caution and circumspection.")
59Walker v. Superior Court (1988) 47 Cal.3d 112
60Please feel free to contact our Nevada criminal defense attorneys Michael Becker and Mike Castillo for any questions relating to Nevada's laws against child abuse, child neglect, or child endangerment law. Their Nevada law offices are located in Reno and Las Vegas.
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