California Penal Code 273d PC punishes the act of physically injuring or imposing cruel physical punishment on a child...more commonly referred to as child abuse.1
Although California criminal law-including Penal Code 273a PC, California's child endangerment law and Penal Code 270 PC, California's child neglect law -also punishes neglect, sexual abuse, and emotional abuse of a child . . . Penal Code 273d PC-California's child abuse statute-and this article deal specifically with with physical abuse directed at a minor.
- Slapping a child hard enough to leave a mark,
- Engaging in a physical fight with a teenager and leaving bruises on him/her, and
- Beating a child with a belt to discipline him/her.
As a domestic violence crime, California child abuse is subject to harsh penalties...and is an offense on which local prosecutors like to "get tough."
A child abuse conviction can destroy your reputation, family, career, and freedom. And it is all too easy for one moment of weakness in a parent...or a family or domestic conflict that has nothing to do with abuse...to lead to unfair or downright false allegations of child abuse.
Penal Code 273d PC is a "wobbler". This means that depending on
- the facts of your specific case, and
- your criminal history,
it may be charged as either a misdemeanor or a felony.2
The maximum jail sentence for misdemeanor child abuse is one (1) year. But for felony child abuse, it is two (2), four (4) or six (6) years...or even more if you have a prior conviction for this offense.3
Just facing child abuse charges can be an emotionally devastating experience...and a conviction is even worse.
Luckily, an experienced California criminal defense attorney can help. There are several helpful legal defenses that could lead to charges being dismissed or reduced. These include:
- The allegations are false,
- The child's injuries were caused by something other than abuse,
- You were acting within your right to discipline your child, and/or
- You did not injure the child on purpose.
In this article, our California criminal defense attorneys provide a comprehensive guide to understanding California child abuse law, and the defenses that are applicable to it, by addressing the following:
If, after reading this article, you have additional questions, we invite you to contact us at Shouse Law Group.
The legal definition of child abuse under California law revolves around the so-called "elements of the crime." These are key facts that the prosecutor is supposed to prove before you may be found guilty of this offense.
The elements of the legal definition of California child abuse are:
- You willfully inflicted cruel and inhuman punishment, and/or an injury, on a child;
- The punishment or injury caused the child to suffer a traumatic physical condition; AND
- Your actions were not part of reasonable discipline of your child.4
So what does this actually mean? Let's flesh out some of these legal terms to better understand their meanings.
"Willfully" means that you acted willingly or on purpose.5 You do not need to have actually intended to break the law.
Also, as long as you intended to do the act that resulted in the injury, it does not matter if you intended the consequences of the act-that is, whether you intended to actually injure a child.6
Example: In a moment of frustration with her two-year-old son, Monique grabs his arm forcefully...and ends up pulling it out of the socket.
Monique did not intend to cause this kind of injury to her son. But she did intend to grab his arm. Thus, her act is considered willful...and she may be guilty of California child abuse.
This term should be obvious...but a child, for purposes of California's child abuse statute, is anyone under the age of eighteen (18).7
Example: Christine is a petite woman in her thirties. Her 15-year-old stepson Pete has been acting up at home. Christine tries to talk to Pete about how he should change his behavior. This ends up turning into a physical fight...and Christine scratches Pete, leaving visible marks on him.
Even though Pete is taller than Christine and weighs significantly more than her...she may still be charged with California child abuse, because Pete is under 18.
Cruel or inhuman punishment
Interestingly, "cruel or inhuman" isn't defined in Penal Code 273d PC...even though it's a key part of the legal definition of child abuse.
But we do know that, under a standard dictionary definition, "cruel" means disposed to inflict pain in a vindictive-mean or nasty-manner. "Inhuman" means lacking mercy, pity, kindness, or tenderness.8
Examples of physical punishment of a child that could be considered cruel or inhuman include (but are by no means limited to):
- hitting, punching, slapping, or kicking a child,
- pushing a child,
- shaking a child,
- choking a child,
- burning a child, and
- throwing an object at a child.
However, it is NOT considered child abuse to "spank" a child for disciplinary purposes...even if you use an object other than your hand (like an old-fashioned "switch" or a paddle). However, this is only true as long as the spanking is necessary and not unreasonable under the circumstances.9
"Traumatic condition" means a wound or other bodily injury caused by physical force...whether minor or serious.10
Although we usually associate the word "trauma" with a serious, scarring experience, California's child abuse statute uses "traumatic" in a very different way. Even something as minor as a scratch or bruise qualifies as a traumatic condition for purposes of this law.
As you can see, there are a number of ambiguous, hard-to-define terms in the legal definition of California child abuse. In the end, even with the above guidelines, the jury must evaluate the circumstances surrounding the incident to determine whether the act constituted abuse.
Evidence of other acts of child abuse
For the vast majority of criminal charges, California law has long held that the court must exclude evidence relating to prior criminal offenses or misconduct from your current criminal case.
This rule exists so that the jury doesn't unfairly convict you based on conduct unrelated to your alleged offense. Such evidence is considered overly "prejudicial" ... and so is not permitted.11
But California child abuse law under Penal Code 273d PC is a striking exception to this rule. Prior acts of corporal injury or punishment on a child are admissible against you in a child abuse prosecution. Not only that...but it isn't even necessary that these acts resulted in prior convictions.12
This means that the judge may allow the prosecutor to introduce earlier allegations that you previously engaged in acts of child abuse...even if these allegations were dismissed or you were acquitted. These prior alleged acts don't have to involve the same alleged victim or circumstances, or have any other similarities to your pending case...that is, other than the fact that you were accused of abusing a child.
But, luckily, before the judge will permit the prosecutor to allow this type of evidence, s/he will conduct a hearing to consider
- whether the proposed evidence will unduly prejudice the jury,
- whether there is any corroborating evidence for the earlier allegations, and
- how much time has elapsed between the prior acts and the current pending charges.13
Thus, if you are arrested or accursed of child abuse for the second time, it is all the more important to hire a skilled California child abuse defense lawyer who can represent you at this hearing. S/he should know the most effective arguments to convince the court that this "prior alleged acts" evidence is constitutionally unfair...and, as a result, must be excluded.
Also, the prosecutor is not allowed to introduce evidence of prior child abuse allegations if the previous act of child abuse is supposed to have occurred more than ten (10) years before the current one...unless the judge specifically determines that it is in the interest of justice to allow this evidence.14
Evidence of other acts of domestic violence
In some circumstances, the prosecutor may also be able to introduced evidence of prior criminal acts of California domestic violence in a trial for Penal Code 273d PC child abuse.15
Specifically, the prosecutor can introduce prior domestic violence accusations or convictions if all of the following are true:
- The current allegation is that you committed child abuse against
a. your child,
b. any child who regularly lives with you, or
c. any child who used to regularly live with you,16
- You were accused or convicted of domestic violence-including violence against a spouse, live-in girlfriend/boyfriend, parent of your child, person you were dating, etc.-for acts that occurred within the past five (5) years,17 AND
- The judge holds a hearing and determines that it is appropriate to admit this evidence.18
The rationale is that the California Evidence Code permits any acts of domestic violence as tending to show your "propensity" toward violence in general.19 So much for innocent until proven guilty!
Example: Joanne is being prosecuted under Penal Code 273d PC for allegedly hitting her boyfriend's daughter, who lives with her and her boyfriend. Joanne was arrested (but not charged) for throwing a phone at her ex-husband 3 years ago...and was convicted of California domestic battery for punching him 5 years ago.
The prosecutor asks for a hearing to see if the prior arrest and conviction can be admitted in Joanne's current child abuse proceeding. The judge decides that there is reasonable corroborating evidence for the earlier arrest and conviction and that they won't unduly prejudice the jury.
Therefore, the prosecutor is allowed to tell the jury about Joanne's prior arrest and conviction...in order to help show that she has a "propensity for violence."
But it's also important to know that...even if evidence of prior acts of child abuse or domestic violence does get introduced...the jury will be instructed that the prior acts by themselves are not sufficient to prove that you are guilty in the current proceeding. They are simply additional evidence to consider when deliberating on the case.20
Under Penal Code 273d PC, child abuse is a wobbler in California law.21
- The circumstances of the alleged offense, and
- Your criminal history.
If you are convicted of misdemeanor child abuse, the potential penalties include either or both of
- A sentence of up to one (1) year in county jail, and
- A fine of up to six thousand dollars ($6,000).22
For felony child abuse, penalties may include
- A jail sentence of two (2), four (4) or six (6) years, and/or
- A fine of up to six thousand dollars ($6,000).23
Also, if you have a prior Penal Code 273a child abuse conviction, your sentence will increase by four (4) years. But this sentence enhancement will NOT apply if
- you finished serving any prison term for that prior conviction more than ten (10) years ago, AND
- you have not served jail time for any other felony offense in those 10 years.24
Regardless of whether you are convicted of misdemeanor or felony child abuse...it is common for probation to be imposed in connection with a conviction for corporal punishment causing injury to a child...either instead of or in addition to the penalties listed above.
If you receive a sentence of probation in connection with a Penal Code 273d PC conviction, the probation conditions will probably include:
- A minimum probation term of three (3) years,
- A criminal court protective order . . . and, if appropriate, a residence exclusion and/or stay away order . . . to protect the alleged victim,
- A requirement that you attend and complete a minimum one-year child abuser's treatment counseling program, and
- Random drug tests, if you were under the influence of drugs and/or alcohol at the time of the alleged offense.25
Your failure to complete any of these probation requirements may result in (1) a court-ordered bench warrant, and/or (2) a probation violation (subjecting you to an increased jail or prison sentence).
On the other hand, 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.
In addition to the penalties above, a felony child abuse conviction will result in a "strike" on your record under California's Three Strikes Law . . . IF the child suffered a great bodily injury as a result of the abuse.26 :
This means that if you are subsequently charged with any felony, you will be considered a "second striker" . . . and your sentence will be twice the term otherwise required by law.27
And if you accumulate three (3) so-called "strike offenses," you will be considered a "third striker" and will serve a mandatory minimum sentence of 25 years to life in California state prison.28
While California's child abuse laws aim to protect children, our justice system is also designed to vindicate those who get wrongfully accused. Below are some of the most common legal defenses that an experienced California child abuse defense attorney may assert against a corporal injury or punishment on a child charge.
False allegations of child abuse
This may be the most common and effective defense to California child abuse charges.
It is common for child abuse accusations to arise out of family or domestic conflict. Someone in your family may accuse you of child abuse based on his/her own ulterior motives, such as
- revenge, or
- a desire to be in control.
This is typically seen in connection with child custody battles. It also occurs sometimes when children want to "punish" their parents or their parent's boy/girlfriend.
According to San Bernardino criminal defense lawyer Michael Scafiddi29 :
"I can't tell you how many child abuse cases I've seen that involve accusations against a step-parent or a parent's new boyfriend or girlfriend. Often the accusing person is the parent who doesn't have custody...or a child who is upset that their parent has a new romantic partner in their lives. Often, the injuries that are the basis for these false child abuse accusations were inflicted by someone other than the accused person...or even self-inflicted!"
In cases involving false child abuse accusations, a seasoned child abuse defense attorney will know the types of questions to ask, . . . the types of investigations to pursue, . . . and the types of evidence that will effectively highlight the deficiencies in the prosecutor's case.
Injuries caused by things other than child abuse
Kids have accidents - period. They fall, bump into things, wrestle with each other, wrestle with you, get into fights with each other, and play contact sports.
It often happens that even a well-meaning person will mistake cuts, scrapes, bruises, or other innocent injuries for abuse...and in turn complain to the authorities that you engaged in Penal Code 273d PC child abuse.
This problem is made worse by California's "Child Abuse & Neglect Reporting Act." Under this law, a long list of professionals-including doctors, teachers, social workers, nurses, school administrators, clergy, etc.-are required by law to report any suspected instances of child abuse.30
If these "mandated reporters" don't make a required report, they are guilty of a misdemeanor and may even serve time in jail.31 Thus, they are under strong pressure to report even the slightest suspicion of child abuse.
Veteran California criminal defense attorneys frequently work with doctors and forensic medical examiners who independently evaluate the alleged injuries. If, after conducting a thorough exam, the doctor believes that you are being unfairly prosecuted based on misleading evidence, s/he will testify accordingly.
Parent's right to discipline
As previously mentioned, parents do have the right to discipline their children physically, through what is known as corporal punishment . . . as long as the discipline is reasonable and causes no bodily injury.32
As a result, "spanking" (with your hand or an object like a paddle) . . . when used as a means of disciplining a child . . . is not considered child abuse under California law unless it is either
- unnecessary, or
- unreasonable or excessive.33
If your California child abuse defense lawyer can convince the prosecutor, judge and/or jury that you inflicted corporal punishment on a child that was justified as a reasonable means of discipline . . . then you are likely to be exonerated.
The injury is a result of an accident
The legal defense of accident applies to prosecutions under California's child abuse statute. You have to act willfully to be convicted under this law.34
Therefore, you can't be convicted of California child abuse for a genuine accident . . . as long as the accident didn't arise out of reckless or aggressive behavior. Examples of genuine accidents might include:
- practicing your baseball swing when your daughter walks up behind you - without your knowledge - and is hit by the bat,
- slamming the door in anger, not realizing that your toddler's hand is in the door jam, or
- swinging your son in circles by his arms to make him laugh and accidentally pulling his arm out of the socket.
But note that...if you willfully grabbed your son's arm in anger and you unintentionally pulled it out of the socket...the "accident" would not serve as a defense to child abuse charges.
Certain other California crimes are closely related to California Penal Code 273d PC and are frequently charged either along with or instead of child abuse.
The following are some of the most common:
California child endangerment law under Penal Code 273a PC (which, confusingly, is also sometimes referred to as child abuse) also deals with intentional harm to a child.
The major difference between child abuse and child endangerment in California law is this: for child endangerment, the child doesn't actually need to suffer any physical injury or harm. Child endangerment can be charged if the child is simply put in a situation where there was a probability that they would be harmed.35
Also, child endangerment charges may be brought against someone who didn't personally inflict an injury on a child...but instead put the child in a situation where an injury was likely to occur.36
Example: Pauline knows that her brother Frank has a history of substance abuse and violence, including violence against his own children. But she leaves her son with Frank one day when she needs to go to work and has no other childcare options. Frank ends up hitting Pauline's son that day, leaving him with serious bruises that cause Pauline to take him to the hospital.
The prosecutor charges Frank with Penal Code 273d PC child abuse for directly inflicting on injury on Pauline's son. But the prosecutor also charges Pauline with Penal Code 273a PC child endangerment...for willfully putting her son in a situation where he was likely to be injured.
Like child abuse, California child endangerment is a wobbler. It carries similar penalties to Penal Code 273a PC child abuse.37
Penal Code 242 PC battery is the unwanted, willful use of force or violence, no matter how slight, upon another person.38
Battery is what is known as a "lesser offense" necessarily included in Penal Code 273d PC child abuse.39 This means that it's impossible to commit the greater offense (in this case, child abuse) without necessarily also committing the lesser offense (battery).
So if there is evidence to support the fact that you intentionally inflicted some physical force on a child...but that it didn't
- rise to the level of "cruel or inhuman" punishment, or
- result in a "traumatic condition"-that is, an injury (spitting on your child, for example, would not result in injury),
the judge will instruct the jury that it may convict you of battery instead.
Battery is a misdemeanor. The penalties may include a fine of up to two thousand dollars ($2,000), up to six (6) months in county jail, or both.40
California's child abuse statute is one of several California domestic violence laws that specifically deal with acts of violence or neglect toward people who have a dependent status (like children or the elderly) or with whom you have a certain relationship (like a romantic relationship).
For example, both Penal Code 273.5 PC "corporal injury to a spouse or cohabitant" and Penal Code 243(e)(1) PC "domestic battery" punish acts of force or violence against "intimate partners"... such as
- Your husband or wife,
- Your fiancé/fiancée,
- A romantic partner with whom you are living,
- The parent of your child, and
- A current or former dating partner.41
Similarly, Penal Code 368 PC, California's elder abuse law, makes it a crime to willfully or negligently impose unjustifiable physical pain and/or mental suffering on a person who is 65 or older.42
These domestic violence laws all cover different behavior and different types of victims than California's child abuse statute. But they are related because...as we discussed in Section 3 above...false accusations of child abuse are often brought in connection with family conflict-things like divorce, tension between children and their step-parents, etc.
In these sorts of high-drama situations, accusations of all sorts often fly back and forth...and it is entirely possible for someone to find themselves accused of both child abuse and, for example, domestic abuse of a spouse at the same time in their lives. If you find yourself in this unlucky situation, a lawyer with experience in both areas can be a major asset.
Another important California offense involving parents' behavior toward their children is Penal Code 270 PC failure to provide care (child neglect).
Failure to provide care is defined as failing to provide necessities to your minor child, willfully and without lawful excuse. "Necessities" means things like food, shelter, clothing and necessary medical care.43
Child neglect is a misdemeanor in most cases--but can be a wobbler if this is not your first conviction for this offense.44
Call Us for Help...
If you or loved one is charged with Penal Code 273d PC child abuse and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.
For more information on Nevada's child abuse laws, please visit our page on Nevada's child abuse laws.
¿Habla español? Visite nuestro sitio Web en español sobre el delito de abuso y negligencia un menores de California.
Los Angeles Community College District's Guide to the Child Abuse and Neglect Reporting Act
1 Penal Code 273d PC - Corporal punishment or injury of child; felony; punishment; enhancement for prior conviction; conditions of probation [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 pursuant to subdivision (h) of Section 1170 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 or term imposed under the provisions of subdivision (h) of Section 1170 served prior to a period of 10 years in which the defendant remained free of both the commission of an offense that results in a felony conviction and prison custody or custody in a county jail under the provisions of subdivision (h) of Section 1170.")
2 See same, Child abuse.
3 See same, Child abuse.
4 Judicial Council of California Criminal Jury Instructions ("CALCRIM") 822 - Inflicting Physical Punishment on Child [Child Abuse]. ("To prove that the defendant is guilty of this crime, the People must prove that: 1. The defendant willfully inflicted (cruel or inhuman physical punishment/ [and/or] an injury) on a child; [AND] 2. The (punishment/ [and/or] injury) inflicted by the defendant caused a traumatic physical condition to the child(;/.) <Give element 3 when instructing on parental right to discipline> [AND 3. When the defendant acted, (he/she) was not reasonably disciplining a child.]")
5 See same, Child Abuse. ("Someone commits an act willfully when he or she does it willingly or on purpose.")
6 Penal Code 7 PC - Words and phrases. ("The following words have in this code [including in Penal Code 273d PC, California's child abuse law] the signification attached to them in this section, unless otherwise apparent from the context: 1. The word "willfully," when applied to the intent with which an act is done or omitted, implies simply a purpose or willingness to commit the act, or make the omission referred to. It does not require any intent to violate law, or to injure another, or to acquire any advantage.")
7 CALCRIM 822 - Child Abuse. ("A child is any person under the age of 18 years.")
8 People v. Jackson, (1984) 198 Cal.463, 465 ("Webster's Dictionary, supra, defines "cruel" as "1a: disposed to inflict pain esp. in a wanton, insensate or vindictive manner ... b: rapacious, ravening: given to killing and mangling or to tormenting prey ... 2a: ... causing or conducive to injury, grief, or pain ... 3: severe, distressing: extremely painful ...." The same authority defines "inhuman" as "1a: lacking the qualities of mercy, pity, kindness, or tenderness: cruel, barbarous, savage ... c: not worthy of or conforming to the needs of human beings ...."")
9 CALCRIM 822 - Child Abuse. (" It is not unlawful for a parent to spank a child for disciplinary purposes with an object other than the hand. The punishment, however, must be necessary and not excessive in relation to the individual circumstances. (80 Ops.Cal.Atty.Gen. 203 (1997).)")
10 See same, Child Abuse. ("A traumatic physical condition is a wound or other bodily injury, whether minor or serious, caused by the direct application of physical force.")
11 Evidence Code 1101 EC -- Evidence of character to prove conduct. ("(a) Except as provided in this section and in [California Evidence Code] Sections 1102, 1103, 1108, and 1109, evidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion.") California child abuse is an exception to this rule.
See also Evidence Code 352 EC -- Discretion of court to exclude evidence. ("The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.")
12 Evidence Code 1109 EC - Evidence of defendant's other acts of domestic violence [including Penal Code 273d PC child abuse]. ("(3) Except as provided in subdivision (e) or (f) and subject to a hearing conducted pursuant to [California Evidence Code] Section 352, which shall include consideration of any corroboration and remoteness in time, in a criminal action in which the defendant is accused of an offense involving child abuse, evidence of the defendant's commission of child abuse is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352. Nothing in this paragraph prohibits or limits the admission of evidence pursuant to subdivision (b) of Section 1101. . . . (e) Evidence of acts occurring more than 10 years before the charged offense is inadmissible under this section, unless the court determines that the admission of this evidence is in the interest of justice. (f) Evidence of the findings and determinations of administrative agencies regulating the conduct of health facilities licensed under Section 1250 of the Health and Safety Code is inadmissible under this section.")
13 See same.
14 See same.
15 See same. ("(a) (1) Except as provided in subdivision (e) or (f), in a criminal action in which the defendant is accused of an offense involving domestic violence [including in some cases child abuse], evidence of the defendant's commission of other domestic violence is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352. . . . ....(d) As used in this section: (3) "Domestic violence" has the meaning set forth in Section 13700 of the Penal Code. Subject to a hearing conducted pursuant to Section 352, which shall include consideration of any corroboration and remoteness in time, "domestic violence" has the further meaning as set forth in Section 6211 of the Family Code, if the act occurred no more than five years before the charged offense.")
See also Family Code 6211 FC. (""Domestic violence" is abuse perpetrated against any of the following persons: (a) A spouse or former spouse. (b) A cohabitant or former cohabitant, as defined in Section 6209. (c) A person with whom the respondent is having or has had a dating or engagement relationship. (d) A person with whom the respondent has had a child, where the presumption applies that the male parent is the father of the child of the female parent under the Uniform Parentage Act (Part 3 (commencing with Section 7600) of Division 12). (e) A child of a party or a child who is the subject of an action under the Uniform Parentage Act, where the presumption applies that the male parent is the father of the child to be protected [this is why Penal Code 273d child abuse counts]. . . .")
16 See same. See also Family Code 6209 FC. ("Cohabitant" means a person who regularly resides in the household. "Former cohabitant" means a person who formerly regularly resided in the household.")
17 Evidence Code 1109 EC - Evidence of defendant's other acts of domestic violence [including Penal Code 273d PC child abuse]. ("(d) As used in this section: (3) "Domestic violence" has the meaning set forth in Section 13700 of the Penal Code. Subject to a hearing conducted pursuant to Section 352, which shall include consideration of any corroboration and remoteness in time, "domestic violence" has the further meaning as set forth in Section 6211 of the Family Code, if the act occurred no more than five years before the charged offense.")
18 See same.
19 People v. Dallas, (2008) 165 Cal.App.4th 940, 952 ("...because the purpose of [California] Evidence Code section 1109 is to admit propensity evidence, and because "[t]he propensity to commit violence, whether on a partner, or upon a child [child abuse], is the same," evidence of acts of either type of abuse should be admissible in a prosecution for the other.")
20 California Jury Instructions - Criminal ("CALJIC") 2.50.04 - Evidence of other child abuse offenses. ("Evidence has been introduced for the purpose of showing that the defendant committed an offense of child abuse, namely a violation of [California] Penal Code section 273d, on [an] [one or more] occasion[s] other than that charged in this case. If you find that the defendant committed a prior violation of [California] Penal Code section 273d, you may, but are not required to, infer that the defendant had a disposition to commit [another] offense[s] involving child abuse. If you find that the defendant had this disposition, you may, but are not required to, infer that [he] [she] was likely to commit and did commit the crime [or crimes] of which [he] [she] is accused. However, if you find by a preponderance of the evidence that the defendant committed [a] prior [an] offense[s] of child abuse, this finding is not sufficient by itself to prove beyond a reasonable doubt that [he] [she] committed the charged crime[s]. If you determine an inference properly can be drawn from this evidence, this inference is one item for you to consider, along with all other evidence, in determining whether the defendant has been proved guilty beyond a reasonable doubt of the charged crime.")
21 Penal Code 273d PC - Child abuse, endnote 1, above.
22 See same, Child abuse.
23 See same, Child abuse.
24 See same, Child abuse. ("(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 or term imposed under the provisions of subdivision (h) of Section 1170 served prior to a period of 10 years in which the defendant remained free of both the commission of an offense that results in a felony conviction and prison custody or custody in a county jail under the provisions of subdivision (h) of Section 1170.")
25 See same, Child abuse. ("(c) If a person is convicted of violating this section and probation is granted, the court shall require the following minimum conditions of probation: (1) A mandatory minimum period of probation of 36 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. 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. . . . (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.")
26 Penal Code 667.5(c) PC. ("(c) For the purpose of this section, "violent felony" shall mean any of the following:...(8) Any felony [including felony child abuse] 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 Penal Code 1192.7(c) PC. ("As used in this section [with respect to California child abuse law], 'serious felony' means...(8) any felony in which the defendant personally inflicts great bodily injury on any person, other than an accomplice . . . .")
27 Penal Code 667(e)(1) PC - Three strikes law. ("(1) If a defendant has one prior serious and/or violent felony conviction as defined in subdivision (d) [including felony child abuse resulting in serious bodily injury] 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.")
28 Penal Code 667(e)(2) PC - 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 one or more prior serious and/or violent felony convictions ) [including felony child abuse resulting in serious bodily injury] . . . (2) (A) Except as provided in subparagraph (C), if a defendant has two or more prior serious and/or violent 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 greatest of: (i) Three times the term otherwise provided as punishment for each current felony conviction subsequent to the two or more prior serious and/or violent felony convictions. (ii) Imprisonment in the state prison for 25 years. . . . (C) If a defendant has two or more prior serious and/or violent felony convictions ) [including felony child abuse resulting in serious bodily injury] as defined in subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7 that have been pled and proved, and the current offense is not a serious or violent felony as defined in subdivision (d), the defendant shall be sentenced pursuant to paragraph (1) of subdivision (e) unless the prosecution pleads and proves any of the following: . . .")
29 San Bernardino criminal defense lawyer Michael Scafiddi is a former police officer who now uses that inside knowledge to help defend clients accused of violating California domestic violence and child abuse laws. He practices criminal defense primarily in San Bernardino and Riverside Counties, and makes appearances at the Murrieta Southwest Justice Center and in Banning, Fontana, Joshua Tree, Barstow, and Victorville.
30 See California Department of Social Services, The California Child Abuse & Neglect Reporting Law: Issues & Answers for Mandated Reporters.
See also Penal Code 11165 PC et seq.
31 Penal Code 11166 PC. ("(c) c) Any mandated reporter who fails to report an incident of known or reasonably suspected child abuse or neglect as required by this section is guilty of a misdemeanor punishable by up to six months confinement in a county jail or by a fine of one thousand dollars ($1,000) or by both that imprisonment and fine.")
32 CALJIC 4.80 - Parent's Right to Discipline Child [Defense to child abuse under California Penal Code 273d]. ("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.")
33 See same. ("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.")
34 Penal Code 273d PC - Child abuse, endnote 1, above.
35 Penal Code 273a PC - Willful harm or injury to a child [Child endangerment] [may be charged along with or instead of Penal Code 273d PC child abuse]. ("(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.")
36 See same.
37 See same.
38 Penal Code 242 PC - Battery [lesser included offense of child abuse]; definition. ("A battery is any willful and unlawful use of force or violence upon the person of another.")
39 People v. Stewart, (1961) 188 Cal.App.2d 88, 90 ("There can be no doubt that the elements of battery were included in the charge of violation of [California Penal Code] section 273d [child abuse], as pleaded in the information. It would have been impossible for appellant to make an unlawful assault and inflict a corporal injury resulting in a traumatic condition upon his son without the unlawful use of force or violence upon his person.")
40 Penal Code 243 PC - Battery [lesser included offense of child abuse]; punishment. (" (a) A battery is punishable by a fine not exceeding two thousand dollars ($2,000), or by imprisonment in a county jail not exceeding six months, or by both that fine and imprisonment.")
41 Penal Code 273.5 PC [may be charged in connection with child abuse]. ("(a) Any person who willfully inflicts upon a person who is his or her spouse, former spouse, cohabitant, former cohabitant, or the mother or father of his or her child, corporal injury resulting in a traumatic condition is guilty of a felony, and upon conviction thereof shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not more than one year, or by a fine of up to six thousand dollars ($6,000) or by both that fine and imprisonment.")
See also Penal Code 243 PC. ("(e)(1) When a battery is committed against a spouse, a person with whom the defendant is cohabiting, a person who is the parent of the defendant's child, former spouse, fiance, or fiancee, or a person with whom the defendant currently has, or has previously had, a dating or engagement relationship, the battery is punishable by a fine not exceeding two thousand dollars ($2,000), or by imprisonment in a county jail for a period of not more than one year, or by both that fine and imprisonment.")
42 Penal Code 368 PC [may be charged in connection with child abuse].
43 Penal Code 270 PC - Child neglect [may be charged in connection with child abuse].