Penal Code 273a(a) PC – Child Endangerment – California Law

Penal Code 273a(a) PC defines child endangerment as wilfully exposing a child under the age of 18 to unjustifiable pain, suffering, or danger. In other words, endangerment is subjecting the child to an unreasonable risk of harm, even if he or she never suffers actual physical harm.

Examples of what could lead to criminal charges include:

• Leaving a dangerous weapon, such as a knife or a loaded firearm, where a child can easily reach it;
• Leaving a child with a babysitter who has a history of abusive behavior,
• Driving under the influence with a child in the car, or
• Failing to get medical treatment for a very sick child.

“Child endangerment” is sometimes referred to as “child abuse.” But it should not be confused with Penal Code 273d, California’s “child abuse” law.¹

What constitutes “child endangerment” in California?

Charges can be brought against anyone (not just parents). Usually, the adult is someone who has a minor (a child under 18) in his or her care.

Specifically, child endangering can be charged when an adult:

• Causes or permits a minor to suffer unjustifiable physical pain or mental suffering,
• Willfully causes or permits a minor to be injured, or
• Willfully causes or permits a minor to be placed in a dangerous situation.²

(But note that under California’s “child neglect” law, Penal Code 270 PC, a parent may legally seek “faith-based” healing for a child. However, if the child is very ill or at risk of dying, the parent must get actual medical help. A parent who does not may face a variety of “domestic violence” charges, including child endangerment).³

Penalties under 273a PC

Punishment under PC 273a depends on whether the risk to the child included death or “great bodily injury.”

If there was no possibility of either, the offense is a California misdemeanor crime. Penalties for misdemeanor child endangerment can include:

• Up to one (1) year in county jail, and/or
• A fine of up to $1,000.⁴

Punishment when the minor is at risk of death or great bodily harm

If there was a risk of death or great bodily harm, child endangerment becomes a California “wobbler” offense. A “wobbler” may be charged as either a misdemeanor or a felony, at the prosecutor’s discretion.

If charged as a felony, this section can include punishment of:

• Two (2), four (4), or six (6) years in California state prison, and/or
• A fine of up to $10,000.⁵

Probation for a child endangerment conviction

Judges will sometimes sentence a defendant to probation. Depending on the charges, it will be either:

• Misdemeanor probation (also known as “summary” or “informal” probation), or
• Felony probation (also known as “formal” probation).⁶

A defendant who is sentenced to probation will do little or no jail time. But the judge will impose certain conditions of probation after a PC 273a conviction.

These can include protective (restraining) orders, mandatory counseling, and, if appropriate, random drug testing.

Legal defenses to child endangerment charges

Many common legal defenses are available to fight child endangerment charges in California. These include violations of California’s “search and seizure” laws and police misconduct.

There are also legal defenses more specific to this offense. Such defenses include taking the position that:

• The so-called “endangerment” didn’t happen intentionally;
• The defendant was legally disciplining his or her child;
• The defendant was the victim of a false accusation;
• Someone other than the defendant was responsible for the child; or
• The defendant was not the person who caused the danger to the child.

To help you better understand the law, our California criminal defense lawyers discuss the following, below:

• 1. How does California law define child endangerment?
  • 1.1 The “elements of the crime” of child endangerment
  • 1.2. The legal definition of “willfully”
  • 1.3. Unjustifiable physical pain or mental suffering
  • 1.4. The legal meaning of “criminal negligence”
  • 1.5. Examples of criminal negligence
  • 1.6. The legal definition of “great bodily injury”
• 2. What are the penalties for a 273a PC violation?
  • 2.1. Misdemeanor penalties
  • 2.2. Misdemeanor probation
  • 2.3. Felony penalties
  • 2.4. Great bodily injury enhancement
  • 2.5. Manslaughter or murder penalties
  • 2.6. Child endangerment and California’s “three strikes” law
• 3. How does one fight the charges in court?
• 4. Are there other charges filed in connection with child endangerment?
  • 4.1.Penal Code 273d PC — child abuse
  • 4.2. Penal Code 270 PC – failure to provide care (child neglect)
  • 4.3. Penal Code 288 PC lewd acts with a minor
  • 4.4. Driving under the influence
  • 4.5. Charges involving the death of a child
  • 4.6. Furnishing dangerous fireworks to a minor
  • 4.7 Penal Code 193.8a -Relinquishing a vehicle to a minor

1. How does California law define child endangerment?

To convict someone under Penal Code 273a, a prosecutor must prove certain “elements of the crime.” Each element must be proved “beyond a reasonable doubt.”

1.1 The “elements of the crime” of child endangerment

The elements the prosecutor must prove are that:

1. The defendant did ONE of the following:

• Willfully inflicted unjustifiable physical pain or mental suffering on a child,
• Willfully caused or permitted a child to suffer unjustifiable physical pain or mental suffering,
• While having care or custody of a child, willfully caused or permitted the child’s person or health to be injured, or
• While having care or custody of a child, willfully caused or permitted the child to be placed in a situation where the child’s person or health was endangered;

AND

2. The defendant was criminally negligent when he/she caused or permitted the child to suffer and/or be injured or endangered;

AND

3. If the defendant was the minor’s parent, he/she was not reasonably disciplining the child. ⁷

Additional element in order to prove felony endangerment

There is one additional element the prosecutor must prove if the defendant is charged with Penal Code 273a as a “wobbler.”

In such a case the prosecutor must prove that the defendant acted under circumstances that were likely to produce “great bodily injury” or death.⁸

It is not necessary that the defendant’s actions ultimately caused such harm or death. It is only necessary that it was a likely outcome.⁹

We discuss the meaning of “great bodily injury” at length below.

But first, let’s take a closer look at some of the other legal terms to gain a better understanding of their meanings.

1.2. The legal definition of “willfully”

Under California law, an act is done “willfully” if it is done on purpose.¹⁰

This does not necessarily mean that the defendant intended to break the law or cause any harm. It simply means that the defendant purposely did an act that could have resulted in harm.

Example: Eva works as a waitress. She has a two-year old son from a prior relationship. She also has a new boyfriend, Hiram, who has just moved in with her.

But soon, Eva begins to worry about her son. When she leaves him with Hiram, accidents seem to happen. The boy has suffered burns, a broken arm and a black eye. Still, Eva has to work. So she leaves her son in Hiram’s care.

One day while Eva is gone, Hiram shakes the boy so hard the child dies. Hiram is convicted of Penal Code 273ab(a), assault causing the death of a child.¹¹

And Eva is convicted of child endangerment. Even though she didn’t intend to break the law or injure her son, she willfully allowed her violent boyfriend to take care of him.¹²

1.3. Unjustifiable physical pain or mental suffering

“Unjustifiable physical pain or mental suffering” means pain or suffering that either:

• Is not reasonably necessary, or
• Is excessive under the circumstances.¹³

1.4. The legal meaning of “criminal negligence”

Criminal negligence involves more than ordinary carelessness, inattention, or mistake in judgment. A person acts with criminal negligence when:

1. He or she acts in a reckless way that is a gross departure from the way an ordinarily careful person would act in the same situation;
2. The person’s acts amount to disregard for human life or indifference to the consequences of his or her acts; AND
3. A reasonable person would have known that acting in that way would naturally and probably result in harm to others.”¹⁴

In other words, behavior amounts to “criminal negligence” when it is so aggravated, gross, or reckless that it goes against common sense.¹⁵

The test is whether a “reasonable” person in a similar situation would have engaged in the same behavior.¹⁶

Example: Catherine has a hyperactive seven-year-old son, Joey. Joey often does not listen to Catherine’s instructions.

One day, Joey runs toward a busy street, ignoring Catherine’s cries for him to stop. Catherine catches him just as he is about to run into the street and tackles him. In doing so, she knocks him to the ground and causes him to bump his head badly.

Catherine did inflict physical pain on her son. But her actions were reasonably necessary to keep her son from experiencing worse injuries. So Catherine probably did not commit child endangerment.

1.5. Examples of criminal negligence

The following examples are based on actual California court cases. In the first two, the court ruled that the defendant was criminally negligent. In the second two cases, no criminal negligence was found.

Where criminal negligence was found

Example: Edward, a man in his thirties, convinces his 14-year-old neighbor, Jason, to play “Russian Roulette.” Edward loads the gun with one round, spins the cylinder, and hands the gun to Jason.

Jason pulls the trigger and the gun goes off, killing him. Even though Jason shot himself, Edward was criminally negligent for giving a child a loaded gun and convincing him to pull the trigger.¹⁷

Example: Brian runs a methamphetamine lab in his home. He keeps dangerous and highly flammable chemicals throughout the house. Some are in floor-level cabinets that do not lock.

Brian’s 6-year-old stepson lives with him part-time. Brian is criminally negligent for allowing a 6-year old to be in the presence of such chemicals.¹⁸

Where NO criminal negligence was found

If an act was the result of ordinary carelessness, inattention, or a mistake in judgment, it is not criminal negligence — regardless of the consequences.¹⁹

Here is an example from an actual court case:

Example: Isabel leaves her four small children (between the ages of 2 and 6) home alone while she goes to a bar. Hours later, a fire erupts. A neighbor is able to save three of the children, but the two-year-old is killed in the fire.

Isabel was grossly negligent. But it was not criminal negligence because a reasonable person would not necessarily have foreseen the harm that arose from her actions. Thus, she is not guilty of child endangerment.²⁰

1.6. The legal definition of “great bodily injury”

“Great bodily injury” is defined under California law simply as any significant or substantial physical injury. Minor, trivial, or even moderate injuries do not count as great bodily injury.²¹

The existence of “great bodily harm” is determined by the jury on a case-by-case basis.²² Because of this, overzealous prosecutors tend to allege it every chance they get.

But it is important to remember that the issue is NOT whether the child actually suffered an injury. The relevant factor is whether the child was placed in a situation where s/he was likely to suffer injury.²³

That said, if the child does suffer great bodily harm, the prosecutor is more likely to file felony charges.

2. How does one fight the charges in court?

The penalties, punishment, and sentencing can vary greatly. But they mostly depend on whether the defendant’s actions created a risk of “great bodily harm” or death to the child.²⁴

2.1. Misdemeanor penalties

If the defendant’s behavior did not create a risk of great bodily injury or death, the crime is a misdemeanor offense.²⁵

As a misdemeanor, PC 273a child endangerment can be punished by:

• Up to six (6) months in county jail, and/or
• A fine of up to one thousand dollars ($1,000).²⁶

2.2. Misdemeanor probation

The judge also has the option to sentence someone convicted of PC 273a to misdemeanor probation. This is also known as “informal” probation or “summary” probation.

Under California law, the minimum period of probation the judge can order for a child endangerment conviction is four (4) years.²⁷ Such probation may also entail:

• A protective (restraining) order protecting the alleged victim from further acts of violence. This order may include a “stay away” provision that prohibits the defendant from contact with the child. The stay away order may apply to the child’s residence even if it also the defendant’s home.
• Successful completion of a court-approved child abuser’s treatment counseling program lasting at least one (1) year.
• Additional conditions if the defendant was under the influence of a controlled substance and/or alcohol at the time of the offense. These can include:
  • An order to abstain from drug and alcohol use for the duration of probation, and
  • Possibly, random drug testing.²⁸

Can the conditions of probation be waived, terminated, or expunged?

The court may waive any of the above conditions if it finds that such a condition would not be in the “best interests of justice.”²⁹

The court may also grant early termination of probation if the defendant complies with all the terms and conditions of probation for the first year or two.³⁰

And finally, a defendant who receives probation may expunge a California criminal record. The defendant may do so once he or she successfully completes the probationary period.

But a judge can deny a petition for an expungement if:

• The petitioner committed a probation violation, or
• The petitioner failed to adhere to all the terms and conditions of probation.³¹

2.3. Felony penalties

Child endangerment becomes a “wobbler” offense if there was a risk of great bodily harm or death to the child. A prosecutor can choose to charge a “wobbler” as either a misdemeanor or a felony, depending on:

1. The exact circumstances of the allegations, and
2. The defendant’s criminal history (if any).

Consequences of a felony conviction can include:

• Two (2), four (4), or six (6) years in California state prison,³² and/or
• A fine of up to ten thousand dollars ($10,000).³³

Or the judge can sentence the defendant to a minimum of four years of formal (felony) probation. The conditions of such probation are the same as set forth in Section 2.2., above.³⁴

A defendant who is sentenced to felony probation may also expunge the conviction as set forth above.

2.4. Great bodily injury enhancement

In addition to the above felony penalties, the defendant may receive a “sentencing enhancement.” An enhancement may apply if the child is actually seriously harmed as a result of the defendant’s criminal negligence.

The applicable enhancement will result in an additional and consecutive term in the California state prison as follows:

• If the defendant actually and personally inflicted great bodily injury on the victim: an additional and consecutive three (3) to six (6) years, depending on the victim’s age and the nature of the injuries;³⁵ or
• If the child died as a result of the defendant’s criminal negligence: an additional and consecutive four (4) years in prison.³⁶

2.5. Manslaughter or murder penalties

In extreme cases, a prosecutor might choose to file more serious charges when a child dies as a result of endangerment. Such charges can include:

• Penal Code 192 (b) PC involuntary manslaughter,
• Penal Code 192 (a) PC voluntary manslaughter, or
• Penal Code 18 PC second-degree murder.

2.6. Child endangerment and California’s “three strikes” law

A felony child endangerment conviction can count as a “strike” under California’s “Three Strikes” law.  It will count as a strike if the child actually suffered great bodily injury.³⁷

Someone with a strike on his/her criminal record who is subsequently charged with any felony will be considered a “second striker.”  As such, the sentence for the later offense will be twice what it would otherwise be.³⁸

And if the defendant becomes a “third striker,” he/she will serve a mandatory minimum sentence of 25 years to life in California state prison.³⁹

3. Legal defenses to California child endangerment charges

Many common legal defenses can be used in Penal Code 273a cases. These include failure to comply with California’s search and seizure laws or any type of police misconduct.

But there are also certain defenses that uniquely apply to California child endangerment, abuse and neglect cases.

These include taking one or more of the following positions:

The act wasn’t willful or did not amount to criminal negligence

In order to secure a PC 273a conviction, the prosecutor must usually prove the defendant acted willfully and/or with criminal negligence. The prosecutor must prove this “beyond a reasonable doubt.”

There are many ways an experienced California criminal lawyer can establish enough reasonable doubt for a “not guilty” verdict (an “acquittal”).

For instance, perhaps the injury was the result of an accident or ordinary negligence. If so the defendant did not violate the statute.

Example: Kate is cooking dinner and watching her 3-year old daughter when the phone rings. Kates puts her knife down on the cutting room and walks out of the room briefly to get the phone. While she is gone, her daughter picks up the knife, cutting several of her fingers to the bone.

Although Kate was negligent, she was not criminally negligent. Criminal negligence requires more than mere inattentiveness. And a reasonable person might assume a three-year old would not pick a knife up from the counter in the short time it took to answer the phone.

The defendant was reasonably disciplining his/her child

Parents have the right to discipline their children in California through “reasonable” corporal punishment.⁴⁰ “Corporal punishment” means physical punishment or punishment inflicted on the body. Examples include:

• Spanking,
• Disciplining a child with a belt or paddle,
• Sending a child to bed without any supper,
• Confining a child to his or her room.

Sometimes an experienced California defense attorney can convince the prosecutor, judge, and/or jury that the defendant was just reasonably disciplining a child.

Example: Betty’s five-year old son throws a temper tantrum in the dressing room when she takes him shopping for school clothes. Betty grabs a belt she brought into the dressing room and smacks him across the back of his bare thighs with it.

The sales clerk sees it and calls the store’s security guard, who then calls the police. Betty is arrested and charged with PC 273a. Betty’s lawyer can argue that Betty is not guilty of child endangerment because under the circumstances she was reasonably disciplining her child.

False accusations

Many child endangerment cases start with a false accusation. Sometimes a child will make a false allegation as the result of manipulation by the other parent.

Perhaps the child is angry and wants to “get back” at a parent. This often occurs during a divorce or when a parent has a new partner.

Or a child’s caretaker might make a false accusation in order to cover up his/her own abuse.

Whatever the cause, the end result is the same. Law enforcement officers do not want to be responsible for ignoring possible harm to a child. So they arrest the person who is accused.

How we fight false allegations

When we have a client accused of Penal Code 273a child endangerment, we review all the evidence that may prove his or her innocence.

This includes interviewing everyone who may have witnessed the incident. We will also interview other people in the defendant’s life for evidence that he/she is a good parent or caretaker.

Depending on the allegations, we will also pull criminal records, school/employment records, etc. of other potentially responsible people.

We will also comb through the social media accounts of the child and others who may be involved.

In short, our skilled investigators and lawyers turn over every stone to find “exculpatory” evidence.

“Mistake of fact”

Sometimes accusations arise because a well-meaning person misinterprets a situation. This is known as a “mistake of fact” under California law.

This problem is made worse by California’s mandatory reporting law. ⁴¹ Under this law, professionals (such as doctors, teacher and clergy) are legally required to report suspected child endangerment to the authorities.

If they don’t, they can be charged with a misdemeanor. They may even serve time in jail.⁴² Thus they are under strong pressure to report even the slightest suspicion of child endangerment.

Example: Phil’s son, Jake, comes home from school with cuts and bruises on the side of his face. He tells Phil he fell off his bike. The next day one of the cuts looks as if it might be infected. So Phil takes Jake to the doctor.

The doctor isn’t sure about the bike story. He suspects that Jake’s injuries may have been caused by someone hitting him. So he calls social services. Eventually Phil’s lawyer finds a witness who can verify that Jake fell off his bike. But in the meantime, Phil is arrested and charged with child abuse and endangerment.

Someone else endangered the child

Overzealous police and prosecutors want to hold someone accountable when a child may be in danger. They often jump to conclusions about who is responsible.

To see how this can happen, let’s go back to our last example.

Example: Jake tells his father, Phil, that he cut and bruised his face when he fell off his bike. Phil takes him to the doctor, who suspects that Jakes injuries were caused by a fist. He calls the authorities and Phil is arrested.

After interviewing Jake’s teachers and friends, Phil’s lawyer discovers that Jake is being bullied at school. He was hit by a group of older boys. Phil’s lawyer shows this evidence to the prosecutor and the charges against Phil are dropped.

4. Are there other charges filed in connection with child endangerment?

Many other “domestic violence” crimes have similar elements to Penal Code 273a. These related offenses are sometimes charged instead of, or in addition to, child endangerment.

Below we discuss briefly some of the most common offenses charged along with or instead of child endangerment.

4.1.Penal Code 273d PC — child abuse

Penal Code 273d PC, California’s child abuse law, makes it a crime to direct physical abuse at a minor. This crime does not require great bodily injury. But there must be some kind of injury (no matter how slight) to trigger this charge.⁴³

California child abuse is a “wobbler.”

As a misdemeanor, PC 273d can be punished by:

• Up to one (1) year in county jail, and/or
• A fine of up to $6,000.⁴⁴

Penalties for felony child abuse can include:

• Two (2), four (4) or six (6) years in state prison, and/or
• A fine of up to $6,000.⁴⁵

4.2. Penal Code 270 PC – failure to provide care (child neglect)

A less serious offense is California Penal Code 270 PC failure to provide care (child neglect). PC 270 can be charged when a parent fails to provide physical necessities to his or her child.

For purposes of PC 270, “necessities” means food, shelter, clothing, and medical care.⁴⁶ But a parent is not guilty of this crime if – through no fault of his/her own – he/she cannot afford such necessities.⁴⁷

Penal Code 270 is charged as a misdemeanor in most cases. It can be punished by:

• Up to one (1) year in jail, and/or
• A fine of $2,000.⁴⁸

With subsequent convictions, PC 270 may be charged as a wobbler. In extreme cases, penalties can include a year and a day in California state prison.⁴⁹

4.3. Penal Code 288 PC – lewd acts with a minor

California Penal Code 288 PC, lewd acts with a minor, punishes improper touching of a minor child. It is charged when someone touches a child for sexual purposes and the child:

• Is under the age of 14,⁵⁰ or
• Is 14 or 15 years old (if the defendant is 10 or more years older than the child).⁵¹

Penalties for lewd acts with a minor depend on various factors, including:

• The age of the victim,
• The difference in age between the defendant and the victim, and
• Whether the defendant was the child’s caretaker.⁵²

But it can often include many years in state prison as well as a fine of up to $10,000.⁵³

4.4. Driving under the influence

California’s DUI laws punish driving under the influence of drugs and/or alcohol.

Child endangerment is often charged along with DUI. This occurs when someone is arrested for driving under the influence of drugs and/or alcohol with a child in the car.

Or the prosecutor might just charge DUI with a sentencing enhancement.⁵⁴

The enhancement adds several days to a DUI jail sentence, depending on whether the defendant has prior DUI convictions.

California law also requires drivers with young children to use child restraint systems (Vehicle Code 27360 VC).

For more information, please see our page on “California DUI with a child under 14 in the car” (Vehicle Code 23572 VC).

4.5. Charges involving the death of a child

In the unfortunate case in which a child died, a prosecutor might charge one or more the following in addition to, or instead of, child endangerment:

Penal Code 273ab – child abuse resulting in death to a child under 8

PC 273ab can be charged when:

1. The defendant had care and custody of a child under the age of eight (8),
2. The defendant assaulted that child by means likely to result in great bodily injury, AND
3. The child died or became paralyzed or comatose as a result of such injuries.⁵⁵

Depending on the injury, PC 273ab can be punished by twenty-five (25) years to life in the state prison.⁵⁶

Penal Code 187 PC – murder

Killing a child with “malice” (intent to kill) can be charged as Penal Code 187, murder.⁵⁷

It is “second-degree murder” when the killing is willful but is not deliberate and premeditated. If the killing is deliberate and premeditated, it is “first-degree murder.”⁵⁸

Murder charges typically result from child endangerment in one of two ways:

• As a result of California’s felony-murder rule, or
• Because there was “implied malice.”⁵⁹

“Felony-murder” assumes malice exists when someone kills another person while committing a felony. This can include felony charges.⁶⁰

Implied malice exists when the defendant engages in highly reckless behavior that the person knows endangers another person’s life. This is a higher degree of culpability than criminal negligence.⁶¹

Both of these situations typically result in second-degree murder charges. Penalties for second-degree murder in California can include 15 years to life in state prison.⁶²

Penal Code 192(b) involuntary manslaughter

When criminal negligence results in death, it can be charged as Penal Code 192(b) PC, involuntary manslaughter. The main difference between manslaughter and murder is that manslaughter does not involve “malice.”⁶³

The most common type of manslaughter charged in child endangerment cases is “involuntary manslaughter.” It is charged when the death of a minor results from either:

• The commission an unlawful act that doesn’t rise to the level of a felony, or
• The defendant engaging in a lawful but dangerous act without due caution.⁶⁴

Example: Laurie is a devout Christian Scientist. When her four-year-old daughter gets sick, Laurie takes her to a Christian Science practitioner rather than a doctor. This is perfectly legal.

But unknown to Laurie, her daughter has meningitis. The child continues to get sicker. Still Laurie does not take her to a doctor. At this point, Laurie could be charged with child endangerment.

Eventually Laurie’s daughter dies from the illness. The prosecutor charges her with this section AND involuntary manslaughter. The prosecutor takes the position that not taking the girl to a doctor was, under the circumstances, dangerous and done without due caution.⁶⁵

4.6. Furnishing dangerous fireworks to a minor

One very specific offense that is sometimes charged along with child endangerment is California Health & Safety Code 12702 PC.

This law makes it a crime to sell, give or deliver “dangerous fireworks”⁶⁶ (such as rockets and large sparklers) to a minor under eighteen (18).

The penalties for this misdemeanor offense can include:

• Up to one (1) year in county jail, and/or
• A fine of $500 to $1,000.⁶⁷

4.7 Penal Code 193.8a -Relinquishing a vehicle to a minor

Penal Code 193.8a makes it a crime to furnish or relinquish a motor vehicle to a minor who is not safe or legal to drive. This includes a minor who is intoxicated, not properly licensed or who has a history of unsafe or reckless driving. PC 193.8 can be charged as a misdemeanor or an infraction. As a misdemeanor, it carries a penalty of up to 6 months in county jail.

Call us for help…

If you have been charged with child endangerment, abuse or neglect, we invite you to call our criminal defense attorneys for a free consultation and legal help.

Contact us to discuss your case in confidence with an experienced California child abuse lawyer.

We have local law 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.

We also have Las Vegas and Reno offices with attorneys who regularly fight Nevada’s child abuse laws.

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