California Penal Code 653 PC – Tattooing a Minor

California Penal Code 653 PC is the California statute that makes a crime for a person to tattoo, or to offer to tattoo, a person under the age of 18 years. A conviction is a misdemeanor punishable by up to 6 months in jail and fines of up to $1000.00.

The language of the statute reads that:

653. Every person who tattoos or offers to tattoo a person under the age of 18 years is guilty of a misdemeanor. As used in this section, to “tattoo” means to insert pigment under the surface of the skin of a human being, by pricking with a needle or otherwise, so as to produce an indelible mark or figure visible through the skin. This section is not intended to apply to any act of a licensed practitioner of the healing arts performed in the course of his practice.

Examples

• a tattoo artist agrees to “ink” the arm of a 16-year-old boy with a tattoo of the flag.
• a mom offers to tattoo her 17-year old daughter.
• after selling a 17-year-old boy heroin (a violation of Health and Safety Code 11352), the dealer offers to tattoo the boy with a needle in his pocket.

Luckily, there are several legal defenses that a person can raise if accused of a crime under PC 653. These include showing that an accused:

• did not “tattoo” a minor;
• was a licensed practitioner of the “healing arts;” and/or,
• was arrested without probable cause.

Penalties

A violation of California Penal Code 653 is charged as a misdemeanor (as opposed to a California felony or an infraction). The crime is punishable by:

• imprisonment in the county jail for not more than six months; and/or,
• a maximum fine of $1,000.

Our California criminal defense attorneys will explain the following in this article:

• 1. What is the legal definition of tattooing or offering to tattoo a minor?
• 2. What are the legal defenses to accusations under Penal Code 653 PC?
  • 2.1. Did not “tattoo”
  • 2.2. Licensed practitioner of the healing arts
  • 2.3. No probable cause
• 3. Penalties, punishment, and sentencing
• 4. Related offenses
  • 4.1. Contributing to the delinquency of a minor – PC 272
  • 4.2. Child endangerment – PC 273(a)
  • 4.3. Lewdness or intoxication in the presence of a child – PC 273(g)

1. What is the legal definition of tattooing or offering to tattoo a minor?

California Penal Code 653 PC says that it is a crime if a person either tattoos or offers to tattoo a person under the age of 18 years.¹

Under PC 653, “to tattoo” means:

to insert pigment under the surface of the skin of a human being, by pricking with a needle or otherwise, so as to produce an indelible mark or figure visible through the skin.²

An exception under this code section applies to licensed practitioners of the “healing arts.”³ This means these professionals are not guilty of tattooing a minor if they prick a minor’s skin with a needle in the course of their practice.

Some examples of professionals employed in the “healing arts” include:

• occupational therapists,
• massage therapists,
• chiropractors,
• medical assistants, and
• acupuncturists.

2. What are the legal defenses to accusations under Penal Code 653?

A person accused under PC 653 can challenge the accusation by raising a legal defense. A good defense can often get a charge reduced or even dismissed. Please note, though, that it is critical for an accused to hire an attorney to get the most effective defense.

Three common defenses to PC 653 accusations are:

1. did not “tattoo;”
2. licensed practitioner of the healing arts; and/or,
3. no probable cause.

2.1. Did not tattoo

Recall that Penal Code 653 provides a very specific definition of the phrase “to tattoo.” A valid defense, therefore, is for a defendant to show that his actions did not fall within this definition. For example, a person that places a temporary tattoo on a child is not guilty of a crime because he did not prick a needle into the child’s skin.

2.2. Licensed practitioner of the healing arts

Also recall that there is an exception under PC 653 for licensed practitioners of the healing arts. If these professionals “tattoo” a minor in the course of their practice (e.g., a medical assistant drawing blood from a minor), then they are not guilty of a crime. Penal Code 653 specifically frees them from criminal liability.

2.3. No probable cause

The Fourth Amendment to the U.S. Constitution says that police must have probable cause before they can detain or arrest a suspect of a crime.

If a person was stopped or arrested for violating PC 653, and there was no probable cause, then any evidence obtained following the improper stop/arrest could get excluded from the case. This exclusion could result in the dismissal or reduction in charges.

“Probable cause” essentially means that there is a reasonable belief that someone committed a crime (based on all of the circumstances).

3. Penalties, Punishment, and Sentencing

If a party is guilty of tattooing a minor, he is charged with a misdemeanor. The offense is punishable by:

• imprisonment in the county jail for not more than six months; and/or,
• a maximum fine of $1,000.⁴

Please note that in lieu of jail time a judge may order a defendant to misdemeanor probation. This is also called “summary” or “informal” probation.

4. Related Offenses

There are three crimes related to the tattooing of a minor. These are:

1. contributing to the delinquency of a minor – PC 272;
2. child endangerment – PC 273(a); and,
3. lewdness or intoxication in the presence of a child – PC 273(g)

4.1. Contributing to the delinquency of a minor – PC 272

Contributing to the delinquency of a minor is a crime per California Penal Code 272 PC.

The offense occurs when someone acts, or fails to act, and as a result a minor becomes:

• a dependent of the juvenile court system;
• a juvenile delinquent; or
• a habitual truant.⁵

A violation of Penal Code 272 is a misdemeanor.⁶

The possible penalties include

• up to one year in county jail, and/or
• a fine of up to $2,500.⁷

4.2. Child endangerment – PC 273(a)

Penal Code 273(a) PC is California’s criminal “child endangerment” law. It punishes someone who willfully exposes a child to pain, suffering, or danger.

Specifically, child endangerment, under Penal Code 273(a), 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.⁸

Please note that child endangerment is different than the crime of child abuse, under California Penal Code 273(d).

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

If there was no possibility of either, Penal Code 273(a) is a California misdemeanor. And, the offense is punishable by:

• up to one year in county jail, and/or
• a fine of up to $1,000.⁹

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, in the prosecutor’s discretion.

If charged as a felony, child endangerment can include punishment of:

• two, four, or six years in the California state prison, and/or
• a fine of up to $10,000.¹⁰

4.3. Lewdness or intoxication in the presence of a child – PC 273(g)

California Penal Code 273(g) PC makes it a crime for a person to act in a lewd manner, or to be intoxicated, in the presence of a minor.

A prosecutor must prove three elements in order to successfully convict a person under PC 273(g). These are that the defendant:

1. had the care or custody of a child, and either
2. acted in any “degrading, lewd, immoral or vicious” manner, or
3. was “habitually drunk.”¹¹

A California court has ruled that PC 273(g), as it relates to a person being “habitually drunk,” is unconstitutional.¹² Further, PC 273(g) has not been amended or changed since this court ruling. This means there is some uncertainty as to whether the intoxication portion of the statute is still a valid law.

If a party is guilty of lewdness or intoxication in the presence of a child, he is charged with a misdemeanor. And, the offense is punishable by:

• imprisonment in the county jail for not more than six months; and/or,
• a maximum fine of $1,000.¹³

For additional help…

If you or someone you know has been accused of a crime under California Penal Code 653, we invite you to contact us for a free consultation. We can be reached 24/7.

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