Penal Code 273a is California's criminal “child endangerment” law. It punishes someone who willfully exposes a child to pain, suffering, or danger.
Confusingly, “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
That law punishes someone who actually physically harms or abuses a child. But under Penal Code 273a, it is the possibility of serious danger that is being punished.
So someone can be charged under PC273a even if the child does not actually suffer an injury. This is what distinguishes Penal Code 273a child endangerment from Penal Code 273d child abuse.
And because no actual injury is required under Penal Code 273a , it is all too frequently charged against innocent people.
What constitutes “child endangerment” in California?
Penal Code 273a can be charged 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 endangerment 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
Examples of child endangerment under PC 273a
Examples of behavior that can lead to child endangerment charges in California include:
- Leaving a dangerous weapon, such as a knife or a loaded firearm, where a child can easily reach it;
- Leaving a minor with a babysitter who has a history of abusive behavior, or
- Failing to get medical treatment for a very sick child.
(But note that under California's “child neglect” law, Penal Code 270, 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 Penal Code 273a
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, Penal Code 273a 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, in the prosecutor's discretion.
If charged as a felony, child endangerment 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 for a child endangerment conviction. 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
There are also legal defenses more specific to endangerment charges. 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 defendant was responsible for the child; or
- The defendant was not the person who caused the endangerment.
To help you better understand the California crime of “child endangerment,” our California criminal defense lawyers discuss the following, below:
- 1. Legal definition of child endangerment in California
- 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. Penalties for Penal Code 273a PC child endangerment
- 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. Legal defenses to California child endangerment charges
- 4. Related offenses to Penal Code 273a 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.”
The elements the prosecutor must prove are that:
- 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;
- The defendant was criminally negligent when he/she caused or permitted the child to suffer and/or be injured or endangered;
- 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 in Penal Code 273a to gain a better understanding of their meanings.
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
"Unjustifiable physical pain or mental suffering" means pain or suffering that either:
- Is not reasonably necessary, or
- Is excessive under the circumstances.13
Criminal negligence involves more than ordinary carelessness, inattention, or mistake in judgment. A person acts with criminal negligence when:
- 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;
- The person's acts amount to disregard for human life or indifference to the consequences of his or her acts; AND
- 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.
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
“Great bodily injury" is defined under California law simply as any significant or substantial 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.
The penalties, punishment, and sentencing for Penal Code 273a child endangerment 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
If the defendant's behavior did not create a risk of great bodily injury or death, PC 273a 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
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
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:
- The exact circumstances of the allegations, and
- The defendant's criminal history (if any).
Consequences of a felony child endangerment 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.
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
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), involuntary manslaughter,
- Penal Code 192 (a), voluntary manslaughter, or
- Penal Code 187, second-degree murder.
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
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 PC 273a.
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:
- 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.
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. The police 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.
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 PC 273a.
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 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
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
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 child endangerment sentencing enhancement.54
The enhancement adds several days to a DUI jail sentence, depending on whether the defendant has prior DUI convictions.
For more information, please see our page on “California DUI with a child under 14 in the car” (Vehicle Code 23572 VC).
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:
- The defendant had care and custody of a child under the age of eight (8),
- The defendant assaulted that child by means likely to result in great bodily injury, AND
- 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:
“Felony-murder” assumes malice exists when someone kills another person while committing a felony. This can include felony child endangerment 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 child endangerment 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
One very specific offense that is sometimes charged along with child endangerment is California Health .
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
Charged with “child endangerment” in California? Call us for help…
If you have been charged with child endangerment, abuse or neglect, we invite you to call us for a free consultation.
Call us at 855-LAWFIRM to discuss your case in confidence with an experienced California child abuse lawyer.
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.
We also have Las Vegas and Reno offices with attorneys who regularly fight Nevada's child abuse laws.
¿Habla español? Visite nuestro sitio Web en español sobre el delito de abuso y negligencia un menores de California.
- See California Penal Code 273d(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.”
- California Penal Code 273a: “(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…”
- Penal Code 270 PC. See also Walker v. Superior Court (1988) 253 Cal. Rptr. 1, 47 Cal. 3d 112, 763 P.2d 852.
- Penal Code 273a(b), endnote 2.
- Penal Code 273a(a), endnote 2.
- Penal Code 1203 PC.
- Penal Code 273a(b) PC. See also California Criminal Jury Instructions (CALCRIM) 823. Child Abuse.
- Penal Code 273a(a); CALCRIM 823.
- Penal Code 273a(b). See also People v. Jaramillo (1979) 98 Cal.App.3d 830 (“ 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.")
- Penal Code 7 PC, subsection 1.
- Penal Code 273ab(a): “Any person, having the care or custody of a child who is under eight years of age, who 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 Section 187 [second-degree murder] or Section 189 [first-degree murder].”
- Facts based on People v. Valdez (2002) 27 Cal.4th 778.
- See CALCRIM 821, Child Endangerment Likely to Produce Great Bodily Harm or Death: "[Unjustifiable physical pain or mental suffering is pain or suffering that is not reasonably necessary or is excessive under the circumstances.]"
- "CALCRIM 821: 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."
- People v. Valdez, endnote **. (“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.”). See also People v. Penny (**) 44 Cal. 2d 861.
- Based on People v. Hansen (1997) 59 Cal.App.4th 473.
- Based on People v. Toney (1999) 76 Cal.App.4th 618.
- People v. Odom (1991) 226 Cal.App.3d 1028. ("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 [in order for child endangerment to have occurred].")
See also People v. Peabody (1975) 48 Cal.App.3d 43 (“The conduct must be aggravated or reckless; that is, it must be such a departure from what would be the conduct of an ordinarily prudent person under the same circumstances as to be incompatible with a proper regard for human life. The conduct must show an indifference to the consequences, and this has been said to require knowledge, actual or imputed, that the act tends to endanger another's life.
See also People v. Rodriguez (1961) 186 Cal.App.2d 433 (“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.")
- Based on People v. Rodriguez, endnote **.
- Penal Code 12022.7(f). See also California Jury Instructions - Criminal ("CALJIC") 17.20 - Infliction of great bodily injury.
- People v. Escobar (1992) 3 Cal.4th 740, 750. ("Whether the harm resulting to the victim ... constitutes great bodily injury is a question of fact for the jury.")
- People v. Jaramillo (1979) 98 Cal.App.3d 830. (“ 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.")
- Penal Code 273a PC.
- Penal Code 273a(b) PC.
- Same. See also Penal Code 19 PC: (“Except in cases where a different punishment is prescribed by any law of this state, every offense declared to be a misdemeanor is punishable by imprisonment in the county jail not exceeding six months, or by fine not exceeding one thousand dollars ($1,000), or by both.")
- Penal Code 273a(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 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.”
- Penal Code 273a(c)(5), endnote 7.
- Penal Code 1203.3 PC.
- Penal Code 1203.4 PC.
- Penal Code 273a(a) PC.
- Penal Code 672 PC - 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.")
- Penal Code 273a(c).
- Penal Code 12022.7 PC - 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.
(c) Any person who personally inflicts great bodily injury on a person who is 70 years of age or older, 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 five years.
(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.
(g) This section shall not apply to murder or manslaughter or a violation of Section 451 or 452. Subdivisions (a), (b), (c), and (d) shall not apply if infliction of great bodily injury is an element of the offense.
(h) The court shall impose the additional terms of imprisonment under either subdivision (a), (b), (c), or (d), but may not impose more than one of those terms for the same offense.”
- Penal Code 12022.95 PC -- Willful harm to a child resulting in death: “Any person convicted of a violation of Section 273a, 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 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.”
- Penal Code 667.5(c) PC.
- Penal Code 667(e)(1) PC.
- Penal Code 667(e)(2) PC.
- People 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...[W]hether the corporal punishment falls within the parameters of a parent's right to discipline 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.")
See also 80 Ops.Cal.Atty.Gen. 203 (1997); CALJIC 4.80.
- Penal Code 11165 PC and subsequent sections.
- See California Department of Social Services, “The California Child Abuse & Neglect Reporting Law: Issues & Answers for Mandated Reporters".
- Penal Code 273d(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.”
- Penal Code 270 PC.
- Same. See also People v. Caseri (1933) 18 P.2d 389.
- Penal Code 270 PC.
- Penal Code 288 (a).
- Penal Code 288(c).
- See Penal Code 288 (a) – (c).
- Same. See also Penal Code 288 (e).
- California Vehicle Code 23572 VC. This code sections adds additional punishment to a DUI sentence when a child under 14 is in the vehicle at the time of the offense. The defendant can't be punished under both VC 23572 and Penal Code 273 PC. He/she can only be punished for one or the other.
- Penal Code 273ab: “(a) Any person, having the care or custody of a child who is under eight years of age, who 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 Section 187 or Section 189.
(b) Any person, having the care or custody of a child who is under eight years of age, who assaults the child by means of force that to a reasonable person would be likely to produce great bodily injury, resulting in the child becoming comatose due to brain injury or suffering paralysis of a permanent nature, shall be punished by imprisonment in the state prison for life with the possibility of parole. 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.
- Penal Code 187(a): “Murder is the unlawful killing of a human being, or a fetus, with malice aforethought."
- Penal Code 189 PC.
- Penal Code 188 PC – 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."
- People v. James, (1998) 62 Cal.App.4th 244.
- Same. ("[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 [of child endangerment] endangers the life of another and ... acts with a conscious disregard for life.")
- Penal Code 190 PC.
- Penal Code 192 PC: “Manslaughter is the unlawful killing of a human being without malice. It is of three kinds:
(a) Voluntary—upon a sudden quarrel or heat of passion.
(b) Involuntary—in the commission of an unlawful act, not amounting to a felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection. This subdivision shall not apply to acts committed in the driving of a vehicle.
(c) Vehicular— …”
- Facts based on Walker v. Superior Court (1988) 47 Cal.3d 112.
- “Dangerous” fireworks are defined in California Health and Safety Code 12505 HS.
- Health & Safety Code 12702 HS.