Penal Code 273g PC - Lewdness or Intoxication in the Presence of a Child

California Penal Code 273(g) PC is the California statute on persons acting in a lewd manner and/or being intoxicated in the presence of a child. The statute says it is a crime in California if:

  1. A person is in care of a child, and
  2. The person either acts in a lewd (or obscene) manner or is drunk.

In the legal case of People v. Perreault, the court found that PC 273(g), as it relates to a person being intoxicated, is unconstitutional. Because the section has not been amended or changed since this ruling, it is questionable if being drunk while caring for a child is still a crime.

Examples of illegal acts under this code section include:

  • an adult nanny sells narcotics, a crime under HS 11352, while caring for an eight-year old.
  • a husband and wife watch pornographic videos in front of their children.
  • a sitter has her boyfriend over while watching a child and the two have sexual intercourse in the child's presence.

Luckily, there are several legal defenses that a person can raise if accused of acting lewd or being intoxicated in the presence of a child. These include showing that:

  • Penal Code 273(g) is unconstitutional
  • the defendant was not in the care of a child; and/or,
  • the defendant's acts were not “lewd.”

Penalties

A violation of PC 273(g) 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 highlight the following in this article:

adult holding bottle of alcohol in front of child
California Penal Code 273(g) PC is the California statute on persons acting in a lewd manner and/or being intoxicated in the presence of a child.

1. What is the legal definition of lewdness or intoxication in the presence of a child?

California Penal Code 273(g) PC, says that it is a crime if a person does the following:

  1. he has the care or custody of a child, and either
  2. acts in any “degrading, lewd, immoral or vicious” manner, or
  3. is “habitually drunk.”1

Whether or not a person acts in a “degrading, lewd, immoral or vicious” way is a question of fact. This means a judge or jury will make the decision on whether certain behavior is unlawful after considering all of the details in a case.

Further, a California court has ruled that PC 273(g), as it relates to a person being “habitually drunk,” is unconstitutional.2 The court found it to be unconstitutional because the phrase “habitually drunk” is vague, uncertain, and ambiguous.3

Penal Code 273(g) has not been amended or changed since this court ruling. This means there is some uncertainty as to whether the intoxication portion is still a valid law.

2. What are the legal defenses to accusations under Penal Code 273(g)?

A person accused under PC 273(g) 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 273(g) accusations are:

  1. unconstitutional;
  2. not in care or custody; and/or,
  3. conduct not “lewd.”

2.1. Unconstitutional

Please recall that a California court has ruled that the phrase “habitually drunk” is unconstitutionally vague. This means if a defendant is found to be intoxicated in the presence of a child, it is a solid defense for him to state that he is not guilty because the law itself is against the U.S. Constitution.

2.2. Not in care or custody

Even if an accused acted in a lewd way in front of a child, he is still only guilty under PC 273(g) if he was caring for that child (or in charge of him). Therefore, it is okay for a defendant to assert the following defense:

  • although he may have engaged in lewd behavior,
  • he is still not guilty because he was unaware of a child or not taking care of the child.

2.3. Conduct was not “lewd”

Please recall that a judge or jury will determine if certain actions are “degrading, lewd, immoral or vicious” based upon all of the facts in a case. Therefore, an accused can try to defend against a PC 273(g) charge by highlighting those facts that disprove that his conduct was “lewd,” or otherwise unlawful.

man behind bars
Being found guilty of lewdness or intoxication in the presence of a child can result in a fine and/or imprisonment

3. Penalties, Punishment, and Sentencing

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 $1,000.4

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.

Also note that if a person is guilty under Penal Code 273(g), authorities will likely contact the Department of Children and Family Services for the county in which the party resides. The result could be that a parent or guardian loses custody of a child.

4. Related Offenses

There are three crimes related to lewdness or intoxication in the presence of a child. These are:

  1. contributing to the delinquency of a minor – PC 272;
  2. child endangerment – PC 273(a); and,
  3. public intoxication – PC 647(f).

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
adult in front of child holding bottle of alcohol
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

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) PC.

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:

4.3. Public Intoxication – PC 647(f)

Penal Code 647(f) PC is known as California's "drunk in public" (or "public intoxication") law.

A person violates PC 647(f) if he is so drunk that he:

  1. is unable to exercise care for his safety or the safety of others, OR
  2. interferes with, obstructs, or prevents others from using streets, sidewalks, or other "public ways."11

Drunk in public is a misdemeanor in California.12 If convicted, a defendant may face the following:

  • up to six months in county jail, and/or
  • a fine of up to $1,000.13

Were you accused of acting lewd or being intoxicated in the presence of a minor while in California? Call us for help…

california child abuse defense attorneys
Call us for help at (855) LAW-FIRM

If you or someone you know has been accused of a crime under California Penal Code 273(g), we invite you to contact us for a free consultation. We can be reached 24/7 at 855-LAWFIRM.


Legal References:

  1. California Penal Code 273(g) PC. This code section states: “Any person who in the presence of any child indulges in any degrading, lewd, immoral or vicious habits or practices, or who is habitually drunk in the presence of any child in his care, custody or control, is guilty of a misdemeanor.”

  2. People v. Perreault (1960), 182 Cal. App. 2d Supp. 843.

  3. See same.

  4. California Penal Code 19 PC.

  5. California Penal Code 272(a) PC.

  6. See same.

  7. See same.

  8. California Penal Code 273(a) PC.

  9. California Penal Code 273(a)(b) PC.

  10. California Penal Code 273(a)(a) PC.

  11. California Penal Code 647(f) PC.

  12. See same.

  13. California Penal Code 19 PC.

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