Child endangerment in California, is a “wobbler” offense, which means it can be charged as either a felony or a misdemeanor. Nonetheless, it is taken very seriously and something that will stay on your record for the rest of your life. Therefore, it is highly recommended you retain an experienced and highly qualified criminal defense attorney who can fight on your behalf.
Definition of Child Endangerment
California’s child endangerment law is defined under Penal Code section 273a. Under PC 273a, the statute makes it illegal to:
- Willfully cause or permit a child to suffer, inflict unjustifiable physical pain or mental suffering;
- Willfully causes or permits person or health of child to be injured; or
- Willfully causes or permits child to be placed in situation where his/her health is endangered.
What does it mean to violate PC 273a (Child Endangerment)?
An individual is guilty of violating this law if they:
- Did one of the following:
- (a) Inflicted Pain: willfully inflicted unjustifiable physical pain or mental suffering on a child;
- (b) Caused or Permitted to Suffer Pain: willfully caused or permitted a child to suffer unjustifiable physical pain or mental suffering;
- (c) While having custody, caused or permitted to suffer injury: while having care or custody of a child, willfully caused or permitted the child’s person or health to be injured.
- (d) While having custody, caused or permitted to be placed in danger: 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;
- Caused or permitted the child to suffer, be injured, or be endangered under circumstances or conditions likely to produce great bodily harm OR death;
- This element applies only if 1(b), 1(c), or 1(d) applies: were criminally negligent when he or she caused or permitted the child to suffer, be injured, or be endangered;
- A person acts criminally negligent 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.
- A person acts criminally negligent when:
- This element applies when parental right to discipline applies: did not act reasonably disciplining a child.
Definitions:
- Willfully means the act was done willingly or on purpose.
- Likely to produce great bodily harm or death means probability of great bodily harm or death is high.
- Great bodily harm means significant or substantial physical injury. An injury greater than minor or moderate harm.
- A child is any person under 18 years old.
- Under the law, a person turns one year older at the first minute of birth.
- For example, Junior was born January 1, 2000 at 3:30 p.m. Junior turns 18 on January 1, 2018 at 3:30 p.m.
- Unjustifiable physical pain or mental suffering is pain or suffering not reasonably necessary or excessive under the circumstances.
- Care or custody encompasses not only familial relationships but a willingness to assume duties equal to a caregiver.
- Under the law, a person turns one year older at the first minute of birth.
Examples:
- Leaving a loaded gun in an unlocked drawer that the child has access to.
- Leaving a child in the custody of a nanny, who has a history of violently beating children.
- Taking a child to a known meth lab.
- Gifting a child with an assault rifle and a six-pack of beer.
- Daring a child to run across a busy freeway for a new toy.
Side Note re: Prenatal Conduct
Under the law, PC 273a DOES NOT apply to prenatal conduct endangering an unborn child.
Example:
Danny, who was extremely upset at his pregnant wife, Ella, shoved her into a nightstand. Ella, concerned for her unborn child, went to the doctor’s and discovered that the baby will be born with a physical defect, which was a result of Danny’s shove. Ella notifies police and Danny is arrested. However, because Danny’s shove occurred prenatally, the prosecution cannot charge Danny with PC 273a. Nonetheless, Danny could be charged with spousal battery for his conduct toward Ella.
Similar/Related Offenses
California’s Penal Code Section 273d Corporate Punishment or Injury of Child
This law makes it illegal to willfully inflict any cruel or inhumane corporal punishment or injury resulting in a traumatic condition on a child.
California’s Penal Code Section 270 Failure to Provide Care (Child Neglect)
This law makes it illegal for a parent of a minor child to willfully omit, without lawful excuse, necessary clothing, food, shelter, medical attendance, or other remedial care for that minor child.
California’s Penal Code Section 288 Lewd or Lascivious Acts
This law makes it illegal for any person to willfully commit any lewd or lascivious act upon the body/body part of a child who is under 14 years old with the intent of arousing, appealing to, or gratifying the lusts, passions, or sexual desires of that person or the child.
For more information, please see our article on lewd or lascivious acts with a minor.
California’s Vehicle Code Section 23572 Driving Under the Influence and Minor Passenger Under 14 Years of Age
VC 23572 adds additional penalties if a person is convicted of a violation of VC 23152 (Driving Under the Influence) and a minor under 14 years of age was a passenger in the vehicle.
For more information, please see our article on DUI/DWI.
California’s Penal Code Section 273ab Assault Resulting in Death, Comatose State, or Paralysis of Child Under 8
This law makes it illegal for any person, having the care or custody of a child under 8 years old, to assault 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.
California’s Penal Code Section 187 Murder
PC 187 makes it illegal to kill a human being with malice aforethought (murder). First degree murder is when the killing occurs during the commission of an enumerated felony (ex. Burglary, arson, robbery, rape, kidnapping, etc.) All other killings are of the second degree.
For more information, please see our article on murder/manslaughter.
California’s Penal Code Section 192(b) Manslaughter
This law makes it illegal to unlawfully kill a human being without malice. There are three kinds:
- Voluntary – upon sudden quarrel or heat of passion;
- 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 does not apply to acts committed while driving a vehicle.
- Vehicular –
- Driving a vehicle in the commission of an unlawful act, not amounting to a felony, and with gross negligence;
- Driving a vehicle in the commission of a lawful act, which might produce death, in an unlawful manner, but without gross negligence; or
- Driving a vehicle where the vehicular collision or vehicular accident was knowingly caused for financial gain and proximately resulted in the death of any person.
Typically, child endangerment cases relate to “involuntary manslaughter.” Involuntary manslaughter is charged when: (1) the unlawful act does not arise to the level of a felony; or (2) the defendant was engaging in lawful, albeit dangerous act, without due caution.
A classic example of this is cases where a child gets sick, but because of a parent’s strong religious or cultural beliefs, the parent does not take the child to a traditional doctor. Although the parent sought alternative means for medical treatment, the child continues to get sick and dies. Thus, the prosecution may charge that parent with endangerment and involuntary manslaughter.
For more information, please see our article on murder/manslaughter.
California Health and Safety Code Section 12702
This law makes it illegal to sell, give, or deliver any dangerous fireworks to any person under 18 years old.
The Prosecution
For the prosecution to prove the defendant committed child endangerment under PC 273a, they must first prove the elements of the crime took place. The government must prove the following elements:
Did one of the following:
- (a) Inflicted Pain: willfully inflicted unjustifiable physical pain or mental suffering on a child;
- (b) Caused or Permitted to Suffer Pain: willfully caused or permitted a child to suffer unjustifiable physical pain or mental suffering;
- (c) While having custody, caused or permitted to suffer injury: while having care or custody of a child, willfully caused or permitted the child’s person or health to be injured.
- (d) While having custody, caused or permitted to be placed in danger: 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;
Caused or permitted the child to suffer, be injured, or be endangered under circumstances or conditions likely to produce great bodily harm OR death;
This element applies only if 1(b), 1(c), or 1(d) applies: were criminally negligent when he or she caused or permitted the child to suffer, be injured, or be endangered;
- A person acts criminally negligent 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.
This element applies when parental right to discipline applies: did not act reasonably disciplining a child.
Who Can Be Charged?
The following examples illustrate who can be charged with violating PC 273a.
Dan, a self-proclaimed “cool dad”, wanted to share his psychedelic college experience with his 7-year-old son, Samuel. Dan gives Samuel a bong with marijuana and instructs him on how to use it. Dan tells Samuel, “You’ll be able to see Frozen on Ice without having to leave the house, let alone the couch!” Samuel, who idolizes Dan, does as Dan instructs. Samuel ends up having severe hallucinations and ends up in the hospital. Samuel’s pediatrician reports Dan to the police and Dan is arrested for violating PC 273a.
Martha is a caregiver for ten rambunctious children. As Martha was preparing lunch for the children, one of the children, Vinny, climbs up a tree. Vinny ends up falling out of the 8-foot tree and breaks his arm. Vinny screams bloody murder as Martha frantically responds to him. Martha, fearful of losing her job, gives Vinny some pain relievers and a heavy dose of melatonin to put him to sleep. Vinny’s parents arrive home from their movie date and Martha informs them that Vinny went to bed “early.” “Wiley rascal must be tuckered out from all the tag he played with his siblings!” Martha says. The next morning, Vinny complains to his parents about the pain in his arm. Vinny’s parents rush Vinny to the hospital where he is diagnosed with a broken arm. After some questioning, Vinny’s parents realize what really happened and call the police on Martha. Martha is arrested for violating PC 273a.
Legal Defenses
Facing charges for violating California’s PC 273a, child endangerment, can be difficult to fight alone. An effective and aggressive criminal defense attorney will know the most common legal defenses to fight against these charges.
Did the defendant actually commit the elements of the crime?
It is important to understand if you did not commit the act willfully and/or with criminal negligence, you are not guilty of child endangerment.
Example:
Jamie was cleaning the bathroom and watching his two-year-old niece when he heard a knock at the door for pizza delivery. Jamie puts down the cleaning solution to answer the door. While Jamie is away, his two-year-old niece climbs over the baby gate and picks up the cleaning solution to drink, believing it’s juice.
Even though it was negligent of Jamie to leave the cleaning solution, it does not arise to criminal negligence. A reasonable person would not assume a two-year-old would scale a baby gate and drink a cleaning solution in such a brief time.
Was “reasonable” corporal punishment?
A parent is not guilty of child endangerment if he or she was acting within the boundaries of his or her right to reasonably discipline the child.
Example:
Tommy, who was in a particularly sour mood, went up to his little brother, Johnny, and round housed him in the face. James, shocked by his son’s behavior, gave Tommy a spanking and sent him to his room. Undoubtedly, the spanking did not feel good and Tommy was not happy being isolated in his room. However, James was acting within his right to reasonably discipline his child and so, he is not guilty of child endangerment.
False accusation?
Sometimes, a child endangerment case can originate from a false accusation. This false accusation could come in many forms:
- The parents are in a hotly contested custody battle and one of the parents bribes the child to tell officers that the other parent harmed him.
- A child is angry at his parents and falsely accuses his parents of harming him out of spite to get them arrested.
- A trusted caretaker, who wants to cover his or her abuse of the child, bribes or threatens the child to tell police it was someone else.
Mistake of Fact?
In these types of cases, one person could misinterpret the situation and a false accusation of child endangerment could arise. This problem is exacerbated by California’s “mandatory reporting law.” Under that law, professionals are legally required to report suspected child endangerment to police. If not, those professionals could face misdemeanor charges. Professionals include, but are not limited to: doctors, teachers, and clergy members.
Example:
Tommy skateboards to school and on his way there, he hit a large rock and falls into some thorny bushes. Tommy ends up heavily scraped and bruised. A tough kid, Tommy brushes off his injuries and continues his merry way to school. Once in class, Ms. Finster, Tommy’s teacher, observes his injuries. Ms. Finster is aware that Tommy lives in low-income housing and incorrectly assumes the worst—Tommy’s father beat Tommy. Ms. Finster reports Tommy’s injuries to police and Tommy’s father is arrested.
Penalties
Penalties under PC 273a, child endangerment, mostly depend on whether the defendant’s actions created a risk of great bodily harm or death to the child.
If no great bodily harm or death, PC 273a is a misdemeanor offense that is punishable by imprisonment in county jail not exceeding one year and a fine not exceeding one thousand dollars ($1,000).
If there is great bodily harm or death, PC 273a is a felony offense that is punishable by imprisonment in state prison for two, four, or six years and a fine not exceeding ten-thousand dollars ($10,000).
If a person is convicted for violating PC 273a and is given probation, the minimum terms of probation is as follows:
- 48 months of probation;
- A criminal protective order, which protects the victim from further acts of violence or threats. If appropriate, residence exclusion or stay-away conditions;
- Successful completion of no less than one year of child abuser’s treatment counseling program, which must be approved by the probation department;
- The program would start as soon probation is granted.
- The program criteria are specified under PC 273.1.
- Defendant must produce documentation of program enrollment to the court within 30 days of enrollment, along with quarterly progress reports.
- If defendant was under the influence of drugs or alcohol at the time of the offense, the defendant must abstain from drug or alcohol usage during the entire probationary period. The defendant will be subject to random drug testing.
The court may waive any of the above minimum conditions if that condition would not be in the best interests of justice. However, the court must state on the record why it’s granting the waiver(s).
Penalties for Similar/Related Offenses
California’s Penal Code Section 273d Corporate Punishment or Injury of Child
Misdemeanor – up to one year in county jail and/or fine not exceeding six thousand dollars ($6,000).
Felony – two, four, or six years in county jail and/or a fine not exceeding six thousand dollars ($6,000).
There is an additional four years if the defendant has a prior felony child abuse conviction within ten years.
Probation – misdemeanor summary probation or felony formal probation. The mandatory probation conditions are:
- Minimum probationary period of three years;
- Protective order; and
- Successful completion of child abuser’s treatment program for at least one year.
- If drugs or alcohol were involved in the offense, the judge may order random drug testing.
California’s Penal Code Section 270 Failure to Provide Care (Child Neglect)
Misdemeanor – up to one year in county jail and/or a fine not exceeding two thousand dollars ($2,000).
PC 270 is a “wobbler” and can be charged as a felony in some cases. Under PC 270, if a court has previously made a finding that: (1) a person is the parent of a minor child; (2) that person had notice of such finding; and (3) that person nonetheless willfully omits, without lawful excuse, to furnish necessary clothing, food, shelter, medical attendance, or other remedial care for the child, the punishment is as follows:
Felony – imprisonment in state prison for a determinate term of one year and/or a fine not exceeding two thousand dollars ($2, 000).
California’s Penal Code Section 288 Lewd or Lascivious Acts
The penalties for PC 288 depend on a myriad of factors such as: age of the child, whether force, violence, duress, or threats were used in the commission of the crime, whether there was a pattern of lewd acts, and whether the defendant is at least ten years older than the child.
Felony – imprisonment in state prison for three, six, or eight years.
NOTE ON OTHER FACTORS:
If force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person took place in the commission of the crime, the penalty is as follows: imprisonment in state prison for five, eight, or ten years.
If the defendant was a caretaker, the victim was a dependent person, and force, violence, duress, menace, or fear of immediate and unlawful bodily injury was used, the penalty is as follows: imprisonment in state prison for five, eight, or ten years. However, if there is no force, violence, duress, menace, or fear of immediate and unlawful bodily injury, then the penalty is as follows: imprisonment in state prison for one, two, or three years, or imprisonment in county jail for not more than one year.
If the victim was fourteen or fifteen years old at the time of the offense and the person was at least ten years older than the victim, the penalty is as follows: imprisonment in state prison for one, two, or three years or not more than one year in county jail. To determine age difference, the court will compare birth date of the defendant and the victim.
If in the commission of the crime, the defendant personally inflicted bodily harm upon the victim, the penalty is state prison for life with the possibility of parole.
Personally inflicted bodily harm means the victim suffered a substantial physical injury, which was caused by the defendant using more than necessary force to commit the offense.
NOTE ABOUT FINES:
In addition to the above penalties, the court may impose a fine not exceeding ten thousand dollars ($10,000).
For more information, please see our article on lewd or lascivious acts with a minor.
California’s Vehicle Code Section 23572 Driving Under the Influence and Minor Passenger Under 14 Years of Age
VC 23572 adds mandatory additional penalties if a person is convicted of a violation of VC 23152 (Driving Under the Influence) and a minor under 14 years of age was a passenger in the vehicle.
If this is a first-time conviction of VC 23152, the additional penalty is imprisonment of 48 continuous hours in county jail, even if probation is granted.
If this is a second-time conviction of VC 23152, the additional penalty is imprisonment of ten days in county jail, even if probation is granted.
If this is a third-time conviction of VC 23152, the additional penalty is imprisonment of thirty days in county jail, even if probation is granted.
If this is a fourth-time conviction of VC 23152 and it is punished as a misdemeanor, the additional penalty is imprisonment of ninety days in county jail, even if probation is granted.
For more information, please see our article on DUI/DWI.
California’s Penal Code Section 273ab Assault Resulting in Death, Comatose State, or Paralysis of Child Under 8
PC 273ab is punishable only as a felony and the punishment depends on the child’s state after the assault: death, coma, or paralysis.
If the assault results in the child’s death, the punishment is imprisonment in state prison for 25 years to life.
If the assault results in the child being comatose or paralyzed, the punishment is imprisonment in state prison for life with possibility of parole.
California’s Penal Code Section 187 Murder
Typically, murder as a result of child endangerment is charged as second-degree murder. The penalty for second-degree murder is imprisonment in state prison for fifteen years to life.
For more information, please see our article on murder/manslaughter.
California’s Penal Code Section 192(b) Manslaughter
Typically, manslaughter charged in connection with child endangerment is “involuntary manslaughter.” For involuntary manslaughter, the penalty is as follows: imprisonment in county jail for two, three, or four years.
For more information, please see our article on murder/manslaughter.
California Health and Safety Code Section 12702
HS 12702 is generally charged as a misdemeanor. The punishment is a fine of not less than five hundred dollars ($500) but not more than one thousand dollars ($1,000); imprisonment in county jail not more than a year; and/or fine and imprisonment.
We Can Help
If you or someone you know is facing charges of violating California’s Penal Code section 273a, child endangerment, it is highly recommended that you seek an experienced, knowledgeable, and reputable criminal defense lawyer. If you are located in the greater San Diego area, Orange County or Los Angeles, contact the Law Offices of Anna R. Yum. As a former prosecutor, Attorney Yum can spot the legal issues and attack the weaknesses in the government’s case in order to strive in achieving the best possible outcome. Don’t hesitate to contact a lawyer who will aggressively fight for your rights and your future. Call our San Diego Criminal Attorney 619-233-4433 for a free consultation or consult with our online agents today.
