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.
This law covers actions which amount to illegal child abuse, and may be charged against a person even if no injury to the child occurred.
Potential Sentence
(1) Subsection (a) is a wobbler offense, meaning it can be charged as either a misdemeanor or felony. The statue provides for a sentence of up to a year in jail, or in the alternative, a state prison sentence of two, four or up to six years.
(2) Subsection (b) is the pure misdemeanor statute which although no sentence is provided, on a misdemeanor there is a maximum of one year in county jail.
There are different theories which the prosecution may use to charge this offense. The prosecution must prove one of the following theories:
(1) When proving infliction of pain: That the defendant committed an willful act which caused unjustifiable mental suffering or physical pain on a child.
(2) When proving defendant allowed or caused physical pain: willful conduct on part of the defendant that was the cause of unjustifiable pain or mental anguish.
(3) When alleging defendant had custody of child and caused pain or suffering: Willful conduct on the part of the defendant that caused or permitted child's health to be negatively affected while the defendant had custody of the child.
(4) In allegations that defendant had custody of child and placed him/her in danger: the defendant acted willfully in allowing or actually putting the child in a situation that presented danger to health or well-being.
If the prosecution is using one of the last three theories, they must also show:
- Criminal negligence on part of the defendant when he or she acted in a manner causing the child's endangerment, injury or suffering, AND
- The actions by the defendant were not part of an attempt to reasonably discipline the child.
Explaining the Law:
a. Willfully means the person purposefully committed the act at issue. Pen. Code, § 7(1); see People v. Lara (1996) 44 Cal.App.4th 102
- A “child” is defined as a person under the age of eighteen.People v. Thomas (1976) 65 Cal.App.3d 854.
- The requirement of criminal negligence when the harmful conduct happens indirectly is discussed in People v. Valdez (2002)27 Cal.4th 778.
- This crime is a General intent crime.
Defenses:
(1) Unintentional conduct: This statute requires “willful” conduct. Thus if the defendant did not purposefully carry out the act that placed the child in danger, the “willful” element will not be met.
(2) Wrong person charged: under theories three and four above, the person who is charged with the offense must be the person who had custody or care over the child. If the person charged was not the person who legally had custody or was obligated to care for the child, this fact can be used as a defense to the prosecution's case.
(3) Reasonable Discipline: A parent may reasonably discipline his or her kids if the act is necessary and within a type of discipline that would be accepted under the circumstances. If the alleged act that supposedly placed the child in danger was part of a disciplinary attempt, there may be basis for a defense on this ground.
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