Imagine being accused of physically harming your children. These cases start with Child Protective Services being assigned to investigate whether or not your child is in any danger at home. The investigation often occurs with CPS interviewing your children without your knowledge or consent. Often times the questions are sensitive in nature and deal what is happening in the privacy of your own home. You would think you should have protection against intrusions that occur in your home and be free from intrusions against the privacy of your children. CPS is a law enforcement agency similar to the San Diego Police Department and these social workers can make your family life very difficult. It is important to contact an experienced criminal defense attorney to handle communications with any and all investigators in your case. CPS often refers these cases to either dependency court where your children may be taken away from you or it is referred to criminal court and it is up to you to defend yourself against criminal charges where your children are considered the victims. Criminal charges are the most serious and it all depends on the statements made by the children and the medical examinations conducted at Rady Children’s Hospital. If this is a dependency case, then courts will intervene and depending on your involvement in parenting classes and other recommended classes your children may be returned to you at a later time. Usually, children are placed in Polinsky detention facility until it is determined you are fit to be a parent again.
Child Abuse in San Diego
This offense occurs under California Penal Code 273(d) when a person inflicts physical injury, sexual abuse, or emotional abuse on a minor. It is important to note that while injury to a child is required for a conviction, the injury can be minor or serious.
Bodily injury inflicted by other than accidental means on a child.
Molestation, indecent exposure, fondling, rape, and incest.
Nonphysical mistreatment, mental suffering, willfully causing any child to suffer or endangering a child's emotional well-being.
Understanding Penal Code Section 273(d)
In consideration of the seriousness of child abuse, California has criminalized it under Penal Code section 273(d). Under this law, “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, or by both that fine and imprisonment.”
To do something on purpose.
A person under the age of 18.
Cruel or Inhuman Punishment:
Inflict corporal punishment without mercy.
Traumatic Physical Condition:
The natural and probable result of the direct physical injury that was caused by the application of physical force.
Basically, to convict someone of PC 273(d), the prosecutor must prove the following elements:
1. The defendant willfully inflicted cruel or inhuman physical punishment and/or an injury on a child;
2. The direct application of physical force inflicted by the defendant caused a traumatic physical condition;
A punishment and/or injury causes a traumatic physical condition if:
a) The traumatic condition was the natural and probable consequence of the punishment/ injury;
b) The punishment and/or injury was a direct and substantial factor in causing the condition;
c) The condition would not have happened without the punishment and/or injury.
3. When defendant acted, defendant was not reasonably disciplining child.
Evidence Code 1108 and 1109: Admits All Prior Bad Act Evidence and Prior Convictions
If you are facing child abuse charges under California PC section 273(d) it is extremely important that you know what kind of evidence the prosecution can use against you. In California the prosecution can introduce any and all prior bad acts and convictions as evidence against you. It does not matter that the priors involved different circumstances and had different victims, if the priors consisted of child abuse they are coming into evidence.
Prior Bad Acts Evidence:
This kind of evidence consists of past allegations of child abuse. Maybe someone called the police on you or you were under investigation for child abuse. It does not matter that you were never actually charged or that these allegations were dismissed. In California, prior bad acts evidence of a defendant in a prosecution for child abuse is always admissible.
Prior Convictions Evidence:
This kind of evidence consists of prior convictions for corporal injury or punishment on a child. It does not matter what sentence you served or if you were acquitted of all the charges. In California, evidence of a defendant’s prior convictions in a prosecution for child abuse is always admissible.
Prior Convictions of Violent Acts:
This kind of evidence consists of any prior convictions for violent offenses in the past ten years. For example, if you had a prior conviction for domestic violence, the prosecution could use this as impeachment evidence to show that you are an aggressive person. In California, evidence of a defendant’s prior convictions of violent acts are always admissible in a prosecution for child abuse.
No Negative Contact Order vs. Criminal Protective Order
If you are convicted of violating PC 273(d) and probation is granted, the judge will file a no negative contact order or a full criminal court protective order to protect the child from further acts of violence or threats. The main difference between a no negative contact order and a full criminal protective order is that the former allows you to go home and still be around your child. A full protective order prevents you from going home and coming into contact with your child within a certain amount of feet. This means you cannot see your family or else you are looking at additional charges for violating this order.
A full criminal protective order is a way to separate families for long periods of time. In effect, these orders are similar to Temporary Restraining Orders in the civil courts. It is important for you to know that full protective orders and no negative contact orders can be modified at any time. This means that a hearing for full protective orders and no negative contact orders can be requested and scheduled without your knowledge, putting you at a clear disadvantage.
Child Abuse May Be Filed As a Misdemeanor or Felony
The infliction of physical injury, sexual abuse, or emotional abuse on a minor is a wobbler offense. Wobbler offenses are crimes that the prosecution has discretion to charge as either a misdemeanor or a felony. Understanding the way that wobbler offenses are determined by the prosecutors in California is very important to your criminal defense. If the prosecution offers you a plea deal or you go to trial and are convicted of a wobbler offense, your attorney must do everything in their power to negotiate a misdemeanor conviction.
Misdemeanor Child Abuse Penalties
If you are found guilty of misdemeanor child abuse you may:
- Receive a fine of up to $6,000;
- Receive a maximum sentence of 1 year in county jail;
- Complete a 1 year Child Abuser’s Treatment Program;
- Be issued a Protective Order;
- Be issued a Stay Away Order;
- Complete informal probation for a minimum of 3 years.
Felony Child Abuse Penalties
If you are found guilty of felony child abuse you may:
- Be sentenced 2, 4, or 6 years in California state prison;
- Receive a fine of up to $6,000;
- Receive a strike on your record under California’s Three Strikes law;
- Complete formal probation for a minimum of 3 years;
- Complete a 1year Child Abuser’s Treatment Program;
- Be issued a Protective Order;
- Be issued a Stay Away Order.
Enhancements for Child Abuse
An enhancement offense is an offense whose commission alone increases the penalties for the simple offense. In California any person who is found guilty of child abuse shall receive a four-year enhancement for a prior conviction of that same offense.
Battery is a Lesser Included Offense for Child Abuse
A lesser included offense is an offense that is necessarily contained in the greater offense. In California, it is impossible to commit child abuse without necessarily also committing battery. Under California Penal Code 242, battery is defined as the intentional harmful or offensive touching of another person without their consent. If convicted for simple battery, you may face a fine of up to two thousand dollars and up to six months in county jail, or both.
If you go to trial on a child abuse charge and the prosecution establishes that you intentionally inflicted some physical force on a child but the rest of the elements required for a conviction under PC 273(d) are not met, the lesser included battery offense will be crucial for your defense. For example, either the force you inflicted on the child did not rise to the level of cruel or inhuman punishment or it did not result in a traumatic condition, then the Judge would instruct the jury on misdemeanor battery. At sentencing a conviction for misdemeanor battery would mean up to six months less in county jail and up to four thousand dollars less in fines. More importantly, you will not be required to complete a Child Abuser’s Treatment Program, might not be served with a protective order or stay away order that would otherwise keep you from having contact with your child.
Because of the severity of the penalties involved with a child abuse charge, your criminal defense attorney will have to determine which legal defense theory will work best in your particular situation. Possible defenses associated with this charge can include:
- False Allegations; you did not commit child abuse.
- Child’s injuries were caused by something other than abuse.
- Accident; you did not purposely injure your child.
- You were acting within your right as a parent to discipline your child.
If you have been charged with PC 273(d) Child Abuse in San Diego contact experience criminal defense attorney Vik Monder at 619-405-0063. A child abuse conviction can tear your family apart, destroy your reputation, end your career, and take away your liberty. Don't let any of this happen to you, take control of your case by contacting us today so we can help you launch a strong criminal defense.