Imagine that you being accused of putting your children in harms way. You could be prosecuted for Child Endangerment because you permitted your children to be placed in a dangerous situation, you were in a moving car when the argument with your wife got physical, under these circumstances there was a strong likelihood that you could loose control of the car and produce great bodily harm to the children. The prosecution would also allege that you caused your kids unjustifiable mental suffering by exposing them to the fight, witnessing their mom get hit by their dad and not being able to do anything to stop it.
Child Endangerment in San Diego
This offense occurs under California Penal Code section 273(a) when a person willfully causes or permits a child in their care to be placed in a dangerous situation or suffer unjustifiable physical or mental suffering.
Acting willingly; on purpose.
A person under the age of 18.
Not reasonably necessary or is excessive under the circumstances.
The Prosecution Will Try to Turn Your Child Against You
Prosecutors will stop at nothing for a conviction of child endangerment, not even your children is off limits to them. Their strategy in the prosecution of child endangerment cases is divide and conquer. The first step is to get your family members alone. Next, they proceed to interrogate them without your knowledge. Their goal is to obtain incriminating statements that can be used against you in order to obtain a conviction.
When these efforts fail and they are unsuccessful at getting your family members to talk willingly, the prosecutors will bring out the big guns, serving your family members with a subpoena. This is a common tactic used to intimidate a defendant’s family into cooperating with the prosecution. When a subpoena is served on behalf of your family members, they are ordered to come before the court and produce specific information at a hearing against you.
Do not get caught off guard by the prosecutor’s antics, hire an experienced criminal defense attorney to inform you of your rights and fight to protect them from the start. Your family members are advised to do the same. They should hire their own attorney to represent them and prevent any further harassment by the prosecution.
Understanding Penal Code Section 273(a)
In consideration of the seriousness of child abuse, California has criminalized it under Penal Code section 273(a). Under this law, “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.”
Basically, to convict someone of PC section 273(a), the prosecutor must prove the following elements:
- The defendant willfully inflicted/ caused/ allowed unjustifiable physical pain or mental suffering on a child;
- The child’s suffering occurred while the child was in the defendant’s custody;
- The defendant did not act while reasonably disciplining a child;
- The defendant was criminally negligent.
Neglect vs. Endangerment
There are two main distinctions between child endangerment and child neglect:
1) The requirement for a parent child relationship to exist between the defendant and the victim.
2) The standard of negligence that is required.
Neglect of a Child
California PC 270 prosecutes the parent or guardian or caretaker of the minor child, who fails to provide the child
with the child’s basic needs, like adequate food, clothing, shelter, or supervision.
Failure to provide the child with the basic necessities.
The child's health is actually endangered.
Endangerment of a Child
California PC 237(a) is more broad, it prosecutes the person responsible to care for the child at the moment in which he or she willfully placed the child in a dangerous situation.
Must be more than ordinary carelessness, inattention, or lapse in judgment, needs to be a complete indifference to the consequences:
- Gross departure from the way a reasonable person would have behaved in the same circumstances;
- Showing disregard for human life or indifference to consequences;
- A reasonable person would have known that behavior would naturally and probably result in harm to another.
Abuse vs. Endangerment
The main distinction between child endangerment and child abuse is the requirement that bodily injury be inflicted on a child.
Abuse of a Child
California PC 273(d) on the other hand does require that an actual injury be inflicted on a child, the injury can be minor or serious.
Traumatic Physical Condition:
The natural and probable result of the direct physical injury that was caused by the application of physical force.
Endangerment of a Child
California PC 237(a) does not require that an actual injury be inflicted on a child. It is sufficient for the child to be placed in a dangerous situation likely to produce great bodily harm to the child.
Great Bodily Harm:
Any significant or substantial injury.
Child Endangerment May Be Filed As a Misdemeanor or a Felony
Willfully causing or permitting a child in your care to be placed in a dangerous situation or suffer unjustifiable physical or mental suffering is a wobbler. Wobbler offenses are crimes that the issuing attorney at the District Attorney’s office has discretion to charge as either a misdemeanor or a felony. This decision is important to your criminal defense because it will determine the penalties that you will be exposed to. Whether or not you will be charged with misdemeanor or felony child endangerment will depend entirely on the existence of a risk of great bodily harm or death to the child at the time of the offense. In other words, to establish the severity of the charges in a child endangerment case, the issuing attorney will focus on the following two factors:
Child Endangerment Mitigating Factors: No Risk of Great Bodily Harm or Death
The mere risk of great bodily harm or death to a child can make all the difference between filing a child endangerment case as a misdemeanor or a felony. A mitigating factor is any fact in the case, that lessens your culpability or makes an aggravating factor incomplete. In California great bodily harm is any significant or substantial injury to the child. This is an aggravating factor to child endangerment. Conversely, a mitigating factor would be that the harm that your behavior caused to the child was actually minor or moderate. This type of injury does not amount to an aggravating factor. Which means that there was no risk of great bodily harm to that child and the charges will wobble down to a misdemeanor.
Misdemeanor Child Endangerment Penalties
- A maximum sentence of 6 months in county jail;
- A fine of up to $1,000;
- Informal probation;
- At least 1 year of child abuser’s treatment program;
- A protective order;
- A stay away order.
Aggravating Factors: Risk of Great Bodily Harm or Death
Now this does not mean that the child needs to have actually suffered great bodily harm or death. The mere existence of a risk of significant or substantial injury is enough to be an aggravating factor in a child endangerment case. An aggravating factor is any circumstance in the case that increases your culpability for a criminal offense. For child endangerment offenses, the issuing attorney will focus on your behavior to see if the child was placed in such dangerous conditions, that it was likely for the child to suffer significant or substantial injury. If it was likely that the child could be injured or could have died under such conditions, then the issuing attorney will find that a risk existed and the charges for child endangerment will wobble up to a felony.
Felony Child Endangerment Penalties
- Receive 2, 4, or 6 years in California state prison;
- A fine of up to $10,000;
- Formal probation;
- At least 1 year of child abuser’s treatment program;
- A protective order;
- A stay away order.
Sentence Enhancements for Child Endangerment
If the child actually suffers great bodily harm or death, then the felony child endangerment charges will be subject to the following sentence enhancements:
Great Bodily Injury
If you actually inflicted great bodily injury on the child, your penalty will increase by an additional and consecutive sentence of 3 to 6 years in California state prison.
Death of Child
If the child dies as a result of the child abuse you inflicted or as a result of your criminal negligence, your penalty will increase by an additional and consecutive sentence of 4 years in California state prison.
Implications of the Three Strikes Law
California’s Three Strikes law will only apply to child endangerment convictions where the felony resulted in great bodily injury to the child. This means that if you are convicted for a felony child endangerment that created a risk of great bodily harm, this conviction will not result in a strike on your criminal record.
Child Endangerment's Lesser Related Offenses
If you are facing charges for child endangerment you now know how serious this offense really is. A lesser related offense is a crime that is similar to another offense but is less serious in nature. California Penal Code section 273(a) defines child endangerment as willfully causing or permitting a child in their care to be placed in a dangerous situation or suffer unjustifiable physical or mental suffering. Ultimately, lesser related offenses are important to consider as part of your defense strategy because they tend to result in shorter sentences and/or less severe penalties.
Assault is a Lesser Related Offense to Misdemeanor Child Endangerment
California Penal Code section 240 defines simple assault as the willful application of force, coupled with the present ability to carry out threat of harm, injury or commit a violent injury against another person. The two offenses are similar in that they both criminalize the threat of harm to another. However, even as a misdemeanor, child endangerment is more serious in nature because the victim is a child and will be afforded more protection by the law. The lesser related offense of simple assault is a valuable alternative if you are facing misdemeanor charges for child endangerment. While both offenses would result in the same sentence and fine, six months in county jail and a fine of up to one thousand dollars. The lesser related offense of assault should be afforded careful consideration because it will not expose you to a child abuser’s treatment program and both a protective and/ or a stay away order may be avoided.
Aggravated Battery is a lesser related offense to Felony Child Endangerment.
California Penal Code section 242 defines aggravated battery as the intentional, harmful or offensive touching of another person without their consent, by using force capable of producing great bodily injury or death. The two offenses are similar in that they both criminalize producing great bodily injury or death to another. However, a felony child endangerment offense is more serious in nature because the victim is a child who was placed in such dangerous conditions, that he or she was likely to suffer or actually did suffer great bodily harm or death. The lesser related offense of aggravated battery is a valuable alternative if you are facing felony charges for child endangerment. Instead of receiving up to six years in California state prison and up to ten thousand dollars in fines, the lesser related offense of aggravated battery would only expose you to half that time in state prison and up two thousand dollars in fines.
Because of the severity of the penalties involved with a child endangerment charge, your criminal defense attorney will have to determine which legal defense theory will work best in your particular situation. When charged under California PC 273(a) these are the most common defenses:
- False Allegations; you did not endanger the child.
- As a parent, you had a right to discipline your children under parental privileges.
- Accident; you did not endanger the child intentionally.
- You were not the person responsible for the child.
If you find yourself in a situation where you could be charged under California PC 273(a) for child endangerment, make sure to contact San Diego criminal defense attorney Vik Monder at 619-405-0063. It is important to know and exercise your rights once you have been accused of a crime. Any conviction for child endangerment, whether a misdemeanor or felony, can threaten to take away your kids, tearing your family apart. You do not have to face these charges alone, at Monder Law Group we can help you launch a strong criminal defense to avoid these consequences.