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CALIFORNIA PENAL CODE § [SECTION] 273d(A) – CHILD ABUSE

California Penal Code § [Section] 273d(a) – Child Abuse

California Penal Code [CPC] §273d(a)Child Abuse – Penal Code Section 273d(a) prohibits willfully inflicting cruel or inhuman physical punishment or any traumatic injury on a child. Since you can be convicted of a misdemeanor or a felony, depending on the facts of your case, Section 273d(a) is a “wobbler”[1] crime: punishment “wobbles” between two degrees of severity. If you're convicted of the felony form, you face up to six years in a state prison and/or a fine of up to $6,000. If you're convicted of the misdemeanor form, the penalty may be a year in a county jail and/or a fine of up to $6,000.

Note: If you're convicted of a violating §273d(a) within ten years of a prior for conviction of the same offense, you will receive four additional years in state prison.    

What Does California Penal Code §273d(a) [Child Abuse] Prohibit?

In sum, to be guilty of Child Abuse under CPC §273d(a), the prosecution must prove:

  • That you acted willfully; AND,
  • That you inflicted cruel or inhuman punishment and/or injury; AND,
  • That the victim was a child; AND,
  • That the punishment/injury caused physical trauma; AND,
  • That you had no legal excuse.

Defining “Child Abuse” Under California Penal Code §273d(a)

To convict you under CPC §273d(a), the prosecutor must prove the following beyond a reasonable doubt:

  • WILLFULLY: You acted willfully;[2] AND,
  • PUNISHMENT/INJURY: You inflicted cruel or inhuman physical punishment and/or injury; AND,
  • CHILD: The victim was a child;[3] AND,
  • TRAUMATIC PHYSICAL CONDITION:[4] The punishment and/or injury caused[5] a traumatic physical condition to the child; AND,
  • NO LEGAL EXCUSE: You weren't reasonably discipling the child.

Example: Defendant Dee's daughter is Victim Vee. The ten-year-old girl is an avid tennis player. In fact, she plays so much that she has injured her elbow, making it difficult for her to bend her arm. She tells no one. Tennis Coach later sees Dee pulling Vee by the arm. Then Tennis Coach learns of Vee's injury. She assumes that Dee has injured Vee's arm. Now Dee is facing a charge under CPC §273d(a). Is Dee guilty?

Conclusion: Dee willfully punished a child by pulling the child's arm. It could be argued that this discipline was not reasonable. These are elements of the crime. But the facts don't show Dee to be responsible for Vee's injury. It doesn't even appear Dee was a substantial factor in Vee's injury, since Vee suffered the injury and said nothing by the time Dee pulled her arm. Dee, therefore, is not guilty.

Penalties For Child Abuse Under CPC §273d(a)

If you're convicted of a felony count of Child Abuse under CPC §273d(a), the penalty may be:

  • A term of up to six (6) years in a state prison; OR,
  • A fine of up to $6,000 (six-thousand dollars); OR,
  • Both imprisonment and a fine.

If you're convicted of a misdemeanor count, however, the penalty may be:

  • A term of up to one (1) year in a county jail; OR,
  • A fine of up to $6,000 (six-thousand dollars); OR,
  • Both jail time and a fine.[6]

Since you can be convicted of a misdemeanor or a felony, depending on the facts of your case, Section 273d(a) is a “wobbler”[7] crime: punishment “wobbles” between two degrees of severity. As stated previously, felony conviction permits up to six (6) years in a state prison and/or a fine of up to $6,000 (six-thousand dollars). Misdemeanor conviction allows up to one (1) year in a county jail and/or a fine of up to $6,000 (six-thousand dollars).[8]

Probation may be granted. However, probation generally includes the following conditions:

  • A mandatory minimum period of three years' probation; AND,
  • Successful completion of a child abuser's treatment program; AND,
  • Issuance of an order prohibiting violence or threats of violence against the victim; AND,
  • Random drug testing, if the offense was committed while under the influence.[9]

Note: Your sentence will be increased by four (4) years if you have a prior Child Abuse conviction, you haven't served a prison term for each prior conviction more than ten (10) years before, and you served time for another felony offense in the previous ten (10) years.[10]

Defenses Against California Penal Code §273d(a) – Child Abuse

Four common defenses against a charge of Child Abuse under CPC §273d(a) are:

The Injury Was Accidental

Example: Defendant Dominica's daughter, Victim Victoria, takes the opportunity to run about Dominica's backyard while Dominica is distracted by an emergency call. This is when Victoria falls and breaks her arm. Dominica takes her to a hospital. Nurse treats Victoria. Nurse begins to suspect that Dominica is abusing Victoria and has Dominica arrested under CPC §273d(a). Is Dominica innocent?

Conclusion: Victoria was playing while Dominica was distracted. A subsequent fall produced the girl's injury. No facts suggest criminal intent or criminal negligence. Dominica, as the facts make clear, did nothing that would constitute abuse. Thus, Dominica is innocent. The injury to Victoria was accidental.

The Injury Was Not Caused By Abuse

Example: Defendant Dimitri has sleeping problems. He learns of melatonin[11] gummies from a friend. Dimitri begins to use them, taking care to tuck them away each night. But he forgets to do so on one occasion. Victim Vi, his five-year-old grandson, finds the bag, eats all the gummies, and ends up in a hospital.[12] Now Dimitri is being charged with abuse under CPC §273d(a). Should Dimitri be convicted?    

Conclusion: Dimitri allowed Vic access to a substance which resulted in the boy's hospitalization. These are elements of the crime. But Vic's access followed directly from an innocent mistake in which Dimitri left out his melatonin gummies after taking them. Thus, Dimitri did nothing willful to harm Vic. Dimitri, it follows, should not be convicted. Vic's injury was not caused by abuse.

You Had A Legal Excuse

Example: Defendant Danny has an eight-year-old son, Victim Vern, who acts out. Danny is advised by Child Psychologist that physical punishment is necessary to discipline the boy. Danny begins to use occasional spankings to control Vern's outbursts. But Neighbor sees him spank the boy and concludes that Danny is abusing Vern. Now Danny is facing a charge under §273d(a). Should Danny be acquitted?   

Conclusion: Reasonable disciple of a child is an exception to prosecution under the Code Section. Danny did nothing more than the minimum required to discipline his son. Then he employed force in a manner widely accepted as reasonable when disciplining a child. He was also acting on the advice of Child Psychologist when he spanked his son. Therefore, Danny should be acquitted. He had a legal excuse.

The Allegations Are False

Example: Defendant Dani is in a custody battle with Ex-Wife. Intending on taking custody of Victim Vicca, their six-year-old daughter, Ex-Wife makes a false accusation that Dani molested Vicca. Dani is arrested based on the accusation. Now she faces charges under CPC §273d(a). Is Dani innocent, on these facts?

Conclusion: Dani is a victim of Ex-Wife's plot to deny Dani custody of Vicca. Thus, Dani did nothing constituting the crime of which she's accused. If even one element of an accusation can't be proved beyond a reasonable doubt, the accused in any US court must be exonerated. Not a single element of the abuse charge is present in this situation. Dani is innocent. The allegations against Dani are false.

Related Offenses

Note: The crimes below are described generally as “related” because they're frequently charged with CPC §273d(a) and/or have common elements the prosecutor must prove beyond a reasonable doubt.

The California Penal Code includes several offenses related to Child Abuse: Child Endangerment (CPC §273a(a)), Child Neglect (CPC §270), Simple Battery (CPC §242), Corporal Injury To A Spouse Or Cohabitant (CPC §273.5(a)), Elder Abuse (CPC §368(b)(1)), Domestic Battery (CPC §243(e)(1)), Lewd Acts On A Child (CPC §288(a)), Driving Under The Influence (California Vehicle Code [CVC] §23152(a)), Murder (CPC §187(a)), Voluntary Manslaughter (CPC §192(a)), Involuntary Manslaughter (CPC §192(b)), Furnishing Fireworks To A Minor (California Health & Safety Code [HSC] §12702(a)), Relinquishing A Vehicle To A Minor (CPC §193.8(a)), Arranging Meeting With Minor For Lewd Purpose (CPC §288.4(a)(1), Contacting Minor With Intent To Commit Certain Felonies (CPC §288.3(a)), Oral Copulation On A Minor (CPC §§287(a) and (b)(1)) and Statutory Rape (CPC §§261.5(a),(b)).

Child Endangerment

Penal Code Section 273a(a) makes it illegal to permit any child to suffer unjustifiable pain or mental suffering under circumstances likely to produce great bodily harm or death. The statute applies whether or not you have custody of the child. The law additionally forbids permitting a child to be placed in a situation where the child's health is endangered.

Since you can be convicted of a misdemeanor or a felony, depending on the facts of your case, Section 273a(a) is a “wobbler”[13] crime: punishment “wobbles” between two degrees of severity. The felony penalty may be:

  • A term of up to six (6) years in state prison;[14] OR,
  • A fine of up to $10,000 (ten-thousand dollars); OR,
  • Both imprisonment and a fine.[15]

Furthermore, Child Endangerment is punishable under California's “Three Strikes” system.[16] If you receive three “strikes” on your record, you'll serve a minimum of twenty-five years in a state prison.[17]

More information can be found in the California Child Endangerment Attorney section of the Kann California Law Group's website. If you have questions, contact any of the Kann California Law Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your call goes directly to a lawyer. That's guaranteed.

California Jury Instructions – Child Endangerment

To convict you under CPC §273a(a), the prosecutor must prove the following beyond a reasonable doubt:

You willfully inflicted pain on a child or you permitted a child to suffer or you had care or custody of a child and permitted the child to suffer or you permitted the child to be injured or you permitted the child to be somewhere dangerous. You hurt the child, permitted the child to suffer, or permitted the child's injury when it was likely to produce great bodily harm or death or you were criminally negligent. Finally, you weren't reasonably disciplining the child.

Example: Defendant Davis admits that he threw five-year-old Victim Vero into a public pool. He admits that that he enjoyed watching the boy drown and die. Nonetheless, Davis insists that he can't be convicted under CPC §273a(a) because he was not the boy's parent or custodian. Is Davis correct?

Conclusion: Davis willfully inflicted pain on a child and allowed him to drown as he watched. He was not reasonably disciplining Vero at the time. The boy died as the result of Davis's act. These are the elements of the crime. While Davis believes that only one who has a legal or filial responsibility can endanger a child, anyone can be prosecuted under this Code Section. Davis is thus incorrect.

Child Neglect

If a parent of a minor child willfully omits to furnish clothing, food, shelter or medical attendance, or other remedial care for his or her child, that parent is guilty of misdemeanor Child Neglect (CPC §270).  The statute applies whether the parents of the child are, or were ever, married or divorced. For purposes of the law, unborn children are deemed existing persons. The husband of a woman who bears a child as a result of artificial insemination is also considered the father of that child, for the purposes of this section, if he consented in writing to the artificial insemination.

Since you can be convicted of a misdemeanor or a felony, depending on whether a court has made a final determination that you're the parent of a minor child (and whether you have notice of the adjudication), §270 is a “wobbler”[18] crime. If you're convicted of the felony form, the penalty may be:

  • A term of up to one (1) year and one (1) day in a state prison; OR,
  • A fine of up to $2,000 (two-thousand dollars); OR,
  • Both prison time and a fine.[19]

More information can be found in the Domestic Violence Under The California Penal Code section of the Kann California Law Group's website. If you have questions, contact any of the Kann California Law Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your call will go directly to a lawyer. That is our guarantee.

California Jury Instructions – Child Neglect

To convict you under CPC §270, the prosecutor must prove the following beyond a reasonable doubt:

You were the parent of a child (or children). The child (or children) was (or were) of minor age. You failed to provide necessities. Finally, the failure to provide was willful and without lawful excuse.

Example: Defendant Demi believes that her children should develop a strong work ethic. Thus, she takes to making Victim Vincent, her five-year-old son, acquire his own food. Demi tells him that he should beg door-to-door, even from strangers, to get his meals. This is how Neighbor learns of the situation. Demi is charged under CPC §270. Is Demi guilty or does she have an excuse?

Conclusion: Demi, as the parent of a minor child, had to provide Vincent with necessities including water, shelter, education – and, of course, food. Vincent was under no obligation to earn the food. This is especially true if he's made to “earn” his meal by begging from others, some of whom are strangers.  Demi had the legal duty to provide for her son. She is guilty (irrespective of her beliefs regarding work).

Simple Battery

California Penal Code Section 242 makes it illegal to use willful and unlawful force on another person. You cannot act in self-defense or in defense of someone else or while reasonably disciplining a child.

If you're convicted of Simple Battery, the penalty may be:

  • A term of up to six (6) months in a county jail; OR,
  • A fine of up to $2,000 (two-thousand dollars); OR,
  • Both jail time and a fine.[20]

More information can be found in the Simple Battery section of the Kann California Law Group's website. If you have questions, contact any of the Kann California Law Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your call will go directly to a lawyer. That is always a guarantee.

California Jury Instructions – Simple Battery

To convict you under CPC §242, the prosecutor must prove the following beyond a reasonable doubt:

You willfully and unlawfully touched someone in a harmful or offensive manner. You did not act in self-defense or in defense of someone else or while reasonably disciplining a child.

Example: Defendant Dallas is a participant in LA Biking Marathon. When Victim Valentine, a competitor, passes him during a crucial leg of the race, Dallas runs his bicycle into Valentine's bike. With Valentine still on the bicycle, Dallas then bends Valentine's front wheel by leaping atop it.[21] All this violates Marathon rules. Valentine files a charge against Dallas under CPC §242. Should Dallas be acquitted?  

Conclusion: Dallas drove Valentine off the road by willfully touching an object so close to Valentine (the bicycle) that it could be considered a physical extension of Valentine's body. Then he did the same thing by leaping atop Valentine's tire. Valentine's property was harmed and he was offended. Furthermore, Dallas wasn't defending anyone at the time. Nor was he discipling a child. Dallas should be convicted.

Corporal Injury To A Spouse Or Cohabitant

Corporal Injury To A Spouse Or Cohabitant (CPC §273.5(a)) is described in a Code section that lists felony domestic violence charges. The prosecution must prove that you willfully inflicted corporal injury on a victim with whom you had a domestic relationship, the injury then resulting in a traumatic condition. Corporal injury is the use of violent force upon a victim's body. The crime is related to Child Abuse because injuries against mothers and fathers of children are prohibited under Section 273.5(b)(4).

Since you can be convicted of a misdemeanor or a felony, depending on the facts of your case, CPC §273.5(a) is a “wobbler”[22] crime. If you're convicted of the felony form, the penalty may be:

  • A term of up to four (4) years in a state prison; OR,
  • A fine of up to $6,000 (six-thousand dollars); OR,
  • Both imprisonment and fines.[23]

More information can be found in the California Corporal Injury Law section of the Kann California Law Group's website. If you have questions, contact any of the Kann California Law Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your call goes directly to a lawyer. That's always guaranteed.

California Jury Instructions – Corporal Injury To A Spouse Or Cohabitant

To convict you under CPC §273.5(a), the prosecutor must prove the following beyond a reasonable doubt:

You willfully and unlawfully inflicted a physical injury on your former spouse, former cohabitant, the mother/father of your child, or someone with whom you had, or previously had, an engagement or dating relationship. The injury resulted in a traumatic condition. Finally, you did not act in self-defense or in defense of someone else.

Example: Defendant Domingo admits that he hit Victim Vincente. He admits that the attack put Vincente in the hospital, his condition critical at the time. He admits that he wasn't acting in defense of anyone. He says that the attack was willful. Nonetheless, Domingo insists that he can't be guilty of a charge under CPC §273.5(a) because he and Vincente are in a same-sex relationship. Is Domingo correct?

Conclusion: Domingo willfully inflicted physical injury on a person with whom he had a dating relationship. The attack resulted in a traumatic injury that sent Vincente to the hospital. None of this was done with a legal excuse. These are the elements of the crime. Section 273.5(a) defends same-sex relationships the same way it defends heterosexual bonds. Given this fact, Domingo is incorrect.

Elder Abuse

Elder Abuse (CPC §368(b)(1)) involves willfully inflicting physical or emotional abuse, neglect, endangerment, false imprisonment and/or financial exploitation on an elderly person or dependent adult. The crime is related to Child Abuse because elderly and/or dependent persons are often housed in the same places as children, permitting possible charges alleging both crimes in the same trial.

Since you can be convicted of a misdemeanor or a felony, depending on the facts of your case, CPC §368(b)(1) is a “wobbler”[24] crime.  If you're convicted of the felony form, the penalty may be:

  • A term of up to four (4) years in a state prison; OR,
  • A fine of up to $6,000 (six-thousand dollars); OR,
  • Both imprisonment and fines.[25]

More information can be found in the Elder Abuse section of the Kann California Law Group's website. If you have questions, contact any of the Kann California Law Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your call will always go directly to a lawyer - guaranteed.

California Jury Instructions – Elder Abuse

To convict you under CPC §368(b)(1), the prosecutor must prove the following beyond a reasonable doubt:

You willfully inflicted unjustifiable physical pain or mental suffering on an elder or dependent adult or you willfully caused or permitted an elder or dependent adult to suffer unjustifiable physical pain or mental suffering or you, while having care or custody of an elder or dependent adult, willfully caused or permitted that person to be injured or you, while having care or custody of an elder or dependent adult, willfully caused or permitted him or her to be placed in a situation where his or her person or health was endangered. You also inflicted suffering on an elder or dependent adult or caused or permitted an elder or dependent adult to suffer or be injured or be endangered under circumstances or conditions likely to produce great bodily harm or death. The victim is or was an elder or dependent adult. When you acted, you knew or reasonably should have known that the victim was an elder or a dependent adult. You had a legal duty to supervise and control the conduct of the person[s] who caused or inflicted unjustifiable physical pain or mental suffering on the elder or dependent adult, but failed to supervise or control that conduct. Finally, if necessary, you were criminally negligent when you caused or permitted the elder or dependent adult to suffer or to be injured or to be endangered.

Example: Defendant Dickie has custody[26] of Victim Vinton, his dependent seventy-year-old uncle. One day, while on a walk along a busy street, the men stop at a park. Dickie is distracted by a softball game. He unknowingly allows Vinton to wander into the street, where he's almost hit by several cars. Vinton is horrified. Police Officer this and arrests Dickie under CPC §368(b)(1). Is Dickie guilty, on these facts?

Conclusion: Dickie permitted Vinton to wander into traffic under conditions involving an obvious risk of death or serious injury to a person for whom he was legally responsible. Thus, he was criminally negligent. Vinton was a dependent adult reliant on Dickie, who, in turn, was under a duty to ensure that Vinton didn't suffer. As custodian, Dickie knew this. These are the crime's elements. Dickie is guilty.

Domestic Battery

Domestic Battery (CPC §243(e)(1)), also referred to as "spousal battery" and "spousal assault," is charged under California Penal Code §243(e)(1). It is the most common misdemeanor offense pertaining to domestic violence allegations. In order to be convicted of a Domestic Battery charge, the prosecution must prove that you willfully inflicted unlawful force or violence upon your intimate partner. The crime is related to Child Abuse because intimate partners are often housed in the same places as children, permitting the possibility of charges alleging both crimes in the same trial.

If you're convicted of Domestic Battery, the penalty may be:

  • A term of up to one (1) year in a county jail; OR,
  • A fine of up to $2,000 (two-thousand dollars); OR,
  • Both a jail term and a fine.[27]

More information can be found in the California Misdemeanor Domestic Violence Law section of the Kann California Law Group's website. If you have questions, contact any of the Kann California Law Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your call will always go directly to a lawyer – and that's guaranteed.

California Jury Instructions – Domestic Battery

To convict you under CPC §243(e)(1), the prosecutor must prove the following beyond a reasonable doubt:

You willfully and unlawfully touched a complaining witness in a harmful or offensive manner. The complaining witness is your [former] spouse, cohabitant, fiancé[e], or a person with whom you currently have, or previously had, a dating or engagement relationship, or the mother or father of your child. Finally, you did not act in self-defense or in defense of someone else.

Example: Defendant Derry is Victim Vicky's ex-boyfriend. They're in the same place one night when Vicky begins having heart trouble. Derry, a physician, comes to her aid. He opens her blouse and performs cardio-pulmonary resuscitation by pressing on her chest. Vicky survives but she's so offended by Derry's touching her chest that she reports him for violating §243(e)(1). Should Derry be convicted?

Conclusion: Derry willfully touched Vicky, his ex-girlfriend, in a manner that she considered offensive. These are the elements of the crime. But Derry only touched Vicky to provide her life-saving medical treatment. Furthermore, as a physician, it could be argued that Derry is under a legal duty to provide the assistance. Since he effectively defended Vicky from her heart problems, Derry should be acquitted.

Lewd Acts On A Child

Penal Code Section 288(a) prohibits lewd or lascivious acts with minors under fourteen. Lewd acts have to occur to arouse or appeal to the desires of the defendant, or the child, if they're to be illegal under this Section but arousing, appealing to, or gratifying your lust, your passions, or the sexual desires of yourself or the child isn't required. The crime is related to Child Abuse because lewd acts on minors always abuse children, permitting the prosecution to charge you with both crimes in the same trial.

If you're convicted of Lewd Acts On A Child, the penalty may be:

  • A term of up to eight (8) years in a state prison;[28] OR,
  • A fine of up to $10,000 (ten-thousand dollars); OR,
  • Both imprisonment and a fine;[29] AND,
  • An additional fine of up to $10,000 (ten-thousand dollars), which must be paid into a victim's relief fund;[30] AND,
  • The obligation to register as a Sex Offender.[31]    

Lewd Acts On A Child is also punished under California's “Three Strikes” system.[32] If you get three “strikes” on your record, you'll serve a minimum of twenty-five years in prison.[33]  

More information can be found in the Lewd Acts On A Child section of the Kann California Law Group's website. If you have questions, contact any of the Kann California Law Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your call will go directly to a lawyer. That is always guaranteed.

California Jury Instructions – Lewd Acts On A Child

To convict you under CPC §288(a), the prosecutor must prove the following beyond a reasonable doubt:

You willfully touched any part of a child's body either on the bare skin or through the clothing or you willfully caused a child to touch his or her own body, your body, or the body of someone else, either on the bare skin or through the clothing. You committed the act with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of yourself or the child. Finally, the child was under the age of fourteen years at the time.

Example: Defendant Domini admits that she induced Victim Vilem, her four-year-old nephew, to touch his legs while Domini filmed the act, intent on selling the film on the dark web[34] to child pornography enthusiasts like herself. She's arrested before she can do so. Domini insists that she can't be guilty of a charge under §288(a) because no one else who sexually aroused saw the recording. Is Domini correct?

Conclusion: Domini willfully induced Vilem to perform an act she wanted to record for persons like herself who'd be sexually aroused by the act. Vilem was well under fourteen years of age. These are the elements of the offense. Section 288(a) has nothing to do with presenting the illicit material to other persons. The crime requires nothing more than performing a lewd act with a child. Domini is incorrect.

Driving Under The Influence

Driving Under The Influence (California Vehicle Code [CVC] §23152(a)) involves a person who's under the influence of an alcoholic beverage driving a vehicle. The statute prohibits driving with a blood alcohol level exceeding 0.08, by weight. The crime is related to Child Abuse because driving a vehicle with a minor inside it while under the influence abuses the minor, permitting the prosecution to charge you with both crimes in the same trial.

If you're convicted of Driving Under The Influence, the first-time penalty may be:

  • A term of up to six (6) months in a county jail; OR,
  • A fine of up to $1,000 (one-thousand dollars); OR,
  • Both jail time and a fine.[35]

More information can be found in the California DUI Law section of the Kann California Law Group's website. If you have questions, contact any of the Kann California Law Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your call will go directly to a lawyer. That is guaranteed.

California Jury Instructions – Driving Under The Influence

To convict you under CVC §23152(a), the prosecutor must prove the following beyond a reasonable doubt:

You drove a vehicle while you were under the influence of an alcoholic beverage.

Example: Defendant Dimi has been arrested and charged with driving under the influence of an alcoholic beverage, a violation of CVC §23152(a). But Dimi's blood, when tested by police at a local hospital on the night of his arrest, shows excessive alcohol, illegal opioids, and methamphetamine. Dimi insists that – somehow - he can't be convicted, under these circumstances. Is Dimi correct or should he be convicted?

Conclusion: Dimi drove a motor vehicle while he had an “excessive” amount of alcohol (greater than 0.08% BAC) in his system. This is all the Vehicle Code section requires. But Dimi was charged with having only alcohol in his system. His blood work shows this to be untrue. Dimi actually should've been charged under subpart (g), criminalizing driving under the influence of drugs and alcohol. Thus, Dimi is correct.    

Murder

Murder (CPC §187(a)) is the unlawful killing of a human being with malice aforethought. This requires nothing more than the slightest moment of reflection in deciding to kill another person. The crime is related to Child Abuse because acts violating CPC §273d(a) can produce a minor's death, permitting the prosecution to charge you with both crimes in the same trial.

If you're convicted of Murder, the penalty may be:

  • A term of life without the possibility of parole in a state prison;[36] OR,
  • A fine of up to $10,000 (ten-thousand dollars); OR,
  • Both a prison term and a fine.[37]

Murder is also punished under California's “Three Strikes” system.[38] If you get three “strikes” on your record, you'll serve a minimum of twenty-five years in prison.[39]  

More information can be found in the Murder section of the Kann California Law Group's website. If you have questions, contact any of the Kann California Law Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your call will go directly to a lawyer. That is a guarantee.

California Jury Instructions – Murder

To convict you under CPC §187(a), the prosecutor must prove the following beyond a reasonable doubt:

You committed an act that caused the death of another person or a fetus or you had a legal duty to help, care for, rescue, warn, or maintain the property of a decedent and you failed to perform that duty, with the failure causing the death of that person or a fetus.  When you acted or failed to act, you had a state of mind called malice aforethought. Finally, you killed without lawful excuse or justification.

Example: Defendant Dan tries to rob Victim Vicki. Dan produces a pistol and points it at her. Vicki responds by pulling a gun of her own from her purse. As she points her firearm at Dan, he decides that he must kill Vicki to protect himself. Dan kills Vicki. Now Dan is facing charges under CPC §187(a). Dan insists that he's entitled to acquittal because he only killed Vicki in self-defense.[40] Is Dan innocent?

Conclusion: Dan willfully shot and killed Vicki. He decided to do so; thus, Dan acted with malice aforethought. These are elements of the crime. The issue is whether Dan is legally excused for the killing because he had to protect himself. But it was Dan who first drew a weapon. Vicki replied with the same type and level of force Dan used against her. In other words, Vicki protected herself. Dan is guilty.

Voluntary Manslaughter

Voluntary Manslaughter (CPC §192(a)) is the unlawful killing of a human being upon a sudden quarrel or in the heat of passion. The crime is related to Child Abuse because acts violating CPC §273d(a) can produce a minor's death, permitting the prosecution to charge you with both crimes in the same trial.

If you're convicted of Voluntary Manslaughter, the penalty may be:

  • A term of up to eleven (11) years in a state prison;[41] OR,
  • A fine of up to $10,000 (ten-thousand dollars); OR,
  • Both imprisonment and a fine.[42]

Voluntary Manslaughter is also punished under California's “Three Strikes” system.[43] If you get three “strikes” on your record, you'll serve a minimum of twenty-five years in prison.[44]  

More information can be found in the California Violent Crimes Defense Lawyers section of the Kann California Law Group's website. If you have questions, contact any of the Kann California Law Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your call will go directly to a lawyer. That is always a guarantee.

California Jury Instructions – Voluntary Manslaughter

To convict you under CPC §192(a), the prosecutor must prove the following beyond a reasonable doubt:

You committed an act that caused the death of another person while unlawfully intending to kill someone. You also killed without lawful excuse or justification. OR You intentionally committed an act that caused the death of another person. The natural consequences of the act were dangerous to human life. At the time you acted, you knew the act was dangerous to human life. Nonetheless, you deliberately acted with conscious disregard for human life, killing without lawful excuse or justification.

Example: Defendant Davis knows that Husband is having an affair. He has warned Husband and Victim Vic, Husband's lover, that he will kill them if they continue their involvement. But Davis comes home one day to find Vic in his bed with Husband. He yells, “I told you what would happen!” Then he kills Vic. Now Davis faces a charge under CPC §192(a). He insists he can't be guilty. Should Davis be convicted?

Conclusion: Davis committed an act that caused the death of Vic. He also killed without lawful excuse or justification, as evidenced by Davis's warning prior to finding Husband with Vic, as well as his declaration before attacking Vic. He also chose to kill Vic. This is illegal under California law. But Vic premeditated the crime. Section 192(a) punishes non-premeditated killings. Davis shouldn't be convicted, as charged.

Involuntary Manslaughter

Involuntary Manslaughter (CPC §192(b)) involves a person being killed in the commission of an unlawful act that doesn't amount to a felony. It also applies to killing while committing a lawful act which might produce death because it is pursued in an unlawful manner or without due caution and circumspection. It does not apply to deaths that occur while driving a vehicle. The crime is related to Child Abuse because acts violating CPC §273d(a) can produce a minor's death, permitting the prosecution to charge you with both crimes in the same trial.

If you're convicted of Involuntary Manslaughter, the penalty may be:

  • A term of up to four (4) years in a state prison;[45] OR,
  • A fine of up to $10,000 (ten-thousand dollars); OR,
  • Both imprisonment and a fine.[46]

California Jury Instructions – Involuntary Manslaughter

To convict you under CPC §192(b), the prosecutor must prove the following beyond a reasonable doubt:

You committed a crime or a lawful act in an unlawful manner. You committed the crime or act with criminal negligence. Finally, your crime or act caused the death of another person.

Example: Defendant Dipali and her husband, Victim Vinton, are having a child. She plans to reveal the baby's sex at a “gender reveal” party. The party features extensive use of fireworks that are illegal. It also occurs in Lancaster, a desert area. The fireworks cause a blaze that kills Vinton. Now Dipali is facing a charge under CPC §192(b). Is Dipali guilty, under these circumstances?

Conclusion: Dipali planned a party in which she committed a crime by using illegal fireworks. Furthermore, the circumstances under which she used the fireworks (“in Lancaster, a desert area”), combined with the destructiveness of the fire, establish general criminal negligence. Finally, Vinton died. These are the elements of the charge. Dipali is guilty of Involuntary Manslaughter.

Furnishing Fireworks To A Minor

Furnishing Fireworks To A Minor (California Health & Safety Code [HSC] §12702(a)) occurs when anyone sells, gives, or delivers fireworks to any person under eighteen years of age. The crime is related to Child Abuse because giving fireworks to a minor can harm the minor, permitting the prosecution to charge you with both crimes in the same trial.

Since you can be convicted of a misdemeanor or a felony, depending on the gross weight of the fireworks you possess when violating the law, Section 12702 is a “wobbler”[47] crime. If you're convicted of the felony form, the penalty may be:

  • A term of up to three (3) years in a state prison;[48] OR,
  • A fine of up to $50,000 (fifty-thousand dollars); OR,
  • Both imprisonment and a fine.[49]

California Jury Instructions – Furnishing Fireworks To A Minor

To convict you under HSC §12702(a), the prosecutor must prove the following beyond a reasonable doubt:

You gave, sold, or delivered fireworks to any person under eighteen years of age.

Example: Defendant Derek lawfully purchases fireworks for Adult Friend, who then gives the fireworks to his nine-year-old son, Victim Vigo. Police Officer sees Vigo lighting a firework and arrests Adult Friend. Adult Friend then tells police that Derek sold him the fireworks, Derek having purchased them on Adult Friend's request. Now Derek faces a charge under HSC §12702(a). Is Derek guilty, on these facts?

Conclusion: Derek lawfully purchased fireworks at the behest of Adult Friend. This is admitted even by Adult Friend. Thus, Derek did nothing that is illegal under this Code Section. Derek is neither responsible for controlling what Adult Friend does with the fireworks after he takes them from Derek, nor could Derek do so, if asked. Adult Friend is the one who should be charged, on these facts. Derek is not guilty.

Relinquishing A Vehicle To A Minor

Relinquishing A Vehicle To A Minor (CPC §193.8(a)) occurs whenever an adult owner or possessor of a motor vehicle relinquishes the vehicle to a minor for the purpose of driving when the adult knows or reasonably should know that the minor is intoxicated at the time, a petition was sustained or the minor was convicted of a violation of one of the specified Penal Code sections, and the minor does not otherwise have a lawful right to possession of the vehicle. The crime is related to Child Abuse because relinquishing a vehicle to an intoxicated minor can harm the minor, permitting the prosecution to charge you with both crimes in the same trial.

If you're convicted of Relinquishing A Vehicle To A Minor, the penalty may be:

  • A term of up to six (6) months in a county jail; OR,
  • A fine of up to $1,000 (one-thousand dollars); OR,
  • Both jail time and a fine.[50]

California Jury Instructions – Relinquishing A Vehicle To A Minor

To convict you under CPC §193.8(a), the prosecutor must prove the following beyond a reasonable doubt:

You, an adult owner or possessor of a motor vehicle, relinquished your vehicle to a minor for the purpose of driving. You knew or reasonably should've known that the minor was intoxicated at the time. A petition was sustained prior or the minor was convicted of a violation of one of the specified Penal Code sections. Finally, the minor did not otherwise have a lawful right to possession of the vehicle.

Example: Defendant Dom has no idea that Victim Verona, his teenaged daughter, has been drinking with her friends in Dom's backyard. She wants to go to the store, which is just around the corner. She doesn't otherwise have the right to his vehicle. Dom allows her to drive his car. Verona is promptly arrested and charged with a DUI. Now Dom is facing a charge under CPC §193.8(a). Is Dom guilty, on these facts?

Conclusion: Dom is the adult owner of a motor vehicle to which his minor daughter had no right, but for Dom's permission to use the vehicle. He allowed Verona use of the vehicle in order to drive it. However, the facts do not state that Verona was subject to a petition or a conviction. Equally important is that Dom had “no idea that Victim Verona” had “been drinking” when allowed Dom's car. Dom is innocent.     

Arranging Meeting With Minor For Lewd Purpose

Arranging Meeting With Minor For Lewd Purpose (CPC §288.4(a)(1)) occurs when anyone arranges to meet with a minor in order to expose his or her genitals, pubic area or anus, or to engage in lewd and lascivious conduct. Unlike similar offenses, CPC §288.4(a)(1) makes it a crime to arrange a meeting with someone only assume to be a minor. The crime is related to Child Abuse because meeting with a minor and committing lewd acts can harm the minor, permitting the prosecution to charge you with both crimes in the same trial.

If you're convicted of Arranging Meeting With Minor For Lewd Purpose, the penalty may be:

  • A term of up to one (1) year in a county jail; OR,
  • A fine of up to $5,000 (five-thousand dollars); OR,
  • Both imprisonment and a fine;[51] AND,
  • The obligation to register as a Sex Offender.[52]

More information can be found in the Arranging Meeting With Minor For Lewd Purpose section of the Kann California Law Group's website. If you have questions, contact any of the Kann California Law Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your call will go directly to a lawyer. That is always a guarantee.

California Jury Instructions – Arranging Meeting With Minor For Lewd Purpose

To convict you under CPC §288.4(a), the prosecutor must prove the following beyond a reasonable doubt:

You arranged a meeting with a minor or a person you believed to be a minor. When you did so, you were motivated by an unnatural or abnormal sexual interest in children. Finally, at that meeting, you intended to expose your genitals or pubic or rectal area, or to have the minor expose his or her genitals or pubic or rectal area, or to engage in lewd or lascivious behavior.

Example: Defendant Douglass is a graduate student who writes about teenage sexuality. He takes on a fictional online identity and develops a platonic friendship with fifteen-year-old Victim Vint. But then Douglass develops feelings for Vint. He tries to meet with Vint and pursue a sexual relationship. Police charge him under CPC §288.4(a). Douglass says he did nothing more than research. Is Douglass guilty?

Conclusion: Douglass began his association with Vint as a researcher interested in a legitimate academic subject. Had Douglass remained only interested in academics, he would not have violated the law. But the situation changed. By the time Douglass tried to meet with Vint, Douglass was motivated by a sexual interest in the minor, and he wanted to pursue sex when they met. On these facts, Douglass is guilty.

Contacting Minor With Intent To Commit Certain Felonies

Contacting Minor With Intent To Commit Certain Felonies (CPC §288.3(a)) involves contacting or communicating with a minor, or attempting to contact or communicate with a minor, knowing or that the person is a minor and intending to commit an offense specified in the statute. Section §288.3(a) makes it a crime to contact someone you should reasonably believe to be a minor, unlike similar offenses, and even criminalizes mere attempts at communicating with a minor to commit certain felonies. The crime is related to Child Abuse because conduct which violates one of the listed offenses can generate charges under CPC §273d(a) in the same trial.

If you're convicted of Contacting Minor With Intent To Commit Certain Felonies, the penalty may be:

  • A term of up to three (3) years in a state prison;[53] OR,
  • A fine of up to $10,000 (ten-thousand dollars); OR,
  • Both imprisonment and a fine.[54]

More information can be found in the Contacting Minor With Intent To Commit Certain Felonies section of the Kann California Law Group's website. If you have questions, contact any of the Kann California Law Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your call will go directly to a lawyer. It's always guaranteed.

California Jury Instructions – Contacting Minor With Intent To Commit Certain Felonies

To convict you under CPC §288.3(a), the prosecutor must prove the following beyond a reasonable doubt:

You contacted or communicated with, or attempted to contact or communicate with, a minor. When you did so, you intended to commit an offense enumerated in the statute. Finally, you knew or reasonably should have known that the person was a minor or you believed the person was a minor.

Example: Defendant Deirdre, a forty-year-old high school counselor, admits she contacted Victim Vince, a sixteen-year-old student, after school hours. She admits this was a violation of school policy. She admits they discussed sex. But she denies that she can be convicted of violating CPC §288.3(a) because she only communicated with Vince about questions he has about his sexuality. Is Deirdre correct?

Conclusion: Deirdre, a legal adult, communicated about sex with a person she knew to be a minor. (Deidre would know this because she was a counselor at Vince's high school.) These could be elements of the offense. But Deidre intended none of the offenses listed in the statute. Deidre was helping a student who was questioning his sexuality. Therefore, she shouldn't be convicted. Deidre is correct.

Oral Copulation On A Minor

Oral Copulation On A Minor (CPC §§287(a) and (b)(1)) occurs whenever a person copulates the mouth of another person with a sex organ, or with the anus, if at least one of the persons involved is a minor.

Since §§287(a) and (b)(1) allow prosecutors to charge you with a felony or a misdemeanor, depending on the facts of your case, Oral Copulation On A Minor is a “wobbler”[55] offense. The crime is related to Child Abuse because both Child Abuse and Oral Copulation On A Minor involve acts which harm a child, permitting the prosecution to charge you with both crimes in the same trial.

If you're convicted of Oral Copulation On a Minor younger than sixteen, the penalty may be:

  • A term of up to three (3) years in a state prison;[56] OR,
  • A fine of up to $10,000 (ten-thousand dollars); OR,
  • Both a fine and imprisonment;[57] AND,
  • The duty to register as a Sex Offender.[58]

Oral Copulation On a Minor is also punished under California's “Three Strikes” system.[59] If you get three “strikes” on your record, you'll serve a minimum of twenty-five years in prison.[60]  

More information can be found in the California Sex Offense Lawyers section of the Kann California Defense Group's website. If you have questions, contact any of the Kann Defense Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your call always goes directly to a lawyer. We guarantee it.

California Criminal Jury Instructions – Oral Copulation On A Minor

To convict you under CPC §§287(a) and (b)(1), the prosecution must prove the following beyond a reasonable doubt:

You participated in oral copulation with the sexual organ or anus of a person younger than eighteen.

Example: Defendant Dominica admits that she performed oral sex on Victim Vincenzo. Dominica was eighteen at the time. Vincenzo turned eighteen on the morning after this romantic encounter. Now Dominica is facing a criminal charge. Dominica defends herself by saying that she only had Vincenzo's penis in her mouth “for a second or two.” Should Dominica be convicted under §§287(a) and (b)(1)?

Conclusion: Dominica participated in oral copulation on the sexual organ of a person who was younger than eighteen. (Vincenzo wasn't a legal adult until the morning after the oral copulation.) These are the elements of the crime. The Code sections don't require a duration or scope in committing the oral copulation; any contact with the minor's genitals is sufficient. Dominica, it follows, should be convicted.

Statutory Rape

Statutory Rape (CPC §261.5(a),(b)) occurs whenever anyone has sexual intercourse with a person under eighteen. The victim cannot be the guilty person's spouse. The crime is related to Child Abuse because sex with minors can permit the prosecution to charge you with both crimes in the same trial.

Statutory Rape is a “wobbler”[61] crime; the prosecution can charge you with a misdemeanor or a felony, depending on the unique facts of your case. If you are over twenty-one and the other person is under sixteen, the penalty may be:

  • A term of up to four (4) years in state prison;[62] OR,
  • A fine of up to $25,000 (twenty-five thousand dollars) (including a civil penalty); OR,
  • Both imprisonment and a fine.[63]

California Criminal Jury Instructions – Statutory Rape

To convict you under CPC §§261.5(a),(b) the prosecution must prove the following beyond a reasonable doubt:

You had sexual intercourse with another person. You and the other person were not married to each other at the time of the intercourse. Finally, at the time of the intercourse, the other person was under the age of eighteen but not more than three years younger or older than yourself.

Example: Defendant Denton and Victim Vara have sex when Denton is sixteen and Vara is nineteen. Denton now faces charges of violating CPC §§261.5(a) and (b). He admits to the sex act but does not believe that he can be convicted because he is not an adult. Is Denton correct about Statutory Rape law?   

Conclusion: Denton, a minor, had sex with Vara, an adult. They were unmarried at the time. They were within three years of each other's age as well. These are elements of the offense. But the law forbids having sex with minors, not adults. While minors can be guilty of having sex with other minors, in other words, adults alone can be prosecuted when adults have sex with minors. Therefore, Denton is correct.

What Can I Do If I'm Charged With Child Abuse?

The State of California treats Child Abuse as an exceptionally serious offense. If you're charged with Child Abuse, it's essential that you retain a skilled, dedicated criminal defense attorney as soon as possible. Your rights, freedom, and livelihood are at stake.

Remember, a professional criminal defense attorney may be able to:

  • Negotiate a lesser charge in a plea bargain;
  • Reduce your sentence;
  • Or even get charges dismissed completely.

The attorneys at the Kann California Law Group have an excellent understanding of the local courts and an extensive knowledge of California's criminal justice system. We can represent you in Ventura, Santa Clarita, Los Angeles, Encino, Pasadena and many other Southern California cities. 

If you or someone you know has been arrested for, or charged with, Child Abuse, our attorneys will analyze the facts of your case and plan a strategy that will help you obtain the best possible outcome.

Contact the Kann California Law Group today to schedule your free and confidential consultation.  

References

[1] See “Wobbler Law and Legal Definition” at USLegal.com.   

[2] “Someone commits an act willfully when he or she does it willingly or on purpose.” See California Criminal Jury Instructions 822 (CALCRIM) (2022).

[3] “A child is any person under the age of 18 years.” See California Criminal Jury Instructions 822 (CALCRIM) (2022).

[4] “A traumatic physical condition is a wound or other bodily injury, whether minor or serious, caused by the direct application of physical force.” See California Criminal Jury Instructions 822 (CALCRIM) (2022).

[5] “A punishment and/or injury caused a traumatic physical condition if: [¶] 1. The traumatic condition was the natural and probable consequence of the punishment/and/or injury; [¶] 2. The punishment and/or injury was a direct and substantial factor in causing the condition; [¶] AND, [¶] 3. The condition would not have happened without the punishment/and/or injury. [¶] A natural and probable consequence is one that a reasonable person

would know is likely to happen if nothing unusual intervenes. […] [¶] A substantial factor is more than a trivial or remote factor. However, it does not need to be the only factor that caused the traumatic condition.” See California Criminal Jury Instructions 822 (CALCRIM) (2022).

[6] See CPC §273d (a).

[7] See Endnote 1.

[8] See Endnote 6.

[9] See CPC §§ [Section] 273d (c) (1) – (4).

[10] See CPC §273d (b).

[11] See “Melatonin” at Wikipedia.org.

[12] Fact pattern inspired by “A Boy Ate 180 Gummy Melatonins For Lunch. This Is What Happened To His Brain,” by Chubbyemu. YouTube.com, June 26, 2022.

[13] See Endnote 1.   

[14] See CPC §273a (a).

[15] See CPC §672.

[16] See CPC §1192.7 (c) (8). 

[17] See CPC §667 (e) (2) (A) (ii).

[18] See Endnote 1.   

[19] See CPC §270.

[20] See CPC §243 (a).

[21] Fact pattern based on an actual incident recounted in “1903 Tour de France.” Wikipedia.org.

[22] See Endnote 1.   

[23] See CPC §273.5 (a).

[24] See Endnote 1.   

[25] See CPC §368 (b) (1).

[26] See “Custody Law and Legal Definition” at USLegal.com. 

[27] See CPC §243 (e) (1).

[28] See CPC §288 (a).

[29] See Endnote 15.

[30] See CPC §288 (e) (1).

[31] See CPC §290 (c) (1).

[32] See CPC §§ [Sections] 1192.7 (c) (6); 667.5 (c) (6).

[33] See Endnote 17.

[34] See “Dark web” at Wikipedia.org.

[35] See CPC §19.

[36] See CPC §190 (a). (Note: A moratorium has been declared on seeking the death penalty in murder cases.)

[37] See Endnote 15.

[38] See CPC §§ [Sections] 1192.7 (c) (1); 667.5 (c) (1).

[39] See Endnote 17.

[40] See “Right to Self-Defense or Defense of Another.” California Criminal Jury Instructions 3470 (CALCRIM) (2022).  

[41] See CPC §193 (a).

[42] See Endnote 15.

[43] See Endnote 33.

[44] See Endnote 17.

[45] See CPC §193 (b).

[46] See Endnote 15.

[47] See Endnote 1.    

[48] See CPC §1170 (h) (1).

[49] See California Health & Safety Code [HSC] §12700 (b) (4).

[50] See CPC §193.8 (c).

[51] See CPC §288.4 (a) (1). 

[52] See Endnote 31.

[53] See CPC §18 (a).

[54] See Endnote 15.

[55] See Endnote 1.

[56] See Endnote 53.

[57] See Endnote 15.

[58] See Endnote 31.

[59] See CPC §667.5 (c) (5).

[60] See Endnote 17.

[61] See Endnote 1.

[62] See CPC §261.5 (d).

[63] See CPC §261.5 (e) (1) (D).

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