The crime of child endangerment under California Penal Code section 273a is similar to child abuse but specifically refers to the infliction of mental suffering upon a child or allowing a child to be in a situation that is inherently dangerous. Be advised that the child does not have to actually suffer harm. If a child has access to a loaded gun in your home you can be charged with child endangerment under Penal Code section 273a even if the child wasn't injured and never even touched the gun. If you’re driving under the influence of alcohol or drugs with a child in your car and you get pulled over, you can be charged with not only a DUI but also child endangerment. This is true even if there was no accident and the child was not hurt. Just the fact that a child was put in an inherently dangerous situation is sufficient for the charge. As can be expected, prosecutors take cases involving children very seriously because child victims are particularly vulnerable. Consequences can be very devastating. Like many crimes, child endangerment is a wobbler crime and can be charged as a misdemeanor or felony. If you are convicted of felony child endangerment charge, you could go to state prison and even receive a strike on your record. But far more devastating is that your child can be taken from you and put in a foster home.
At the same time, child endangerment under Penal Code section 273a is one of those crimes that many innocent people are accused of - and tragically many of them convicted. It could be that someone else other than you had responsibility for the child at the time. If could also be that someone else might have created the danger for the child and you weren’t even aware of it. It could even be that you actually took ample steps to protect the child but the police are blowing the incident way out of proportion.
Let us now take a look at the elements of the crime. In order for the prosecution to secure a conviction of child endangerment, he or she must prove the following elements of the crime beyond a reasonable doubt.
Elements of Child Endangerment
- A person willfully inflicted physical, mental or emotional harm to a child, or
- The person willfully caused or allowed a child to suffer physically, mentally or emotionally for no justifiable reason, and acted with criminal negligence, or
- The person willfully caused harm to a child in their care, and acted with criminal negligence, or
- The person willfully caused a child to be put in a dangerous situation, and acted with criminal negligence.
In addition to one of the above elements, the person must not have acted while he or she was reasonable disciplining his or her child. Also, if the crime is charged as a felony, the prosecution must show that the person acted in a way that was likely to cause the child great bodily harm or death.
Willfully – This means that the act was done intentionally or on purpose. What it does not mean, however, is that the person acted with the intent to break the law or cause harm to the child.
Criminal Negligence – Criminal negligence is an act that is so reckless and shows such a lack of concern for human life that an ordinary reasonable person would never have acted this way in the same situation.
Physical, Mental or Emotional Harm With No Justifiable Reason - This means that the harm or suffering that the person inflicted upon the child wasn’t reasonably necessary and was extreme under the circumstances. If a mother runs and pushes her child to the ground out of the way of oncoming traffic while he was crossing the street, and the child breaks his arm as a result, this is considered physical harm that is most likely reasonably necessary to save his life. This would not be considered child endangerment under Penal Code section 273a.
Great Bodily Harm – The type of harm that amounts to great bodily harm of a child is decided on the basis of each individual case. As mentioned above, the child doesn’t actually have to suffer from an injury. Rather, the issue is whether or not the act placed the child in a situation where he or she was likely to suffer harm. Obviously, the more serious the harm or injury to the child, the more seriously the charges will be filed.
Penalties for Child Endangerment
Penalties and sentencing for a conviction of a violation of Penal Code section 273a vary from case to case and very much look to whether the person who committed the act of endangering a child did so with the risk of causing the child great bodily harm or death. If the circumstances included the risk of death or great bodily harm to a child than the crime is considered a wobbler in the state of California. This means that it can be charged as a misdemeanor or a felony. The prosecutor will look to the specific facts and circumstances surrounding the incident, as well as the defendant’s prior criminal history in determining how to file the case.
Great Bodily Harm or Death Present
If the circumstances surrounding your case show that the child was in danger of great bodily harm or death the case may be considered a wobbler. This means that the prosecution may charge you with either a felony or a misdemeanor depending upon the circumstances surrounding the case. If charged with felony child endangerment you may face two years in state prison, four years in state prison, or six years in state prison, a maximum fine of $10,000, and/or a minimum of four years on formal probation which would include the mandatory probation conditions that are explained below under misdemeanor probation. A conviction of felony child endangerment will also result in a strike on your record. Furthermore, if the child was actually injured and not merely at risk for great bodily harm you could receive an additional and consecutive prison term of three to six years. If the child was killed either because of your criminal negligence or your abuse you could face an additional and consecutive four years in state prison. Be aware that in this situation it is quite possible that you could also be charged with murder or manslaughter.
No Bodily Harm Present
If you are convicted of a violation of child endangerment under Penal Code section 273a where there was no risk of bodily injury then it is likely that your crime will be a misdemeanor. Misdemeanor child endangerment charges carry the possibility of a maximum of 6 months in county jail, a maximum fine of $1,000, and/or informal misdemeanor probation for a minimum of four years. If you are on misdemeanor probation you might face additional probationary conditions, which include protective orders to protect the victim by barring you from having any contact, completion of a child abuser treatment program, and alcohol and substance abuse classes if alcohol or drugs played a part in the original crime.
Defenses for Child Endangerment
While this particular crime carries quite severe consequences, there are several defenses that the Criminal Law Office of Leah Legal can adopt while defending a case such as child endangerment under Penal Code section 273a.
False Accusations - The most common defense is false accusation. We oftentimes see in child endangerment cases that false accusations are made because of anger, jealousy or the desire for revenge. It is a well-known occurrence during custody disputes and other such family court battles that one of the parties brings about false accusations against another in an attempt to get a leg up in the court case. If that happens, your attorney can investigate, collect and present all such exculpatory evidence to the prosecution and the judge.
Lack of Willfulness - Another defense that may be used is that the endangerment to the child was not done intentionally. Accidents do happen - however unfortunate they may be - and the mere existence of an accident does not necessarily mean you are guilty of a violation of Penal Code section 273a. Should a child be injured or harmed in some way by accident and through no willful intent of your own, you cannot be charged with child endangerment because a successful conviction for the violation of Penal Code section 273a can only occur if you acted willfully and intentionally to inflict harm on the child.
Parent Discipline - If the alleged act of abuse was an action taken within your reasonable right as a parent to discipline your own child you cannot be charged with child endangerment. A parent or guardian has a legal right to discipline their child. However, the right to discipline your child does not grant you the right to mistreat or abuse your child under the guise of disciplinary action. If Ms. Naparstek can provide evidence showing that the alleged act of child endangerment was actually within a reasonable disciplinary measure taken then you cannot be convicted of a violation of child endangerment Penal Code section 273a.